Case C‑283/16

M.S.

v

P.S.

(Request for a preliminary ruling from the
High Court of Justice (England and Wales), Family Division)

(Reference for a preliminary ruling — Regulation (EC) No 4/2009 — Article 41(1) — Recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations — Enforcement of a decision in a Member State — Application submitted directly to the competent authority of the Member State of enforcement — National legislation requiring recourse to be had to the Central Authority of the Member State of enforcement)

Summary — Judgment of the Court (Sixth Chamber), 9 February 2017

1. Judicial cooperation in civil matters–Jurisdiction, applicable law, recognition and enforcement of decisions in matters relating to maintenance obligations–Regulation No 4/2009–Recognition, enforceability and enforcement of decisions–Proceedings and conditions for enforcement–National regulations under which a maintenance creditor is required to submit an application for enforcement of a decision through the Central Authority of the Member State of enforcement–Not permissible

   (Council Regulation No 4/2009, Recital 31 and 32, Arts 41(1), 45, 51 and 56)

2. Judicial cooperation in civil matters–Jurisdiction, applicable law, recognition and enforcement of decisions in matters relating to maintenance obligations–Regulation No 4/2009 Article 41(1)–Direct effect–Obligations and powers of the national court hearing the case–Non-application of national provisions requiring a maintenance creditor to submit an application for enforcement of a decision to the Central Authority of the Member State of enforcement

   (Council Regulation No 4/2009, Art. 41(1))

1.  Chapter IV of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, in particular Article 41(1) thereof, must be interpreted as meaning that a maintenance creditor who has obtained an order in one Member State and wishes to enforce it in another Member State may make an application directly to the competent authority of the latter Member State, such as a specialised court, and cannot be required to submit the application to that court through the Central Authority of the Member State of enforcement.

   Thus, nothing in Chapter IV, which is headed ‘Recognition, enforceability and enforcement of decisions’ and contains Article 41(1), provides that a special procedure, in addition to the procedures applicable to purely domestic claims, must be followed, or, in particular, that recourse must be had to the Central Authorities of the Member States.

   Provision is made for the issuing of proceedings via the Central Authorities in Chapter VII of Regulation No 4/2009, concerning cooperation between Central Authorities.

   It follows from Articles 51 and 56 of Regulation No 4/2009, read in the light of recitals 31 and 32 thereof, that a person has a right but is not under any obligation to make an application to the Central Authorities for assistance pursuant to the provisions in Chapter VII of the regulation. It is, therefore, optional and that right will be exercised only if the maintenance creditor wishes to avail herself of it, in order, for example, to overcome certain specific difficulties, such as the location of the maintenance debtor.

   It is therefore apparent that Regulation No 4/2009 provides two alternative methods of submitting an application to the courts with jurisdiction, one direct, pursuant to the provisions in Chapter IV of the regulation, and the other through the Central Authorities, if the maintenance creditor seeks the assistance of the Central Authority of the Member State in which she resides, pursuant to the provisions in Chapter VII of the regulation.

   That analysis is supported by the wording of Article 45 of Regulation No 4/2009, which forms part of Chapter V thereof. That article, which concerns legal aid, makes an express distinction between two alternative means by which a maintenance creditor may submit an application for enforcement, namely through the Central Authorities ‘or’ directly to the competent authorities.

   Accordingly, the obligation imposed on a maintenance creditor by national regulations such as those at issue in the main proceedings to submit an application through the Central Authority of the requested Member State — even though that person wishes to submit an application directly to the competent authorities on the basis of Chapter IV of Regulation No 4/2009 — which, according to the referring court, takes more time, is contrary to Article 41(1) of that regulation, considered in the light of the purpose of the regulation and the system of which that provision forms part.

   (see paras 37, 39-44, operative part 1)

2.  Member States are required to give full effect to the right laid down in Article 41(1) of Regulation No 4/2009 by amending, where appropriate, their rules of procedure. In any event, it is for the national court to apply Article 41(1), if necessary refusing to apply any conflicting provision of national law and, as a consequence, to allow a maintenance creditor to submit her application directly to the competent authority of the Member State of enforcement, even if national law does not make provision for such an application.

   (see para 51, operative part 2)