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*PIL Case Law

Published on August 19th, 2017 | by Olga Papadopoulou

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CJEU C-283/16, Reg. 4/2009, Art.41 (1)-  Application for enforcement of a decision submitted directly to the competent authority of the Member State of enforcement 

C-283/16,

M.S. V. P. S.,

JUDGMENT OF THE COURT (Sixth Chamber), 9 February 2017 (*)

(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)

         In those circumstances, the High Court of Justice (England and Wales), Family Division, decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      In circumstances where a maintenance creditor wishes to enforce in one Member State an order which has been obtained in another Member State, does Chapter IV of Regulation No 4/2009 confer upon her a right to make an application for enforcement directly to the competent authority of the requested State?

(2)      If the answer to question 1 is in the affirmative, should Chapter IV of Regulation No 4/2009 be interpreted so as to mean that each Member State is obliged to provide a procedure or mechanism such as will enable the right to be recognised?’

On those grounds, the Court (Sixth Chamber) hereby rules:

  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.
  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.

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