International Maintenance Law in Legal Relations between Switzerland and the EU

Abstract

Three new instruments, which have only recently entered into force, have changed the field of international maintenance law: the 2007 Maintenance Convention (the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance), the 2007 Maintenance Protocol (Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations) and the EU Maintenance Regulation (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 (OJ [2009] L 7/1; EU Maintenance Regulation). Whereas the EU is bound by all of these instruments, Switzerland has not ratified nor acceded to the Hague instruments yet, nor have the provisions of the EU Maintenance Regulation been extended by means of a parallel instrument to cover Switzerland. This new legal situation raises questions regarding the applicability of these instruments in cross-border cases involving Switzerland and the EU. The key issue discussed in this essay is the question of jurisdiction in cross-border cases involving Switzerland and the EU Member States, and in particular how to disentangle the scope of the 2007 Lugano Convention from the scope of the EU Maintenance Regulation. As none of these instruments regulates its applicability explicitly, the answer to this question has to be found by interpreting the relevant provisions. The authors conclude that whenever there are proceedings pending before a Swiss court, the 2007 Lugano Convention applies, whereas the courts of an EU Member State have to assume jurisdiction exclusively according to the EU Maintenance Regulation. As a result, different provisions apply, which leads to a conflict of jurisdiction regarding choice of court agreements. If jurisdiction has been assumed by a court of an EU Member State, the applicable law is determined by the 2007 Maintenance Protocol, whereas in Switzerland, the 1973 Hague Maintenance Convention (the Hague Convention of 2 October 1973 on the Law Applicable to Maintenance Obligations) applies. Again, the different provisions enable forum shopping, with undesirable consequences.