TKF v The Department of Justice
I attended the European Court of Justice (CJEU) with Ronan Lavery QC, Malachy McGowan BL and Enda McGarrity (Trainee Solicitor, PA Duffy & Co) on the 14th October 2020 in the case of TKF v The Department of Justice, Northern Ireland. The case proceeded as a fully contested hearing and submissions were made by ourselves on behalf of TKF, representatives from the Department of Justice, Northern Ireland, representatives from the European Commission and representatives from the State of Poland.
The case was listed in the ECJ following a request for a preliminary ruling made by the Court of Appeal in Northern Ireland. The reference for a preliminary rule concerns judicial cooperation in civil matters, recognition and enforcement of decisions and cooperation between member states in matters relating to maintenance obligations under Regulation (EC) No 4/2009 and in particular the temporal scope of Article 75 and the possibility to register and enforce judgments delivered before the accession of the State (Poland in this case) of origin to the European Union. There were 6 judges on the panel from various EU Member States and the Advocate General.
The factual background to the case as reflected in the judgment is that KF and AKF, both Polish nationals, were married in Poland in 1991. They had two sons. On 1 April 1999, a Polish Court made a maintenance decision in favour of AKF against TKF. Further maintenance proceedings were commenced before the Polish courts, between December 2002 and February 2003. These later proceedings gave rise to what the referring court has described as ‘updated maintenance orders’ dated 14 February 2003, those decisions being ‘variations of original orders made on 1 April 1999’ by the same court. TKF and AKF divorced in 2004. Two years later, in August 2006, TKF came to Northern Ireland, where he has resided ever since.
By decisions of 24 October 2013 and 15 August 2014 (‘the decisions to register’), a Clerk of the Magistrates’ Court for the Petty Sessions District of Belfast and Newtownabbey (United Kingdom) registered, and declared enforceable the two maintenance decisions made by the Polish court, dated 14 February 2003. The decisions to register were made in accordance with Article 75 of Regulation No 4/2009. They also declare that the decisions so registered are enforceable for the purposes of Section 2 of Chapter IV of the same regulation.
TKF challenged the decisions to register before the High Court of Justice in Northern Ireland, Queen’s Bench Division (United Kingdom) on the grounds that, as Poland was not a Member State when the Polish Court decisions in question were made, Section 2 of Chapter 4 of Regulation No 4/2009 did not apply. He also argued that Articles 23 and 26 did not apply to the Polish Court decisions and that, in any event, these decisions did not comply with Article 24 of Regulation No 4/2009, as there was no evidence that TKF was aware of, attended or was represented at the proceedings in question.
However, his action was dismissed by the High Court of Justice in Northern Ireland, Queen’s Bench Division, on the grounds that Regulation No 4/2009 contains no provision restricting its temporal scope to court maintenance orders made in Poland only after the date of Polish accession to the EU. In addition, if Article 75(2) of Regulation No 4/2009 did not apply, as Poland is a State party to the Hague Protocol, Chapter VII of Regulation No 4/2009 did apply, by virtue of Article 75(3), to the matters at hand. The High Court of Justice in Northern Ireland, Queen’s Bench Division, accordingly held that the Polish Court decisions had been properly registered and enforced under that chapter. TFK then appealed that decision to the Court of Appeal in Northern Ireland (‘the referring court’).
The issue before the referring court accordingly concerned the proper temporal application of Regulation No 4/2009 for the purpose of registering and declaring enforceable maintenance decisions, and the applicability of Article 75(2) to decisions issued in States parties to the Hague Protocol. In that context, the referring court has doubts as to the applicability of Regulation No 4/2009 to maintenance decisions given in Poland before its accession to the EU and whether the Magistrates’ Court for Petty Sessions District of Belfast and Newtownabbey had jurisdiction to register the relevant decisions under any part of Article 75 of Regulation No 4/2009.
The position on a number of legal issues were not clear to the Court of Appeal and the CJEU was essentially asked to confirm the legal position on what (if any) circumstances is a judgment for maintenance delivered by a national court prior to the accession of that country to the European Union entitled to recognition under the provisions 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? [1] This was essentially the issue posed by the following request for a preliminary ruling from the Court of Appeal in Northern Ireland (United Kingdom).
The present request for a preliminary ruling accordingly concerns the recognition and enforcement in the United Kingdom of decisions in matters relating to maintenance obligations given in Poland prior to its accession to the European Union on 1 May 2004 and prior to the date of application, namely 18 June 2011, of Regulation No 4/2009.
The Advocate General, Mr Gerard Hogan from Ireland delivered his opinion to the Court on 12 November 2020. The Advocate General’s opinion found in favour of TKF and adopted the argument made by our team on his behalf. The Advocate General concluded by stating that ‘I propose that the Court should answer the questions referred by the Court of Appeal in Northern Ireland (United Kingdom) as follows:
1. The derogation from the temporal application 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, laid down in Article 75(2) of Regulation No 4/2009, is to be interpreted as applying only to decisions which were given by a court in States which were already members of the EU at the time those decisions were given.
2. It is not possible to obtain, on the basis of Article 75 of Regulation No 4/2009 or any other provision of that regulation, the recognition and enforcement of a decision made by a court of a State before its accession to the Union in accordance with the rules laid down in Regulation No 4/2009.
The Advocate General also stated that ‘it is an unfortunate fact that the present request for a preliminary ruling may well be the very last case from Northern Ireland with which this Court has occasion directly to deal with’.
The opinion of the Advocate General is delivered to the full court. The case will now be listed before the full court and a full judgment will be delivered on the legal questions referred. The CJEU judgment will then be provided to the Court of Appeal in Northern Ireland and a final judgment will be delivered in the case. We look forward to a date in both matters and hope to be in a position to provide a further update on the case which will set and precedent on the matter across all EU Member States.