Opinion of Advocate General Szpunar delivered on 16 April 2015

EU law

Belgian law

Penalty payments are governed by Articles 1385 bis to 1385 nonies of the code judiciare (‘the Judicial Code’).

Article 1385 bis of the Judicial Code provides:

‘On the application of one of the parties, the court may order the other party to pay a sum of money, known as a penalty payment, if the principal obligation laid down in the judgment has not been performed, without prejudice to damages, where appropriate. …’

Article 1385 ter of the Judicial Code is worded as follows:

‘The court may set the penalty payment at a fixed amount or at an amount determined by unit of time or by breach. In the last two cases, the court may also set an amount above which the order to pay the penalty payment shall cease to have effect.’

Article 1385 quater of the Judicial Code provides:

‘The whole amount of the accrued penalty payment is payable to the party who obtained the order. That party may pursue recovery of the penalty payment on the basis of the order imposing it. …’

Article 1385 quinquies of the Judicial Code is worded as follows:

‘The court that imposed the penalty payment may also cancel it, suspend its accrual for a stipulated period or reduce its amount, on application by the party ordered to pay the penalty, if he is permanently or temporarily entirely or partially unable to perform the principal obligation. The court may not cancel or reduce the penalty payment if it has accrued before the circumstances causing the inability arise.’

Since the enforceable instrument permitting recovery of the penalty payment is the judicial decision imposing that penalty (Article 1385 quater of the Judicial Code), the beneficiary does not need to have the penalty payment quantified prior to enforcement.

If the debtor challenges enforcement, the creditor of the penalty payment must produce evidence to establish the breaches alleged. It will then be for the court dealing with the enforcement proceedings to decide whether the conditions for payment of the penalty are satisfied.

Finnish law

Under Finnish law, the imposition of penalty payments to ensure compliance with rights of access is governed by the Law on rights of custody and access (lapsen huoltoa ja tapaamisoikeutta koskevan päätöksen täytäntöönpanosta annettu laki, ‘the TpL’) and by the applicable part of the Law on penalty payments (uhkasakkolaki, ‘Law on penalty payments’).

Pursuant to Paragraph 16(2) of the TpL, after a judgment on rights of access has been given, the court before which a case is brought concerning the enforcement of those rights may require the respondent to comply with the judgment, failing which he or she will be subject to a penalty payment.

Penalty payments are generally set at a fixed amount. However, if there is a particular reason for so doing, a periodic penalty payment may be imposed (Paragraph 18(1) and (2) of the TpL).

Penalty payments must always be paid to the State and not to the other party.

Following a fresh application, the court may order payment of the penalty imposed if it considers that there are grounds for doing so. Payment of the penalty may not be ordered where the party subject to the obligation shows that he had good reason for failing to perform the obligation, or where the obligation has been performed in the intervening period (Paragraph 19(1) and (2) of the TpL).

The court may reduce the amount of the penalty payment originally imposed if the principal obligation has in substance been performed, if the ability of the party subject to the obligation to pay has significantly deteriorated or if there are other good reasons for reducing the amount (Paragraph 11 of the Law on penalty payments).

Paragraph 12(2) of the Law on penalty payments provides that if circumstances have changed or crucial new information has come to light, or if the judgment was based on a clearly incorrect application of the law, the authority which imposed the penalty payment may set aside its judgment and hear the case afresh, in whole or in part.

Preliminary observations on the legal nature of penalty payments

First of all, I should point out that the referring court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law.^(*)

Against that background, it must be noted, first, that penalty payments are used in several Member States,^(*) including penalty payments to ensure rights of access.^(*) A comparative analysis of national laws governing penalty payments indicates that whilst there are many similarities, there are also major differences.^(*) That is the case, in particular, with Finnish and Belgian law, at issue in the main proceedings.^(*)

Second, as regards the similarities between these two national laws, the order for reference indicates that penalty payments are ancillary to the principal obligation, they must be authorised by a court^(*) and they exert financial pressure on the debtor to ensure that he complies with the judicial decision handed down against him. Indeed, under Finnish and Belgian law,^(*) penalty payments are of a coercive nature and become due solely as a result of the failure to comply with the judicial decision. It is thus this coercive nature that makes penalty payments akin to measures of enforcement.^(*)

Third, as to the points of divergence, it is apparent from the order for reference that the differences between Finnish law and Belgian law relate above all to the procedure leading to the imposition and enforcement of a penalty payment and to the determination by the beneficiary of the sums owed thereunder.^(*)

As regards, in the first place, the procedure leading to the imposition and enforcement of a penalty payment, the differences essentially relate to when the payment becomes due and payable and the detailed rules on quantification. According to the order for reference, under Belgian law, the penalty payment system, which also applies in cases involving rights of access, excludes all forms of quantification procedure.^(*) In other words, the beneficiary does not need a court to quantify the penalty payment prior to enforcement.^(*) Indeed, under Article 1385 quater of the Judicial Code, a penalty payment is final and is due and payable on the basis of the judicial decision imposing it. Pursuant to that decision, when — after service of the decision — the conditions set out therein are satisfied, the penalty payment becomes payable in full and may be recovered without a fresh judicial decision being necessary,^(*) including where the amount of the penalty is to be determined by unit of time, for example per day, or by breach.^(*) Under Article 1385 quinquies of the Judicial Code, the review of penalty payments is governed by the principle that such payments may be cancelled, varied or reduced only by the trial court that ordered them and the amount set in the decision imposing the penalty payment may not be reduced retroactively.^(*)

By contrast, under Finnish law — according to the assertions of the national court and the Finnish Government — the purpose of penalty payments under Paragraph 16 of the TpL is to encourage contact between the child and the applicant in accordance with the decision on rights of access. The decision ordering payment of the penalty postdates the main decision and requires the applicant to bring fresh proceedings.^(*) Only if the party liable to pay the penalty disagrees will the court dealing with the enforcement proceedings examine whether he has failed to perform the principal obligation in whole or in part^(*) and whether there is any justification for that. Under Paragraph 19(2) of the TpL, payment of the penalty may not be ordered if the debtor shows that there was a good reason preventing him from performing the obligation or if the obligation has been performed in the intervening period.^(*) In contrast to Belgian law, Finnish law allows the courts to re-examine the amount of the penalty payment and reduce it if the principal obligation has in substance been performed, if the ability of the party subject to the obligation to pay has significantly deteriorated, or if there are other good reasons for reducing the amount.^(*)

As regards, in the second place, the determination by the beneficiary of the amount owed under the penalty payment, the order for reference states that, under Belgian law, this amount is payable to the creditor, in accordance with Article 1385 quater of the Judicial Code,^(*) whilst under Finnish law, it is paid to the State.^(*)

I shall now examine the two problems raised in this request for a preliminary ruling which are mentioned in point 36 above: which regulation applies in the main proceedings and what are the conditions for enforcement of the penalty payment?

Applicability of Regulation No 44/2001

The first question referred for a preliminary ruling seeks to ascertain whether a judicial decision handed down in Belgium coupled with a penalty payment — such as that at issue in the main proceedings — in order to ensure compliance with rights of access can be enforced in Finland on the basis of Regulation No 44/2001. With regard to that question, Ms Wiertz, the Governments of the Member States that have taken part in these proceedings and the Commission argue that this regulation does not apply.

It is apparent from the order for reference that, as regards the applicable regulation, the doubts expressed by the Korkein oikeus are based on the fact that the obligation in respect of which enforcement is sought, namely payment of a penalty payment, is a monetary claim that relates to rights of access. Although the court considers that a penalty payment of this kind does not, in principle, fall within the scope of Regulation No 44/2001, it nevertheless has doubts concerning the enforcement of such a penalty under Regulation No 2201/2003.

In order to answer the first question referred for a preliminary ruling, I think it is necessary to determine whether, in the context of the interpretation of Article 1 of Regulation No 44/2001, a penalty payment such as that at issue in the main proceedings meets the criteria laid down in the case-law of the Court of Justice.

First of all, in so far as the Brussels Convention has been replaced by Regulation No 44/2001^(*) in relations between Member States,^(*) the interpretation of that convention by the Court continues to apply to the corresponding provisions of the regulation.^(*) Furthermore, it is clear from recital 19 in the preamble to Regulation No 44/2001 that continuity in interpretation between the Brussels Convention and that regulation should be ensured.

In Realchemie Nederland,^(*) the Court held that the scope of Regulation No 44/2001 is, like the Brussels Convention, limited to ‘civil and commercial matters’, as set out in Article 1(1) thereof.^(*) Thus, under Article 1(2)(a) rights in property arising out of a matrimonial relationship are also excluded from the scope of the regulation. In this respect, the Finnish, Spanish and Lithuanian Governments as well as the Commission argue that Regulation No 2201/2003 was adopted precisely to cover part of that gap. Regulation No 2201/2003 applies to judgments delivered in matters of parental responsibility,^(*) which, according to Article 1(2)(a) thereof, include rights of access.^(*)

As to the question whether a dispute falls within the scope of Regulation No 44/2001, the Court has held that that scope is determined essentially according to the factors characterising the nature of the legal relationships between the parties to the dispute or its subject-matter.^(*) More particularly, as regards interim measures, the Court considers that their inclusion in the scope of Regulation No 44/2001 is determined not by their own nature but by the nature of the rights that they serve to protect.^(*)

In this case, under Article 1385 bis of the Judicial Code, the penalty payment at issue in the main proceedings is, as I have explained in point 40 of this Opinion, ancillary to the principal obligation. In this instance, the principal obligation imposed on Ms Wiertz enables Mr Bohez to exercise the rights of access granted to him.

With regard to the enforcement of a judgment handed down by a court, which includes an order to pay a fine for the purpose of ensuring compliance with a judicial decision concerning civil and commercial matters, the Court has stated that the nature of that right of enforcement will depend on the nature of the subjective right for infringement of which enforcement was ordered,^(*) in this case, Mr Bohez’s rights of access.

In my view, it follows that the recovery of a penalty payment, such as that at issue in the main proceedings, does not fall within the scope of Regulation No 44/2001. First, the penalty payment is ancillary and is closely linked to the rights of access it serves to enforce and, second, questions relating to rights of access are excluded from Regulation No 44/2001.

I therefore propose that Question 1 be answered as follows: a judicial decision handed down in one Member State coupled with a penalty payment in order to ensure compliance with rights of access cannot be enforced in another Member State on the basis of Regulation No 44/2001.

In the light of my proposed answer to Question 1, it is not necessary to answer Question 2.

Conditions for enforcement of the penalty payment under Regulation No 2201/2003

By the third question referred for a preliminary ruling, the national court essentially asks the Court whether the penalty payment, inasmuch as it ensures the enforcement of a judicial decision on rights of access, is to be regarded as a measure of enforcement and, on that ground, as falling within the enforcement procedure for rights of access which, under Article 47(1) of Regulation No 2201/2003, is governed by national law, or whether it forms part of the judgment on rights of access and is, on that ground, directly enforceable on the basis of Regulation No 2201/2003.

In order to answer that question, I shall first consider the legal nature of the penalty payment in the light of the system for the recognition and enforcement of judicial decisions within the European Union. Second, I shall examine whether a penalty payment such as that at issue in the main proceedings is an integral part of the substance of the judgment on rights of access or whether, on the contrary, it can be taken in isolation as a self-standing obligation.

Quantification of the penalty payment under Regulation No 2201/2003: analogous application of Article 49 of Regulation No 44/2001

By the fourth question referred for a preliminary ruling, the national court asks whether, prior to enforcement in the requested Member State, the penalty payment must form the subject-matter of a fresh judicial decision in the Member State of origin so that its amount can be finally determined by a court in that Member State.

The written observations of the Finnish and Lithuanian Governments show that they consider the intervention of the court of the Member State of origin to be unnecessary, as in any event enforcement of the penalty payment falls within the scope of the national rules of the Member State of enforcement under Article 47(1) of Regulation No 2201/2003. By contrast, the Spanish Government and the Commission submit in their observations that the fact that Regulation No 2201/2003 does not contain a rule such as that appearing in Article 49 of Regulation No 44/2001 should be remedied by means of an application by analogy of Article 49.

I concur with the second view.

It is true that Regulation No 2201/2003 makes no provision on quantification of the penalty payment. However, in the present case, the application by analogy of Article 49 of Regulation No 44/2001 warrants examination.^(*) The EU legislature mentions penalty payments only in the context of Article 49 of Regulation No 44/2001.^(*) The effect of the EU legislature’s intervention in this field is that judicial decisions handed down in one Member State imposing such a measure ‘will be enforced in another [Member] State only if the amount of the payment has been finally determined by the courts of the State in which judgment was given’.^(*) The application of this article is therefore subject to quantification of the penalty payment.^(*) In other words, Article 49 of Regulation No 44/2001 does not allow a penalty payment to be quantified in a Member State other than the Member State in which it was imposed.^(*) Consequently, judicial decisions ordering a penalty payment whose amount has not been ‘finally determined’ in the Member State of origin are excluded from the application of the principle of free movement of judgments in civil and commercial matters, which is one of the fundamental objectives of Regulation No 44/2001, in accordance with recital 6 in the preamble thereto.

I am of the view that an application by analogy of this provision is relevant in the present case. That application calls for the following observations on my part.

In the first place, as stated above, quantification of the penalty payment is not a requirement in all Member States.^(*) The stage of prior quantification of the penalty payment may therefore be subject to different rules and procedures in the different national legal systems. That is the case here, since Belgian law does not make any provision for such quantification. This divergence between national laws is the reason why the rule set out in Article 49 of Regulation No 44/2001 was adopted.^(*) More specifically, it is apparent from the report drawn up by Mr Schlosser^(*) that this rule was inserted ‘[w]ith a view to overcoming the difficulties which this could cause for the inter-State enforcement of judgments ordering specific acts … if the sanction takes the form of a fine (“astreinte”)’.

According to the Commission, even though Regulation No 2201/2003 does not contain a provision equivalent to Article 49 of Regulation No 44/2001, this issue was not raised during negotiations or addressed during the drafting of Regulation No 2201/2003. As it submitted at the hearing, this does not, however, provide a ground for inferring that the legislature’s intention was to exclude the enforcement of penalty payments from the scope of that regulation.

In the second place, the application by analogy of Article 49 of Regulation No 44/2001 would avoid any kind of review as regards the substance of the judgment handed down by the court of the Member State of origin, which might result from action on the part of the court of the Member State of enforcement,^(*) which is precluded under Article 26 of Regulation No 2201/2003.^(*) By taking steps to adapt the penalty payment so as to incorporate the procedural elements required under national law, the latter court would not only encounter difficulties specific to the application of the procedural rules of another legal system, but above all, and more importantly, it would contravene the enforcement regime laid down in Regulation No 2201/2003 and the principle of mutual recognition of judicial decisions on which that regulation is based.^(*) In this connection, I think it appropriate to note also that, according to recitals 2 and 21 in the preamble to Regulation No 2201/2003, the recognition and enforcement of judicial decisions is the cornerstone for the creation of a genuine judicial area and is based on the principal of mutual trust.

Furthermore, I would state that given the specific nature of rights of access so far as their practical exercise is concerned,^(*) the only power that the court of the Member State of enforcement holds in respect of the judgment on rights of access is that conferred on it by Article 48 of Regulation 2201/2003 relating to the practical arrangements for the exercise of those rights.^(*) That provision leaves some latitude to the court of the Member State of enforcement, enabling it to intervene in order to ensure that rights of access are actually complied with. However, the court of the Member State of enforcement may not review the judgment as to its substance; it must confine itself to checking whether the judgment contains practical provisions on the exercise of those rights and whether those provisions are sufficient.^(*) In this respect, the Commission submits in its written observations that the courts should use the powers conferred on them by Article 48 of Regulation No 2201/2003 to ensure that rights of access are always possible and, where necessary, ensure that they can be put into effect. I agree with that view.

In the third place, the application by analogy of Article 49 of Regulation No 44/2001 is, in my opinion, a necessary exception to the general rule set out in Article 41(1) of Regulation No 2201/2003. That rule provides for the recognition and enforcement of a judgment on rights of access ‘in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2’. Accordingly, any variation of rights of access in order to meet the best interests of the child more effectively and respond to any changes which may arise falls exclusively within the jurisdiction of the court of the Member State of origin. The court of the Member State of enforcement must be able to base its decision on a penalty payment whose final amount has been determined.

In the main proceedings, Mr Bohez therefore needs to obtain confirmation from the Belgian court of the final amount of the penalty payment, even though there is no requirement for a fresh judgment under Belgian law. In this connection, I consider it appropriate to refer to the case-law and legal literature in Belgium in this area. The Belgian courts have held that recourse to the courts of the Member State of origin is justified under Regulation No 44/2001, even though Belgian law does not lay down any procedure for the quantification of penalty payments.^(*) According to Belgian legal literature, in the context of the ‘European area’, Regulation No 44/2001 takes precedence and the Belgian court responsible for enforcement has jurisdiction to quantify the penalty payment, even if enforcement proceedings have not been initiated in Belgium.^(*) In any event, jurisdiction to quantify the penalty payment lies with the competent authorities of the Member State of origin.

In the fourth place, it seems to me that a requirement for quantification of the penalty payment under Regulation No 2201/2003 is consistent with an area as sensitive as family relationships in general and rights of access in particular. Article 24(3) of the Charter of Fundamental Rights of the European Union provides that ‘[e]very child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests’.^(*) It is apparent from recital 2 in the preamble to Regulation No 2201/2003 that rights of access are considered to be a priority. It is therefore of crucial importance, in order to protect the rights of the child, that both parents are actually able to exercise their rights of access, which is precisely the aim pursued by penalty payments.

Against that background, the application by analogy of Article 49 of Regulation No 44/2001 would enable a court to review the breaches of the principal obligation alleged by the creditor. That review is of the utmost importance for the purpose of meeting the best interests of the child more effectively. It presupposes that the court of the Member State of origin will rule not only on the number of non-appearances of the child, but also on the reasons for those non-appearances, for example if they were due to an accident, to the health of the child or of a parent, to the unwillingness of an adolescent to maintain a relationship with the parent without custody or to the parents’ financial difficulties.

Lastly, as is apparent from point 79 of this Opinion, if a penalty payment is imposed by a judgment on rights of access and its enforcement is sought in another Member State, both of the courts involved must cooperate in order to ensure that all aspects of the case are taken into consideration, in the best interests of the child. To that end, they may use the powers conferred on them by Article 48 of Regulation No 2201/2003. Such cooperation entails the sharing of powers and responsibilities between the court of the Member State of origin and the court of the Member State of enforcement with a view to ensuring that the child receives the protection to which he is entitled under EU law. The best interests of the child must therefore be taken into account, as a matter of priority, by the courts involved.^(*)

Consequently, in view of the foregoing considerations, I am of the opinion that, prior to enforcement in the requested Member State, the penalty payment must form the subject-matter of a fresh judicial decision in the Member State of origin so that its amount can be finally determined by a court in that Member State.

In the light of the answers given to Questions 3 and 4, it is not necessary to answer Question 5.