Recovery Abroad of Maintenance under the Lugano Conventionand the Hague Convention
In 2000, the texts of two multilateral conventions of great significance to the recovery of maintenance abroad were published in the Journal of Laws: the Convention on jurisdiction and the enforcement of judgements in civil and commercial matters, which was done at Lugano on 16 September 19881 and entered into force in relation to Poland on 1 February 2000, and the Convention on the recognition and enforcement of decisions relating to maintenance obligations, which was done at The Hague on 2 October 19732 and entered into force in relation to Poland on 1 July 19963.
This present paper discusses the basic issues relating to recovery abroad of maintenance on the grounds of the aforementioned Conventions4. Since some of the states are parties to both Conventions, the last part discusses the relation between these two legal acts.
I. The Lugano Convention
The Lugano Convention is in force in 18 states of the Western Europe5 and in Poland. The fundamental aim of the Convention is to strengthen the legal protection of persons domiciled in the territories of these states. It is to be achieved by regulating under the Convention issues relating to jurisdiction, facilitating the recognition of judgements and providing efficient procedures ensuring the enforcement of judgements.
The Convention is applicable in civil and commercial matters (Article 1 (1)), yet the categories of matters in which it shall not be applicable are listed in Article 1 (2). The Convention shall not apply, inter alia, in relation to many matters under the family law (Article 1 (2) (1)). There can be no doubts, however, that cases relating to maintenance belong to the thematic scope of the Convention; it directly follows from Article 5 (2).
The Lugano Convention regulates three principal issues: jurisdiction, recognition and enforcement of judgements. They will be discussed respectively.
1. Jurisdiction
A) General jurisdiction
Pursuant to the general principle stated in Article 2 (1), persons domiciled in the territory of a state, which is a party to the Lugano Convention, may be sued in the courts of that state. From this point of view, the nationality of a defendant is irrelevant. A person domiciled in a state, which is a party to the Lugano Convention may be sued in courts of that state irrespective of the fact of being a national of a state he/she is domiciled in, or of being a national of another contracting state, or of being a national of a third state.
In the light of this principle, courts of the state in which a defendant is domiciled shall have jurisdiction. This principle can only be applied if a defendant's domicile is located in a state, which is a party to the Convention.
This implies that a person domiciled in Poland may claim maintenance from a person domiciled in one of 18 states of the Western Europe in courts of the country in which a defendant is domiciled.
B) Special jurisdiction for the recovery of maintenance on an individual basis
By way of exception from the principle specified in Article 2 (1), it is possible to sue a person domiciled in a state, which is a party to the Convention, in courts of another state, which is a party to the Lugano Convention as well (Article 3 (1)). Such a possibility exists, inter alia, in case of a special jurisdiction (Articles 5 - 6 (a)).
As far as the issue we are now interested in is concerned, only special jurisdiction relating to maintenance matters as defined in Article 5 (2) is relevant. Pursuant to this provision, it is possible to bring in a lawsuit in a court of the state, in which a person entitled to maintenance allowance is domiciled6 or habitually resident7. The purpose of introducing a residence as grounds for jurisdiction, apart from grounds relating to a domicile, is to create a possibility to bring in a lawsuit in a state, in which a person is not domiciled, yet in which he/she is habitually resident. Thus bringing in a lawsuit in a court of that state would be usually of the greatest convenience to that person.
Jurisdiction as defined in Article 5 (2) does not exclude the possibility of bringing in a lawsuit in a court of a state in which a defendant is domiciled (Article 2 (1)): cf. Article 3 (1). The importance of special jurisdiction is that it is a plaintiff who chooses a court in which a lawsuit is to be brought.
If a person entitled to maintenance is domiciled or habitually resident in Poland and a person to be sued is domiciled in another State, which is a party to the Lugano Convention, a plaintiff may bring in a lawsuit in a foreign court on the grounds of Article 2 (1) or in a Polish court on the grounds of Article 5 (2)8. In the first case, a plaintiff who will have obtained a foreign court's decision adjudicating maintenance, will not have to initiate another proceedings, i.e. the proceedings concerning the permission to enforce a judgement, provided that the execution upon debtor's property in that state would prove successful9. In the second case, a creditor will have to initiate two kinds of proceedings: one before a domestic court, for adjudication of maintenance, and another one before a court in a state where a debtor's property is located, for the permission to enforce a judgement. On general, the choice of the latter alternative seems to be more convenient for a person entitled. This opinion stems from the fact that a plaintiff's position before a domestic court will be better than that before a foreign court (however, duration of such proceedings needs to be taken into account!). What is more, proceedings in relation with a permission to enforce a judgement under the Lugano Convention usually proves efficient.
C) Special jurisdiction for the recovery of maintenance in proceedings concerning the status of a person
Article 5 item 2 of the Convention contains also a second part, which has not been discussed so far. The first part covers the recovery of maintenance on an individual basis, while the second part of Article 5 item 2 refers to the situation when the maintenance case is "ancillary to proceedings concerning the status of a person." In case of proceedings before a Polish court, it is possible to claim maintenance in divorce proceedings (Articles 58 (1) and 60 (1) and (2) of the Family and Guardianship Code and 444 of the Code of Civil Procedure), separation proceedings (Articles 613 and 614 (4) of the Family and Guardianship Code, Article 444 of the Code of Civil Procedure), annulment of marriage proceedings (Article 21 of the Family and Guardianship Code, Article 451 of the Code of Civil Procedure), paternity proceedings (Article 143 of the Family and Guardianship Code, Article 458 (2) of the Code of Civil Procedure) and dissolution of adoption proceedings (Article 125 (1) of the Family and Guardianship Code). In the above-mentioned situations, a maintenance case may be heard in a court, which has jurisdiction to hear cases concerning the status of a person. Jurisdiction shall be ascertained on the grounds of the domestic law of this state. However, Article 5 item 2 in fine contains an exception from the aforementioned principle, pursuant to which it is possible to claim maintenance in the proceedings concerning the status of a person if a court of the state, which pursuant to its domestic regulations has jurisdiction to decide about the status of a person. That is, Article 5 item 2 does not provide grounds for the said jurisdiction if it is exclusively based on the nationality of one of the parties.
When we shift to consider the Polish law, it needs to be reminded that jurisdiction in divorce, separation and annulment of marriage proceedings is regulated in Article 1100 of the Code of Civil Procedure, while in paternity and dissolution of adoption proceedings - in Article 1101 of the Code of Civil Procedure. The provisions of Articles 1100 and 1101 of the Code of Civil Procedure are based on the same principles; both: Article 1100 (1) and Article 1101 (1) stipulate that Polish nationality of one of the parties provide a sufficient ground for jurisdiction in cases discussed.
In the light of the above, if it turned out that Article 1100 (1) or Article 1101 (1) of the Code of Civil Procedure provided grounds for jurisdiction, since only one of the parties was of Polish nationality and none of them was domiciled nor resident in Poland, it should be assumed that a court that hears the main case has no jurisdiction to hear the maintenance case. Such a decision seems obvious according to Article 5 item 2.
However, another question needs to be posed, namely, may a court decide in maintenance cases, if, regardless the grounds for jurisdiction provided by Article 1100 (1) or Article 1101 (1) of the Code of Civil Procedure, e.g. the other party is also a Polish national or one of the parties is domiciled in Poland. In such cases, Article 1100 (2) and (3), and Article 1101 (2) and (3) do not do not provide sufficient grounds for jurisdiction. Although the case shall be covered by jurisdiction established on the grounds of Article 1100 (1) or Article 1101 (1) of the Code of Civil Procedure, yet it is more closely related to Poland than it would be if only one of the spouses held Polish nationality. Thus, the question can be reduced to establishing whether Article 5 item 2 in fine, by stipulating jurisdiction grounded solely on the nationality of one of the parties, refers to the contents of the jurisdictional norm, which accepts the Polish nationality of only one of the parties as sufficient, or whether it refers to particular facts of the case, where the case is related to a given state only due to the fact that one of the parties holds a nationality of that state. This would mean that a Polish court, which hears the case concerning the status of a person, has jurisdiction to hear a maintenance case, unless the case is related to the Polish territory only by the fact of holding Polish nationality by one of the parties. If both parties are Polish nationals, but also if only one of the parties holds Polish nationality, yet the other one is domiciled (or just resident) in Poland, it should be assumed that the requirement provided for in Article 5 item 2 in fine has been fulfilled and the proceedings concerning the recovery of maintenance is possible.
D) Jurisdiction in cases of a defendant being domiciled in other states
Neither Article 2 (1), nor Article 5 item 2 provides for jurisdiction if a defendant is not domiciled in a state, which is a party to the Lugano Convention. In such cases jurisdiction of courts is determined by domestic regulations of each of the states (Article 4 (1)), obviously unless an international convention containing jurisdictional norms is applicable in a given case. Any person domiciled in Poland, regardless his/her nationality, may bring in a Polish court an action for maintenance against a defendant who is not domiciled in any of the contracting states of the Lugano Convention, on the grounds of jurisdictional norms provided for in Article 1103 of the Code of Civil Procedure (Article 4 (2)). Grounds for jurisdiction may be as follows: a defendant's residence in Poland at the moment of the service of a suit (item 1), a place where a defendant's property is located in Poland (item 2), the place where an obligation has raised or has to be performed in Poland (item 3).
E) Jurisdiction on the grounds of an agreement between the parties
The Lugano Convention admits the possibility for the parties to enter into agreement, on the grounds of which it is possible to choose a court in a contracting state to have jurisdiction to examine the litigation. Such a court shall have an exclusive jurisdiction (Article 17 (1)). However, the Convention requires that at least one of the parties should be domiciled in a contracting state and that the agreement should be in writing, or oral but evidenced in writing, or in a form which accords with a usage agreed upon between the parties.
F) Jurisdiction in cases relating to provisional, including protective, measures
Pursuant to Article 24 of the Convention, a decision concerning the application of provisional, including protective measures, may be issued by a court of the state (or courts of the states), which pursuant to the Convention, has no jurisdiction to examine the main case10.
This provision is crucial also with regard to maintenance cases. For it implies that a party that does not want to request an action to be secured in a court before which a proceeding is carried on, since it is not really possible in a given state, e.g. because a defendant does not have a property in that state, may lodge such a request in a court in another state, in which a defendant's property is located. It is also possible to lodge a request for protective measures before instituting the proceedings in the main case.
A kind of a provisional measure to be applied shall be individually determined by domestic regulations of a state in which the request has been filed.
G) Temporary application of the jurisdiction provisions
Pursuant to Article 54 (1), the provisions of the Lugano Convention, including those concerning jurisdiction, shall apply to the proceedings instituted after the Convention's entry into force in the "state of origin", i.e. in a state in which the proceedings have been instituted.
Since the Lugano Convention entered into force in relation to Poland on 1 February 2000, the jurisdiction provisions of this Convention shall apply to the proceedings instituted in Polish courts from that date on.
While determining a date of institution of the proceedings, there arises a question whether this notion should be interpreted autonomously, or on the basis of the law of the State in which a judicial proceeding has been instituted. It seems that there are no grounds to assume that the notion of a "date of institution of the proceedings" may be determined in an autonomous way, for the purpose of the Lugano Convention. Thus, in case of the proceedings before a Polish court, there shall appear grounds to assume that Polish rules of procedure, which equal the date of institution of the proceedings and the date of filing a suit, are relevant in this respect.
Thus, if a suit was not filed earlier than on 1 February 2000, the provisions of the Lugano Convention shall serve as grounds for jurisdiction.
It needs to be reminded that the text of the Lugano Convention was published in the Journal of Laws as late as on 18 February 2000 and no sooner than from that day on it could be applied by courts11. It cannot be precluded that in the period between the Convention's entry into force and its date of publication, Polish courts assumed the existence of jurisdiction to decide on maintenance claims in cases relating to the status of a person, while jurisdiction in relation to the latter issue was exclusively grounded on Polish nationality of one of the parties, i.e. in the light of Article 5 item 2, there was no jurisdiction of Polish courts.
2. Recognition abroad of judgements
Article 26 (1) of the Convention implies that it is a rule that judgements, as specified in Article 25, which have been issued in a contracting state, shall be recognised by all the remaining contracting states. Such recognition is valid by virtue of law, so there is no need to carry on special proceedings.
Adjudicative judgements shall be also subject to recognition, yet with a reservation that the recognition shall not include the enforceability. However, the recognition of a judgement brings other results, in particular it makes a judgement possess validity in law, which means that if a Polish court's judgement adjudicating maintenance is recognised abroad, it is inadmissible to re-institute the proceedings in relation with the same matter and between the same parties in these states12.
Cases in which a judgement may not be recognised are indicated in Article 2713. It needs to be emphasised, however, that Article 26 (1) implies a presumption of enforcement.
3. Enforcement abroad of judgements
If a Polish court issues a judgement adjudicating maintenance or a provisional order, which is also defined as judgement in Article 2514, the enforceability of such a judgement in another contracting state, in which a debtor's property is located, shall depend on the ascertainment of its enforceability by a court of that state (Article 31 (1))15.
The enforceability of a judgement in the state of origin makes the fundamental condition for the enforcement of a judgement in another state to be permitted.
The proceedings in relation with the discussed issue is to be instituted upon the request of a person authorised, who is usually the winning party to the proceedings. An applicant may request the enforcement of the whole of or of a specified part of a judgement (Article 42 (2)).
A) A request for the enforcement of a judgement to be permitted
The applicant party is obliged to furnish a request containing a claim for a judgement to be enforced in the territory of a given state. Documents listed in Articles 46 and 47 of the Convention shall be enclosed with the request. These shall be: an authenticated copy of a judgement (Article 46 item 1), containing an ascertainment of its enforceability in the state of origin and a proof of service of a judgement to the other party (Article 47 item 1)16. The Convention does not provide for any exception from the requirement of filing the above-listed documents (cf. Article 48 (1)).
If a permission for a judgement by default to be enforced is being requested, an authenticated copy of a document ascertaining that a writ had been served upon a defendant (Article 46 item 2) should be additionally enclosed with the request. An applicant should also file documents stating that he/she had been exempted from the court fees in the proceedings before a Polish court (e.g. the attestation by a judge may serve this purpose) and that a legal counsel had been appointed for him (e.g. a copy of the court's decision), Article 47 item 2.
The fact of filing by the applicant of the documents stating that he/she had been exempted from the court fees and that a legal counsel had been potentially appointed for him is crucial for his/her situation in the proceedings before a foreign court. In the proceedings before a first instance court in relation with obtaining the permission for a Polish court's judgement to be enforced, the applicant shall enjoy, with respect to the exemption from court fees and the possibility of having a legal counsel appointed, "the most convenient treatment" stipulated by the law of the state in which the proceeding is carried on (Article 44). In such a situation, it should be postulated that claims for the exemption from court fees and for an optional appointment of a legal counsel be included in the request. It needs to be emphasised that according to general rules provided for by the law of the state in which proceedings is carried on, an applicant still may claim to have a legal counsel appointed, even though he/she had not used this form of assistance in the proceedings before a Polish court, nor in the proceedings in appeal (cf. Article 33 (1)).
The provision of Article 45 of the Lugano Convention, which stipulates that an applicant may not be bound to pay a deposit for the purpose of securing court fees, shall also have influence on his/her situation in the proceedings.
In case the aforementioned documents, referred to in Article 46 item 2 and Article 47 item 2, have not been enclosed with the request, a court in which this request has been lodged may make different decisions, depending on particular facts of a given case, i.e. it may determine a deadline for these documents to be filed, it may consider analogous documents that have been filed sufficient, or it may exempt the applicant from the obligation to file them (Article 48 (1)).
Although, pursuant to Article 48 (2) an applicant is not under an absolute obligation of filing a translation of a request as well as of documents referred to in Articles 46 and 47, such an obligation may arise upon a court's demand. In such a situation it should be postulated that the applicant had already enclosed the translation of the request together with the enclosures, into the official language of the state, in which the proceedings is to be instituted. The translation should be made by a sworn translator.
The aforementioned documents, as well as the power of attorney in case an applicant has appointed an attorney, shall be exempted from the obligation of being legalised (Article 49).
Pursuant to Article 33 (2) of the Lugano Convention, an applicant is obliged to indicate in the request the address for the service within the area of the jurisdiction of a court which is to hear the case, and optionally to indicate the attorney upon whom the service is to be performed. Due to the fact that this obligation follows directly from the Convention, the applicant should comply with it; otherwise the documents meant for him may be left in the case files, with an effect of having been served. Thus, also for that reason it is important that the request and the enclosures fulfil the requirements of the Convention. Sometimes it may be difficult to comply with the obligation that follows from Article 33 (2). On the other hand, the described mechanism aims at making the proceedings more efficient and sped up, which primarily lies in the applicant's interest.
B) Proceedings in relation with obtaining the permission for a foreign court's judgement to be enforced
Article 32 (1) of the Convention determines courts of first instance in particular states, which have a ratione materiae competence to examine requests for the enforcement of judgements, while Article 32 (2) regulates a ratione materiae competence. Pursuant to this provision, a court in the area of which a debtor is domiciled shall have a territorial competence. If a debtor is not domiciled in a state that is requested to permit a judgement to be enforced, a court in the area of which the execution is to be performed shall have a territorial competence.
Article 34 (1) of the Lugano Convention, which contains regulations concerning the procedure, the prerequisites of a permission to the enforcement of a judgement and the prohibition of a substantial examination of foreign court's judgements, is of crucial importance to proceedings in relation with obtaining a permission to the enforcement of a foreign court's judgement.
Pursuant to Article 34 (1), a judgement should be issued without delay. In order to make a prompt judgement really possible, the provision referred to stipulates that in the proceedings before the court of the first instance, it is impossible for a debtor to make any kind of a statement. It means that the discussed stage of the proceedings shall be conducted without the participation of a debtor, who does not event has to be notified of the institution of the proceedings, nor does he have to be given a copy of the request. Thus the proceedings is not adversarial in its nature.
The Lugano Convention does not enumerate the prerequisites that condition the permission to the enforcement of a judgement. In this respect, it only states that the request may be rejected only for the reasons specified in Articles 27 and 28. This may imply that there exists a presumption of the request being grounded, unless one of the reasons enumerated in the provisions referred to has been identified.
In the light of Article 27, the request shall be liable to rejection if:
- a permission to the enforcement of a judgement contradicted the legal order of a state, in which the proceedings is carried on (the so-called legal order clause) - Article 27 item 1,
- a defendant, who has not entered a litigation (i.e. he has not assumed the defence), had not been properly served with a suit, within a time limit that would be sufficient to enable him/her to prepare for the defence - Article 27 item 2, (this provision stresses the importance of the service of a suit in a way provided for by the law and within a time limit sufficient to prepare for the defence),
- a judgement cannot comply with a judgement concerning the same parties, issued in a state in which the proceedings is being carried on - Article 27 item 3,
- while issuing a judgement, a court decided upon a preliminary question concerning the questions listed in Article 1 (2) item1, contradictory to the provisions of private international law of the state which was requested to enforce a judgement - Article 27 item 4,
- a judgement cannot comply with the previous judgement that had been issued in a state which is not a party to the Convention, in relation with a litigation concerning the same claim between the same parties, as far as this claim fulfils the requirements necessary for its recognition in the State in which the enforcement is requested - Article 27 item 5.
After a judgement has been issued, the applicant shall be notified of what it resolves (Article 35 in relation with Article 33 (2)). The notification shall be conducted in a form stipulated by the domestic regulations, i.e. usually by means of a service of a decision. Article 35 does not make expressis verbis, that a debtor should be notified of a judgement issued. In the light of Article 36, it is obvious that a debtor must be notified if a court allows the request; in such a case the service is personally effected upon the debtor, or upon the debtor's domicile. The notification is not always required in case of a rejection of the request by a court of first instance.
C) Appeals against judgements
a. If, by virtue of a decision of a court of first instance the enforcement of a judgement has been permitted, a debtor may lodge an appeal in a court, which has a ratione materiae competence - specified in Article 37 (1). The ultimate dates for lodging an appeal are diverse, depending on whether a debtor is domiciled in a state in which a judgement has been issued, or whether he/she is domiciled in the other contracting state of the Lugano Convention. In the first case, it is a period of one month, in the second one - a period of two months. In both cases this period starts to be counted from the date of effecting the service of a decision upon the debtor onwards.
In case of the proceedings before a court of second instance, the proceeding is adversarial in its nature. A decision may be appealed against pursuant to Article 37 (2).
As it follows from the above-discussed Articles 46 and 47 of the Lugano Convention, the applicant party is bound to submit a copy of a judgement and copies of documents confirming its enforceability. However, the above provisions do not require filing documents, which attest for a judgement's validity in law. Also Article 27 in relation with Article 34 (2) does not provide for the refusal to permit the enforcement of judgements which are not legally valid. Consequently, it should be stated that the Lugano Convention admits the possibility of permitting for an invalid judgement to be enforced as well.
Due to the above, Article 38 (1) of the Convention stipulates that a second instance court, which examines a debtor's appeal, may suspend the proceedings upon a debtor's request, if in a state in which a judgement had been issued, an ordinary appeal17 has been lodged or an ultimate date for its lodgement has not expired yet. In the second case, a court may appoint a date for an appeal to be lodged. In principle, suspension of the proceeding lasts until the proceeding is legally concluded.
A court may not suspend the proceedings, and may make the fact of filing a security by the applicant condition the enforcement of a judgement. Such a security is to provide a sort of protection of interests of a person, whose property is being executed against, in case a judgement the enforcement of which had been permitted, was then annulled in the state of origin (Article 38 (3)).
The sense of Article 39 (1) of the Convention is that it is a provision that permits establishing when it would be possible to commence an execution against a debtor's property. In the case a first instance court granted the application, the execution couldn't be admitted if the period in which a debtor may lodge an appeal has not expired. In the case an appeal has been lodged, the execution may not be carried out until the appeal is decided.
Inadmissibility of conducting execution proceedings does not preclude the possibility of applying protective measures, if a court's decision permits the enforcement of a judgement (Article 39 (2)). The party, which applied for the permission to enforce the judgement and whose application has been granted, may claim the application of protective measures against the debtor's property, without a necessity to obtain an additional judgement 18.
b. In case a first instance court refuses the application, the applicant has a right to make an appeal referred to in Article 40 (1). The Convention does not determine a deadline for making an appeal. It might be assumed that Article 36 (2), which provides for the period of two months for applicants who are not domiciled in the state in which the application was refused, could be applied analogously. This period runs on from the date of service of a judgement upon the delivery address or upon the agent for delivery (cf. Article 33 (2)).
In the proceedings before the second instance court, there should be conducted a hearing of a debtor (Article 40 (2)), who would have a possibility to address the application and the appeal by the applicant.
If a debtor does not enter a litigation, i.e. if despite having been served the above-mentioned documents and notified a date of the sitting, he/she does not inform a court about his/her position in the case and he/she fails to appear in a court for the purpose of deposing or refuses depositions, then Article 15 of the Convention on service abroad of judicial and extra-judicial documents in civil and criminal matters, done at The Hague on 15 November 1965 shall be applicable, also if a debtor is domiciled in a state which is not a party to the Lugano Convention - cf. Article 20 (3) in relation with Article 40 (2)19.
The principle expressed in Article 15 (1) of the Convention of 1965 stipulates that if a lawsuit had been transferred abroad for the purpose of being served and the defendant did not appear, a judgement may not be issued until it is ascertained that the lawsuit had been lawfully served in compliance with the regulations of the requested state, that it had been actually delivered to the defendant, or it had been delivered upon his/her address in a form provided for in the Convention. In any of these cases a service or delivery should be done in advance so that the defendant could have a possibility to take up a defence.
A judgement given by the second instance court, being a result of lodging an appeal by the applicant, may be contested only as stipulated in Article 41.
D) Enforceability of formal documents and court settlements
The Lugano Convention provides for not only the enforceability abroad of court judgements, but also of formal documents and court settlements. Since the maintenance payments obligation may result from a notarial deed, which imposes the execution against a debtor, or from a court settlement, there seems to be a justified need to discuss this issue.
Article 50 (1), formulated similarly to Article 31 (1) serves as a grounds in this respect. Pursuant to its provision, formal documents drawn up in one of the contracting states to the Lugano Convention under the condition of enforceability, are permitted to be enforced in other contracting states to the Lugano Convention. Judgements in this respect shall be issued upon the application in the proceeding analogous to that concerning the permission for the enforcement of a judgement. The basic difference is that the refusal to permit the enforcement may only take place because of the public order clause (cf. Article 27 (1) in relation with Article 34 (2)). Also Articles 46 to 49 shall apply respectively. It should be emphasised that it is mandatory to submit the evidence, which attests to the enforceability of a formal document.
Court settlements shall be enforceable on the analogous grounds to these concerning formal documents (Article 51).
E) Temporary scope of application of the provisions concerning the enforcement of judgements
Pursuant to Article 54 (1) of the Lugano Convention, its provisions shall be applicable if the lawsuit has been brought after the Convention's entry into force in the state in which the judgement is to be enforced. It should be emphasised that while establishing the date of the Convention's entry into force in a requested state, the date of entry in relations between that state and Poland, being a state of origin of a judgement, should be taken into consideration. Such a reservation is necessary due to the fact that the Lugano Convention entered into force in relations with particular states on different dates between 1992 and 199720.
As far as Poland is concerned, the discussed issue does not evoke any doubts, since the Lugano Convention entered into force between Poland and other states on the same day, i.e. on 1 February 2000. This implies that Polish courts' judgements issued in the proceedings in which the lawsuits had been brought no sooner than on 1 February 2000, shall be enforceable under the Lugano Convention. The remarks on the issue of a temporary application of jurisdiction provisions remain valid in reference with the notion "date of bringing the lawsuit".
There is an exception from this general principle. Pursuant to Article 54 (2), the provisions of the Lugano Convention shall apply to judgements issued after 1 February 2000, even though the lawsuit had been brought before that date, if a prerequisite of jurisdiction has been complied with.
Since Article 54 (2) of the Convention contains a phrase "judgements given after the date of entry into force of this Convention," there arises a necessity to establish what conditions should be fulfilled in order to ascertain that the judgement was not issued before 1 February 2000.
Pursuant to Article 54 (2), a judgement is given if, in compliance with the law of the state in which a court issues a judgement, that judgement is binding for that court. In the Polish law a judgement is given at the time of its pronouncement (Article 332 (1) of the Code of Civil Procedure). The concept according to which Article 54 (2) refers to judgements, which became legally binding after 1 February 2000 should be rejected, as the Lugano Convention generally does not stipulate the requirement of validity being a prerequisite of the enforcement of a foreign court's judgement.
Thus it should be assumed that judgements issued before 1 February 2000 shall not be enforced on the grounds of Article 54 (2), but they shall not be appealed after that date.
In case a judgement was subject to an appeal, a date of a concluding judgement, which shall be the last judgement in case of judgements under appeal or cassation, is of crucial importance21.
If the first instance court had issued a judgement before 1 February 2000 and, after that date, the second instance court issued a judgement deciding on the essence of the matter, this latter judgement may be a subject to enforcement on the grounds of Article 54 (2).
The prerequisite concerning jurisdiction is complied with if a court's jurisdiction was established on the grounds of the provisions corresponding to jurisdiction provisions of the Lugano Convention or of any other agreement, by which a state of origin of a judgement and a state, which is to execute this judgement, are bound at the moment in which a lawsuit was brought.
In the first case the Lugano Convention shall apply if the Polish court had jurisdiction on the grounds of the Polish legal regulations corresponding to Article 5 (2). With respect to maintenance claims recovered individually, jurisdiction of the Polish court may be justified by the contents of Article 1103 (3) of the Code of Civil Procedure, which provides for the jurisdiction on the grounds of the place where the obligation is to be performed in Poland. It is usually the domicile of the creditor (Article 454 (1) of the Civil Code), thus in the situation described, Article 1103 (3) of the Code of Civil Procedure complies with Article 5 (2) of the Lugano Convention.
With respect to maintenance claims recovered in the proceedings concerning the status of a person, one may refer to arguments concerning Article 5 (2) in fine, since this provision stipulates the jurisdiction of this state, which has jurisdiction to hear the main case on the grounds of the domestic law.
The second case that is discussed in Article 54 (2) refers to the situation, when a Polish court had jurisdiction on the grounds of an agreement with a state, in which the judgement is to be enforced.
The first issue to be examined is whether this refers to the agreements regulating direct jurisdiction, or also indirect jurisdiction (for the purpose of enforcement of a judgement). It seems that the second option should be preferred, as Article 54 (2) does not require explicitly that jurisdiction should be regulated in a direct way. Ratio legis of the discussed provision lies in the exclusion of only those cases when the judgement could not be enforced on the grounds of bilateral agreement because of the jurisdiction reasons. Thus, it is possible to defend the opinion that pursuant to Article 54 (2), a court had jurisdiction on the grounds of an agreement, also if this agreement regulated jurisdiction for the purpose of the enforcement of a judgement, and in the particular case a request for the enforcement of a judgement on the grounds of such an agreement could not be refused because of the jurisdiction reasons.
Due to the above, determination of jurisdiction on the grounds of the agreements concluded between Poland and Austria22, France23, Greece24 and Italy25 could be taken into consideration.
Amongst these agreements, only the one concluded with France contains the provisions concerning direct jurisdiction. With respect to maintenance concerning persons who are or were married to each other, jurisdiction is regulated in Article 9, while with respect to maintenance concerning parents and children, jurisdiction is regulated in Article 11.
In case of the agreement with Austria, indirect jurisdiction in maintenance cases is regulated in Article 50 (1).
According to Article 26 (d) of the agreement with Greece, the enforcement of a judgement may be refused if, according to the law of the state in which a judgement is to be enforced, courts of this state have jurisdiction only to adjudicate in the case.
Pursuant to Article 17 (g) of the agreement with Italy, a court that issued a judgement shall be considered competent if in cases concerning maintenance claims a creditor was domiciled or was staying in this state at the time the lawsuit was brought.
II The Hague Convention
Apart from Poland, the following states are parties to the Hague Convention: the Czech Republic, Denmark, Estonia, Finland, France, Spain, the Netherlands, Luxembourg, Germany, Norway, Portugal, Slovakia, Switzerland, Sweden, Turkey, Great Britain and Italy.
The Convention shall apply to judgements issued by authorities of a contracting state the Hague Convention, concerning maintenance obligations arising from a family relationship, parentage, marriage or affinity (Article 1 (1)). The Convention shall also apply to court settlements (Article 1 (2); cf. Article 21).
The Convention has a wide scope of application: it shall be applied regardless the nationality and habitual residence of the parties (Article 2 (3)).
1. Conditions of the enforceability of judgements
A judgement rendered in one of the contracting states in the Hague Convention shall be enforced in other contracting state if it was rendered by an authority considered to have jurisdiction (Article 4 (1)). Since the Convention does not contain the provisions concerning direct jurisdiction, determination of jurisdiction for the purpose of the enforcement of judgements shall be relevant. Pursuant to Article 7, jurisdiction shall be granted if either the maintenance debtor or the maintenance creditor had his habitual residence in the state of origin of a judgement at the time when the proceedings were instituted (1), if both parties were nationals of the state of origin of a judgement at the time when the proceedings were instituted (2), or if the defendant had submitted himself/herself to the jurisdiction (3).
Moreover, pursuant to Article 8, the authority which has given judgement on a maintenance claim shall be considered to have jurisdiction if the maintenance is due by reason of a divorce or a legal separation, or a declaration that a marriage is void or annulled, obtained from an authority recognised as having jurisdiction in that matter, according to the law of the state addressed.
The validity of a judgement is another condition. Article 4 (2) provides that a judgement shall be enforced if it is not subject to ordinary forms of review.
This principle shall be restricted if subject to enforcement is a judgement of provisional enforceability (e.g. a judgement with an order of immediate enforceability) or a judgement on the application of provisional measures (e.g. decision on securing the lawsuit by means of obliging a debtor to pay regularly a specified sum of money to a creditor). Such decisions shall be enforced also if they may be appealed by means of ordinary forms of review, only if the law of the state addressed provides for the enforceability of similar decisions.
Even though the above conditions have been complied with, the enforcement of a judgement may be refused, if:
a. the public order clause stipulates so,
b. a judgement was obtained by fraud,
c. in a state addressed, there is a pending proceedings that had been instituted between the same parties, with the same purpose, or
d. this judgement cannot comply with a judgement rendered in a state addressed between the same parties, with the same purpose (Article 5).
The possibility of allowing the enforcement of a judgement rendered by default has been limited to the case when, according to the law of the state of origin of the judgement, the defendant had been served with a notification of instituting the proceedings and he/she had sufficient time to enable him to defend the proceedings (Article 6).
2. Proceedings in relation with the enforcement of judgements
Proceedings in relation with obtaining permission for the enforcement of a judgement is conducted in pursuance with the law of the state which is to enforce the judgement (Article 13).
Pursuant to Article 15, a maintenance creditor who has benefited from exemption from costs or expenses, or from free of charge legal representation, shall be entitled, in proceedings for the enforcement of a judgement, to benefit from the most favourable legal representation or the most extensive exemption from costs or expenses provided for by the law of the state addressed.
A creditor shall be also exempted from the requirement of submitting any security or deposit to guarantee the payment of costs and expenses in the proceedings (Article 16).
An applicant is required to enclose an authenticated copy of a judgement with an attestation of its validity and enforceability and a document attesting that he/she has benefited from the exemption from costs and expenses or from free of charge legal representation (Article 17 (1) (1, 2 and 4)). In the case of a judgement by default, there is an additional requirement to present a document proving that the defendant has been notified of the institution of the proceedings (Article 17 (1) (3)).
The request and the above-mentioned documents should be translated by a sworn translator into the official language of the state addressed (Article 17 (1) (5)).
3. Temporary scope of application of the Convention.
Pursuant to Article 11 of the Hague Convention, if a decision provides for the periodical payment of maintenance, enforcement shall be granted in respect of payments already due and in respect of future payments. Moreover, pursuant to Article 24 (1), the Hague Convention shall apply regardless of a judgement's execution date.
However, the aforementioned principles shall be applied with taking into account the Convention's date of entry into force in relations between Poland, being a state of origin of a judgement, and a state addressed. For pursuant to Article 24 (2), if a judgement had been issued before that date, it may be executed only for payments due after that date, i.e. after the Convention's entry into force between Poland and the state addressed.
III The relation between the Lugano Convention and the Hague Convention
1. Considerations on the relations between the Lugano Convention and the Hague Convention exist in the relations between Poland and contracting states to both Conventions (Denmark, Finland, France, Spain, Luxembourg, Netherlands, Germany, Norway, Portugal, Switzerland, Sweden, Italy and Great Britain). This issue is ungrounded in relations with contracting states only to the Lugano Convention (Austria, Belgium, Greece, Ireland, Iceland) or only to the Hague Convention (Czech Republic, Estonia, Slovakia, Turkey).
2. Article 23 of the Hague Convention stipulates that the Convention does not restrict the application of other international agreement in force between a state of origin of the judgement and a state of recognition and enforcement of a judgement for the purposes of obtaining recognition or enforcement of a judgement.
As the above implies, the Hague Convention does not include the provision imposing its obligatory application. Moreover, the discussed provision of the Hague Convention does not provide grounds to assume that this other international agreement, referred to in Article 23, shall take precedence over the Hague Convention.
On the exclusion of the possibility of a simultaneous application of both international agreements, it may be stated that a petitioner shall be able to choose an agreement on the grounds of which he/she would claim the execution of a judgement.
3. The Lugano Convention regulates the discussed issue in Article 57. Article 57 (1) states that the Lugano Convention shall not affect any conventions, to which states participating in the Lugano Convention are parties and which, in relation to particular matters, govern jurisdiction, recognition or enforcement of judgements.
The Hague Convention undoubtedly falls within these special conventions referred to in Article 57 (1). The interpretation of this provision leads to analogous result as it was in case of the interpretation of Article 23 of the Hague Convention, i.e. allowing other international convention to be applied and lack of precedence of any of these conventions.
4. Since both Article 23 of the Hague Convention and Article 57 (1) of the Lugano Convention do not provide grounds to assume the precedence of one of them over the other, one shall accept the view that both Conventions are applicable. The choice of one of the Convention to serve grounds for obtaining the permission for the enforcement of a judgement shall rest with a petitioner26 who, by making this choice, shall have the possibility to decide which of the Conventions is of more use for him in relation to a given case.
It shall usually be the Lugano Convention, which, a.o. does not provide for the requirement of a validity of a judgement, does not include the counterpart for Article 5 (3) of the Hague Convention (pendency of the litigation as impediment to the enforcement of a judgement), does accept the possibility of enforcing official documents and does stipulate for the procedure that is most convenient to the petitioner.
Of course, the situation in which a creditor has the possibility to choose between the two international conventions concerned depending on which provision would be more favourable for him/her at a given time, should be excluded.
5. It needs to be added that the lack of acceptance to the opinion that Article 23 of the Hague Convention and Article 57 (1) of the Lugano Convention shall serve grounds for the application of one of them, according to the creditor's choice, would bring far reaching consequences. For it should be assumed that Article 57 (5) of the Lugano Convention, pursuant to which the conditions for the recognition and the enforcement, including the jurisdiction condition, provided for in the Hague Convention are applicable, while the Lugano Convention could be applied only as far as the proceedings concerning the permission to the enforcement of a judgement, shall apply.
1 Journal of Laws of 2000, No. 10, items 132 and 133
2 Journal of Laws of 2000, No. 2, items 13 and 14
3 Due to the fact that the convention has not been published in the Journal of Laws for a period of more than three years and six months from its entry into force, it could not be applied so far by the courts (Article 241 (1) of the Constitution of the Republic of Poland requires any convention to be published in the Journal of Laws as a condition for the recognition of this convention to be a part of the legal order and to be applied directly).
It should be mentioned here, that texts of some other multilateral conventions have not been published in the Journal of Laws so far, despite they fulfilled the requirements for their entry into force, provided for in these conventions. In international relations Poland is considered a party to these conventions - this concerns: the Convention on the service abroad of judicial and extrajudicial documents in civil and commercial matters of 15 November 1965 (entry into force as from 1 September 1996), the Convention on Taking of Evidence Abroad in Civil or Commercial Matters of 18 March 1970 (entry into force as from 13 April 1996), the Convention on the Recognition of Divorces and Legal Separations of 1 June 1970 (entry into force as from 24 June 1996), the Convention on the law applicable to maintenance obligations of 2 October 1973 (entry into force as from 1 May 1996) and the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption of 29 May 1993 (entry into force as from 1 October 1995).
4 In practical terms, the Convention on recovery abroad of maintenance drawn up in New York on 20 June 1956 (Journal of Laws of 1961, No. 17, items 87 and 88) and bilateral conventions continue to have a major importance in cases concerning the recovery of maintenance. Due to the contents of the Lugano Conveniton, it replaced bilateral conventions that Poland had concluded with Austria, France, Greece and Italy; these conventions still apply in relation to the issues, which have not been included in the provisions of the Lugano Convention, as well as in relation to decisions issued before it entered into force (cf. Article 54 (2)).
5 These are the states belonging to the European Union (Austria, Belgium, Denmark, Finland, France, Greece, Spain, Ireland, Luxembourg, Netherlands, Germany, Portugal, Sweden, Italy, Great Britain) and states belonging to the European Free Trade Association (Iceland, Norway, Switzerland).
6 In order to establish whether a person entitled to receive maintenance allowance is domiciled in the state in which the suit has been brought, a court shall apply its national regulations (cf. Article 52 (1)).
7 A simple residence does not require as close bond with a territory, as it is in the case of a permanent domicile.
8 If actions in relation with the same claim are brought into courts in different states, a court in which an action has been brought later shall discontinue the proceedings (Article 21 (1)).
9 The requirement to institute the proceedings for obtaining a permission to execute a judgement shall apply in case of a debtor's property being situated in a different state.
10 Before the Lugano Convention entered into force in relation to Poland, the Supreme Court, taking the contents of Article 24 of the Convention into account, had stated that the lack of national jurisdiction to examine the main case shall not be an obstacle to examine the request for securing the claim and issuing a provisional decision by a Polish court; cf. the Supreme Court's judgements of 18 February 1993 (I CRN 6/93, OSN CA 1993, no. 11, item 204) and of 14 July 1998 (III CKN 548/98, OSN C 1999, no. 3, item 48, p. 16).
11 Cf. the note no. 3.
12 Potentiality of situations in which, in accordance with internal legal regulations, it could turn out that the proceedings in relation with obtaining the permission to enforce a foreign judgement were more expensive than the proceedings resulting from bringing in a new action shall be irrelevant to the aforementioned standpoint (the EC Court of Justice's judgement of 30 November 1976 in the case of De Volf vs Cox, no. 42/76, ECR 1976, p. 1759).
13 Cf. the below - the discussion of obstacles to obtaining a permission to enforce foreign courts' judgements.
14 The Convention shall be applied for the purpose of execution of a provisional judgement issued in divorce proceedings, by virtue of which maintenance allowance has been provisionally granted (the EC Court of Justice's judgement of 6 March 1980 in the case 120/79, ECR 1980, p. 731).
15 In relation to Great Britain - enforceability of a judgement shall depend on its registration in a given territory.
16 The obligation to enclose with a request a proof of service of a judgement to the other party implies that a Polish court in which the proceedings in relation with maintenance claims under the Lugano Convention is carried on, is obliged to carry out an official service to the other party of copies of judgements, which could be enforceable in other states - parties to the Lugano Convention.
The purpose of carrying out such service is to notify the judgement issued and to leave the party with the possibility to enforce the judgement voluntarily (cf. P. Jenard's report for the Brussels Convention and the EC Court of Justice's judgement of 14 March 1996 in the case of Linden, no. C 275/94, ECR 1996 p. 1393).
17 With respect to Ireland and Great Britain cf. Article 38 (2).
18 The EC Court of Justice's judgement of 3 October 1985, no. 119/84, ECR 1985, p. 3147. It needs to be stressed, however, that the conditions, which determine the permission to execute a judgement are not complied with in cases of provisional or security measures that are ordered, or taking of which is authorised by the court, if a party, against which these measures are addressed and these measures are to be taken without being prior served upon the party, has not been summoned. Such a judgement shall not be subject to execution under the Convention (a Court of Justice's judgement of 21 May 1980, no. 125/79, ECR 1980, p. 1553).
19 The Convention of 1965 shall not be applicable in the case of a debtor's domicile in Austria or Iceland; these States are not parties to the Hague Convention of 1965. In such a case Article 20 (2) (and not Article 20 (3)) of the Lugano Convention shall apply.
20 20 Cf. item 2 of the Government Statement (Journal of Laws of 2000, No. 10, item. 133).
21 Cf. D. Martiny, Handbuch des Internationalen Zivilverfahrensrechets, t. III/2, Tübingen 1984, p. 19, J. Kropholler, Europäisches Zivilprozessrecht, Heidelberg, s. 370.
22 The Convention with Austria on Mutual Relations in Civil Matters and on Documents, signed at Vienna on 11 December 1963 (Journal of Laws of 1974, No. 6, items 33 and 35).
23 The Agreement with France on Applicable Law, Jurisdiction and the Enforcement of Judgements in the Field of Personal and Family Law, concluded in Warsaw on 5 April 1967 (Journal of Laws of 1969, No. 4, items 22 and 23).
24 The Agreement with Greece on Legal Assistance in Civil and Criminal Matters, signed at Athens on 24 October 1979 (Journal of Laws of 1982, No. 4, items 24 and 25).
25 The Agreement with Italy on Judicial Assistance and the Recognition and Enforcement of Judgements in Civil Matters, signed at Warsaw on 28 April 1989 (Journal of Laws of 1992, No. 23, items 97 and 98).
26 Cf. D. Martiny, Handbuch des Internationalen Zivilverfahrensrechets, T III/2, Tübingen 1984, p. 102, J. Kropholler, Europäisches Zivilprozessrecht, Heidelberg, s. 370.