Referring court and Member State
Finland, Third Instance, Korkein oikeus
Summary
This reference primarily concerns the interpretation of Arts 1 and 49 of the Brussels I Regulation and of Art 47(1) of the Brussels IIa Regulation. It was made in proceedings between Mr Bohez (resident in Belgium) and Ms Wiertz (resident in Finland) in relation to the enforcement in Finland of a penalty payment imposed by a decision given by a Belgian court in order to ensure compliance with the rights of access granted to Bohez in respect of their two children living in Finland. The access order was supplemented with a penalty payment of EUR 1 000 per child to be paid to Bohez for every day of the child’s non-appearance, with a maximum amount of EUR 25 000, intending to ensure compliance with the rights of access granted to him. Bohez applied to the Finnish courts for an order requiring Wiertz to pay him the penalty payment imposed in that judgment in respect of access visits which did not take place, or for a declaration that the judgment was enforceable in Finland. Since under Belgian law, recovery of penalty payments is affected directly by the enforcement authorities without any need for fresh court proceedings, he submitted that his application was to be considered as an application for recovery of a monetary claim that has fallen due and therefore fell within the scope of Brussels I. Wiertz contended that the penalty order was not enforceable since it had not been definitely confirmed by the Belgian courts. The Finnish court considered the application as within the scope of Brussels I on the ground that it did not concern the enforcement of a judgment on rights of access, but only to the enforcement of a penalty payment imposed to ensure compliance with that judgment. It held the application inadmissible because the amount of the penalty payment had not been finally determined, contrary to the requirements of Art 49 of Brussels I. Upon appeal, the Court of Appeal in Helsinki also found the application inadmissible as pertaining to the enforcement of a judgment concerning a right of access falling within the scope of Brussels IIa, not Brussels I, due to the exclusion in Art 1(2)(a) of Brussels Iand governed by Finnish law according to Art 47(1) of Brussels IIa. Upon Bohez’s appeal, the referring court asked questions to the CJEU. In response to the first question the CJEU stated that Brussels I’s scope was limited to ‘civil and commercial matters’ determined essentially according to the factors characterising the nature of the legal relationships between the parties to the action or the subject-matter of the action. Regarding interim measures, the CJEU noted that this was determined not by their own nature but by the nature of the rights that they served to protect. It considered that the penalty payment in question was ancillary to the principal obligation which served to protect a right not falling within the scope of Brussels I, but rather within that of Brussels IIa. The CJEU held that Art 1 of Brussels I must be interpreted as meaning that that regulation did not apply to the enforcement in a Member State of a penalty payment which was imposed in a judgment, given in another Member State, concerning rights of custody and rights of access in order to ensure that the holder of the rights of custody complied with those rights of access. In relation to Brussels IIa, the CJEU held that a penalty which the court of the Member State of origin, that gave judgment on the merits with regard to rights of access, had imposed in order to ensure the effectiveness of those rights formed part of the same scheme of enforcement as the judgment concerning the rights of access. Therefore, the penalty must be declared enforceable in accordance with the rules laid down by Brussels IIa but only if the amount of the payment has been finally determined by the courts of the Member State of origin.