The Applicable Law – 2007 Hague Protocol
Introduction
The law applicable to maintenance obligations in European Union Member States (except Denmark and the United Kingdom) is today determined in accordance with the 2007 Hague Protocol (see Article 15 of the Maintenance Regulation). The 2007 Hague Protocol is although not yet entered into force (status 20 April 2012) provisionally applied in the European Union (except Denmark and the United Kingdom) as of 18 June 2011 (see the temporal and geographic scope of the Maintenance Regulation).
The applicable law rules of the 2007 Hague Protocol are of universal application (Article 2). This means that in the States bound by the Protocol, a court seised of an application relating to a maintenance obligation falling within the material scope of the Protocol, will have “to determine the law applicable on the merits [by applying the Protocol], even if the case has very close links (as a result of the parties’ residence or for other reasons) with one or more non-Contracting States” (see Bonomi, Explanatory Report on the 2007 Hague Protocol, para. 35) and also “if the law applicable is that of a non-Contracting State” (Article 2).
All referrals to foreign law by the provisions of the Protocol are direct referrals to the substantive law of the relevant State, i.e. the “choice of law rules” of the State whose law is referred to will not be applied (see Article 12).
For details on what the law applicable to maintenance obligations determines see the non-exhaustive list of Article 11.