The EU Protection Measures Regulation
On 11 January 2015, Regulation (EU) No. 606/2013 of the European Parliament and of the Council of 12 June 2013 on Mutual Recognition of Protection Measures in Civil Matters (“the Protection Measures Regulation”) came into force, providing automatic intra-EU recognition and enforcement of civil protection measures made in Member States and thus extending the tools available to protect victims of domestic violence within the European Union (save for Denmark which is not bound by the Regulation).
The Protection Measures Regulation was designed to complement Directive 2011/99/EU of the European Parliament and of the Council of 13 December 2011, on the European Protection Order (in respect of criminal matters) with the objective of protecting individuals wishing to exercise their right to freedom of movement within the EU from violence by providing for the automatic and mutual recognition of Member State’s ‘protection measures’ in civil matters and thus creating ‘a common area of justice without internal borders’.
It is hoped that the combination of the two European Protection Orders (criminal and civil) should cover a comprehensive range of protection measures for victims issued in the Member States and is a much welcomed addition in the united European effort to combat domestic violence across land borders.
The Protection Measures Regulation automatically applies from 11 January 2015 to civil protection measures ordered on or after that date, irrespective of when proceedings have been instituted. This means that a protection measure ordered in one Member State will be treated as if it had been ordered in the Member State where recognition is sought. No special procedure, mirror order or declaration of enforceability will be required.
‘Protection measures’ are defined in the Regulation as any decision including a court order made in a Member State imposing obligations on a person causing a risk with a view to protecting another person when the latter’s physical or psychological integrity may be at risk. This includes the prevention of any form of violence in close relationships, such as physical violence, harassment, sexual aggression, stalking, intimidation or other forms of indirect coercion. This could be a prohibition against entering a particular geographical area or from contacting the protected person. Factual elements of the protection measure (i.e. addresses or places of work) can be adjusted where necessary in order that it continues to be practically effective in the Member State addressed.
The Regulation introduces a uniform model of certificate in a multilingual standard form in order to facilitate the free movement of protection measures. The victim will need a suitable certificate to be able to invoke the protection measure in another Member State.
The Regulation is to be applied according to the rights of defence and fair trial of the person causing the risk and there are rules in respect of the notice to be provided.
The recognition corresponds with the duration of the protection measure. This is limited to 12 months from the issuing certificate; however it is possible to invoke protection measures of more than 12 months under any other legal act of the EU for providing recognition or apply for a national protection measure in the Member State addressed if more than 12 months duration is required.
The Regulation is not intended to regulate the procedures for implementation or enforcement and does not deal with the sanctions for violation of a protection measure foreseen by each Member State. Those matters are left to the law of that Member State.
The Regulation provides for the provision of legal aid in other Member States to ensure access to the procedures covered within it.
The Regulation provides grounds for refusal of recognition or enforcement in cases of irreconcilability of decisions or where it is manifestly contrary to public policy.
The Regulation should not interfere with the functioning of the Brussels IIa Regulation (EC Re No 2201/2003) and decisions taken under the Brussels IIa Regulation should continue to be recognised and enforced under that Regulation. This Regulation does not apply to protection measures falling within the scope of BIIRa.
Practitioners will need to familiarise themselves with the domestic rules introduced to provide for the implementation of the EU Protection Measures Regulation:
(i) The Family Procedure Rules 2010 have been amended by The Family Procedure (Amendment No. 4) Rules 2014, which introduce a new Part 38 and related practice direction PD38A, in order to make procedural provisions in respect of incoming and outgoing protection measures to which the Protection Measures Regulation applies.
(ii) The Civil Jurisdiction and Judgments (Protection Measures) Regulations 2014 (SI 2014/3298) published on 15 December 2014 support the implementation of the Regulation, making provision to facilitate the application of the Protection Measures Regulation. It assigns conduct of incoming protection measures to the Family Division of the High Court and also ensures that the county courts and the High Court of Northern Ireland has jurisdiction to deal with appeals from decisions made under the Regulation. It also gives courts the power to enforce incoming protection measures as though they were domestic protection measures.
(iii) Allocation is also covered by an amendment to the Family Court (Composition and Distribution of Business) Rules 2014 (SI 2014/3297).
(iv) The Civil Procedure (Amendment No. 8) Rules 2014 amend the Civil Procedure Rules 1998 (CPR) (SI 1998/3132) by inserting a new Section VI in Part 74 in respect of protection measures in civil proceedings.
The Regulation can be found here and a detailed overview of the key features of both the civil and criminal Regulations is provided in the new chapter on Domestic Violence written by Anna Simmonds and David Hodson in ‘The International Family Law Practice’ (4th edition, March 2015, Jordan), with further information available from David Hodson