THE EU PROTECTION MEASURES REGULATION
Tim Scott QC
29 Bedford Row
London WC1R 4HE
January 2015
On 11 January 2015 Regulation (EU) No 606/2013 on Mutual Recognition of Protection
Measures in Civil Matters came into force in all Member States except for Denmark. Its goal
is to provide automatic recognition among Member States of certain categories of personal
protection measures. It is known for short as the Protection Measures Regulation. In order
to give effect to it:
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A new Part 38 has been added to the Family Procedure Rules, supplemented by
Practice Direction PD38A. The Practice Direction is written in plain English and is
clearly intended to be accessible to litigants in person.
A new Section 6 has been inserted in CPR Part 74.
The protection measures which are covered by the Regulation (see Article 3) are:(a) A prohibition or regulation on entering the place where the protected person
resides, works, or regularly visits or stays;
(b) A prohibition or regulation of contact with the protected person on any basis which
may be specified;
(c) A prohibition or regulation on approaching the protected person closer than a
prescribed distance.
In English terms such orders are likely to be made either under the Family Law Act 1996 or
under the Protection from Harassment Act 1997. FPR PD38A 1.5 provides that ‘orders’
includes undertakings accepted by the court.
The scheme of the Regulation is that a protection measure ordered in one Member State
(the Member State of origin) shall be recognised in any other Member State (the Member
State addressed) without any special procedure and shall be enforceable without a
declaration of enforceability being required.
The ‘protected person’ obtains a certificate in standard form issued by the ‘issuing
authority’ in the Member State of origin and presents it (together with the protection
measure itself) to the ‘competent authority’ in the Member State addressed. In England and
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Wales the issuing authority and the competent authority are the courts, specifically the
family court, the county court and the Family Division of the High Court.
So far so easy but of course the devil lies in the detail. The preamble runs to 42 Paragraphs
over four pages, almost as long as the body of the Regulation. Some of the points emerging
from the preamble are:
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A protection measure ordered in the Member State of origin should be treated as if
it had been ordered in the Member State addressed (Paragraph 4).
The Regulation applies to all victims regardless of whether they are victims of
gender-based violence (Paragraph 6).
The Regulation is complementary to Directive 2012/29/EU dealing with the rights,
support and protection of victims of crime. The Regulation does not cover orders
made in criminal proceedings (Paragraphs 7 – 8).
There is no overlap with Brussels II Revised. Orders made under BIIR will continue to
be recognised and enforced as before (Paragraph 11).
The Regulation only deals with recognition and enforcement. It does not require
Member States to modify or introduce measures (Paragraph 12).
Decisions by administrative bodies are covered provided they are impartial and
subject to judicial review. Decisions taken by police authorities are not covered
(Paragraph 13).
Recognition is limited to a period of 12 months from the issue of the certificate even
if the order has a longer duration (Paragraph 15).
The Regulation does not regulate the procedures for implementation or
enforcement of measures, nor does it cover any sanctions which may be imposed in
the event of a breach. These are left to national law (Paragraph 18).
The competent authority in the Member State addressed is allowed to adjust the
‘factual element’ of the measure, e.g. the address of the victim or the distance which
the person causing the risk is required to maintain (Paragraph 20).
The Regulation itself is divided into three Chapters. Chapter I deals with subject matter,
scope and definitions and has been summarised above. Chapter II deals with recognition
and enforcement and contains the meat of the Regulation. Some of the key points are as
follows: Articles 5 – 7 deal with the form and content of the certificate, which is central to the
scheme of the Regulation. Article 19 provides for a standard multilingual form of
certificate to be developed. English courts are meant to have a software programme
to create and perhaps to translate the certificates but so far as is known this is not
yet available. This seems likely to be an interesting challenge.
 Article 8 requires the issuing authority to notify the person causing the risk of the
certificate and of its effect.
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Article 9 provides that a certificate can be rectified or withdrawn.
Article 11 provides for the adjustment of the protection measure referred to above.
Article 12 provides (as is normal in EU Regulations) that there can be no review of
the substance of the measure in the Member State addressed. In practice this is
greatly watered down by the power to adjust the factual element under Article 11.
Article 13 provides that recognition and/or enforcement can only be refused either if
recognition would be manifestly contrary to public policy in the Member State
addressed (a notoriously high hurdle); or if the measure is irreconcilable with a
measure given or recognised in the Member State addressed.
Chapter III is headed General and Final provisions. It provides for such matters as translation
of documents, information to the public and communications on information by Member
States.
How useful will the Regulation be in practice? This will depend largely on the level of
awareness about it in England and Wales and elsewhere. Experience of BIIR and of the
Maintenance Regulation has not shown any enthusiasm on the part of English family layers
to get to grips with new EU Regulations. This Regulation has attracted no attention to date
and there must be a fear that it will at best only seep into the consciousness of practitioners
by a slow process of osmosis.
One particular concern is over the practicalities of enforcement. The Regulation expressly
avoids trying to regulate the procedures for implementation or enforcement or to cover
potential sanctions in the event of infringement of a measure. The normal sanction in
England for a serious breach of a personal protection order is committal to prison. However
a person can only be committed if the order has been in sufficiently clear terms. Will an
order made in the courts of another Member State be in sufficiently clear terms to enable
penal sanctions to be enforced? Quite possibly not.
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