ANNEX TO THE RESOLUTION

DETAILED RECOMMENDATIONS FOR A REGULATION OF THE COUNCIL ON THE CROSS-BORDER RECOGNITION OF ADOPTION ORDERS

A. PRINCIPLES AND AIMS OF THE PROPOSAL REQUESTED

Exercising their right to free movement, an increasing number of Union citizens decide each year to move to another Member State of the Union. This creates a number of difficulties regarding the recognition and the legal resolution of the personal and family law situation of mobile individuals. The Union has made a start on addressing these problem situations, for example by adopting Regulation (EU) No 650/2012 of the European Parliament and of the Council ( 1 ) , and by putting in place enhanced cooperation regarding the recognition of certain aspects of matrimonial property regimes and the property effects of registered partnerships.

The Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption (the Hague Convention) is in effect in all Member States. It concerns the procedure for adoptions across borders, and mandates the automatic recognition of such adoptions. However, the Hague Convention does not cover the situation of a family with a child adopted under a purely national procedure which then moves to another Member State. This can lead to significant legal difficulties if the legal relationship between the parent(s) and the adopted child is not automatically recognised. Additional administrative or judicial procedures may be required, and in extreme cases recognition may be refused altogether.

It is therefore necessary, in order to protect the fundamental rights and freedoms of such Union citizens, to adopt a regulation providing for the automatic cross-border recognition of adoption orders. The proper legal basis for such a proposal is Article 67(4) of the Treaty on the Functioning of the European Union, which concerns the mutual recognition of judgments and decisions, and Article 81(3) of the Treaty, which concerns measures in the field of family law. The regulation is to be adopted by the Council after consulting the European Parliament.

The proposed regulation provides for the automatic recognition of adoption orders made in a Member State under any procedure other than under the framework of the Hague Convention. As European families may also have connections with or have lived in a third country in the past, the regulation also provides that, once one Member State has recognised an adoption order made in a third country under its relevant national procedural rules, that adoption order shall be recognised in all other Member States.

However, in order to avoid forum shopping or the application of inappropriate national laws, that automatic recognition is subject, firstly, to the condition that recognition must not be manifestly contrary to the public order of the recognising Member State, while emphasising that such refusals may never lead de facto to discrimination prohibited by Article 21 of the Charter of Fundamental Rights of the European Union, and, secondly, that the Member State which took the adoption decision had jurisdiction under Article 4 of the proposal requested in Part B (the proposal). Only the Member State of the habitual residence of the parent or parents or of the child can have that jurisdiction. However, where the adoption decision was taken in a third country, jurisdiction for the initial recognition within the Union of that adoption can also lie with the Member State of nationality of the parents or child. This is in order to ensure access to justice for European families resident overseas.

Specific procedures are required for deciding on any objections to recognition in specific cases. These provisions are similar to those encountered in other Union acts in the area of civil justice.

A European Certificate of Adoption should be created in order to speed up any administrative query over automatic recognition. The model for the certificate is to be adopted as a Commission delegated act.

The proposal only concerns the individual parent-child relationship. It does not oblige the Member States to recognise any particular legal relationship between parents of an adopted child, as the national laws relating to couples differ considerably.

Finally, the proposal contains the usual final and transitional provisions encountered in civil justice instruments. The automatic recognition of adoptions only applies to adoption decisions taken from the date of application of the regulation, and, as from that date also, to any earlier adoption orders if the child is still a minor.

The proposal complies with the principles of subsidiarity and proportionality, as the Member States cannot act alone to set up a legal framework for the cross-border recognition of adoption orders, and the proposal goes no further than absolutely necessary to ensure the stability of the legal situation of adopted children. It does not affect the family law of the Member States.

B. TEXT OF THE PROPOSAL REQUESTED

Regulation of the Council on the cross-border recognition of adoption orders

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Articles 67(4) and 81(3) thereof,

Having regard to the European Parliament’s request to the European Commission,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Parliament,

Having regard to the opinion of the European Economic and Social Committee,

Acting in accordance with a special legislative procedure,

Whereas:

(1) The Union has set itself the objective of maintaining and developing an area of freedom, security and justice, in which the free movement of persons is assured. For the gradual establishment of such an area, it is necessary that the Union adopt measures relating to judicial cooperation in civil matters having cross-border implications, including in the area of family law.

(2) Pursuant to Articles 67 and 81 of the Treaty on the Functioning of the European Union (TFEU), those measures are to include measures aimed at ensuring the mutual recognition of decisions in judicial and extrajudicial cases.

(3) In order to ensure free movement for families which have adopted a child, it is necessary and appropriate that the rules governing jurisdiction and the recognition of adoption orders be governed by a legal instrument of the Union which is binding and directly applicable.

(4) This Regulation should create a clear, comprehensive legal framework in the area of the cross-border recognition of adoption orders, provide families with appropriate outcomes in terms of legal certainty, predictability and flexibility, and prevent a situation from arising where an adoption order legally made in one Member State is not recognised in another.

(5) This Regulation should cover the recognition of adoption orders made or recognised in a Member State. However, it should not cover the recognition of intercountry adoptions performed in accordance with the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption, as that Convention already provides for the automatic recognition of such adoptions. This Regulation should therefore apply only to the recognition of domestic adoptions, and to international adoptions not performed under that Convention.

(6) There must be a connection between an adoption and the territory of the Member State which made the adoption order, or recognised it. Accordingly, recognition should be subject to compliance with common rules of jurisdiction.

(7) The rules of jurisdiction should be highly predictable and founded on the principle that jurisdiction is generally based on the adopting parents' habitual residence, or the habitual residence of one of those parents or of the child. Jurisdiction should be limited to this ground, save in situations involving third countries, where the Member State of nationality may be a connecting factor.

(8) As adoption generally concerns minors, it is not appropriate to give parents or the child any flexibility in choosing the authorities which will decide on the adoption.

(9) Mutual trust in the administration of justice in the Union justifies the principle that adoption orders made in, or recognised by, a Member State should be recognised in all other Member States without the need for any special procedure. As a result, an adoption order made by a Member State should be treated as if it had been made in the Member State addressed.

(10) The automatic recognition in the Member State addressed of an adoption order made in another Member State should not jeopardise respect for the rights of the defence. Therefore, any interested party should be able to apply for refusal of the recognition of an adoption order if he or she considers one of the grounds for refusal of recognition to be present.

(11) The recognition of domestic adoption orders should be automatic unless the Member State where the adoption took place did not have jurisdiction or if such recognition would be manifestly contrary to the public policy of the recognising Member State, as interpreted in accordance with Article 21 of the Charter of Fundamental Rights of the European Union.

(12) This Regulation should not affect the substantive family law, including the law on adoption, of the Member States. Furthermore, any recognition of an adoption order under this Regulation should not imply the recognition of any legal relationship between adopting parents as a consequence of the recognition of an adoption order without, however, preconditioning the possible decision on the recognition of an adoption order.

(13) Any procedural questions not addressed by this Regulation should be dealt with in accordance with national law.

(14) Where an adoption order implies a legal relationship which is not known in the law of the Member State addressed, that legal relationship, including any ensuing right or obligation, should, to the extent possible, be adapted to one which, under the law of that Member State, has equivalent effects attached to it and pursues similar aims. How, and by whom, the adaptation is to be carried out should be determined by each Member State.

(15) In order to facilitate the automatic recognition provided for by this Regulation, a model for the transmission of adoption orders, the European Certificate of Adoption, should be drawn up. For that purpose, the power to adopt acts in accordance with Article 290 of the TFEU should be delegated to the Commission in respect of the establishment and amendment of that model certificate. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council.

(16) Since the objective of this Regulation cannot be sufficiently achieved by the Member States and can be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union (TEU). In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.

(17) In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to TEU and to TFEU, [the United Kingdom and Ireland have given notice of their wish to take part in the adoption and application of this Regulation]/[without prejudice to Article 4 of the Protocol, the United Kingdom and Ireland will not participate in the adoption of this Regulation and will not be bound by it or be subject to its application].

(18) In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark will not participate in the adoption of this Regulation and is not therefore bound by it or required to apply it,

HAS ADOPTED THIS REGULATION:

Article 1

Scope

1. This Regulation shall apply to the recognition of adoption orders.

2. This Regulation does not apply to or affect:

(a) the laws of the Member States on the entitlement to adopt or on other family law matters;

(b) intercountry adoptions under the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption (the Hague Convention).

3. Nothing in this Regulation requires a Member State to:

(a) recognise the existence of any legal relationship between parents of an adopted child as a consequence of the recognition of an adoption order;

(b) make adoption orders in circumstances in which the relevant national law does not so allow.

Article 2

Definition

For the purposes of this Regulation, ‘adoption order’ means the judgment or decision creating or recognising a permanent, legal parent-child relationship between a child who has not yet reached the age of majority and a new parent or parents who are not biological parents of that child, howsoever that legal relationship is named in national law.

Article 3

Automatic recognition of adoption orders

1. An adoption order made in a Member State shall be recognised in the other Member States without any special procedure being required, provided that the Member State making the order has jurisdiction in accordance with Article 4.

2. Any interested party may, in accordance with the procedure provided for in Article 7, apply for a decision that there are no grounds for refusal of recognition as referred to in Article 6.

3. If the outcome of proceedings in a court of a Member State depends on the determination of an incidental question of refusal of recognition, that court shall have jurisdiction over that question.

Article 4

Jurisdiction for adoption orders

1. The authorities of a Member State may only make an adoption order if the adopting parent or parents or the adopted child are habitually resident in that Member State.

2. Where an adoption order has been made in respect of a child by the authorities of a third country, the authorities of a Member State may also make such an order, or decide on the recognition of the third country order in accordance with the procedures established by national law, if the adopting parent or parents or the adopted child are not habitually resident in that Member State, but are citizens of the same.

Article 5

Documentation required for recognition

A party wishing to invoke, in one Member State, an adoption order which was made in another Member State shall produce:

(a) a copy of the adoption order which satisfies the conditions necessary to establish its authenticity; and

(b) the European Certificate of Adoption issued pursuant to Article 11.

Article 6

Refusal of recognition

On the application of any interested party, the recognition of an adoption order made in a Member State may only be refused:

(a) if such recognition is manifestly contrary to public policy (ordre public) in the Member State addressed;

(b) if the originating Member State did not have jurisdiction under Article 4.

Article 7

Application for refusal of recognition

1. On application by any interested party as defined by national law, the recognition of an adoption order shall be refused where one of the grounds referred to in Article 6 is found to exist.

2. The application for refusal of recognition shall be submitted to the court which the Member State concerned has communicated to the Commission pursuant to point (a) of Article 13 as the court to which the application is to be submitted.

3. The procedure for refusal of recognition shall, in so far as it is not covered by this Regulation, be governed by the law of the Member State addressed.

4. The applicant shall provide the court with a copy of the order and, where necessary, a translation or transliteration of it.

5. The court may dispense with the production of the documents referred to in paragraph 4 if it already possesses them or if it considers it unreasonable to require the applicant to provide them. In the latter case, the court may require the other party to provide those documents.

6. The party seeking the refusal of recognition of an adoption order taken in another Member State shall not be required to have a postal address in the Member State addressed. Nor shall that party be required to have an authorised representative in the Member State addressed unless such a representative is mandatory irrespective of the nationality or the domicile of the parties.

7. The court shall decide on the application for refusal of recognition without delay.

Article 8

Appeals against the decision on the application for refusal of recognition

1. The decision on the application for refusal of recognition may be appealed against by either party.

2. The appeal is to be lodged with the court which the Member State concerned has communicated to the Commission pursuant to point (b) of Article 13 as the court with which such an appeal is to be lodged.

3. The decision given on the appeal may only be contested by an appeal where the courts with which any further appeal is to be lodged have been communicated by the Member State concerned to the Commission pursuant to point (c) of Article 13.

Article 9

Appeals in the Member State of origin of the adoption order

The court to which an application for refusal of recognition is submitted or the court which hears an appeal lodged under Article 8(2) or (3) may stay the proceedings if an ordinary appeal has been lodged against the adoption order in the Member State of origin or if the time for such an appeal has not yet expired. In the latter case, the court may specify the time within which such an appeal is to be lodged.

Article 10

No review as to substance

Under no circumstances may an adoption order made, or judgment given, in a Member State be reviewed as to its substance in the Member State addressed.

Article 11

European Certificate of Adoption

The authorities of the Member State which has made the adoption order shall, at the request of any interested party, issue a multilingual European Certificate of Adoption conforming to the model established in accordance with Article 15.

Article 12

Adaptation of adoption order

1. If a decision or judgment contains a measure or an order which is not known in the law of the Member State addressed, that measure or order shall, to the extent possible, be adapted to a measure or an order known in the law of that Member State which has equivalent effects attached to it and which pursues similar aims and interests. Such adaptation shall not result in effects going beyond those provided for in the law of the Member State of origin.

2. Any interested party may challenge the adaptation of the measure or order before a court.

Article 13

Information to be provided by Member States

1. By 1 July 2018, the Member States shall communicate to the Commission their national provisions, if any, concerning:

(a) the courts to which the application for refusal of recognition is to be submitted pursuant to Article 7(2);

(b) the courts with which an appeal against the decision on the application for refusal of recognition is to be lodged pursuant to Article 8(2); and

(c) the courts with which any further appeal is to be lodged pursuant to Article 8(3).

2. The Commission shall make the information referred to in paragraph 1, as well as any other relevant information on adoption procedures and the recognition thereof in the Member States, publicly available through any appropriate means, in particular through the European e-Justice Portal.

Article 14

Legalisation and similar formality

No legalisation or other similar formality shall be required for documents issued in a Member State under this Regulation.

Article 15

Power to adopt delegated acts

The Commission is empowered to adopt delegated acts in accordance with Article 16 concerning the establishment and amendment of the model for the multilingual European Certificate of Adoption referred to in Article 11.

Article 16

Exercise of the delegation

1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

2. The power to adopt delegated acts referred to in Article 15 shall be conferred on the Commission for an indeterminate period of time from 1 July 2018.

3. The delegation of power referred to in Article 15 may be revoked at any time by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

4. A delegated act adopted pursuant to Article 15 shall enter into force only if no objection has been expressed by the Council within a period of two months of notification of that act to the Council or if, before the expiry of that period, the Council has informed the Commission that it will not object. That period shall be extended by two months at the initiative of the Council.

5. The European Parliament shall be informed of the adoption of delegated acts by the Commission, of any objection formulated to them, or of the revocation of the delegation of powers by the Council.

Article 17

Transitional provisions

This Regulation shall apply only to adoption orders made on or after 1 January 2019.

However, adoption orders made before 1 January 2019 shall also be recognised from the date where the child in question has not yet reached the age of majority on that date.

Article 18

Relationship with existing international conventions

1. This Regulation shall not apply to adoption orders made in application of the Hague Convention.

2. Without prejudice to the obligations of the Member States pursuant to Article 351 of the Treaty on the Functioning of the European Union, this Regulation shall not affect the application of international conventions to which one or more Member States are party at the time when this Regulation enters into force which lay down rules relating to the recognition of adoptions.

3. However, this Regulation shall, as between Member States, take precedence over conventions concluded exclusively between two or more of them in so far as such conventions concern matters governed by this Regulation.

Article 19

Review clause

1. By 31 December 2024, and every five years thereafter, the Commission shall present to the European Parliament, the Council and the European Economic and Social Committee a report on the application of this Regulation. The report shall be accompanied, where appropriate, by proposals to adapt this Regulation.

2. To that end, Member States shall communicate to the Commission the relevant information on the application of this Regulation by their courts.

Article 20

Entry into force and date of application

This Regulation shall enter into force on the 20th day following that of its publication in the Official Journal of the European Union.

It shall apply from 1 January 2019, with the exception of Articles 13, 15 and 16, which shall apply from 1 July 2018.