Opinion 1/13

Opinion pursuant to Article 218(11) TFEU

‛Opinion pursuant to Article 218(11) TFEU — Convention on the civil aspects of international child abduction — Accession of third States — Regulation (EC) No 2201/2003 — Exclusive external competence of the European Union — Risk of undermining the uniform and consistent application of EU rules and the proper functioning of the system which they establish’

Summary — Opinion of the Court (Grand Chamber) of 14 October 2014

International agreements — Conclusion — Acceptance of the accession of a third State to the Convention of the civil aspects of international child abduction — Competence of the EU — Exclusive nature — Basis — Criterion for appraisal — Risk of affecting Regulation No 2201/2003

International agreements — Conclusion — Prior opinion of the Court — Request for an opinion — Conditions of admissibility — Request must concern the conclusion of an agreement — Concept of agreement — Declaration of acceptance of accession to the Convention on the Civil Aspects of International Child Abduction — Included — Condition

The act of accession to the 1980 Hague Convention on the Civil Aspects of International Child Abduction and the declaration of acceptance of such an accession, although each is effected by means of a separate instrument, give expression, overall, to the convergence of intent of the States concerned and thus amount to an international agreement. Since the declaration of acceptance of accession deposited by a Member State is a constituent part of an international agreement concluded with a third State, it is encompassed by the concept of ‘agreement’ within the meaning of Article 218(1) and (11) TFEU, provided that it is an agreement envisaged by the EU for the purpose of those provisions. (see paras 41, 42)

The opinion of the Court may be obtained on questions concerning the division, between the EU and the Member States, of competence to conclude a given agreement with third States. Article 196(2) of the Court’s Rules of Procedure supports that interpretation. (see para. 43)

In a situation where the conditions for being a party to such an agreement preclude the EU itself from concluding the agreement, although the latter falls within the EU’s external competence, that competence may be exercised through the intermediary of the Member States acting in the EU’s interest. (see para. 44)

Under Article 218(1) and (11) TFEU, a request for an Opinion may be submitted to the Court when an agreement is envisaged by the EU, which implies that it is envisaged by one or more EU institutions on which powers are conferred for the purposes of the procedure provided for in Article 218 TFEU. In addition, a request for an opinion is admissible, in particular, when a Commission proposal concerning an agreement has been submitted to the Council and has not been withdrawn at the time when the request is made to the Court. However, it is not necessary, at that point, for the Council to have already made a clear intention to conclude such an agreement. That being so, a request for an opinion is in fact prompted by a legitimate concern on the part of the institutions concerned to know the extent of the respective powers of the EU and the Member States before a decision relating to the agreement concerned is taken. Furthermore, the objective of the opinion procedure under Article 218(11) TFEU is to forestall the legal complications caused by situations in which the Member States enter into international commitments without the requisite authorisation when, under EU law, they no longer have the necessary legislative competence to put those commitments into effect. Lastly, the right to submit a request for an opinion is not conditional upon the EU institutions having reached final agreement on whether the exercise of the EU’s external competence is possible or appropriate. (see paras 45-47, 49)

The fact that certain questions raised in the context of this request for an opinion may be addressed in the context of Treaty infringement proceedings under Article 258 TFEU does not preclude the Court from being asked for an opinion on those questions under Article 218(11) TFEU. The procedure for obtaining an opinion must permit any question capable of submission for judicial consideration to be settled provided that such questions are consonant with the purpose of that procedure. (see para. 54)

The competence of the EU to conclude international agreements may arise not only from an express conferment by the Treaties but may equally flow implicitly from other provisions of the Treaties and from measures adopted, within the framework of those provisions, by the EU institutions. In particular, whenever EU law creates for those institutions powers within its internal system for the purpose of attaining a specific objective, the EU has authority to undertake international commitments necessary for the attainment of that objective even in the absence of an express provision to that effect. The last-mentioned possibility is also referred to in Article 216(1) TFEU. The 1980 Hague Convention on the Civil Aspects of International Child Abduction concerns civil cooperation where children are moved across borders and thus falls within the area of family law with cross-border implications in which the EU has internal competence under Article 81(3) TFEU. Moreover, the EU has exercised that competence by adopting Regulation No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility. In those circumstances, the EU has external competence in the area which forms the subject-matter of the Convention. (see paras 67, 68)