Proposal for a Council Decision authorizing the Member States to sign in the interest of the European Community the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (the 1996 Hague Convention)
Date: 2001-11-20
Institutions: European Commission
Subjects: European convention, European judicial area, child protection, judicial proceedings, mutual recognition principle, parental responsibility

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 20.11.2001
COM(2001) 680 final

Proposal for a

COUNCIL DECISION

authorizing the Member States to sign in the interest of the European Community the
Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-
operation in respect of Parental Responsibility and Measures for the Protection of
Children (the 1996 Hague Convention)

(presented by the Commission)

EXPLANATORY MEMORANDUM

Objective

1. 

2. 

3. 

The Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-
operation  in  respect  of  Parental  Responsibility  and  Measures  for  the  Protection  of
Children  (the  1996  Hague  Convention)  was  concluded  on  19  October  1996  within
the  Hague  Conference  on  Private  International  Law.  Although  now  falling  partly
under Community competence, the Convention does not allow for accession by the
Community.

It is  widely  recognized  that  the  Convention  would  make  a  valuable  contribution  to
the  protection  of  children  in  situations  that  transcend  the  boundaries  of  the
Community  and  thus  usefully  complement  existing  and  future  Community  rules  in
the  same  area.  Therefore,  the  Commission  is  hereby  proposing  that  the  Council
exceptionally authorize those Member States bound by Community rules in the same
area to sign the Convention in the interest of the Community.

With a view to safeguarding the development of a common judicial area within the
Community,  this  authorization  is  subject  to  making  a  declaration  when  signing  the
Convention,  and  to  opening  negotiations  for  Community  accession  as  soon  as
possible.

Development of a common judicial area within the Community

4. 

5. 

1 

2 

The  European  Community  has  set  the  objective  of  creating  a  genuine  judicial  area
based  on  the  principle  of  mutual  recognition  of  judicial  decisions.  The  European
Council meeting at Tampere in October 1999 called for decisions to be automatically
recognized  throughout  the  Union  without  any  intermediate  proceedings  or  grounds
for refusal of enforcement. To this end, the Council and the Commission adopted in
December 2000 a program of measures for the progressive abolition of exequatur in
four areas of work.1

As  regards  decisions  on  parental  responsibility,  which  fall  within  area  II  of  the
program  of  mutual  recognition,  Council  Regulation  1347/2000  (the  Brussels  II
Regulation) already provides for the mutual recognition of certain judgments issued
at the time of divorce or separation.2 Furthermore, the first stage of the program of
mutual  recognition  in  the  family  law  area  consists  of  an  extension  to  the  areas  not
covered  by  the  Brussels  II  Regulation,  as  well  as  a  specific  project  on  rights  of
access.  As  regards  the  former,  the  Commission  presented  on  6  September  2001  a
Proposal  for  a  Regulation  that  extends  the  principle  of  mutual  recognition  to  all

Programme of measures for implementation of the principle of mutual recognition of decisions in civil
and commercial matters, OJ 2001 C12/1.
Council  Regulation  (EC)  No  1347/2000  of  29  May  2000  on  jurisdiction  and  the  recognition  and
enforcement of judgments in matrimonial matters and in matters of parental responsibility for children
of both spouses, OJ 2000 L160/19.  The Regulation sets out rules on jurisdiction, automatic recognition
and simplified enforcement of judgments in matrimonial matters and matters of parental responsibility
for the children of both spouses rendered on the occasion of the matrimonial proceedings.

2

                                                
decisions on parental responsibility.3 As regards the latter, the Council is pursuing its
examination of the French initiative on rights of access presented in July 2000.4

6. 

The  long-term  objective  is  to  abolish  exequatur  for  all  decisions  on  parental
responsibility on the basis of a clear and coherent set of rules on jurisdiction.

The 1996 Hague Convention

7. 

8. 

9. 

The  1996  Hague  Convention  lays  down  rules  on  jurisdiction,  applicable  law,
recognition and enforcement of measures on parental responsibility and protection of
children.  The  Convention  is  based  in  the  first  place  on  the  jurisdiction  of  the
Contracting State of the habitual residence of the child. The competent authority will
in principle apply its internal law, and may transfer the case to a court better placed
to  hear  it.  Judgments  benefit  from  automatic  recognition,  and  Contracting  States
must provide a simple and rapid exequatur procedure. A mechanism is also  set out
for cooperation between authorities.

The  Convention  was  concluded  on  19  October  1996  within  the  framework  of  the
Hague  Conference  of  Private  International  Law  and  has  not  yet  entered  into  force.
The Community is not a member of The Hague Conference for the time being. The
Commission did not participate in these negotiations, although it attended them as an
observer. The Convention does not allow for accession other than by States. To date
the  Netherlands  are  the  only  Member  State  to  have  signed  (but  not  ratified)  the
Convention.

In  fact,  in  accordance  with  the  AETR  case  law  of  the  Court  of  Justice  on  external
competence,  Member  States  are  no  longer  free  to  approve  on  their  own  the
Convention,  as  its  provisions  on  jurisdiction  and  enforcement  affect  the  common
rules  of  Regulation  1347/2000.  Therefore,  competence  is  shared  between  the
Community and the Member States.

10. 

The  relationship  between  the  rules  contained  in  the  Convention  and  existing  and
future Community rules is set out in Article 52 of the Convention, which states:

“(1)  This  Convention  does  not  affect  any  international  instrument  to  which
Contracting  States  are  Parties  and  which  contains  provisions  on  matters  governed
by  the  Convention,  unless  a  contrary  declaration  is  made  by  the  States  Parties  to
such instrument.

(2) This Convention does not affect the possibility for one or more Contracting States
to conclude agreements which contain, in respect of  children  habitually  resident in
any of the States Parties to such agreements, provisions on matters governed by this
Convention.

(3) Agreements to be concluded by one or more Contracting States on matters within
the  scope  of  this  Convention  do  not  affect,  in  the  relationship  of  such  States  with
other Contracting States, the application of the provisions of this Convention.

3 

4 

Proposal for a Council Regulation on jurisdiction and the recognition and enforcement of judgments in
matters of parental responsibility, COM (2001) 505 final.
Initiative  of  the  French  Republic  with  a  view  to  adopting  a  Council  Regulation  on  the  mutual
enforcement of judgments on rights of access to children, OJ 2000 C234/7.

3

                                                
(4) The preceding paragraphs also apply to uniform laws based on special ties of a
regional or other nature between the States concerned.”

11. 

One  should  however  note  that  these  paragraphs  were  not  drafted  in  view  of  a
possible interplay with Community rules.  In fact, although  consultations  took  place
at  the  time  for  the  purpose  of  ensuring  consistency  between  the  1996  Hague
Convention  and  the  Brussels  II  Convention  concluded  in  1998  (after  which  the
Brussels II Regulation was subsequently tailored), this was before the transfer of the
area  of  judicial  cooperation  to  the  first  pillar  and  the  development  of  Community
policy in the area of parental responsibility. As a result, and while paragraph 2 was
drafted  with  a  view  to  avoid  conflict  with  the  then  Brussels  II  Convention,  the
application  of  paragraphs  2,  3  and  4  to  the  Community  context  is  a  matter  which
needs to be addressed5.

Clarification of the limits the Convention places on Community action

12. 

13. 

14. 

15. 

16. 

5 

For the purpose of applying Article 52 of the Convention to the Community context,
paragraphs  2  and  3  can  be  read  together  with  paragraph  4  by  assimilating
Community  acts  to  international  agreements.  There  are,  however,  two  issues  that
need to be clarified in this context.

First, paragraph 2 would allow the Community to act in respect of children habitually
resident  in  one  of  the  Member  States.  A  contrario,  it  might  thus  appear  that  the
Community  would  not  be  allowed  to  act  in  respect  of  children  who  are  habitually
resident outside the Community.

However, this cannot be the correct interpretation of paragraph 2 read together with
paragraph  4.  This  is  because  any  limitation  placed  on  Community  action  can  only
relate  to  children  who  are  not  resident  in  one  of  the  Member  States,  but  who  are
resident in another Contracting State. A different interpretation would go beyond the
scope of the Convention. It would also lead to the absurd result that the Community
and its Member States could no longer enter into an international agreement with a
State that is not Party to the 1996 Convention in respect of children resident in that
State.  To  the  extent  that  a  Member  State  could  no  longer  enter  into  such  an
agreement on its own (such agreements now falling at least partly under Community
competence),  this  interpretation  would  preclude  any  international  solution  for  the
protection of these children (apart from accession of their State of habitual residence
to the Convention).

Second, as already indicated, the application of Article 52 to the Community context
rests  on  assimilating  Community  acts  to  international  agreements.  However,  it
should be clarified that any limitation on Community action cannot possibly concern
the  legislative  activity  of  the  Community.  In  other  words,  as  each  Member  State
remains  free  to  legislate  with  respect  to  non-resident  children,  so  should  the
Community  legislator  in  an  area  of  Community  competence  benefit  from  the  same
freedom to adopt secondary legislation with respect to non-resident children.

In the light of these considerations, the Commission considers that the only rational
interpretation  of  Article  52,  as  applied  to  the  Community  context,  is  as  follows:  in

Paragraph  1  is  not  relevant  for  present  purposes,  as  it  refers  to  agreements  existing  (or  legislation
adopted) before the conclusion of the Convention (that is, before 1996).

4

                                                
respect of children who are not resident in a Member State and who are resident in
another  Contracting  State,  the  rules  of  the  Convention  take  precedence  over
Community rules (if any).

17. 

To dispel any doubts as to this interpretation and thus enhance  legal certainty, it is
proposed that Member States make a declaration when signing the Convention aimed
at clarifying the limits placed on Community action when applying Article 52 to the
Community context.

Safeguarding the application of Community rules on recognition and enforcement

18. 

19. 

20. 

21. 

6 

7 

8 

As discussed, Article 52 should properly be read to give precedence to the rules of
the Convention over Community rules in respect of children who are not resident in a
Member State but who are resident in another Contracting State.6

Admittedly, with respect to rules on jurisdiction, this approach is justified as part of
the  balance  that  had  to  be  struck  when  attributing  jurisdiction  among  Contracting
States.  It  is  in  fact  an  essential  function  of  the  Convention  to  attribute  jurisdiction
among Contracting States. There can therefore be no question as to the rules of the
Convention  on  jurisdiction  taking  precedence  over  Community  rules  in  respect  of
children  who  are  not  resident  in  a  Member  State  but  who  are  resident  in  another
Contracting State.

As  regards  the  rules  on  recognition  and  enforcement,  a  number  of  different
considerations are at play.

The application of the rules of the Convention, rather than Community rules, for the
recognition  and  enforcement  of  a  decision  taken  in  one  Member  State  in  another
Member  State,  even  if  only  in  a  limited  number  of  cases,  would  frustrate  the  full
implementation  of  the  program  of  mutual  recognition.7  The  very  essence  of  the
program of mutual  recognition  is  that  all  decisions  taken  in  one  Member  State  can
freely circulate within the Community under a common set of rules, which are to be
progressively  simplified  until  exequatur  is  abolished.  It  is  worth  noting  that,  under
existing  Community 
these  common  rules  on  recognition  and
enforcement apply irrespective of whether the rules on jurisdiction are established at
Community level or by reference to national law.8 It is therefore imperative to find a

instruments, 

Similarly,  the  Community  legislator  recognizes  in  Article  37  of  Council  Regulation  (EC)  1347/2000
that  the  Regulation  takes  precedence  over  the  Convention  “provided  that  the  child  concerned  is
habitually resident in a Member State”.
For example, a Member State Party to the Convention could take a decision on parental responsibility
over a child that is habitually resident in another Contracting Party that is not a Member State, on the
basis of Article 10 of the Convention (jurisdiction of the divorce court) or Articles 8 and 9 (transfer of a
case to a court better placed to hear it). Given the habitual residence of the child in another Contracting
State,  this  decision  taken  in  one  Member  State  would  then  be  recognised  and  enforced  in  another
Member State not under the Community rules but under the rules of the Convention. This would mean
that  the  decision  would  be  subject  to  review  as  to  its  jurisdictional  basis  under  the  rules  of  the
Convention,  whereas  the  application  of  the  regime  of  Regulation  (EC)  No  1347/2000  would  have
precluded such review. And the discrepancies between the two regimes would be further exacerbated in
the  future  when  exequatur  will  have  been  abolished  between  Member  States,  while  some  decisions
would still remain subject to the regime set out in the Convention.
For  instance,  the  rules  on  recognition  and  enforcement  of  Council  Regulation  (EC)  1347/2000  also
apply where jurisdiction is established under national law pursuant to Article 8. Similarly, the rules on
recognition  and  enforcement  of  Council  Regulation  (EC)  44/2001  apply  where  the  defendant  is  not

5

                                                
22. 

23. 

solution  that  would  allow  the  circulation  within  the  Community  under  Community
rules on recognition and enforcement of all decisions taken under the Convention in
a Member State. This is particularly important in view of the abolition of exequatur.

Such a solution may not be difficult to tailor, as it is fully in line with the objective of
the  Convention  to  facilitate  recognition  and  enforcement  of  judgments,  while  the
grounds  for  non-recognition  set  out  there  in  are  not  mandatory.9  Hence  the
application of Community rules that further limit the grounds of non-recognition and
simplify  enforcement  between  Member  States  would  make  a  contribution  to  the
objectives of the Convention.

In  the  light  of  the  above  considerations,  the  Community  should  open  negotiations
within  the  Hague  Conference  as  soon  as  possible  for  a  two-fold  purpose.  First,  to
safeguard the application of Community rules in all cases involving the recognition
and  enforcement  of  decisions  rendered  in  one  Member  State  in  another  Member
State.  Second,  to  allow  for  Community  accession,  not  only  because  this  is  the
institutionally sound solution but also for purposes of demonstrating to the rest of the
world the value that the Community attaches to this Convention.

Proposal of the Commission

24. 

25. 

26. 

27. 

9 

The Commission has taken note of the favorable opinion expressed by the Member
States that negotiated the Convention as to its value in the protection of children, and
their urging for Community action that would allow its entry into force without any
delay.

Clearly, the final objective is for the Community to accede to the Convention. To this
end, the Community will open negotiations as soon as possible for accession and for
safeguarding  the  development  of  a  common  judicial  area,  which  requires  that  all
decisions  taken  in  one  Member  State  can  circulate  within  the  Community  under  a
common set of rules.

In  the  meantime,  given  that  the  Convention  today  allows  accession  only  by  States,
the  Commission  is  hereby  proposing  that  the  Council  authorize  the  Member  States
bound by Community rules in this area to sign the Convention in the interest of the
Community.

This  derogation  to  the  normal  way  of  exercising  Community  competence  under
Article 300 of the Treaty establishing the European Community can be exceptionally
justified on the basis of the value of the Convention for the protection of children and
the need to ensure that it enters into force as soon as possible. This decision should
nonetheless  remain  exceptional,  and  not  constitute  in  any  way  a  precedent  for  the
future.

domiciled in a  Member  State  and  jurisdiction  is  established  under  national  law  pursuant  to  Article  4.
Similarly,  a  primary  consideration  in  on-ongoing  negotiations  on  international  Conventions  is  to
safeguard  as  between  Member  States  the  application  of  Community  rules  on  recognition  and
enforcement by means of a disconnection clause.
Article 23 of the Convention provides for automatic recognition and sets out a number of grounds on
which recognition may be refused.  Article 26 requires Contracting States to apply a simple and rapid
procedure to the declaration of enforceability or registration, which may  only be refused on the same
grounds.

6

                                                                                                                                                        
28. 

29. 

30. 

At the same time, Member States should make a declaration at the time of signature
for  the  purpose  of  clarifying  the  limits  placed  by  the  Convention  on  Community
action, as discussed in paragraphs 12-17 above.

The  present  decision  will  thus  allow  Member  States  to  make  all  necessary
preparations for ratification without any further delay. In addition, arrangements for
joint signature may be envisaged for the purpose of signaling to the rest of the world
the  value  that  the  Community  attaches  to  the  Convention.  This  decision  will  be
followed by another decision for the ratification of the Convention.

In accordance with the Protocol on the position of Denmark annexed to the Treaty on
European Union and to the Treaty establishing the European Community, Denmark
is  not  bound  by  Regulation  1347/2000  nor  subject  to  its  application.  As  a  result,
Denmark is free to decide whether to approve the 1996 Hague Convention. However,
the  duty  of  cooperation  enshrined  in  Article  10  of  the  Treaty  establishing  the
European Community translates into a duty to  consult on this matter with the other
Member States in the Council.

7

Proposal for a

COUNCIL DECISION

authorizing the Member States to sign in the interest of the European Community the
Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-
operation in respect of Parental Responsibility and Measures for the Protection of
Children (the 1996 Hague Convention)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Articles
61 point c), 67 paragraph 1 and Article 300 thereof,

Having regard to the proposal from the Commission10,

Whereas:

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

(7) 

The European Community is working towards the establishment of a common judicial
area based on the principle of mutual recognition of judicial decisions.

The Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-
operation  in  respect  of  Parental  Responsibility  and  Measures  for  the  Protection  of
Children concluded on 19 October 1996 on the occasion of the Hague Conference on
private international law makes a valuable contribution to the protection of children at
the international level, and is therefore desirable that its provisions be applied as soon
as possible.

Competence  to  approve  the  Convention  lies  partly  with  the  Community  and  partly
with the Member States.

The Convention does not allow for accession by the Community.

For the purpose of safeguarding the development of a common judicial area within the
Community,  the  limits  placed  by  the  Convention  on  Community  action  must  be
clarified.

This  decision  will  be  followed  by  another  decision  to  deal  with  the  issue  of
ratification.

The Community shall seek, as soon as possible, to negotiate a protocol for accession
and  for  safeguarding  the  application  of  Community  rules  on  recognition  and
enforcement within the Community.

10 

OJ C , , p. .

8

                                                
HAS ADOPTED THIS DECISION:

Article 1

The  Council  hereby  authorizes  the  Member  States  to  sign  the  Convention  on  Jurisdiction,
Applicable  Law,  Recognition,  Enforcement  and  Co-operation  in  respect  of  Parental
Responsibility  and  Measures  for  the  Protection  of  Children,  concluded  on  19  October  1996
subject  to  making  the  declaration  in  the  Annex  to  the  present  Decision  and  subject  to  its
conclusion at a later date.

Article 2

This Decision is addressed to the Member States, except Denmark.

Done at Brussels,

For the Council
The President

9

ANNEX

Declaration

When signing the Convention, the Member States shall make the following declaration:

“The Member States of the European Community have been authorized in the interest of
the  Community  to  express  their  consent  to  be  bound  by  the  provisions  of  the  Convention
that fall under the competence of the Community. As a result, in conformity with Article 52
of the Convention, the Convention shall take precedence over Community rules in respect
of  children  who  are  not  habitually  resident  in  a  Member  State  and  who  are  habitually
resident in another Contracting State.

As soon as possible, the necessary steps will be taken to open negotiations for a protocol to
the Convention that would allow for the accession of the Community and would safeguard
the  application  of  Community  rules  for  the  recognition  and  enforcement  of  a  decision
taken in one Member State in another Member State.

For purposes of this declaration, the term ‘Member States’ refers to the Member States of
the  European  Community  bound  by  common  rules  in  the  areas  covered  by  the
Convention.”

10