Proposal for a Council Regulation on jurisdiction and the recognition and enforcement of judgments in matters of parental responsibility (COM(2001) 505 final — 2001/0204(CNS))
Date: 2001-11-27
Institutions: European Commission
Subjects: EU Member State, application of EU law, child, custody, divorced person, family law, parental responsibility

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Proposal

for a Council Regulation on jurisdiction and the recognition and enforcement of

judgments in matters of parental responsibility

(2001/C 332 E/11)

COM(2001) 505 final (cid:151) 2001/0204(CNS)

(Submitted by the Commission on 6 September 2001)

THE COUNCIL OF THE EUROPEAN UNION,

the Charter of Fundamental Rights of
Union.

the European

Having regard to the Treaty establishing the European
Community, and in particular Article 61(c) and Article 67(1)
thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament,

Having regard to the opinion of
Committee,

the Economic and Social

Whereas:

set

(1) The European Community has

freedom, security and justice,

the objective of
creating an area of
in
which the free movement of persons is ensured. To this
end, the Community is to adopt, among others, measures
in the field of judicial cooperation in civil matters that are
necessary for
the internal
market.

functioning of

the proper

(2) The Tampere European Council has

endorsed the
principle of mutual recognition of judicial decisions as
the cornerstone for the creation of a genuine judicial area.

automatic

(3) Council Regulation (EC) No 1347/2000 sets out rules on
simplified
jurisdiction,
judgments in matrimonial matters and
enforcement of
matters of parental
the children of
both spouses rendered on the occasion of the matrimonial
proceedings.

responsibility for

recognition

and

(4) On 30 November 2000 the Council and the Commission
adopted a programme for the implementation of
the
principle of mutual recognition of decisions in civil and
commercial matters. This programme includes at its first
the scope of Regulation (EC)
stage the extension of
No 1347/2000 coupled with a specific project for the
abolition of exequatur for rights of access.

(5) This Regulation respects

the fundamental

rights and
observes the principles recognised in particular by the
Charter of Fundamental Rights of the European Union.
In particular, it seeks to ensure full respect for the funda-
mental rights of the child as recognised in Article 24 of

(6) In order to ensure equality for all children, this Regulation
including
covers all decisions on parental responsibility,
rights of access and excluding maintenance obligations;
the latter are covered by Regulation (EC) No 44/2001.

(7) The grounds of jurisdiction accepted in this Regulation
are shaped in the light of the best interests of the child.
This means that jurisdiction should lie in the first place
with the Member State of the child’s habitual residence,
except for certain cases of a change in the child’s habitual
residence or pursuant
to an agreement between the
holders of parental responsibility.

the courts of

(8) In particular in cases of a child’s wrongful removal or
retention,
the Member State where the
child has been removed or is retained should be able to
take the necessary measures to protect the child, but then
refer the case to the courts having jurisdiction for a
decision on the substance.

(9) The rules on jurisdiction should not preclude measures in
the Member State where the child is present
for the
purpose of protecting the child in urgent cases, or orga-
nising the exercise of parental responsibility. However, the
courts of the Member State having jurisdiction as to the
say,
should have the final
substance of
including the possibility to overrule such measures.

the matter

(10) Decisions are recognised and enforced in accordance with
the regime set out in Regulation (EC) No 1347/2000.

(11) Cooperation between central authorities is vital

in this
context both as a general matter and in specific cases,
including for purposes of promoting the
amicable
resolution of family disputes.

(12) In accordance with Article 2 of Council Decision
1999/468/EC of 28 June 1999 laying down the
implementing powers
procedures
conferred on the Commission (1), measures
the
implementation of this Regulation should be adopted by
use of the advisory procedure provided for in Article 3 of
that Decision.

the exercise of

for

for

(1) OJ L 184, 17.7.1999, p. 23.

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(13) In accordance with the principles of subsidiarity and
proportionality as set out in Article 5 of the Treaty estab-
lishing the European Community, the objectives of this
Regulation cannot be
the
Member States and can therefore be better achieved by
the Community. This Regulation does not go beyond
what is necessary to achieve those objectives.

achieved by

sufficiently

(14) [The United Kingdom and Ireland,

establishing

in accordance with
Articles 1 and 2 of the Protocol on the position of the
United Kingdom and Ireland annexed to the Treaty on
the Treaty
European Union and
the
European Community,
are not participating in the
this Regulation, and are therefore not
adoption of
bound by it nor subject to its application.]/[The United
Kingdom and Ireland, in accordance with Article 3 of the
Protocol on the position of
the United Kingdom and
Ireland annexed to the Treaty on European Union and
the Treaty establishing the European Community, have
given notice of their wish to take part in the adoption
and application of this Regulation.]

(15) Denmark,

in accordance with Articles 1 and 2 of the
Protocol on the position of Denmark annexed to the
Treaty on European Union and the Treaty establishing
the European Community,
is not participating in the
adoption of this Regulation, and is therefore not bound
by it nor subject to its application,

HAS ADOPTED THIS REGULATION:

CHAPTER I

SCOPE AND DEFINITIONS

Article 1

Scope

This Regulation shall apply to all civil proceedings

1.
relating to parental responsibility.

Other proceedings officially recognised in a Member State
2.
shall be regarded as equivalent to judicial proceedings. The
term (cid:145)court(cid:146) shall cover all the authorities with jurisdiction in
these matters in the Member States.

3.
In this Regulation, the term (cid:145)Member State(cid:146) shall mean all
Member States with the exception of Denmark, [Ireland and
the United Kingdom].

Article 2

Holder of parental responsibility

For purposes of this Regulation, the term (cid:145)holder of parental
responsibility(cid:146) shall mean any natural or legal person having
parental
responsibility over a child by judgment or by
operation of law.

CHAPTER II

JURISDICTION

S e c t i o n I

Article 3

General jurisdiction

Without prejudice to Articles 4, 5 and 6, the courts of a
Member State shall have jurisdiction in matters of parental
responsibility over a child who is habitually resident in that
Member State at the time the court is seized.

Article 4

Continuing jurisdiction of the Member State
of the last judgment

The courts of the Member State where the last judgment on
parental responsibility over a child was issued in conformity
with Articles 3-8 of this Regulation shall continue to have
jurisdiction where:

(a) the child has resided in the State of his or her habitual
residence for a period of less than six months at the time
the court is seized; and

(b) one of the holders of parental responsibility is habitually
resident in the Member State of the last judgment; unless

(c)

the child is habitually resident in another Member State,
and the holder of parental responsibility referred to in
subparagraph (b) has accepted the jurisdiction of
the
courts of the Member State of the child’s habitual residence.

Article 5

Child abduction

1.
The courts with jurisdiction within the meaning of
Article 3 shall exercise their jurisdiction in conformity with
the Hague Convention of 25 October 1980 on the Civil
Aspects of International Child Abduction.

Notwithstanding paragraph 1,

in case of a wrongful
2.
removal or retention of a child, the courts of the Member
State in which the child was habitually resident immediately
before the removal or retention shall continue to have juris-
diction until the child has acquired a habitual residence in
another State, and

(a) each holder of parental responsibility has acquiesced in the

removal or retention; or

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(b) the child has resided in that other State for a period of at
least one year after the holder of parental responsibility has
or should have had knowledge of the whereabouts of the
child, no request for return has been lodged within that
settled in his or her new
period, and the child is
environment.

Article 8

Residual jurisdiction

Where no court of a Member State has jurisdiction pursuant to
Articles 3-7, jurisdiction shall be determined, in each Member
State, by the laws of that State.

Notwithstanding the exceptions

3.
to the obligation to
return the child provided in the Hague Convention of
25 October 1980 on the Civil Aspects of International Child
Abduction, in case of wrongful removal or retention of a child,
and on the basis of an application by a holder of parental
responsibility or by a central authority,
the
Member State to which the child has been removed or is
retained shall order the immediate return of the child to the
Member State that continues to have jurisdiction pursuant to
paragraph 2, without prejudice to any provisional measures
under Article 9 they may consider necessary.

the courts of

4.
A child’s
wrongful where:

removal or

retention shall be considered

Article 9

Jurisdiction to take provisional measures
to protect the child

In urgent cases, the provisions of this Regulation shall not
1.
the courts of a Member State from taking such
prevent
in that
provisional measures
Member State as may be available under the law of
that
Member State, even if, under this Regulation, the court of
another Member State has jurisdiction as to the substance of
the matter.

to protect a child present

(a)

is in breach of rights of parental responsibility by
it
judgment or by operation of
law under the law of the
Member State where the child was habitually resident
immediately before the removal or retention; and

The courts of

the Member State where the child is
2.
present shall prescribe a time period during which the courts
of a Member State having jurisdiction as to the substance of
the matter must be seized; otherwise, the measures shall cease
to apply. This time period shall not exceed one month.

(b) at

the time of removal or retention those rights were
actually exercised, either jointly or alone, or would have
been so exercised but for the removal or retention.

For the purposes of the preceding paragraph, a court

3.
shall be deemed to be seized:

Article 6

Prorogation of jurisdiction

The courts of a Member State shall have jurisdiction

1.
where:

(a) Article 3, paragraph 2 of Council Regulation (EC)

No 1347/2000 applies; or

(b) jurisdiction has been accepted by all holders of parental
responsibility, the child has a substantial connection with
that Member State, and jurisdiction is in the best interests
of the child.

2.
the
For purposes of paragraph 1, subparagraph (b),
holders of parental responsibility shall be deemed to have
accepted the court’s jurisdiction if
they appear before that
court, unless appearance was entered for the sole purpose of
contesting the court’s jurisdiction.

Article 7

Jurisdiction based on the child’s presence

Where a child’s habitual residence cannot be established and no
court of a Member State has jurisdiction pursuant to Articles
3-6, the courts of the Member State where the child is present
shall have jurisdiction in matters of parental responsibility over
the child.

(a) at the time when the document instituting the proceedings
or an equivalent document
is lodged with the court,
provided that the applicant has not subsequently failed to
take the steps he was required to take to have service
effected on the respondent; or

(b) if the document has to be served before being lodged with
the court, at the time when it is received by the authority
responsible for service, provided that the applicant has not
subsequently failed to take the steps he was required to take
to have the document lodged with the court.

4.
These measures shall cease to apply when the courts of a
Member State having jurisdiction as to the substance of the
matter issue a judgment pursuant to paragraph 2.

Article 10

Jurisdiction to organise the exercise of
parental responsibility

1.
The provisions of this Regulation shall not prevent the
courts of the Member State where parental responsibility is
from
exercised or enforcement of a judgment
having jurisdiction solely for the purpose of making practical
arrangements for organising the exercise of parental responsi-
bility, if the necessary arrangements have not been made in the
judgment of the Member State having jurisdiction as to the
substance of the matter.

sought

is

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Under no circumstances may a

2.
substance of the matter be issued.

judgment on the

These practical

to apply
arrangements
3.
pursuant to a later judgment by the courts of the Member
State having jurisdiction as to the substance of the matter.

cease

shall

4.
For purposes of this Article, the central authority of the
Member State where parental responsibility is exercised or
enforcement of a judgment is sought, designated pursuant to
Article 16, shall cooperate closely with the central authority of
the Member State having jurisdiction as to the substance of the
matter.

S e c t i o n I I

Article 11

Examination as to jurisdiction

Where a court of a Member State is seized of a case over which
it has no jurisdiction under this Regulation and over which a
court of another Member State has jurisdiction by virtue of this
Regulation, it shall declare of its own motion that it has no
jurisdiction.

Article 13

Transfer to a court better placed to hear the case

1.
On the basis of an application by a holder of parental
responsibility, the courts of a Member State having jurisdiction
as to the substance of the matter may, in exceptional circum-
stances where this is in the best interests of the child, transfer
the case to the courts of another Member State of the former
habitual residence of the child or of the habitual residence of a
holder of parental responsibility.

2.
To this end, they shall stay the proceedings and prescribe
a time period during which the courts of that Member State
must be seized.

The courts of that Member State may, where this is in the
3.
best interests of the child, accept jurisdiction during the time
period set in paragraph 2. In this case, the court first seized
shall decline jurisdiction.

4.
The courts shall cooperate closely for the purpose of
facilitating the transfer and for exchanging views on the case,
either directly or through the central authorities.

Article 14

Lis pendens

Article 12

Examination as to admissibility

1. Where a respondent habitually resident in a State other
than the Member State where the action was brought does not
enter an appearance, the court with jurisdiction shall stay the
proceedings so long as it is not shown that the respondent has
been able to receive the document instituting the proceedings
or an equivalent document in sufficient time to enable him to
arrange for his defense, or that all necessary steps have been
taken to this end.

1. Where proceedings involving matters of parental respon-
sibility over the same child are brought before courts of
different Member States, the court second seized shall of its
own motion stay its proceedings until such time as the juris-
diction of the court first seized is established.

2. Where the jurisdiction of the court first seized is estab-
lished,
the court second seized shall decline jurisdiction in
favour of that court. In that case, the party who brought the
relevant action before the court second seized may bring that
action before the court first seized.

2.
Article 19 of Council Regulation (EC) No 1348/2000 of
29 May 2000 on the service in the Member States of judicial
and extrajudicial documents in civil or commercial matters,
shall apply instead of the provisions of paragraph 1 of this
instituting the proceedings or an
Article if
the document
equivalent document had to be
transmitted from one
Member State to another pursuant to that Regulation.

3. Where
the provisions of Council Regulation (EC)
No 1348/2000 are not applicable, Article 15 of the Hague
Convention of 15 November 1965 on the service abroad of
judicial and extrajudicial documents in civil or commercial
matters shall apply if the document instituting the proceedings
or an equivalent document had to be transmitted abroad
pursuant to that Convention.

3.

A court shall be deemed to be seized:

(a) at the time when the document instituting the proceedings
or an equivalent document
is lodged with the court,
provided that the applicant has not subsequently failed to
take the steps he was required to take to have service
effected on the respondent; or

(b) if the document has to be served before being lodged with
the court, at the time when it is received by the authority
responsible for service, provided that the applicant has not
subsequently failed to take the steps he was required to take
to have the document lodged with the court.

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CHAPTER III

RECOGNITION AND ENFORCEMENT

(b) take action to support the enforcement of decisions on
their territory, including decisions ordering the return of
the child pursuant to Article 5, paragraph 3;

Article 15

1.
A judgment given in a Member State shall be recognised
and enforced in the other Member States in accordance with
the relevant provisions in Chapter
III of Regulation (EC)
No 1347/2000.

Annexes I-III of Regulation (EC) No 1347/2000 shall be

2.
completed pursuant to Article 22 of this Regulation.

(c)

take the measures of protection they consider necessary,
where these measures cannot be taken in the Member
State having jurisdiction, or initiate proceedings to this end;

(d) recommend to the authority of the Member State having
to take the
to

jurisdiction or where the child is present
measures of protection they consider necessary or
initiate proceedings to this end;

3.
Any amendment to Annex V for purposes of this Regu-
lation shall be adopted in accordance with the procedure set
out in Article 23(2).

(e) promote agreement between holders of parental responsi-
bility through mediation or other means, and organise
cross-border cooperation to this end.

CHAPTER IV

COOPERATION BETWEEN CENTRAL AUTHORITIES

Article 16

Designation

Each Member State shall designate a central authority to

1.
assist with the application of the Regulation.

2.
In addition to the central authority designated pursuant
to paragraph 1, a Member State where two or more systems of
law or sets of rules concerning matters governed by this Regu-
lation apply in different territorial units may designate one
authority for each territorial unit and specify their territorial
competence. In these cases, communications may be sent either
directly to the territorially competent authority, or to the
central authority, which shall be responsible for forwarding
them to the territorially competent authority and informing
the sender thereof.

Article 17

Functions

The central authorities shall establish an information
1.
laws and procedures and take measures
system on national
for
this Regulation and
application of
the
improving
strengthening their cooperation, using the European Judicial
Network in civil and commercial matters for this purpose.

2.
The central authorities shall cooperate on specific cases
for the purpose of ensuring the effective exercise of rights of
parental
responsibility over a child. To this end, and in
accordance with their laws, they shall:

(a) exchange information on the situation of the child;

3.
A holder of parental responsibility may submit a request
for assistance to the central authority of the Member State of
his habitual residence, or
the
Member State where the child is habitually resident or
for assistance makes reference to a
present.
the holder of
judgment given pursuant
parental responsibility shall attach the certificate in Annex V
of Regulation (EC) No 1347/2000 to the request.

to the central authority of

to this Regulation,

the request

If

Article 18

Meetings

The Commission shall convene meetings of central authorities,
using the European Judicial Network in civil and commercial
matters.

CHAPTER V

GENERAL, TRANSITIONAL AND FINAL PROVISIONS

Article 19

Relationship with Council Regulation (EC) No 1347/2000

This Regulation shall take precedence over 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.

Article 20

Member States with two or more legal systems

With regard to a Member State in which two or more systems
of law or sets of rules concerning matters governed by this
Regulation apply in different territorial units:

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(a) any reference to habitual residence in that Member State

shall refer to habitual residence in a territorial unit;

(b) any reference to nationality, or in the case of the United
to the territorial unit

Kingdom (cid:145)domicile(cid:146),
designated by the law of that State;

refer

shall

(c) any reference to the authority of a Member State shall refer
to the authority of a territorial unit within that State which
is concerned;

(d) any reference to the rules of the requested Member State
in which

shall refer to the rules of
jurisdiction, recognition or enforcement is invoked.

the territorial unit

Article 21

Transitional provisions

1.
The provisions of this Regulation shall apply only to legal
proceedings instituted, to documents formally drawn up or
registered as authentic instruments and to settlements that
have been approved by a court in the course of proceedings
after its entry into force.

2.
Judgments given after the date of entry into force of this
Regulation in proceedings instituted before that date shall be
recognised and enforced in accordance with the provisions of
Chapter III if jurisdiction was founded on rules which accorded
with those provided for either in Chapter II of this Regulation
or in a convention concluded between the Member State of
origin and the Member State addressed which was in force
when the proceedings were instituted.

Article 22

Lists of central authorities, courts and redress procedures

(a) the names and addresses of the central authorities pursuant
to Article 16, and the technical means and languages
accepted for communications between authorities;

(b) the lists of courts and redress procedures set out
Annexes I to III of Regulation (EC) No 1347/2000.

in

2. Member States shall communicate to the Commission any
changes to this information.

3.
The Commission shall make the information under
paragraph 1(a) publicly available. The Commission shall
publish the information under paragraph 1(b) in the Official
Journal of the European Communities.

Article 23

Committee

The Commission shall be assisted by the committee

1.
instituted by Article 45 of Regulation (EC) No 1347/2000.

2. Where reference is made to this paragraph, the advisory
procedure laid down in Article 3 of Decision 1999/468/EC
shall apply, in compliance with Article 7(3) thereof.

Article 24

Entry into force

This Regulation shall enter into force on the twentieth day
following that of its publication in the Official Journal of the
European Communities.

The Regulation shall apply one year after its publication in the
Official Journal of the European Communities, with the exception
of Article 22, which shall apply on the twentieth day following
that of its publication in the Official Journal of
the European
Communities.

1. Member States shall communicate to the Commission
within three months following the entry into force of this
Regulation:

This Regulation shall be binding in its entirety and directly
applicable in the Member States
in accordance with the
Treaty establishing the European Community.