Opinion of the Economic and Social Committee on the "Proposal for a Council Regulation concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility repealing Regulation (EC) No 1347/2000 and amending Regulation (EC) No 44/2001 in matters relating to maintenance" (COM(2002) 222 final — 2002/0110 (CNS))
Date: 2002-09-18
Institutions: European Economic and Social Committee
Subjects: judicial cooperation, jurisdiction, matrimonial law, mutual recognition principle, parental responsibility

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more essential — and so will
coordination.

the need for good policy

9.1.9.
future work on education and employment policies.

The EESC will give these issues high priority in its

Brussels, 18 September 2002.

The President

of the Economic and Social Committee

Göke FRERICHS

Opinion of the Economic and Social Committee on the ‘Proposal for a Council Regulation
concerning jurisdiction and the recognition and enforcement of judgments in matrimonial
matters and in matters of parental responsibility repealing Regulation (EC) No 1347/2000 and
amending Regulation (EC) No 44/2001 in matters relating to maintenance’

(COM(2002) 222 final — 2002/0110 (CNS))

(2003/C 61/15)

On 28 May 2002, the Council decided to consult the Economic and Social Committee, under Article 262
of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the
Committee’s work on the subject, adopted its opinion on 4 September 2002. The rapporteur was Mrs
Carroll, the co-rapporteurs were Mr Retureau and Mr Burnel.

At its 393rd Plenary Session (meeting of 18 September 2002), the Economic and Social Committee
adopted the following opinion by 129 votes in favour and two votes against with three abstentions.

1. Background to the proposal

1.1.
In September, 2001, the Commission put forward a
Proposal for a Council Regulation on jurisdiction and the
recognition and enforcement of
judgments in matters of
parental responsibility (1). The Committee gave its opinion on
in January 2002 (2). This was not the only
this proposal
Community instrument in the area of jurisdiction and recog-
nition and enforcement in relation to matrimonial matters
the
and parental responsibility for children. Accordingly,
Committee urged the Commission to consolidate all such
legislation into one instrument. The Council was already
considering this matter and the current integrated proposal is
the result.

1.2.
Given the increase in movement within the EU, there
has been a concomitant increase in the number of marital and
other family relationships between citizens and residents of
EU Member States. Unfortunately, this has meant an increase

( 1) COM(2001) 505 final.
( 2) OJ C 80, 3.4.2002, p. 41.

in the numbers of divorce, annulments and separations
involving citizens of different Member States. Disputes arising
in judicial or administrative proceedings — always difficult —
can be complicated by issues of jurisdiction, with parties to
the proceedings forum shopping or seeking to have judgments
handed down in one Member State overturned in their own
Member State.

1.3.
Disputes relating to access to and/or custody of
children following the divorce or separation give rise to a
limited, but not negligible number of cases of child abduction,
both to other Member States and to third countries by parents
or other relatives. Even where there has been no forceful
abduction, rights of access for a parent may be compromised
by the fears of parents or guardians with custody that, if they
allow a child to leave their own jurisdiction, it will be difficult
or impossible for them to enforce the judgment giving them
custody, if the child fails to return. This is to the detriment of
both the child and the other parent.

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2. Existing legislation — EU instruments

3.

Important extra-EU instruments

2.1.
The Brussels Convention of 27 September 1968 on
jurisdiction and the enforcement of judgments in civil and
commercial matters did not cover issues relating to personal
law, such as matrimonial breakdown and the resultant civil
issues, such as custody of and access to children.

The 1996 Hague Convention (4) covers jurisdiction,
3.1.
recognition and enforcement and cooperation in respect of
parental responsibility and measures for the protection of
children. It is not yet in force.

The Brussels Convention of 28 May 1998 on jurisdic-
2.2.
tion, recognition and enforcement of judgments in matri-
monial matters provided for limited mutual recognition and
enforcement of judgments on parental responsibility and
custody of and access to children. This Convention did not
enter into force, however, and its provisions were, to a large
extent, taken over by Regulation (EC) No 1347/2000.

Council Regulation (EC) No 1347/2000 on jurisdiction
2.3.
and the recognition and enforcement of judgments in matri-
monial matters and in matters of parental responsibility for
children of both spouses is directly applicable in the Member
States and came into force on 1 March, 2001 (1). It does not
apply in Denmark which does not participate in the common
judicial area. The Committee gave its opinion on this Proposal
in October 1999 (2).

2.3.1.
The Committee welcomed the Proposal but felt that
it could have been more ambitious in its scope. In particular it
considered that the Regulation should be extended to include
children of previous marriages and adopted children. Pro-
visional and fall-back arrangements written into the proposal
were felt to allow too much leeway for the application of
national
law. In this regard and in relation to procedural
matters, the Committee recommended more precise wording
of the proposed Regulation. The Committee recommended
that attention should be paid to the European public’s growing
demand for guarantees equivalent to those they hold before
the courts in their own country in all other Member States.

2.4. Maintenance is excluded from the scope of this Pro-
posal. It is already covered by Council Regulation (EC) No 44/
2001 (3), which offers a more advanced system of recognition
and enforcement. This Regulation will remain in force as
a separate instrument, amended as regards jurisdiction by
Article 70 of the current Proposal, to take account of the
provisions of the latter.

( 1) OJ L 160, 30.6.2000.
( 2) Opinion on the Proposal for a Council Regulation on jurisdiction
and the recognition and enforcement of judgments in matrimonial
matters and in matters of parental responsibility for joint children
(OJ 368, 20.12.1999).

( 3) Council Regulation (EC) No 44/2001 on jurisdiction and the
recognition and enforcement of judgments in civil and commercial
matters. OJ 12, 16.1.2001.

3.2.
The Hague Convention on the Civil Aspects of Inter-
national Child Abduction 1980 is in force in all Member
States. It has as its aims the prompt return of children up to
the age of 18 years, wrongfully removed to or retained in any
Contracting State and to ensure that rights of custody and of
access under the law of one Contracting State are effectively
respected in the other Contracting States. The current Proposal
is inspired by the terms of the 1980 Convention, but the
European Court of
in relation to
disputes between citizens of Member States.

interpret it

Justice will

4. A framework for improvement

The current proposal

4.1.
‘aims at the recognition and
enforcement within the Community of decisions in matri-
monial matters and in matters of parental responsibility based
on common rules on jurisdiction’. In this respect, it is following
Article 34 of the Conclusions of the Tampere Council of
October, 1999. The Justice and Home Affairs Council meeting
on 30 November 2000 adopted a programme for the progress-
ive abolition of exequatur in four areas of work: (i) Brussels I;
(ii) Brussels II and family situations arising through relation-
ships other than marriage; (iii) rights in property arising out of
a matrimonial relationship and the property consequences of
the separation of an unmarried couple; and (iv) wills and
succession.

4.2.
An 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 was aimed at
facilitating, through the abolition of exequatur, the exercise of
cross-border rights of access in the case of children of divorced
or separated couples, aged up to 16 years. This initiative is
integrated into the current Proposal.

4.3.
In September 2001, the Commission put forward a
Proposal for a Council Regulation on jurisdiction and the
recognition and enforcement of
judgments in matters of
parental responsibility, on which the Committee gave its
opinion in January, 2002. The Committee was pleased to
note the extent to which its recommendations have been
incorporated into the current Proposal. However,
there
remains the important issue to be dealt with, viz.- non-marital
family situations and, in particular, the children of non-marital
family situations.

(4) The Hague Convention on Jurisdiction, Applicable Law, Recog-
nition, Enforcement and Cooperation in respect of Parental
Responsibility and Measures for the Protection of Children 1996.

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5. Comments on the Proposal

be amended as follows and, in relation to parental responsi-
bility, should be closer to the wording of its 2001 Proposal:

5.1.
The provisions of Regulation (EC) No 1347/2000
which covers matrimonial matters have been taken over
into the new proposal but extended in relation to parental
responsibility by severing the link with matrimonial proceed-
ings. The provisions of the Proposal relating to parental
responsibility are also inspired by the provisions of the 1996
Hague Convention. The Hague Convention on the Civil
Aspects of International Child Abduction, 1980 is already in
force in all Member States. The new Regulation will not be
identical to the 1996 and 1980 Hague Conventions, as it
introduces stricter rules on jurisdiction for intra-EU cases.
The Committee welcomes this broader approach to the
implementation of the Convention.

5.2.
The term ‘matrimonial matters’ covers divorce, legal
separation or marriage annulment by civil proceedings or
other proceedings recognised in a Member State as being
equivalent to judicial proceedings. The Proposal does not cover
measures taken as a result of penal offences committed by
children. ‘Parental responsibility’ means rights and duties given
to a natural or legal person by judgment, by operation of law
or by an agreement having legal effect and relating to the
person or the property of a child. In particular, the term
includes rights of custody and access.

The Committee is pleased to note that the current
5.2.1.
Proposal
is wider and more ambitious in its scope than
Regulation (EC) No 1347/2000. It is also pleased to note that
its scope is no longer limited to issues of parental responsibility
arising before the final judgment or decision has been handed
down in divorce or separation proceedings. In accordance
with the provisions of the French Initiative, ongoing disputes
are now covered.

5.2.2.
The issue of non-marital family situations and dis-
putes arising from them upon separation and, in particular, in
relation to parental responsibility, however, still remain to be
dealt with. The Committee again urges the Commission to put
forward proposals covering non-marital situations, as it did in
its Opinion on the Proposal for Regulation (EC) No 1347/
2000.

— This Regulation shall apply to:

(a)

civil proceedings relating to divorce, legal separation
or marriage annulment;(and)

(b)

all civil proceedings relating to the attribution,
exercise, delegation, restriction or termination of
parental responsibility, whether in connection with
civil proceedings under (a) above or otherwise.

5.2.4.
The Committee welcomes the more precise defi-
nitions in relation to parental responsibility and child abduc-
tion.

5.2.5.
In its Opinion on the parental responsibility Pro-
posal, the Committee urged the Commission to ensure the
child was heard in disputes on access/custody. It is pleased to
note that this aspect has been incorporated into the Proposals
in Article 4 and in particular to note Article 3 of the Proposal
which states the child’s right to maintain on a regular basis a
personal relationship and direct contact with both parents,
unless it is contrary to his/her interests. The Committee would
go further and say that a child has the right to maintain a
personal relationship and direct contact with his wider family,
e.g., brothers and sisters and stepbrothers and sisters, grand-
parents, etc.

5.2.5.1.
The interests of the child are difficult to define but
there is no doubt that they should be paramount. Whilst it can
be sometimes difficult to establish the best interests of a child
by listening to him/her, because of age, immaturity or undue
parental influence, it is always important to seek to establish
the child’s best interest. The opinion of the (often warring)
parents may not always be useful in determining the best
interests of a child, as they may be confusing their own
emotional needs with those of the child. They may also be
using a child as a bargaining counter.

5.2.5.2.
An effort should, therefore, be made by the Com-
mission through cooperation in the European Judicial Network
to coordinate approaches to this question among the judiciary
of the Member States. The Committee would also recommend
to national Governments that they should ensure that judicial
and legal
training encompasses training in dealing with
children’s rights as a part of the web of personal human rights.

5.2.3.
The Committee is concerned at the wording used in
Article 1.1 covering the scope of the Regulation. The wording
is ambiguous and could suggest that all children are covered
by the Regulation. Equally, however, it could suggest that only
children of a married couple or of one of them are covered. In
the interests of clarity and of the widest possible scope for the
Proposal, the Committee recommends that the Article should

5.2.5.3.
Speedy procedures should, however, be the main
aim of this Proposal. The Committee believes that speed is of
the essence in dealing with issues of parental responsibility. A
child’s interest, particularly that of a young child, is not served
by long-drawn-out procedures, during which the child may
lose even the memory of the other parent or guardian.

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5.2.6.
The Committee notes with some concern the wide
range of grounds for decisions on jurisdiction in matrimonial
matters. It is aware that differing legal situations have to be
accommodated but hopes that, in the future, it will be possible
to restrict
the number of grounds, so as to ensure the
maximum clarity and speed of proceedings.

extra-EU abductions. These remain the vast majority of
abductions and the Committee urges the Commission to use
its influence to ensure adherence to this Convention by all
countries and to conclude bilateral agreements with third
countries where possible.

5.2.7.
In relation to jurisdiction in parental responsibility
proceedings (Article 15), the Committee welcomes the fact
that the habitual residence of the child is the normal basis for
decisions on jurisdiction. The limited provisions made for
emergencies and for recent changes of habitual residence of
the child and a holder of parental responsibility, in general,
should be useful. The Committee has, however, some reser-
vations as to the place where property of the child is located
always being a sound reason for transfer of jurisdiction,
even though this is only in exceptional circumstances. It is
concerned that this ground could be abused and urges further
protection for the child in relation to the use of this ground, if
not its deletion from the Proposal.

The Committee feels that the property provision
5.2.7.1.
may be based on a somewhat outdated notion of property
being generally immovable property or else tangible movable
property, where its location may be important. However, a
trust in one Member State may administer a property, movable
or immovable, tangible or intangible (e.g. financial products),
belonging to a child located in another State or having
connection with several other States, including non-Member
States (e.g. financial instruments of one kind or another). There
may be no particular reason why the jurisdiction of the
Member State in which property is located should be chosen
in the vast majority of cases. If the Member States decide to
retain this ground, it should be made absolutely clear that only
issues of property should be concerned and not any other
matters covered by this Proposal.

On the question of grounds for non-recognition of
5.2.8.
judgments (Article 28), the Committee is concerned that the
issue of public policy should be allowed as a valid ground.
This is open to abuse and, in the case of parental responsibility
proceedings, may act in direct contradiction of the spirit of an
otherwise child-centred Proposal. In some jurisdictions, public
policy or constitutional provisions may lay greater emphasis
on parental rights than on parental responsibilities and thus
act to the detriment of the child concerned.

5.2.9.
The Committee is pleased to note that the grounds
of costs have been addressed by the Commission in the current
Proposal, as recommended by it in its Opinion on the 2000
Parental Responsibility Proposal.

The provisions on child abduction take precedence
5.2.10.
over the 1980 Hague Convention, but the Convention remains
in force in the Member States for the purposes of dealing with

5.2.11. Where mediation is a feature of national proceed-
ings, there is always a risk that one party may negotiate in
good faith while the other is using mediation merely to delay
proceedings. This position should be provided for and the
Committee recommends that, where the parties agree to
mediation, time limits shall run from the date on which the
mediation is declared to have failed.

5.2.11.1.
The proposal should specify that Central Auth-
orities may work in specific cases either directly or through
public authorities or other bodies.

5.2.12.
The Commission should work to improve the depth
and quality of cooperation between Central Authorities and
within the European Judicial Network.

6.

Further recommendations

As it noted in paragraph 5.2.2 above, the Committee
6.1.
feels that the Commission and Council should give urgent
consideration to the issues arising from the breakdown of non-
marital relationships and the cross-border aspects of this,
particularly relating to parental responsibility issues.

The Committee appreciates that progress on this issue cannot
be made within the scope of the present Proposal. It considers
the adoption of this Regulation to be an urgent matter and,
therefore, does not propose that it should be extended to
include non-marital relationships. However, in the interests of
the people concerned in the breakdown of non-marital
their
relationships and,
children, the Committee considers that a legal framework at
both national and EU level
is necessary and urges the
Commission to initiate work in this area.

in the interests of

in particular,

6.2.
The Committee notes with interest that France treats
child abduction as a criminal offence. While not wishing
to criminalise marital or ex-marital relations, treating child
abduction as a crime can help in the speedy location of the
child, as police authorities in the Member States are generally
more efficient at locating people than are civil authorities.
The Committee recommends that this approach might be
considered by other Member States, as a means of improving
the speed with which return of the child can be effected to his/
her lawful custodian.

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6.3.
Attribution of parental rights, as well as access and
visiting rights, etc., are covered by the current Proposal.
Adopted children are on the same footing under the Proposal
as are natural children. The Committee understands, however,
that it is not currently the intention to include the actual
adoption procedures within the scope of the Proposal. This
seems somewhat contradictory, as adoption could be con-
sidered as the ultimate ‘attribution ... of parental responsibility’.
The Committee recommends that adoption procedures should
be covered by this Proposal.

6.4. Maintenance remains covered by a separate instrument.
As maintenance is almost invariably a matter of urgency, it

recommends that jurisdiction, recognition and enforcement in
maintenance cases should be on the same footing as the
proposed instrument for recognition and enforcement of
commercial agreements.

6.5.
A significant problem exists within the European
Union (although sometimes emanating from without) of
abandonment of children and abuse of parental authority in
relation to a child. The Committee requests the Commission
to consider this issue, by means of research into the problem
and to take appropriate action suggested by the results, with
the aim of producing child-centred measures.

Brussels, 18 September 2002.

The President

of the Economic and Social Committee

Göke FRERICHS

Opinion of the Economic and Social Committee on ‘Latvia and Lithuania on the road to accession’

(2003/C 61/16)

On 16-17 January 2002 the Economic and Social Committee, acting under Rule 23(3) of its Rules of
Procedure, decided to draw up an opinion on ‘Latvia and Lithuania on the road to accession’.

The Section for External Relations, which was responsible for preparing the Committee’s work on the
subject, adopted its opinion on 5 September 2002. The rapporteur was Mr Westerlund.

At its 393rd Plenary Session (meeting of 18 September 2002), the Economic and Social Committee
adopted unanimously the following opinion.

A. COMMON BACKGROUND

— 1995: both countries sign Europe Agreements with the

EU;

1. The road towards EU accession

— 1995: both countries introduce their applications for

accession;

1.1.

From self-government to referendum

countries;

— 1998: both countries are recognised as candidate

When Latvia and Lithuania gained their independence in 1991,
both countries speedily set their sights on EU membership.
Milestones on the way were:

— 1993: the meeting of the European Council in Copenhag-
en, where it was decided that countries having concluded
a Europe Agreement could become members;

— in March 2000 the actual negotiations started.

Latvia and Lithuania embarked on negotiations after the first
wave of candidate countries. The negotiations have, however,
progressed quickly because substantial efforts have been made
and nothing now lags behind. The Laeken European Council
in December 2001 stated that Latvia and Lithuania were