Proposal for a Council Decision authorising the Member States to ratify, or accede to, 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: 2003-06-17
Institutions: European Commission
Subjects: EU Member State, child protection, cooperation policy, international convention, jurisdiction, matrimonial law, mutual recognition principle, parental responsibility, ratification of an agreement, secondary legislation

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 17.6.2003
COM(2003) 348 final

2003/0127 (CNS)

Proposal for a

COUNCIL DECISION

authorising the Member States to ratify, or accede to, 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 of the present proposal

1.

The  Commission  is  hereby  proposing  that  the  Council  exceptionally  authorise  the
Member  States  to  ratify  or  accede  to  the  Convention  of  19  October  1996  on
Jurisdiction,  Applicable  Law,  Recognition,  Enforcement  and  Co-operation  in
Respect of Parental Responsibility and Measures for the Protection of Children (“the
Convention”).

The development of a common judicial area within the Community

2.

The  European  Community  is  working  towards  the  establishment  of  a  common
judicial  area  based  on  the  principle  of  mutual  recognition  of  judicial  decisions.  To
this end, the Council and the Commission adopted in December 2000 a Programme
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
Programme of mutual recognition, Council Regulation No. 1347/2000 (“the Brussels
II Regulation”) currently provides for the mutual recognition of decisions on parental
responsibility that are issued on the occasion of matrimonial proceedings and which
concern  children  common  to  both  spouses.2  The  Commission  presented  on  3  May
2002  a  Proposal  for  a  Regulation  concerning  jurisdiction  and  the  recognition  and
enforcement  of  judgments  in  matrimonial  matters  and  in  matters  of  parental
responsibility.3 The draft Regulation extends the principle of mutual recognition to all
decisions  on  parental  responsibility  and  will,  once  adopted,  repeal  and  replace
Council Regulation No. 1347/2000.

The 1996 Hague Convention

3.

1

2

3

The  Convention  was  concluded  on  19  October  1996  within  the  framework  of  the
Hague Conference of Private International Law and entered into force on 1 January
2002.  It contains rules on  jurisdiction, applicable law, recognition  and  enforcement
of  measures  on  parental  responsibility  and  protection  of  children.  The  fact  that  the
scope of application of the  Convention is very  similar to  that of the  future  Council
Regulation on matters of parental responsibility will facilitate the parallel application
of the two instruments.

Programme of measures for implementation of the principle of mutual recognition of decisions in civil
and commercial matters, OJ 2001 C 12 of 15.1.2001, p. 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 L160 of 30.6.2000, p. 19.
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, 3.5.2002,
COM(2002) 222 final.

2

                                                
4.

The  Community is not a  member  of the  Hague Conference  for the  time being,  and
did  not  participate  in  the  negotiations  for  the  Convention.  The  Convention  only
allows  for  accession  by  States.  The  Member  States  that  negotiated  the  Convention
considered that it 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  this  area.  The  Member  States
therefore urged for Community action that would allow its entry into force without
delay.

Member States’ signature and ratification of the Convention in the interest of the Community

5.

6.

7.

8.

In  accordance  with  the  AETR  case  law4  of  the  Court  of  Justice  on  external
competence,  Member  States  are  no  longer  free  to  conclude  on  their  own  the
Convention, since its provisions on jurisdiction, recognition and  enforcement  affect
Community  rules,  as  currently  laid  down  in  Council  Regulation  No.  1347/2000.
Moreover,  the  Convention  deals  with  matters  covered  by  the  future  Regulation  on
matters  of  parental  responsibility.  It  follows  that  competence  to  conclude  the
Convention is shared between the Community and the Member States.

The Commission presented on 20 November 2001 a proposal for a Council Decision
to  authorise  Member  States  bound  by  Community  rules  in  this  area  to  sign  the
Convention in the interest of the Community. The proposal stated that the derogation
to the  normal ways of exercising  Community  competence  under  Article  300  of  the
Treaty could be exceptionally justified in the specific case on the basis of the value
of the Convention for the protection of children and the need to ensure its swift entry
into force.

On 19 December 2002, the Council decided to authorise Member States to sign the
Convention  in  the  interest  of  the  Community.  The  decision  was  part  of  an  overall
political  agreement  on  the  issue  of  child  abduction  in  the  context  of  the  future
Council  Regulation  on  matters  of  parental  responsibility.  The  Council  and  the
Commission  agreed  at  this  occasion  that  the  decision  would  be  followed  by  a
Commission proposal for a Council Decision authorising the Member States to ratify
or to accede to the Convention  in  the  interest  of  the  Community  at  the  appropriate
time, and at the latest within six months from the adoption of the decision authorising
signature.

The creation of a common judicial area based on the principle of mutual recognition
of judgments requires that all judgments issued by the courts in a Member State will
be recognised and enforced in another Member State on the basis of a common set of
rules.  For  this  reason,  Article  2  of  the  Council  Decision  of  19  December  2002
required  the  Member  States  to  make  a  declaration  at  the  time  of  the  signature
stipulating that judgments given in a court of a Member State in respect of a matter
relating  to  the  Convention  shall  be  recognised  and  enforced  in  another  Member
States  by  application  of  the  relevant  internal  rules  of  Community  law.  The  same
declaration shall be made at the time of the conclusion of the Convention.

4

Commission v. Council, Case 22/70, (“AETR”), [1971] ECR 263.

3

                                                
9.

10.

11.

The  Member  States,  with  the  exception  of  the  Netherlands,  signed  the  Convention
jointly in the Hague, Netherlands, on 1 April 2003 . The Netherlands had previously
signed  the  Convention  on  1  September  1997,  i.e.  before  the  entry  into  force  of  the
Treaty  of  Amsterdam.  At  the  time  of  the  signature,  the  Member  States  made  the
declaration mentioned under paragraph 8.

The present decision will allow Member States to ratify or accede to the Convention
in the interest of the Community.

In accordance with the Protocol on the position of Denmark annexed to the Treaty on
the  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 co-operation 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.

4

2003/0127 (CNS)

Proposal for a

COUNCIL DECISION

authorising the Member States to ratify, or accede to, 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),  65,  67  paragraph  1  and  300  paragraph  2,  subparagraph  1  and  paragraph  3,
subparagraph 1 thereof,

Having regard to the proposal from the Commission5,

Having regard to the opinion of the European Parliament6,

Whereas:

(1) 

(2) 

(3) 

5

6

7

8

The  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  within  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.

Certain  articles  of  the  Convention  affect  Community  secondary  legislation  on
jurisdiction  and  the  recognition  and  enforcement  of  judgments,  in  particular  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.7  In  addition,  the  Convention  deals  with
the  future  Council  Regulation  on  matters  of  parental
matters  covered  by 
responsibility.8 The Member States retain their competence in the areas covered by the

OJ L […], […], p. […].
OJ L […], […], p. […].
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 L 160 of 30.6.2000, p. 19.
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)

5

                                                
(4) 

(5) 

(6) 

(7) 

(8) 

Convention  which  do  not  affect  existing  or  future  Community  law.  The  Community
and the Member States thus share competence to conclude the Convention.

Pursuant to the Convention, only sovereign States may be part of it. For that reason,
the Community may not at present ratify or accede to it.

The  Council  should  therefore  authorise  the  Member  States,  by  way  of  exception,  to
ratify  or  accede  to  the  Convention  in  the  interest  of  the  Community,  under  the
conditions set out in this Decision.

This  Decision  follows  the  Council  Decision  of  19  December  2002  authorising  the
Member  States  to  sign  the  Convention  in  the  interest  of  the  Community.  At  this
occasion, the Council and the Commission agreed that the decision would be followed
by a Commission proposal  for  a  Council  Decision  authorising  the  Member  States  to
ratify  or  to  accede  to  the  Convention  in  the  interest  of  the  Community  at  the
appropriate time, and at the latest within six months from the adoption of the decision
authorising signature.

In  order  to  safeguard  the  application  of  Community  rules  on  recognition  and
enforcement within the Community, Article 2 of the Council Decision of 19 December
2002 required the Member States to make the declaration set out in Annex at the time
of the signature of the Convention.

The Member States, with the exception of the Netherlands, signed the Convention in
the Hague on 1 April 2003. The Netherlands had previously signed the Convention on
1  September  1997,  i.e.  before  the  entry  into  force  of  the  Treaty  of  Amsterdam.  The
Member States made at this occasion the declaration set out in Annex.

(9) 

The Member States shall make the declaration set out in Annex also at the time of the
conclusion of the Convention.

(10)  Member  States  shall  simultaneously  ratify  or  accede  to  the  Convention.  Member
States  should  exchange  information  on  the  state  of  their  ratification  procedures  in
order to prepare the deposit of their instruments of ratification of the Convention.

(11)  The United Kingdom and Ireland are taking part in the adoption and application of this

Decision.

(12) 

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,  Denmark  is  not  taking  part  in  the  adoption  of  this  Decision,  and  is  not
bound by it or subject to its application,

No  1347/2000  and  amending  Regulation  (EC)  No  44/2001  in  matters  relating  to  maintenance,
03.5.2002, COM(2002) 222 final.

6

                                                                                                                                                        
HAS DECIDED AS FOLLOWS:

Article 1

1.

2.

3.

The  Council  hereby  authorises  the  Member  States  to  ratify  or  accede  to  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, in the interest of the Community, subject to
the conditions set out in the following Articles.

The text of the Convention is attached to this Decision.

In  this  Decision,  the  term  “Member  State”  shall  mean  all  Member  States  with  the
exception of Denmark.

When ratifying or acceding to the Convention, Member States shall make the declaration set
out in Annex.

Article 2

Article 3

1.

2.

Member States shall take the necessary steps to deposit the instruments of ratification
of,  or  accession  to,  the  Convention  simultaneously  with  the  Ministry  of  Foreign
Affairs of the Kingdom of the Netherlands, before 1 January 2005.

Member States shall agree before 1 July 2004 with the Council and the Commission
on the prospective date of the deposit of the instruments of ratification. On this basis,
the date and modalities of the simultaneous deposit shall be determined.

Done at Brussels, […]

For the Council
The President

7

ANNEX

Declaration to be made by the Member States at the time of the ratification of or
accession to the Convention of 19 October 1996 on Jurisdiction, Applicable Law,
Recognition, Enforcement and Co-operation in respect of Parental Responsibility and
Measures for the Protection of Children

“Articles 23, 26 and 52 of the Convention allow Contracting Parties a degree of flexibility in
order to apply a simple and rapid regime for the recognition and enforcement of judgments.
The Community rules provide for a system of recognition and enforcement which is at least
as favourable as the rules laid down in the Convention. Accordingly, a  judgment  given in a
Court  of  a  Member  State  of  the  European  Union,  in  respect  of  a  matter  relating  to  the
Convention shall be recognised and enforced in9 by application of the relevant internal rules
of Community law10.”

9

10

Member State making the declaration.
Regulation (EC) No 1347/2000 plays a special role in this field  since it relates to jurisdiction and the
recognition  and  enforcement  of  judgments  in  matrimonial  matters  and  in  matters  of  parental
responsibility of both spouses.

8