Proposal for a COUNCIL DECISION on the declaration of acceptance by the Member States, in the interest of the European Union, of the accession of Gabon to the 1980 Hague Convention on the Civil Aspects of International Child Abduction
Date: 2011-12-21
Institutions: European Commission
Subjects: EU relations, Gabon, accession to an agreement, child protection, custody, illegal restraint, parental responsibility, rights of access

EUROPEAN COMMISSION 

Brussels, 21.12.2011 
COM(2011) 904 final 

2011/0441 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the declaration of acceptance by the Member States, in the interest of the European 
Union, of the accession of Gabon to the 1980 Hague Convention on the Civil Aspects of 
International Child Abduction 

 
 
  
 
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

The aim of the Hague Convention of 25 October 1980 on the Civil Aspects of International 
Child  Abduction  (hereafter:  "the  1980  Convention"),  to  date  ratified  by  86  countries, 
including all EU Member States, is to restore the status quo by mean of the prompt return of 
wrongfully  removed  or  retained  children  through  a  system  of  cooperation  among  central 
authorities appointed by its Contracting Parties. 

As the prevention of child abduction is an essential part of the EU policy to promote the rights 
of the child, the European Union is active at international level to improve the application of 
the 1980 Convention and encourages third States to accede it.  

Gabon deposited the accession instrument to the 1980 Convention on 6 December 2010. The 
Convention entered into force in Gabon on 1 March 2011. 

Article  38(4)  of  the  1980  Convention  stipulates  that  the  Convention  applies  between  the 
acceding  country  and  such  Contracting  States  as  will  have  declared  their  acceptance  of  the 
accession.  Therefore,  the  European  Union  has  to  decide  whether  to  accept  the  accession  of 
Gabon, and when affirmative, the Member States, should make the declaration of acceptance 
concerning Gabon's accession in the interest of the European Union. 

As the matter of international child abduction fall into the exclusive external competence of 
the  European  Union,  the  decision  whether  the  Member  States  should  accept  Gabon's 
accession to the 1980 Convention, has to be taken by means of a Council Decision.  

2. 

LEGAL ELEMENTS OF THE PROPOSAL  

In accordance with the jurisprudence1 of the Court of Justice, the matter of international child 
abduction fall into the exclusive external competence of the European Union, because of the 
adoption of internal Union legislation by means of Council Regulation (EC) No 2201/2003 of 
27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments 
in  matrimonial  matters  and  the  matters  of  parental  responsibility  ("the  Brussels  IIa 
Regulation")2,  which  applies  between  Member  States  from  1  March  2005.  The  Regulation 
introduces even stricter rules than the 1980 Hague Convention on parental child abduction, in 
particular  in  Article  11  of  the  Regulation.  It  refers  directly  to  the  Hague  Convention  and 
upholds its principles in European Union law. 

The 1980 Convention was adopted more than 20 years before the Brussels IIa Regulation and 
thus, it does not contain any provisions allowing the accession of International Organisations, 
like  the  European  Union  (the  so-called  REIO  clause).  In  such  situation,  the  Member  States 
have to ratify or accede to the Convention in the interest of the European Union. 

1 

2 

Opinion 1/03 of  the  Court  of  7  February 2006 on  the  competence  of  the  Community  to  conclude  the 
new  Lugano  Convention  on  Jurisdiction  and  the  Recognition  and  Enforcement  of  Judgments  in  Civil 
and Commercial Matters. 
OJ L 338, 23.12.2001.  

EN 

2 

   EN 

 
                                                 
Therefore,  the  Member  States  should  declare,  in  the  interest  of  the  European  Union,  the 
acceptance  regarding  Gabon's  accession  to  the  1980  Hague  Convention.  For  the  sake  of 
coherence  and  uniformity  of  Union  law,  this  declaration  of  acceptance  should  be  made 
simultaneously  by  the  Member  States  within  a  time  frame  established  by  the  Council 
Decision. The Commission proposes that the declaration should be deposited by the Member 
States no later than 2 months after the adoption of the Council Decision. 

It  is  crucial  for  the  practical  application  of  the  1980  Convention  that  a  Contracting  Party 
designates  a  Central  Authority  required  by  its  Article  6  to  discharge  the  duties  which  are 
imposed by the Convention upon such authorities. All Member States have designated Central 
Authorities  under  the  1980  Convention.  To  date,  Gabon  has  not  yet  designated  the  Central 
Authority  that  is  needed  to  assist  the  European  citizens  in  cases  of  wrongful  removal  of 
children to Gabon. Therefore, it is desirable that the declaration of acceptance of the accession 
of Gabon to the 1980 Convention takes effect upon the designation of the Central Authority 
by Gabon. 

Given the fact that the decision regards an international agreement, the applicable legal basis 
is Article 218 of the Treaty on the Functioning of the European Union together with Article 
81 (3). The Council shall act unanimously after consulting the European Parliament. 

3. 

BUDGETARY IMPLICATION  

The proposal has no implication for the European Union budget.  

EN 

3 

   EN 

 
 
2011/0441 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the declaration of acceptance by the Member States, in the interest of the European 
Union, of the accession of Gabon to the 1980 Hague Convention on the Civil Aspects of 
International Child Abduction 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 218 and 81(3) thereof, 

Having regard to the proposal from the European Commission, 

Having regard to the opinion of the European Parliament3,  

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

The  European  Union  has  set  up  as  a  priority  the  protection  and  the  promotion  of 
children's rights, as stated in Article 3 of the Treaty on European Union, and considers 
the prevention of child abduction an essential part of this policy. 

The European Union has adopted Council Regulation (EC) No 2201/2003 concerning 
jurisdiction and the recognition and enforcement of judgments in matrimonial matters 
and the matters of parental responsibility (so-called "Brussels IIa" Regulation), which 
aims  to  protect  children  from  the  harmful  effects  of  their  wrongful  removal  or 
retention and to establish procedures to ensure their prompt return to the State of their 
habitual residence, as well as to secure protection for rights of access and custody. 

The Brussels IIa Regulation complements and reinforces the provisions of the Hague 
Convention of 25 October 1980 on the Civil Aspects of International Child Abduction 
(hereafter:  "the  1980  Convention")  which  establishes,  at  the  international  level,  a 
system of cooperation among central authorities aimed at ensuring the prompt return 
of wrongfully removed or retained children. In particular, Article 11 of the Brussels IIa 
Regulation takes over the rules and principles of the 1980 Convention. 

All Member States of the European Union are Party to the 1980 Convention. 

The  European  Union  encourages  third  States  to  accede  to  the  1980  Convention  and 
supports  its  correct  implementation  by  participating,  inter  alia,  to  the  Special 
Commissions  organized  on  a  regular  basis  by  the  Hague  Conference  on  Private 
International Law.  

3 

OJ C , , p. . 

EN 

4 

   EN 

 
                                                 
(6) 

(7) 

(8) 

(9) 

The European Union stresses that a common legal framework applicable between EU 
Member  States  and  third  countries  may  offer  the  best  solution  of  sensitive  cases  of 
international child abduction cases, where diplomatic channels and mediation fail. 

Gabon  has  deposited  its  instrument  of  accession  to  the  1980  Convention  on  6 
December 2010. The entry into force of the 1980 Convention took place on 1 March 
2011. 

Article 38(4)  of  the 1980  Convention stipulates that the Convention applies between 
the  acceding  country  and  such  Contracting  States  as  will  have  declared  their 
acceptance of the accession. 

Pursuant  to  the  case-law  of  the  Court  of  Justice  of  the  European  Union,  namely  the 
Opinion  1/03  of  7  February  2006  relating  to  the  conclusion  of  the  new  Lugano 
Convention, the provisions of the 1980 Convention affect secondary European Union 
legislation  on  international  child  abduction  and  parental  responsibility,  in  particular 
Council Regulation (EC) No 2201/2003 of 27 November concerning jurisdiction and 
the recognition and enforcement of judgements in matrimonial matters and matters of 
parental  responsibility.  The  matters  dealt  by  the  1980  Convention  fall  therefore  into 
the exclusive external competence of the European Union. 

(10)  Pursuant to the 1980 Convention, only sovereign States may be party to it. Therefore, 
the European Union cannot accede to it, neither deposit its declaration of acceptance 
of the Gabon's accession. 

(11)  Member  States  should  therefore  deposit  their  declaration  of  acceptance  of  Gabon's 

accession in the interest of the European Union. 

(12)  By  declaration,  the  Member  States  should  accept,  in  the  interest  of  the  European 
Union,  Gabon's  accession  in  order  to  make the 1980 Convention  applicable  between 
the European Union and Gabon. It is desirable that its provisions be applied without 
delay,  having  considered  the  valuable  contribution  of  the  1980  Convention  to  the 
protection of the child at the international level. 

(13)  Taking into account that the provisions of the 1980 Convention can be however only 
fully  applied  when  a  Contracting  State  has  designated  a  Central  Authority  under 
Article  6  of  the  1980  Convention,  the  declaration  of  acceptance  should  take  effect 
once Gabon has designated such Central Authority. 

(14) 

In  accordance  with  Articles  1  and  2  of  the  Protocol  on  the  position  of  Denmark, 
Denmark is not taking part in the adoption of this Decision and is not bound by it or 
subject to its application. 

HAS ADOPTED THIS DECISION:  

Article 1 

The  Member  States  of  the  European  Union  shall  deposit  simultaneously,  and  no  later  than 
[ADD DATE: Two months from the adoption] a declaration of acceptance of the accession of 
Gabon  to  the  Hague  Convention  of  25  October  1980  on  the  Civil  Aspects  of  International 
Child Abduction in the interest of the European Union as follows: 

EN 

5 

   EN 

 
"[MEMBER STATE] declares that it accepts the accession of Gabon to the Hague Convention 
of 25 October 1980 on the Civil Aspects of International Child Abduction from the moment of 
designation of a Central Authority requested under Article 6 of the Convention by Gabon. 

The  Convention  will  come  into  force  on  the  first  day  of  the  third  calendar  month  after  the 
designation of a Central Authority by Gabon". 

This Decision shall enter into force on the day following that of its publication in the Official 
Journal of the European Union. 

Article 2 

Article 3 

This Decision is addressed to the Member States. 

Done at Brussels, 

For the Council 
The President 

EN 

6 

   EN