Proposal for a COUNCIL DECISION authorising certain Member States to accept, in the interest of the European Union, the accession of the Republic of Korea to the 1980 Hague Convention on the Civil Aspects of International Child Abduction
Date: 2016-06-07
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: EU Member State, South Korea, accession to an agreement, child, child protection, custody, illegal restraint, international convention, parental responsibility, rights of access

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   EUROPEAN COMMISSION  Brussels, 7.6.2016  COM(2016) 372 final 2016/0173 (NLE)   Proposal for a COUNCIL DECISION authorising certain Member States to accept, in the interest of the European Union, the accession of the Republic of Korea to the 1980 Hague Convention on the Civil Aspects of International Child Abduction   
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives 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  93  countries, 
including all EU Member States, is to restore the status quo by means 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's  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 to it.  

The  Republic  of  Korea  deposited  the  accession  instrument  to  the  1980  Convention  on  13 
December  2012.  The  Convention  entered  into  force  in  the  Republic  of  Korea  on  1st  March 
2013. 

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.  

As the matter of international child abduction falls into the exclusive external competence of 
the European Union, the decision whether to accept the accession of the Republic of Korea 
has to be taken at EU level by means of a Council Decision. Member States should thus make 
the  declaration  of  acceptance  concerning  the  accession  of  the  Republic  of    Korea  in  the 
interest of the European Union. 

The  existence  of  the  EU  exclusive  competence  in  the  matter  of  the  acceptance  of  the 
accession  of  a  third  State  to  the  1980  Convention    was  indeed  confirmed  by  the  Court  of 
Justice of the European Union, which was consulted at the Commission's initiative.  

On 14 October 2014, Opinion 1/13 of the Court of Justice of the European Union confirmed 
that  the  exclusive  competence  of  the  European  Union  encompasses  the  acceptance  of  the 
accession of a third state to the 1980 Hague Convention on the Civil Aspects of International 
Child Abduction.  

The Court insisted in particular on the need for uniformity on the matter at EU level, avoiding 
a  géométrie  variable  among  Member  States.  The  objective  of  this  decision  is  to  make  the 
1980 Convention enter into force between the Republic of Korea and all EU Member States. 

• 

Consistency with existing policy provisions in the policy area 

As  far  as  parental  child  abduction  is  concerned,  the  1980  Hague  Convention  is  the 
international  counterpart  of  Council  Regulation  No  2201/2003  (known  as  the  Brussels  IIa 
Regulation) which is the cornerstone of EU judicial cooperation in matrimonial  matters and 
matters of parental responsibility1.  

1 

OJ L 338, 23.12.2003, p.31. 

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One  of  the  main  objectives  of  the  Regulation  is  to  deter  child  abduction  between  Member 
States by establishing procedures to ensure the child's prompt return to the Member State of 
his/her habitual residence. To this end, the Brussels IIa Regulation incorporates in its Article 
11 the procedure laid down in the 1980 Hague Convention and complements it by clarifying 
some of its aspects, in particular with respect to the hearing of the child, the time period to 
render  a  decision  after  an  application  for  return  has  been  lodged  and  the  grounds  for  not 
returning the child. It also introduces provisions governing conflicting return and non-return 
orders issued in different Member States. 

At  the  international  level,  the  European  Union  supports  the  accession  of  third  States  to  the 
1980 Convention in order for its Member States to rely upon a common legal framework to 
deal with international child abductions.  

On 21 December 2011, the Commission adopted 8 proposals for Council Decisions in order to 
accept  the  accession  to  the  1980  Hague  Convention  on  International  Child  Abduction  of  8 
third  countries  (Morocco,  Singapore,  the  Russian  Federation,  Albania,  Andorra,  the 
Seychelles, Gabon and Armenia)2. 

Between  June  and  December  2015,  7  Decisions,  based  on  the  above-mentioned  proposals, 
have been adopted by the Council of the European Union3. 

The present proposal takes into consideration a third country (the Republic of Korea) which 
has acceded to the 1980 Convention after the adoption of the 2011 proposals. 

• 

Consistency with other Union policies 

Beside the general objective of developing judicial cooperation in civil matters having cross-
border  implications  under  Article  81  TFEU,  the  present  proposal  is  linked  to  the  objective 
enshrined in Article 3 of the Treaty on the European Union to protect the rights of the child. 
The 1980 Hague Convention system is designed to protect the child from the harmful effects 
of a parental abduction and ensure that the child is able to maintain contact with both parents, 
for instance by securing the effective exercise of access rights. 

The proposal is also consistent with the promotion of the use of mediation in the settlement of 
cross-border  family  disputes.  The  Directive  on  certain  aspects  of  mediation  in  civil  and 
commercial  matters4  applies,  among  other  matters,  to  family  law  within  the  common 
European judicial area. The 1980 Hague Convention also encourages the amicable resolution 
of  family  disputes.  One  of  the  Guides  to  Good  Practice  under  the  1980  Hague  Convention 
published  by  the  Hague  Conference  on  Private  International  Law  is  devoted  to  the  use  of 
mediation  for  the  resolution  of  international  family  disputes  concerning  children  which  fall 
within the scope of the Convention.  At the initiative of the European Commission, this Guide 
has been translated in all EU languages other than English and French and also in Arabic to 
support the dialogue with States which have not yet ratified the Convention and help finding 

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COM (2011) 904, 908, 909, 911, 912, 915, 916, 917 adopted on 21/12/2011  
COUNCIL  DECISION  (EU)  2015/1023  of  15.6.2015;  COUNCIL  DECISION  (EU)  2015/1024  of  15 
June  2015;  COUNCIL  DECISION  (EU)  2015/2354  of  10  December  2015;  COUNCIL  DECISION 
(EU) 2015/2355 of 10 December 2015; COUNCIL DECISION (EU) 2015/2356 of 10 December 2015;  
COUNCIL  DECISION  (EU)  2015/2357  of  10  December  2015;;  COUNCIL  DECISION  (EU) 
2015/2358 of 10 December 2015. The decision concerning Gabon is temporarily put on hold pending 
the appointment by Gabon of the Central Authority to be designated under Article 6 of the Convention. 
Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects 
of mediation in civil and commercial matters (OJ L 136 of 24 May 2008, p. 3). 

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concrete  ways  to  tackle  the  problems  posed  by  international  child  abduction  with  non-
ratification countries5. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

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. 

The  United  Kingdom  and  Ireland  are  bound  by  Regulation  (EC)  No  2201/2003  and  are 
therefore taking part in the adoption and application of this Decision. 

In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to 
the Treaty on European Union and to the Treaty on the Functioning of the European Union, 
Denmark is not taking part in the adoption of this Decision and is not bound by it or subject to 
its application. 

• 

Subsidiarity  

The initiative falls under the exclusive competence of the EU according to Article 3 (2) of the 
TFEU  as  confirmed  by  Opinion  1/13  of  the  Court  of  Justice  of  the  European  Union. 
Therefore, the subsidiarity principle does not apply. 

• 

Proportionality 

The present proposal is drafted along the lines of the already adopted Council Decisions on 
the same subject matter and does not go beyond what is necessary to achieve the objective of 
a  coherent  EU  action  in  the  matter  of  international  child  abduction  by  ensuring  that  all  EU 
Member States accept the accession of the Republic of Korea to the 1980 Hague Convention 
within a given time frame. 

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Stakeholder consultations 

In order for the EU to take an informed decision on whether to accept or not the accession of a 
given  third  country  to  the  1980  Convention,  it  is  necessary  to  carry  out  appropriate 
preparatory work. 

During  an  expert  meeting  of  20  January  2015,  the  Commission  and  the  EU  Member  States 
agreed on set of benchmarks to assess the situation of the third country. The questionnaire sets 
out an indicative list of benchmarks in order to help with the assessment of the third country 
which acceded to the Convention. The consultation carried out with the Member States and 
the discussions held at an expert meeting of 15 January 2016 showed that -at this stage- there 
are no objections from the Member States to the acceptance of the accession of the Republic 
of Korea to the 1980 Convention. 

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https://www.hcch.net/en/publications-and-studies/details4/?pid=5568&dtid=3 

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• 

Collection and use of expertise 

The relevant information concerning the level of implementation of the Convention in Korea 
has been collected through several sources. In the first place, information was gathered by the 
EU  Delegation  in  the  Republic  of  Korea,  having  regard,  in  particular  to  the  enacting  of 
implementing  legislation,  the  existence  of  concentrated  jurisdiction  to  deal  with  abduction 
cases, and the possibility for foreigners to accede to legal aid. The results of the inquiry was 
satisfactory, and, even if there are some concerns on the still low level of knowledge of the 
Convention by legal practitioners and the lack of specific enforcement measures, these are not 
such as to prevent the acceptance of the accession of the Republic of Korea. 

Also Member States gathered information on the situation in the  Republic of Korea and the 
outcome was discussed at the expert meeting of 15 January 2016. 

Further information  came  from  the  Permanent  Bureau  of  The  Hague  Conference  on  Private 
International  Law.  The  Republic  of  Korea  completed  both  the  Standard  Questionnaire  for 
newly  acceding  States  and  a  Country  Profile6.  Furthermore,  the  Republic  of  Korea  has 
designated two judges to the International Hague Network of Judges. Finally, judges from the 
Republic  of  Korea  who  have  been  seconded  to  the  Permanent  Bureau  in  the  past  (one-year 
secondment each time) have been instrumental back home on the implementation of the 1980 
Convention. 

• 

Impact assessment 

The present proposal does not have any significant economic, social or environmental impact 
which  would  require  an  impact  assessment  within  the  scope  of  the  European  Commission's 
Better  Regulation  Guidelines.  Similar  to  the  7  Council  Decisions  already  adopted  in  2015 
concerning  the  acceptance  of  the  accession  of  certain  third  States  to  the  1980  Hague 
Convention,  no  impact  assessment  for  this  proposal  is  needed  given  the  nature  of  this 
legislative act.  Indeed, there are not any other options than a Council Decision to accept the 
accession of a third State to the 1980 Convention. 

However,  a  specific  assessment  of  the  situation  of  the  Republic  of  Korea  in  order  to  verify 
whether it is capable to implement the 1980 Convention in a satisfactory way was carried out 
together by the Commission and the Member States along the lines described above. 

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

As the proposal concerns only the authorization to the Member States to accept the accession 
of  the  Republic  of  Korea  to  the  1980  Convention,  the  monitoring  of  its  implementation  is 
limited  to  the  respect  by  the  Member  States  of  the  wording  of  the  declaration  and  the 
timeframe to deposit it and communicate its deposit to the Commission as established in the 
Council Decision.  

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Both available on The Hague Conference on Private International Law website. 

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2016/0173 (NLE) 

Proposal for a 

COUNCIL DECISION 

authorising certain Member States to accept, in the interest of the European Union, the 
accession of the Republic of Korea 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 81(3) in conjunction with Article 218 thereof, 

Having regard to the proposal from the European Commission, 
Having regard to the opinion of the European Parliament7,  

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

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The European Union has set as one of its aims the promotion of the protection of the 
rights of the child, as stated in Article 3 of the Treaty on European Union. Measures 
for  the  protection  of  children  against  wrongful  removal  or  retention  are  an  essential 
part of that policy. 
The  Union  has  adopted  Council  Regulation  (EC)  No  2201/20038  ('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 the protection of rights of access 
and rights of custody. 

Regulation (EC) No 2201/2003 complements and reinforces the Hague Convention of 
25  October  1980  on  the  Civil  Aspects  of  International  Child  Abduction  ('the  1980 
Hague  Convention')  which  establishes,  at  international  level,  a  system  of  obligations 
and cooperation among contracting States and between central authorities and aims to 
ensure the prompt return of wrongfully removed or retained children.  

All Member States of the Union are party to the 1980 Hague Convention. 

The  Union  encourages  third  States  to  accede  to  the  1980  Hague  Convention  and 
supports  the  correct  implementation  of  the  1980  Hague  Convention  by participating, 
along  with  the  Member  States,  inter  alia,  in  the  special  commissions  organised  on  a 
regular basis by the Hague Conference on private international law. 

A common legal framework applicable between Member States of the Union and third 
sstates may be considered to offer the best solution to sensitive cases of international 
child abduction. 

OJ C , , p. . 
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, repealing Regulation (EC) No 1347/2000 (OJ L 338, 23.12.2003, p.1). 

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(7) 

(8) 

(9) 

The 1980 Hague Convention stipulates that it applies between the acceding State and 
such contracting Sstates as have declared their acceptance of the accession. 

The  1980  Hague  Convention  does  not  allow  regional  economic  integration 
organisations  such  as  the  Union  to  become  party  to  it.  Therefore,  the  Union  cannot 
accede  to  that  Convention,  nor  can  it  deposit  a  declaration  of  acceptance  of  an 
acceding State. 

Pursuant to Opinion 1/13 of the Court of Justice of the European Union declarations of 
acceptance  under  the  1980  Hague  Convention  falls  within  the  exclusive  external 
competence of the Union. 

(10)  The  Republic  of  Korea  deposited  its  instrument  of  accession  to  the  1980  Hague 
Convention  on  13    December  2012.  That  Convention  entered  into  force  for  The 
Republic of Korea on 1 March 2013. 

(11)  Several Member States have already accepted the accession of the Republic of Korea 
to  the  1980  Hague  Convention.  An  assessment  of  the  situation  in  the  Republic  of 
Korea has led to the conclusion that those Member States that have not yet accepted 
the accession of the Republic of Korea are in a position to accept, in the interest of the 
Union,  the  accession  of  the  Republic  of  Korea  under  the  terms  of  the  1980  Hague 
Convention. 

(12)  The Member States that have not yet accepted the accession of the Republic of Korea 
should therefore be authorised to accept it in the interest of the Union and to deposit 
their declarations of acceptance of accession of the Republic of Korea in accordance 
with the terms set out in this Decision. The Czech Republic, Ireland and the Republic 
of  Lithuania  which  have  already  accepted  the  accession  of  the  Republic  of  Korea  to 
the 1980 Hague Convention should not deposit new declarations of acceptance as the 
existing declarations remains valid under public international law. 

(13)  The United Kingdom and Ireland are bound by Regulation (EC) No 2201/2003 and are 

therefore taking part in the adoption and application of this Decision. 

(14) 

In  accordance  with  Articles  1  and  2  of  Protocol  No  22  on  the  position  of  Denmark, 
annexed to the Treaty on European Union and to the Treaty on the Functioning of the 
European Union, 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 

1. 
The  Member  States  that  have  not  yet  done  so  are  hereby  authorised  to  accept  the 
accession of the Republic of Korea to the Hague Convention of 25 October 1980 on the Civil 
Aspects of International Child Abduction ('the 1980 Hague Convention') in the interest of the 
Union. 

2. 
Member States referred to in paragraph 1 shall, no later than …,* deposit a declaration 
of acceptance of the accession of the Republic of Korea to the 1980 Hague Convention in the 
interest of the Union worded as follows: 

"[Full  name  of  MEMBER  STATE]  declares  that  it  accepts  the  accession  of  the  Republic  of 
Korea  to  the  Hague  Convention  of  25  October  1980  on  the  Civil  Aspects  of  International 
Child Abduction, in accordance with Council Decision (EU) 2016/…**" 

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3.  
Each  Member  State  shall  inform  the  Council  and  the  Commission  of  its  deposit  and 
communicate  to  the  Commission  the  text  of  the  declaration  within  two  months  after  its 
deposit. 

Those Member States which deposited their declarations of acceptance of the accession of the 
Republic  of  Korea  to  the  1980  Hague  Convention  prior  to  the  date  of  adoption  of  this 
Decision, shall make no new declarations.  

Article 2 

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

Article 3 

Article 4 

This  Decision  is  addressed  to  all  Member  States  with  the  exception  of  the  Czech  Republic, 
Ireland and the Republic of Lithuania. 

Done at Brussels, 

For the Council 
The President 

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