Proposal for a COUNCIL DECISION authorising the Republic of Austria and Romania to accept, in the interest of the European Union, the accession of Peru 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: Austria, Peru, Romania, accession to an agreement, child, custody, illegal restraint, international convention, parental responsibility, rights of access

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   EUROPEAN COMMISSION  Brussels, 7.6.2016  COM(2016) 367 final 2016/0168 (NLE)   Proposal for a COUNCIL DECISION authorising the Republic of Austria and Romania to accept, in the interest of the European Union, the accession of Peru 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.  

Peru  deposited  the  accession  instrument  to  the  1980  Convention  on  28  May  2001.  The 
Convention entered into force in Peru on 1 August 2001. 

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 Peru 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 Peru 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 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 stated 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 on the need for uniformity on the matter at EU level, avoiding a géométrie 
variable among Member States.  

The 1980 Convention is  already into force between Peru and the overwhelming majority of 
the EU Member States (25). Only Austria, Denmark and Romania have not yet accepted the 
accession of Peru to the Convention. 

In the course of 2015, Peru has communicated to the Commission its interest in making the 
Convention enter into force also in respect of Austria and Romania, which should therefore be 
authorized by the European Union to accept the accession of Peru to the 1980 Convention. 

The  acceptance  of  Austria  and  Romania  would  render  the  1980  Convention  applicable 
between Peru and all EU Member States except Denmark. 

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• 

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.  

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 (Peru) which has acceded to the 
1980  Convention  before  the  establishment  of  an  EU  external  competence  on  the  matter  of 
international child abduction with the adoption of the Brussels IIa Regulation.  

• 

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  general 
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 

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OJ L 338, 23.12.2003, p.31. 
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) 2015/2358 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. 

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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 
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  Peru  to  the  1980  Hague  Convention  within  a  given 
time frame. 

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Stakeholder consultations 

Austria  and  Romania,  consulted  by  the  Commission  on  their  willingness  to  accept  the 
accession of Peru to the 1980 Convention, gave a favourable opinion.  

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

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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 by Austria and Romania of the 
accession of Peru to the 1980 Convention. 

• 

Collection and use of expertise 

Given that the Convention is already into force with 25 Member States, it was the opinion of 
the Commission and of the Member States' experts that, in such cases, there is no need of a 
specific assessment of the situation of the third country concerned.  

The  Member  States'  experts  did  not  report  any  problems  in  the  application  of  the  1980 
Convention with respect to Peru. 

• 

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. 

A  specific  assessment  of  the  situation  of  Peru  was  deemed  superfluous  taking  into  account 
both  the  fact  that  the  Convention  is  already  into  force  between  Peru  and  25  EU  Member 
States and the willingness of Austria and Romania to accept the accession of Peru. 

4. 

BUDGETARY IMPLICATIONS 

The proposed decision has no budgetary implications. 

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

As  the  proposal  concerns  only  the  authorization  to  certain  Member  States  to  accept  the 
accession of Peru 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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2016/0168 (NLE) 

Proposal for a 

COUNCIL DECISION 

authorising the Republic of Austria and Romania to accept, in the interest of the 
European Union, the accession of Peru 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 Parliament6,  

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  2201/20037  ('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 
States 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 States 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)  Peru deposited its instrument of accession to the 1980 Hague Convention on 28 April 

2001. That Convention entered into force for Peru on 1 August 2001. 

(11)  The  Convention  is  already  into  force  between  Peru  and  25  Member  States,  with  the 
exception  of  the  Republic  of  Austria,  the  Kingdom  of  Denmark  and  Romania.  The 
Republic  of  Austria  and  Romania  are  in  a  position  to  accept,  in  the  interest  of  the 
Union, the accession of Peru under the terms of the 1980 Hague Convention. 

(12)  The Republic of Austria and Romania should therefore be authorised to accept it in the 
interest  of  the  Union  and  to  deposit  their  declarations  of  acceptance  of  accession  of 
Peru  in  accordance  with  the  terms  set  out  in  this  Decision.  The  other  EU  Member 
States have already accepted the accession of Peru to the 1980 Hague Convention and 
should  therefore  not  deposit  a  new  declaration  of  acceptance  as  the  existing 
declaration 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 Republic of Austria and Romania are hereby authorised to accept the accession of 
Peru 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. 

Member States referred to in paragraph 1 shall, no later than …,* deposit a declaration 
2. 
of  acceptance  of  the  accession  of  Peru  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 Peru to the Hague 
Convention  of  25  October  1980  on  the  Civil  Aspects  of  International  Child  Abduction,  in 
accordance with Council Decision (EU) 2016/…**" 

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

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Those  Member  States  which  deposited  their  declarations  of  acceptance  of  the  accession  of 
Peru 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 

This Decision is addressed to the Republic of Austria and Romania. 

Done at Brussels, 

Article 4 

For the Council 
The President 

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