COMMISSION STAFF WORKING DOCUMENT EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT Accompanying the document Proposal for a Council Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsability, and on international child abduction (recast)
Date: 2016-06-30
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: enforcement of ruling, judicial cooperation, judicial cooperation in civil matters in the EU, jurisdiction, matrimonial law, mutual recognition principle, parental responsibility

EN 

   EN 

   EUROPEAN COMMISSION  Brussels, 30.6.2016  SWD(2016) 208 final   COMMISSION STAFF WORKING DOCUMENT  EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT  Accompanying the document Proposal for a Council Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsability, and on international child abduction (recast) {COM(2016) 411 final} {SWD(2016) 207 final}  
 
 
Impact assessment accompanying the Proposal for a recast of the Brussels IIa Regulation (No 2201/2003) 

Executive Summary Sheet 

A. Need for action 

Why? What is the problem being addressed?  
The evaluation identified a number of problems which would need to be tackled in order to ensure that 
the  Regulation  delivers  the  results  intended  for  it.  These  problems  relate  to  the  predictability  and 
efficiency  of  the  cross-border  procedures  established  in  the  Regulation  in  the  interest  of  parents  and 
children. Problems stem also from the fact that the current legal text is insufficiently clear or there are 
omissions. 
With  regard  to  parental  responsibility  matters  covering  parental  child  abduction,  cross-border 
placement of children, recognition and enforcement of judgments and cooperation between (central and 
other)  national  authorities  there  are  excessive  and  undue  delays  arising  from  the  way  the  existing 
procedures  are  formulated  or  applied.  Judgments  are  often  not  enforced  or  with  significant  delays. 
Finally,  a  vague  description  of  the  cooperation  between  Central  Authorities  has  led  to  delays  or  the 
non-fulfilment of requests which were detrimental to children's welfare. 
These  delays  and  deficiencies  have  a  negative  impact  on  the  fundamental  rights  of  the  child  and  a 
corrosive effect on the mutual trust between the Member States on which the smooth operation of the 
Regulation depends.  
With regard to matrimonial matters, spouses in an international marriage do not have the possibility 
to agree on a court to settle their divorce. In cases of the spouses not having a common EU nationality 
who live in a non-EU country, access to an EU court may be limited. While these problems have been 
considered, no action is proposed at this stage. 
What should be achieved?  
The  proceedings  should  be  simplified  by  the  reduction  of  delays  and  costs.  The  child  return 
proceedings  would  be  improved  through  a  clarification  of  the  current  return  mechanism  and  the 
introduction of new measures, such as concentration of jurisdiction and limitation of appeals, to shorten 
the  delays.  For  placement  decisions  an  autonomous  consent  procedure  should  be  established  to  be 
applied  to  all  cross-border  placements,  flanked  by  a  time-limit  for  the  requested  Member  State  to 
respond  to  the  request.  Furthermore,  exequatur  would  be  abolished  while  maintaining  appropriate 
safeguards (grounds for non-recognition and challenges against enforcement as such or against specific 
enforcement measures) to be invoked by the defendant at the stage of enforcement, thereby shortening 
the  overall  duration  of  the  proceedings,  including  at  the  enforcement  stage.  Finally,  with  regard  to 
cooperation,  a  clarification  should  specify;  (1)  who  can  ask  (2)  which  assistance  or  information  (3) 
from whom and (4) under which conditions. It should be made clear that where necessary, also courts 
and child welfare authorities could request the assistance of Central Authorities. 
What is the value added of action at the EU level?  
Due  to  the  cross-border  nature  of  the  problem  only  international  couples/parents  are  affected  by  the 
problem. Shortcomings identified in the existing Union law cannot be addressed by the Member States 
acting  individually,  and  the  objectives  cannot  be  sufficiently  achieved  at  the  national  level;  they 
therefore require the Union's intervention. National substantive family law rules are not affected by the 
proposed actions. 

B. Solutions 
What  legislative  and  non-legislative  policy  options  have  been  considered?  Is  there  a  preferred 
choice or not? Why? 
The  policy  options  and  their  impact  assessment  are  dealt  with  separately  for  each  of  the  issues 
identified  in  the  evaluation  of  the  Regulation  as  problematic.  For  all  issues  a  baseline  scenario  and 
alternative  options  were  developed.  For  matrimonial  and  the  parental  responsibility  matters,  policy 
options with different degrees of intervention were considered. For the child abduction procedure, mere 
clarifications of the current mechanism alongside an option foreseeing a list of flanking measures are 
considered.  In  addition,  two  options  were  developed  to  assess  possible  radical  changes  of  the  return 
mechanism (a return to the "Hague" system and a creation of a unique forum in the Member State of 

2 

 
 
 
origin).  For  the  placement  mechanism,  two  options  are  proposed  to  choose  between  a  system  either 
with presume or explicit consent. 
With  regard  to  recognition  and  enforcement,  both  main  policy  options  do  away  with  the  exequatur 
requirement or propose a new procedure to respond best to the inefficiency problem. The new system is 
supplemented by three alternative sub-options tackling the problem of the hearing of the child. Also, 
two  complementary  options  are  proposed  to  improve  enforcement  either  through  an  indicative  time-
limit or through a full harmonisation of the enforcement law for parental responsibility decisions. 
The assessment finishes with the comprehensive preferred options for all issues presented in the report. 
What are different stakeholders' views? Who supports which option?  
It is clear that stakeholders, including Member States, support the need for a carefully targeted reform 
of  the  existing  Regulation.  In  cases  concerning  parental  child  abduction,  the  majority  (over  70%)  of 
respondents, including parents, think that the Regulation has not ensured the immediate return of the 
child within the EU. The main suggestion for improvement arose in the area of enforcement and with 
respect to the time limit for issuing the return order and for its enforcement. 
While parents are the most prominent group who sought to expand the abolition of exequatur, followed 
by judges and lawyers, some Member States indicated that exequatur should not be fully abolished. A 
significant number of respondents (86%) considered enforcement of parental responsibility decisions as 
an  important  area  for  improvement.  Finally,  parents  have  particularly  expressed  their  concern  as 
regards the cooperation between the Central Authorities. 

C. Impacts of the preferred option 

What are the benefits of the preferred option (if any, otherwise main ones)?  
The preferred options address the problems identified better than any of the other options. Taken as a 
whole, they enhance predictability in cross-border litigation by ensuring a genuinely free circulation of 
judgments based on the principle of mutual recognition and enhance the respect of fundamental rights, 
in  particular  the  rights  of  the  child,  by  providing  the  necessary  safeguards.  Overall,  they  help  in 
creating  swifter  procedures  and  thereby  minimising  the  negative  impact  on  parents  and  above  all  on 
children. 
What are the costs of the preferred option (if any, otherwise main ones)?  
The  preferred  policy  options  would  lead  to  savings  for  European  citizens  engaged  in  cross-border 
litigation. The abolition of exequatur would allow them to save the major part of the current costs of 
the exequatur procedure (on average € 2,200 to be paid for processing the application). In addition, the 
preferred  policy  option  for  enforcement  would  contribute  to  saving  costs  by  parents  seeking 
enforcement as they would not necessarily need to look for highly specialised lawyers with knowledge 
of the foreign enforcement system. There could be a small reduction of costs for Central Authorities; if 
procedures contain unified rules or are shorter at the enforcement stage. Likewise, the clarification of 
Central  Authorities'  tasks  and  of  the  placement  procedure  will  save  costs  as  cooperation  procedures 
become more streamlined. 
How will businesses, SMEs and micro-enterprises be affected?  
Not applicable. 
Will there be significant impacts on national budgets and administrations? 
The preferred policy options would trigger relatively modest financial costs. The abolition of exequatur 
would require Member States to incur costs for training to familiarize the legal profession with the new 
procedures  envisaged,  but  training  needs  to  be  provided  already  today,  and  to  far  more  judges.  For 
some Member States the obligation to provide their Central Authority with adequate resources is likely 
to generate additional costs (in particular for human resources) if their Central Authorities currently are 
not sufficiently equipped.  

When will the policy be reviewed?  
5 years after the adoption of the Regulation. 

D. Follow-up 

3