Proposal for a COUNCIL DECISION authorising Croatia, the Netherlands, Portugal and Romania to accept, in the interest of the European Union, the accession of San Marino to the 1980 Hague Convention on the Civil Aspects of International Child Abduction
Date: 2017-07-03
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: Croatia, Netherlands, Portugal, Romania, San Marino, accession to an agreement, child, child protection, illegal restraint, international convention

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   EUROPEAN COMMISSION  Brussels, 3.7.2017  COM(2017) 359 final 2017/0149 (NLE)   Proposal for a COUNCIL DECISION authorising Croatia, the Netherlands, Portugal and Romania to accept, in the interest of the European Union, the accession of San Marino 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  97  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.  

San  Marino  deposited  the  accession  instrument  to  the  1980  Convention  on  14  December 
2006. The 1980 Hague Convention entered into force for San Marino on 1 March 2007. 

The  1980  Convention  is  already  into  force  between  San  Marino  and  the  overwhelming 
majority  of  the  EU  Member  States  (23).  Only  Croatia,  Denmark,  the  Netherlands,  Portugal 
and Romania have not yet accepted the accession of San Marino to the Convention. 

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.  

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.  

As the matter of international child abduction falls within the exclusive external competence 
of the European Union, the decision whether to accept the accession of San Marino has to be 
taken  at  EU  level  by  means  of  a  Council  Decision.  The  Member  States  which  have  not  yet 
accepted  San  Marino  should  thus  make  the  declaration  of  acceptance  in  the  interest  of  the 
European Union. 

The  acceptance  of  Croatia,  the  Netherlands,  Portugal  and  Romania  would  render  the  1980 
Convention applicable between San Marino and all EU Member States except Denmark. 

• 

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 

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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 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.  

Ten Council Decisions have been already adopted between June 2015 and December 2016 in 
order to accept the accession to the 1980 Hague Convention on International Child Abduction 
of  10  third  countries  (Morocco,  Singapore,  the  Russian  Federation,  Albania,  Andorra,  the 
Seychelles, Armenia, the Republic of Korea, Kazakhstan and Peru)2. 

• 

Consistency with other Union policies 

The present proposal is evidently 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. 

It is worth mentioning also the link to 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  matters3  also  applies  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  Practise  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 

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OJ L 338, 23.12.2003, p.31. 
Ten Council Decisions have been already adopted, authorizing Member States to accept the accession 
to  the  1980  Convention  of  Andorra  (Council  Decision  2015/1023  adopted  on  15  June  2015); 
Seychelles  (Council  Decision  2015/2354  adopted  on  10  December  2015);  Russia  (Council  Decision 
2015/2355  adopted  on  10  December  2015);  Albania  (Council  Decision  2015/2356  adopted  on  10 
December  2015);  Singapore  (Council  Decision  2015/1024   adopted  on  15  June  2015);  Morocco 
(Council Decision 2015/2357 adopted on 10 December 2015); Armenia (Council Decision 2015/2358 
adopted  on  10  December  2015);  Republic  of  Korea  (Council  Decision  2016/2313  adopted  on  8 
December  2016  )  ,  Kazakhstan  (Council  Decision  2016/2311  adopted  on  8.12.2016  )  and  Peru 
(Council Decision 2016/2312 adopted on 8.12.2016).  
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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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 countries4. 

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. 

• 

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 San Marino to the 1980 Hague Convention within a 
given time frame. 

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Stakeholder consultations 

Croatia,  the  Netherlands,  Portugal  and  Romania,  consulted  by  the  Commission  on  their 
willingness to accept the accession of San Marino to the 1980 Convention, gave a favourable 
opinion.  

The discussions held at the expert meeting of 24 April 2017 showed that -at this stage- there 
are  no  objections  from  the  Member  States  to  the  acceptance  by  Croatia,  the  Netherlands, 
Portugal and Romania of the accession of San Marino to the 1980 Convention. 

• 

Collection and use of expertise 

Given that the Convention is already into force with 23 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.  

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

• 

Impact assessment 

As  for  the  ten  Council  Decisions  already  adopted  between  2015  and  2016  concerning  the 
acceptance of the accession of several third States to the 1980 Hague Convention, no specific 

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

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impact assessment has been carried out given the nature of this legislative act. In any case, a 
specific  assessment  of  the  situation  of  San  Marino  was  deemed  superfluous  taking  into 
account both the fact that the Convention is already into force between San Marino and 23 EU 
Member  States  and  the  willingness  of  Croatia,  the  Netherlands,  Portugal  and  Romania  to 
accept it.  

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  Croatia,  the  Netherlands,  Portugal  and 
Romania to accept the accession of San Marino 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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2017/0149 (NLE) 

Proposal for a 

COUNCIL DECISION 

authorising Croatia, the Netherlands, Portugal and Romania to accept, in the interest of 
the European Union, the accession of San Marino 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 Parliament5,  

Whereas: 

(1) 
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  Council  adopted  Regulation  (EC)  No 2201/20036  (‘Brussels  IIa  Regulation’), 
(2) 
which aims to protect children from the harmful effects of 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. 

The  Brussels  IIa  Regulation  complements  and  reinforces  the  Hague  Convention 
(3) 
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. 

(4) 

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 
(5) 
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 

(6) 
states could be the best solution to sensitive cases of international child abduction. 

The 1980 Hague Convention stipulates that it applies between the acceding state and 

(7) 
such contracting states as have declared their acceptance of the accession. 

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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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(8) 
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. 

(9) 
Pursuant to Opinion 1/13 of the Court of Justice of the European Union, declarations 
of  acceptance  under  the  1980  Hague  Convention  fall  within  the  exclusive  external 
competence of the Union. 

(10)  San Marino deposited its instrument of accession to the 1980 Hague Convention on 14 
December 2006. The 1980 Hague Convention entered into force for San Marino on 1 March 
2007. 

(11)  All Member States, with the exception of Croatia, Denmark, the Netherlands, Portugal 
and  Romania,  have  already  accepted  the  accession  of  San  Marino  to  the  1980  Hague 
Convention.  An  assessment  of  the  situation  in  San  Marino  has  led  to  the  conclusion  that 
Croatia, the Netherlands, Portugal and Romania are in a position to accept, in the interest of 
the Union, the accession of San Marino under the terms of the 1980 Hague Convention. 

(12)  Croatia,  the  Netherlands,  Portugal  and  Romania  should  therefore  be  authorised  to 
deposit their declarations of acceptance of the accession of San Marino in the interest of the 
Union in accordance with the terms set out in this Decision. The other Member States of the 
Union  which  have  already  accepted  the  accession  of  San  Marino  to  the  1980  Hague 
Convention  should  not  deposit  new  declarations  of  acceptance  as  the  existing  declarations 
remain valid under public international law. 

(13)  The  United  Kingdom  and  Ireland  are  bound  by  the  Brussels  IIa  Regulation  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. 

2. 

Croatia, the Netherlands, Portugal and Romania are hereby authorised to accept the 
accession of San Marino 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 … [twelve months after 
the  date  of  adoption  of  this  Decision],  deposit  a  declaration  of  acceptance  of  the 
accession of San Marino 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 San Marino to the 
Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, 
in accordance with Council Decision (EU) 2017/…’. 

3. 

Member  States  referred  to  in  paragraph  1  shall  inform  the  Council  and  the 
Commission  of  the  deposit  of  its  declaration  of  acceptance  of  the  accession  of  San 

 

OJ: please insert the number of this Decision. 

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Marino and communicate to the Commission the text of the declaration within two 
months of its deposit. 

Those  Member  States  which  deposited  their  declarations  of  acceptance  of  the  accession  of 
San Marino to the 1980 Hague Convention prior to the date of adoption of this Decision, shall 
not deposit 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 Croatia, the Netherlands, Portugal and Romania. 

Done at …, 

Article 4 

For the Council 

The President 

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