Proposal for a COUNCIL DECISION authorising the Member States to accept, in the interest of the European Union, the accession of Tunisia to the 1980 Hague Convention on the Civil Aspects of International Child Abduction
Date: 2021-07-06
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: EU Member State, Tunisia, accession to an agreement, child, custody, illegal restraint, international convention, parental responsibility, rights of access

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   EUROPEAN COMMISSION  Brussels, 6.7.2021  COM(2021) 371 final  Proposal for a COUNCIL DECISION authorising the Member States to accept, in the interest of the European Union, the accession of Tunisia 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 Hague Convention"), to date ratified by 101 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 policy to promote the rights 
of the child, the European Union is active at international level to improve the application of 
the 1980 Hague Convention and encourages third States to accede it. 

Tunisia deposited the accession instrument to the 1980 Hague Convention on 10 July 2017. 
The Convention entered into force in Tunisia on 1st October 2017. 

Article 38(4) of the 1980 Hague 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  Hague  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  Tunisia  has  to  be 
taken at EU level by means of a Council Decision. The Member States of the European Union 
should thus deposit the declaration of acceptance concerning the accession of Tunisia in the 
interest of the European Union. 

The acceptance of the Member States of the European Union would render the 1980 Hague 
Convention applicable between Tunisia and the 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 
Regulation) which is  the cornerstone of EU judicial cooperation in  matrimonial  matters and 
matters of parental responsibility.  

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 

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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  Hague  Convention  in  order  for  its  Member  States  to  rely  upon  a  common  legal 
framework to deal with international child abductions. 

18  Council  Decisions  have  been  already  adopted  between  June  2015  and  February  2019  in 
order to accept the accession to the 1980 Hague Convention on International Child Abduction 
of  26  third  countries  (Morocco,  Singapore,  the  Russian  Federation,  Albania,  Andorra,  the 
Seychelles, Armenia, the Republic of Korea, Kazakhstan, Peru, Georgia, South Africa, Chile, 
Iceland,  the  Bahamas,  Panama,  Uruguay,  Colombia,  El  Salvador  and  San  Marino,  the 
Dominican Republic, Belarus, Uzbekistan, Honduras, Ecuador and Ukraine)1.  

• 

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  matters2  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 

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18 Council Decisions have been already adopted, authorizing Member States to accept the accession to 
the  1980  Hague  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),  Peru  (Council 
Decision  2016/2312  adopted  on  8.12.2016);  Georgia  and  South  Africa  (Council  Decision  (EU) 
2017/2462  of  18  December  2017);  Chile,  Iceland  and  the  Bahamas  (Council  Decision  (EU) 
2017/2424 of 18 December 2017); Panama, Uruguay, Colombia and El Salvador (Council Decision 
(EU)  2017/2464  of  18  December  2017);  San  Marino  (Council  Decision  (EU)  2017/2463  of  18 
December 2017); The Dominican Republic (Council Decision (EU) 2019/305 of 18 February 2019); 
Ecuador  and  Ukraine  (Council  Decision  (EU)  2019/306  of  18  February  2019);  Honduras  (Council 
Decision  (EU)  2019/307  of  18  February  2019);  Belarus  and  Uzbekistan  (Council  Decision  (EU) 
2019/308 of 18 February 2019).  

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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all  EU  languages  other  than  English  and  French  and  also  in  Arabic  to  support  the  dialogue 
with States which have not yet ratified/acceded to the Convention and help finding concrete 
ways to tackle the problems posed by international child abductions3.  

The EU has also promoted cooperation at regional level, particularly in the field of the family 
law, by financing several activities under the EuroMed Justice Project. The component of the 
Project  called  “resolution  of  cross-border  family  conflicts”  has  paid  particular  attention  to 
mixed marriages with  a focus on the resolution  of conflicts concerning custody and visiting 
rights  through  mediation  and  facilitation  of  the  rights  of  access  (through  for  instance 
conciliation  commissions  and  contact  centres).  Tunisia,  together  with  other  Mediterranean 
countries, has been beneficiary of the various editions of the Project. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

Article 38 of the 1980 Hague Convention provides that “[t]he accession [of acceding States] 
will have effect only as regards the relations between the acceding State and such Contracting 
States  as  will  have  declared  their  acceptance  of  the  accession”.  Given  the  fact  that  the 
decision  regards  the  express  acceptance  of  the  accession  of  an  acceding  State  to  the  1980 
Hague  Convention,  by  the  Member  States  in  the  interest  of  the  Union,  the  applicable  legal 
basis  is  Article  218(6)  of  the  Treaty  on  the  Functioning  of  the  European  Union.  The 
substantive  legal  basis  is  Article  81  (3)  TFEU,  therefore  the  Council  shall  act  unanimously 
after consulting the European Parliament. 

Ireland  is  bound  by  Regulation  (EC)  No  2201/2003  and  is  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  the 
Member  States  of  the  European  Union  accept  the  accession  of  Tunisia  to  the  1980  Hague 
Convention within a given time frame.  

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Stakeholder consultations 

The overwhelming majority of the Member States  of the European  Union, consulted by the 
Commission  on  their  willingness  to  accept  the  accession  of  Tunisia  to  the  1980  Hague 
Convention, gave a favourable opinion.  

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

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The discussions held at the Experts’ meeting of 2 July 2019 showed that, with one exception, 
there  were  no  objections  from  the  Member  States  to  the  acceptance  of  the  accession  of 
Tunisia to the 1980 Hague Convention. 

The  Commission  trusts  that  further  discussions  at  technical  level  in  the  Council  Working 
Party on Civil Law Matters will lead to the required unanimity for the adoption of the Council 
Decision. 

• 

Collection and use of expertise 

As  preparation  for  the  Experts’  meeting  of  2  July  2019  and  during  its  follow-up,  the 
Commission was in close contact with The Hague Conference on Private International Law, 
the EU Delegation in Tunisia and the Advocate General at the Ministry of Justice, responsible 
for judicial cooperation in civil matters and appointed contact person in the Central Authority. 

• 

Impact assessment 

As  for  the  18  Council  Decisions  already  adopted  between  2015  and  2019  concerning  the 
acceptance of the accession of several third States to the 1980 Hague Convention, no specific 
impact assessment has been carried out given the nature of this legislative act. However, the 
level of implementation of the Convention by Tunisia was examined at the Experts’ meeting 
of 2 July 2019 in which all EU Member States were represented. As follow-up to the meeting, 
the Commission has closely followed further developments in Tunisia. 

Initially,  the  Tunisian  Authorities  expressed  the  view  that  an  implementing  legislation  to 
apply  the  1980  Hague  Convention  was  not  strictly  needed,  as  international  conventions  are 
directly applicable in the Tunisian judicial system. However, the several training actions and 
seminars which were carried out, also in the context of the EuroMed Justice Project and IRZ 
(Deutsche Stiftung für  Internationale Rechtliche  Zusammenarbeit  -  The  German  Foundation 
for International  Legal Cooperation) showed that, in the opinion of officials and judges, the 
national legislation currently in force is not sufficient to meet the requirements of the Hague 
Convention. 

In  particular,  the  return  procedure  of  the  child  to  his/her  place  of  habitual  residence  after  a 
parental  abduction  should  be  clearly  inserted  in  the  Tunisian  legal  system.  To  this  end,  a 
commission  has  been  established  in  the  Tunisian  Ministry  of  Justice  tasked  to  prepare  the 
implementation  law  to  be  submitted  to  the  Government.  Afterwards,  the  law  should  be 
adopted by the Parliament.  

UNICEF  (Bureau  Soutien  Système  Justice  des  Enfants)  will  support  the  new  Unit  « Justice 
pour  les  enfants »  in  the  Ministry  of  Justice  tasked  to  review  the  legislation  and  propose 
policies in line with the international conventions on the rights of the child and the training of 
legal practitioners. The Bureau Soutien Système Justice des Enfants will organize with l'Ecole 
Nationale  de  la  Magistrature  a  specific  training  addressed  to  the  judges  who  will  have  to 
apply the Convention. 

Even if it is evident that Tunisia still has to put in place appropriate implementing legislation, 
experiences of some Member States (for instance France) are positive to the extent that a legal 
framework  is  in  place.  Indeed,  relying  on  Treaty  relationships  with  EU  Member  States  is 
considered very important by Tunisian authorities, who have referred to preexistent bilateral 
agreements  (so-called  mixed  commissions)  in  force  with  France,  Belgium,  Sweden  and 
Norway.  A  common  legal  framework  with  all  EU  Member  States,  represented  by  the  1980 

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Hague  Convention,  would  help  the  handling  and  resolution  of  cross-border  cases,  even 
pending the adoption of implementing legislation. 

Tunisia has also expressed the wish of further training actions to be carried out in EU Member 
States, possibly French speaking. A seminar of this kind was already held in November 2018 
by the French Central Authority.  

The accession of Tunisia to the 1980 Hague Convention has been accepted by 11 Contracting 
Parties, including Switzerland.  

4. 

BUDGETARY IMPLICATIONS 

The proposed decision has no budgetary implications. 

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

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

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Proposal for a 

COUNCIL DECISION 

authorising the Member States to accept, in the interest of the European Union, the 
accession of Tunisia 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(6) thereof,  

Having regard to the proposal from the European Commission, 
Having regard to the opinion of the European Parliament4,  

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

(7) 

(8) 

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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  Council  adopted  Regulation  (EC)  No 2201/20035  (‘Brussels  IIa  Regulation’), 
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 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 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 
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 

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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accede  to  that  Convention,  nor  can  it  deposit  a  declaration  of  acceptance  of  an 
acceding State. 

(9) 

According 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)  Tunisia  deposited  its  instrument  of  accession  to  the  1980  Hague  Convention  on  10 
July 2017. The Convention entered into force in Tunisia on 1st October 2017. 

(11)  An assessment  of the situation in  Tunisia has led to  the conclusion that  the Member 
States of the European Union are in a position to accept, in the interest of the Union, 
the accession of Tunisia under the terms of the 1980 Hague Convention. 

(12)  The Member States of the European Union should therefore be authorised to deposit 
their declaration of acceptance of the accession of Tunisia in the interest of the Union 
in accordance with the terms set out in this Decision. 

(13) 

(14) 

Ireland  is  bound  by  the  Brussels  IIa  Regulation  and  is  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, 

HAS ADOPTED THIS DECISION:  

Article 1 

The Member States of the European Union are hereby authorised to accept the accession of 
Tunisia  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. 

The  Member  States  of  the  European  Union  shall,  no  later  than  …  [twelve  months  after  the 
date  of  adoption  of  this  Decision],  deposit  a  declaration  of  acceptance  of  the  accession  of 
Tunisia 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  Tunisia  to  the 
Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, 
in accordance with Council Decision (EU) 2021/…’ 

The Member States of the European Union shall inform the Council and the Commission of 
the deposit of its declaration of acceptance of the accession of Tunisia and shall communicate 
the text of that declaration within two months of its deposit to the Commission.  

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

Article 2 

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This Decision is addressed to the Member States. 

Done at Brussels, 

Article 3 

For the Council 
The President 

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