COMMISSION STAFF WORKING DOCUMENT Subsidiarity Grid Accompanying the document Proposal for a Council Regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood
Date: 2022-12-07
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: EU Member State, child protection, cross-border cooperation, family law, family relationship, judicial cooperation in civil matters in the EU, jurisdiction, ruling

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 7.12.2022  SWD(2022) 390 final  COMMISSION STAFF WORKING DOCUMENT Subsidiarity Grid Accompanying the document Proposal for a Council Regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood    {COM(2022) 695 final} - {SEC(2022) 432 final} - {SWD(2022) 391 final} - {SWD(2022) 392 final}  
 
 
Subsidiarity Grid 

1.  Can the Union act? What is the legal basis and competence of the Unions’ intended action? 

1.1 Which article(s) of the Treaty are used to support the legislative proposal or policy initiative? 

The  objective  of the legislative  proposal  (‘Regulation’)  is to facilitate the recognition of  parenthood 
between Member States and, thereby, protect the rights, including the fundamental rights, of children 
in matters concerning their parenthood in cross-border situations. The proposal also aims to provide 
legal certainty and predictability about the establishment of parenthood in cross-border situations and 
the recognition of parenthood and to reduce legal costs and burden for families and Member States’ 
judicial  systems  and  public  authorities  (such  as  civil  or  population  registrars,  notaries  and  public 
administrations)  in  connection  with  the  establishment  of  parenthood  in  cross-border  situations  and 
proceedings concerning the recognition of parenthood in another Member State. 

These  objectives  are  to  be  achieved  through  the  harmonisation  of  Member  States’  rules  on  private 
international  law,  that  is,  the  rules  on  international  jurisdiction  and  on  applicable  law  for  the 
establishment of parenthood in cross-border situations, and the rules on the recognition in a Member 
State of the parenthood established in another Member State. The legal basis of the proposal is Article 
81(3) of the Treaty on the Functioning of the European Union (‘TFEU’), which entitles the Union to 
adopt measures on family law with cross-border implications.  

1.2 Is the Union competence represented by this Treaty article exclusive, shared or supporting in 
nature? 

Under Article 81(3) TFEU, the Union has a shared competence with Member States to adopt measures 
on family law with cross-border implications, including rules on jurisdiction, applicable law and  the 
recognition of judgments between Member States.  

This shared competence is to be distinguished from the Member States’ exclusive competence to adopt 
measures of substantive family law, such as rules on the definition of family or on the conditions and 
procedures  to  establish  the  parenthood  of  a  person.  The  proposal  respects  the  Member  States’ 
competence by proposing rules only on the establishment of parenthood in cross-border situations and 
on the recognition of parenthood. 

2.  Subsidiarity Principle: Why should the EU act? 

2.1  Does the proposal fulfil the procedural requirements of Protocol No. 21: 

-  Has there been a wide consultation before proposing the act? 
- 

Is there a detailed statement with qualitative and, where possible, quantitative indicators 
allowing an appraisal of whether the action can best be achieved at Union level? 

Yes.  First,  in  conformity  with  Article  2  of  Protocol  No.  2,  the  Commission  conducted  extensive 
consultations in the preparation of the  proposal. The consultations were organised in 2021 and 2022 
and  covered all Member  States  with  the exception of  Denmark2. They  targeted  a  wide  range  of  key 
stakeholders  representing  Union  and  third-country  citizens,  public  authorities,  academics,  research 
institutions, legal professionals, NGOs and other relevant interest groups.  

The consultations consisted of: (i) public feedback to the inception impact assessment (April to May 
2021); (ii)  an open public consultation (May to August 2021); (iii)  a meeting with stakeholders and 
representatives  of  the  civil  society  (December 2021);  and  (iv)  a  meeting  with  experts from  Member 

1 
2 
the Position of Denmark, annexed to the Treaties. 

https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12016E/PRO/02&from=EN  
Denmark does not take part in the measures adopted under Article 81(3) TFEU. See Protocol No 22 on 

1 

 
 
 
 
 
                                                           
States’  authorities  (January  2022).  In  addition,  the  Commission  held  several  meetings  with  the 
members  of  its  expert  group  on  the  recognition  of  parenthood,  which  advised  it  on  the  legislative 
proposal.  The  Commission  also  received  feedback  from  complaints  and  petitions  from  citizens  and 
other stakeholders. 

Besides  the  consultation  activities  conducted  by  the  Commission,  further  consultations  were 
undertaken by an external contractor that prepared a study to be used in the preparation of the impact 
assessment. The contractor  used the following consultation tools: (i)  an online survey targeting civil 
registrars  in  the  Union;  (ii)  written  questionnaires  for  national  ministries  and  the  judiciary,  and  (iii) 
targeted interviews with the judiciary and NGOs.  

The feedback received in the consultation activities informed the preparation of the proposal and the 
impact  assessment  accompanying  it.  A  detailed  summary  of  the  outcome  of  the  consultations 
conducted by the Commission is included in the impact assessment.  

Second,  in  preparing  the  proposal,  the  Commission  assessed  the  subsidiarity  of  the  measures  to  be 
adopted  at  Union  level  both  in  the  explanatory  memorandum  of  the  proposal  and  in  the  impact 
assessment (Section 3 of the impact assessment). The problems to be addressed by the proposal were 
quantified on the basis of the number of cross-border families in the Union and, in particular, on the 
number of families that currently face most problems with the recognition of parenthood (Section 2 of 
the  impact  assessment).  The  estimated  costs  that  cross-border  families  and  Member  States’  public 
authorities incur as a result of the current problems were also quantified.  

2.2  Does  the  explanatory  memorandum  (and  any  impact  assessment)  accompanying  the 
Commission’s proposal contain an adequate justification regarding the conformity with the 
principle of subsidiarity? 

Yes. Both the explanatory memorandum and the impact assessment accompanying the proposal (in its 
Section  3)  include  justifications  regarding  the  compliance  of  the  proposal  with  the  subsidiarity 
principle. The explanatory memorandum states that: 

The  competence  to  adopt  measures  concerning  family  law  with  cross-border  implications  is  shared 
between the Union and the Member States3. Problems with the recognition in one Member State of the 
parenthood established in another Member State for the purposes of rights derived from national law 
have  a  Union  dimension  as  recognition  requires  the  involvement  of  two  Member  States.  The 
consequences of the non-recognition of parenthood also have a Union dimension, as families may be 
deterred from exercising their right to free movement for fear that the parenthood of their child will 
not be recognised in another Member State for all purposes.  
Problems with the recognition of parenthood are caused by diverging Member State substantive rules 
on  the  establishment  of  parenthood  in  domestic  situations  and  conflict  of  laws  rules  on  the 
establishment of parenthood in cross-border situations. Member States acting individually could not 
satisfactorily  remove  the  problems  with  the  recognition  of  parenthood  as  Member  States’  rules  and 
procedures would need to be the same or at least compatible in order for parenthood to be recognised 
between Member States. Action at Union level is needed to ensure that a Member State whose courts 
or other competent authorities establish parenthood is regarded as having jurisdiction to do so, and 
that  the  courts  and  other  competent  authorities  of  all  Member  States  will  apply  the  same  law  to 
establish  parenthood  in  cross-border  situations.  In  this  way  conflicting  parenthoods  for  the  same 
person  will  be  avoided  within  the  Union  and  each  Member  State  will  recognise  the  parenthood 
established in another Member State.  
Therefore, the objectives of this proposal, by reasons of its scope and effects, would be best achieved 
at Union level in accordance with the principle of subsidiarity. 

3 

Article 4(2)(j) TFEU. 

2 

 
 
 
 
 
 
                                                           
2.3  Based  on  the  answers  to  the  questions  below,  can  the  objectives  of  the  proposed  action  be 

achieved sufficiently by the Member States acting alone (necessity for EU action)? 

No. For the summary of the necessity for Union action, see the explanation in 2.2. above.  

(a)  Are  there  significant/appreciable  transnational/cross-border  aspects  to  the  problems  being 

tackled? Have these been quantified? 

Yes. The problems with the recognition in one Member State of the parenthood established in another 
Member State have a cross-border dimension by their nature, as recognition requires the involvement 
of at least two Member States. 

The impact assessment estimates that there are currently around 4.5 million mobile parents and their 
children who may require the recognition of parenthood in another Member State. It is also estimated 
that  some  103  000  people  may  currently  face  problems  with  the  recognition  of  parenthood.  These 
problems  may  have  significant  adverse  consequences  on  the  fundamental  rights  and  other  rights  of 
children as well as economic and social impacts. The non-recognition of parenthood also has a Union 
dimension as families may be deterred from exercising their right to free movement for fear that the 
parenthood of their children will not be recognised in another Member State for all purposes.  

The  consultations  undertaken  to  prepare  the  impact  assessment  indicated  that  the  current  problems 
with the recognition of parenthood  will continue and even increase without  Union intervention. The 
increased incidence of the problem is expected to be caused in particular by (i) a greater diversity of 
family  composition;  (ii)  progress  in  reproductive  technologies  and  an  increased  use  of  these 
technologies; and (iii) increased mobility within the Union. 

(b)  Would national action or the absence of the EU level action conflict with core objectives of 

the Treaty4 or significantly damage the interests of other Member States? 

The absence of action at Union level would conflict with core objectives of the Treaty. This is because 
the  non-recognition  of  a  child’s  parenthood  has  adverse  consequences  on  the  child’s  fundamental 
rights, in particular the right to an identity, to non-discrimination and to respect for private and family 
life.  It  may  also  result  in  the  denial  in  another  Member  State  of  rights  that  children  derive  from 
parenthood under national law, such as their succession or maintenance rights, or their right to have 
one  of  their  parents  act  as  their  legal  representative  in  another  Member  State  on  matters  such  as 
medical treatments, schooling, or the management of their property. 

As the objective of the proposal is to protect the rights of children in cross-border situations and has 
the best interests of the child as its primary consideration, the proposal is consistent with the objective 
of protecting and promoting the rights of the child set out in the Treaty on European Union (Article 
3(3)  and  3(5)  TEU)  and  the  Charter  of  Fundamental  Rights  of  the  European  Union.  The  Charter 
guarantees,  in  the  application  and  implementation  of  Union  law,  the  protection  of  the  fundamental 
rights of children and their families. These rights include the right to respect for private and family life 
(Article 7), the right to non-discrimination (Article 21), and the right of children to maintain a regular 
and direct relationship with both parents if it is in their best interests (Article 24). Based on the UN 
Convention on the Rights of the Child, Article 24(2) of the Charter also provides that, in all actions 
relating to children, whether taken by public authorities or private institutions, the child's best interests 
must be a primary consideration.  

Action at Union level to address the non-recognition of parenthood and its adverse consequences on 
the fundamental rights of children  is intended to ensure the protection of such fundamental rights in 
cross-border situations and thus of one of the core objectives of the Treaties. 

4 

https://europa.eu/european-union/about-eu/eu-in-brief_en. 

3 

 
 
 
 
 
 
                                                           
(c)  To  what  extent  do  Member  States  have  the  ability  or  possibility  to  enact  appropriate 

measures? 

Under  the  Treaties,  substantive  law  on  family  matters,  including  the  legal  status  of  persons,  falls 
within the competence of Member States, which means that the establishment of the parenthood of a 
person in a purely national situation  is currently governed by national law. However, the Union can 
adopt measures concerning family law with cross-border implications pursuant to Article 81(3) TFEU, 
such  as  measures  to  facilitate  that,  once  parenthood  has  been  established  in  a  Member  State,  it  is 
recognised in all other Member States. These measures can include the adoption of common rules on 
jurisdiction, applicable law and procedures for the recognition of parenthood. These measures will not 
lead to the harmonisation of the definition of family or of the substantive rules on the establishment of 
parenthood in the Member States. 

The  main  reasons  for  the  current  difficulties  with  the  recognition  of  parenthood  between  Member 
States  are  that  the  Member  States  have  diverging  substantive  law  rules  on  the  establishment  of 
parenthood in domestic situations; diverging rules determining the law applicable to the establishment 
of parenthood in cross-border situations; and diverging rules on the recognition in a Member State of 
the parenthood established in another Member State. 

Member States acting individually could not satisfactorily remove the problems with the recognition 
of  parenthood  as  Member  States’  rules  and  procedures  would  need  to  be  the  same  or  at  least 
compatible in order for parenthood to be recognised between Member States. Action at Union level is 
needed  to  ensure  that  a  Member  State  whose  courts  or  other  competent  authorities  establish 
parenthood  is  regarded  as  having  jurisdiction  to  do  so,  and  that  the  courts  and  other  competent 
authorities  of  all  Member  States  will  apply  the  same  law  to  establish  parenthood  in  cross-border 
situations. In this way conflicting parenthoods for the same child would be avoided within the Union 
and each Member State would recognise the parenthood established in another Member State.  

(d)  How  does  the  problem  and  its  causes  (e.g.  negative  externalities,  spill-over  effects)  vary 

across the national, regional and local levels of the EU? 

The  current  problems  with  the  recognition  of  parenthood  between  Member  States  stem  from  (i)  the 
differences  in  Member  States’  laws  on  the  establishment  of  parenthood  (both  substantive  rules  and 
applicable law rules); (ii) differences in Member States’ rules on the recognition of parenthood; and 
(iii)  the  absence  of  Union  legislation  guaranteeing  the  recognition  of  parenthood  between  Member 
States for all purposes.  

Problems with the recognition of parenthood may arise more frequently or be more serious depending 
on the Member States’ laws on the definition of family  and on the criteria applied  by each Member 
State to recognise or refuse parenthood established abroad. These difficulties may lead families to start 
litigation  to  have  the  parenthood  of  their  children  recognised  in  some  Member  States  more  than  in 
others, but this litigation has uncertain results and involves time, costs and burden for both families 
and the judicial systems of the Member States. Ultimately, families are often deterred from exercising 
their right to free movement for fear that the parenthood of their children will not be recognised for all 
purposes if they move to another Member State or return to their Member State of origin, which means 
that the problems with the recognition of parenthood affect all Member States and thus have a Union-
wide scope. 

(e)  Is the problem widespread across the EU or limited to a few Member States? 

See Section 2.3 (d). 

(f)  Are Member States overstretched in achieving the objectives of the planned measure? 

No. As regards legislation, the proposal would not affect the jurisdiction rules or the substantive law 

4 

 
 
 
 
 
rules  currently  applied  by  each  Member  State  to  establish  parenthood  in  domestic  situations.  In  the 
proposal,  the  rules  on  international  jurisdiction  and  applicable  law  to  establish  parenthood  in 
cross-border  situations  are  based  on  connecting  factors  (namely,  habitual  residence,  nationality  and 
State  of  birth)  already  used  by  several  Member  States  in  their  national  rules  on  international 
jurisdiction and applicable law. As regards the rules on the recognition of parenthood in the proposal, 
these are based on the rules already included in all other Union instruments on private international 
law,  which  have  been  applied  for  many  years  and  with  which  Member  State  judges  and  other 
authorities are already familiar. 

As regards costs, the proposal would only generate: (i) one-off adjustment costs, (ii) minor recurrent 
adjustment costs and (iii) marginal enforcement costs. The one-off adjustment costs would include, for 
instance, costs arising from the need to train judges and other authorities on the new rules to establish 
parenthood in cross-border situations or IT-related costs. Minor recurrent adjustment costs would also 
be incurred (for example, costs for the upkeep of IT systems, for the issuance of European Certificates 
of  Parenthood  to  citizens,  or  the  continuous  training  of  Member  State  authorities  applying  the 
Regulation). Finally, the enforcement costs (i.e. costs for collecting information for the review of the 
regulation) associated with activities such as monitoring of the application of the Regulation would be 
marginal.  In  any  event,  the  majority  of  national  ministries  consulted  in  preparing  the  impact 
assessment  considered  that  the  costs  resulting  from  the  introduction  of  the  new  rules  would  be 
compensated, in the medium or long term, by the decrease of the current costs for the recognition of 
parenthood.  

(g)  How do the views/preferred courses of action of national, regional and local authorities differ 

across the EU? 

Member States were consulted in the preparation of the proposal. Experts of all Member States were 
invited to a meeting in January 2022 to discuss the planned contents of the proposal. In addition, some 
Member  States replied  to  the  Commission’s open  public  consultation  and/or to the questionnaire  by 
the external contractor designed to collect information about  current problems and views on the best 
way to address them.  

A  majority  of  Member  States  considered  that,  without  any  intervention  at  Union  level,  the  existing 
problems  with  the  recognition  of  parenthood  would  continue  to  exist  and  possibly  increase.  Most 
Member  States  agreed  that  the  rights  of  children  and  their  best  interests  had  to  be  a  primary 
consideration of any Union initiative on the recognition of parenthood. Non-legislative measures such 
as cooperation and exchanges between Member States’ authorities on the recognition of parenthood, 
possibly  in  the context  of the  European Judicial  Network,  or  an  exchange  of best  practices  between 
Member  States,  were  supported  by  a  majority  of  Member  States,  either  to  complement  Union 
legislation on the recognition of parenthood or as the only measure  that should be adopted at Union 
level.  The  Member  States’  preliminary  views  on  the  desirability  of  Union  legislation  on  the 
recognition of parenthood were divided. Most Member States cautiously supported legislation in view 
of  the  increasing  number  of  cross-border  families  that  face  problems  with  the  recognition  of 
parenthood  and  the  need  to  protect  children’s  fundamental  rights.  Other  Member  States  were  more 
sceptical about adopting legislation, arguing that problems with the recognition of parenthood in the 
Union are not significant or that their legislation or practice address the situation sufficiently. 

Besides  the  consultations  of  Member  States,  the  Commission  and  the  external  contractor  received 
feedback  from  legal  practitioners  dealing  with  parenthood  matters  in  the  Union,  including  Member 
States’ civil registrars and municipalities, notaries and judges. These legal practitioners were generally 
of the view that Union legislation facilitating the recognition of parenthood between Member States 
would be useful  as it would  address existing problems. The views on the incidence of the problems 
with  the  recognition  of  parenthood  varied  among  practitioners,  those  coming  from  regions  or 
municipalities with more cross-border families considering that problems arise more frequently.  

5 

 
 
 
 
 
2.4  Based  on  the  answer  to  the  questions  below,  can  the  objectives  of  the  proposed  action  be 
better achieved at Union level by reason of scale or effects of that action (EU added value)? 

Yes. As explained, the objective of the proposal is to facilitate the recognition of parenthood between 
Member States and to protect the fundamental rights and other rights of children in matters concerning 
their  parenthood  in  cross-border  situations.  In  addition,  the  proposal  aims  to  provide  legal  certainty 
and predictability for the establishment of parenthood in cross-border situations, for the recognition of 
parenthood in another Member State and to reduce legal costs and burden for families and the Member 
States’  authorities  (such  as  civil  or  population  registrars,  courts  and  notaries)  in  connection  with 
proceedings for the recognition of parenthood. 

These  objectives  would  be  best  achieved  through  the  adoption  of  common  rules  on  international 
jurisdiction, on the law applicable to the establishment of parenthood in cross-border situations and on 
the  recognition  of  parenthood.  The  adoption  and  uniform  application  of  these  rules  throughout  the 
Union  cannot  be  achieved  by  Member  States  acting  individually  but  can  be  achieved  by  Union 
legislation,  in  line  with  other  Union  regulations  on  family  law  with  cross-border  implications5. 
Therefore, for reasons of scope and effects, the objectives of the  proposal would be best achieved at 
Union level in accordance with the principle of subsidiarity. 

(a)  Are there clear benefits from EU level action?  

Yes. The adoption of uniform rules facilitating the recognition of parenthood between Member States 
can be best achieved at Union level. In addition, the uniform rules would be supported by a uniform 
interpretation by the Court of Justice and therefore their consistent application under the control of the 
Court. 

The  current  problems  with  the  recognition  of  parenthood  for  all  purposes  in  another  Member  State 
may interfere with the fundamental rights of children, in particular their right to an identity, to non-
discrimination  and  to  respect  for  private  and  family  life.  The  rights  of  children  derived  from  the 
national  law  of  another  Member  State  may  also  be  denied,  such  as  their  right  to  maintenance  or 
succession,  or  the  right  to  have  either  of  their  parents  act  as  their  legal  representative  in  another 
Member  State  in  matters  such  as  school  enrolment,  the  opening  of  a  bank  account  or  consent  to 
medical treatment. Currently, the non-recognition of parenthood may prompt families to start litigation 
to have the parenthood of their child recognised in another Member State. However, these proceedings 
involve  significant  costs,  time  and  burden  for  families  and  have  uncertain  results.  In  addition,  the 
non-recognition  of  parenthood  has  a  negative  impact  on  the  emotional  and  social  well-being  of 
children  and  their  families.  Ultimately,  children  and  their  families  may  be  deterred  from  exercising 
their right to free movement for fear that the parenthood of the child will not be recognised in another 
Member  State  for  all  purposes.  The  adoption  of  Union  legislation  facilitating  the  recognition  of 
parenthood  in  all  Member  States  would  do  away  with  such  adverse  consequences  on  the  rights  of 
children and on their families. 

The impact of the adoption of the proposal would therefore be positive, in particular on the protection 
of the fundamental rights of children (such as their right to an identity, to non-discrimination and to a 
private and family life) and of the rights of children derived from parenthood under national law (such 
as  succession  and  maintenance  rights).  The  adoption  of  the  proposal  would  improve  legal  certainty 
and predictability for the establishment of parenthood in cross-border situations, avoiding conflicting 
decisions on parenthood in different Member States. The adoption of the proposal would also have a 
positive  social  impact,  leading  to  children  in  cross-border  families  being  treated  as  local  children. 

5 
For  example,  Council  Regulation  (EC)  No  4/2009  on  jurisdiction,  applicable  law,  recognition  and 
enforcement of decisions and cooperation in matters relating to maintenance obligations (OJ L 7, 10.1.2009, p. 
1);  Council  Regulation  (EU)  2019/1111  on  jurisdiction,  the  recognition  and  enforcement  of  decisions  in 
matrimonial matters and the matters of parental responsibility, and on international child abduction (OJ L 178, 
2.7.2019, p. 1). 

6 

 
 
 
 
 
                                                           
Through the adoption of Union uniform rules, the proposal would reduce costs, time and burden for 
both families and Member States’ courts and authorities in connection with administrative procedures 
and litigation to have parenthood recognised in another Member State.  

(b)  Are there economies of scale? Can the objectives be met more efficiently at EU level (larger 

benefits per unit cost)? Will the functioning of the internal market be improved? 

The  current  problems  with  the  recognition  of  parenthood  have  a  significant  adverse  impact  on  the 
fundamental  rights  and  other  rights  of  children  in  cross-border  situations.  In  view  of  this,  the 
quantitative size of the problem in terms of the absolute number of children and families affected by 
the  non-recognition  of  parenthood  should  not  be  considered  as  the  prime  or  only  indicator  of  the 
seriousness of the problem, or as the basis to assess the need for the Union to take action to address the 
problem.  In  addition,  while  the  adoption  of  the  proposal  would  reduce  the  costs  related  to  the 
recognition of parenthood for both families and Member States’ authorities, these quantitative impacts 
are considered only secondary as compared to the positive impact that the proposal would have on the 
protection of the fundamental rights of children. 

Even  considering  the  above,  the  adoption  of  the  proposal  would  result  in  cost  reductions  for  both 
cross-border families and Member States’ authorities. These cost reductions were quantified, based on 
a number of assumptions, in the impact assessment.  

•  The  costs  for  cross-border  families,  especially  for  those  that  are  most  affected  by  the 
non-recognition  of  parenthood  in  another  Member  State,  would  be  drastically  reduced.  It  is 
estimated that the average costs per case of recognition procedures currently borne by cross-
border  families  would  decrease  by  71%  under  the  proposal  as  compared  to  the  current 
situation, and by 90% for the families that are most affected by problems with the recognition 
of parenthood. 

•  For the same reason, the proposal would lead to significant savings of costs, time and burden 
for  the  authorities  of  the  Member  States.  It  is  estimated  that  the  costs  for  recognition 
procedures  currently  borne  by  Member  States’  authorities  would  decrease  by  54%  as 
compared to the current situation.  

Given its nature, the proposal would not have a direct impact on the functioning of the internal market, 
but  it  would  have  a  positive  impact  on  the  free  movement  of  persons  within  the  Union  as  families 
would not be deterred from exercising their right to free movement. 

(c)  What  are  the  benefits  in  replacing  different  national  policies  and  rules  with  a  more 

homogenous policy approach? 

The introduction  at Union level of  uniform  rules  on international jurisdiction and applicable law for 
the  establishment  of  parenthood  in  cross-border  situations  and  on  the  recognition  of  parenthood 
established in another Member State would avoid the current situations in which different parenthoods 
are  established in  different  Member  States  (where  a child  has  different  parents in  different  Member 
States), and would result in the recognition in a Member State of the parenthood established in another 
Member State. This would provide legal certainty, ensure the continuity of parenthood in cross-border 
situations and protect the fundamental rights and other rights of children in cross-border situations.   

(d)  Do the benefits of EU-level action outweigh the loss of competence of the Member States and 
the local and regional authorities (beyond the costs and benefits of acting at national, regional 
and local levels)? 

Yes. The proposal would not affect the Member States’ exclusive competence to regulate matters of 
substantive family law.  Member States  would continue to decide how  family should be defined, the 
substantive conditions and procedures to establish parenthood in domestic situations and the rights and 

7 

 
 
 
 
 
 
obligations derived from parenthood. The measures adopted under Article 81(3) TFEU on family law 
with cross-border implications would not affect the competence of Member States to legislate on such 
matters. To protect the fundamental rights and other rights of children in cross-border situations, the 
proposal  only  proposes  uniform  rules to facilitate  that,  once  parenthood has  been  established in one 
Member State under the applicable law designated by the Regulation, that parenthood is recognised in 
other Member States.  

In addition, when applying their national law, Member States are already bound by their obligations 
under international law, in particular the case law of the European Court of Human Rights interpreting 
the European Convention on Human Rights, including its case law on the recognition of parenthood of 
children  adopted  abroad  or  born  through  surrogacy  arrangements  abroad.  Member  States  are  also 
obliged to protect the rights of children as laid down in the United Nation’s Convention on the Rights 
of the Child.  

Finally, by harmonising the Member States’ rules on international jurisdiction and applicable law for 
the  establishment  of  parenthood  in  cross-border  situations  and  on  the  recognition  of  parenthood 
established  in  another  Member  State,  the  adoption  of  the  proposal  would  ensure  the  continuity  of 
parenthood status in the Union, which Member States individually cannot achieve.  

In  view  of  the  above,  the  benefits  of  action  at  Union  level  outweigh  the  loss  of  competence  of  the 
Member  States  as  regards  the  establishment  of  parenthood  in  cross-border  situations  and  the 
recognition of the parenthood established in another Member State. 

(e)  Will there be improved legal clarity for those having to implement the legislation? 

Yes.  The  aims  of  proposing  uniform  rules  for  the  establishment  of  parenthood  in  cross-border 
situations and on the recognition of parenthood established in another Member State are (i) to provide 
legal  certainty  and  predictability  as  to  which  national  law,  out  of  all  the  possible  national  laws  that 
could apply in a given cross-border situation, should apply to establish parenthood in that cross-border 
situation  to  avoid  that  conflicting  parenthoods  are  established  in  different  Member  States,  (ii)  to 
provide legal certainty about the fact that the parenthood of a given child (or adult) as established in 
one  Member  State  will  be  recognised  in  all  other  Member  States  to  ensure  that  the  status  of 
parenthood  as  established  in  one  Member  States  will  have  continuity  in  other  Member  States.  The 
aims  of  the  proposal  will  thereby  translate  into  the  protection  of  the  fundamental  rights  and  other 
rights of children in cross-border situations and in the elimination or  a significant reduction of costs 
and  burden  for  families  and  Member  States’  courts  and  authorities  as  regards  litigation  for  the 
recognition of parenthood in another Member State.   

3.  Proportionality: How the EU should act 

3.1   Does  the  explanatory  memorandum  (and  any  impact  assessment)  accompanying  the 
Commission’s  proposal  contain  an  adequate  justification  regarding  the  proportionality  of 
the proposal and a statement allowing appraisal of the compliance of the proposal with the 
principle of proportionality? 

Yes.  Both  the  explanatory  memorandum  and  the  impact  assessment  include  an  appraisal  of  the 
compliance  of  the  proposal  with  the  principle  of  proportionality.  As  the  explanatory  memorandum 
summarises:  

The objective of this proposal is to facilitate the recognition of parenthood between Member States by 
providing  for  the  recognition  of  (i)  court  decisions  and  (ii)  authentic  instruments  establishing 
parenthood  with  binding  legal  effect,  and  the  acceptance  of  authentic  instruments  which  have  no 
binding legal effect in the Member State of origin but which have evidentiary effects in that Member 
State. To that effect, the proposal harmonises the Member States’ rules on international jurisdiction 
for the establishment of parenthood and the Member States’ conflict of laws rules designating the law 

8 

 
 
 
 
 
 
applicable to the establishment of parenthood in cross-border cases. 
The proposal does not go beyond what is necessary to achieve its objectives: it does not interfere with 
national law on the definition of family; it does not affect national law on the recognition of marriage 
or  registered  partnerships;  it  applies  only  to  the  establishment  of  parenthood  in  cross-border 
situations; it requires Member States to recognise parenthood only where it has been established in a 
Member  State  and  not  in  a  third  country;  it  will  not  affect  the  recognition  of  parenthood  for  the 
purposes of rights derived from Union law, in particular the right to free movement; it does not affect 
the  competence  of  the  authorities  of  the  Member  States  to  deal  with  parenthood  matters;  and  the 
European  Certificate  of  Parenthood  is  optional  and  will  not  replace  equivalent  national  documents 
providing evidence of parenthood.  
The proposal therefore respects the principle of proportionality. 

3.2  Based  on  the  answers  to  the  questions  below  and  information  available  from  any  impact 
assessment,  the  explanatory  memorandum  or  other  sources,  is  the  proposed  action  an 
appropriate way to achieve the intended objectives? 

Yes.  To  achieve  the  objectives  of  the  proposal  (see  Section  1.1)  it  is  necessary  to  harmonise  the 
Member  States’  rules  on  international  jurisdiction  and  applicable  law  for  the  establishment  of 
parenthood in cross-border situations as well as the rules on the recognition of parenthood established 
in  another  Member  State  so  as  to  facilitate  the  circulation  of  (i)  court  decisions,  (ii)  authentic 
instruments establishing parenthood with binding legal effect, and (iii) authentic instruments with no 
legal  binding  effect  but  with  evidentiary  effects  (such  as  birth certificates,  which  are the  documents 
most  commonly  used  by  citizens  to  provide  evidence  of  the  parenthood  of  a  child).  The  proposal 
includes rules governing the circulation of all these documents to ensure the continuity of parenthood 
status in the Union and the protection of children’s fundamental rights and other rights in cross-border 
situations within the Union. The rules in the  proposal are thus appropriate to achieve the proposal’s 
intended objectives.  

(a)  Is  the  initiative  limited  to those aspects  that  Member  States  cannot achieve  satisfactorily  on 

their own, and where the Union can do better? 

Yes. The proposal only contains common rules to the extent necessary to ensure the recognition of the 
parenthood of a child between Member States. It does not interfere with national law on the definition 
of family; it does not affect national law on the recognition of marriage or registered partnerships; it 
applies only to the establishment of parenthood in cross-border situations; it requires Member States to 
recognise parenthood only where it has been established in a Member State and not in a third country; 
it will not affect the recognition of parenthood for the purposes of rights derived from Union law, in 
particular  the  right  to  free  movement;  it  does  not  affect  the  competence  of  the  authorities  of  the 
Member  States  to  deal  with  parenthood  matters;  and  the  European  Certificate  of  Parenthood  is 
optional and will not replace equivalent national documents providing evidence of parenthood.  

(b)  Is  the  form  of  Union  action  (choice  of  instrument)  justified,  as  simple  as  possible,  and 
coherent  with  the  satisfactory  achievement  of,  and  ensuring  compliance  with  the  objectives 
pursued  (e.g.  choice  between  regulation,  (framework)  directive,  recommendation,  or 
alternative regulatory methods such as co-legislation, etc.)? 

Yes.  The  adoption  of  uniform  rules  on  international  jurisdiction  and  applicable  law  for  the 
establishment of parenthood in cross-border situations can only be achieved through a Regulation as 
only a Regulation ensures a fully consistent interpretation and application of the rules (in contrast with 
a  Directive),  and  only  a  binding  instrument  ensures  that  all  Member  States  will  apply  the  common 
rules  (in  contrast  with  a  Recommendation).  In  line  with  previous  Union  instruments  on  private 
international law, the proposal should therefore be adopted by means of a Regulation. 

(c)  Does the Union action leave as much scope for national decision as possible while achieving 
satisfactorily the objectives set? (e.g. is it possible to limit the European action to minimum 

9 

 
 
standards or use a less stringent policy instrument or approach?) 

Yes. The proposal only harmonises Member States’ rules on the establishment of parenthood in cross-
border  situations  but  does  not  interfere  with  national  law  on  the  definition  of  family  and  does  not 
require the recognition of the marriage or the registered partnership of the parents. The proposal also 
does  not  affect  the  competence  of  the  authorities  of  the  Member  States  to  deal  with  parenthood 
matters, which can vary from one Member State to another (for example, whether in a Member State 
only  courts  or  also  other  authorities  such  as  notaries,  registrars  or  administrative  authorities  can 
establish parenthood). 

The proposal only requires Member States to recognise parenthood where it has been established in a 
Member State but not where it has been established in a third country. Therefore, the proposal only 
requires the recognition of court decisions on parenthood and the recognition or, as the case may be, 
acceptance  of  authentic  instruments  on  parenthood  issued  in  a  Member  State,  but  not  when  such 
decisions and authentic instruments have been issued in a third country.  

The proposal does not affect the existing obligation requiring Member States to recognise parenthood 
for the purposes of rights derived from Union law, in particular the right to free movement. 

The proposal creates a European Certificate of Parenthood to facilitate the recognition of parenthood 
in  another  Member  State,  but  this  certificate  is  optional  and  would  not  replace  equivalent  national 
documents  providing  evidence  of  parenthood  and  which  would  circulate  under  the  proposal  as  a 
national authentic instrument. 

Finally, the proposal would not lead to the creation of any new bodies or agencies, whether at Union 
or national level.  

(d)  Does the initiative create financial or administrative cost for the Union, national governments, 
regional  or  local  authorities,  economic  operators  or  citizens?  Are  these  costs  commensurate 
with the objective to be achieved? 

The costs that would be created by the proposal would be small and commensurate with the objectives 
to be achieved. In addition, they would be outweighed to a large extent by the benefits brought about 
by the proposal. 

As  regards  costs  borne by  Member  States, the proposal  would  only  generate:  (i)  one-off  adjustment 
costs,  (ii)  minor  recurrent  adjustment  costs  and  (iii)  marginal  enforcement  costs.  The  one-off 
adjustment  costs  would  include,  for  instance,  costs  arising  from  the  need  to  train  judges  and  other 
authorities on the new rules to establish parenthood in cross-border situations or IT-related costs. The 
proposal  includes  provisions  on  digital  communication  between  citizens  and  Member  States’ 
authorities through the European electronic access point in the context of the decentralised IT system. 
This will entail some costs for the Union, but the impact on the Union budget will be small, because 
the necessary IT infrastructure would not be developed for the purposes of the proposal on parenthood 
but to cover all existing instruments on judicial cooperation in civil/commercial and criminal matters. 

Minor  recurrent  adjustment  costs  would  also  be  incurred  (for  example,  costs  for  the  upkeep  of  IT 
systems, for the issuance of European Certificates of Parenthood to citizens, or the continuous training 
of Member State authorities applying the Regulation). Finally, the enforcement costs associated with 
activities such as monitoring of the application of the Regulation would be marginal.  

In  any  event,  the  majority  of  national  ministries  consulted  in  preparing  the  impact  assessment 
considered that the costs resulting from the introduction of the new rules would be compensated, in the 
medium or long term, by the decrease of the current costs for the recognition of parenthood.  

(e)  While respecting  the  Union  law,  have  special  circumstances applying  in  individual Member 

10 

 
 
 
 
 
 
 
 
 
States been taken into account? 

The  rules  in  the  proposal  are  designed  to  harmonise  the  Member  States’  rules  on  international 
jurisdiction,  applicable  law  and  recognition  in  matters  concerning  parenthood.  However,  in 
harmonising those rules, the proposal takes into account the characteristics of the Member States legal 
systems.  For  example,  in  deciding  on  the  applicable  law,  the  proposal  has  taken  into  account  the 
connecting  factors  used  most  frequently  by  the  Member  States  and,  in  deciding  on  the  types  of 
documents  that  should  circulate  within  the  Union,  the  proposal  has  taken  into  account  the  different 
systems of establishing parenthood in the Member States as well as the particularities of each Member 
State  as  regards  the  national  competence  of  authorities  dealing  with  parenthood.  This  is  without 
prejudice to the fact that Denmark will not take part in the adoption of the Regulation as it does not 
take part in the measures adopted under Article 81 TFEU6, and without prejudice to Protocol No 21, 
whereby Ireland can notify once the proposal is adopted whether it wishes to take part in the adoption 
and application of the new regulation. 

6 

Protocol No 22 on the Position of Denmark, annexed to the Treaties. 

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