CELEX: 52011PC0276
Language: en
Date: 2011-05-18
Title: Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on mutual recognition of protection measures in civil matters

|
			
		
		
		52011PC0276
		
			REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on mutual recognition of protection measures in civil matters  Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on mutual recognition of protection measures in civil matters /* COM/2011/0276 final - COD 2011/0130 */
			
				
		
		
			
			   	EXPLANATORY MEMORANDUM

1.                      
CONTEXT OF THE PROPOSAL

This proposal
is part of a legislative package which aims at strengthening the rights of
victims in the EU and which also includes the following other elements: a
communication on the strengthening of victims' rights in the EU and a directive
establishing minimum standards on the rights, support and protection of victims
of crime. This proposal, dealing with protection orders taken in civil matters,
aims at complementing a Member States' initiative of september 2009 for a
Directive on the European Protection Order[1],
which will ensure the mutual recognition of protection measures taken in
criminal matters.
The European Union has set itself the
objective of maintaining and developing an area of freedom, security and
justice, the cornerstone of which is the principle of mutual recognition of
judgments and other decisions of judicial authorities within the Union. 
The Stockholm
Programme (2010-2014)[2]
and the Commission's action plan to implement it, recognise the need for
further action to place the needs of victims of crime at the centre of our
justice systems. They place victims high on the EU agenda and firmly establish
the need and intention to create an integrated and co-ordinated approach to
victims, in line with the October 2009 JHA Council Conclusions[3]. 
The European
Union has already acted on the rights of victims in criminal proceedings
through Council Framework Decision 2001/220/JHA of 15 March 2001 on the
standing of victims in criminal proceedings. Whilst improvements have been
achieved on victims' rights, the objectives of the Council Framework decision
have not been fully realised. 
The European
Parliament has also called upon the Council to adopt a comprehensive legal
framework offering victims of crime the widest protection[4]. In its resolution of 26
November 2009[5]
on the elimination of violence against women the European
Parliament calls on the Member States to improve their
national laws and policies to combat all forms of violence against women and to
act in order to tackle the causes of violence against women, not least by
employing preventive measures and calls on the Union to guarantee the right to
assistance, protection and support for all victims of violence.
In a common area of freedom, security and
justice, victims of (for example, domestic) violence or persons whose physical
and/or psychological integrity or liberty is at risk and who benefit from a
protection measure taken in one Member State should benefit from the same level
of protection in other Member States should they move or travel, without going
through expensive and time consuming procedures. Such action also replies to
the Commission's call to further dismantle the obstacles to citizens' rights,
set out in its Citizenship Report" of 27 October 2010[6].
In September 2009, 12 Member States put
forward a proposal for a Directive of the European Parliament and of the
Council on the European Protection Order[7].
During the negotiations, it appeared that the mechanisms used in this
instrument, based on Article 82 TFUE dealing with mutual recognition in
criminal matters, is not compatible with the ambitious standard of mutual
recognition already reached for civil matters, covered by Article 81 TFUE. The
present proposal therefore aims at completing a legal instrument on the mutual
recognition of protection measures taken in criminal matters to ensure that all
protection measures taken in  a Member State benefit from an efficient
mechanism to ensure their free circulation throughout the EU.

2.                      
CONSULTATION AND IMPACT ASSESSMENT

The need for this proposal applying exclusively to
protection orders taken in civil proceedings appeared during the negotiation of
the Member States' initiative for a European Protection Order which was
accompanied by an Impact Assessment. To consult more specifically on the need
for and the modalities of this proposal, the Commission launched additional
consultations with Member States, other institutions and experts from different backgrounds. 
The Commission
first hosted an experts' meeting on 25 May 2010 which confirmed that many
Member State have put civil law protection measures in place, the mutual
recognition of which should follow the common standards used in civil matters,
rather than the more heavy procedures which are common standard in criminal
matters.
The European
Commission also contracted an external Study to assist with the impact
assessment in identifying the needs of victims of crime, which measures could
be established to meet these needs and to examine the impacts of any possible
options[8].
As part of the preparation process of the Impact Assessment, the Commission
held a public consultation from 15 July 2010 to 30 September 2010, open to all
members of the public as well as to non-governmental and governmental
organisations asking their views on what action the EU should take to improve
the situation of victims of crime, including in the field of protection orders.

A further study
was contracted to examine options in relation to the specific objective of
ensuring that the protection gained through a protection order is not lost when
a protected person travels or moves to another Member States[9].

3.                      
LEGAL ELEMENTS OF THE PROPOSAL 
3.1.                
Legal basis

This proposal is based on Article 81(2)(a), (e) and (f) of
the Treaty on the Functioning of the European Union. According
to Article 81 the Union shall develop judicial cooperation in civil matters
having cross-border implications, based on the principle of mutual recognition
of judgments and of decisions in extrajudicial cases. Such cooperation may
include the adoption of measures for the approximation of the laws and
regulations of the Member States.
For these
purposes, the European Parliament and the Council, acting in accordance with
the ordinary legislative procedure, shall adopt measures, particularly when
necessary for the proper functioning of the internal market, aimed at ensuring,
inter alia, the mutual recognition and enforcement between Member States
of judgments and of decisions in extrajudicial cases. 

3.2.                
Summary of the proposed regulation 

To protect victims of violence, in
particular domestic violence, stalking or violence against children, the
national laws of the Member States provide for the possibility to adopt
temporary and preventative measures with a view to protecting a person when a
serious risk exists to consider the persons physical and/or psychological
integrity or liberty at risk. Protection measures are issued by a judicial or
other authority upon request of the person at risk. Many of them are ordered without
the person causing the risk being summoned to appear, in particular in case of
urgency ("ex parte" procedures). Protection measures consist
of, for example, the obligation not to approach the protected person closer
than a prescribed distance, or the obligation not to enter certain localities
where the protection person resides or that he visits. A specificity of many
protection measures is that the public authorities do not actively intervene to
ensure their execution: in case of violation of his obligation by the person
causing the risk, the person is directly subject to a sanction, often to a
criminal sanction.
Due to the increase of free movement more
persons are moving or travelling abroad. Consequently, it is extremely
important to ensure that such a temporary protection provided in one Member
State is maintained when a person travels or moves to another Member State
without having to go through time-consuming procedures. Civil judicial cooperation has developed in the context of the creation of an internal market in Europe based on the
premise of mutual recognition of judicial and extra-judicial decisions. Such
mutual recognition has been gradually improved by lowering the controls with
respect to foreign decisions in the Union. This proposal provides for a speedy
and efficient mechanism to ensure that the Member State to which the person at
risk moves will recognise the protection measure issued by the first Member
State without any intermediate formalities. As for other mutual recognition instruments in civil matters, this
proposal introduces a standardised certificate which contains
all information relevant for the recognition and, where applicable,
enforcement. Therefore, a certificate will be issued by the competent authority
of the first Member State, either ex-officio or on request of the protected
person, who will then contact the competent authorities in the second Member
State and provide them with the certificate. The competent authorities of the
second Member State will notify the person causing the
risk about the geographical extension of the foreign protection measure, the
sanctions applicable in case of its violation and, where applicable, ensure its
enforcement. 
In order to ensure a quick, cheap and
efficient mechanism of circulation of protection measures in the European
Union, the rationale of 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 ('Brussels II-bis')[10] and in particlar Articles 41
and 42 thereof, has been followed. Inspiration has been taken also from the
Commission's proposal for a recasting of Council Regulation (EC) No 44/2001
('Brussels I')[11].
The proposal provides for the abolition of intermediate procedures and no
grounds for refusal have been proposed, except for the existence of an
irreconcilable decision in the Member State of recognition.
Automatic
recognition also applies when the Member State of recognition and/or
enforcement does not have protection measures in civil matters. This is indeed
a fundamental principle of mutual recognition in civil matters: the fact that
the Member State where the recognition and/or enforcement are sought does not
foresee a measure in its internal law must not affect its obligation to
recognise and, where applicable, enforce the measure taken by another Member
State. The nature of the authority which has taken the protection measures
(civil court, mayor, criminal court) is not decisive with this respect. 
The abolition
of intermediate procedures will be accompanied by fundamental
rights safeguards:
–     
The authority of the first Member State which
will be requested to issue the certificate will have to check that the right to
a fair trial, in particular the right of defence, of the person causing the
risk has been respected. In case such rights have not been guaranteed, the
certificate cannot be issued.
–     
In case of suspension of withdrawal of the
protection measure by the first Member State, the competent authority of the
second Member State has, at request of the person causing the risk, to suspend
or withdraw its recognition and, when applied, enforcement.
–     
The competent authorities of both Member States
have to bring to the notice of the person causing the risk and to the protected person any information related to the issuing, recognition, possible
enforcement and sanctions, suspension or withdrawal of the protection measure.
All these
safeguards ensure the fundamental rights and principles recognised in
particular by the Charter of Fundamental Rights of the European Union be
guaranteed, while
the time and costs of the exequatur procedure will be saved.
The proposal
does not deal with criminal sanctions put in place by Member States in case of
violation of a protection measure. This question will continue to be dealt with
by the national law of each Member State.

3.3.                
Analysis of the most important Articles

This proposal
is a mutual recognition instrument in civil matters and as such it follows the rationale
of existing EU instruments on judicial cooperation in civil and commercial
matters, from which it takes broad inspiration. Many articles are similar or
equal to the correspondent articles in the mentioned legislation. 
Article 1 -
Scope
Certain
protection measures are already covered by Brussels I[12] and Brussels II-bis
Regulations, hence it is important to clarify the
articulation of the proposal with these regulations.
This Regulation
establishes special rules in relation to protection measures. Following a general principal of law, it shall therefore supersede the general rules set out by Brussels I. 
The situation
is different as regards Regulation Brussels II-bis, the aim of which is to
centralise all proceedings relating to a given divorce or legal separation.
This proposal must not jeopardise rules governing
jurisdiction and the recognition of judgments contained in that specific
instrument by offering the possibility to seize the jurisdiction of another
Member State as regards the protection measures taken in the context of the
ongoing proceedings. For this reasons, all protection measures entering into
the scope of Brussels II-bis shall continue to be governed by this instrument.
However, the protection measures which do not fall under the application of
Brussels II-bis, e.g. protection measures which would concern a couple which
has not been married, same sex partners or neighbours, will be covered by this
proposal. 
Article 2 - Definitions
Protection
measures - The definition of the term 'protection
measure' stresses the preventive and temporary nature
of such measures, which are taken in a Member State with a view to protecting a
person when serious reasons exist to consider the persons' physical and/or
psychological integrity or liberty to be at risk. A 'protection measure' may be
taken either in ex parte proceedings (without the person causing the
risk being summoned to appear) or in proceedings on notice to both parties.
Authority - The definition of the term 'authority' is
broad in order to include any authority designated by a
Member State as having competence in the matters falling within the scope of
this Regulation. Hence, the term includes not only courts and tribunals, but
also administrative and other authorities which under the national law of a
Member State have competence in the matters falling within the scope of this
Regulation.
Article 3 - Jurisdiction
The rules of jurisdiction should be highly
predictable. Therefore, they are founded on the principle that jurisdiction is
that of the authorities of the Member State where the person's physical and/or
psychological integrity is at risk and where a person needs protection.
Although this generally dovetails with the habitual residence of the person who
needs protection, it may be not the case, i.e. when the person moves abroad for
a determined and relatively short period of time for study reasons, for
example. 
Article 4 - Recognition 
This Article takes
inspiration from other mutual recognition instruments in civil law matters,
namely the proposal for recasting Brussels I and
Brussels II-bis, namely on the right of access or the return of the child. No
intermediate procedures are required: the recognition is automatic. 
Article 5 - Certificate 
The certificate
is necessary for the person at risk to invoke the protection measure in another
Member State. The rationale of Articles 41 and 42 of Brussels II-bis,
dealing with decisions on the right of access or the return of the child, has
been followed. 
The certificate
will be issued, ex officio or at the request of the protected person, by
the competent authorities of the Member State of origin following the standard
form set out in the Annex to this Regulation. Then, it will be up to the party
who wishes to invoke the measure in another Member State to provide the
competent authorities of that Member State with the issued certificate. The
certificate contains all information relevant for the
recognition and/or enforcement of the foreign protection measure, in particular
a description of the protection measure formulated in such a way as to allow
the competent authorities of the second Member State to recognise it and, where
applicable, enforce it under its national law. Therefore, neither specific
reference to the national law, i.e. Article X of Code Y instead of the
explication of the measure, nor to local places, i.e. a specific address
instead of a general reference to the place of work or domicile, must be
included in the certificate.
The competent
authorities of the second Member State may request a transliteration or a
translation of the content of the certificate, namely of the description of the
measure. 
Article 8 - Adaptation
This Article
concerns the case where the foreign protection measure is not known under the
national law of the second Member State. The competent authority in that Member
State will therefore have to adapt, to the extent possible, the protection
measure to one known under its own law which has similar effects attached to it
and pursue similar aims and interests. Adaptation is indeed a recurrent rule in
instruments of mutual recognition in civil matters.
Article 9 - Enforcement of certain protection measures
Under national law very few protection
measures requires the competent authorities to actively intervene to give
effect to them. 
In these cases,
the competent authority of the Member State of enforcement will need to apply
the rules provided under its national law for similar protection measures,
without any special procedure being required. 
Article 10 -
Fundamental rights safeguards
The protection of the fundamental rights of
the individual has become an even stronger priority for the EU with the entry
into force of the Lisbon Treaty: the EU Charter has become legally binding on
the Union and the EU is about to accede to the European Convention of Human
Rights (ECHR). When speaking of victims a range of fundamental rights is
relevant: human dignity, the right to life, right to the integrity of the
person, right to liberty and security, respect for private and family life,
protection of personal data, right to property, freedom of movement and
residence, equality before the law, the rights of the child, the rights of the
elderly, integration of persons with disabilities, and right to an effective
remedy and to a fair trial, and finally presumption of innocence and right of
defence.
As set out in
detail in the impact assessment accompanying this proposal and in accordance
with the Union's Strategy for the effective implementation of the Charter of
Fundamental Rights of the European Union[13],
all elements of the Regulation respect the rights set out in the Charter of
Fundamental rights, and, in particular, the right to an effective remedy and
the right to a fair trial guaranteed in its Article 47. 
The abolition
of any intermediate formalities for the
recognition and, where applicable, the enforcement in the second Member State
of a protection measure taken in the first Member State must be accompanied by fundamental rights safeguards. This article provides a solid safeguard, since the
certificate cannot be issued when the right to a fair trial of the person
causing the risk have not been guaranteed. 
Article 12 –
Refusal, suspension or withdrawl of recognition or enforcement 
The recognition and where applicable the
enforcement of protection measures taken in a Member State should be based on
the principle of mutual trust and the grounds for non-recognition should be
kept to the minimum required. In accordance with this principle, only one
ground for refusal is proposed. In the interests of the
harmonious administration of justice it is necessary to minimise the
possibility of irreconcilable decisions. Therefore, the
competent authority in the Member State of recognition may, on application by
the person causing the risk, refuse the recognition of the protection measure
taken by the court of origin if it is irreconcilable with a  decision taken in
the Member State of recognition. 
It is important
to ensure that when a protection measure is suspended or withdrawn in the
Member State of origin, the competent authority of the Member State of
recognition suspends or withdraws the recognition and, where applied, the
enforcement of the protection measure. It is the responsibility of the person causing
the risk to apply for it. To that end, a standardised application
form is annexed to the proposal.
Article 13 -
Notice
As for other mutual recognition instruments
in civil matters, this article provide for a basic harmonisation of minimum
standards as regards the necessity to bring to the
notice of the person causing the risk and to the
protected person any information related to the
issuing, recognition, possible enforcement and sanctions, suspension or
withdrawal of the protection measure in the first Member State. It also
introduces, at paragraph 2, the same obligation for the second Member State.
This will ensure the respect of fundamental rights as
set out in the Charter of Fundamental Rights of the European Union.

4.                      
Subsidiarity and Proportionality

The objective
of the proposal cannot be sufficiently achieved by Member States alone, because
of the transnational aspects of the issue. It is important to ensure persons do
not lose the protection they have been given when they travel or move abroad.
The mechanism foreseen in this regulation consisting in the elimination of any
intermediate formalities, throught he use of a standardised and multilingual
certificate cannot be achieved by the Member States alone. Only legislation at
European level can create a level playing field.
The proposal therefore complies with the subsidiarity principle.
The proposal
also complies with the proportionality principle in that it does not go beyond
the minimum required in order to achieve the stated objective at European level
and what is necessary for that purpose.
2011/0130 (COD)
Proposal for a
REGULATION OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL
on mutual recognition of protection
measures in civil matters 
The
European Parliament and the Council of the European Union,
Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 81(2)(a), (e) and
(f) thereof,
Having regard to the proposal from the
European Commission,
After transmission of the draft legislative
act to the national Parliaments,
Having regard to the opinion of the European
Economic and Social Committee[14],
Having regard to the opinion of the
Committee of the Regions[15],
Acting in accordance with the ordinary
legislative procedure.
Whereas:
(1)              
The European Union has set itself the objective
of maintaining and developing an area of freedom, security and justice,
facilitating access to justice, in particular through the principle of mutual recognition of judicial and extra-judicial decisions in civil
matters. In order to establish progressively such an
area, the Union should adopt, amongst other things, measures relating to
judicial cooperation in civil matters, particularly when necessary for the
proper functioning of the internal market.
(2)              
This area is within the field of judicial
cooperation in civil matters within the meaning of Article 81 of the Treaty on
the Functioning of the European Union.
(3)              
Differences between national rules governing
protection measures hamper the sound operation of the internal market.
Provisions to ensure rapid and simple recognition and, where applicable,
enforcement of protection measures from Member States bound by this Regulation
are essential to ensure the protection afforded is maintained when a person
travels or moves to another Member State. 
(4)              
In order to attain the objective of free
movement of protection measures, it is necessary and appropriate that the rules
governing jurisdiction and the recognition and, where applicable, enforcement
of protection measures be governed by a legal instrument of the Union which is
binding and directly applicable.
(5)              
This Regulation applies to protection measures
taken in civil proceedings whatever the nature of the authority, be it a court,
a tribunal, an administrative or any other authorities. 
(6)              
This Regulation applies to all protection
measures as defined therein. It does not however apply to protection measures
covered by 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. For measures entering into its scope,
this Regulation shall supersede Council Regulation (EC)
No 44/2001 of 22 December 2000 on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters.
(7)              
The rules of jurisdiction should be highly
predictable and founded on the principle that jurisdiction is that of the
Member State where the person's physical and/or psychological integrity or
liberty is at risk. The jurisdiction should always be available on this ground.

(8)              
The harmonious functioning of justice requires
that irreconcilable decisions should not be pronounced in two Member States. To
this end, this regulation should provide for a ground for refusal of
recognition and/or enforcement on application by the person causing the risk in
case of irreconcilable decisions. 
(9)              
Mutual trust in the
administration of justice in the Union and the aim of ensuring quicker and less costly circulation of protection measures within
the European Union justify
procedures for the recognition and/or enforcement of
such measures without any intermediate formalities. As
a result, a protection measure
taken in a Member State should, for recognition and, where applicable, enforcement
purposes, be treated as if it had been taken in the Member State in which
recognition and/or enforcement is sought. 
(10)          
Where under the law of the second Member State,
an intervention by the competent authorities of that Member State is required
in order to give effect to the protection measure, the procedure for such an
enforcement of the protection measure should be governed
by the law of that Member State.
(11)          
This Regulation does not
deal with criminal sanctions put in place by Member States in case of violation
of a protection measure, which continue to be dealt with by the national law of
each Member State.
(12)          
In order to facilitate free movement of
protection measures within the European Union, this Regulation should introduce
a uniform model of certificate and appoint the authority competent to issue it.
In order to respect the principle of subsidiarity, this certificate should not
replace the internal procedure of the Member States.
(13)          
The certificate should not be subject to appeal.
However, if the protection measure is suspended or
withdrawn in the first Member State, the competent authority of the second
Member State should, on application by the person causing the risk, suspend or
withdraw the recognition and/or enforcement of the protection measure.
(14)          
In order to ensure the swift and efficient
functioning of this Regulation,the power to adopt acts in accordance with
article 290 of the Treaty on the Functioning of the European Union should be
delegated to the Commission in respect of any amendment
to the forms set out in the Annexes. It is of particular importance that the
Commission carry out appropriate consultations during its preparatory work,
including at expert level. The Commission, when preparing and drawing-up
delegated acts, should ensure a simultaneous, timely and appropriate
transmission of relevant documents to the European
Parliament and the Council.
(15)          
This Regulation respects the fundamental rights
and observes the principles recognised in particular by the Charter of
Fundamental Rights of the European Union. In particular, it seeks to ensure the
rights of the defence and fair trial, as established in Article 47 thereof. This Regulation must be applied according to these rights and
principles.
(16)          
Since the objective of this Regulation cannot be
sufficiently achieved by the Member States and can be better achieved at Union
level, the Union may adopt measures in accordance with the principle of
subsidiarity as set out in Article 5 of the Treaty on European Union. In
accordance with the principle of proportionality, as set out in that Article,
this Regulation does not go beyond what is necessary in order to achieve that
objective.
(17)          
[In accordance with Articles 1, 2, 3 and 4 of
Protocol on the position of the United Kingdom and Ireland in respect of the Area
of Freedom, Security and Justice, annexed to the Treaty on European Union and
to the Treaty on the Functioning of the European Union, the United Kingdom and
Ireland have notified their wish to participate in the adoption and application
of this Regulation] / [without prejudice of Article 4 of Protocol on the
position of the United Kingdom and Ireland in respect of the Area of Freedom,
Security and Justice, annexed to the Treaty on European Union and to the Treaty
on the Functioning of the European Union, the United Kingdom and Ireland will
not participate in the adoption of this Regulation and will not be bound by or
be subject to its application].
(18)          
In accordance with Articles 1 and 2 of Protocol
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 Regulation, and is therefore not bound by it or subject to
its application,
HAVE ADOPTED THIS REGULATION
CHAPTER I
Scope,
definitions and jurisdiction
Article 1 – Scope 
This Regulation applies to protection
measures taken in civil matterswhatever the nature of the authority. It does
not apply to protection measures covered by Regulation (EC) No 2201/2003.
Article 2 – Definitions 
For the purposes of this Regulation:
(a)     'protection measure' means any decision, whatever it may be called, of a preventive and temporary
nature taken by an authority in a Member State in accordance with its national
law with a view to protecting a person when serious reasons exist to consider
the person's physical and/or psychological integrity or liberty to be at risk.
It shall include measures ordered without the person causing the risk being
summoned to appear.
The following are notably protection measures: 
(i)      an obligation not to enter certain
localities, places or defined areas where the protected person resides, works
or that he visits; or
(ii)      an obligation not to enter into
contact, in any form, with the protected person, including by phone, electronic
or ordinary mail, fax or any other means; or
(iii)     an obligation not to approach the
protected person closer than a prescribed distance; or
(iv)     a decision attributing the exclusive
use of the common housing of two persons to the protected person.
(b)     'authority' shall include any
authority designated by a Member State as having competence in the matters
falling within the scope of this Regulation;
(c)     'Member State of origin' means the
Member State in which the protection measure is taken;
(d)     'Member State of recognition' means
the Member State in which the recognition and, if relevant, the enforcement of
the protection measure is sought; 
Article 3 – Jurisdiction
The authorities of the Member State where
the person's physical and/or psychological integrity or liberty is at risk
shall have jurisdiction.
CHAPTER II
Recognition and enforcement of
protection measures
Article 4 – Recognition
A protection measure taken in a Member
State shall be recognised in the other Member States without any special
procedure being required and without any possibility of opposing its
recognition if the decision has been certified in the Member State of origin in
accordance with Article 5.
Article 5 – Certificate 
1.           A party who wishes to
invoke in another Member State a protection order recognised pursant to this
Article shall provide the competent authorities of the Member State of
recognition with the certificate issued in accordance with this Article.
2.           The competent authorities
of the Member State of origin shall issue the certificate using the standard
form set out in the Annex, containing, inter alia, a description of the
measure which shall be formulated in such a way as to facilitate the
recognition and, where applicable, the enforcement in the second Member State. 
3.           The certificate shall be
issued:
(i)      ex-officio in case of
involvement of cross-border situations at the time of the adoption of the
protection measure; for the purpose of this Regulation, a matter has
cross-border implications except where the risk for the person's physical
and/or pscychological integrity or liberty is located exclusively in the Member
State of origin; 
(ii)     at the request of the protected
person in any other case; when adopting a protection measure, the competent
authority of the Member State of origin shall inform the protected person of
the possibility of requesting a certificate as established by this Regulation. 
4.           The competent authorities
of the Member State of recognition may, where necessary, request a
transliteration or a translation of the content of the certificate, in
accordance with Article 15. 
Article 6 – Effects of the certificate
The certificate shall take effect only
within the limits of the enforceability of the decision.
Article 7 – Rectification of the
certificate
1.           The law of the Member
State of origin shall be applicable to any rectification of the certificate. 
2.           No appeal shall lie
against the issueing of a certificate. 
Article 8 – Adaptation of the foreign protection measure
If a protection measure is not known in the
Member State of recognition, the competent authority in that Member State
shall, to the extent possible, adapt the protection measure to one known under
its own law which has equivalent effects attached to it and pursues similar
aims and interests. 
Article 9 – Enforcement of certain
protection measures 
1.                      
To the extent that a protection measure taken in
one Member State requires under the law of another Member State an intervention
by the competent authorities of that Member State in order to give effect to
the protection measure, it shall be enforced in that other Member State without
the need for a declaration of enforceability. 
2.                      
The procedure for the enforcement of protection measures taken in another Member
State shall be governed by the law of the Member State of recognition,
including the appeal against the adaptation of the protection measure taken in
accordance with Article 8.
Article 10 – Fundamental rights safeguard 
1.           The authorities of the
Member State of origin shall issue the certificate referred to in Article 5
only if the fundamental rights safeguards set out in this Article have been
respected.
2.           A person causing the risk
who did not enter an appearance in the Member State of origin shall have the
right to apply for a review of the protection measure before the competent
authorities of that Member State where
(a)         
he was not served with the document instituting
the proceedings or an equivalent document in sufficient time and in such a way
as to enable him to arrange for his defence; or
(b)     he was prevented from contesting the
protection measure by reason of force majeure or due to extraordinary
circumstances without any fault on his part;
unless he failed to challenge the protection
measure when it was possible for him to do so.
2.           Where the protection
measure is taken without the person causing the risk being summoned to appear
and is intended to be recognised and/or enforced without prior service of that
person, that person has the right to challenge the measure under the law of the
Member State of origin. 
Article 11 – No
review as to substance 
Under no circumstances may a protection
measure taken in a Member State be reviewed as to its substance in the Member
State in which recognition and/or enforcement is sought.
Article 12 – Refusal,
suspension or withdrawl of recognition or enforcement 
1.           The competent authority in
the Member State of recognition may, on application by the person causing the
risk, refuse the recognition of the protection measure taken by the court of
origin if it is irreconcilable with a decision taken in the Member State of
recognition.
2.           If the protection measure
is suspended or withdrawn in the Member State of origin, the competent
authority of the Member State of recognition shall, on application by the
person causing the risk, suspend or withdraw the recognition and, when applied,
the enforcement of the protection measure. The
application shall be submitted using the form set out in Annex II.
4.           The recognition of a
protection measure may not be refused because the law of the Member State of recognition does not allow for such a measure based on the
same facts.
Article 13 – Notice
1.           The competent authorities
of the Member State of origin shall, without delay and according to the law of
that Member State, bring to the notice of the person
causing the risk and to the protected person:
(i)      the issuing of a protection measure;
(ii)      if applicable, the correspondent
measures of enforcement;
(iii)     if applicable, the sanctions in case
of violation of the protection measure
(iv)     any suspension or withdrawal of the
protection measure.
2.           Upon reception of the
certificate pursuant to Article 5 provided by the protected person, the
competent authorities of the Member State of recognition shall, without delay
and where necessary according to the rules of Regulation (EC) No 1393/2007[16], bring to the notice of the person causing the risk and to the protected person:
(i)      the recognition of the protection
measure;
(ii)      if applicable, the correspondent
measures of enforcement;
(iii)     if applicable, the sanctions in case
of violation of the protection measure;
(iv)     any suspension or withdrawl of the
protection measure.
CHAPTER III
Other provisions
Article 14 – Legalisation and other
similar formalities
No legalisation or other similar formality
shall be required in the context of this Regulation. 
Article 15 – Transliteration or
translation
When a transliteration or translation is
required under this Regulation, such transliteration or translation shall be
into the official language or one of the official languages of the Member State
of recognition or any other language that the Member State of recognition has
indicated it can accept. Any translation made under this Regulation shall be
done by a person qualified to do translations in one of the Member States. 
Article 16 – Right to legal aid
An applicant who, in the Member State of
origin, has benefited from complete or partial legal aid or exemption from
costs or expenses, shall be entitled, in any proceeding relating to the
enforcebility of the protection measure, to benefit from the most favourable
legal aid or the most extensive exemption from costs or expenses provided for
by the law of the Member State of recognition. 
CHAPTER IV
General and final provisions
Article 17 – Transitional provisions
This Regulation shall apply to protection
measures taken as of the day of entry into application therefor, even if the
application for these protection measures was lodged before that date.
Article 18 – Amendments to the form
The Commission shall be empowered to adopt
delegated acts in accordance with Article 19 concerning any amendment to the
forms set out in the Annexes.
Article 19 – Exercise of delegation
1.           The
power to adopt delegated acts is conferred on the Commission subject to the
conditions laid down in this Article.
2.           The delegation of power
referred to in Article 18 shall be conferred for an indeterminate period of
time from the [Date of entry into force of this Regulation].
3.           The delegation of powers
referred to in Article 18 may be revoked at any time by the European Parliament
or by the Council. A decision of revocation shall put an end to the delegation
of the power specified in that decision. It shall take effect the day following
the publication of the decision in the Official Journal of the European
Union or at a later date specified therein. It shall not affect the
validity of any delegated acts already in force.
4.           As soon as it adopts a
delegated act, the Commission shall notify it simultaneously to the European
Parliament and to the Council. 
5.           A delegated act adopted
pursuant to Article 18 shall enter into force only if no objection has been
expressed either by the European Parliament or the Council within a period of 2
months of notification of that act to the European Parliament and the Council
or if, before the expiry of that period, the European Parliament and the
Council have both informed the Commission that they will not object. That
period shall be extended by [2 months] at the initiative of the European
Parliament or the Council.
Article 20 – Review clause
By [five years from the date of
application in Article 23] at the latest, the Commission shall submit a
report to the European Parliament, the Council and the European Economic and
Social Committee on the application of this Regulation. If necessary, the
report shall be accompanied by proposals for adaptation.
Article 21 – Information made available to the public 
Within the framework of the European
Judicial Network in civil and commercial matters established by Council
Decision 2001/470/EC[17],
the Member States shall provide a description of the national rules and
procedures concerning protection measures, including authorities competent for
recognition and/or enforcement with a view to making it available to the
public.
Member States shall keep that information
permanently updated.
Article 22 – Communication by the
Member States
By [1 year before the entry into force
of this Regulation], the Member State shall communicate to the Commission
(a)     the authorities having competence in
the matters falling within the scope of this Regulation;
(b)     the languages accepted for
translations of the of the certificate as referred to in Article 15.
The Commission shall make the information
publicly available through any appropriate means, in particular through the
European Judicial Network in civil and commercial matters established by
Decision 2001/470.
Article 23 – Entry into force and
application
The Regulation shall enter into force on
the twentieth day following that of its publication in the Official Journal
of the European Union. 
It shall apply from [12 months after its
entry into force].
This Regulation shall be binding in its
entirety and directly applicable in the Member States in accordance with the
treaties. 
Done at […]
ANNEX I
CERTIFICATE
MENTIONED UNDER ARTICLE 5
1.           MEMBER STATE OF ORIGIN
AT □ BE □ BG
□ CY □ CZ □ DE □ EE □ EL □ ES □ FI
□ FR □ HU □ IE □ IT □ LT □ LU □ LV
□ MT □ NL □ PL □ PT □ RO □ SE □ SI
□ SK □ UK □
2.           COMPETENT AUTHORITY ISSUING THE
CERTIFICATE
2.1         Name:
2.2         Address:
2.3         Telephone/Fax/E-mail:
3.           PROTECTED PERSON
3.1         Full Name (surname, first
name)
3.2         Address to be used for
notice purposes as provided by Article 13
3.3         Date and place of birth
(where available)
4.           PERSON CAUSING THE RISK
4.1         Full Name (surname, first
name):
4.2         Address to be used for
notice purposes as provided by Article 13
4.3         Date and place of birth
(where available)
5.           PROTECTION MEASURE
5.1         Date and reference number:
6.           DESCRIPTION OF THE
PROTECTION MEASURE[18]
I, the undersigned,
hereby certify that the protection measure has been taken in the Member State
of origin against the person causing the risk set out in point 4 and that the
fundamental rights safeguards set out in Article 10 have been respected.
If additional pages
have been attached, state the number of pages: …
Done at: …
Signature and/or stamp of the competent
authority of the Member State of origin:
ANNEX
II
APPLICATION
FOR SUSPENSION OR WITHDRAWL OF RECOGNITION OR ENFORCEMENT UNDER ARTICLE 12
1.           APPLICANT (PERSON CAUSING THE RISK)
1.1         Full Name (surname, first
name)
1.2         Address to be used for
notice purposes as provided by Article 13
1.3         Date and place of birth
(where available)
2.           COMPETENT AUTHORITY IN THE MEMBER STATE
OF ORIGIN
2.1         Name
2.2         Address
2.3         Member State
AT □ BE □ BG
□CY □ CZ □ DE □ EE □ EL □ ES □ FI
□ FR □ HU □ IE □ IT □ LT □ LU □ LV
□ MT □ NL □ PL □ PT □ RO □SE □ SI
□ SK □ UK □
2.4. Telephone/Fax/E-mail
3.           DECISION SUSPENDING OR WITHDRAWING A
PROTECTION MEASURE 
3.1         Date and reference number 
3.2         Summary of the decision
suspending or withdrawing a protection measure
4.           PROTECTED PERSON
4.1         Full Name (surname, first
name)
4.2         Address to be used for
notice purposes as provided by Article 13
4.3         Date and place of birth
(where available)
If additional pages
have been attached, state the number of pages: …
Done at: …
Signature:
[1]               OJ C 69, 18.3.2010, p. 5-18, 13577/09 COPEN 176 of 23 September 2009.
[2]               Multi-annual programme which sets out the European
Union’s priorities for the area of justice, freedom and security for the period
2010-2014:"The Stockholm Programme — An Open and Secure Europe Serving and
Protecting Citizens" (OJ C 115, 4.5.2010, p. 1). 
[3]               2969th JAI Council meeting of 23/10/2009, [14936/09
(Presse 306)].
[4]               European Parliament resolution of 7 May 2009 on the
development of a European Union criminal justice area, [P6_TA(2009)0386].
[5]               European Parliament resolution of 26 November 2009 on
the elimination of violence against women, [P7_TA(2009)0098].
[6]               EU Citizenship Report 2010, "Dismantling the
obstacles to EU citizens’ rights" - COM(2010) 603.
[7]               13577/09 COPEN 176 of 23 September 2009.
[8]               Matrix Insight/Andersson Elfers Felix, "A Study
for an Impact Assessment on Ways of Improving the Support, Protection and
Rights of Victims across Europe", Final Report, 3 November 2010.
[9]               Burkhard Hess: "Feasibility Study: The European
Protection Order and the European Law of Civil Procedure", soon available
at: http://ec.europa.eu/justice/index_en.htm.
[10]             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).
[11]             Proposal for a Regulation of the European Parliament
and of the Council on jurisdiction and the recognition and enforcement of
judgments in civil and commercial matters (Recast) - COM(2010) 748, 14.12.2010.
[12]             Council Regulation (EC) No 44/2001 of 22 December 2000
on jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters (OJ L 12, 16.1.2001, p. 1).
[13]             Communication from the Commission, "Strategy for
the effective implementation of the Charter of Fundamental Rights by the
European Union" - COM(2010) 573, 19.10.2010.
[14]             OJ C […], […], p. […].
[15]             OJ C […], […], p. […].
[16]             OJ L 324, 10.12.2007, p. 79.
[17]             OJ L 174, 27.06.2001, p. 25.
[18]             The description of the protection measure must be formulated
in such a way as to allow the competent authorities of the second Member State
to recognise it and, where applicable, enforce it under the national law of
that Member State. Therefore, neither specific reference to the national law,
i.e. Article X of Code Y instead of the explication of the measure, nor to
local places, i.e. a specific address instead of a general reference to the
place of work or domicile, must be included. Hence, a general description of
the measure must be provided, e.g. obligation not to enter the place where the
protected person works, instead of obligation not to approach Street X or of
protection measure adopted according to Art. X of Law Y. In case the protection
measure is not known or is regulated slight differently in the second Member
State, the authority of that Member State will, to the extent possible, adapt
the measure to one known under its law which has similar effects and pursues
the same aims.