Explanatory Memorandum to COM(2022)695 - Jurisdiction, applicable law, recognition of decisions, acceptance of authentic instruments in matters of parenthood and the creation of a European Certificate of Parenthood - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2022)695 - Jurisdiction, applicable law, recognition of decisions, acceptance of authentic instruments in matters of parenthood and the ... |
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| source | COM(2022)695  |
| date | 07-12-2022 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
The Union aims to create, maintain and develop an area of freedom and justice in which the free movement of persons, access to justice and the full respect of fundamental rights are ensured.
To further this objective, Commission President von der Leyen said in her State of the Union speech in 2020 that “If you are parent in one country, you are parent in every country”. With this statement the Commission President referred to the need to ensure that the parenthood established in a Member State is recognised in all other Member States for all purposes. This initiative was identified as a key action in the EU Strategy on the rights of the child 1 and in the EU LGBTIQ Equality Strategy 2 .
The objective of the proposal is to strengthen the protection of the fundamental rights and other rights of children in cross-border situations, including their right to an identity 3 , to non-discrimination 4 and to a private and family life 5 , and to succession and maintenance rights in another Member State, taking the best interests of the child as a primary consideration 6 . Consistent with this objective, the Council conclusions on the EU Strategy on the rights of the child 7 underline that children’s rights are universal, that every child enjoys the same rights without discrimination of any kind and that the best interests of the child must be a primary consideration in all actions relating to children, whether taken by public authorities or by private institutions.
Additional objectives of the proposal are to provide legal certainty and predictability about the rules on international jurisdiction and applicable law for the establishment of parenthood in cross-border situations and on the recognition of parenthood, and to reduce the legal costs and burden for families and the Member States’ judicial systems in connection with legal proceedings for the recognition of parenthood in another Member State.
The need to ensure the recognition of parenthood between Member States arises because citizens increasingly find themselves in cross-border situations, for example where they have family members in another Member State, travel within the Union, move to another Member State to find a job or found a family, or buy property in another Member State. However, an estimated 2 million children may currently face a situation in which the recognition of their parenthood as established in one Member State is not recognised for all purposes in another Member State.
Union law already requires Member States to recognise the parenthood of a child as established in another Member State for the purposes of the rights that the child derives from Union law, in particular under Union law on free movement, including Directive 2004/38/EC 8 on the right of the citizens of the Union and their family members to move and reside freely within the territory of the Member States 9 , which entails the right to equal treatment 10 and the prohibition of obstacles in matters such as the recognition of names 11 .
However, Union law does not yet require Member States to recognise the parenthood of a child as established in another Member State for other purposes. This non-recognition can have significant adverse consequences for children. It hinders their fundamental rights in cross-border situations and may result in the denial of the rights that they derive from parenthood under national law. Children can thus lose their succession or maintenance rights in another Member State, or their right to have any one of their parents act as their legal representative in another Member State on matters such as medical treatments or schooling. These difficulties may force families to embark on legal proceedings to have the parenthood of their children recognised in another Member State, but these legal proceedings involve time, costs and burden for both families and the judicial systems of the Member States and have uncertain results. Ultimately, although Member States are obliged to recognise parenthood as established in another Member State for the purposes of rights derived from Union law, 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 reasons for the current difficulties with the recognition of parenthood are that the Member States have different substantive rules on the establishment of parenthood in domestic situations, which are and will remain under their competence, but also different rules on international jurisdiction and conflict of laws rules for the establishment of parenthood in cross-border situations and on the recognition of parenthood established in another Member State, on which the Union has competence to act. Today, however, Union instruments on family law with cross-border implications, including on parental responsibility and maintenance, on succession and on the presentation of public documents in another Member State, do not include rules on international jurisdiction or conflict of laws for the establishment of parenthood in cross-border situations or on the recognition of parenthood between Member States in their scope.
Citizens’ complaints, petitions to the European Parliament and judicial proceedings show the problems that families encounter with the recognition of the parenthood of their children in cross-border situations within the Union, including where they move to another Member State or return to their Member State of origin and request the recognition of parenthood for all purposes.
To address the problems with the recognition of parenthood for all purposes and close the existing gap in Union law, the Commission is proposing the adoption of Union rules on international jurisdiction on parenthood (determining which Member State’s courts are competent to deal with parenthood matters, including to establish parenthood, in cross-border situations) and applicable law (designating the national law that should apply to parenthood matters, including to the establishment of parenthood, in cross-border situations), so as to then facilitate the recognition in a Member State of the parenthood established in another Member State. The Commission is also proposing the creation of a European Certificate of Parenthood that children (or their legal representatives) can request and use to provide evidence of their parenthood in another Member State.
Given that in international law, Union law and Member States’ laws, all children have the same rights without discrimination, the proposal covers the recognition of the parenthood of a child irrespective of how the child was conceived or born and irrespective of the type of family of the child. The proposal thus includes the recognition of the parenthood of a child with same-sex parents and also the recognition of the parenthood of a child adopted domestically in a Member State.
However, the proposal does not affect the competence of the Member States to adopt substantive rules of family law such as rules on the definition of family or rules on the establishment of parenthood in domestic situations. The proposal also does not affect the Member States’ rules on the recognition of marriages or registered partnerships concluded abroad.
The proposal applies irrespective of the nationality of children and of the nationality of their parents. However, in line with existing Union instruments on civil matters (including family law) and commercial matters, the proposal only requires the recognition or acceptance of documents establishing or proving parenthood issued in a Member State, while the recognition or acceptance of documents establishing or proving parenthood issued in a third State will continue to be governed by national law.
• Consistency with policy provisions in the policy area
Today, Member States are already obliged by existing Union law to recognise the parenthood of a child as established in another Member State for the purpose of the exercise of the rights that the child derives from Union law, in particular on free movement. The proposal does not affect that Member States’ obligation. However, in the absence of Union rules on international jurisdiction and applicable law for the establishment of parenthood in cross-border situations and on the recognition of parenthood in another Member State for the purposes of the rights that a child derives from parenthood under national law, these matters are currently governed by the law of each Member State.
Existing Union instruments govern the recognition of court decisions and authentic instruments in several areas directly relevant for children in cross-border situations, such as parental responsibility 12 , maintenance 13 and succession 14 . However, parenthood matters are excluded from the scope of these instruments. For its part, the Regulation on public documents 15 addresses the authenticity of public documents in certain areas, including birth, parenthood and adoption, but it does not cover the recognition of the contents of such public documents. The adoption of common rules on international jurisdiction and applicable law for the establishment of parenthood in cross-border situations and on the recognition of parenthood in another Member State would complement current Union legislation on family law and succession and facilitate its application, as the parenthood of a child is a preliminary question that must be resolved before applying existing Union rules on parental responsibility, maintenance and succession as regards the child.
As the proposal aims to protect the rights of children in cross-border situations, it is consistent with the UN Convention on the Rights of the Child, which provides that States Parties must ensure that the child is protected against all forms of discrimination or punishment on the basis of the status or activities of the child's parents (Article 2); that, in all actions concerning children, whether undertaken by courts or legislative bodies, the best interests of the child must be a primary consideration (Article 3); and that children have the right to an identity and to be cared for by their parents (Articles 7 and 8). The proposal is also consistent with the European Convention on Human Rights, which provides for the right to respect for private and family life, and with the related case law of the European Court of Human Rights, including as regards the recognition of children born out of surrogacy. Finally, it is also 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’). 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 on a regular basis a personal relationship and direct contact with both parents if it is according to 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.
• Consistency with other Union policies
The proposal draws on several policy initiatives. These include the 2010 ‘European Council Stockholm programme – An open and secure Europe serving and protecting citizens’ 16 , the Commission Action Plan Implementing the Stockholm Programme 17 , and the 2010 Green Paper entitled ‘Less bureaucracy for citizens: promoting free movement of public documents and recognition of the effects of civil status records’ 18 . Moreover, in 2017, the European Parliament requested the Commission to submit a legislative proposal on the cross‑border recognition of adoption orders 19 .
In 2020, the Commission announced measures 20 to ensure that the parenthood established in a Member State would be recognised in all other Member States. This initiative was included in the 2021 EU Strategy on the rights of the child 21 as a key action to support equality and the rights of children and also in the 2020 EU LGBTIQ Equality Strategy 22 . The European Parliament welcomed the Commission’s initiative in its 2022 Resolution on the protection of the rights of the child in civil, administrative and family law proceedings 23 .
The Council conclusions on the EU Strategy on the rights of the child 24 underline that children’s rights are universal, that every child enjoys the same rights without discrimination of any kind and that the best interests of the child must be a primary consideration in all actions relating to children, whether taken by public authorities or by private institutions. This necessarily entails the establishment of a legal framework with uniform rules on international jurisdiction and applicable law for the recognition of parenthood between Member States enabling children to enjoy their rights in the Union without discrimination.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
Under the Union Treaties, substantive law on family matters, including the legal status of persons, falls within the competence of Member States, which means that the substantive rules for the establishment of the parenthood of a person are laid down in 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 other Member States. These measures can include the adoption of common rules on international jurisdiction, applicable law and procedures for the recognition of parenthood in another Member State. These measures will not lead to the harmonisation of the Member States’ substantive law on the definition of family or on the establishment of parenthood in domestic situations.
Like other Union instruments on family law, the proposal aims to facilitate the recognition of court decisions and authentic instruments on parenthood through the adoption of common rules on international jurisdiction and applicable law. The proposal aims to require the recognition of parenthood established in another Member State for the purposes, in particular, of the rights derived from parenthood under national law. Article 81(3) TFEU is therefore the appropriate legal basis.
By reason of Protocol No 22 to the TFEU, legal measures adopted in the area of justice do not bind or apply in Denmark. By reason of Protocol No 21 to the TFEU, Ireland is also not bound by such measures. However, once a proposal has been presented in this area, Ireland can notify its wish to take part in the adoption and application of the measure and, once the measure has been adopted, it can notify its wish to accept that measure.
• Subsidiarity
Whereas it is for the Member States to lay down rules on the definition of family and on the establishment of parenthood, the competence to adopt measures concerning family law and the rights of the child with cross-border implications is shared between the Union and the Member States 25 . Problems with the recognition in a Member State of the parenthood established in another Member State for the purposes of rights derived from either national or Union 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 result in particular from the different Member States’ substantive rules for the establishment of parenthood and the different Member States’ rules on international jurisdiction and applicable law for 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 in cross-border situations 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.
• Proportionality
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 in cross-border situations and the Member States’ conflict of laws rules designating the law applicable to the establishment of parenthood in cross-border situations.
The proposal does not go beyond what is necessary to achieve its objectives: it does not interfere with substantive national law on the definition of family; it does not affect national law on the recognition of marriages or registered partnerships concluded abroad; the rules on jurisdiction and applicable law apply 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 when it has been established in a third State; 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 for children (or their legal representatives) and will not replace equivalent national documents providing evidence of parenthood.
The proposal therefore respects the principle of proportionality.
• Choice of the instrument
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 line with previous Union instruments on private international law, the preferred legal instrument is therefore a Regulation.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Stakeholder consultations
In preparing the proposal, the Commission conducted extensive consultations in 2021 and 2022 covering all Member States (with the exception of Denmark 26 ). The consultations targeted a wide range of stakeholders representing citizens, public authorities, academics, legal professionals, NGOs and other relevant interest groups. The consultations consisted of (i) public feedback to the inception impact assessment; (ii) an open public consultation; (iii) a meeting with stakeholders and representatives of the civil society; and (iv) a meeting with experts of the Member States’ authorities.
In addition to the Commission consultation activities, consultations were conducted by an external contractor. These consisted of (i) online surveys addressed to Member States’ civil registrars; (ii) written questionnaires to Member States’ ministries and the judiciary; and (iii) interviews with the Member States’ judiciary and NGOs.
Overall, stakeholders representing children’s rights, rainbow families, legal practitioners and civil registrars favoured that the Union should address the current problems with the recognition of parenthood by adopting binding legislation. In contrast, organisations representing traditional families and those advocating against surrogacy were generally critical of a legislative proposal. The views of the public varied.
The feedback received informed the preparation of the proposal and of the accompanying impact assessment. A detailed summary of the outcome of the consultations conducted by the Commission is included in the impact assessment.
• Collection and use of expertise
Besides the above-mentioned stakeholder consultations, the Commission also collected and used expertise from other sources.
In the preparation of the proposal, the Commission sought the expertise of the Expert Group on the recognition of parenthood between Member States, which it set up in 2021. The Commission also participated in experts’ meetings on the Parentage / Surrogacy Project of the Hague Conference on Private International Law and consulted academic literature, reports and studies.
For the preparation of the impact assessment, the Commission relied on a study carried out by an external contractor. The external contractor also produced country reports on, among others, the Member States’ substantive law and private international law on parenthood. The contractor’s study used different tools to analyse the existing problems with the recognition of parenthood, the impacts of this proposal and the policy options considered. These tools included the use of empirical data gathered in different ways (interviews, questionnaires, national reports), as well as statistics and desk research. Where quantitative data were not available, qualitative estimates were used. The study by the external contractor concluded that the most suitable option for the Union to achieve its policy objectives would be the adoption of a legislative instrument on the recognition of parenthood between Member States, including the creation of a European Certificate of Parenthood.
• Impact assessment
Based on the Commission’s Better Regulation Guidelines 27 and the conclusions of the inception impact assessment, the Commission prepared an impact assessment of the proposal. In the impact assessment, the following policy options were considered: (i) the baseline scenario; (ii) a Commission recommendation addressed to Member States; (iii) legislative measures consisting of a regulation on the recognition of parenthood between Member States; and (iv) legislative measures consisting of a regulation on the recognition of parenthood between Member States including the creation of an optional European Certificate of Parenthood. All of these policy options, including the baseline scenario, would be accompanied by certain non‑legislative measures to raise awareness, promote good practices and improve cooperation between Member State authorities dealing with parenthood matters.
The impact assessment examined each of these options as regards their expected impacts and their effectiveness, efficiency and coherence with the Union’s legal and policy framework. Based on this assessment, the option consisting of a proposal for a regulation on the recognition of parenthood between Member States including the creation of an optional European Certificate of Parenthood was the chosen policy option.
The impact assessment concludes that the chosen option would significantly facilitate the recognition of parenthood for all of the estimated 2 million children of cross-border families and not only for those who currently face most problems with the recognition of parenthood. In particular, the European Certificate of Parenthood, specifically designed for use in another Member State, would reduce the administrative burden of the recognition procedures and translation costs for all families.
The chosen policy option would also be the most effective in addressing the problems with the recognition of parenthood, as the positive legal, social and psychological impacts would be most significant. The chosen option would have a clear positive impact 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. It would also be the most effective in protecting the rights that children derive from parenthood under national law, such as their right to maintenance and succession in another Member State. It would finally also have a positive social and psychological impact, as it would lead to children in cross-border situations being treated as local children.
Through the adoption of uniform Union rules on international jurisdiction and applicable law and the recognition of parenthood without any specific procedure being required, the chosen option would do away with the costs and burden linked to the administrative procedures and legal proceedings that children and their families must currently bear to have parenthood recognised in another Member State. It has been estimated that the average costs per case of recognition procedures would decrease by 71% under the chosen option, and by 90% for the families that currently face the most serious problems with the recognition of parenthood.
The chosen option would in turn lead to significant savings in terms of costs, time and burden for the public authorities of the Member States. It is estimated that, under the chosen option, the costs for recognition procedures borne by public authorities would decrease by 54%.
• Fundamental rights
As explained above, the current problems with the recognition of parenthood lead to situations that infringe the fundamental rights and other rights of children in cross-border situations. Depriving children of their legal status and of the parenthood established in another Member State is contrary to the fundamental rights of children to an identity, to non-discrimination and to respect for a private and family life, as well as against their best interests. By facilitating the recognition of parenthood between Member States, the proposal aims to protect the fundamental rights of children in cross-border situations and to ensure the continuity of parenthood status within the Union.
4. BUDGETARY IMPLICATIONS
Member States may incur one-off costs to adjust to the new rules of the Regulation, in particular costs arising from the need to train judges, civil registrars and other competent authorities on the new rules. Minor recurrent costs may be expected for the continuous training of those authorities. None of these costs is expected to be significant and would be in any event outweighed by the efficiency gains and cost savings brought about by the Regulation.
The provisions in the proposal on digital communication through the European electronic access point in the context of the decentralised IT system established by Regulation (EU) XX/YYYY [the Digitalisation Regulation] would have an impact on the Union budget which can be covered through redeployment within the Justice Programme. This impact would be small because the decentralised IT system would not need to be specifically established for the application of the proposal but would be developed for many Union instruments on judicial cooperation in civil and commercial matters under [the Digitalisation Regulation].
Member States would also incur some costs to install and maintain the decentralised IT system’s access points located on their territory and to adjust their national IT systems to make them interoperable with the access points. However, as noted, the bulk of these financial investments would have already been made in the context of the digitalisation of other Union instruments on judicial cooperation in civil and commercial matters. In addition, Member States would be able to apply for grants to finance these costs under the relevant Union financial programmes, in particular the cohesion policy funds and the Justice Programme.
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
A Regulation is directly applicable in all Member States and does not therefore have to be implemented into national law.
Appropriate monitoring, evaluation and reporting obligations are envisaged in the proposal. First, the practical application of the Regulation would be monitored through regular meetings of the European Judicial Network in civil and commercial matters bringing together experts from the Member States. In addition, a full evaluation of the application of the Regulation would be carried out by the Commission five years after the Regulation becomes applicable. The evaluation would be done on the basis of, among others, input received from the Member States’ authorities, external experts and relevant stakeholders.
• Explanation of the provisions of the proposal
The proposal consists of nine Chapters: (i) subject matter, scope and definitions; (ii) jurisdiction on parenthood matters in cross-border situations; (iii) applicable law to the establishment of parenthood in cross-border situations; (iv) recognition of court decisions and authentic instruments with binding legal effect issued in another Member State; (v) acceptance of authentic instruments with no binding legal effect issued in another Member State; (vi) the European Certificate of Parenthood; (vii) digital communication; (viii) delegated acts; and (ix) general and final provisions.
Contents
- Chapter I - Subject matter, scope and definitions
- Chapter II - Jurisdiction
- Chapter III - Applicable law
- Chapter IV - Recognition
- Chapter V - Authentic instruments with no binding legal effect
- Chapter VI - European Certificate of Parenthood
- Chapter VII - Delegated acts
- Chapter VIII - Digitalisation
- Chapter IX - General and final provisions
Article 1 sets out the subject matter of the proposal. The proposal intends to achieve its objective of facilitating the recognition in a Member State of the parenthood established in another Member State through the adoption of uniform rules on (i) international jurisdiction for the establishment of parenthood in a Member State in cross-border situations; (ii) the law applicable to the establishment of parenthood in a Member State in cross-border situations; (iii) the recognition of court decisions as well as of authentic instruments establishing parenthood with binding legal effect; (iv) the acceptance of authentic instruments with no binding legal effect in the Member State of origin but with evidentiary effects in that Member State; and (v) the creation of an optional European Certificate of Parenthood enabling a child or a legal representative to provide evidence of parenthood in another Member State.
Parenthood is typically established by operation of law or by an act of a competent authority, such as a court decision, a decision by an administrative authority or a notarial deed, after which the parenthood is typically registered in the civil or population register of the Member State. However, citizens most often request the recognition of parenthood in another Member State on the basis of an authentic instrument which does not establish parenthood with binding legal effect but which has evidentiary effects of the parenthood previously established in that Member State by other means (by operation of law or by an act of a competent authority). Such authentic instruments can be, for example, an extract from the civil register or a birth or parenthood certificate. The uniform rules in the proposal on the law applicable to the establishment of parenthood in cross-border situations are intended to facilitate the acceptance of authentic instruments with no binding legal effect but with evidentiary effects in the Member State of origin of either the parenthood previously established in that Member State (for example, a birth certificate) or of facts other than the establishment of parenthood (for example, an acknowledgment of paternity or the giving of consent to the establishment of parenthood).
Article 2 on the relationship of the proposal with other provisions of Union law clarifies that the proposal should not affect the rights that a child derives from Union law, in particular the rights under Union law on free movement, including Directive 2004/38/EC 28 . The proposal does not intend to provide for any additional conditions or requirements on the recognition of parenthood for the exercise of rights derived from Union law, or to affect the implementation of such rules. Union law on free movement will therefore continue to apply unaffected. In particular, the recognition of parenthood for the exercise of the rights derived from Union law can only be refused on grounds allowed under Union law on free movement as interpreted by the Court of Justice. Also, on the basis of current Union law under Article 21 TFEU and secondary legislation relating thereto as interpreted by the Court of Justice, the respect of a Member State’s national identity under Article 4(2) TEU and a Member State’s public policy cannot serve as justification to refuse to recognise a parent-child relationship between children and their same-sex parents for the purposes of exercising the rights that the child derives from Union law. In addition, for the purposes of the exercise of rights derived from Union law, proof of parenthood can be presented by any means 29 . A Member State is not therefore entitled to require a person to present either the attestation provided for in the proposal accompanying a court decision or an authentic instrument on parenthood, or the European Certificate of Parenthood created by the proposal, where the person seeks the recognition of parenthood for the purposes of the rights that a child derives from Union law on free movement. This should not, however, prevent a person from choosing to present in such cases also the relevant attestation or the European Certificate of Parenthood.
Article 2 also clarifies that the proposal will not affect the application of the Regulation on Public Documents 30 , which already simplifies the circulation of public documents (such as judgments, notarial acts and administrative certificates) in certain areas, including birth, parenthood and adoption, as to their authenticity.
Article 3 determines the scope of the proposal. The rules on jurisdiction and applicable law apply where parenthood is to be established in a Member State in cross-border situations. The rules on the recognition of parenthood apply where the parenthood to be recognised has been established in a Member State, so the proposal does not cover the recognition or, as the case may be acceptance, of court decisions and authentic instruments establishing or proving parenthood drawn up or registered in a third State. In these cases, recognition or acceptance remain subject to the national law of each Member State. However, the proposal applies to the recognition of the parenthood of all children, regardless of their nationality and the nationality of their parents, provided their parenthood has been established in a Member State and not in a third State.
Matters that may have a link with the parenthood of a child but are governed by other Union or international instruments or by national law are excluded from the scope of the proposal, such as matters concerning parental responsibility, maintenance, succession, intercountry adoption, the existence, validity or recognition of the marriage or registered partnership of the child’s parents and the effects of registering or not registering the parenthood of the child in a Member State’s relevant register. However, by resolving the parenthood of the child as a preliminary question, the proposal would facilitate the application of existing Union instruments on parental responsibility, maintenance and succession as regards the child. The proposal also does not deal with the rights and obligations derived from parenthood under national law, for example the nationality and the name of the child.
Article 4 defines, for the purposes of the proposal, the terms ‘parenthood’, ‘child’, ‘establishment of parenthood’, ‘court’ and ‘court decision’, ‘authentic instrument’, ‘Member State of origin’, ‘decentralised IT system’ and ‘European electronic access point’.
–Child is defined broadly and includes a person of any age whose parenthood is to be established, recognised or proved. As the parenthood status is relevant throughout a person’s life, the proposal applies to children of any age, that is, both minors and adults. However, the best interests of the child and the right to be heard must be understood as referring to the child as defined in the UN Convention on the Rights of the Child, that is, as a person under the age of 18 years, unless the age of majority is attained earlier under the law applicable to the child.
–Parenthood, also referred to as filiation, means the parent-child relationship established in law, including the legal status of being the child of a particular parent or parents. For the purposes of the proposal, parenthood may be biological, genetic, by adoption or by operation of law. As noted, the proposal covers the parenthood established in a Member State of both minors and adults, including a deceased child and a child not yet born, whether to a single parent, a de facto couple, a married couple or a couple in a registered partnership. It covers the recognition of the parenthood of a child irrespective of how the child was conceived or born - thus including children conceived with assisted reproductive technology - and irrespective of the child’s type of family - thus including children with two same-sex parents, children with one single parent, and children adopted domestically in a Member State by one or two parents.
–Establishment of parenthood means the determination in law of the relationship between a child and each parent, including the establishment of parenthood following a claim contesting a parenthood already established. Where relevant, this term may also include the extinction or termination of parenthood. The proposal does not apply to the establishment of parenthood in domestic situations with no cross-border elements, such as a domestic adoption in a Member State, although it does apply to the recognition of the parenthood established in such domestic situations in a Member State.
–Authentic instruments are defined broadly, as in other Union regulations on civil justice. Authentic instruments under the proposal thus include (i) documents establishing parenthood with binding legal effect, such as notarial deeds (for example, in adoption or where the child is not yet born), or administrative decisions (for example, after an acknowledgment of paternity), as well as (ii) documents which do not establish parenthood with binding legal effect but which provide evidence of the parenthood established by other means (for example, an extract from a population or civil status register, a birth certificate or a parenthood certificate) or evidence of other facts (for example, a notarial act or an administrative document recording an acknowledgment of paternity or the giving of consent to the use of assisted reproductive technology).
Article 5 clarifies that the proposal will not affect the question of which authorities within each Member State are competent to deal with parenthood matters (for example, courts, administrative authorities, notaries, registrars and/or other authorities).
In order to facilitate the recognition or, as the case may be, acceptance of court decisions and authentic instruments on parenthood, the proposal lays down uniform jurisdiction rules on the establishment of parenthood with a cross-border element. The rules on jurisdiction also avoid parallel proceedings in different Member States with possible conflicting decisions. Given that, in most Member States, rights concerning parenthood cannot be settled or waived, the proposal does not provide for party autonomy as regards jurisdiction (such as a choice of court or transfer of jurisdiction).
The proposal provides for alternative grounds of jurisdiction to facilitate access to justice in a Member State. In order to ensure that children can access a court that is in their vicinity, jurisdiction grounds are based on their proximity to the child. Jurisdiction can thus lie alternatively with the Member State of habitual residence of the child, of the nationality of the child, of the habitual residence of the respondent (for example, the person in respect of whom the child claims parenthood), of the habitual residence of any one of the parents, of the nationality of any one of the parents or of the birth of the child. In line with the existing case law of the Court of Justice on the matter, habitual residence is established on the basis of all the circumstances specific to each individual case.
Where jurisdiction cannot be established based on one of the general alternative jurisdiction grounds, the courts of the Member State where the child is present should have jurisdiction. This jurisdiction ground may in particular apply to refugee children and children internationally displaced. Where no court of a Member State has jurisdiction pursuant to the proposal, residual jurisdiction should be determined, in each Member State, by the laws of that Member State. Finally, in order to remedy situations of denial of justice, this proposal also provides for a forum necessitatis allowing a court of a Member State with which a case has a sufficient connection to rule on a parenthood matter which is closely connected with a third State. This can be done on an exceptional basis, such as where proceedings prove impossible in that third State, for example because of civil war, or where the child or another interested party cannot reasonably be expected to bring proceedings in that third State.
The proposal also recalls the right of children below the age of 18 years who are capable of forming their views to be provided with an opportunity to express these views in proceedings concerning parenthood to which the children are subject.
The proposal should provide for legal certainty and predictability by proposing common rules on the law applicable to the establishment of parenthood in cross-border situations. Such common rules aim to avoid conflicting decisions on parenthood depending on which Member State’s courts or other competent authorities establish parenthood. They also aim to facilitate, in particular, the acceptance of authentic instruments which do not establish parenthood with binding legal effect in the Member State of origin but which have evidentiary effects in that Member State.
The law designated as applicable by the proposal has a universal character, that is, it applies whether it is the law of a Member State or the law of a third State. As a rule, the law applicable to the establishment of parenthood should be the law of the State of the habitual residence of the person giving birth at the time of birth. However, to ensure that the applicable law can be determined in all circumstances, where the habitual residence of the person giving birth at the time of birth cannot be established (for example, in the case of a refugee or an internationally displaced mother), the law of the State of birth of the child should apply.
In order to address the most frequent problems with the recognition of parenthood occurring today, by way of exception to the above-mentioned rule, where that rule results in the establishment of parenthood as regards only one parent (typically the genetic parent in a same-sex couple), the authorities of a Member State with jurisdiction on matters of parenthood under the proposal may apply one of two subsidiary alternative rules, either the law of the nationality of any one of the parents or the law of the State of birth of the child, to establish the parenthood as regards the second parent (typically the non-genetic parent in a same-sex couple). This possibility may be used by authorities with jurisdiction that consider the establishment of parenthood first in time but also by authorities with jurisdiction in a situation where the authorities of another Member State have already established parenthood as regards only one parent. Where a court decision or an authentic instrument establishing parenthood with binding legal effect as regards each of the parents in accordance with one of the applicable laws designated by the proposal has been given, drawn up or registered by a court or another competent authority of a Member State with jurisdiction under the proposal, each of such documents establishing parenthood as regards each of the parents should be recognised in all other Member States in accordance with the rules on recognition laid down in the proposal. In addition, the child (or a legal representative) may request and use a European Certificate of Parenthood to provide evidence of the parenthood as regards both parents in another Member State.
Considerations of public interest should allow courts and other competent authorities establishing parenthood in cross-border situations to disregard, in exceptional circumstances, certain provisions of a foreign law where, in a given case, applying such provisions would be manifestly incompatible with the public policy (ordre public) of their Member State. However, such authorities should not be able to apply this exception in order to set aside the law of another State when doing so would be contrary to the Charter and, in particular, Article 21 thereof, which prohibits discrimination. This exception should not therefore apply to refuse the application of a provision of another State providing for the possibility of parenthood as regards two parents in a same-sex couple merely on the grounds that the parents are of the same sex.
This Chapter provides for rules on the recognition of court decisions and authentic instruments establishing parenthood with binding legal effect issued in another Member State.
The recognition in a Member State of court decisions given in another Member State, and of authentic instruments establishing parenthood with binding legal effect in the Member State of origin, should be based on the principle of mutual trust in one another’s justice system. This trust should be further enhanced through the adoption of uniform rules on international jurisdiction and on the law applicable to the establishment of parenthood in cross-border situations. Court decisions and authentic instruments establishing parenthood with binding legal effect issued in a Member State should be recognised in another Member State without any special procedure being required, including to update the civil status records of the child. This is without prejudice to the possibility that an interested party may start court proceedings to obtain a decision finding that there are no grounds for the refusal of the recognition of parenthood or proceedings for the non‑recognition of parenthood.
A party who wishes to invoke a court decision or an authentic instrument establishing parenthood with binding legal effect in another Member State should produce a copy of the court decision or authentic instrument and the relevant attestation. Attestations are aimed to facilitate the readability of the documents that they accompany and thus their recognition. As regards authentic instruments establishing parenthood with binding legal effect, the attestation also serves to prove that the Member State whose authority issued the authentic instrument had jurisdiction to establish parenthood under the proposal.
The authorities of the Member State where parenthood is invoked are not entitled to require the presentation of an attestation accompanying a court decision or an authentic instrument establishing parenthood with binding legal effect or a European Certificate of Parenthood where parenthood is invoked for the purposes of rights derived from Union law, including the right to free movement. This should not, however, prevent a person from choosing to present in such cases also the relevant attestation or a European Certificate of Parenthood.
Under the proposal, the list of grounds for refusal of the recognition of parenthood is exhaustive in line with its underlying aim to facilitate the recognition of parenthood. When assessing a possible refusal of the recognition of parenthood on grounds of public policy, Member State authorities must take into account the child’s interests, in particular the protection of the rights of the child, including the preservation of genuine family links between the child and the parents. The ground for the refusal of recognition based on public policy (ordre public) is to be used exceptionally and in the light of the circumstances of each particular case, that is, not in an abstract manner to set aside the recognition of the parenthood of a child where, for example, same-sex parents are involved. In a given case, such recognition would have to be manifestly incompatible with the public policy of the Member State where recognition is sought because, for example, the fundamental rights of a person have been infringed in the conception, birth or adoption of the child or in the establishment of the parenthood of the child. The courts or other competent authorities should not be able to refuse to recognise a court decision or an authentic instrument issued in another Member State where doing so would be contrary to the Charter and, in particular, Article 21 thereof, which prohibits discrimination, including of children. Member State authorities could not thus refuse on public policy grounds the recognition of a court decision or an authentic instrument establishing parenthood through adoption by a single man, or establishing parenthood as regards two parents in a same-sex couple merely on the ground that the parents are of the same sex.
The proposal will not affect the limitations imposed by the case law of the Court of Justice on the use of public policy to refuse the recognition of parenthood where, under Union law on free movement, Member States are obliged to recognise a document establishing a parent-child relationship issued by the authorities of another Member State for the purposes of the exercise of rights derived from Union law. In particular, the recognition of a parent-child relationship for the purposes of the exercise of the rights that the child derives from Union law cannot be refused by invoking public policy on the ground that the parents are of the same sex.
The proposal also provides for the acceptance of authentic instruments which do not establish parenthood with binding legal effect in the Member State of origin but which have evidentiary effects in that Member State. The evidentiary effects can refer to the prior establishment of parenthood by other means or to other facts. Depending on the national law, such an authentic instrument can be, for example, a birth certificate, a parenthood certificate, an extract on birth from the register, or a notarial or administrative document recording an acknowledgment of paternity or the consent of a mother or of a child to the establishment of parenthood.
Such authentic instruments should have the same evidentiary effects in another Member State as they have in the Member State of origin, or the most comparable effects. A person wishing to use such an authentic instrument in another Member State may ask the authority that has formally drawn up or registered the authentic instrument in the Member State of origin to issue an attestation describing the evidentiary effects of the instrument.
The acceptance of authentic instruments with no binding legal effect but with evidentiary effects may only be refused on public policy (ordre public) grounds with the same limitations applicable to that refusal ground when applied to court decisions and authentic instruments with binding legal effect, including as regards compliance with the Charter.
The proposal provides for the creation of an optional European Certificate of Parenthood (‘the Certificate’). This uniform certificate is designed specifically to facilitate the recognition of parenthood within the Union as it would be issued ‘for use in another Member State’. The Certificate must be issued in the Member State in which parenthood was established in accordance with the applicable law and whose courts had jurisdiction under the proposal. Once issued, the Certificate can also be used in the Member State where it was issued.
The Certificate is an optional certificate as Member State authorities would only be required to issue it if the child or a legal representative asks for it. Therefore, persons entitled to apply for a Certificate would be under no obligation to do so and would be free to present other documents, such as a court decision or an authentic instrument accompanied by the relevant attestation, when requesting the recognition of parenthood in another Member State. However, no authority or person presented with a copy of the Certificate issued in another Member State would be entitled to request that a court decision or an authentic instrument be presented instead of the Certificate.
National certificates of birth or parenthood are, typically, authentic instruments that have evidentiary effects of parenthood. National certificates are issued under a different procedure, in a different format and in a different language in each Member State, and have different contents and effects depending on the Member State of issuance. Under the proposal, they can circulate accompanied by an optional attestation describing their evidentiary effects, and their evidentiary effects must be accepted unless they are contrary to the public policy of the Member State in which they are presented.
In contrast, a Certificate is issued always through the same procedure as laid down in the proposal, in a uniform standard form (included in Annex V to the proposal), and with the same contents and effects throughout the Union as laid down in the proposal. The Certificate is presumed to demonstrate accurately the elements established under the applicable law designated by the proposal, and does not need to be transposed into a national document before it can have access to the relevant register in a Member State. As the Certificate form would be available in all Union languages, the need for translations would be significantly reduced.
Given the stability of parenthood status in most cases, the validity of the Certificate and its copies would not be limited in time, without prejudice to the possibility to rectify, modify, suspend or withdraw the Certificate as necessary.
If there is a need to amend the standard forms of the attestations accompanying a court decision or an authentic instrument or the European Certificate of Parenthood annexed to this proposal, the Commission would have the power to adopt delegated acts after the required consultations with the Member States’ experts have taken place.
This Chapter contains provisions concerning the electronic communication between natural persons (or their legal representatives) and Member State courts or other competent authorities through a decentralised IT system and the European electronic access point established on the European e-Justice Portal. Member State courts or other competent authorities would be allowed to communicate with a natural person through the European electronic access point if the natural person has given prior express consent to the use of this means of communication.
This Chapter contains, in particular, provisions on the relationship of the proposal with existing international conventions, provisions on data protection and transitional provisions on the use of court decisions and authentic instruments issued before the date of application of the Regulation.