Considerations on 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

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dossier COM(2022)695 - Jurisdiction, applicable law, recognition of decisions, acceptance of authentic instruments in matters of parenthood and the ...
document COM(2022)695 EN
date December  7, 2022
 
(1) The Union has set itself the objective of creating, maintaining and developing an area of freedom, security and justice in full respect of fundamental rights in which the free movement of persons and access to justice are ensured. For the gradual establishment of such an area, the Union is to adopt measures aimed at ensuring the mutual recognition between Member States of judgments and decisions in extrajudicial cases in civil matters and the compatibility of the rules applicable in the Member States concerning conflict of laws and jurisdiction in civil matters.

(2) This Regulation concerns the recognition in a Member State of the parenthood of a child as established in another Member State. It aims to protect the fundamental rights and other rights of children in matters concerning their parenthood in cross-border situations, including their right to an identity 31 , to non-discrimination 32 and to a private and family life 33 , taking the best interests of the child as a primary consideration 34 . This Regulation also aims to provide legal certainty and predictability and to reduce litigation costs and burden for families, national courts and other competent authorities in connection with proceedings for the recognition of parenthood in another Member State. To attain these aims, this Regulation should require Member States to recognise for all purposes the parenthood of a child as established in another Member State.

(3) Articles 21, 45, 49 and 56 of the Treaty on the Functioning of the European Union (TFEU) confer on Union citizens the right to move and reside freely within the territory of the Member States. They comprise the right of Union citizens not to face any obstacles and the right to equal treatment with nationals in the exercise of free movement, including as regards certain social advantages, defined as any advantage which will likely facilitate mobility 35 . This right also applies to family members of Union citizens as defined by Directive 2004/38/EC of the European Parliament and of the Council 36  in matters related to scholarships, admission to education, reductions in public transportation costs for large families, reduced student fares for public transport and reduced museum entrance fees 37 . The protection afforded by the Treaty provisions on free movement also includes the right to have a name lawfully attributed in a Member State recognised in other Member States 38 .

(4) The Court of Justice of the European Union (‘the Court of Justice’) has ruled that a Member State is required to recognise a parent-child relationship for the purposes of permitting a child to exercise without impediment, with each parent, the right to move and reside freely within the territory of the Member States as guaranteed in Article 21(1) TFEU, and to exercise all the rights that the child derives from Union law 39 . The case-law of the Court of Justice does not, however, require Member States to recognise, for purposes other than the exercise of the rights that the child derives from Union law, the parent-child relationship between the child and the persons mentioned on the birth certificate drawn up by the authorities of another Member State as being the child’s parents.

(5) Under the Treaties, the competence to adopt substantive rules on family law, such as rules on the definition of family and rules on the establishment of the parenthood of a child, lies with the Member States. However, pursuant to Article 81(3) TFEU, the Union can adopt measures concerning family law with cross-border implications, in particular rules on international jurisdiction, on applicable law and on the recognition of parenthood.

(6) In conformity with the Union’s competence to adopt measures on family law with cross-border implications, the 2010 ‘European Council Stockholm programme – An open and secure Europe serving and protecting citizens’ 40 invited the Commission to consider the problems encountered with regard to civil status documents and the access to registers of such documents and, in the light of its findings, to submit appropriate proposals and consider whether the mutual recognition of the effects of civil status documents could be appropriate, at least in certain areas. The Commission Action Plan Implementing the Stockholm Programme 41 envisaged a legislative proposal for dispensing with the formalities for the legalisation of documents between Member States and a legislative proposal on the mutual recognition of the effects of certain civil status documents, including as regards birth, parenthood and adoption.

(7) In 2010 the Commission published a Green Paper entitled ‘Less bureaucracy for citizens: promoting free movement of public documents and recognition of the effects of civil status records’ by which it launched a broad consultation on matters relating to the free movement of public documents and the recognition of the effects of civil status records. Among others, it considered the possibility of introducing a European civil status certificate that would facilitate the cross-border recognition of civil status in the Union. The consultation aimed to gather contributions from interested parties and the general public with a view to developing Union policy in these areas and the relevant legislative proposals. In 2016, the Union legislator adopted Regulation (EU) 2016/1191 on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the European Union 42 , including documents on birth, parenthood and adoption.

(8) While the Union has competence to adopt measures on family law with cross-border implications such as rules on international jurisdiction, applicable law and the recognition of parenthood between Member States, to date the Union has not adopted provisions in those areas as regards parenthood. The Member States’ provisions currently applicable in these areas differ.

(9) At Union level, a number of Union instruments deal with certain rights of children in cross-border situations, in particular Council Regulation (EC) No 4/2009 43 , Regulation (EU) No 650/2012 of the European Parliament and of the Council 44 and Council Regulation (EU) 2019/1111 45 . However, these Regulations do not include provisions on the establishment or the recognition of parenthood. For its part, Regulation (EU) 2016/1191 of the European Parliament and of the Council 46 includes public documents on birth, parenthood and adoption in its scope, but this Regulation deals with the authenticity and the language of such documents and not with the recognition of their contents or effects in another Member State.

(10) As a result of the absence of Union provisions on international jurisdiction and applicable law for the establishment of parenthood in cross-border situations and on the recognition of parenthood between Member States, families may encounter difficulties in having the parenthood of their children recognised for all purposes within the Union, including when they move to another Member State or return to their Member State of origin. 

(11) Children derive a number of rights from parenthood, including the right to an identity, a name, nationality (where governed by ius sanguinis), custody and access rights by their parents, maintenance rights, succession rights and the right to be legally represented by their parents. The non-recognition in a Member State of the parenthood established in another Member State can have serious adverse consequences on children’s fundamental rights and on the rights that they derive from national law. This may prompt families to start litigation to have the parenthood of their child recognised in another Member State, although those proceedings have uncertain results and involve significant time and costs for both families and the Member States’ judicial systems. Ultimately, 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 the purposes of rights derived from national law.

(12) In 2020 the Commission announced measures 47 to ensure that the parenthood established in a Member State would be recognised in all other Member States. This initiative was included in the 2020 EU LGBTIQ Equality Strategy 48 and the 2021 EU Strategy on the rights of the child 49 as a key action to support equality and the rights of children. The European Parliament welcomed the Commission’s initiative in its 2021 Resolution on LGBTIQ rights in the EU 50  and in its 2022 Resolution on the protection of the rights of the child in civil, administrative and family law proceedings 51 .

(13) This Regulation should not affect the rights that a child derives from Union law, in particular the rights that a child enjoys under Union law on free movement, including Directive 2004/38/EC. For instance, Member States must already today recognise a parent-child relationship for the purposes of permitting children to exercise, with each of their two parents, the right to move and reside freely within the territory of the Member States without impediment, and to exercise all the rights that the child derives from Union law. This Regulation does not provide for any additional conditions or requirements for the exercise of such rights.

(14) 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 a child derives from Union law. In addition, for the purposes of exercising such rights, proof of parenthood can be presented by any means 52 . Therefore, a Member State is not entitled to require that a person presents either the attestations provided for in this Regulation accompanying a court decision or an authentic instrument on parenthood, or the European Certificate of Parenthood created by this Regulation, where the person invokes, in the context of the exercise of the right to free movement, rights that a child derives from Union law. This should not, however, prevent a person from choosing to present in such cases also the relevant attestation or the European Certificate of Parenthood provided for in this Regulation. To ensure that Union citizens and their family members are informed that the rights that a child derives from Union law are not affected by this Regulation, the forms of the attestations and of the European Certificate of Parenthood annexed to this Regulation should include a statement specifying that the relevant attestation or the European Certificate of Parenthood do not affect the rights that a child derives from Union law, in particular the rights that a child enjoys under Union law on free movement, and that, for the exercise of such rights, proof of the parent-child relationship can be presented by any means.

(15) This Regulation should not affect Regulation (EU) 2016/1191 of the European Parliament and of the Council 53  in respect of public documents on birth, parenthood and adoption, in particular as regards the presentation by citizens of certified copies and the use by Member State authorities of the Internal Market Information System (‘IMI’) if they have a reasonable doubt as to the authenticity of a public document on birth, parenthood or adoption or their certified copy presented to them.

(16) Article 2 of the United Nations Convention on the Rights of the Child of 20 November 1989 ('UN Convention on the Rights of the Child') requires States Parties to respect and ensure the rights of children without discrimination of any kind, and to take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the circumstances of the child's parents. Under Article 3 of the said Convention, in all actions by, amongst others, courts and administrative authorities, the best interests of the child must be a primary consideration.

(17) Any reference to the ‘best interests of the child’ in this Regulation should apply to children within the meaning of Article 1 of the United Nations Convention on the Rights of the Child of 20 November 1989 ('UN Convention on the Rights of the Child'), that is, children below the age of 18 years unless under the law applicable to the child, majority is attained earlier. Any reference to the ‘best interests of the child’ in this Regulation should also be interpreted in the light of Article 24 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and of Articles 3 and 12 of the UN Convention on the Rights of the Child as implemented by national law. Any reference to the ‘child’s interests’ in this Regulation should be understood as referring to the best interests of the child and to the interests of children whichever their age.

(18) Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (‘European Convention of Human Rights’) lays down the right to respect for private and family life, while Article 1 of Protocol No. 12 to the said Convention provides that the enjoyment of any right set forth by law must be secured without discrimination on any ground, including birth. The European Court of Human Rights has interpreted Article 8 of the Convention as requiring all States within its jurisdiction to recognise the legal parent-child relationship established abroad between a child born out of surrogacy and the biological intended parent, and to provide for a mechanism for the recognition in law of the parent-child relationship with the non-biological intended parent (for example through the adoption of the child) 54 .

(19) The Court of Justice has confirmed that the essential characteristics of Union law have given rise to a structured network of principles, rules and mutually interdependent legal relations linking the Union and its Member States, and its Member States with each other. This legal structure is based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the Union is founded, as stated in Article 2 TEU. That premiss implies and justifies the existence of mutual trust between the Member States that those values will be recognised.

(20) Pursuant to Article 2 of the Treaty on European Union (‘TEU’), equality and non-discrimination are amongst the values on which the Union is founded and which are common to the Member States. Article 21 of the Charter prohibits discrimination on grounds of, amongst others, birth. Article 3 TEU and Article 24 of the Charter provide for the protection of the rights of the child, and Article 7 of the Charter provides for everyone’s right to respect for their private and family life.

(21) In conformity with the provisions of international conventions and Union law, this Regulation should ensure that children enjoy their rights and maintain their legal status in cross-border situations without discrimination. To that effect, and in the light of the case law of the Court of Justice, including on mutual trust between Member States, and of the European Court on Human Rights, this Regulation should cover the recognition in a Member State of the parenthood established in another Member State irrespective of how the child was conceived or born and irrespective of the child’s type of family, and including domestic adoption. Therefore, subject to the application of the rules on applicable law of this Regulation, this Regulation should cover the recognition in a Member State of the parenthood established in another Member State of a child with same-sex parents. This Regulation should also cover the recognition in a Member State of the parenthood of a child adopted domestically in another Member State under the rules governing domestic adoption in that Member State.

(22) To achieve its aims, it is necessary and appropriate for this Regulation to bring together common rules on jurisdiction, applicable law, recognition or, as the case may be, acceptance of court decisions and authentic instruments on parenthood as well as rules on the creation of a European Certificate of Parenthood in a Union legal instrument which is binding and directly applicable.

(23) This Regulation covers civil matters, which includes civil court proceedings and the resulting decisions on parenthood, and authentic instruments on parenthood. The term civil matters should be interpreted autonomously, in accordance with the established case law of the Court of Justice. It should be regarded as an independent concept to be interpreted by referring, first, to the objectives and scheme of this Regulation and, second, to the general principles that stem from the corpus of the national legal systems. The term civil matters should therefore be interpreted as capable of extending also to measures that, from the point of view of the legal system of a Member State, might fall under public law.

(24) For the purposes of this Regulation, parenthood, also referred to as filiation, may be biologic, genetic, by adoption or by operation of law. Also for the purposes of this Regulation, parenthood should mean the parent-child relationship established in law, and should cover the legal status of being the child of a particular parent or parents. This Regulation should cover 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 relationship which, under the law applicable to such relationship, has comparable effects, such as a registered partnership. This Regulation should apply regardless of the nationality of the child whose parenthood is to be established, and regardless of the nationality of the parents of the child. The term ‘parent’ in this Regulation should be understood, as applicable, as referring to the legal parent, the intended parent, the person who claims to be a parent or the person in respect of whom the child claims parenthood.

(25) This Regulation should not apply to the establishment of parenthood in a Member State in a domestic situation with no cross-border elements. This Regulation should not therefore include provisions on jurisdiction or applicable law for the establishment of parenthood in domestic cases, such as the parenthood of a child further to a domestic adoption in a Member State. However, in order to safeguard children’s rights without discrimination in cross-border situations as laid down in the Charter, in application of the principle of mutual trust between Member States as confirmed by the Court of Justice, the provisions of this Regulation on the recognition or, as the case may be, acceptance of court decisions and authentic instruments on parenthood should also apply to the recognition of parenthood established in a Member State in domestic situations, such as the parenthood established in a Member State further to a domestic adoption in that Member State. The provisions of this Regulation concerning the relevant attestation and the European Certificate of Parenthood should therefore also apply as regards the parenthood established in a Member State in domestic situations, such as further to a domestic adoption in a Member State.

(26) For the purposes of this Regulation, a domestic adoption in a Member State is that in which the child and the adoptive parent or parents have their habitual residence in the same Member State and where the adoption creates a permanent parent-child relationship. In order to take account of the different legal traditions of the Member States, this Regulation should cover domestic adoption in a Member State where the adoption results in the termination of the legal relationship between the child and the family of origin (full adoption) as well as domestic adoption in a Member State which does not result in the termination of the legal relationship between the child and the family of origin (simple adoption).

(27) Intercountry adoption, where the child and the adoptive parent or parents have their habitual residence in different States, is governed by the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, to which all Member States are party. This Regulation should not apply to intercountry adoption, irrespective of whether it involves two Member States or a Member State and a third State, and irrespective of whether or not an intercountry adoption is covered by the Hague Convention.

(28) While the establishment and the recognition of parenthood in conformity with this Regulation is relevant for other areas of civil law, the scope of this Regulation should be limited to jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments concerning parenthood. For reasons of clarity, other areas of civil law which could be seen as having a link with parenthood should be explicitly excluded from the scope of this Regulation.

(29) In particular, the rules on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments set out in this Regulation should not apply to maintenance rights, governed by Council Regulation (EC) No 4/2009 55 ; succession rights, governed by Regulation (EU) No 650/2012 of the European Parliament and of the Council 56 ; or parental responsibility matters, governed by Council Regulation (EU) 2019/1111 57 . However, as the question of the parenthood of a child must be resolved as a preliminary question before resolving matters of parental responsibility, maintenance or succession as regards the child, this Regulation should facilitate the application of the above-mentioned Union instruments on family law and succession.

(30) This Regulation should not apply to preliminary questions such as the existence, validity or recognition of a marriage or a relationship deemed by the law applicable to it as having comparable effects, which should continue to be governed by the national law of the Member States, including their rules of private international law and, where relevant, by the case law of the Court of Justice on free movement.

(31) The requirements for the recording of parenthood in a register should be excluded from the scope of this Regulation. It should therefore be the law of the Member State in which the register is kept that should determine under what legal conditions and how the recording must be carried out, and which authorities are in charge of checking that all requirements are met and that the documentation presented or established is sufficient or contains the necessary information. In order to avoid duplication of documents, the national registration authorities should accept the documents drawn up in another Member State by the competent authorities whose circulation is provided for by this Regulation. In particular, the European Certificate of Parenthood issued under this Regulation should constitute a valid document for the recording of parenthood in a register of a Member State. As the procedure for the issuance of the European Certificate of Parenthood and its contents and effects should be uniform in all Member States as set out in this Regulation, and the European Certificate of Parenthood should be issued in conformity with the rules on jurisdiction and applicable law laid down in this Regulation, the authorities involved in the registration should not require that the European Certificate of Parenthood be first transposed into a national document on parenthood. This should not preclude the authorities involved in the registration from confirming the conditions necessary to establish the authenticity of the European Certificate of Parenthood or from asking the person applying for registration to provide such additional information as required under the law of the Member State in which the register is kept, provided that information is not already included in the European Certificate of Parenthood. The competent authority may indicate to the person applying for registration how the missing information can be provided. The effects of recording the parenthood in a register (for example, depending on the national law, whether registration establishes parenthood or only provides evidence of the parenthood already established) should also be excluded from the scope of this Regulation and be determined by the law of the Member State in which the register is kept.

(32) This Regulation should not cover the recognition of court decisions on parenthood given in a third State or the recognition or, as the case may be, acceptance of authentic instruments on parenthood drawn up or registered in a third State. The recognition or acceptance of such documents should remain subject to the national law of each Member State.

(33) The establishment of parenthood should mean the legal determination of the legal relationship between a child and each parent, and should be understood to include the establishment of parenthood following a claim contesting a parenthood established previously. Where relevant, this Regulation should also apply to the extinction or termination of parenthood.

(34) Notwithstanding the differences in national laws, parenthood is typically established by operation of law or by an act of a competent authority. Examples of the establishment of parenthood by operation of law include parenthood by birth as regards the person giving birth, and parenthood by legal presumption as regards the spouse or the registered partner of the person giving birth. Examples of the establishment of parenthood by an act of a competent authority include the establishment of parenthood by a court decision (such as in adoption, or in proceedings where parenthood is contested, or in proceedings where parenthood is claimed, for example by proving a possession of state), by a notarial deed (for example, in adoption or where the child is not yet born), by an administrative decision (for example, after an acknowledgment of paternity) or by registration. Parenthood is typically registered in the civil, personal or population register. Evidence of parenthood can be provided by the document establishing the parenthood (such as the court decision, the notarial deed or the administrative decision establishing parenthood). However, evidence of parenthood is most often provided by the registration of the parenthood in the register itself, by an extract from the relevant register or by a certificate containing the information registered in the relevant register (such as a birth certificate or a parenthood certificate).

(35) The smooth and correct functioning of a Union area of justice with respect for the Member States' different legal systems and traditions is fundamental for the Union. In that regard, mutual trust in one another's justice systems should be further enhanced.

(36) In order to facilitate the recognition of court decisions and authentic instruments on parenthood matters, this Regulation should lay down uniform jurisdiction rules for the establishment of parenthood with a cross-border element. This Regulation should also clarify the right of children below the age of 18 years to be provided with an opportunity to express their views in proceedings to which they are subject.

(37) This Regulation should 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 or other authorities).

(38) This Regulation should respect the different systems for dealing with parenthood matters in the Member States. As regards authentic instruments, Member States often empower authorities, such as notaries, administrative authorities or registrars to draw up authentic instruments establishing parenthood with binding legal effect in the Member State in which they have been drawn up or registered (‘authentic instruments with binding legal effect’), or to draw up authentic instruments which have no binding legal effect in the Member State in which they have been drawn up or registered but which have evidentiary effects in that Member State (‘authentic instruments with no binding legal effect’). The term empowerment in this Regulation is to be interpreted autonomously in accordance with the definition of authentic instrument used horizontally in Union instruments and in the light of the objectives of this Regulation.

(39) To safeguard the child’s interests, jurisdiction should be determined according to the criterion of proximity. Consequently, where possible jurisdiction should lie with the Member State of the habitual residence of the child. However, in order to facilitate the child’s access to justice in a Member State, alternative jurisdiction should also be granted to the Member State of the nationality of the child, to the Member State of the habitual residence of the respondent (for example, the person in respect of whom the child claims parenthood), to the Member State of the habitual residence of any of the parents, to the Member State of the nationality of any of the parents or to the Member State of the child’s birth.

(40) In accordance with the case law of the Court of Justice, the child’s place of habitual residence must be established on the basis of all the circumstances specific to each individual case. In addition to the physical presence of the child in the territory of a Member State, other factors must be chosen which are capable of showing that that presence is not in any way temporary or intermittent and that it reflects some degree of integration of the child into a social and family environment, which is the place which, in practice, is the centre of that child’s life. Such factors include the duration, regularity, conditions and reasons for the child’s stay on the territory of the Member State concerned and the child’s nationality, with the relevant factors varying according to the age of the child concerned. They also include the place and conditions of the child’s attendance at school, and the family and social relationships of the child in the Member State. The intention of the parents to settle with the child in a given Member State may also be taken into account where that intention is manifested by tangible steps, such as the purchase or lease of a residence in the Member State concerned. By contrast, the nationality of the person giving birth or the previous residence of this person in the Member State of the court seised is not relevant, whereas the fact that the child was born in that Member State and holds the nationality of that Member State is insufficient.

(41) Where this Regulation refers to nationality as a connecting factor for the purposes of jurisdiction or applicable law, the question of how to consider a child or a parent having multiple nationalities is a preliminary question which falls outside the scope of this Regulation and should be left to national law, including, where applicable, international conventions, in full observance of the general principles of the Union. For the purposes of this Regulation, a child or a parent possessing multiple nationalities may choose the court or the law of any of the Member States whose nationality he or she possesses at the time of seising the court or at the time the parenthood is established.

(42) Where jurisdiction cannot be established based on the general alternative jurisdiction grounds, the courts of the Member State where the child is present should have jurisdiction. This presence rule should, in particular, allow the courts of a Member State to exercise jurisdiction in respect of third-country national children, including applicants for or beneficiaries of international protection such as refugee children and children internationally displaced because of disturbances occurring in their State of habitual residence.

(43) Where no court of a Member State has jurisdiction pursuant to this Regulation, jurisdiction should be determined, in each Member State, by the laws of that Member State, including the international instruments in force in that Member State.

(44) In order to remedy situations of denial of justice, this Regulation should provide a forum necessitatis allowing a court of a Member State, on an exceptional basis, to rule on a parenthood matter which is closely connected with a third State. Such an exceptional basis may be deemed to exist when proceedings prove impossible in the third State in question, for example because of civil war, or when the child or another interested party cannot reasonably be expected to initiate or conduct proceedings in that State. Jurisdiction based on forum necessitatis should, however, be exercised only if the case has a sufficient connection with the Member State of the court seised.

(45) In the interests of procedural economy and procedural efficiency, if the outcome of proceedings before a court of a Member State not having jurisdiction under this Regulation depends on the determination of an incidental question falling within the scope of this Regulation, the courts of that Member State should not be prevented by this Regulation from determining that question. Therefore, if the object of the proceedings is, for instance, a succession dispute in which the parent-child relationship between the deceased and the child must be established for the purposes of those proceedings, the Member State having jurisdiction for the succession dispute should be allowed to determine that question for the pending proceedings, regardless of whether it has jurisdiction for parenthood matters under this Regulation. Any such determination should be made in accordance with the applicable law designated by this Regulation and should only produce effects in the proceedings for which it was made.

(46) In the interests of the harmonious functioning of justice, the giving of irreconcilable court decisions in different Member States should be avoided. To that end, this Regulation should provide for general procedural rules similar to those of other Union instruments in the area of judicial cooperation in civil matters.

(47) One such procedural rule is the lis pendens rule, which should come into play if the same case on parenthood is brought before different courts in different Member States. That rule should determine which court should proceed to deal with the case on parenthood.

(48) This Regulation should define at what time a court is deemed to be seised for the purposes of this Regulation. In the light of the two different systems existing in the Member States, which either require the document instituting the proceedings to be served upon the respondent first, or to be lodged with the court first, it should be sufficient for the first step under national law to have been taken, provided that the applicant has not subsequently failed to take any steps that he or she was required to take under national law in order to have the second step effected.

(49) Proceedings on the establishment of parenthood under this Regulation should, as a basic principle, provide children below the age of 18 years who are subject to those proceedings and who are capable of forming their own views, in accordance with the case law of the Court of Justice, with a genuine and effective opportunity to express their views and, when assessing the best interests of the child, due weight should be given to those views. This Regulation should, however, leave the question of who will hear the child and how the child will be heard to be determined by the national law and procedure of the Member States. In addition, while remaining a right of the child, hearing the child should not constitute an absolute obligation although it should be assessed taking into account the best interests of the child.

(50) This Regulation should provide legal certainty and predictability by providing common rules on the law applicable to the establishment of parenthood in cross-border situations. Such common rules aim to avoid conflicting decisions depending on which Member State’s courts or other competent authorities establish parenthood and to facilitate, in particular, 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.

(51) As a rule, the law applicable to the establishment of parenthood in cross-border situations should be the law of the State of the habitual residence of the person giving birth at the time of birth. This connecting factor should ensure that the applicable law can be determined in the vast majority of cases, including as regards a new-born, whose habitual residence may be difficult to establish. The time of birth should be interpreted strictly, referring to the most frequent situation in which parenthood is established upon birth by operation of law and registered in the relevant register within a few days following birth. That law should apply both to situations in which the person giving birth has the habitual residence in the State of birth (as would be the typical situation) and also to situations in which the person giving birth has the habitual residence in a State other than the State of birth (for example, when birth occurs while travelling). The law of the State of the habitual residence of the person giving birth at the time of birth should apply, by analogy, where the parenthood of the child needs to be established before the child is born. To ensure that the applicable law can be determined in all circumstances, the law of the State of birth of the child should apply in the rare cases 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).

(52) By way of exception, where the law applicable as a rule results in the establishment of parenthood as regards only one parent (for example, only the genetic parent in a same-sex couple), either of two subsidiary laws, namely the law of the State of nationality of either parent or the law of the State of birth of the child, may be applied to establish parenthood as regards the second parent (for example, the non-genetic parent in a same-sex couple). Given that, in those cases, both the parenthood as regards one parent and the parenthood as regards the other parent would be established in accordance with one of the laws designated as applicable by this Regulation, the parenthood as regards each parent, including where established by the authorities of different Member States, should be recognised in all other Member States under the rules of this Regulation where the parenthood as regards each parent has been established by the authorities of a Member State whose courts have jurisdiction under this Regulation.

(53) Any of the laws designated as applicable by this Regulation should apply even if it is not the law of a Member State.

(54) To ensure legal certainty and the continuity of parenthood, where parenthood has been established in a Member State in accordance with one of the laws designated as applicable by this Regulation, the change of applicable law as a result of a change of the habitual residence of the person who gave birth or of the nationality of either parent should not affect the parenthood already established.

(55) An interested party may do a unilateral act intended to have legal effect on a parenthood established or to be established, for example, an acknowledgment of paternity or the giving of consent by a spouse to the use of assisted reproductive technology. Such an act should be formally valid if it satisfies the formal requirements of the law designated as applicable by this Regulation, or the law of the State in which the person doing the act has the habitual residence, or the law of the State in which the act was done.

(56) Considerations of public interest should allow courts and other competent authorities establishing parenthood in the Member States 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 the Member State concerned. However, the courts or other competent authorities should not be able to apply the public policy 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.

(57) Since there are States in which two or more systems of law or sets of rules concerning the matters governed by this Regulation may coexist, a provision should govern the extent to which this Regulation applies in the different territorial units of those States.

(58) This Regulation should provide for the recognition of court decisions and authentic instruments establishing parenthood with binding legal effect issued in another Member State.

(59) Depending on the national law, an authentic instrument establishing parenthood with binding legal effect in the Member State of origin can be, for example, a notarial deed of adoption or an administrative decision establishing parenthood following an acknowledgment of paternity. This Regulation should also provide for 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. Depending on the national law, such an authentic instrument can be, for example, a birth certificate or a parenthood certificate providing evidence of the parenthood established in the Member State of origin (whether the parenthood has been established by operation of law or by an act of a competent authority, such as a court decision, a notarial deed, an administrative decision or registration).

(60) Mutual trust in the administration of justice in the Union justifies the principle that court decisions establishing parenthood in a Member State should be recognised in all Member States without the need for any recognition procedure. In particular, when presented with a court decision given in another Member State establishing parenthood that can no longer be challenged in the Member State of origin, the competent authorities of the requested Member State should recognise the court decision by operation of law without any special procedure being required and update the records on parenthood in the relevant register accordingly.

(61) It should be left to national law whether the grounds for refusal may be raised by a party or ex officio. This should not preclude any interested party who wishes to raise the recognition of a court decision on parenthood given in another Member State as the principal issue in a dispute from applying to a court for a court decision stating that there are no grounds for a refusal of the recognition of that court decision. It should be for the national law of the Member State where such application is made to determine who can be considered as an interested party entitled to make such application.

(62) The recognition in a Member State of court decisions on parenthood matters given in another Member State should be based on the principle of mutual trust. Therefore, the grounds for non-recognition should be kept to the minimum in the light of the underlying aim of this Regulation, which is to facilitate the recognition of parenthood and to protect effectively children’s rights and the best interests of the child in cross-border situations.

(63) The recognition of a court decision should be refused only if one or more of the grounds for refusal of recognition provided for in this Regulation are present. The list of grounds for refusal of recognition in this Regulation is exhaustive. It should not be possible to invoke, as grounds for refusal, grounds which are not listed in this Regulation such as, for example, a violation of the lis pendens rule. A later court decision should always supersede an earlier court decision to the extent that they are irreconcilable.

(64) As regards the opportunity given to children below the age of 18 years to express their views, it should be for the court of origin to decide about the appropriate method for hearing the child. Therefore, it should not be possible to refuse recognition of a court decision on the sole ground that the court of origin used a different method to hear the child than a court in the Member State of recognition would use.

(65) Authentic instruments with binding legal effect in the Member State of origin should be treated as equivalent to court decisions for the purposes of the rules on recognition of this Regulation.

(66) Although the obligation to provide children below the age of 18 years with the opportunity to express their views under this Regulation should not apply to authentic instruments with binding legal effect, the right of children to express their views should however be taken into consideration pursuant to Article 24 of the Charter and in the light of Article 12 of the UN Convention on the Rights of the Child as implemented by national law and procedure. The fact that children were not given the opportunity to express their views should not automatically be a ground for refusal of recognition of authentic instruments with binding legal effect.

(67) The recognition in a Member State under this Regulation of a court decision establishing parenthood given in another Member State, or of an authentic instrument establishing parenthood with binding legal effect drawn up or registered in another Member State, should not imply the recognition of the possible marriage or registered partnership of the parents of the child whose parenthood has been or is to be established.

(68) In order to take into account the different systems of dealing with parenthood in the Member States, this Regulation should guarantee the acceptance in all Member States of authentic instruments which have no binding legal effect in the Member State of origin but which have evidentiary effects in that Member State. Such authentic instruments can have evidentiary effects as regards parenthood already established or as regards other facts. Depending on the national law, authentic instruments providing evidence of parenthood already established can be, for example, a birth certificate, a parenthood certificate or an extract from the civil register on birth. Authentic instruments providing evidence of other facts can be, for example, a notarial or administrative document recording an acknowledgment of paternity, a notarial or administrative document recording the consent of a mother or of a child to the establishment of parenthood, a notarial or administrative document recording the consent of a spouse to the use of assisted reproductive technology, or a notarial or administrative document recording a possession of state.

(69) Authentic instruments which have no binding legal effect in the Member State of origin but which have evidentiary effects in that Member State should have the same evidentiary effects in another Member State as they have in the Member State of origin, or the most comparable effects. When determining the evidentiary effects of such an authentic instrument in another Member State or the most comparable effects, reference should be made to the nature and the scope of the evidentiary effects of the authentic instrument in the Member State of origin. The evidentiary effects which such an authentic instrument should have in another Member State will therefore depend on the law of the Member State of origin.

(70) The ‘authenticity’ of an authentic instrument which has no binding legal effect in the Member State of origin but which has evidentiary effects in that Member State should be an autonomous concept covering elements such as the genuineness of the instrument, the formal prerequisites of the instrument, the powers of the authority drawing up the instrument and the procedure under which the instrument is drawn up. It should also cover the factual elements recorded in the authentic instrument. A party wishing to challenge the authenticity of such an authentic instrument should do so before the competent court in the Member State of origin of the authentic instrument under the law of that Member State.

(71) The term ‘legal act’ (for example, an acknowledgment of paternity or the giving of consent) or ‘legal relationship’ (for example, the parenthood of a child) recorded in an authentic instrument which has no binding legal effect in the Member State of origin but which has evidentiary effects in that Member State should be interpreted as referring to the contents as to substance recorded in the authentic instrument. A party wishing to challenge a legal act or a legal relationship recorded in the authentic instrument should do so before the courts having jurisdiction under this Regulation, which should decide on the challenge in accordance with the law applicable to the establishment of parenthood designated by this Regulation.

(72) If a question relating to the legal act or legal relationship recorded in an authentic instrument which has no binding legal effect in the Member State of origin but which has evidentiary effects in that Member State is raised as an incidental question in proceedings before a court of a Member State, that court should have jurisdiction over that question.

(73) Where an authentic instrument which has no binding legal effect in the Member State of origin but which has evidentiary effects in that Member State is being challenged, it should not produce any evidentiary effects in a Member State other than the Member State of origin as long as the challenge is pending. If the challenge concerns only a specific matter relating to the legal act or legal relationships recorded in the authentic instrument, the authentic instrument in question should not produce any evidentiary effects in a Member State other than the Member State of origin with regard to the matter being challenged as long as the challenge is pending. An authentic instrument which has been declared invalid as a result of a challenge should cease to produce any evidentiary effects.

(74) Should an authority, in application of this Regulation, be presented with two incompatible authentic instruments which do not establish parenthood with binding legal effect but which have evidentiary effects in their respective Member State of origin, it should assess the question of which authentic instrument, if any, should be given priority taking into account the circumstances of the particular case. Where it is not clear from those circumstances which of such authentic instruments, if any, should be given priority, the question should be determined by the courts having jurisdiction under this Regulation or, where the question is raised as an incidental question in the course of proceedings, by the court seised of those proceedings.

(75) Considerations of public interest should allow Member State courts or other competent authorities to refuse, in exceptional circumstances, to recognise or, as the case may be, accept a court decision or authentic instrument on the parenthood established in another Member State where, in a given case, such recognition or acceptance would be manifestly incompatible with the public policy (ordre public) of the Member State concerned. However, the courts or other competent authorities should not be able to refuse to recognise or, as the case may be, accept a court decision or an authentic instrument issued in another Member State when doing so would be contrary to the Charter and, in particular, Article 21 thereof, which prohibits discrimination.

(76) In order for the recognition of the parenthood established in a Member State to be settled speedily, smoothly and efficiently, children or their parent(s) should be able to demonstrate easily the children’s status in another Member State. To enable them to do so, this Regulation should provide for the creation of a uniform certificate, the European Certificate of Parenthood, to be issued for use in another Member State. In order to respect the principle of subsidiarity, the European Certificate of Parenthood should not take the place of internal documents which may exist for similar purposes in the Member States.

(77) The authority that issues the European Certificate of Parenthood should have regard to the formalities required for the registration of parenthood in the Member State in which the register is kept. For that purpose, this Regulation should provide for an exchange of information on such formalities between the Member States.

(78) The use of the European Certificate of Parenthood should not be mandatory. This means that persons entitled to apply for a European Certificate of Parenthood, namely the child or a legal representative, should be under no obligation to do so and should be free to present the other instruments available under this Regulation (a court decision or an authentic instrument) when requesting recognition in another Member State. However, no authority or person presented with a European Certificate of Parenthood issued in another Member State should be entitled to request that a court decision or an authentic instrument be presented instead of the European Certificate of Parenthood.

(79) The European Certificate of Parenthood should be issued in the Member State in which parenthood was established and whose courts have jurisdiction under this Regulation. It should be for each Member State to determine in its internal legislation which authorities are to have competence to issue the European Certificate of Parenthood, whether they be courts or other authorities with competence in matters of parenthood, such as, for example, administrative authorities, notaries or registrars. The Member States should communicate to the Commission the relevant information concerning the authorities empowered under national law to issue the European Certificate of Parenthood in order for that information to be made publicly available.

(80) Whilst the contents and the effects of national authentic instrument providing evidence of parenthood (such as a birth certificate or a parenthood certificate) vary depending on the Member State of origin, the European Certificate of Parenthood should have the same contents and produce the same effects in all Member States. It should have evidentiary effects and should be presumed to demonstrate accurately elements which have been established under the law applicable to the establishment of parenthood designated by this Regulation. The evidentiary effects of the European Certificate of Parenthood should not extend to elements which are not governed by this Regulation, such as the civil status of the parents of the child whose parenthood is concerned. Whilst the language of a national authentic instrument providing evidence of parenthood is issued in the language of the Member State of origin, the European Certificate of Parenthood form annexed to this Regulation is available in all Union languages.

(81) The court or other competent authority should issue the European Certificate of Parenthood upon request. The original of the European Certificate of Parenthood should remain with the issuing authority, which should issue one or more certified copies of the European Certificate of Parenthood to the applicant or a legal representative. Given the stability of parenthood status in the vast majority of cases, the validity of the copies of the European Certificate of Parenthood should not be limited in time, without prejudice to the possibility to rectify, modify, suspend or withdraw the European Certificate of Parenthood as necessary. This Regulation should provide for redress against decisions of the issuing authority, including decisions to refuse to issue a European Certificate of Parenthood. Where the European Certificate of Parenthood is rectified, modified, suspended or withdrawn, the issuing authority should inform the persons to whom certified copies have been issued so as to avoid a wrongful use of such copies.

(82) This Regulation should provide for a modern means of access to justice making it possible for natural persons or their legal representatives and Member State courts or other competent authorities to communicate electronically through the European electronic access point established on the European e-Justice Portal by Regulation (EU) …/…[the Digitalisation Regulation]. Consistency with [the Digitalisation Regulation] should be ensured. It is therefore appropriate for this Regulation to refer to [the Digitalisation Regulation] as necessary, including as regards the definitions of ‘decentralised IT system’ and ‘European electronic access point’. The European electronic access point is part of a decentralised IT system. The decentralised IT system should be comprised of the back-end systems of Member States and interoperable access points, including the European electronic access point, through which they should be interconnected. The access points of the decentralised IT system should be based on the e-CODEX system established by Regulation (EU) 2022/850. The European Interoperability Framework provides the reference concept for interoperable policy implementation 58 .

(83) The European electronic access point should allow natural persons or their legal representatives to launch a request for a European Certificate of Parenthood and to receive and send that Certificate electronically. It should also allow them to communicate electronically with Member State courts or other competent authorities in proceedings for a decision that there are no grounds for the refusal of recognition of a court decision or an authentic instrument on parenthood, or proceedings for the refusal of recognition of a court decision or an authentic instrument on parenthood. Member State courts or other competent authorities should communicate with citizens through the European electronic access point only where the citizen has given prior express consent to the use of this means of communication.

(84) This Regulation should not affect the application of Conventions No 16, No 33 and No 34 of the International Commission on Civil Status (‘ICCS’) in respect of the plurilingual extracts and certificates of birth as between Member States or between a Member State and a third State.

(85) In order to ensure uniform conditions for the implementation of this Regulation as regards the establishment of the decentralised IT system for the purposes of this Regulation, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council 59 .

(86) In order to ensure that the attestations provided for in Chapters IV and V and the European Certificate of Parenthood provided for in Chapter VI of this Regulation are kept up to date, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission to amend Annexes I to V to this Regulation. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making 60 . In particular, to ensure equal participation in the preparation of delegated acts, the Council receives all documents at the same time as Member States' experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.

(87) Respect for international commitments entered into by the Member States means that this Regulation should not affect the application of international conventions to which one or more Member States are party at the time when this Regulation is adopted. To make the rules more accessible, the Commission should publish the list of the relevant conventions in the European e-Justice Portal on the basis of the information supplied by the Member States. Consistency with the general objectives of this Regulation requires, however, that this Regulation take precedence, as between Member States, over conventions concluded exclusively between two or more Member States in so far as such conventions concern matters governed by this Regulation.

(88) For agreements with one or more third States concluded by a Member State before the date of its accession to the Union, Article 351 TFEU applies.

(89) The Commission should make publicly available through the European e-Justice Portal and update the information communicated by the Member States.

(90) This Regulation respects the fundamental rights and observes the principles recognised in the Charter. In particular, this Regulation seeks to promote the application of Article 7 on everyone’s right to respect for their private and family life, Article 21 prohibiting discrimination, and Article 24 on the protection of the rights of the child.

(91) This Regulation should be applied in compliance with Union data protection law and respecting the protection of privacy as enshrined in the Charter. Any processing of personal data under this Regulation should be undertaken in accordance with Regulation (EU) 2016/679 of the European Parliament and of the Council 61 (the General Data Protection Regulation, ‘GDPR’), Regulation (EU) 2018/1725 of the European Parliament and of the Council 62 (the EU Data Protection Regulation, ‘EUDPR’) and Directive 2002/58/EC of the European Parliament and of the Council 63 .

(92) In applying this Regulation, Member State courts or other competent authorities may need to process personal data for the purposes of the establishment of parenthood in cross-border situations and of the recognition of parenthood between Member States. This entails the processing of personal data for the establishment of parenthood in a cross-border situation, the issuance of the attestations accompanying court decisions or authentic instruments, the issuance of a European Certificate of Parenthood, the presentation of documents for the recognition of parenthood, the obtaining of a decision that there are no grounds for refusal of recognition of parenthood, or the application for refusal of recognition of parenthood. Personal data processed by Member State courts or other competent authorities pursuant to this Regulation are contained in the documents handled by Member State courts or other competent authorities for the above purposes. Personal data processed will in particular concern children, their parents and their legal representatives. The personal data handled by Member State courts or other competent authorities should be processed in accordance with applicable data protection legislation, in particular the GDPR. In addition, in applying this Regulation, the Commission may need to process personal data in connection with the electronic communication between natural persons or their legal representatives and Member State courts or other competent authorities to request, receive and send a European Certificate of Parenthood, or in proceedings concerning the recognition or the refusal of recognition of parenthood, through the European electronic access point in the context of the decentralised IT system. The personal data handled by the Commission should be processed in accordance with the EUDPR.

(93) This Regulation should provide the legal basis for the processing of personal data by Member State courts or other competent authorities in accordance with Article 6(1) and (3) of the GDPR and by the Commission in accordance with Article 5(1) and (2) of the EUDPR. The processing of special categories of personal data under this Regulation meets the requirements of Article 9(2) of the GDPR as data will be processed by courts acting in their judicial capacity in conformity with point (f), or the processing will be necessary for reasons of substantial public interest on the basis of this Regulation, which aims to facilitate the recognition of court decisions and authentic instruments on parenthood in another Member State to ensure the protection of the fundamental rights and other rights of children in cross-border situations within the Union, in conformity with point (g). Similarly, the processing of special categories of personal data under this Regulation meets the requirements of Article 10(2) of the EUDPR as the processing of data will be necessary for the establishment, exercise or defence of legal claims in conformity with point (f), or the processing will be necessary for reasons of substantial public interest on the basis of this Regulation, in conformity with point (g).

(94) Personal data should be processed under this Regulation only for the specific purposes set out therein, without prejudice to further processing for archiving purposes in the public interest in accordance with Articles 5(1)(b) and 89 of the GDPR given that, once parenthood has been established in a cross-border situation or has been recognised, Member State courts or other competent authorities may need to process personal data for archiving purposes in the public interest. As this Regulation concerns the cross-border aspects of parenthood, which is a matter of civil status that may continue to be relevant for an indeterminate period of time, this Regulation should not limit the storage period of information and personal data processed.

(95) For the purposes of the establishment of parenthood in a cross-border situation, the issuance of the attestations accompanying court decisions or authentic instruments, the issuance of a European Certificate of Parenthood, the presentation of documents for the recognition of parenthood, the obtaining of a decision that there are no grounds for refusal of recognition of parenthood, or the application for refusal of recognition of parenthood, Member State courts or other competent authorities empowered by the Member States to apply this Regulation should be regarded as controllers within the meaning of Article 4, point 7 of the GDPR. For the purposes of the technical management, development, maintenance, security and support of the European electronic access point, and of the communication between natural persons or their legal representatives and Member State courts or other competent authorities through the European electronic access point and the decentralised IT system, the Commission should be regarded as controller within the meaning of Article 3, point 8 of the EUDPR. Controllers should ensure the security, integrity, authenticity and confidentiality of the data processed for the above purposes.

(96) The European Data Protection Supervisor was consulted in accordance with Article 42 of Regulation (EU) 2018/1725 of the European Parliament and of the Council 64 and delivered an opinion on [date] 65 .

(97) [In accordance with Articles 1, 2 and 4a(1) of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the TEU and to the TFEU, and without prejudice to Article 4 of that Protocol, Ireland is not taking part in the adoption of this Regulation and is not bound by it or subject to its application.] OR

(97a)[In accordance with Article 3 and Article 4a(1) of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the TEU and to the TFEU, Ireland has notified[, by letter of …,] its wish to take part in the adoption and application of this Regulation.]

(98) In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application.

(99) Since the objectives of this Regulation cannot be sufficiently achieved by the Member States because of the differences between national rules governing jurisdiction, applicable law and the recognition of court decisions and authentic instruments, but can rather, by reason of the direct applicability and binding nature of this Regulation, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. 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 those objectives.