Decision 2003/93 - 2003/93/EC: Council Decision of 19 December 2002 authorising the Member States to sign the 1996 Hague Convention on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility andmeasures for the protection of children

official title

 

Legal instrument	Decision
Number legal act	Decision 2003/93
Original proposal	COM(2001)680
CELEX number23	32003D0093

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2003/93/EC: Council Decision of 19 December 2002 authorising the Member States, in the interest of the Community, to sign the 1996 Hague Convention on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility andmeasures for the protection of children

Official Journal L 048 , 21/02/2003 P. 0001 - 0002

Council decision

of 19 December 2002

authorising the Member States, in the interest of the Community, to sign the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children

(2003/93/CE)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 61(c) and Article 300 thereof,

Having regard to the proposal from the Commission,

Whereas:

• (1) 

  The Community is working towards the establishment of a common judicial area based on the principle of mutual recognition of judicial decisions.

• (2) 

  The Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children concluded on 19 October 1996 in the framework of The Hague Conference on Private International Law, (hereinafter referred to as the Convention) makes a valuable contribution to the protection of children at international level, and it is therefore desirable that its provisions be applied as soon as possible.

• (3) 

  Certain articles of the Convention affect Community secondary legislation on jurisdiction and the recognition and enforcement of judgments, in particular Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses(1).

• (4) 

  The Community has exclusive competence for the relevant provisions of the Convention insofar as those articles affect Community rules adopted in this area. The Member States should retain their competence in the areas covered by the Convention which do not affect Community law.

• (5) 

  Pursuant to the Convention, only sovereign States may be party to it. For that reason, the Community may not at present sign, ratify or accede to it.

• (6) 

  The Council should therefore authorise the Member States, by way of exception, to sign the Convention in the interest of the Community, under the conditions set out in this Decision.

• (7) 

  Taking account of Articles 23, 26 and 52 of the Convention, a Decision taken by a Member State on matters governed by the Convention may be recognised and enforced in another Member State in accordance with the relevant internal rules of Community law.

• (8) 

  The United Kingdom and Ireland are taking part in the adoption and application of this Decision.

• (9) 

  Denmark, in accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and the Treaty establishing the European Community, is not taking part in the adoption of this Decision and is therefore not bound by it nor subject to its application,

HAS ADOPTED THIS DECISION:

Article 1

• 1. 

  The Council hereby authorises the Member States to sign the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children, concluded on 19 October 1996, in the interest of the Community, subject to the conditions set out in the following articles.

• 2. 

  The text of the Convention is attached to this Decision(2).

• 3. 

  In this Decision, the term "Member State" shall mean all Member States with the exception of Denmark.

Article 2

When...

This text has been adopted from EUR-Lex.

This page is also available in a full version containing the summary of legislation, the legal context, de Europese rechtsgrond, other dossiers related to the dossier at hand and finally the related cases of the European Court of Justice.

• 1. 

  Programme of measures for implementation of the principle of mutual recognition of decisions in civil and commercial matters, OJ 2001 C12/1.
  
   
• 2. 

  Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses, OJ 2000 L160/19. The Regulation sets out rules on jurisdiction, automatic recognition and simplified enforcement of judgments in matrimonial matters and matters of parental responsibility for the children of both spouses rendered on the occasion of the matrimonial proceedings.
  
   
• 3. 

  Proposal for a Council Regulation on jurisdiction and the recognition and enforcement of judgments in matters of parental responsibility, COM (2001) 505 final.
  
   
• 4. 

  Initiative of the French Republic with a view to adopting a Council Regulation on the mutual enforcement of judgments on rights of access to children, OJ 2000 C234/7.
  
   
• 5. 

  Programme of measures for implementation of the principle of mutual recognition of decisions in civil and commercial matters, OJ 2001 C12/1.
  
   
• 6. 

  Paragraph 1 is not relevant for present purposes, as it refers to agreements existing (or legislation adopted) before the conclusion of the Convention (that is, before 1996).
  
   
• 7. 

  Similarly, the Community legislator recognizes in Article 37 of Council Regulation (EC) 1347/2000 that the Regulation takes precedence over the Convention 'provided that the child concerned is habitually resident in a Member State'.
  
   
• 8. 

  For example, a Member State Party to the Convention could take a decision on parental responsibility over a child that is habitually resident in another Contracting Party that is not a Member State, on the basis of Article 10 of the Convention (jurisdiction of the divorce court) or Articles 8 and 9 (transfer of a case to a court better placed to hear it). Given the habitual residence of the child in another Contracting State, this decision taken in one Member State would then be recognised and enforced in another Member State not under the Community rules but under the rules of the Convention. This would mean that the decision would be subject to review as to its jurisdictional basis under the rules of the Convention, whereas the application of the regime of Regulation (EC) No 1347/2000 would have precluded such review. And the discrepancies between the two regimes would be further exacerbated in the future when exequatur will have been abolished between Member States, while some decisions would still remain subject to the regime set out in the Convention.
  
   
• 9. 

  For instance, the rules on recognition and enforcement of Council Regulation (EC) 1347/2000 also apply where jurisdiction is established under national law pursuant to Article 8. Similarly, the rules on recognition and enforcement of Council Regulation (EC) 44/2001 apply where the defendant is not domiciled in a Member State and jurisdiction is established under national law pursuant to Article 4. Similarly, a primary consideration in on-ongoing negotiations on international Conventions is to safeguard as between Member States the application of Community rules on recognition and enforcement by means of a disconnection clause.
  
   
• 10. 

  Article 23 of the Convention provides for automatic recognition and sets out a number of grounds on which recognition may be refused. Article 26 requires Contracting States to apply a simple and rapid procedure to the declaration of enforceability or registration, which may only be refused on the same grounds.
  
   
• 11. 

  OJ C , , p. .
  
   
• 12. 

  Programme of measures for implementation of the principle of mutual recognition of decisions in civil and commercial matters, OJ 2001 C12/1.
  
   
• 13. 

  Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses, OJ 2000 L160/19. The Regulation sets out rules on jurisdiction, automatic recognition and simplified enforcement of judgments in matrimonial matters and matters of parental responsibility for the children of both spouses rendered on the occasion of the matrimonial proceedings.
  
   
• 14. 

  Proposal for a Council Regulation on jurisdiction and the recognition and enforcement of judgments in matters of parental responsibility, COM (2001) 505 final.
  
   
• 15. 

  Initiative of the French Republic with a view to adopting a Council Regulation on the mutual enforcement of judgments on rights of access to children, OJ 2000 C234/7.
  
   
• 16. 

  Programme of measures for implementation of the principle of mutual recognition of decisions in civil and commercial matters, OJ 2001 C12/1.
  
   
• 17. 

  Paragraph 1 is not relevant for present purposes, as it refers to agreements existing (or legislation adopted) before the conclusion of the Convention (that is, before 1996).
  
   
• 18. 

  Similarly, the Community legislator recognizes in Article 37 of Council Regulation (EC) 1347/2000 that the Regulation takes precedence over the Convention 'provided that the child concerned is habitually resident in a Member State'.
  
   
• 19. 

  For example, a Member State Party to the Convention could take a decision on parental responsibility over a child that is habitually resident in another Contracting Party that is not a Member State, on the basis of Article 10 of the Convention (jurisdiction of the divorce court) or Articles 8 and 9 (transfer of a case to a court better placed to hear it). Given the habitual residence of the child in another Contracting State, this decision taken in one Member State would then be recognised and enforced in another Member State not under the Community rules but under the rules of the Convention. This would mean that the decision would be subject to review as to its jurisdictional basis under the rules of the Convention, whereas the application of the regime of Regulation (EC) No 1347/2000 would have precluded such review. And the discrepancies between the two regimes would be further exacerbated in the future when exequatur will have been abolished between Member States, while some decisions would still remain subject to the regime set out in the Convention.
  
   
• 20. 

  For instance, the rules on recognition and enforcement of Council Regulation (EC) 1347/2000 also apply where jurisdiction is established under national law pursuant to Article 8. Similarly, the rules on recognition and enforcement of Council Regulation (EC) 44/2001 apply where the defendant is not domiciled in a Member State and jurisdiction is established under national law pursuant to Article 4. Similarly, a primary consideration in on-ongoing negotiations on international Conventions is to safeguard as between Member States the application of Community rules on recognition and enforcement by means of a disconnection clause.
  
   
• 21. 

  Article 23 of the Convention provides for automatic recognition and sets out a number of grounds on which recognition may be refused. Article 26 requires Contracting States to apply a simple and rapid procedure to the declaration of enforceability or registration, which may only be refused on the same grounds.
  
   
• 22. 

  OJ C , , p. .
  
   
• 23. 

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• 24. 

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