Explanatory Memorandum to COM(2011)911 - Declaration of acceptance by the Member States of the accession of Russian Federation to the 1980 Hague Convention on the Civil Aspects of International Child Abduction - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2011)911 - Declaration of acceptance by the Member States of the accession of Russian Federation to the 1980 Hague Convention on the ... |
|---|---|
| source | COM(2011)911  |
| date | 21-12-2011 |
The aim of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereafter: 'the 1980 Convention'), to date ratified by 86 countries, including all EU Member States, is to restore the status quo by mean of the prompt return of wrongfully removed or retained children through a system of cooperation among central authorities appointed by its Contracting Parties.
As the prevention of child abduction is an essential part of the EU policy to promote the rights of the child, the European Union is active at international level to improve the application of the 1980 Convention and encourages third States to accede it. In particular, the Commission has always stressed the need for the Russian Federation to accede to the 1980 Hague Convention in order to rely on a common legal framework EU-Russia to deal with cases of child abduction.
The issue was discussed for several years at different levels, namely in the context of the EU-Russia Permanent Partnership Council on Justice, Freedom and Security, and finally Russia decided to deposit the accession instrument to the 1980 Convention on 28 July 2011. The Convention entered into force in Russia on 1 October 2011.
Article 38 i of the 1980 Convention stipulates that the Convention applies between the acceding country and such Contracting States as will have declared their acceptance of the accession. Therefore, the European Union has to decide whether to accept the accession of Russia, and when affirmative, the Member States should make the declaration of acceptance concerning Russia's accession in the interest of the European Union.
As the matter of international child abduction fall into the exclusive external competence of the European Union, the decision whether the Member States should accept Russia's accession to the 1980 Convention, has to be taken by means of a Council Decision.
Contents
RUSSIA'S ACCESSION TO THE 1980 CONVENTION WAS LONG AWAITED BY THE EUROPEAN UNION AND ITS MEMBER STATES, WHICH HAVE, ON VARIOUS OCCASIONS, INVITED THE COMMISSION TO STRESS FIRMLY, IN THE CONTEXT OF THE MEETINGS WITH THE RUSSIAN COUNTERPARTS, THE NEED TO TAKE CONCRETE STEPS TOWARDS THE ACCESSION TO THIS CONVENTION .
The expert meeting organised in November 2009 by the European Commission to discuss the cooperation between Russia and the EU showed general consensus from Member States in supporting cooperation with Russia by the way of multilateral agreements, especially in the field of family law. In this context the importance of the legal framework represented by the Hague Conventions was stressed.
The lack of a common legal framework with Russia aimed at solving sensitive cases of child abductions was demonstrated also by the fact that the first Commission's decision i authorising a Member State to open formal negotiations with a third State on the basis of procedure established by Council Regulation (EC) No 664/2009 i concerned, indeed, an envisaged bilateral agreement with Russia on the matter of child abduction.
The joint cooperation project - “Application of the Hague Conventions on the protection of children’s rights in the Russian Federation“- launched on 9 February 2011 by the European Union and the Russian Federation was also welcomed by the Members States. It aims at facilitating Russia's accession to the Hague Conventions regarding family law, including the 1980 Convention.
In accordance with the jurisprudence i of the Court of Justice, the matter of international child abduction fall into the exclusive external competence of the European Union, because of the adoption of internal Union legislation by means of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility ("the Brussels IIa Regulation") i, which applies between Member States from 1 March 2005. The Regulation introduces even stricter rules than the 1980 Hague Convention on parental child abduction, in particular in Article 11 of the Regulation. It refers directly to the Hague Convention and upholds its principles in European Union law.
The 1980 Convention was adopted more than 20 years before the Brussels IIa Regulation and thus, it does not contain any provisions allowing the accession of International Organisations, like the European Union (the so-called REIO clause). In such situation, the Member States have to ratify or accede to the Convention in the interest of the European Union.
Therefore, the Member States should declare, in the interest of the European Union, the acceptance regarding Russia's accession to the 1980 Hague Convention. For the sake of coherence and uniformity of EU law, this declaration of acceptance should be made simultaneously by the Member States within a time frame established by the Council Decision. The Commission proposes that the declaration should be deposited by the Member States no later than 2 months after the adoption of the Council Decision.
It is crucial for the practical application of the 1980 Convention that a Contracting Party designates a Central Authority required by its Article 6 to discharge the duties which are imposed by the Convention upon such authorities. All Member States have designated Central Authorities under the 1980 Convention. To date, the Russian Federation has not yet designated the Central Authority that is needed to assist the European citizens in cases of wrongful removal of children to Russia. Therefore, it is desirable that the declaration of acceptance of the accession of the Russian Federation to the 1980 Convention takes effect upon the designation of the Central Authority by the Russian Federation.
Given the fact that the decision regards an international agreement, the applicable legal basis is Article 218 of the Treaty on the Functioning of the European Union together with Article 81 i. The Council shall act unanimously after consulting the European Parliament.
THE PROPOSAL HAS NO IMPLICATION FOR THE EUROPEAN UNION BUDGET.