Steve Peers

Parental child abduction is a serious issue, often arising from custody disputes during family law proceedings. While abduction by a stranger presents a clear danger, abduction by a non-custodial parent violates court decisions and can hinder the custodial parent’s rights, especially when the child is taken to another country.

The Hague Convention, established in 1980, seeks to address this problem. This international treaty, with 93 signatory countries including all EU members, provides a framework for resolving international parental child abduction cases. Its significance is evident in its frequent application, with over 2,300 instances in 2008 alone.

The European Court of Justice (CJEU) recently addressed a dispute concerning the Convention and the EU’s authority in international agreements (Opinion 1/2013). The issue stemmed from the Convention’s unique accession process, which requires existing signatories to individually agree to the inclusion of new states.

While the EU itself cannot join the Convention as it is open only to states, it does possess legislation addressing cross-border child abduction (Regulation 2201/2003). This overlap raised questions about whether the EU holds external competence, meaning member states act as “trustees” and cannot unilaterally decide on the Convention’s extension to new countries.

The European Commission, believing in the EU’s competence, proposed decisions allowing member states to extend the Convention to new states like Russia, Albania, and Morocco. However, this proposal was met with resistance from most member states. Consequently, the Commission invoked Article 218 TFEU, seeking the CJEU’s judgment on the agreement’s compatibility with EU law.

Judgment

The CJEU, addressing admissibility challenges, affirmed its jurisdiction. It recognized the decision on a new state’s accession as an “agreement,” deemed the EU’s inability to join as irrelevant, and asserted its jurisdiction even in “trusteeship” scenarios. The court also dismissed arguments based on member states’ opposition and prior actions, asserting its authority under Article 218 TFEU.

Despite opposition from 19 member states, the CJEU ultimately sided with the Commission, recognizing the EU’s external competence in this matter. The court grounded its decision in the EU’s authority to enact legislation concerning cross-border family law (Article 81(3) TFEU).

The CJEU then addressed whether this competence is shared with member states or exclusive to the EU. It affirmed the EU’s exclusive competence in cases where international agreements impact existing EU regulations, as established in prior rulings and Article 3(2) TFEU.

The court found that the Convention’s provisions on child return and visitation rights overlapped with existing EU regulations. The lack of a unified approach to extending the Convention to new states could complicate the application of EU law. Therefore, the EU holds exclusive external competence regarding the Convention’s expansion.

Comments

The CJEU’s decision has significant implications for the handling of child abduction cases, the scope of the EU’s authority in international agreements, and the resolution of disputes related to this authority.

First, the ruling clarifies the EU’s role in extending the Convention to new states, enabling a more unified approach. However, it necessitates prompt action from the Council to adopt the Commission’s proposals and address the accession of states that have joined the Convention since. Swift action is crucial to prevent legal challenges based on the legality of member states’ prior extensions of the Convention.

The judgment also establishes that any future amendments to the Convention fall under the EU’s exclusive competence. This is relevant considering previous discussions about amending the Convention. Consequently, any modifications or expansions require collective action from member states.

Regarding the EU’s external competence, the judgment provides clarity on its existence and nature. This case marks the first time since the Lisbon Treaty that the CJEU has ruled on the existence of such competence. The court determined that external competence arises when the EU has established internal legislation on a subject and an international agreement is necessary to achieve internal goals. This ruling aligns with Article 216 TFEU, confirming pre-existing case law.

The court also clarified that the EU’s external competence in this case is exclusive, reaffirming previous rulings like Opinion 1/03 and the broadcasting rights judgment. The EU’s exclusive competence in this context is evident due to the substantial overlap between the Convention and EU regulations.

Furthermore, the CJEU’s judgment broadly interprets its jurisdiction under Article 218 TFEU concerning procedural matters. The Commission can trigger Article 218 by simply submitting a proposal for an external relations decision to the Council. Even if the Council rejects the proposal, the Commission can still invoke Article 218 if member states proceed independently with treaty ratification or similar actions. This jurisdiction remains active unless the Council approves the treaty on behalf of the EU, making it binding.

However, the judgment seems to differentiate between legal and political grounds for rejecting a Commission proposal. While the court found the case admissible due to the Council’s purely legal objections, it remains unclear how this applies to rejections based on political or combined legal and political grounds.

Finally, the judgment’s implications for the European Parliament, which holds veto power over most EU treaties, remain uncertain. While the Commission missed the opportunity to clarify this in the Anti-Counterfeiting Trade Agreement case, it seems prudent for the Commission to acknowledge and respect the political decisions of the Council or Parliament and withdraw applications for court rulings in such scenarios.

Barnard & Peers: chapter 24