Legal provisions of 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


CHAPTER I

SUBJECT MATTER, SCOPE AND DEFINITIONS

Contents

Article 1 - Subject matter

This Regulation lays down common rules on jurisdiction and applicable law for the establishment of parenthood in a Member State in cross-border situations; common rules for the recognition or, as the case may be, acceptance in a Member State of court decisions on parenthood given, and authentic instruments on parenthood drawn up or registered, in another Member State; and creates a European Certificate of Parenthood.

Article 2

Relationship with other provisions of Union law

1. This Regulation shall 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. In particular, this Regulation shall not affect the limitations relating to the use of public policy as a justification to refuse the recognition of parenthood where, under Union law on free movement, Member States are obliged to recognise a document establishing a parent-child relationship issued by the authorities of another Member State for the purposes of rights derived from Union law.

2. This Regulation shall not affect Regulation (EU) 2016/1191, in particular as regards public documents, as defined in that Regulation, on birth, parenthood and adoption.

Article 3 - Scope

1. This Regulation shall apply to civil matters of parenthood in cross-border situations.

2. This Regulation shall not apply to:

(a)the existence, validity or recognition of a marriage or of a relationship deemed by the law applicable to such relationship to have comparable effects, such as a registered partnership;

(b)parental responsibility matters;

(c)the legal capacity of natural persons;

(d)emancipation;

(e)intercountry adoption;

(f)maintenance obligations;

(g)trusts or succession;

(h)nationality;

(i)the legal requirements for the recording of parenthood in a register of a Member State, and the effects of recording or failing to record parenthood in a register of a Member State.

3. This Regulation shall not apply to the recognition of court decisions establishing parenthood given in a third State, or to the recognition or, as the case may be, acceptance of authentic instruments establishing or proving parenthood drawn up or registered in a third State.

Article 4 - Definitions

For the purposes of this Regulation, the following definitions apply:

1. ‘parenthood’ means the parent-child relationship established in law. It includes the legal status of being the child of a particular parent or parents;

2. ‘child’ means a person of any age whose parenthood is to be established, recognised or proved;

3. ‘establishment of parenthood’ means the determination in law of the relationship between a child and each parent, including the establishment of parenthood following a claim contesting a parenthood established previously;

4. court means an authority in a Member State that exercises judicial functions in matters of parenthood;

5. court decision means a decision of a court of a Member State, including a decree, order or judgment, concerning matters of parenthood;

6. ‘authentic instrument' means a document that has been formally drawn up or registered as an authentic instrument in any Member State in matters of parenthood and the authenticity of which:

(a)relates to the signature and the content of the instrument; and

(b)has been established by a public authority or other authority empowered for that purpose by the Member State of origin;

7. Member State of origin means the Member State in which the court decision on parenthood has been given, the authentic instrument on parenthood has been formally drawn up or registered, or the European Certificate of Parenthood has been issued;

8. ‘decentralised IT system’ means an IT system as defined in point (4) of Article 2 of [the Digitalisation Regulation];

9. ‘European electronic access point’ means an interoperable access point as defined in point (5) of Article 2 of [the Digitalisation Regulation].  

Article 5 - Competence in matters of parenthood within the Member States

This Regulation shall not affect the competence of the authorities of the Member States to deal with parenthood matters.

CHAPTER II

JURISDICTION 

Article 6 - General jurisdiction

In matters relating to parenthood, jurisdiction shall lie with the courts of the Member State:

(a)of the habitual residence of the child at the time the court is seised, or

(b)of the nationality of the child at the time the court is seised, or

(c)of the habitual residence of the respondent at the time the court is seised, or

(d)of the habitual residence of either parent at the time the court is seised, or

(e)of the nationality of either parent at the time the court is seised, or

(f)of birth of the child.

Article 7 - Jurisdiction based on the presence of the child

Where jurisdiction cannot be determined on the basis of Article 6, the courts of the Member State where the child is present shall have jurisdiction.

Article 8 - Residual jurisdiction

Where no court of a Member State has jurisdiction pursuant to Articles 6 or 7, jurisdiction shall be determined, in each Member State, by the laws of that Member State.

Article 9 - Forum necessitatis

Where no court of a Member State has jurisdiction pursuant to other provisions of this Regulation, the courts of a Member State may, on an exceptional basis, rule on parenthood matters if proceedings cannot reasonably be brought or conducted or would be impossible in a third State with which the case is closely connected.

The case must have a sufficient connection with the Member State of the court seised.

Article 10 - Incidental questions

1. If the outcome of proceedings in a matter not falling within the scope of this Regulation before a court of a Member State depends on the determination of an incidental question relating to parenthood, a court in that Member State may determine that question for the purposes of those proceedings even if that Member State does not have jurisdiction under this Regulation.

2. The determination of an incidental question pursuant to paragraph 1 shall produce effects only in the proceedings for which that determination was made.

Article 11 - Seising of a court

A court shall be deemed to be seised:

(a)at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he or she was required to take to have service effected on the respondent;

(b)if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the applicant has not subsequently failed to take the steps he or she was required to take to have the document lodged with the court; or

(c)if the proceedings are instituted of the court's own motion, at the time when the decision to institute the proceedings is taken by the court, or, where such a decision is not required, at the time when the case is registered by the court.

Article 12 - Examination as to jurisdiction

Where a court of a Member State is seised of a case over which it has no jurisdiction as to the substance of the matter under this Regulation and over which a court of another Member State has jurisdiction as to the substance of the matter under this Regulation, it shall declare of its own motion that it has no jurisdiction.

Article 13 - Examination as to admissibility

1. Where a respondent habitually resident in a State other than the Member State where the proceedings were instituted does not enter an appearance, the court with jurisdiction shall stay the proceedings so long as it is not shown that the respondent has been able to receive the document instituting the proceedings or an equivalent document in sufficient time to enable the respondent to arrange for a defence, or that all necessary steps have been taken to this end.

2. Article 22 of Regulation (EU) 2020/1784 shall apply instead of paragraph 1 of this Article if the document instituting the proceedings or an equivalent document had to be transmitted from one Member State to another pursuant to that Regulation.

3. Where Regulation (EU) 2020/1784 is not applicable, Article 15 of the Hague Convention of 15 November 1965 on the service abroad of judicial and extrajudicial documents in civil or commercial matters shall apply if the document instituting the proceedings or an equivalent document had to be transmitted abroad pursuant to that Convention.

Article 14 - Lis pendens 

1. Where proceedings involving the same cause of action and between the same parties are brought before courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.

2. In the cases referred to in paragraph 1, upon request by a court seised of the dispute, any other court seised shall without delay inform the requesting court of the date when it was seised.

3. Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of the court first seised.

Article 15 - Right of children to express their views

1. When exercising their jurisdiction under this Regulation, the courts of the Member States shall, in accordance with national law and procedure, provide children below the age of 18 years whose parenthood is to be established and who are capable of forming their own views, with a genuine and effective opportunity to express their views, either directly or through a representative or an appropriate body.

2. Where the court, in accordance with national law and procedure, gives children below the age of 18 years an opportunity to express their views in accordance with this Article, the court shall give due weight to the views of the children in accordance with their age and maturity.

CHAPTER III

APPLICABLE LAW

Article 16 - Universal application

Any law designated as applicable by this Regulation shall be applied whether or not it is the law of a Member State.

Article 17 - Applicable law

1. The law applicable to the establishment of parenthood shall be the law of the State of the habitual residence of the person giving birth at the time of birth or, where the habitual residence of the person giving birth at the time of birth cannot be determined, the law of the State of birth of the child.

2. Notwithstanding paragraph 1, where the applicable law pursuant to paragraph 1 results in the establishment of parenthood as regards only one parent, the law of the State of nationality of that parent or of the second parent, or the law of the State of birth of the child, may apply to the establishment of parenthood as regards the second parent.

Article 18 - Scope of the applicable law

The law designated by this Regulation as the law applicable to the establishment of parenthood shall govern, in particular:

(a)the procedures to establish or contest parenthood;

(b)the binding legal effect and/or the evidentiary effects of authentic instruments;

(c)the standing of persons in proceedings involving the establishment or contestation of parenthood;

(d)any time limits to establish or contest parenthood.

Article 19 - Change of applicable law

Where parenthood has been established in a Member State pursuant to this Regulation, a subsequent change of the applicable law shall not affect the parenthood already established.

Article 20 - Formal validity

1. A unilateral act intended to have legal effect on the establishment of parenthood shall be valid as to form where it meets the requirements of one of the following laws:

(a)the law applicable to the establishment of parenthood pursuant to Article 17;

(b)the law of the State in which the person doing the act has the habitual residence; or

(c)the law of the State in which the act was done.

2. An act intended to have legal effect on the establishment of parenthood may be proved by any mode of proof recognised by the law of the forum or by any of the laws referred to in paragraph 1 under which that act is formally valid, provided that such mode of proof can be administered by the forum.

Article 21 - Exclusion of renvoi

The application of the law of any State specified by this Regulation means the application of the rules of law in force in that State other than its rules of private international law.

Article 22 - Public policy (ordre public)

1. The application of a provision of the law of any State specified by this Regulation may be refused only if such application is manifestly incompatible with the public policy (ordre public) of the forum.

2. Paragraph 1 shall be applied by the courts and other competent authorities of the Member States in observance of the fundamental rights and principles laid down in the Charter, in particular Article 21 thereof on the right to non-discrimination.

Article 23 - States with more than one legal system 

1. Where the law specified by this Regulation is that of a State which comprises several territorial units each of which has its own rules of law in respect of parenthood matters, the internal conflict-of-laws rules of that State shall determine the relevant territorial unit whose rules of law are to apply.

2. In the absence of such internal conflict-of-laws rules:

(a)any reference to the law of the State referred to in paragraph 1 shall, for the purposes of determining the law applicable pursuant to the provision referring to the habitual residence of the person giving birth at the time of birth, be construed as referring to the law of the territorial unit in which the person giving birth has the habitual residence;

(b)any reference to the law of the State referred to in paragraph 1 shall, for the purposes of determining the law applicable pursuant to the provisions referring to the State of birth of the child, be construed as referring to the law of the territorial unit where the child was born.

(c)A Member State which comprises several territorial units each of which has its own rules of law in respect of parenthood matters shall not be required to apply this Regulation to conflicts of laws arising between such units only.

CHAPTER IV

RECOGNITION

SECTION 1

General provisions on recognition

Article 24 - Recognition of a court decision

1. A court decision on parenthood given in a Member State shall be recognised in all other Member States without any special procedure being required.

2. In particular, no special procedure shall be required for updating the civil-status records of a Member State on the basis of a court decision on parenthood given in another Member State and against which no further appeal lies under the law of that Member State.

3. Where the recognition of a court decision is raised as an incidental question before a court of a Member State, that court may determine that issue.

Article 25 - Decision that there are no grounds for refusal of recognition

1. Any interested party may, in accordance with the procedures provided for in Articles 32 to 34, apply for a decision that there are no grounds for refusal of recognition referred to in Article 31.

2. The local jurisdiction of the court communicated to the Commission pursuant to Article 71 shall be determined by the law of the Member State in which proceedings in accordance with paragraph 1 are brought.

Article 26 - Documents to be produced for recognition

1. A party who wishes to invoke in a Member State a court decision given in another Member State shall produce the following:

(a)a copy of the court decision that satisfies the conditions necessary to establish its authenticity; and

(b)the appropriate attestation issued pursuant to Article 29.

2. The court or other competent authority before which a court decision given in another Member State is invoked may, where necessary, require the party invoking it to provide a translation or transliteration of the translatable content of the free text fields of the attestation referred to in point (b) of paragraph 1 of this Article.

3. The court or other competent authority before which a court decision given in another Member State is invoked may require the party to provide a translation or transliteration of the court decision in addition to a translation or transliteration of the translatable content of the free text fields of the attestation if it is unable to proceed without such a translation or transliteration.

Article 27 - Absence of documents

1. If the documents specified in Article 26(1) are not produced, the court or other competent authority before which a court decision given in another Member State is invoked may specify a time for its production, accept equivalent documents or, if it considers that it has sufficient information before it, dispense with its production.

2. If the court or other competent authority before which a court decision given in another Member State is invoked so requires, a translation or transliteration of such equivalent documents shall be produced.

Article 28 - Stay of proceedings

The court before which a court decision given in another Member State is invoked may stay its proceedings, in whole or in part, where:

(a)an ordinary appeal against that court decision has been lodged in the Member State of origin; or

(b)an application has been submitted for a decision that there are no grounds for refusal of recognition referred to in Article 25 or for a decision that the recognition is to be refused on the basis of one of those grounds.

Article 29 - Issuance of the attestation

1. The court of a Member State of origin as communicated to the Commission pursuant to Article 71 shall, upon application by a party, issue an attestation for a court decision on parenthood using the form set out in Annex I.

2. The attestation shall be completed and issued in the language of the court decision. The attestation may also be issued in another official language of the institutions of the European Union requested by the party. This does not create any obligation for the court issuing the attestation to provide a translation or transliteration of the translatable content of the free text fields.

3. The attestation shall contain a statement informing Union citizens and their family members that the attestation does not affect the rights that a child derives from Union law and that, for the exercise of such rights, proof of the parent-child relationship can be presented by any means.

4. No challenge shall lie against the issuance of the attestation.

Article 30 - Rectification of the attestation

1. The court of a Member State of origin as communicated to the Commission pursuant to Article 71 shall, upon application, and may, of its own motion, rectify the attestation where, due to a material error or omission, there is a discrepancy between the court decision to be recognised and the attestation.

2. The law of the Member State of origin shall apply to the procedure for rectification of the attestation.

Article 31 - Grounds for refusal of recognition

1. The recognition of a court decision shall be refused:

(a)if such recognition is manifestly contrary to the public policy of the Member State in which recognition is invoked, taking into account the child’s interests;

(b)where it was given in default of appearance if the persons in default were not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable those persons to arrange for their defence unless it is determined that such persons have accepted the court decision unequivocally;

(c)upon application by any person claiming that the court decision infringes his fatherhood or her motherhood over the child if it was given without such person having been given an opportunity to be heard;

(d)if and to the extent that it is irreconcilable with a later court decision relating to parenthood given in the Member State in which recognition is invoked;

(e)if and to the extent that it is irreconcilable with a later court decision relating to parenthood given in another Member State provided that the later court decision fulfils the conditions necessary for its recognition in the Member State in which recognition is invoked.

2. Point (a) of paragraph 1 shall be applied by the courts and other competent authorities of the Member States in observance of the fundamental rights and principles laid down in the Charter, in particular Article 21 thereof on the right to non-discrimination.

3. The recognition of a court decision in matters of parenthood may be refused if it was given without children having been given an opportunity to express their views, unless this is against the interest of the child. Where children were below the age of 18 years, this provision shall apply where the children were capable of forming their views in accordance with Article 15.

SECTION 2

Procedure for refusal of recognition

Article 32 - Application for refusal of recognition

1. The procedure for making an application for refusal of recognition shall, in so far as it is not covered by this Regulation, be governed by the law of the Member State in which proceedings for non-recognition are brought.

2. The recognition of a court decision in matters of parenthood shall be refused if one of the grounds for refusal of recognition referred to in Article 31 is found to exist.

3. The local jurisdiction of the court communicated to the Commission pursuant to Article 71 shall be determined by the law of the Member State in which proceedings for non-recognition are brought.

4. The applicant shall provide the court with a copy of the court decision and, where applicable and possible, the appropriate attestation issued pursuant to Article 29.

5. The court may, where necessary, require the applicant to provide a translation or transliteration of the translatable content of the free text fields of the appropriate attestation issued pursuant to Article 29.

6. If the court is unable to proceed without a translation or transliteration of the court decision, it may require the applicant to provide such a translation or transliteration.

7. The court may dispense with the production of the documents referred to in paragraph 4 if:

(a)it already possesses them; or

(b)it considers it unreasonable to require the applicant to provide them.

8. The party seeking the refusal of the recognition of a court decision given in another Member State shall not be required to have a postal address in the Member State in which proceedings for non-recognition are brought. That party shall be required to have an authorised representative in the Member State in which proceedings for non-recognition are brought only if such a representative is mandatory under the law of the Member State in which proceedings for non-recognition are brought irrespective of the nationality of the parties.

Article 33 - Challenge or appeal

1. Any party may challenge or appeal against a court decision on the application for refusal of recognition.

2. The challenge or appeal shall be lodged with the court communicated by the Member States to the Commission pursuant to Article 71 as the court with which such a challenge or appeal is to be lodged.

Article 34 - Further challenge or appeal

A court decision given on the challenge or appeal may only be contested by a challenge or appeal where the courts with which any further challenge or appeal is to be lodged have been communicated by the Member State concerned to the Commission pursuant to Article 71.

SECTION 3

Authentic instruments with binding legal effect

Article 35 - Scope

This Section shall apply to authentic instruments establishing parenthood that:

(a)have been formally drawn up or registered in a Member State assuming jurisdiction under Chapter II; and

(b)have binding legal effect in the Member State where they have been formally drawn up or registered.

Article 36 - Recognition of authentic instruments

Authentic instruments establishing parenthood with binding legal effect in the Member State of origin shall be recognised in other Member States without any special procedure being required. Sections 1 and 2 of this Chapter shall apply accordingly, unless otherwise provided for in this Section.

Article 37 - Attestation

1. The competent authority of the Member State of origin as communicated to the Commission pursuant to Article 71 shall, upon application by a party, issue an attestation for an authentic instrument establishing parenthood with binding legal effect using the form set out in Annex II.

2. The attestation may be issued only if the following conditions are met:

(a)the Member State which empowered the public authority or other authority to formally draw up or register the authentic instrument establishing parenthood had jurisdiction under Chapter II; and

(b)the authentic instrument has binding legal effect in that Member State.

3. The attestation shall be completed in the language of the authentic instrument. It may also be issued in another official language of the institutions of the European Union requested by the party. This does not create any obligation for the competent authority issuing the attestation to provide a translation or transliteration of the translatable content of the free text fields.

4. The attestation shall contain a statement informing Union citizens and their family members that the attestation does not affect the rights that a child derives from Union law and that, for the exercise of such rights, proof of the parent-child relationship can be presented by any means.

5. If the attestation is not produced, the authentic instrument shall not be recognised in another Member State.

Article 38 - Rectification and withdrawal of the attestation

1. The competent authority of the Member State of origin as communicated to the Commission pursuant to Article 71 shall, upon application, and may, of its own motion, rectify the attestation where, due to a material error or omission, there is a discrepancy between the authentic instrument and the attestation.

2. The competent authority referred to in paragraph 1 of this Article shall, upon application or of its own motion, withdraw the attestation where it was wrongly granted, having regard to the requirements laid down in Article 37.

3. The procedure, including any appeal, with regard to the rectification or withdrawal of the attestation shall be governed by the law of the Member State of origin.

Article 39 - Grounds for refusal of recognition

1. The recognition of an authentic instrument establishing parenthood with binding legal effect shall be refused:

(a)if such recognition is manifestly contrary to the public policy of the Member State in which recognition is invoked, taking into account the child’s interests;

(b)upon application by any person claiming that the authentic instrument infringes his fatherhood or her motherhood over the child, if the authentic instrument was formally drawn up or registered without that person having been involved;

(c)if and to the extent that it is irreconcilable with a later court decision relating to parenthood given, or a later authentic instrument establishing parenthood with binding legal effect drawn up or registered, in the Member State in which recognition is invoked;

(d)if and to the extent that it is irreconcilable with a later court decision relating to parenthood given, or a later authentic instrument establishing parenthood with binding legal effect drawn up or registered, in another Member State provided that the later court decision or authentic instrument fulfils the conditions necessary for its recognition in the Member State in which recognition is invoked.

2. Point (a) of paragraph 1 shall be applied by the courts and other competent authorities of the Member States in observance of the fundamental rights and principles laid down in the Charter, in particular Article 21 thereof on the right to non-discrimination.

3. The recognition of an authentic instrument establishing parenthood with binding legal effect may be refused if it was formally drawn up or registered without children having been given an opportunity to express their views. Where the children were below the age of 18 years, this provision shall apply where the children were capable of forming their views.

SECTION 4

Other provisions

Article 40 - Prohibition of review of jurisdiction of the court of origin

The jurisdiction of the court of the Member State of origin establishing parenthood may not be reviewed. The test of public policy referred to in point (a) of Article 31(1) may not be applied to the rules relating to jurisdiction set out in Articles 6 to 9.

Article 41 - Non-review as to substance

Under no circumstances may a court decision given in another Member State, or an authentic instrument establishing parenthood with binding legal effect in the Member State of origin, be reviewed as to their substance.

Article 42 - Costs

This Chapter shall also apply to the determination of the amount of costs and expenses of proceedings under this Regulation.

Article 43 - Legal aid

1. An applicant who, in the Member State of origin, has benefited from complete or partial legal aid or exemption from costs or expenses shall be entitled, in the proceedings provided for in Article 25(1) and Article 32, to benefit from the most favourable legal aid or the most extensive exemption from costs and expenses provided for by the law of the Member State in which proceedings are brought.

2. An applicant who, in the Member State of origin, has benefited from free proceedings before an administrative authority communicated to the Commission pursuant to Article 71 shall be entitled, in any procedures provided for in Articles 25(1) and 32, to benefit from legal aid in accordance with paragraph 1 of this Article. To that end, that party shall present a statement from the competent authority in the Member State of origin to the effect that he or she fulfils the financial requirements to qualify for the grant of complete or partial legal aid or exemption from costs or expenses.

CHAPTER V

AUTHENTIC INSTRUMENTS WITH NO BINDING LEGAL EFFECT

Article 44 - Scope

This Chapter shall apply to authentic instruments which have no binding legal effect in the Member State of origin but which have evidentiary effects in that Member State.

Article 45 - Acceptance of authentic instruments

1. An authentic instrument which has no binding legal effect in the Member State of origin shall have the same evidentiary effects in another Member State as it has in the Member State of origin, or the most comparable effects, provided that this is not manifestly contrary to public policy (ordre public) in the Member State where it is presented.

2. The public policy (ordre public) referred to in paragraph 1 shall be applied by the courts and other competent authorities of the Member States in observance of the fundamental rights and principles laid down in the Charter, in particular Article 21 thereof on the right to non-discrimination.

3. A person wishing to use such an authentic instrument in another Member State may ask the authority that has formally drawn up or registered the authentic instrument in the Member State of origin to fill in the form in Annex III describing the evidentiary effects which the authentic instrument produces in the Member State of origin.

4. The attestation shall contain a statement informing Union citizens and their family members that the attestation does not affect the rights that a child derives from Union law and that, for the exercise of such rights, proof of the parent-child relationship can be presented by any means.

5. Any challenge relating to the authenticity of such an authentic instrument shall be made before the courts of the Member State of origin and shall be decided upon under the law of that Member State. The authentic instrument challenged shall not produce any evidentiary effect in another Member State as long as the challenge is pending before the competent court.

6. Any challenge relating to the legal acts or legal relationships recorded in such an authentic instrument shall be made before the courts having jurisdiction under this Regulation and shall be decided upon under the law applicable pursuant to Chapter III. The authentic instrument challenged shall not produce any evidentiary effect in a Member State other than the Member State of origin as regards the matter being challenged as long as the challenge is pending before the competent court.

7. If the outcome of proceedings in a court of a Member State depends on the determination of an incidental question relating to the legal acts or legal relationships recorded in such an authentic instrument, that court shall have jurisdiction over that question.

CHAPTER VI

EUROPEAN CERTIFICATE OF PARENTHOOD

Article 46 - Creation of a European Certificate of Parenthood

1. This Regulation creates a European Certificate of Parenthood (‘the Certificate’) which shall be issued for use in another Member State and shall produce the effects listed in Article 53.

2. The use of the Certificate shall not be mandatory.

3. The Certificate shall not take the place of internal documents used for similar purposes in the Member States. However, once issued for use in another Member State, the Certificate shall also produce the effects listed in Article 53 in the Member State whose authorities issued it in accordance with this Chapter.

Article 47 - Purpose of the Certificate

The Certificate is for use by a child or a legal representative who, in another Member State, needs to invoke the child’s parenthood status.

Article 48 - Competence to issue the Certificate

1. The Certificate shall be issued in the Member State in which parenthood was established and whose courts, as defined in Article 4(4), have jurisdiction under Article 6, Article 7 or Article 9.

2. The issuing authority, as communicated to the Commission pursuant to Article 71, of the Member State referred to in paragraph 1 shall be:

(a)a court as defined in Article 4(4); or

(b)another authority which, under national law, has competence to deal with parenthood matters.

Article 49 - Application for a Certificate

1. The Certificate shall be issued upon application by the child (‘the applicant’) or, where applicable, a legal representative.

2. For the purposes of submitting an application, the applicant may use the form established in Annex IV.

3. The application shall contain the information listed below, to the extent that such information is within the applicant’s knowledge and is necessary in order to enable the issuing authority to certify the elements which the applicant wants certified, and shall be accompanied by all relevant documents either in the original or by way of copies which satisfy the conditions necessary to establish their authenticity, without prejudice to Article 50(2):

(a)details concerning the applicant: surname(s) (if applicable, surname(s) at birth), given name(s), sex, date and place of birth, nationality (if known), identification number (if applicable), address;

(b)if applicable, details concerning the legal representative of the applicant: surname(s) (if applicable, surname(s) at birth), given name(s), address and representative capacity;

(c)details concerning each parent: surname(s) (if applicable, surname(s) at birth), given name(s), date and place of birth, nationality, identification number (if applicable), address;

(d)the place and Member State where the parenthood of the child is registered;

(e)the elements on which the applicant founds parenthood, appending the original or a copy of the document(s) establishing parenthood with binding legal effect or providing evidence of the parenthood;

(f)the contact details of the Member State’s court that established parenthood, of the competent authority that issued an authentic instrument establishing parenthood with binding legal effect, or of the competent authority that issued an authentic instrument with no binding legal effect in the Member State of origin but with evidentiary effects in that Member State;

(g)a declaration stating that, to the applicant’s best knowledge, no dispute is pending relating to the elements to be certified;

(h)any other information which the applicant deems useful for the purposes of the issuance of the Certificate.

Article 50 - Examination of the application

1. Upon receipt of the application, the issuing authority shall verify the information and declarations and the documents and other evidence provided by the applicant. It shall carry out the enquiries necessary for that verification of its own motion where this is provided for or authorised by its national law, or shall invite the applicant to provide any further evidence which it deems necessary.

2. Where the applicant has been unable to produce copies of the relevant documents which satisfy the conditions necessary to establish their authenticity, the issuing authority may decide to accept other forms of evidence.

3. Where this is provided for by its national law and subject to the conditions laid down therein, the issuing authority may require that declarations be made on oath or by a statutory declaration in lieu of an oath.

4. For the purposes of this Article, the competent authority of a Member State shall, upon request, provide the issuing authority of another Member State with information held, in particular, in the civil, personal or population registers and other registers recording facts of relevance for the parenthood of the applicant, where that competent authority would be authorised, under national law, to provide another national authority with such information.

Article 51 - Issuance of the Certificate

1. The issuing authority shall issue the Certificate without delay in accordance with the procedure laid down in this Chapter when the elements to be certified have been established under the law applicable to the establishment of parenthood. It shall use the form in Annex V.

The issuing authority shall not issue the Certificate in particular if:

(a)the elements to be certified are being challenged; or

(b)the Certificate would not be in conformity with a court decision covering the same elements.

2. The fee collected for issuing a Certificate shall not be higher than the fee collected for issuing a certificate under national law providing evidence of the parenthood of the applicant.

Article 52 - Contents of the Certificate

The Certificate shall contain the following information, as applicable:

(a)the name, address and contact details of the Member State’s issuing authority;

(b)if different, the name, address and contact details of the Member State’s court that established parenthood, of the competent authority that issued an authentic instrument establishing parenthood with binding legal effect, or of the competent authority that issued an authentic instrument with no binding legal effect in the Member State of origin but with evidentiary effects in that Member State;

(c)the reference number of the file;

(d)the date and place of issue;

(e)the place and Member State where the parenthood of the child is registered;

(f)details concerning the applicant: surname(s) (if applicable, surname(s) at birth), given name(s), sex, date and place of birth, nationality (if known), identification number (if applicable), address;

(g)if applicable, details concerning the legal representative of the applicant: surname(s) (if applicable, surname(s) at birth), given name(s), address and representative capacity;

(h)details concerning each parent: surname(s) (if applicable, surname(s) at birth), given name(s), date and place of birth, nationality, identification number (if applicable), address;

(i)the elements on the basis of which the issuing authority considers itself competent to issue the Certificate;

(j)the law applicable to the establishment of parenthood and the elements on the basis of which that law has been determined;

(k)a statement informing Union citizens and their family members that the Certificate does not affect the rights that a child derives from Union law and that, for the exercise of such rights, proof of the parent-child relationship can be presented by any means;

(l)signature and/or stamp of the issuing authority.

Article 53 - Effects of the Certificate

1. The Certificate shall produce its effects in all Member States without any special procedure being required.

2. The Certificate shall be presumed to demonstrate accurately elements which have been established under the law applicable to the establishment of parenthood. The person mentioned in the Certificate as the child of a particular parent or parents shall be presumed to have the status mentioned in the Certificate.

3. The Certificate shall constitute a valid document for the recording of parenthood in the relevant register of a Member State, without prejudice to point (i) of Article 3(2).

Article 54 - Certified copies of the Certificate

1. The issuing authority shall keep the original of the Certificate and shall issue one or more certified copies to the applicant or a legal representative.

2. The issuing authority shall, for the purposes of Articles 55(3) and 57(2), keep a list of persons to whom certified copies have been issued pursuant to paragraph 1.

Article 55 - Rectification, modification or withdrawal of the Certificate

1. The issuing authority shall, at the request of any person demonstrating a legitimate interest or of its own motion, rectify the Certificate in the event of a clerical error.

2. The issuing authority shall, at the request of any person demonstrating a legitimate interest or, where this is possible under national law, of its own motion, modify or withdraw the Certificate where it has been established that the Certificate or individual elements thereof are not accurate.

3. The issuing authority shall inform without delay all persons to whom certified copies of the Certificate have been issued pursuant to Article 54(1) of any rectification, modification or withdrawal thereof.

Article 56 - Redress procedures

1. Decisions taken by the issuing authority pursuant to Article 51 may be challenged by the applicant for a Certificate or a legal representative.

Decisions taken by the issuing authority pursuant to Article 55 and point (a) of Article 57(1) may be challenged by any person demonstrating a legitimate interest.

The challenge shall be lodged before a court in the Member State of the issuing authority in accordance with the law of that Member State.

2. If, as a result of a challenge as referred to in paragraph 1, it is established that the Certificate issued is not accurate, the competent court shall rectify, modify or withdraw the Certificate or ensure that it is rectified, modified or withdrawn by the issuing authority.

If, as a result of a challenge as referred to in paragraph 1, it is established that the refusal to issue the Certificate was unjustified, the competent court shall issue the Certificate or ensure that the issuing authority re-assesses the case and makes a fresh decision.

Article 57 - Suspension of the effects of the Certificate

1. The effects of the Certificate may be suspended by:

(a)the issuing authority, at the request of any person demonstrating a legitimate interest, pending a modification or withdrawal of the Certificate pursuant to Article 55; or

(b)the court, at the request of any person entitled to challenge a decision taken by the issuing authority pursuant to Article 56, pending such a challenge.

2. The issuing authority or, as the case may be, the court shall without delay inform all persons to whom certified copies of the Certificate have been issued pursuant to Article 54(1) of any suspension of the effects of the Certificate.

During the suspension of the effects of the Certificate no further certified copies of the Certificate may be issued.

CHAPTER VII

DIGITAL COMMUNICATION

Article 58 - Communication through the European electronic access point

1. The European electronic access point established on the European e-Justice Portal pursuant to Article 4 of [the Digitalisation Regulation] may be used for electronic communication between natural persons or their legal representatives and Member State courts or other competent authorities in connection with the following:

(a)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;

(b)the application for, issuance, rectification, modification, withdrawal, suspension or redress procedures of the European Certificate of Parenthood.

2. Articles 4(3), 5(2) and (3), 6, 9(1) and 3, and 10 of [the Digitalisation Regulation] shall apply to electronic communications pursuant to paragraph 1.

Article 59 - Adoption of implementing acts by the Commission

1. For the purposes of electronic communications pursuant to Article 58(1), the Commission shall adopt implementing acts setting out the following:

(a)the technical specifications defining the methods of communication by electronic means;

(b)the technical specifications for communication protocols;

(c)the information security objectives and relevant technical measures ensuring minimum information security standards and a high level of cybersecurity for the processing and communication of information;

(d)the minimum availability objectives and possible related technical requirements for electronic communication through the decentralised IT system.

2. The implementing acts referred to in paragraph 1 of this Article shall be adopted in accordance with the examination procedure referred to in Article 62(2).

3. The implementing acts referred to in paragraph 1 shall be adopted by [2 years after the entry into force of this Regulation].

Article 60 - Reference implementation software

1. The Commission shall be responsible for the creation, maintenance and development of reference implementation software which Member States may choose to apply as their back-end system instead of a national IT system. The creation, maintenance and development of the reference implementation software shall be financed from the general budget of the Union.

2. The Commission shall provide, maintain and support on a free-of-charge basis the reference implementation software.

Article 61 - Costs of the decentralised IT system, European electronic access point and national IT portals

1. Each Member State shall bear the costs of the installation, operation and maintenance of the decentralised IT system’s access points which are located on their territory.

2. Each Member State shall bear the costs of establishing and adjusting its national IT systems to make them interoperable with the access points, and shall bear the costs of administering, operating and maintaining those systems.

3. Member States shall not be prevented from applying for grants to support the activities referred to in paragraphs 1 and 2 under the relevant Union financial programmes.

4. The Commission shall bear all costs related to introducing support for electronic communications through the European electronic access point pursuant to Article 58(1).

Article 62 - Committee procedure

1. The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011 of the European Parliament and of the Council 66 .

2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 of the European Parliament and of the Council shall apply.

CHAPTER VIII

DELEGATED ACTS

Article 63 - Delegation of powers

The Commission is empowered to adopt delegated acts in accordance with Article 64 concerning the amendment of Annexes I to V in order to update or make technical changes to those Annexes.

Article 64 - Exercise of the delegation

1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

2. The power to adopt delegated acts referred to in Article 63 shall be conferred on the Commission for an indeterminate period of time from [date of entry into force of this Regulation].

3. The delegation of power referred to in Article 63 may be revoked at any time by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

4. Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making.

5. As soon as it adopts a delegated act, the Commission shall notify it to the Council.

6. A delegated act adopted pursuant to Article 63 shall enter into force only if no objection has been expressed by the Council within a period of two months of notification of that act to the Council or if, before the expiry of that period, the Council has informed the Commission that it will not object. That period shall be extended by two months at the initiative of the Council.

7. The European Parliament shall be informed of the adoption of delegated acts by the Commission, of any objection formulated to them, or of the revocation of the delegation of powers by the Council.

CHAPTER IX

GENERAL AND FINAL PROVISIONS

Article 65 - Legalisation or other similar formality

No legalisation or other similar formality shall be required in the context of this Regulation.

Article 66 - Relationship with existing international conventions

1. This Regulation shall not affect the international conventions to which one or more Member States are party at the time when this Regulation is adopted and which lay down provisions on matters governed by this Regulation.

2. However, this Regulation shall, as between Member States, take precedence over conventions concluded exclusively between two or more of them in so far as such conventions concern matters governed by this Regulation.

3. This Regulation shall not affect the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption.

4. This Regulation shall not affect Conventions No 16, No 33 and No 34 of the International Commission on Civil Status.

Article 67 - List of Conventions

1. By [six months before the date of application of this Regulation], Member States shall notify the Commission of the conventions referred to in Article 66(1). After that date, Member States shall notify the Commission of all denunciations of such conventions.

2. Within six months of receipt of the notifications referred to in paragraph 1, the Commission shall publish in the European e-Justice Portal:

(a)a list of the conventions referred to in paragraph 1;

(b)the denunciations referred to in paragraph 1.

Article 68 - Data protection

1. The personal data required for the application of this Regulation shall be processed by Member State courts or other competent authorities for the purposes of the establishment of parenthood in cross-border situations and of the recognition of parenthood, in connection with the establishment of parenthood pursuant to Chapter II, the issuance of attestations pursuant to Articles 29, 37 and 45, the issuance of a European Certificate of Parenthood pursuant to Article 51, the presentation of the documents for the recognition of parenthood pursuant to Article 26, the obtaining of a decision that there are no grounds for refusal of recognition of parenthood pursuant to Article 25, or the application for refusal of recognition of parenthood pursuant to Article 32.

2. Processing of personal data under this Regulation shall be limited to the extent necessary for the purposes set out in paragraph 1, without prejudice to further processing for archiving purposes in the public interest in accordance with Articles 5(1)(b) and 89 of the GDPR.

3. For the purposes of this Regulation, Member State courts or other competent authorities shall be regarded as data controllers within the meaning of Article 4, point 7 of the GDPR.

4. The personal data required for the application of this Regulation shall be processed by the Commission in connection with the electronic communication between natural persons or their legal representatives and Member State courts or other competent authorities through the European electronic access point in the context of the decentralised IT system.

5. Processing of personal data under this Regulation shall be limited to the extent necessary for the purposes set out in paragraph 4. 

6. For the purposes of this Regulation, the Commission shall be regarded as controller within the meaning of Article 3, point 8 of the EUDPR.

Article 69 - Transitional provisions

1. This Regulation shall apply to legal proceedings instituted and to authentic instruments formally drawn up or registered on or after [date of application of this Regulation].

2. Notwithstanding paragraph 1, where the parenthood was established in conformity with one of the laws designated as applicable under Chapter III in a Member State whose courts had jurisdiction under Chapter II, Member States shall recognise:

(a)a court decision establishing parenthood in another Member State in legal proceedings instituted prior to [date of application of this Regulation], and

(b)an authentic instrument establishing parenthood with binding legal effect in the Member State of origin which was formally drawn up or registered prior to [date of application of this Regulation].

Chapter IV shall apply to the court decisions and authentic instruments referred to in this paragraph.

3. Notwithstanding paragraph 1, Member States shall accept an authentic instrument which has no binding legal effect in the Member State of origin but which has evidentiary effects in that Member State, provided that this is not manifestly contrary to the public policy (ordre public) of the Member State in which acceptance is sought.

Chapter V shall apply to the authentic instruments referred to in this paragraph.

Article 70 - Review

1. By [5 years from date of application of this Regulation], the Commission shall present to the European Parliament, the Council and the European Economic and Social Committee a report on the application of this Regulation, including an evaluation of any practical problems encountered, supported by information supplied by the Member States. The report shall be accompanied, where necessary, by a legislative proposal.

2. The Member States shall provide the Commission upon request, where available, with information relevant for the evaluation of the operation and application of this Regulation, in particular on:

(a)the number of applications for the refusal of recognition of a court decision or of an authentic instrument establishing parenthood with binding legal effect in the Member State of origin pursuant to Article 32, and the number of cases in which the refusal of recognition was granted;

(b)the number of appeals lodged pursuant to Articles 33 and 34, respectively;

(c)the number of applications challenging the contents 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, and the number of cases in which the challenge was successful;

(d)the number of European Certificates of Parenthood issued; and

(e)the costs incurred under Article 61(2) of this Regulation.

Article 71 - Information to be communicated to the Commission

1. The Member States shall communicate to the Commission the following:

(a)the authorities empowered to draw up or register authentic instruments in matters of parenthood as referred to in Article 4, point (6);

(b)the courts and authorities competent to issue attestations as referred to in Article 29, Article 37 and Article 45, and the courts and authorities competent to rectify attestations as referred to in Article 38;

(c)the courts competent to deal with applications for a decision that there are no grounds for refusal of recognition in accordance with Article 25, and the courts competent to deal with applications for refusal of recognition in accordance with Article 32 and with appeals against court decisions on such applications for refusal in accordance with Articles 33 and 34, respectively; and

(d)the courts and authorities competent to issue the European Certificate of Parenthood pursuant to Article 51, and the courts competent to deal with the redress procedures referred to in Article 56.

2. The Member States shall communicate the information referred to in paragraph 1 to the Commission by [6 months after the date of entry into force of this Regulation].

3. The Member States shall communicate to the Commission any changes to the information referred to in paragraph 1.

4. The Commission shall make the information referred to in paragraph 1 publicly available through appropriate means, including through the European e-Justice Portal.

Article 72 - Entry into force and application

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

It shall apply from [the first day of the month following a period of 18 months from the date of entry into force of this Regulation].

However, Article 71 shall apply from [date of entry into force of this Regulation].

This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties.