Wednesday 15 October 2014

Child abduction: a further extension of EU exclusive external powers

Steve Peers

It's every parent's worst nightmare: the abduction of their child. If the child is abducted by a stranger, there's obviously a grave threat to the child. But it's far more common for a child to be abducted by a parent who doesn't have custody of him or her, in the context of family law proceedings.

While it's fortunately much less likely that a parent is a threat to a child's welfare, such abductions are still problematic, since they are a breach of court decisions regarding custody. And if the child is taken to another country by the abducting parent, it is far harder for the parent with custodial rights to enforce them. Sometimes, the latter parent doesn't even get to see his or her children for years.

To address this problem, the Hague Conference (an international body) drew up an international treaty, the Hague Convention on the civil aspects of child abduction, back in 1980. All the EU Member States are party to this treaty. In fact, a total of 93 countries have ratified it. According to the latest available statistics, in 2008 the Convention was applied about 2300 times. Two-thirds of the parents taking children were the mothers, and the average age of the abducted children was six. 

Indeed, the very popularity of the Convention was at the heart of a dispute over the EU’s external power regarding it, which was resolved yesterday by the CJEU (Opinion 1/2013). This judgment concerned new States signing up to the Convention, which has an unusual rule on accession: it only applies to new States which ratify it to the extent that the existing signatories individually agree to this.

The EU is not itself a party to the treaty, and it can't be, since the treaty only permits States to be parties. But in the years since the treaty was drawn up, the EU has adopted legislation which addresses child abduction issues (Regulation 2201/2003). So arguably this means that the EU has external competence as regards the subject matter of the Convention, and Member States are only 'trustees' of that power.  In practice, that means that Member States cannot decide unilaterally whether to extend the Convention to new countries or not.

The Commission, believing that this interpretation was correct, proposed in 2011 that the Council adopt eight separate decisions permitting Member States to extend the Convention to third States, including Russia, Albania and Morocco. Most Member States disagreed. So the Commission invoked the special procedure set out in Article 218 TFEU, which allows the CJEU to decide on whether an envisaged international agreement would be in conformity with EU law.


The CJEU had to address four arguments against the admissibility of this case.  First of all, the Court ruled that the decision on accession of a new State to the Convention was an 'agreement'. Secondly, it ruled that the impossibility of the EU itself becoming party to the Convention was irrelevant. As it had ruled before, it has jurisdiction under Article 218 TFEU even in 'trusteeship' cases.

Thirdly, the Court ruled that an agreement could still be considered as being 'envisaged' even if a large majority of the Member States in the Council were opposed to it, making its adoption improbable politically. Finally, the Court decided that it was irrelevant that a number of Member States had gone ahead and agreed to extend the Convention to the third States concerned. The possibility that the Commission could have sued those Member States for infringing EU law didn't stop the Commission from invoking the special jurisdiction of Article 218 TFEU.

As for the substance of the case, 19 Member States opposed the Commission view that the EU had external competence in this case. Only the European Parliament, along with Italy, supported the Commission. Nevertheless, the Court agreed with the Commission.

The Court began by noting that the EU has external competence not only when the Treaties expressly provide for it, but also when this is necessary to realise the internal objectives of the EU, even if the Treaties don't make express provision for this. Indeed, the Court stated that Article 216 TFEU now sets out this rule. In this case, the EU competence existed merely because Article 81(3) TFEU gives the EU internal power to adopt legislation on family law matters with cross-border implications.

However, the bigger issue is whether such competence is exclusive, or merely shared with the Member States. On this point, the Court reaffirmed that the EU would enjoy exclusive competence, as set out in its prior case-law and Article 3(2) TFEU, where an international treaty was liable to affect common EU rules or alter their scope. This was the case when the treaty fell within an area which was largely covered by the EU rules.

Applying that law to the facts, the main provisions of the Convention, dealing with return of the child and the right to visit a child, were also the subject of rules in the Regulation. There was a risk that patchwork extension of the treaty to third States by Member States would complicate application of the EU legislation, particularly where a dispute concerned a third State and two Member States, each of which had taken a different view on extending the treaty to the relevant third State. So it followed that the EU had exclusive external competence regarding the extension of the Convention to new countries. 


The Court’s judgment raises three issues: its impact upon child abduction in practice; the substantive scope of the EU’s external competence generally; and the process of litigating disputes about that competence.

On the first point, fortunately for the children concerned, the dispute regarding the EU’s external competence in this case doesn’t appear to have prevented Member States from extending the Convention to new countries in practice. However, since the new judgment resolves the issue, the Council now needs to move forward quickly to adopt the Commission’s earlier proposals (on family law issues, the Council votes unanimously, after consulting the European Parliament). Also, seven more States have ratified the Convention in the meantime, including Japan and Korea (see the full list of signatories here), so the Commission needs to propose further such measures straight away. A failure to act quickly will run the risk that a parent who has abducted a child to Russia (for example) might try to argue against the enforcement of a ruling issued by a Member State’s court on the return of a child, on the grounds that the Member State’s extension of the Convention to Russia was illegal.

The Court’s ruling also means that any amendment of the Convention in future will also fall within the scope of the EU’s exclusive external competence. This isn’t a purely hypothetical possibility, as there was some contemplation of a protocol to the Convention a few years ago (for the details, see here).  So it’s now clear that Member States will have to act together, or not at all, as regards any amendment to the Convention, and any extension of it to new countries.

As regards the EU’s external competence, there are two issues: the existence and nature of that competence. In fact, this is the first CJEU judgment since the entry into force of the Treaty of Lisbon which touched upon the existence of such competence. The Court’s judgment appears to assume that Article 216 TFEU simply reflects the prior case law; this issue had been debated in literature. And according to the Court, external competence exists where there is an internal legal base and the EU has adopted legislation on the subject in question. The Court didn’t rule on whether the existence of legislation on an issue was necessary before the EU could exercise its external competence. But on the facts of the case, it didn’t have to address that issue.

Moving on to the nature of the EU’s external competence, the Court’s ruling is not very surprising, following the pre-Lisbon judgment on the exclusivity of the EU’s external competence over civil jurisdiction issues (Opinion 1/03), and more recently the broadcasting rights judgment, confirming and elaborating a broad approach to finding that EU external competence is exclusive. In fact, EU exclusive competence as regards the child abduction Convention is more self-evident than as regards the planned broadcasters’ rights Convention, given that the two main aspects of the child abduction Convention clearly correspond to provisions of an EU Regulation, which moreover expressly incorporates or supplements some aspects of the Convention.

Finally, as regards the procedural aspects of this case, all four aspects of the Court’s ruling (the definitions of ‘agreement’ and ‘envisaged’, the application to ‘trusteeship’ cases and the relationship with infringement actions) take a broad approach to the scope of its jurisdiction pursuant to Article 218 TFEU. In effect, it’s now clear that all the Commission needs to do in order to trigger the possible use of Article 218 is to make a proposal for an external relations decision by (or on behalf of) the EU to the Council. Even if that proposal is ‘dead on arrival’ in the Council (as in this case), to the extent that Member States ignore the Commission’s proposal and begin ratifying the relevant treaty (or taking other external action) themselves, the Commission can still invoke the Court’s jurisdiction under Article 218. That special jurisdiction only ceases to apply if the Council approves the treaty concerned on the EU’s behalf, and the treaty then binds the EU. This precisely won’t ever be the case if the Council rejects the Commission’s proposal at the outset.

Having said that, the Court’s judgment does appear to draw a distinction between legal and political reasons for rejecting a Commission proposal, stating that in this case, the case was admissible because the Council’s reasons for rejection were purely legal. What if its objections were political – or both legal and political? And how can one tell the difference between those grounds?

Furthermore, does this reasoning also apply to the European Parliament? It has no veto right over family law treaties, but it does over most treaties concluded by the EU. The Commission passed up a chance to clarify this issue when it withdrew its request for a CJEU Article 218 ruling as regards the controversial Anti-Counterfeiting Trade Agreement, after the EP refused its consent to that treaty on political grounds. Arguably, the legal questions remain relevant even if a treaty has been rejected by either the Council or the EP on political grounds; but the Commission surely shows good judgment by accepting the political decision of either branch of the EU’s legislature and withdrawing applications for a Court ruling in such circumstances.

Barnard & Peers: chapter 24

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