32 Amendments of Pina PICIERNO related to 2022/0402(CNS)
Amendment 49 #
Proposal for a regulation
Recital 5 a (new)
Recital 5 a (new)
Amendment 60 #
(13a) The child-parent relationship calls into question an essential aspect of the child’s identity, in particular, not only the right to a personal identity but also the right to live and grow up in a stable family environment. The best interests of the child should always prevail. The European Court of Human Rights has expressly stated that the best interests of the child reduces the margin of appreciation of the State Parties in the recognition of the child-parent relationship1a. Consequently, it becomes necessary to proceed with the recognition of parenthood regardless of the family context and the way in which the child is conceived. It is also necessary to guarantee the full legitimisation of the family, the conjugal relationship, understood as a nucleus of stable affections and relationships between persons, and of the children resulting from such relationship. _________________ 1a ECtHR, Judgment 22.11.2022 [Section III], D.B. and Others v. Switzerland - 58252/15 and 58817/15.
Amendment 62 #
Proposal for a regulation
Recital 14
Recital 14
(14) Under Article 21 TFEU and secondary legislation relating thereto as interpreted by the Court of Justice, the respect of a Member State’s national identity under Article 4(2) TEU and a Member State’s public policy cannot serve as justification to refuse to recognise a parent-child relationship between children and their same-sex parents for the purposes of exercising the rights that a child derives from Union law. In fact, the protection of the interests of the child should prevail over considerations of national identity and public policy, so that the child can live in a stable and recognised family free from any stigma, including from a legal point of view. This is particularly true if one considers that the best interest of the child is an integral part of the concept of public policy, thus favouring the entry into national law of new family and conjugal relations. In addition, for the purposes of exercising such rights, proof of parenthood can be presented by any means52 . Therefore, a Member State is not entitled to require that a person presents either the attestations provided for in this Regulation accompanying a court decision or an authentic instrument on parenthood, or the European Certificate of Parenthood created by this Regulation, where the person invokes, in the context of the exercise of the right to free movement, rights that a child derives from Union law. This should not, however, prevent a person from choosing to present in such cases also the relevant attestation or the European Certificate of Parenthood provided for in this Regulation. To ensure that Union citizens and their family members are informed that the rights that a child derives from Union law are not affected by this Regulation, the forms of the attestations and of the European Certificate of Parenthood annexed to this Regulation should include a statement specifying that the relevant attestation or the European Certificate of Parenthood do 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, and that, for the exercise of such rights, proof of the parent-child relationship can be presented by any means. _________________ 52 Judgments of the Court of Justice of 25 July 2002, C-459/99, MRAX, ECLI:EU:C:2002:461, paragraphs 61 and 62, and of 17 February 2005, C-215/03, Oulane, ECLI:EU:C:2005:95, paragraphs 23 to 26.
Amendment 67 #
Proposal for a regulation
Recital 17 a (new)
Recital 17 a (new)
(17a) Furthermore, according to the case-law of the European Court of Human Rights, the best interests of the child also entails the legal identification of the persons responsible for raising them, meeting their needs and ensuring their welfare, as well as the possibility for the child to live and develop in a stable environment1a. It is therefore clear that the child will have an interest in the legal recognition of their relationship with the parents. _________________ 1a ECtHR, 10.4.2019 [GC], Advisory opinion requested by the French Court of Cassation
Amendment 79 #
Proposal for a regulation
Recital 4 a (new)
Recital 4 a (new)
(4a) Public policy within the meaning of the Regulation must be interpreted restrictively in accordance with the case law of the CJEU. In its judgment C- 490/20, the CJEU reiterated its view that "the concept of 'public policy', if it is to justify a derogation from a fundamental freedom, must be interpreted restrictively, so that its scope cannot be determined unilaterally by each Member State without control by the Union institutions."
Amendment 93 #
Proposal for a regulation
Recital 14
Recital 14
(14) Under Article 21 TFEU and secondary legislation relating thereto as interpreted by the Court of Justice, the respect of a Member State’s national identity under Article 4(2) TEU and a Member State’s public policy cannot serve as justification to refuse to recognise a parent-child relationship between children and their same-sex parents for the purposes of exercising the rights that a child derives from Union law. The refusal can never go against the best interest of the child and the best interest of the child has to be always adhered to. Under no circumstances can the best interest of the child be used as an excuse for refusal on the basis of the gender of the parents. In addition, for the purposes of exercising such rights, proof of parenthood can be presented by any means52 . Therefore, a Member State is not entitled to require that a person presents either the attestations provided for in this Regulation accompanying a court decision or an authentic instrument on parenthood, or the European Certificate of Parenthood created by this Regulation, where the person invokes, in the context of the exercise of the right to free movement, rights that a child derives from Union law. This should not, however, prevent a person from choosing to present in such cases also the relevant attestation or the European Certificate of Parenthood provided for in this Regulation. To ensure that Union citizens and their family members are informed that the rights that a child derives from Union law are not affected by this Regulation, the forms of the attestations and of the European Certificate of Parenthood annexed to this Regulation should include a statement specifying that the relevant attestation or the European Certificate of Parenthood do 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, and that, for the exercise of such rights, proof of the parent-child relationship can be presented by any means. _________________ 52 Judgments of the Court of Justice of 25 July 2002, C-459/99, MRAX, ECLI:EU:C:2002:461, paragraphs 61 and 62, and of 17 February 2005, C-215/03, Oulane, ECLI:EU:C:2005:95, paragraphs 23 to 26.
Amendment 126 #
Proposal for a regulation
Recital 56
Recital 56
(56) Considerations of public interest should allow courts and other competent authorities establishing parenthood in the Member States to disregard, in exceptional circumstances, certain provisions of a foreign law where, in a given case, applying such provisions would be manifestly incompatible with the public policy (ordre public) of the Member State concerned. However, the courts or other competent authorities should not be able to apply the public policy exception in order to set aside the law of another State when doing so would be contrary to the Charter and, in particular, Article 21 thereof, which prohibits discrimination or contrary to the best interest of the child.
Amendment 127 #
Proposal for a regulation
Recital 56
Recital 56
(56) Considerations of public interest should allow courts and other competent authorities establishing parenthood in the Member States to disregard, in exceptional circumstances, certain provisions of a foreign law where, in a given case, applying such provisions would be manifestly incompatible with the public policy (ordre public) of the Member State concerned. However, tThe courts or other competent authorities should not be able to apply the public policy exception in order to set aside the law of another State when doing so would be contrary to the Charter and, in particular, Article 21 thereof, which prohibits discrimination.
Amendment 128 #
Proposal for a regulation
Recital 60 a (new)
Recital 60 a (new)
(60a) In order to prevent fragmentation of legal regimes for cross border families, Commission in cooperation with Member States shall draft a model international agreement, which would be based on the rules and principles of this regulation and would be used by Member State to enter into bilateral relations with third countries where mutual recognition of parenthood would be applied.
Amendment 134 #
Proposal for a regulation
Recital 75
Recital 75
(75) Considerations of public interest should allow Member State courts or other competent authorities to refuse, in exceptional circumstances, to recognise or, as the case may be, accept a court decision or authentic instrument on the parenthood established in another Member State where, in a given case, such recognition or acceptance would be manifestly incompatible with the public policy (ordre public) of the Member State concerned. However, the courts or other competent authorities should not be able to refuse to recognise or, as the case may be, accept a court decision or an authentic instrument issued in another Member State when doing so would be contrary to the Charter and, in particular, Article 21 thereof, which prohibits discrimination or contrary to the best interest of the child.
Amendment 142 #
Proposal for a regulation
Article 1 – paragraph 1
Article 1 – paragraph 1
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. These rules shall apply without prejudice to the nature or type of family or to cases of adoption, established in a Member State, by one or both parents.
Amendment 149 #
Proposal for a regulation
Article 17 – paragraph 2 a (new)
Article 17 – paragraph 2 a (new)
2a. These rules shall apply without prejudice to the nature or type of family or to cases of adoption, established in a Member State, by one or both parents.
Amendment 152 #
Proposal for a regulation
Recital 75
Recital 75
(75) Considerations of public interest should allow Member State courts or other competent authorities to refuse, in exceptional circumstances, to recognise or, as the case may be, accept a court decision or authentic instrument on the parenthood established in another Member State where, in a given case, such recognition or acceptance would be manifestly incompatible with the public policy (ordre public) of the Member State concerned. However, tThe courts or other competent authorities should not be able to refuse to recognise or, as the case may be, accept a court decision or an authentic instrument issued in another Member State when doing so would be contrary to the Charter and, in particular, Article 21 thereof, which prohibits discrimination.
Amendment 154 #
Proposal for a regulation
Article 22 – paragraph 2
Article 22 – paragraph 2
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 and can under no circumstances be used as an excuse for discrimination based on gender of parents. The refusal can never go against the best interest of the child and the best interest of the child has to be always adhered to.
Amendment 158 #
Proposal for a regulation
Article 31 – paragraph 1 – point a
Article 31 – paragraph 1 – point a
(a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is invoked, always taking into account and protecting the child’s interests ;
Amendment 161 #
Proposal for a regulation
Article 39 – paragraph 1 – point a
Article 39 – paragraph 1 – point a
(a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is invoked, always taking into account and protecting the child’s interests; Under no circumstances can the best interest of the child be used as an excuse for refusal on the basis of the gender of the parents.
Amendment 164 #
Proposal for a regulation
Article 45 – paragraph 2
Article 45 – paragraph 2
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 and has to always be in line with and promote the best interest of the child.
Amendment 209 #
Proposal for a regulation
Article 5 – paragraph 1
Article 5 – paragraph 1
This Regulation shall not affect the competence of the authorities of the Member States to deal with parenthood matters in solely domestic cases.
Amendment 246 #
Proposal for a regulation
Article 22
Article 22
Amendment 272 #
Proposal for a regulation
Article 31 – paragraph 1 – point a
Article 31 – paragraph 1 – point a
Amendment 278 #
Proposal for a regulation
Article 31 – paragraph 1 – point c
Article 31 – paragraph 1 – point c
(c) upon application by any person claiming that the court decision infringes his fatherhood or her motherhood over the childtheir parenthood over the child and if the decision if it was given without such person having been given an opportunity to be heard and to present evidence;
Amendment 286 #
Proposal for a regulation
Article 31 – paragraph 2
Article 31 – paragraph 2
2. Point (a) of paragraph 1This Article 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.
Amendment 289 #
Proposal for a regulation
Article 33 – paragraph 1
Article 33 – paragraph 1
1. AnOnly partyies entitled under national law may challenge or appeal against a court decision on the application for refusal of recognition.
Amendment 301 #
Proposal for a regulation
Article 39 – paragraph 1 – point a
Article 39 – paragraph 1 – point a
Amendment 306 #
Proposal for a regulation
Article 39 – paragraph 1 – point b
Article 39 – paragraph 1 – point b
(b) upon application by any person claiming that the authentic instrument infringes his fatherhood or her mothertheir parenthood over the child, if the authentic instrument was formally drawn up or registered without that person having been involved;
Amendment 311 #
Proposal for a regulation
Article 39 – paragraph 2
Article 39 – paragraph 2
2. Point (a) of paragraph 1This Article 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.
Amendment 316 #
Proposal for a regulation
Article 40 – paragraph 1
Article 40 – paragraph 1
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.
Amendment 323 #
Proposal for a regulation
Article 45 – paragraph 1
Article 45 – paragraph 1
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.
Amendment 327 #
2. The public policy (ordre public) referred to in paragraph 1is Article 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.
Amendment 379 #
Proposal for a regulation
Article 69 – paragraph 3 – subparagraph 1
Article 69 – paragraph 3 – subparagraph 1
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.
Amendment 385 #
Proposal for a regulation
Article 70 – paragraph 2 – point -a (new)
Article 70 – paragraph 2 – point -a (new)
(-a) the number of requests for the recognition of parenthood submitted pursuant to this Regulation
Amendment 389 #
Proposal for a regulation
Article 70 a (new)
Article 70 a (new)
Article70a Guidelines 1. After the entry into force of this Regulation and before the date from which it shall apply, as indicated in Article 72 of this Regulation, the Commission shall publish guidelines to national authorities on how to apply and enforce this Regulation. 2. The Commission shall update every two years thereafter the guidelines taking into account, inter alia, the experience that has been gained in the application and enforcement of this Regulation and any relevant case law of the Court of Justice.