40 Amendments of Daniel BUDA related to 2022/0402(CNS)
Amendment 60 #
Proposal for a regulation
Recital 2
Recital 2
(2) This Regulation concerns the recognition in a Member State of the parenthood of a child as established in another Member State. It aimsof parents established in another Member State, or, as the case may be, as established in another Member State. It aims to ensure that the child’s best interests are respected and to protect the fundamental rights and other rights of children in matters concerning their parenthood in cross- border situations, including their right to an identity31, to non-discrimination32 and to a private and family life33, taking full respect for the principle of the best interests of the child as a primary consideration34. This Regulation also aims to provide legal certainty and predictability and to reduce litigation costs and burden for families, national courts and other competent authorities in connection with proceedings for the recognition of parenthood in another Member State. To attain these aims, this Regulation should require Member States to recognise for all purposes the parenthood of a child as established in another Member State. _________________ 31 Article 8 of the UN Convention on the Rights of the Child. 32 Article 2 of the UN Convention on the Rights of the Child, Article 21 of the Charter of Fundamental Rights of the European Union. 33 Article 9 of the UN Convention on the Rights of the Child, Articles 7 and 24 of the Charter of Fundamental Rights of the European Union. 34 Article 3 of the UN Convention on the Rights of the Child, Article 24 of the Charter of Fundamental Rights of the European Union.
Amendment 66 #
Proposal for a regulation
Recital 7
Recital 7
(7) In 2010 the Commission published a Green Paper entitled ‘Less bureaucracy for citizens: promoting free movement of public documents and recognition of the effects of civil status records’ by which it launched a broad consultation on matters relating to the free movement of public documents and the recognition of the effects of civil status records. Among others, it considered the possibility of introducing a European civil status certificate that would facilitate the cross- border recognition of civil status in the Union. The consultation aimed to gather contributions from interested parties and the general public with a view to developing Union policy in these areas and the relevant legislative proposals. In 2016, the Union legislator adopted Regulation (EU) 2016/1191 on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the European Union42, including documents on birth, parenthood and adoption. _________________ 42 Regulation (EU) 2016/1191 of the European Parliament and of the Council of 6 July 2016 on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the European Union and amending Regulation (EU) No 1024/2012 (OJ L 200, 26.7.2016, p. 1).
Amendment 70 #
Proposal for a regulation
Recital 8
Recital 8
(8) While the Union has competence to adopt measures on family law with cross- border implications such as rules on international jurisdiction, applicable law and the recognition of parenthood between Member States, to date the Union has not adopted provisions in those areas as regards parenthood. The Member States’ provisions currently applicable in these areas differ and can prevent fundamental rights recognised at European level for children from being respected.
Amendment 74 #
Proposal for a regulation
Recital 10
Recital 10
(10) As a result of the absence of Union provisions on international jurisdiction and applicable law for the establishment of parenthood in cross-border situations and on the recognition of parenthood between Member States, families may encounter difficulties in having the parenthood of their children recognised for all purposes within the Union, including when they move to another Member State or return to their Member State of origin, which may deter families from exercising their right to freedom of movement, as their tie of parenthood with their children will not be recognised in another Member State.
Amendment 86 #
Proposal for a regulation
Recital 16
Recital 16
(16) Article 2 of the United Nations Convention on the Rights of the Child of 20 November 1989 (‘UN Convention on the Rights of the Child’) requires States Parties to respect and ensure the rights of children without discrimination of any kind, and to take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the circumstances of the child’s parents. Under Article 3 of the said Convention, in all actions by, amongst others, courts and administrative authorities, the best interests of the child must be a primary consideration, and the child’s rights must be respected in all situations and circumstances.
Amendment 87 #
Proposal for a regulation
Recital 17
Recital 17
(17) Any reference to the ‘best interests of the child’ in this Regulation should apply to children within the meaning of Article 1 of the United Nations Convention on the Rights of the Child of 20 November 1989 (‘UN Convention on the Rights of the Child’), that is, children below the age of 18 years unless under the national law applicable to the child, majority is attained earlier. Any reference to the ‘best interests of the child’ in this Regulation should also be interpreted in the light of Article 24 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and of Articles 3 and 12 of the UN Convention on the Rights of the Child as implemented by national law. Any reference to the ‘child’s interests’ in this Regulation should be understood as referring to the best interests of the child and to the interests of children whichever their age.
Amendment 103 #
Proposal for a regulation
Recital 22
Recital 22
(22) To achieve its aims, it is necessary and appropriate for this Regulation to bring together common rules on jurisdiction, applicable law, recognition or, as the case may be, acceptance ofenforcement of final court decisions and recognition of authentic instruments on parenthood as well as rules on the creation of a European Certificate of Parenthood in a Union legal instrument which is binding and directly applicable.
Amendment 109 #
Proposal for a regulation
Recital 24
Recital 24
(24) For the purposes of this Regulation, parenthood, also referred to as filiation, may be biologic, genetic, by adoption or by operation of national law. Also for the purposes of this Regulation, parenthood should mean the parent-child relationship established in national law, and should cover the legal status of being the child of a particular parent or parents. This Regulation should cover the parenthood established in a Member State of both minors and adults, including a deceased child and a child not yet born, whether to a single parent, a de facto couple, a married couple or a couple in a relationship which, under the national law applicable to such relationship, has comparable effects, such as a registered partnership. This Regulation should apply regardless of the nationality of the child whose parenthood is to be established, and regardless of the nationality of the parents of the child. The term ‘parent’ in this Regulation should be understood, as applicable, as referring to the legal parent, the intended parent, the person who claims to be a parent or the person in respect of whom the child claims parenthood.
Amendment 118 #
Proposal for a regulation
Recital 28
Recital 28
(28) While the establishment and the recognition of parenthood in conformity with this Regulation is relevant for other areas of civil law, the scope of this Regulation should be limited to jurisdiction, applicable law, recognition ofenforcement of final court decisions and acceptancerecognition of authentic instruments concerning parenthood. For reasons of clarity, other areas of civil law which could be seen as having a link with parenthood should be explicitly excluded from the scope of this Regulation.
Amendment 120 #
Proposal for a regulation
Recital 29
Recital 29
(29) In particular, the rules on jurisdiction, applicable law, recognition ofand enforcement of final decisions, and acceptancerecognition of authentic instruments set out in this Regulation should not apply to maintenance rights, governed by Council Regulation (EC) No 4/200955; succession rights, governed by Regulation (EU) No 650/2012 of the European Parliament and of the Council56; or parental responsibility matters, governed by Council Regulation (EU) 2019/111157. However, as the question of the parenthood of a child must be resolved as a preliminary question before resolving matters of parental responsibility, maintenance or succession as regards the child, this Regulation should facilitate the application of the above-mentioned Union instruments on family law and succession. _________________ 55 Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (OJ L 7, 10.1.2009, p. 1). 56 Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (OJ L 201, 27.7.2012, p. 107). 57 Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (OJ L 178, 2.7.2019, p. 1).
Amendment 123 #
Proposal for a regulation
Recital 30
Recital 30
(30) This Regulation should not apply to preliminary questions such as the existence, validity or recognition of a marriage or a relationship deemed by the national law applicable to it as having comparable effects, which should continue to be governed by the national law of the Member States, including their rules of private international law and, where relevant, by the case law of the Court of Justice on free movement.
Amendment 130 #
Proposal for a regulation
Recital 33
Recital 33
(33) The establishment of parenthood should mean the legal determination of the legal relationship between a child and each parent, and should be understood tas also includeing, where applicable, the establishment of parenthood following a claim contesting a parenthood established previously. Where relevant, this Regulation should also apply to the extinction or termination of parenthood.
Amendment 133 #
Proposal for a regulation
Recital 34
Recital 34
(34) Notwithstanding the differences in national laws, parenthood is typically established by operation of law or by an act of a competent authority. Examples of the establishment of parenthood by operation of law include parenthood by birth as regards the person giving birth, and parenthood by legal presumption as regards the spouse or the registered partner of the person giving birth. Examples of the establishment of parenthood by an act of a competent authority include the establishment of parenthood by a final court decision (such as in adoption, or in proceedings where parenthood is contested, or in proceedings where parenthood is claimed, for example by proving a possession of state), by a notarial deed (for example, in adoption or where the child is not yet born), by an administrative decision (for example, after an acknowledgment of paternity) or by registration. Parenthood is typically registered in the civil, personal or population register. Evidence of parenthood can be provided by the document establishing the parenthood (such as the final court decision, the notarial deed or the administrative decision establishing parenthood). However, evidence of parenthood is most often provided by the registration of the parenthood in the register itself, by an extract from the relevant register or by a certificate containing the information registered in the relevant register (such as a birth certificate or a parenthood certificate).
Amendment 137 #
Proposal for a regulation
Recital 35
Recital 35
(35) The smooth and correct functioning of a Union area of justice with respect for the Member States’ different legal systems and traditions is fundamental for the Union and its proper functioning. The Union does not intervene and does not restrict the right of the Member States to take decisions according to their own national values and beliefs. In that regard, mutual trust in one another’s justice systems should be further enhanced.
Amendment 139 #
Proposal for a regulation
Recital 36
Recital 36
(36) In order to facilitate the recognition ofenforcement of final court decisions and the recognition of authentic instruments on parenthood matters, this Regulation should lay down uniform jurisdiction rules for the establishment of parenthood with a cross- border element. This Regulation should also clarify the right of children below the age of 18 years to be provided with an opportunity to express their views in proceedings to which they are subject, but only in certain specifically regulated situations and, where necessary, with the support of a person specialising in talking to children, to ensure that they have not been influenced in any particular way.
Amendment 161 #
Proposal for a regulation
Recital 49
Recital 49
(49) Proceedings on the establishment of parenthood under this Regulation should, as a basic principle, provide children below the age of 18 years who are subject to those proceedings and who are capable of forming their own views, in accordance with the case law of the Court of Justice, with a genuine and effective opportunity to express their views and, when assessing the best interests of the child, due weight should be given to those views. This Regulation should, however, leave the question of who will hear the child and how the child will be heard to be determined by the national law and procedure of the Member States. In addition, while remaining a right of the child, hearing the child should not constitute an absolute obligation if, for objective reasons related to the child’s best interests, it is not necessary, although it should be assessed taking into account the best interests of the child.
Amendment 165 #
Proposal for a regulation
Recital 51
Recital 51
(51) As a rule, the law applicable to the establishment of parenthood in cross- border situations should be the law of the State of the habitual residence of the person giving birth at the time of birth. This connecting factor should ensure that the applicable law can be determined in the vast majority of cases, including as regards a new-born, whose habitual residence may be difficult to establish. The time of birth should be interpreted strictly, referring to the most frequent situation in which parenthood is established upon birth by operation of law and registered in the relevant register within a few days following birth. That law should apply both to situations in which the person giving birth has the habitual residence in the State of birth (as would be the typical situation) and also to situations in which the person giving birth has the habitual residence in a State other than the State of birth (for example, when birth occurs while travelling). The law of the State of the habitual residence of the person giving birth at the time of birth should apply, by analogy, where the parenthood of the child needs to be established before the child is born. To ensure that the applicable law can be determined in all circumstances, the law of the State of citizenship of the person who gives birth and, if this cannot be ascertained, the law of the State of birth of the child should apply in the rare cases where the habitual residence of the person giving birth at the time of birth cannot be established (for example, in the case of a refugee or an internationally displaced mother).
Amendment 187 #
Proposal for a regulation
Recital 60
Recital 60
(60) Mutual trust in the administration of justice in the Union justifies the principle that final court decisions establishing parenthood in a Member State should be recognised in all Member States without the need for any recognition procedure. In particular, when presented with a final court decision given in another Member State establishing parenthood that can no longer be challenged in the Member State of origin, the competent authorities of the requested Member State should recognise the court decision by operation of law without any special procedure being required and update the records on parenthood in the relevant register accordingly.
Amendment 190 #
Proposal for a regulation
Recital 62
Recital 62
(62) The recognition in a Member State of final court decisions on parenthood matters given in another Member State should be based on the principle of mutual trust. Therefore, the grounds for non- recognition should be kept to the minimum in the light of the underlying aim of this Regulation, which is to facilitate the recognition of parenthood and to protect effectively children’s rights and the best interests of the child in cross-border situations.
Amendment 194 #
Proposal for a regulation
Recital 65
Recital 65
(65) Authentic instruments with binding legal effect in the Member State of origin should be treated as equivalent to ‘final court decisions’ for the purposes of the rules on recognition of this Regulation.
Amendment 198 #
Proposal for a regulation
Recital 67
Recital 67
(67) The recognition in a Member State under this Regulation of a final court decision establishing parenthood given in another Member State, or of an authentic instrument establishing parenthood with binding legal effect drawn up or registered in another Member State, should not imply the recognition of the possible marriage or registered partnership of the parents of the child whose parenthood has been or is to be established.
Amendment 223 #
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 final 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 final court decision or an authentic instrument issued in relation to parenthood in another Member State when doing so would be contrary to the Charter and, in particular, Article 21 thereof, which prohibits discrimination.
Amendment 244 #
Proposal for a regulation
Recital 81
Recital 81
Amendment 269 #
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 ofin proceedings to establish or contest parenthood in a Member State in cross- border situations; common rules for the recognitionenforcement or, as the case may be, acceptancerecognition in a Member State of final 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.
Amendment 279 #
Proposal for a regulation
Article 3 – paragraph 2 – point a
Article 3 – paragraph 2 – point a
(a) the existence, validity or recognition of a marriage or of a relationship deemed by the national law applicable to such relationship to have comparable effects, such as a registered partnership or cohabiting relationship;
Amendment 281 #
Proposal for a regulation
Article 3 – paragraph 2 – point b
Article 3 – paragraph 2 – point b
(b) parental responsibility matters, or the exercise of parental responsibility, such as the attribution, exercise, delegation, total or partial withdrawal of parental responsibility or parental authority;
Amendment 284 #
Proposal for a regulation
Article 3 – paragraph 2 – point i
Article 3 – paragraph 2 – point i
(i) the legsubstantive and procedural 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.
Amendment 292 #
Proposal for a regulation
Article 4 – paragraph 1 – point 1 a (new)
Article 4 – paragraph 1 – point 1 a (new)
1a. 'parent’ means, depending on the circumstances, either the legal parent, the intended parent, the person who claims to be a parent or the person in respect of whom the child claims parenthood.
Amendment 293 #
Proposal for a regulation
Article 4 – paragraph 1 – point 2
Article 4 – paragraph 1 – point 2
2. ‘child’ means a person of any age, including a deceased child or a child who has not yet been born, whose parenthood is to be established, recognised or proved; or contested.
Amendment 320 #
Proposal for a regulation
Article 12 – paragraph 1
Article 12 – paragraph 1
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, with the case immediately being referred to the competent court.
Amendment 325 #
Proposal for a regulation
Article 16 – paragraph 1
Article 16 – paragraph 1
Any law designated as applicable by this Regulation shall be applied whether or not it isonly if it is not manifestly and expressly contrary to the law of a Member State.
Amendment 327 #
Proposal for a regulation
Article 17 – paragraph 1
Article 17 – paragraph 1
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 birthcannot be determined at the time of birth, the law of the State of nationality of the person giving birth or, if that cannot be determined, the law of the State of birth of the child.
Amendment 343 #
Proposal for a regulation
Article 21 – paragraph 1
Article 21 – paragraph 1
The application of the law of any State specified by this Regulation means the application of the rules of substantive and procedural law in force in that State other than its rules of private international law.
Amendment 355 #
Proposal for a regulation
Article 24 – paragraph 1
Article 24 – paragraph 1
1. A final court decision on parenthood given in a Member State shall be recognised in all other Member States without any special procedure being required.
Amendment 358 #
Proposal for a regulation
Article 24 – paragraph 3
Article 24 – paragraph 3
3. Where the recognition of aand execution of a final court decision is raised as an incidental question before a court of a Member State, that court may determine that issue.
Amendment 493 #
Proposal for a regulation
Article 51 – paragraph 1 – subparagraph 1
Article 51 – paragraph 1 – subparagraph 1
The issuing authority shall issue the Certificate without delayin a reasonable timeframe 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.
Amendment 520 #
Proposal for a regulation
Article 55 – paragraph 2
Article 55 – paragraph 2
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 withdrawannul the Certificate where it has been established that the Certificate or individual elements thereof are not accurate.
Amendment 522 #
Proposal for a regulation
Article 55 – paragraph 3
Article 55 – paragraph 3
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 withdrawalannulment thereof.
Amendment 527 #
Proposal for a regulation
Article 56 – paragraph 2 – subparagraph 1
Article 56 – paragraph 2 – subparagraph 1
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 withdrawannul the Certificate or ensure that it is rectified, modified or withdrawn by the issuing authority.
Amendment 554 #
Proposal for a regulation
Article 69 – paragraph 2 – subparagraph 1 – point a
Article 69 – paragraph 2 – subparagraph 1 – point a
(a) a final court decision establishing parenthood in another Member State in legal proceedings instituted prior to [date of application of this Regulation], and