The Implications of the European Union's Exclusive Competence with Regard to the Child Abduction Convention

Abstract

THE BASIS AND EXTENT OF THE EXCLUSIVE COMPETENCE OF THE EU CONCERNING INTERNATIONAL CHILD ABDUCTION The jurisprudence of the Court of Justice has significantly expanded the role played by the EU in its external relations in the field of private international law. In Opinion 1/03, the Court stated that the European Community (now the Union) had exclusive competence to conclude the revised Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, notwithstanding the fact that this Convention also covers matters that are not regulated by EC rules, such as the recognition of judicial decisions rendered in non-Member States. The Court of Justice gave as a reason for the exclusive competence of the European Community the fact that the Lugano Convention may affect common rules or alter their scope. This criterion for exclusive competence, which had first been expressed in the ERTA judgment, has since been incorporated by the Lisbon Treaty in Article 3(2) of the TFEU. In Opinion 1/13, the Court of Justice relied on the latter provision of the TFEU to assert the exclusive competence of the EU as regards the acceptance of accessions to the 1980 Hague Convention on the civil aspects of international child abduction by non-Member States (‘third States’).3 The reference to ‘third States’, which appears in the operative part of Opinion 1/13, corresponds to the meaning of the Commission's request, which referred to ‘accession of a non-Union country’. 4 Both the request and the operative part of Opinion 1/13 could have been more precise. Articles 37 and 38 of the Convention state that an acceptance of the accession is not required for any acceding State which, unlike the Member States of the Union, is not yet a party to the Convention, but only for those acceding States that were not ‘Members of the Hague Conference on Private International Law at the time of its Fourteenth Session’