18 Amendments of Jan OLBRYCHT related to 2022/0402(CNS)
Amendment 62 #
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 aims 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 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 64 #
Proposal for a regulation
Recital 5
Recital 5
(5) Under the Treaties, the competence to adopt substantive rules on family law, such as rules on the definition of family and rules on the establishment of the parenthood of a child, lies with the Member States. However, pursuant to Article 81(3) TFEU, the Union can adopt measures concerning family law with cross-border implications, in particular rules on international jurisdiction, on applicable law and on the recognition of parenthood. In accordance with Article 67(1) TFEU the relevant legislation shall respect fundamental rights and the different legal systems of the Member States.
Amendment 88 #
Proposal for a regulation
Recital 18
Recital 18
(18) Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (‘European Convention of Human Rights’) lays down the right to respect for private and family life, while Article 1 of Protocol No. 12 to the said Convention provides that the enjoyment of any right set forth by law must be secured without discrimination on any ground, including birth. The Grand Chamber of the European Court of Human Rights has interpreted Article 8 of the Convention as requiring all States within its jurisdiction to recognise the legalrecognised, in the only case on which it had to rule, Paradiso and Campanelli v Italy (ECHR, 24 January 2017, n° 25358/12), the right of a Member State to not recognise a parenthood established abroad to the orderer of a surrogacy contract. Member States are not required to register the details of the birth certificate of a child born via surrogacy abroad in order to establish the parent- child legal relationship established abroad between a child borwith the orderer mother. The jurisprudence of the European Court of surrogacy and the biological intended parent, and to provide for a mechanism for the recognition in law of the parent- child relationship with the non-biological intended parent (for example through the adoption of the child)54 . _________________ 54 For example, Mennesson v. France (Application no 65192/11, Council of Europe: European Court of Human Rights, 26 June 2014) and Advisory Opinion P16-2018-001 (Request no. P16- 2018-001, Council of Europe: European Court of Human Rights, 10 April 2019)Human Rights, without prejudice to the need for States to identify ways to ensure the protection of the child interest in the legal recognition of the link with those who de facto exercise parental responsibility, has recognised to the States a margin of discretion in identifying the ways in which to formalise the relationship with the orderer of a surrogacy contract. This orientation does not prevent the solution of the non-registration of the foreign document that recognises the parenthood to both the members of the couple that resorted to surrogacy abroad. With regard to the solution of adoption, the European Court of Human Rights has underlined that it can be considered sufficient to guarantee the protection of the rights of minors to the extent that it is capable of constituting a link of real "filiation" between adopter and adopted, and on condition that the modalities provided for by domestic law guarantee the effectiveness and speediness of its implementation, in accordance with the best interest of the child.
Amendment 98 #
Proposal for a regulation
Recital 21
Recital 21
(21) In conformity with the provisions of international conventions and Union law, this Regulation should ensure that children enjoy their rights and maintain their legal status in cross-border situations without discrimination. To that effect, and in the light of the case law of the Court of Justice, including on mutual trust between Member States, and of the European Court on Human Rights, this Regulation should cover the recognition in a Member State of the parenthood established in another Member State irrespective of how the child was conceived or born and irrespective of the child’s type of family, and, including domestic adoption. Therefore, subject to the application of the rules on applicable law of this Regulation, this Regulation should cover the recognition in a Member State of the parenthood established in another Member State of a child with same-sex parents. This Regulation should also cover the recognition in a Member State of the parenthood of a child adopted domestically in another Member State under the rules governing domestic adoption in that Member State.
Amendment 110 #
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 law. Also for the purposes of this Regulation, parenthood should mean the parent-child relationship established in 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 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 parenthoodwhich means the person to which a child has a legally established link of filiation, may it be biologic, genetic, by adoption or by operation of law.
Amendment 127 #
Proposal for a regulation
Recital 31
Recital 31
(31) The requirements for the recording of parenthood in a register should be excluded from the scope of this Regulation. It should therefore be the law of the Member State in which the register is kept that should determine under what legal conditions and how the recording must be carried out, and which authorities are in charge of checking that all requirements are met and that the documentation presented or established is sufficient or contains the necessary information. In order to avoid duplication of documents, the national registration authorities should accept the documents drawn up in another Member State by the competent authorities whose circulation is provided for by this Regulation. In particular, the European Certificate of Parenthood issued under this Regulation should constitute a valid document for the recording of parenthood in a register of a Member State. As the procedure for the issuance of the European Certificate of Parenthood and its contents and effects should be uniform in all Member States as set out in this Regulation, and the European Certificate of Parenthood should be issued in conformity with the rules on jurisdiction and applicable law laid down in this Regulation, the authorities involved in the registration should not require that the European Certificate of Parenthood be first transposed into a national document on parenthood. This should not preclude the authorities involved in the registration from confirming the conditions necessary to establish the authenticity of the European Certificate of Parenthood or from asking the person applying for registration to provide such additional information as required under the law of the Member State in which the register is kept, provided that information is not already included in the European Certificate of Parenthood. The competent authority may indicate to the person applying for registration how the missing information can be provided. The effects of recording the parenthood in a register (for example, depending on the national law, whether registration establishes parenthood or only provides evidence of the parenthood already established) should also be excluded from the scope of this Regulation and be determined by the law of the Member State in which the register is kept.
Amendment 145 #
Proposal for a regulation
Recital 38
Recital 38
(38) This Regulation shouldall respect the different systems for dealing with parenthood matters in the Member States. As regards 'authentic instruments', Member States often empower authorities, such as notaries, administrative authorities or registrars to draw up authentic instruments establishing parenthood with binding legal effect in the Member State in which they have been drawn up or registered (‘authentic instruments with binding legal effect’), or to draw up authentic instruments which have no binding legal effect in the Member State in which they have been drawn up or registered but which have evidentiary effects in that Member State (‘authentic instruments with no binding legal effect’). The term 'empowerment' in this Regulation is to be interpreted autonomously in accordance with the definition of 'authentic instrument' used horizontally in Union instruments and in the light of the objectives of this Regulation.
Amendment 180 #
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, while complying with the Charter of Fundamental Rights of the EU.
Amendment 201 #
Proposal for a regulation
Recital 67
Recital 67
(67) The recognition in a Member State under this Regulation of a 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, shouldall 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 221 #
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, while complying with the Charter of Fundamental Rights of the EU.
Amendment 259 #
Proposal for a regulation
Recital 90
Recital 90
(90) This Regulation respects the fundamental rights and observes the principles recognised in the Charter. In particular, this Regulation seeks to promote the application of Article 7 on everyone’s right to respect for their private and family life, Article 9 on the right to marry and right to found a family, Article 21 prohibiting discrimination, and Article 24 on the protection of the rights of the child.
Amendment 275 #
Proposal for a regulation
Article 2 – paragraph 1
Article 2 – paragraph 1
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, tThis Regulation shall not affect the limitations relating to the use ofpreclude the Member States from using 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.
Amendment 276 #
Proposal for a regulation
Article 2 – paragraph 1 a (new)
Article 2 – paragraph 1 a (new)
1a. Nothing in this Regulation can be interpreted as obliging a Member State to accept the practice of surrogacy, or any of its legal consequences.
Amendment 285 #
2a. (j) the recognition of parenthood of orderers in a surrogacy contract, of children born of surrogacy.
Amendment 328 #
Proposal for a regulation
Article 17 – paragraph 1
Article 17 – paragraph 1
1. The law applicable to the establishment of parenthood shall be the national law of the Statechild ofr 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 oflaw of the State of which one of the parents is a citizen at the Stattime of birth of the child.
Amendment 330 #
Proposal for a regulation
Article 17 – paragraph 2
Article 17 – paragraph 2
Amendment 383 #
Proposal for a regulation
Article 31 – paragraph 1 a (new)
Article 31 – paragraph 1 a (new)
Amendment 427 #
Proposal for a regulation
Article 39 – paragraph 1 a (new)
Article 39 – paragraph 1 a (new)
1a. (f) if the recognition of parenthood induces the tolerance or acceptance of a contract, usually called surrogacy, through which a natural or legal person agrees with a woman that she will carry a child for the purpose of handing it upon birth, or any consequences of such a contract.