Council of the

European Union
Brussels, 21 February 2018
(OR. en)

6108/18

LIMITE

JUSTCIV 29

NOTE
From: the Presidency and the Services of the Commission
To: Working Party on Civil Law Matters (General Questions)
Subject: Council on General Affairs and Policy of the Hague Conference
(13-15 March 2018 )
- Draft coordinated position of the European Union

I. INTRODUCTION

1. The forthcoming meeting of the Council on General Affairs and Policy of The Hague
Conference on 13-15 March 2018 will be deciding on the work programme of The Hague
Conference for 2018-2019 on the basis of the various documents drawn up by the Permanent
Bureau. A draft agenda of the meeting is available on the HCCH website. 1 Under the agenda,
the second day of the meeting will be partly dedicated to the issues of the governance of the
Organisation.

2. The Working Party on Civil Law Matters (General Questions) will discuss at its meeting on 2
March 2018 the suggestions for a coordinated position on the work programme 2018-2019
presented by the Commission and the Presidency and recommend a coordinated position to be
taken by the Union and its Member States at the meeting of the Council on General Affairs
and Policy of The Hague Conference (hereinafter: 'the Council on General Affairs'). A draft
coordinated position is set out below in part II.

1
https://assets.hcch.net/docs/b4220162-4bc1-4a13-9ec9-2839096335f8.pdf

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II. SUGGESTIONS FOR A COORDINATED POSITION ON CERTAIN ISSUES LISTED
UNDER PARTS III-VI OF THE DRAFT AGENDA

A. WORK RELATING TO POSSIBLE NEW (LEGISLATIVE) INSTRUMENTS

(a) Judgments Project (item III.1 on the draft agenda) (Preliminary Doc. No 1, 1A, 1B, 1C)

3. At its 2012 meeting, the Council on General Affairs decided to proceed with the Judgments
Project and decided (a) to establish a Working Group to draft proposals for inclusion in an
instrument relating to the recognition and enforcement of judgments, including jurisdictional
filters, and (b) to establish an expert group to consider the desirability and feasibility of
making provisions in relation to matters of jurisdiction (including parallel proceedings) in this
or another future instrument and to make recommendations on these matters.

4. The first Working Group meeting was held in The Hague from 18 to 20 February 2013 and
the first Experts' Group meeting from 21 to 23 February 2013. While the Working Group
continued to meet and, in October 2015, finalised the draft text of the Convention on the
recognition and enforcement of judgments, there were no further meetings of the Experts'
Group.

5. In 2015, the General Affairs and Policy Council decided to set up a Special Commission to
prepare a draft Convention on recognition and enforcement. In relation to the work on
jurisdiction, the Council endorsed the recommendation of the Working Group that matters
relating to direct jurisdiction (including exorbitant grounds and lis pendens / declining
jurisdiction) should be put for consideration to the Experts’ Group of the Judgments Project
with a view to preparing an additional instrument. In 2016, the Council took the decision that
the Experts’ Group will be convened soon after the Special Commission has drawn up a draft
Convention.

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6. The first meeting of the Special Commission took place in June 2016, followed by a second
meeting in February 2017 and a third meeting, in November 2017. An informal meeting with
the focus on IP matters took place in July 2017, in Ottawa. In the last Special Commission
meeting (November 2017), very good progress towards the preparation of a draft Convention
was made, including on the IP rules. In its report to the Council of 2018 the Special
Commission indicates that 'The Special Commission considers that it would benefit from a
further meeting focused on a limited number of issues that would benefit from further
discussion at a plenary meeting prior to the draft Convention being submitted to a Diplomatic
Session. In order to maintain the momentum of the Project, it recommends that it meet again
in mid-2018, and that a Diplomatic Session be convened in mid-2019, provided that those
timeframes are possible having regard to budgetary and logistical considerations. Further
intersessional work on certain issues would also be desirable.'

7. The Permanent Bureau prepared several preliminary documents for this item: No 1, No 1A,
No 1B and 1C (the last three documents are not available yet). Preliminary Document No 1
(Judgments Project: Report on the Special Commission meeting of November 2017 and next
steps) is aimed at informing the Council about the results of the Special Commission of
November 2017. It also informs about a written voting procedure launched by the Secretary
General on 15 December 2017 (see communication L.c. ON No 85(17)) to seek Council’s
approval with regard to convening a Fourth Meeting of the Special Commission in mid-2108.
Preliminary Document No 1A will be the draft Explanatory Report; Preliminary Doc. No 1B -
the IP paper prepared by the Permanent Bureau, and Preliminary Doc. No 1C will present
progress of the work in the informal working groups.

8. As indicated by the Secretary General in the note launching the written voting procedure and
in Preliminary Doc. No 1, it is expected that following this procedure, when the Council on
General Affairs will meet in March 2018, it will be invited to take note of and confirm the
results of the written voting procedure but it will not reopen the discussion on whether or not
to hold a fourth Special Commission meeting and where such meeting should take place.

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9. Pursuant to the outcome of the vote, the fourth Special Commission will take place on 24 May
in The Hague. As announced by the Secretary General in his communication of 9 February
2018 (L.c. ON No 10(18)), the fourth Special Commission will be of at least 4.5 days and will
take place from Thursday 24 May (10.00 a.m.) until Tuesday 29 May 2018 (5.00 p.m. (at the
latest)) and will be focused on a limited number of specific issues that would benefit from
further discussion at an SC meeting.

10. Against this backdrop, the Council on General Affairs in March 2018 will be called to
confirm further steps towards conclusion of the Judgments Convention (holding last Special
Commission in May 2018 to be followed by the Diplomatic Conference in mid-2019).

11. At the meeting of the Council on General Affairs in March 2018, it is suggested that the
Union 2 welcomes the constructive work and the spirit of compromise of all the participants in
the third Special Commission of November 2017. As to the next steps on the project, the
Union should express its support for the next meeting of the Special Commission to be held in
May 2018, focussed on previously identified matters, and Diplomatic Session to be convened
in mid-2019. The Union should emphasize that one year after the last Special Commission is
needed to prepare for the Diplomatic Conference.

(b) Private international law issues surrounding the status of children, including issues arising
from international surrogacy arrangements (item III.2 on the draft agenda) (Preliminary
Doc. No 2)

12. The Council on General Affairs of April 2012 welcomed the preliminary report on progress
drawn up by the Permanent Bureau and invited the Permanent Bureau to prepare and
distribute a Questionnaire in order to obtain more detailed information regarding the extent
and nature of the private international law issues being encountered in relation to international
surrogacy arrangements, as well as in relation to legal parentage or "filiation" more broadly.

2
To be presented by the Commission.

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13. The Council on General Affairs of April 2013 welcomed the oral update on the work carried
out by the Permanent Bureau, including on the preparation of a questionnaire. As decided by
the Council in 2012, the Permanent Bureau was invited to present its final report to the
Council in 2014. The Questionnaire was distributed to Members after the meeting of the
Council on General Affairs in April 2013.

14. On the basis of the responses to the Questionnaire, the Permanent Bureau drafted Preliminary
Document No 3B where it sets out the results of the survey conducted in 2013 and examines
in detail the desirability and feasibility of further work on the parentage/surrogacy project.
The Permanent Bureau also produced Preliminary Document No 3C of April 2014, which
contains a detailed study of legal parentage and the issues arising from international surrogacy
arrangements.

15. In light of the study and the analysis set out in Preliminary Document No 3B, the Permanent
Bureau considers that the desirability of further international work in this area is clear. Such
further international work might have as its objective to 1) ensure legal certainty and security
of legal status for children and families in international situations and 2) protect the rights and
welfare of children, parents and other parties involved with the conception of children in
international situations, in line with established human rights standards.

16. The Working Party on Civil Law Matters suggested that at the meeting in April 2014 the
Member States and the Union acknowledge their interest in this matter. A cautious approach
to this issue was recommended at the time, indicating that an Experts' Group should first be
set up to examine the feasibility of binding multilateral options, including the possibility of a
binding international instrument. This was subject to sufficient resources available; otherwise
the issue would have to be revised in 2015.

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17. At its meeting in April 2014, the Council welcomed the work carried out by the Permanent
Bureau and agreed that work should continue to further explore the feasibility of drawing up a
multilateral instrument in this area. To this end, the Council invited the Permanent Bureau to
continue information gathering, including obtaining further responses to Questionnaire No 1,
in particular from States where international surrogacy arrangements take place. While the
Council noted the support expressed by a considerable number of Members for the
establishment of an Experts’ Group, it decided to defer the final determination of the matter to
its meeting in 2015.

18. Preliminary Document No 3A from February 2015 contains an updating note listing the
international developments at international and regional level, with specific reference to the
decisions of the European Court of Human Rights on the matter. The Permanent Bureau
reiterates its recommendation on the formation of an Experts' Group to facilitate further
exploration of the feasibility of drawing up a multilateral instrument in this field.

19. The 2015 Council decided that an Experts’ Group be convened to explore the feasibility of
advancing work in this area. The Experts’ Group would have to first consider the private
international law rules regarding the legal status of children in cross-border situations,
including those born of international surrogacy arrangements.

20. On 15-18 February 2016 the Expert Group was convened and the outcome of the meeting is
enshrined in Preliminary Document No.3 of 2016:

The Group determined that, owing to the complexity of the subject and the diversity of
approaches by States to these matters, definitive conclusions could not be reached at the
meeting as to the feasibility of a possible work product in this area and its type or scope. The
Group was of the view that work should continue and at this stage consideration of the
feasibility should focus primarily on recognition. The Group therefore recommends to
Council that the Group’s mandate be continued. In this regard, the Group also recommends
that Council directs the Permanent Bureau to undertake the necessary work with a view to
preparing a next meeting of the Group and allocate resources accordingly (see conclusions
and recommendations as to the future work in the Preliminary Document).

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21. The 2016 Council welcomed the Report of the Experts’ Group on Parentage / Surrogacy.
Noting the progress made at the Group’s first meeting, the Council invited the Group to
continue its work in accordance with its mandate of 2015, and requested the Permanent
Bureau to convene a second meeting of the Group before the next meeting of the Council. The
consideration of the feasibility should focus primarily on recognition.

22. The Experts’ Group met on 31 January-3 February 2017 and the outcome of the meeting is
enshrined in Preliminary Document n.2. of 2017 Council.

23. The Group agreed:

a) in principle, on the feasibility of developing a binding multilateral instrument dealing

with the recognition of foreign judicial decisions on legal parentage. Further consideration
and discussion are needed on how such an instrument could operate;

b) that owing to the diversity of approaches with respect to the determination of legal
parentage and the recognition of the legal parentage when recorded in a public document,
further consideration and discussion are needed in relation to this issue;

c) that owing to the complexity of the subject and the diversity of approaches by States in
cases of ISAs, definitive conclusions could not be reached at this meeting as to the feasibility
of the possible application of future agreed general PIL rules on legal parentage to ISAs
and the possible need for additional rules and safeguards in these cases and in cases of
ART. The Group concluded that further consideration and discussion of these matters are
needed.

The Group therefore recommends to Council that its mandate be continued to work on these
matters, noting the urgency already identified. In this regard, the Group also recommends
that Council direct the Permanent Bureau to undertake the necessary work with a view to
preparing a next meeting of the Group and to allocate resources accordingly.

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24. The 2017 Council invited the Group to continue its work in accordance with its mandate of
2015. Noting the urgency identified by the Group, the Council instructed the Secretary
General to convene a third meeting of the Group before the next meeting of the Council. The
third Experts’ Group meeting should focus on the matters identified above. The Experts’
Group will report to the Council in 2018 March.

25. The Experts’ Group met on 6-9 February 2018 3. The Group, in line with the 2017 mandate
from Council, examined in particular: a) possible provisions with respect to the recognition,
by operation of law, of foreign judicial decisions on legal parentage; b) the feasibility of the
recognition of legal parentage when recorded in a public document; c) whether specific
scenarios (e.g., legal parentage in the context of children born by means of international
surrogacy arrangements (ISAs) or assisted reproductive technology (ART)) warrant a
particular focus or differentiated approach.

26. In relation to point a) the Group identified some basic rules on recognition of legal parentage
and co-operation provisions which could be included in a future legal instrument; concerning
point b) the Group considered whether and if so how, a parent-child status could be
recognised where there is no judicial decision on parentage (for instance through universal
applicable law rules, acceptance of foreign birth certificates as evidence unless they are
successfully contested or by recognition by operation of law of birth certificates recording
legal parentage).

27. In relation to point c), there were different views whether a general instrument could include
also parentage arising from international surrogacy arrangements. Some experts supported the
idea of an Optional Protocol specific to international surrogacy arrangements; the experts also
considered opt-in and opt-out mechanisms that would allow individual States to include (or
exclude) ISAs from the scope of the instrument as it applies to them. By contrast, in relation
to assisted reproductive technology, it was felt, at this stage, that a differentiated approach
was not necessary.

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28. In the light of the above, the Group agreed that two other Experts' meetings would be
necessary: one should focus on refining provisions concerning recognition of foreign judicial
decisions, uniform applicable law rules to parentage and public documents recording
parentage and the other should focus specifically on international surrogacy arrangements and
the need of additional rules and safeguards, including the possibility of a Protocol.

29. The Group therefore recommends to Council that its mandate be continued to work on these
matters, and that Council direct the Permanent Bureau to undertake the necessary work with a
view to preparing two meetings of the Group, to be held prior to the 2019 meeting of the
Council, and to allocate the necessary resources accordingly.

30. Since there is a lack of uniform regulation at EU level on these matters and issues of
parentage/surrogacy are regulated by the national laws of the Member States, it is suggested
that at the meeting of the Council on General Affairs in March 2018 the Union 4 will not
present a common position of the Union as such 5, but the Member States will be expressing
their own position on the subject.

(c) Cooperation in respect of protection of tourists and visitors abroad (item III.3 on the draft
agenda) (Preliminary Doc. No 3 - not yet available)

31. The 2015 Council decided that the Permanent Bureau would have to conduct a study on the
desirability and feasibility of further work in the area of protection of tourists and visitors
abroad, taking into account, inter alia, the compatibility of the topic with the mandate of the
Hague Conference and work conducted in other fora. The Council welcomed the readiness of
the Brazilian Government to fund the hiring of an expert for that purpose. As the funds were
not received in 2015, work was reported to 2016.

32. The 2016 Council welcomed the readiness of the Government of Brazil to fund the hiring of
an expert to the Permanent Bureau, for the purpose of conducting a study on the desirability
and feasibility of further work in this area, taking into account, inter alia, the compatibility of
the topic with the mandate of the Hague Conference and work conducted in other fora.

4
To be presented by the Presidency
5
See document 7106/17, point 22.

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33. The Permanent Bureau has hired an expert and a questionnaire has been circulated to the
Members of the Conference. The EU has prepared a coordinated position on some of the
questions 6.

34. (At the meeting of the Council on General Affairs in March 2018, it is suggested that the
Union 7 confirms its hesitation whether the project comes within the mandate of the Hague
Conference, without however opposing the project as such. If following the discussion, the
item is to be kept on the agenda, the Union could re-iterate its request, subject to available
resources, for a comprehensive feasibility study/impact assessment on the subject, in
particular in relation to the needs of tourists, the number of cases concerned, and the costs
involved for Member States.) 8

(d) Cross-border recognition and enforcement of agreements reached in the course of family
matters involving children (item III.4 on the draft agenda) - Preliminary Doc. No 4-

35. In 2012, the Council on General Affairs mandated the establishment of an Experts’ Group to
carry out further exploratory research on cross-border recognition and enforcement of
agreements reached in the course of international child disputes, including those reached
through mediation, taking into account the implementation and use of the 1996 Convention.
Such work shall comprise the identification of the nature and extent of the legal and practical
problems, including jurisdictional issues and an evaluation of the benefits of a new
instrument, whether binding or non-binding, in this area. In accordance with this mandate, the
Experts’ Group held its first meeting from 12 to 14 December 2013.

6
See Document 6280/1/17.
7
To be presented by the Commission.
8
To be revised when Prel. Doc. 3 will become available.

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36. At its meeting in April 2014, the Council on General Affairs invited the Permanent Bureau to
circulate a questionnaire and to convene another meeting of the Experts' Group to consider
further the role that existing Hague Family Law Conventions play in cross-border recognition
and enforcement of agreements in international child disputes, as well as the impact that an
additional instrument might have on the practical use and "portability" of these agreements
across borders.

37. The Experts’ Group met for the second time from 2 to 4 November 2015. Discussions
focussed on the two possible options raised during the previous meeting in 2013, namely,
first, to examine the 'portability' of package agreements of parents concluded in family
matters involving children under the existing Hague Family Law Conventions, and second, to
explore the feasibility and appropriateness of a new binding instrument that would give legal
effect to such agreements in a more cost effective and simple way.

38. The Expert Group recommended the Council on General Affairs that its mandate be
prolonged in order to continue work on two future instruments:

39. First, it was found desirable to now develop recommendations (in the form of a "non-binding
navigation tool") the purpose of which would be to provide best practices on how an
agreement made in the area of family law involving children can be recognised and enforced
in a foreign State under the existing Hague Family Law Conventions.

40. In addition to that, work should be continued in order to explore and begin to develop a
binding legal instrument facilitating the cross-border 'portability' of family law settlements
between parents. Such an instrument would establish a “one-stop shop” for agreements in a
cross-border context pertaining to custody, access, child support and other financial
arrangements (including property issues) and provide more party autonomy by giving parents
the possibility of selecting an appropriate authority. The instrument would allow for the
conferral of jurisdiction exclusively on one court or authority for the approval of such
agreements and would provide for simple mechanisms for recognition and enforcement of the
decision of that court or authority. It will build on and supplement the 1980, 1996 and 2007
Hague Conventions.

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41. With a view to preparing the next meeting of the Experts’ Group, it was suggested that the
Permanent Bureau organise inter-sessional work towards the development of a draft
navigation tool in co-operation with members of the Experts’ Group. Resources permitting,
work towards the development of a binding legal instrument would have also been started.

42. At the meeting of the Council on General Affairs in March 2016, the Union took note of the
conclusions and voiced support for the recommendations submitted by the Expert Group to
the Council on General Affairs.

43. The 2016 Council welcomed the Report of the second Experts’ Group meeting and decided to
mandate the Permanent Bureau to develop a non-binding “navigation tool” to provide best
practices on how an agreement made in the area of family law involving children can be
recognised and enforced in a foreign State under the 1980, 1996 and 2007 Hague
Conventions. The work should have been carried out in consultation with members of the
Experts’ Group; if necessary, a meeting of the Group could have been convened.

44. It was also decided that the need for and feasibility of developing a binding instrument in this
field would have been revisited by Council in 2017, based on further information which will
result from the work on the navigation tool. However, no decision was taken at the 2017
Council as work on the "navigation tool" was still on-going. On 13 October 2017, during the
7th Special Commission on the 1980 and 1996 Conventions, the Chair of the Expert's Group,
Professor Paul Beaumont, gave a presentation of the work undertaken so far by the Experts'
Group. However, only an incomplete draft of the "navigation tool" was ready for the
consideration of the Special Commission. It was felt by participants that work should continue
and that it was too soon to decide whether an international instrument on the subject should be
envisaged. In preliminary document n.4, the Permanent Bureau recalls that the comments
made by the participants to the 7th Special Commission revealed that there was a notable
divergence in determining the moment when the habitual residence of the child shifts in the
case of a non-return agreement following an application for return under the 1980 Child
Abduction Convention. This would have consequences on the recognition and enforcement of
the agreement. It is therefore suggested to convene another meeting of the Expert Group in
late 2018 to discuss this issue and other outstanding matters.

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 The Draft Practical Guide could be then revised together with the conclusions of the Experts'
Group regarding the desirability and feasibility of developing a new binding instrument. The
Permanent Bureau will report to Council in 2019.

45. At the meeting of the Council on General Affairs in March 2018, it is suggested that the
Union 9, resources permitting, supports the continuation of the work of the Experts 'Group in
order to discuss outstanding issues and to revise accordingly the Draft Practical Guide. The
Union may also express the wish that sufficient time should be given to HCCH Members to
comment on the final version of the Draft Practical Guide before its final adoption.

(e) Recognition and enforcement of foreign civil protection orders (item III.5 on the draft
agenda) (Preliminary Doc. No 5)

46. This item was included on the list of new topics at the request of the Council on General
Affairs of 2011. The Council decided at its meeting in 2012 that the Permanent Bureau should
circulate a Questionnaire to Members in order to assess the need for and feasibility of an
instrument in this area and to obtain further information.

47. A Questionnaire (see Preliminary Document No 4A of November 2012) was distributed in

November 2012 and the Permanent Bureau produced a written report (Preliminary Document
No 4B) for the attention of the Council on General Affairs.

48. At the meeting of the Working Party on Civil Law Matters on 31 January 2013 the
Commission presented a draft coordinated EU reply to parts IV and VI (Question 21 on the
features of the potential instrument, if any) of the Questionnaire. It was agreed that in reply to
Question 21 the EU would express some concerns, formulated in a general manner, about the
utility of working on a global instrument that would not comprehensively cover all types of
protection measures (civil and criminal measures). At the 2013 General Affairs Council, the
Union indicated that it had hesitations about The Hague Conference launching work in this
field at this stage. However, should the Hague Conference decide to engage in the preparation
of a global instrument for the recognition and enforcement of protection measures, the EU
would participate in possible reflections on this topic. The EU instruments in this field could
serve as a source of inspiration for any work at international level in this area.

9
To be presented by the Commission.

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49. In 2013, the Council on General Affairs, in its conclusions and recommendations, “[…]
welcomed the work carried out by the Permanent Bureau and invited it to continue
exploratory work, including further comparative research (such as a country profile) and
investigation on the feasibility of a future instrument. The Permanent Bureau may, resources
allowing, convene an Experts’ Group to assist in carrying out this work”.

50. A meeting of an Experts' Group took place on 12-13 February 2014 (see Preliminary
Document No 4 of March 2014). The experts recommended that the feasibility of a binding
instrument be explored further with the assistance of the experts' group. In addition, the
experts agreed that other tools, such as a country profile, should be explored further in order
to be used in combination with a binding instrument. Finally, the experts recommended that
practical experience be drawn from the experience of national and regional instruments, as
well as from the 1996 Hague Child Protection Convention. In this context, it was highlighted
that Regulation (EU) No 606/2013 on mutual recognition of protection measures in civil
matters would represent a key test field for the feasibility of a world-wide instrument.
However, it was also noted that this instrument will enter into application only in January
2015 and that it is complemented by a Directive dealing with protection measures under
criminal law.

51. At the meeting of the Council on General Affairs in April 2014, the Union expressed
hesitations about The Hague Conference launching work in this field at this stage, considering
that there was not yet any experience on how the EU instruments will work in practice.
Moreover, it was also suggested that private international law measures may not be the best
means to address at international level the issue of domestic violence, stalking and similar
matters. Finally, given that The Hague Conference's work is limited to civil and commercial
matters, it was noted that any instrument excluding from its scope protection measures issued
under criminal law could not be entirely effective; an international approach requires to take
into account the reality that domestic violence is regulated across Members in very diverging
ways including both civil and criminal measures. It was also indicated that international
action on this matter is not a priority for the Union.

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52. In 2014, the Council on General Affairs, in its conclusions and recommendations,"[…]
welcomed the Report of the Experts’ Group meeting of February 2014 and the useful progress
made in those discussions. The Council invited the Permanent Bureau to continue exploratory
work, including the collection of additional statistical information and comparative
information on national law using the draft Country Profile (Prel. Doc. No 4 B). The
Permanent Bureau may then reconvene the Experts’ Group, if necessary.

53. At the meeting of the Council on General Affairs in March 2015, the Union reiterated its
doubts on the feasibility of any possible future international work in this area, taking into
account that such work could not accommodate the wide diversity of protection orders (i.e. of
a civil, criminal and administrative nature). Moreover, the fact that the EU instruments have
only recently entered into application does not allow drawing conclusions based on their
implementation.

54. The 2015 Council welcomed the additional statistical and comparative information on
national law collected by the Permanent Bureau. The Council invited the Permanent Bureau,
subject to available resources, to continue exploratory work on this topic, including in relation
to addressing the diversity of types of legal regimes (e.g., orders issued under civil,
administrative or criminal law) in the field of protection orders.

55. At the meeting of the Council on General Affairs in March 2016, the Union reiterated the
doubts already expressed on the feasibility of the subject, stressing that this is not a priority
for the Union, also taking into account the need of the Conference to prioritize its work in the
light of the available resources. It is important for the Union that the Conference focusses on a
small number of possible flagship projects, not spending resources on matters which will most
probably not lead to concrete results.

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56. The Union also recalled the Council that the EU funded an international research study
(POEMS project) that made an inventory of protection order legislations in the EU Member
States ahead of the implementation of the new EU instruments on mutual recognition. The
final study and 27 national reports are available at the website of the project. It offers a
comparative description of the national laws on protection orders that could be of avail for the
work, if any, of the Conference: http://poems-project.com/results/country-data/.

57. The 2016 Council welcomed the oral update provided by the Permanent Bureau and invited it,
subject to available resources, to continue exploratory work on this topic and to prepare a
short note to the Council in 2017.

58. However, in 2017 there has been only an oral update on the issue as important meetings on
the matter were already scheduled and their outcome would possibly feed the discussion
with a view to take a decision at the 2018 Council. These meetings were, in particular, the
Experts’ meeting on issues of domestic / family violence and the 1980 Hague child abduction
convention on 12 June 2017 in London and the Special Commission on the operation of the
1980 and 1996 Conventions (The Hague, 10-17 October 2017).At the meeting in March it is
suggested that the Union 10takes note of the explanatory work carried out by the Permanent
Bureau and reiterates the position taken at the 7th Special Commission on the 1980 and 1996
Convention. The Union has not considered so far this project as a priority, also in the light of
the need of the Conference to prioritize its work taking into account available resources.

59. The EU instruments have only recently enter into application and it is premature to draw
conclusions based on their implementation. A first report on the application of the European
Protection Order – criminal matters – is due in 2018. From the information gathered so far, it
seems that it has been used only a few times in the EU.

10
To be presented by the Commission.

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60. Therefore, at the meeting of the Council on General Affairs in March 2018, the Union 11
should express its preference for not keeping the issue on the agenda. In a spirit of
compromise, in case the majority of Members of the Conference decide to maintain the issue
on the agenda, the EU should not oppose, resources permitting, reconvening the Experts'
Group in 2018-2019 in order to explore the different options highlighted in Preliminary
Document No.5 and make concrete recommendations to the Council as to the best approaches
to be taken in a new international instrument in this area.

(f) Joint project of the Secretariats of UNCITRAL, UNIDROIT and the HCCH for the
development of a Guide to uniform legal instruments in the area of international
commercial contracts (with a focus on sales) (item III.6.b on the agenda) (Preliminary Doc.
No 6)

61. It is to be reminded that according to the Preliminary Document No 6 submitted to the

Council on General Affairs in 2016, the goal of the cooperation in the area of international
commercial contract law would be "to guide across a range of relevant issues, from choice of
law to identification, among existing texts, of those most suitable for each type of transaction.
That document would reference relevant uniform texts of a legislative, contractual or other
nature. It could also examine how existing texts and standards relate to emerging issues such
as the legal treatment of global supply chains." The work would not involve new legislative
work but would "analyse existing texts, coordinate them by highlighting mutual relationships
and consolidate them…". The document further explained that "one important dimension of
the suggested work would be to refer, as appropriate, to relevant texts developed by other
intergovernmental organisations, including at the regional level, and by the private sector.
Those references would be prepared in consultation with the relevant institutions, in line with
the usual inclusive approach of the HCCH, UNIDROIT and UNCITRAL." The document
suggested that a small panel of experts will be set up to work out the scope and methodology
of the project, reflecting different legal traditions and economic development, as well as other
organisations active in this field.

11
To be presented by the Commission.

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62. The Council on General Affairs in 2016 welcomed the proposal and directed the Permanent
Bureau to co-operate with the Secretariats of UNCITRAL and UNIDROIT in preparing an
explanatory text in the area of international commercial contract law (with a focus on sales).

63. The Council on General Affairs in 2017 heard the report from the Permanent Bureau on the
progress made and directed it to continue co-operation with the Secretariats of UNCITRAL
and UNIDROIT and the designated experts in the drafting of the text. The coming Council on
General Affairs in March 2018 will be invited to approve the timeline for the finalisation of
the project.

64. Preliminary Document No 6 of 2018 submitted to the Council on General Affairs further
clarifies (see para 5) that The Guide will deal with both instruments on substantive law of
sales as well as those on private international law. In this respect, the Hague Principles on
Choice of Law in International Commercial Contracts (Hague Principles) will be addressed
in detail; to some extent, the Hague Convention of 30 June 2005 on Choice of Court
Agreements will also be touched upon. Substantive law of sales will include UNCITRAL
instruments, such as, the United Nations Convention on Contracts for the International Sale
of Goods (Vienna, 1980) (CISG), the United Nations Convention on the Limitation Period in
the International Sale of Goods (New York, 1974), and the UNIDROIT Principles of
International Commercial Contracts. The Guide will also contain regional instruments and
models or guiding texts developed by other organisations, such as the ICC Model
International Sale Contract and the ITC Model Contracts for Small Firms.

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65. In Preliminary Document No 6, the Permanent Bureau presents the recent state of play and
tentative timelines for finalising the project. The group of five experts was established and
had the first in-person meeting in October 2017. The Group is aimed at representing different
legal traditions and geographical backgrounds and thus includes, amongst other experts,
Professor Pilar Perales Viscasillas (Universidad Carlos III de Madrid, Spain) and Professor
Stefan Vogenauer (Max Planck Institute for European Legal History, Germany). The Group
developed a detailed table of contents, containing the following five chapters: Introduction;
Determination of the Law Applicable to International Commercial Contracts; Substantive
Law of Sales; Recurring Legal Issues Arising in connection with Sales Contracts; Guidance
for Specific Business Sectors (optional). As indicated in the document, to enhance the
usefulness of the Guide and ensure its wide outreach, the three Secretariats agreed to consult
relevant stakeholders, including associations of both judges and practitioners, for comments
before seeking the formal approval of their respective governing bodies. The following
tentative timelines to finalise the project have been agreed by the Secretariats and experts (see
para 10):

- end of March 2018: experts to submit the first draft to the full Experts’ group;

- end of April 2018: comments on the first draft among the Experts’ group;

- end of May 2018: consolidation of all comments and circulation of the consolidated
first draft to the stakeholders;

- October 2018: organisation of a panel during the IBA Annual Conference in Rome;

- May 2019: submission of a revised draft to the UNIDROIT Governing Council in

March 2019 for consideration and comments in May 2019;

- March 2020: submission of a further revised draft to the HCCH Council at its meeting
in 2020 for approval;

- May 2020: submission of a further revised draft to the UNIDROIT Governing Council
for formal approval;

- July 2020: formal adoption of the Guide in the framework of the CISG 40th anniversary
celebrations at UNCITRAL.

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66. As to the consultation of the Members of the Hague Conference in the course of the project,
the Permanent Bureau also notes in the document that the provisional versions of the table of
contents and of available texts could be shared with the Members and any feedback from the
members is welcome at any stage of the project.

67. In the Council on General Affairs of 2016, the EU expressed rather cautious approach on the
initiative 12. In the Council on General Affairs of 2017, the Union supported further work on
the project that should not take too many resources from the Permanent Bureau.

68. As this work strand has been already agreed in the Council on General Affairs of 2016 and is
advancing, it is recommended that the Union 13 supports further work on the project with the
aim to finalise it according to suggested timelines, including planned submission of a draft to
the Council on General Affairs at its meeting in 2020 for approval. While the suggested
tentative timelines do not include a clear step of consulting the Members of the Conference on
the draft of the project before submitting it to the Council for approval, it should be indicated
that feedback from the EU can be provided, if felt appropriate, in the course of the procedure
(see above and para 11 of Preliminary Doc. No 6).

(g) Joint project WIPO-HCCH Guide on “When Private International Law meets Intellectual
Property Law – A Guide for Judges” (oral report)

69. In 2016, the WIPO suggested to the Hague Conference developing a resource tool aimed at
improving understanding on the intersection between intellectual property and private
international law. The tool should "explain basis private international law issues […]
referencing existing instruments and examples of court judgments" (see Preliminary
Document No 10 of 2016). The target of the resource tool would be stakeholders involved in
matters of intellectual property, like judges, legal counsellors, legislators.

12
See document 6094/1/16, REV 1, paragraphs 59 to 61.
13
To be presented by the Commission.

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70. At the meeting of the Council on General Affairs in March 2016, the EU expressed a positive
approach towards the initiative, insofar as it remains limited to raising awareness of the
intersection between intellectual property law and private international law. The tool could be
helpful to improve understanding of this intersection and thus prepare the ground for potential
later projects on the matter.

71. The Council on General Affairs of 2016 welcomed the proposal submitted by WIPO of
developing a resource tool addressing the intersection between private international law and
intellectual property law, in co-operation with the Hague Conference and directed the
Permanent Bureau to assist in this project. Members were invited to provide the Permanent
Bureau with suggestions regarding experts or issues to be considered. In welcoming the
proposal, Council noted that the envisaged costs for The Hague Conference relating to this co-
operation are minimal.

72. In Preliminary Document No 7 of 2017, the Permanent Bureau reported on the progress made,
including on selected experts to co-draft the Guide (the Honourable Dr Anabelle Bennett
(Australia) and judge Samuel Granata (Belgium)).

73. The Council on General Affairs of 2017 welcomed (see para 18-19 of the conclusions and
recommendations) the progress WIPO and the HCCH made on developing a resource tool
addressing the intersection between private international law and intellectual property law.
The Council directed the Permanent Bureau to circulate a draft Resource Tool later this year,
and invited Members to submit comments within a maximum of three months after the
circulation of the draft Resource Tool.

74. The Permanent Bureau, together with the WIPO Secretariat and co-authors, will then review
any received comments and finalise the Resource Tool. The Council noted that, subject to
available resources, an Experts’ Meeting may be convened, in co-ordination with the WIPO
Secretariat, to facilitate the finalisation of the Resource Tool. Further to its consideration of
the Resource Tool by the relevant WIPO organs, the final version of the Resource Tool will be
submitted to Council for approval.

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75. On 12 December 2017, in accordance with the agreed mandate, the draft WIPO-HCCH Guide
When Private International Law Meets Intellectual Property Law – A Guide for Judges was
circulated by the Permanent Bureau for comments by the Members of the Conference with the
deadline of 28 February 2018. The Bureau indicated that the draft Guide has been presented
to the Member States of WIPO, at the 12th Session of the WIPO Advisory Committee on
Enforcement (ACE), which took place from 4 to 6 September 2017, in Geneva,
Switzerland. It has subsequently benefited from the review of invited external experts from
different jurisdictions.

76. As discussed in the the Working Party on Civil Law Matters (General Questions) in January
2018, the EU aims at providing comments on the draft Guide, if possible, by the deadline of
28 February.

77. As to the next steps, the Permanent Bureau, depending on the nature of the comments
received and the time required to reflect upon them and incorporate them into the draft Guide,
expects to be able to submit, shortly before the meeting in March 2018, a final version of the
text to the Council on General Affairs for approval. In the event that the final version is not
available in due time for the Council meeting, the Permanent Bureau will seek a mandate
from Council to commence a written voting procedure in line with the outcome of the
discussions that may take place during the Council in relation to the procedure for conducting
written votes.

78. It is suggested that the Union 14 at the meeting of the Council on General Affairs in March
2018 welcomes the advanced work on this project and supports the steps suggested by the
Permanent Bureau towards the finalisation of the Guide. If the final version of the draft Guide
is submitted for approval by the Council on General Affairs already in March 2018 in
sufficient time to assess its final content, the EU should support approval of the Guide in the
coming Council.

14
To be presented by the Commission.

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(h) New proposal for the establishment of an Expert Group regarding the transfer of funds in
relation to the international recovery of child support and other forms of family
maintenance

79. Ahead of the meeting in March, Switzerland has contacted the Commission asking its views
on a possible proposal for the establishment of an Expert Group regarding the transfer of
funds in relation to the international recovery of child support and other forms of family
maintenance (2007 Hague Convention).

80. As reported by Switzerland, recent changes in banking practice (such as the refusal by more
and more banks to accept paper checks) and technological or regulatory requirements
(including national rules prohibiting Central Authorities to open bank accounts in foreign
countries) seriously hamper the success of the international maintenance recovery system:
− The transfer of funds from the debtor to the creditor sometimes takes several months.
− High fees and currency conversion rates can cut by half the maintenance.
− Moreover, in an increasing number of cases, the transfer of funds is not possible at all,
thereby jeopardizing the functioning and the very raison d'être of the 2007 Child
Support Convention.

81. During the last years, many bilateral attempts have tried to address these new challenges,
resulting in a complex, costly and often highly inefficient patchwork of diverging case-by-
case solutions. In some cases, no solution is available at all, resulting in the closure of the file
due to the lack of fund-transfer options.

82. As suggested by Switzerland, an Expert Group should examine the current problems and
analyse possibilities for improving the cross-border transfer of maintenance funds, e.g.
exploring options inside the i-Support system.

83. Indeed, at this moment, i-Support provides only for the monitoring of the transfer of funds. It
does not provide for the transfer of funds per se. This is a feature that will be developed at a
later moment as decided by the States participating in i-Support.

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84. In any case, the problem of the transfer of funds is not confined to i-Support: States transfer
funds regardless whether they use i-Support. Moreover, the establishment of an Expert Group
would allow the participation of other States than those participating in i-Support.

85. It is therefore suggested that the Union 15 at the meeting of the Council on General Affairs in
March 2018, subject to available resources, supports the establishment of an Expert Group
regarding the transfer of funds in relation to the international recovery of child support and
other forms of family maintenance.

B. REPORTING ON POST-CONVENTION ACTIVITIES AND ASSISTANCE

ACTIVITIES (AGENDA POINT IV)

International legal co-operation and litigation

1961 Apostille Convention (Authentication of documents generated by supranational and

intergovernmental organisations – Report of the Working Group (item IV.2.a. on the draft
agenda) (Preliminary Doc. No 7)

86. Following to the conclusions and recommendations of the Special Commission on the
Practical Operation of the Apostille Convention in 2016, the Working Party on Civil Law
Matters (General Questions) agreed 16 that the issue of authentication of documents generated
by supranational and intergovernmental organisations was worth looking into and that the EU
was therefore open to participate in the proposed Working Group at the Hague Conference.

87. At the meeting of the General Affairs and Policy Council in March 2017, the Union supported
the proposed establishment of a Working Group on the Authentication of Documents
Generated by Supranational and Intergovernmental Organisations.

15
To be presented by the Commission.
16
See Doc. 7106/17, point 81.

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88. The meeting of this Working Group took place on 1 December 2017, where 8 EU Member
States participated and 2 EU representatives joined as observers. The EU representative
indicated during that meeting that the Union institutions or agencies concerned (for example,
the Commission, the European Medicine Agency, the EU Intellectual Property Office, the
Court of Justice) have developed internal procedures to prove the authenticity of the
documents they issue when they need to be presented in third countries, and that the Union
does not therefore consider it necessary to take any action on the matter.

89. As a result of the meeting, the Working Group adopted the following recommendations for
cases where there is a need to authenticate documents generated by supranational and
intergovernmental organisations for use in another Contracting Party:

"i. the relevant Competent Authority of the host State, in possession of the required
sample signatures and seals of the officials that issue such documents for the
organisation in question, may directly apostillise the documents;

ii. a notary of the host State may first authenticate the document or a copy of the
document and this notarial authentication is subsequently apostillised by the relevant
Competent Authority;

iii. a government office or authority, which holds the required sample signatures and
seals of the officials that execute such documents for the organisation in question, may
be designated by the host State to act as an intermediary for the purposes of
authenticating such documents and this authentication is subsequently apostillised by
the relevant Competent Authority 17.

90. The Working Group also concluded that "at this stage, it was not necessary to develop a
protocol to the Convention, nor for Contracting Parties to consider designating entities
within a supranational or intergovernmental organisation as Competent Authorities" 18.

17
See Preliminary Document No 7, point 3.
18
See Preliminary Document No 7, point 4.

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91. It is suggested that at the meeting of Council on General Affairs and Policy of the Hague
Conference in March 2018, the Union 19 welcomes the work of the Working Group on the
Authentication of Documents Generated by Supranational and Intergovernmental
Organisations and endorses its conclusions and recommendations, which are of a voluntary
nature.

C. GOVERNANCE OF THE ORGANISATION

(a) Proposal for establishing a Working Group to consider the future procedure for appointing
Secretaries General of the HCCH (Proposal by the Chair) (Preliminary Doc. No 13);

92. Under agenda point VI, several issues related to the governance of the Organisation will be
discussed, inter alia, a proposal for establishing a Working Group to consider the future
procedure for appointing Secretaries General of the HCCH.

93. At present, Article 5(1) of the Statute of the Hague Conference on Private International Law
provides that the Permanent Bureau of the HCCH "shall be composed of a Secretary General
and four Secretaries who shall be appointed by the Government of the Netherlands upon
presentation by the Standing Government Committee". However, the Council on General
Affairs and Policy does not have a standard procedure for advising the Standing Government
Committee of its preferences in relation to appointments to the position of Secretary General.

19
To be presented by the Presidency.

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94. In the Council on General Affairs and Policy meeting in 2017, discussions have shown that
there is a need to have such a standard procedure for appointing the Secretaries General of the
HCCH 20. In order to set out this process the Chair of Council on General Affairs and Policy
proposed in the Preliminary document No 13 to establish a Working Group that would
elaborate this procedure. It is suggested that this Working Group would consist of:

"– the Chair;

– the President of the Netherlands Standing Government Committee on Private

International Law; and
– seven other representatives from Members of the HCCH." 21

95. In Preliminary document No 13 it is suggested that members of the Hague Conference who
wish to participate in that Working Group would notify this to the Chair no later than
1 April 2018.

96. Considering the importance of good functioning and smooth governance of the HCCH for the
EU and its Member States, it is suggested that at the meeting of the Council on General
Affairs in March 2018, the Union and its Member States 22 support the establishment of the
proposed Working Group.

(b) Update on new Strategic Plan and adoption of Policy on the framework for Regional
Presence (Preliminary Doc. No 14) [Possibly, to be completed once the Preliminary Doc. No
14 becomes available]

20
See Preliminary Document No 13, point 1.
21
See Preliminary Document No 13, point 10.
22
To be presented by the Presidency.

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