SECTION 2 Recognition and enforcement of certain privileged decisions

Article 42Scope1.

This Section applies to the following types of decision provided that they have been certified in the Member State of origin in accordance with Article 47:

(a)

decisions in so far as they grant rights of access; and

(b)

decisions pursuant to Article 29(6) in so far as they entail the return of the child.

This Section shall not prevent a party from seeking recognition and enforcement of a decision referred to in paragraph 1 in accordance with the provisions on recognition and enforcement laid down in Section 1 of this Chapter.

Subsection 1 Recognition

Article 43Recognition1.

A decision referred to in Article 42(1) given in a Member State shall be recognised in the other Member States without any special procedure being required and without any possibility of opposing its recognition unless and to the extent that the decision is found to be irreconcilable with a later decision as referred to in Article 50.

A party who wishes to invoke in a Member State a decision referred to in Article 42(1) given in another Member State shall produce the following:

(a)

a copy of the decision, which satisfies the conditions necessary to establish its authenticity; and

(b)

the appropriate certificate issued pursuant to Article 47.

Article 31(2) and (3) shall apply accordingly.

Article 44Stay of proceedings

The court before which a decision referred to in Article 42(1) given in another Member State is invoked may stay its proceedings, in whole or in part, where:

(a)

an application has been submitted alleging the irreconcilability of that decision with a later decision as referred to in Article 50; or

(b)

the person against whom enforcement is sought has applied, in accordance with Article 48, for the withdrawal of a certificate issued pursuant to Article 47.

Subsection 2 Enforceability and enforcement

Article 45Enforceable decisions1.

A decision referred to in Article 42(1) given in a Member State which is enforceable in that Member State shall be enforceable under this Section in the other Member States without any declaration of enforceability being required.

For the purposes of enforcement in another Member State of a decision referred to in point (a) of Article 42(1), the courts of the Member State of origin may declare the decision provisionally enforceable notwithstanding any appeal.

Article 46Documents to be produced for enforcement1.

For the purposes of enforcement in a Member State of a decision referred to in Article 42(1) which was given in another Member State, the party seeking enforcement shall provide the authority competent for enforcement with:

(a)

a copy of the decision, which satisfies the conditions necessary to establish its authenticity; and

(b)

the appropriate certificate issued pursuant to Article 47.

For the purposes of enforcement in a Member State of a decision referred to in point (a) of Article 42(1) which was given in another Member State, the authority competent for enforcement may, where necessary, require the applicant to provide a translation or transliteration, in accordance with Article 91, of the translatable content of the free text fields of the certificate which specifies the obligation to be enforced.

For the purposes of enforcement in a Member State of a decision referred to in Article 42(1) which was given in another Member State, the authority competent for enforcement may require the applicant to provide a translation or transliteration, in accordance with Article 91, of the decision if it is unable to proceed without such a translation or transliteration.

Subsection 3 Certificate for privileged decisions

Article 47Issuance of the certificate1.

The court that has given a decision as referred to in Article 42(1) shall, upon application by a party, issue a certificate for:

(a)

a decision granting rights of access, using the form set out in Annex V;

(b)

a decision on the substance of rights of custody entailing the return of a child and given pursuant to Article 29(6), using the form set out in Annex VI.

The certificate shall be completed and issued in the language of the decision. The certificate may also be issued in another official language of the institutions of the European Union requested by a party. This does not create any obligation for the court issuing the certificate to provide a translation or transliteration of the translatable content of the free text fields.

The court shall issue the certificate only if the following conditions are met:

(a)

all parties concerned were given an opportunity to be heard;

(b)

the child was given an opportunity to express his or her views in accordance with Article 21;

(c)

where the decision was given in default of appearance either:

(i)

the person defaulting was served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable that person to arrange for his or her defence; or

(ii)

it is established that the person defaulting accepted the decision unequivocally.

Without prejudice to paragraph 3 of this Article, the certificate for a decision referred to in point (b) of Article 42(1) shall only be issued if, in giving its decision, the court has taken into account the reasons for and the facts underlying the prior decision given in another Member State pursuant to point (b) of Article 13(1), or Article 13(2), of the 1980 Hague Convention.

The certificate shall take effect only within the limits of the enforceability of the decision.

No challenges other than those referred to in Article 48 shall lie against the issuance of the certificate.

Article 48Rectification and withdrawal of the certificate1.

The court of the Member State of origin as communicated to the Commission pursuant to Article 103 shall, upon application, and may, of its own motion, rectify the certificate where, due to a material error or omission, there is a discrepancy between the decision and the certificate.

The court referred to in paragraph 1 of this Article shall, upon application or of its own motion, withdraw the certificate where it was wrongly granted, having regard to the requirements laid down in Article 47. Article 49 shall apply accordingly.

The procedure, including any appeal, with regard to the rectification or withdrawal of the certificate shall be governed by the law of the Member State of origin.

Article 49Certificate on lack or limitation of enforceability1.

Where and to the extent that a decision certified in accordance with Article 47 has ceased to be enforceable or its enforceability has been suspended or limited, a certificate indicating the lack or limitation of enforceability shall, upon application at any time to the court of the Member State of origin as communicated to the Commission pursuant to Article 103, be issued, using the standard form set out in Annex VII.

Subsection 4 Refusal of recognition and enforcement

Article 50Irreconcilable decisions

The recognition and enforcement of a decision referred to in Article 42(1) shall be refused if and to the extent that it is irreconcilable with a later decision relating to parental responsibility concerning the same child which was given:

(a)

in the Member State in which recognition is invoked; or

(b)

in another Member State or in the non-Member State of the habitual residence of the child provided that the later decision fulfils the conditions necessary for its recognition in the Member State in which the recognition is invoked.