Commission proposes to better guarantee the rights of adults in need of protection or support in cross-border situations

This article is brought to you in association with the European Commission.

Today, the Commission is proposing new rules aimed to ensure that the protection of adults is maintained in cross-border cases, and that their right to individual autonomy, including the freedom to make their own choices as regards their person and future arrangements is respected when they move within the EU. The proposals cover adults who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their own interests. This could be in connection with an age-related disease, such as Alzheimer’s disease, or resulting from a health condition.

In the context of a growing cross-border mobility of people in the EU, this gives rise to numerous challenges. For instance, individuals concerned or their representatives may need to manage assets or real estate in another country, seek medical care abroad, or relocate to a different EU-country. In such cross-border situations, they often face complex and sometimes conflicting laws of Member States, leading to legal uncertainty and lengthy proceedings.

The proposed Regulation introduces a streamlined set of rules that will apply within the EU, in particular to establish which court has jurisdiction, which law is applicable, under what conditions a foreign measure or foreign powers of representation should be given effect and how authorities can cooperate. It also proposes a set of practical tools, such as:

• facilitating digital communication;
• introducing a European Certificate of Representation, which will make it easier for representatives to prove their powers in another Member State;
•  establishing interconnected registers that will provide information on the existence of protection in another Member State;
• and promoting closer cooperation among authorities.

The proposal for a Council Decision provides for a uniform legal framework for protecting adults involving non-EU countries. It obliges all Member States to become or remain parties to the 2000 Protection of Adults Convention.

Next steps

The proposal for a Regulation will still need to be discussed and adopted by the European Parliament and the Council. It would apply 18 months after its adoption and Member States would then have 4 years to make their communication channels electronic, and 5 years to create a register and interconnect it with registers of other Member States.

The proposal for a Council Decision is to be adopted by the Council after consultation with the European Parliament. Member States that are not yet party to the HCCH 2000 Protection of Adults Convention will have 2 years to comply with the Council Decision and join the Convention.

Background

Currently, there are no EU laws specifically addressing the protection of adults in cross-border situations.

For many years, the Commission has promoted the ratification by all Member States of the 2000 Hague Protection of Adults Convention, which is widely considered as an efficient and flexible private international law instrument that is fit for purpose at global level. Despite the Commission’s efforts, many Member States have not become parties to the Convention. It currently applies among its 15 Contracting Parties, including 12 Member States. The Commission proposes to make it mandatory that Member States join this Convention.

In addition, while the Convention includes a minimum legal framework for this area suitable for international application, these rules do not achieve the potential of the EU area of justice where close cooperation among Member States and mutual trust exist. The Commission has therefore proposed today a Regulation which will build upon the rules of the 2000 Hague Protection of Adults Convention, and existing EU measures in other areas of cross-border civil justice. The Regulation will provide more modern and streamlined rules suitable for the EU context.

The two proposals will provide for the necessary uniform rules and address the current gaps and inconsistencies in the legal protection of adults in cross-border situations. They will apply only in cross-border cases and will not change Member States’ national substantive laws concerning the protection of adults. This legislative package will not apply to Denmark that has an opt-out in relation to Justice and Home Affairs. Ireland will be able to decide whether to opt in.