The European Commission proposed on 31 May new rules aimed at ensuring 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.
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Who is covered by these proposals?
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 impairment or insufficiency can be permanent or temporary, of a physical or psychosocial nature (e.g., intellectual disability, psychiatric illness), in connection with an age-related disease, such as Alzheimer’s disease, or resulting from a health condition, such as a coma.
To ensure their protection and support in exercising their rights, those adults can be under a protection measure taken by a court or an administrative authority or supported by someone who they have appointed in advance (through ‘powers of representation’) to manage their interests. They may have given directions in advance regarding their representation or medical treatments.
Where those adults are in a cross-border situation involving more than one country, the Commission’s proposals will provide uniform rules applicable in those situations.
What are the objectives of the Commission proposals?
The two proposals have the following objectives:
- to protect rights, including fundamental rights, such as the right to autonomy, access to justice, equality, the right to be heard, right to property and right to free movement;
- to strengthen legal certainty and predictability in cross-border situations;
- and to improve the effectiveness and speed of cross-border proceedings concerning the protection of adults.
To that effect, common EU rules applicable to cross-border cases concerning the protection of adults are necessary, in particular to establish which court has jurisdiction, which law is applicable, under what conditions a foreign measure or a foreign document granting powers of representation or containing advance directives should be given effect and how authorities can cooperate.
What does this package include?
Today’s package consists of proposals for:
- a Regulation that will govern cross-border cases for the protection of adults among EU countries;
- and a Council Decision that will oblige EU countries to become or remain parties to the Hague 2000 Protection of Adults Convention.
The proposed Regulation introduces a streamlined set of rules that will apply within the EU, building upon the principles of the 2000 Hague Convention on the International Protection of Adults, and existing EU rules on judicial cooperation in other areas. It proposes new measures, such as facilitating digital communication, introducing a European Certificate of Representation, establishing interconnected registers, and promoting closer cooperation among authorities. At the same time, the proposal for a Council Decision provides a uniform legal framework for protecting adults involving non-EU countries, by obliging all Member States to join or remain parties to the Hague 2000 Protection of Adults Convention.
How will the European Certificate of Representation work?
The proposal for a Regulation establishes a European Certificate of Representation that can be requested and used by representatives supporting adults in the protection of their interests. It will enable those representatives to show easily and efficiently that they legitimately have the authority to represent the adult in another Member State, in particular when they need to deal with non-judicial actors, such as banks or healthcare institutions.
The Certificate will be valid for a limited time to ensure that the information included in the Certificate remains up to date and reliable. It will be optional for representatives to request the Certificate, but EU authorities will be required to issue it if requested by a representative. In addition, the form for the European Certificate of Representation will be provided in all EU official languages, which will significantly reduce translation costs.
Will the proposals improve the rights of persons with disabilities?
The objective of these two proposals is to facilitate the lives of persons who cannot protect their own interests (personal or financial). Not all persons with disabilities need support in protecting their interests and therefore a number of persons with disabilities are not concerned by this initiative. In addition, some persons who do not have any type of disability are covered by the proposals (in particular where their need for legal support is temporary, or is due to their age).
These proposals will apply to the cross-border protection of adults who are not in a position to protect their own interests and will further safeguard their rights, in particular their right to autonomy and to free movement and access to justice. It will ensure that their protection is continuous across the borders, and that, if they had expressed their will in advance in one EU country, it is respected in all other EU countries.
Why is it necessary to ensure cross-border access to registers with information concerning the protection of adults?
In practice, it is often necessary to verify whether a protection measure exists concerning a person or whether this person has drawn up ‘powers of representation’ appointing someone in advance to manage his or her interests. In many EU countries, registers of protection measures or of registers of powers of representation exist and include such information. However, those registers are generally not accessible to authorities of other Member States now. Those foreign authorities thus lack efficient means how to verify whether a person is protected in another EU country or whether he or she has established powers of representation abroad. This may currently lead to situations where a foreign protection measure or the will expressed by the adult in the powers of representation are not respected in cross-border situations.
To avoid the failure to take account of the protection existing in other EU countries, registers of protection measures and of powers of representation should be interconnected at the EU level. This will require that Member States that do not currently have registers will have to set them up. Member States’ registers will then be interconnected at the EU level. This will ensure that authorities of one EU country will be able to efficiently receive an information that a particular adult is protected in another EU country. The interconnected registers will include a minimum set of data to provide general information about the existence of protection in relation to a specific adult and they will not be publicly accessible, only to authorities with a legitimate interest.
Will these proposals change the national law of EU countries?
No, the proposals do not affect national law of EU countries concerning the protection of adults (such as rules governing the types of protection measures and their consequences, powers that a representative of an adult may have and their limitations).
The proposals only include rules that will apply in cross-border cases and answer the following questions:
- which country’s courts have jurisdiction to take a protection measure concerning an adult?
- which country’s law will apply to the protection of an adult who has links with more than one country?
- how can a protection measure, powers of representation or advance directives have effect in other countries?
- how can authorities of different countries cooperate and exchange information with each other concerning the protection of adults?
Proposal for a Regulation on jurisdiction, applicable law, recognition and enforcement of measures and cooperation in matters relating to the protection of adults + Annexes
Proposal for a Council decision authorising Member States to become or remain parties, in the interest of the European Union, to the Convention of 13 January 2000 on the International Protection of Adults + Annex
Source: European Commission
