Legal provisions of COM(2023)280 - Jurisdiction, applicable law, recognition and enforcement of measures and cooperation in matters relating to the protection of adults - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2023)280 - Jurisdiction, applicable law, recognition and enforcement of measures and cooperation in matters relating to the protection ... |
|---|---|
| document | COM(2023)280 |
| date | May 31, 2023 |
Chapter I
SCOPE AND DEFINITIONS
Article 1
Subject matter
This Regulation lays down the rules which:
(a) determine the Member State whose authorities have jurisdiction to take measures directed to the protection of the person or property of the adult;
(b) determine which law is to be applied by such authorities in exercising their jurisdiction;
(c) determine the law applicable to the representation of the adult;
(d) provide for the recognition and enforcement of such measures in all Member States;
(e) provide for the acceptance of authentic instruments in all Member States;
(f) establish cooperation between the competent authorities and Central Authorities of the Member States to achieve the purposes of this Regulation;
(g) digitalise the communications between competent authorities and Central Authorities, and provide digital means of communication between natural and legal persons and competent authorities;
(h) create a European Certificate of Representation;
(i) establish a system of interconnection of the Member States' protection registers.
Article 2
Scope
1. This Regulation shall apply in civil matters to the protection in cross-border situations of adults who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their interests.
2. This Regulation shall also apply to measures in respect of an adult who had not reached the age of 18 years at the time the measures were taken.
3. The matters referred to in paragraph (1) may, in particular, include:
(a) the determination of the incapacity of an adult and the institution of a protective regime;
(b) the placing of the adult under the protection of a judicial or administrative authority;
(c) guardianship, curatorship and analogous institutions;
(d) the designation and functions of any person or body having charge of the adult's person or property, representing, or assisting the adult;
(e) decisions concerning the placement of the adult in an establishment or other place where protection can be provided;
(f) the administration, conservation or disposal of the adult's property;
(g) the authorisation of a specific intervention for the protection of the person or property of the adult.
4. This Regulation does not apply to:
(a) maintenance obligations;
(b) the formation, annulment and dissolution of marriage or any similar relationship, as well as legal separation;
(c) property regimes in respect of marriage or any similar relationship;
(d) trusts or succession;
(e) social security;
(f) public measures of a general nature in matters of health;
(g) measures taken in respect of a person as a result of penal offences committed by that person;
(h) decisions on the right of asylum and on immigration;
(i) measures directed solely to public safety.
5. Paragraph (4) does not affect, in respect of the matters referred to therein, the entitlement of a person to act as the representative of the adult.
Article 3
Definitions
For the purposes of this Regulation, the following definitions apply:
(1) ‘adult’ means a person who has reached the age of 18 years;
(2) ‘measure’ means any measure taken by an authority of a Member State, whatever it may be called, directed to the protection of an adult;
(3) ‘powers of representation’ means powers granted by an adult, either under an agreement or by a unilateral act, to be exercised when that adult is not in a position to protect his or her interests;
(4) ‘Member State of origin’ means the Member State in which the measure was taken or the authentic instrument was formally drawn up;
(5) ‘authentic instrument’ means a document in a matter of protection of an adult which has been formally drawn up or registered as an authentic instrument in a Member State and the authenticity of which:
(a) relates to the signature and the content of the authentic instrument; and
(b) has been established by a public authority or other authority empowered for that purpose by the Member State of origin;
(6) ‘authority’ means any judicial or administrative authority of a Member State with competence to take measures directed to the protection of an adult's person or property;
(7) ‘authority of origin’ means the authority which has taken the measure or formally drawn up the authentic instrument;
(8) ‘confirmed powers of representation’ means powers of representation in respect of which a competent authority has confirmed that the representative vested with these powers can exercise them;
(9) ‘competent authority’ means a public authority of a Member State with responsibilities in matters of protection of adults;
(10) ‘system of interconnection’ means a system for the interconnection of protection registers and registers of other powers of representation;
(11) ‘decentralised IT system’ means a network of IT systems, interoperable access points operating under the individual responsibility and management of each Member State, and the European electronic access point, which enables secure and reliable cross-border exchange of information;
(12) ‘protection register’ means a register where measures directed to the protection of an adult or confirmed powers of representation have been registered.
(13) ‘European electronic access point’ means an interoperable access point as defined in point (5) of Article 2 of Regulation [...] [the Digitalisation Regulation];
Article 4
References to the HCCH 2000 Protection of Adults Convention
Where referred to in this Regulation, the HCCH Convention of 13 January 2000 on the International Protection of Adults ('the HCCH 2000 Protection of Adults Convention'), which is attached to this Regulation, shall apply mutatis mutandis.
Chapter II
JURISDICTION
Article 5
General jurisdiction
Subject to Article 6 of this Regulation, jurisdiction shall be determined in accordance with Chapter II of the HCCH 2000 Protection of Adults Convention.
Article 6
Choice of jurisdiction
1. Notwithstanding Article 5, the authorities of a Member State other than the Member State in which the adult is habitually resident shall have jurisdiction where all of the following conditions are met:
(a) the adult chose the authorities of that Member State, when he or she was still in a position to protect his or her interest;
(b) the exercise of jurisdiction is in the interest of the adult;
(c) the authorities of a Member State having jurisdiction under Articles 5 to 8 of the HCCH 2000 Protection of Adults Convention have not exercised their jurisdiction.
2. When exercising their jurisdiction in accordance with paragraph (1), the authorities of a Member State shall notify, using the form set out in Annex IV, the Central Authority of the Member State of the habitual residence of the adult, designated pursuant to Article 18.
3. The choice of jurisdiction referred to in paragraph (1) shall be expressed in writing and dated and signed by the adult. Any communication by electronic means which provides a durable record of the choice shall be deemed equivalent to writing.
4. The references to Article 5 of the HCCH 2000 Protection of Adults Convention contained in Article 7(1), (2), and (3), Articles 9, 10, and Article 11(1) and (2) of that Convention shall be read as also including a reference to this Article. The information provided for in Article 10(4) of that Convention shall also be provided, where applicable, to the authority having exercised their jurisdiction in accordance with paragraph (1).
Article 7
Non-exclusive jurisdiction
Jurisdiction conferred to the authorities chosen by the adult pursuant to Article 6 of this Regulation shall not be exclusive and in particular shall not prevent the authorities having jurisdiction under Articles 5 and 6 of the HCCH 2000 Protection of Adults Convention to exercise their jurisdiction, when the authorities chosen by the adult have not exercised their jurisdiction or when they have waived such jurisdiction.
Chapter III
APPLICABLE LAW
Article 8
Determination of applicable law
The law applicable to the cross-border protection of adults shall be determined in accordance with Chapter III of the HCCH 2000 Protection of Adults Convention.
Chapter IV
RECOGNITION AND ENFORCEMENT OF MEASURES
Section 1
Recognition of measures
Article 9
Recognition of a measure
1. A measure taken by the authorities of a Member State shall be recognised in the other Member States without any special procedure being required.
2. Any interested person, included the adult concerned by the measure, may request from the authorities of a Member State that they decide on the recognition or non-recognition of a measure taken in another Member State.
3. If the outcome of proceedings before the authority of a Member State depends on the determination of an incidental question concerning a refusal or a non-refusal of recognition, that authority shall have jurisdiction over that question.
Article 10
Grounds for refusal of recognition
The recognition of a measure taken in another Member State may be refused in the following cases:
(a) if the measure was taken, except in a case of urgency, in the context of a judicial or administrative proceedings, without the adult having been provided the opportunity to be heard;
(b) if such recognition is manifestly contrary to public policy of the Member State in which recognition is sought;
(c) if the measure is incompatible with a later measure taken in a third country which would have had jurisdiction under Article 5 or Article 6, where this later measure fulfils the requirements for recognition in the requested Member State;
(d) if the procedure provided in Article 14 has not been complied with.
Section 2
Enforceability and enforcement of measures
Article 11
Enforceability (abolition of exequatur)
A measure taken by the authorities of a Member State which is enforceable in that Member State shall be enforceable in another Member State without the need for a declaration of enforceability.
Article 12
Enforcement
1. Subject to Section 3, the procedure for the enforcement of measures taken in another Member State shall be governed by the law of the Member State of enforcement. A measure taken in a Member State which is enforceable in the requested Member State shall be enforced in that Member State under the same conditions as a measure taken in the requested Member State.
2. Notwithstanding paragraph (1), the grounds for refusal or suspension of enforcement under the law of the requested Member State shall apply in so far as they are not incompatible with the grounds referred to in Article 10.
Section 3
Common provisions
Article 13
No review as to the substance
Under no circumstances may a measure taken by the authorities of a Member State be reviewed as to its substance.
Article 14
Procedure
1. A person seeking or contesting recognition, seeking enforcement of or invoking a measure taken in a Member State before the authorities of another Member State shall produce:
(a) a copy of the measure that satisfies the conditions necessary to establish its authenticity;
(b) an attestation issued pursuant to Article 15.
2. The authority before which a measure taken in another Member State is invoked or before which recognition or enforcement of a measure taken in another Member State is sought or contested, may, where necessary, require the applicant to provide a translation or a transliteration of the contents of the attestation referred to in paragraph (1), point (b).
Article 15
Attestation
The authority of origin shall, at the request of any interested person, issue an attestation using the form set out in Annex I reflecting the content of the measure.
Chapter V
AUTHENTIC INSTRUMENTS
Article 16
Acceptance of authentic instruments
1. An authentic instrument established in a Member State shall have the same evidentiary effects in another Member State as it has in the Member State of origin, or the most comparable effects, provided that this is not manifestly contrary to public policy in the Member State concerned.
2. The authentic instrument produced shall satisfy the conditions necessary to establish its authenticity in the Member State of origin.
Article 17
Attestation
A person wishing to use an authentic instrument in another Member State may ask the competent authority having formally drawn up or registered the authentic instrument in the Member State of origin to fill in the form set out in Annex II describing the evidentiary effects which the authentic instrument produces in the Member State of origin.
Chapter VI
COOPERATION
Section 1
Central Authorities
Article 18
Designation of a Central Authority
1. Each Member State shall designate one or more Central Authorities to assist with the application of this Regulation and shall specify the geographical and functional competence of each.
2. Where a Member State has designated more than one Central Authority, communications shall be sent directly to the relevant Central Authority with competence. Where a communication is sent to a Central Authority without competence, the latter shall forward it to the Central Authority with competence and inform the sender accordingly.
3. Member States shall ensure that Central Authorities have sufficient and appropriate facilities in terms of staff, resources and modern means of communication to adequately fulfil their tasks under this Regulation.
Article 19
Tasks of Central Authorities
1. Central Authorities shall cooperate and promote cooperation among the competent authorities in their Member States in the application of this Regulation.
2. Central Authorities shall communicate information on national laws, procedures and services in matters relating to the protection of adults, take the measures that they consider appropriate for improving the application of this Regulation.
3. Central Authorities shall facilitate communications, by every means, between the competent authorities.
Article 20
Location of an adult or a person likely to provide support
The Central Authority of a Member State, either directly or through competent authorities, shall provide, on the request of an authority of another Member State, assistance in discovering the whereabouts of:
(a) an adult where it appears that the adult may be present and in need of protection within the territory of the requested Member State;
(b) a person who is likely to provide support to the adult, in accordance with the information provided by the adult or another competent authority, where it appears that such person may be present within the territory of the requested Member State.
Article 21
Placement
1. If an authority of a Member State contemplates the placement of the adult in another Member State in an establishment or other institution where protection can be provided, it shall first obtain the consent of a Central Authority of that other Member State. To that effect, it shall transmit to the Central Authority of the requested Member State a report on the adult together with the reasons for the proposed measure, using the form set out in Annex VI.
2. Paragraph (1) shall not apply where the placement is contemplated with a private person.
3. Except where exceptional circumstances make this impossible, the decision granting or refusing consent shall be transmitted to the requesting authority no later than six weeks following the receipt of the request.
4. Paragraphs (1), (2) and (3) shall not preclude Central Authorities or competent authorities from entering or maintaining existing agreements or arrangements with Central Authorities or competent authorities of one or more other Member States simplifying the consultation procedure for obtaining consent in their mutual relations.
Article 22
Designation of a representative abroad
1. Where the authority of a Member State contemplates the designation of a competent authority in another Member State as a representative of an adult to provide support for the implementation of a measure, it shall transmit its request to the Central Authority of the requested State using the form set out in Annex VII.
2. If the requested Central Authority so requires, the requesting authority shall ensure that the following are reimbursed, without delay:
(a) the fees paid to the representative; and
(b) the costs occasioned by the implementation of the measure in that other Member State.
3. The requested Central Authority may, before executing the request, ask the requesting authority for an adequate deposit or advance payment towards the requested costs.
4. The duty for the parties to bear the fees and costs pursuant to paragraph (2), or to make the deposit or advance payment pursuant to paragraph (3) shall be governed by the law of the Member State of the requesting authority.
Article 23
Meetings of Central Authorities
1. In order to facilitate the application of this Regulation, Central Authorities shall meet regularly.
2. The meeting of Central Authorities shall be convened, in particular, by the Commission within the framework of the European Judicial Network in civil and commercial matters in compliance with Council Decision 2001/470/EC25.
Section 2
Competent authorities
Article 24
Implementation of measures
The competent authorities of a Member State may request the competent authorities of another Member State to assist in the implementation of measures.
Article 25
Exchange of information between authorities
1. Where a measure is contemplated, the authorities of a Member State, if the situation of the adult so requires, may request any authority of another Member State which has information relevant to the protection of the adult to communicate such information.
2. The request referred to in paragraph (1) shall be transmitted directly or through the Central Authority of the requested Member State.
Article 26
Serious danger
1. In the event that the adult is exposed to a serious danger, the competent authorities of the Member State where measures for the protection of the adult have been taken or are under consideration, if they are informed that the adult's residence has changed to another Member State, or that the adult is present in another Member State, shall inform the competent authorities of that other Member State about the danger involved and the measures taken or under consideration.
2. The information referred to in paragraph (1) shall be transmitted directly or through the Central Authority of the requested Member State.
Article 27
Direct communication and cooperation between authorities
1. For the purposes of this Regulation, the authorities of Member States may cooperate and communicate directly with, or request information directly from, each other provided that such communication respects the procedural rights of the parties to the proceedings and the confidentiality of information.
2. The cooperation referred to in paragraph (1) may be implemented by any means that the authority considers appropriate, and may in particular concern the communications for the purposes of:
(a) Article 5;
(b) this Chapter.
3. For the purposes of the communication pursuant to Article 8 of the HCCH 2000 Protection of Adults Convention, the authorities of Member States may use the form set out in Annex VIII to this Regulation.
4. For the purposes of the information of the authorities of another Member State pursuant to Article 7, 10 and 11 of the HCCH 2000 Protection of Adults Convention, the authorities of Member States may use the form set out in Annex IX to this Regulation.
Section 3
General provisions
Article 28
Mediation and alternative dispute resolution
Central Authorities and competent authorities of Member States shall encourage, either directly or through other bodies, the use of mediation or other means of alternative dispute resolution, to achieve agreed solutions for the protection of the person or property of an adult in situations to which this Regulation applies.
Article 29
Non-disclosure of information
Central Authorities and competent authorities of Member States shall not disclose or confirm information gathered or transmitted for the purposes of this Regulation if they determine that to do so could:
(a) jeopardise the health, safety or liberty of the adult or another person;
(b) place the property of the adult in danger.
Article 30
Costs of Central Authorities and competent authorities
1. The assistance provided by the Central Authorities and the competent authorities pursuant to this Regulation shall be free of charge.
2. Without prejudice to Article 37(2), each Central Authority and each competent authority shall bear its own costs in applying this Regulation.
Article 31
Languages
1. The requests or applications made under this chapter shall be completed in the official language of the requested Member State or, if there are several official languages in that Member State, in the official language or one of the official languages of the place of the Central Authority or the competent authority concerned, or in any other official language of the Union which that Member State has indicated it can accept, unless the Central Authority or the competent authority of that Member State dispenses with translation.
2. The documents accompanying the request or application form shall not be translated into the language determined in accordance with paragraph (1) unless a translation is necessary in order to provide the assistance requested.
Article 32
Forms
Competent authorities and Central Authorities may use the forms set out in Annexes V and X to this Regulation to send and acknowledge receipt of a request made under this Chapter.
Article 33
Legal aid
An applicant who, in the Member State of origin, has benefited from complete or partial legal aid or exemption from costs or expenses shall be entitled to benefit from the most favourable legal aid or the most extensive exemption from costs or expenses provided for by the law of the requested Member State:
(a) in any proceedings for recognition or enforcement of a measure;
(b) in the service of a judicial or extrajudicial document in another Member State;
(c) in proceedings established pursuant to this Chapter.
Chapter VII
EUROPEAN CERTIFICATE OF REPRESENTATION
Article 34
Creation of a European Certificate of Representation
1. This Regulation creates a European Certificate of Representation (‘the Certificate’) which shall be issued for use in another Member State and shall produce the effects listed in Article 40.
2. The use of the Certificate shall not be mandatory.
3. The Certificate shall not take the place of internal documents used for similar purposes in the Member States. However, once issued for use in another Member State, the Certificate shall also produce the effects listed in Article 40 in the Member State whose competent authorities issued it in accordance with this Chapter.
Article 35
Purpose of the Certificate
1. The Certificate shall be issued for use by representatives, who, in another Member State, need to invoke their powers to represent adults who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their interests.
2. The Certificate may be used to demonstrate that the representative is authorised, on the basis of a measure or confirmed power of representation, to represent the adult in particular in one or more of the following matters:
(a) the control, management and disposition of the adult's real property or other assets;
(b) the acquisition of real property or other assets in the adult's name or on the adult's behalf;
(c) the carrying out of a contract entered into by the adult;
(d) the carrying on, on the adult's behalf, of any trade or business;
(e) discharge of the adult's responsibilities and legal obligations;
(f) the conduct of legal proceedings in the adult's name or on the adult's behalf;
(g) medical decisions, including giving and refusing consent to the carrying out of a medical treatment;
(h) decisions concerning the adult's personal welfare and place of residence.
Article 36
Competence to issue the Certificate
1. The Certificate shall be issued in the Member State in which a measure was taken or powers of representation were confirmed concerning an adult.
2. The issuing authority of the Member State referred to in paragraph 1 shall be:
(a) the competent authority that has taken a measure or confirmed the powers of representation concerning the adult;
(b) another competent authority, as designated by the Member State, that has access to the information concerning the measure taken or the confirmed powers of representation.
Article 37
Application for a Certificate
1. The Certificate shall be issued upon an application by a representative authorised, by means of a measure taken or powers of representation confirmed in a Member State, to represent the adult (hereinafter referred to as: the applicant).
2. Member States shall ensure that the fee for obtaining the Certificate, if any, does not exceed the production cost of the Certificate.
Article 38
Issuance of the Certificate
1. Upon receipt of the application for the Certificate, the issuing authority shall verify that:
(a) the applicant is entitled to request the Certificate in accordance with the powers entrusted to the applicant in the measure taken or the powers of representation confirmed in the Member State of the issuing authority ('the source measure' or the source confirmed powers of representation);
(b) the elements to be certified are in conformity with that source measure or those source confirmed powers of representation;
(c) that source measure or those source confirmed powers of representation remain valid and have not been replaced by a later measure or confirmed powers of representation.
2. The issuing authority shall verify all the elements listed in paragraph (1), in particular by referring to the information and documents available to it. It may also carry out further enquiries necessary to verify those elements. In that regard, it may request, from the applicant or from the competent authorities of another Member State or from both, the information or documents which it deems necessary to verify the elements to be certified.
3. For the verification of the elements listed in paragraph (1), the issuing authority shall, where feasible, also consult the system of interconnection established in Chapter VIII.
4. The applicant shall, upon request, provide the issuing authority with the documents or information referred to in paragraph (1). Similarly, competent authorities of other Member States shall, upon request, provide the issuing authority with those documents or information held, where that competent authorities would be authorised, under national law, to provide another national authority with such information.
5. The issuing authority shall issue the Certificate without delay once all elements listed in paragraph (1) have been successfully verified. It shall issue the Certificate even if the habitual residence of the adult has changed to another Member State or to a third country. It shall not issue the Certificate if the source measure or the source confirmed powers of representation or elements to be certified have been challenged, unless they are provisionally applicable.
6. The Certificate shall be issued using the form set out in Annex III.
7. The Certificate shall be completed and issued in the language of the Member State of the issuing authority. The Certificate may also be issued in another official language of the Union requested by the applicant. This shall not create any obligation for the issuing authority issuing the Certificate to provide a translation or transliteration of the translatable content of the free text fields.
8. The issuing authority shall take all necessary steps to inform the adult and any person with a legitimate interest about the issuance of a Certificate.
9. The Certificate shall be valid for a period of 1 year. Where justified, the issuing authority may decide that the period of validity is to be longer or shorter, in particular where the source measure has a longer or shorter duration than a year.
Article 39
Contents of the Certificate
1. The Certificate shall indicate which powers the representative of an adult has or, as appropriate, in a negative fashion, which powers the representative does not have. Where applicable, the Certificate shall also indicate any limitations of such powers or conditions attached to such powers.
Article 40
Effects of the Certificate
1. The Certificate shall produce its effects in all Member States, without any special procedure being required.
2. The Certificate shall be presumed to accurately demonstrate elements which have been established under the law applicable to the source measure or the source confirmed powers of representation or under any other law applicable to their specific elements. The person mentioned in the Certificate as the representative of an adult shall be presumed to have the powers mentioned in the Certificate with no conditions or restrictions being attached to those powers other than those stated in the Certificate. The presumption shall however not extend to elements which are not governed by this Regulation.
3. Any person who, acting on the basis of the information certified in a valid Certificate, deals with someone indicated in the Certificate as the adult’s representative with respect to a certain matter, shall be considered to have dealt with someone with authority to represent the adult in that matter, unless the person knows that the contents of the Certificate are not accurate or valid or is unaware of such inaccuracy or invalidity due to gross negligence.
Article 41
Certified copies of the Certificate
1. The issuing authority shall keep the original of the Certificate and shall issue one or more certified copies to the applicant.
2. The issuing authority shall, for the purposes of Article 42(3) and Article 44(2), keep a list of certified copies that have been issued pursuant to paragraph 1 of this Article.
3. The end of validity of a certified copy shall correspond with the end of validity of the Certificate pursuant to Article 38(9), to be indicated in the certified copy by way of an expiry date. Once this period has elapsed, any person in possession of a certified copy shall, in order to be able to use the Certificate for the purposes indicated in Article 35, request the issuance of a new Certificate from the issuing authority.
Article 42
Rectification, modification or withdrawal of the Certificate
1. The issuing authority shall, at the request of any person with a legitimate interest or of its own motion, rectify the Certificate in the event of a clerical error.
2. The issuing authority shall, at the request of any person with a legitimate interest or, where this is possible under national law, of its own motion, modify or withdraw the Certificate where it has been established that the Certificate or individual elements thereof are not accurate or valid.
3. The issuing authority shall without delay inform all persons to whom certified copies of the Certificate have been issued pursuant to Article 41(1) of any rectification, modification or withdrawal thereof.
Article 43
Redress procedures
1. Decisions taken by the issuing authority pursuant to Article 38 on the issuance of a Certificate or on the refusal to issue a Certificate may be challenged by any person with a legitimate interest.
Decisions taken by the issuing authority pursuant to Article 42 and Article 44(1), point (a) may be challenged by any person with a legitimate interest.
The challenge shall be lodged before a judicial authority in the Member State of the issuing authority in accordance with the law of that Member State.
2. Member States shall communicate to the Commission the judicial authorities competent to deal with the redress procedures pursuant to paragraph (1).
3. If, as a result of a challenge as referred to in paragraph 1, it is established that the Certificate issued is not accurate or valid, the competent judicial authority shall rectify, modify or withdraw the Certificate or ensure that it is rectified, modified or withdrawn by the issuing authority.
If, as a result of a challenge as referred to in paragraph 1, it is established that the refusal to issue the Certificate was unjustified, the competent judicial authority shall issue the Certificate or ensure that the issuing authority re-assesses the case and makes a new decision.
Article 44
Suspension of the effects of the Certificate
1. The effects of the Certificate may be suspended by one of the following competent authorities:
(a) the issuing authority, at the request of any person with a legitimate interest, pending a modification or withdrawal of the Certificate pursuant to Article 42;
(b) the judicial authority referred to in Article 43, at the request of any person entitled to challenge a decision taken by the issuing authority, pending such a challenge.
2. The issuing authority or, as the case may be, the judicial authority shall without delay inform all persons to whom certified copies of the Certificate have been issued pursuant to Article 41(1) of any suspension of the effects of the Certificate.
During the suspension of the effects of the Certificate no further certified copies of the Certificate may be issued.
Chapter VIII
ESTABLISHMENT AND INTERCONNECTION OF PROTECTION REGISTERS
Article 45
Establishment of protection registers
1. By [two years after the date of the start of application] at the latest, Member States shall establish and maintain in their territory one or several registers in which information is recorded concerning protection measures and, where their national law provides for the confirmation of powers of representation by a competent authority, concerning those powers of representation ('protection registers').
2. The information recorded in the registers referred to in paragraph (1) shall include the following (‘mandatory information’):
(a) an indication that a measure has been taken or, where applicable, that powers of representation have been granted or confirmed;
(b) the date of the first measure as well as the date of the subsequent measures taken, or, where applicable, the date when the powers of representation were granted by an adult or were confirmed by a competent authority;
(c) where a measure or a decision on the powers of representation are provisionally applicable, the date on which the time limit for challenging the measure or the decision on the powers of representation expires;
(d) the date of expiration or reviewal of the measures or of the powers of representation, if any;
(e) the competent authority which has taken, modified or terminated the measure or registered, confirmed, modified or terminated the powers of representation;
(f) the adult’s name, place and date of birth and, where applicable, national identification number.
3. The information referred to in paragraph (1) shall be published in the protection registers as soon as possible after the following conditions are met:
(a) the authorities of the Member State have:
(i) taken, modified or terminated a measure; or
(ii) confirmed, modified or terminated powers of representation granted by an adult;
(b) the time limit for appealing the measure or the decision on the powers of representation has expired, unless the measure or the powers of representation are provisionally applicable.
4. Paragraph (1) shall not preclude Member States from including additional documents or additional information in their protection registers, such as the name of the representative or the nature and extent of the representation.
Article 46
Interoperability of registers of other powers of representation
By [two years after the date of start of application] at the latest, Member States where national law provides for electronic registers recording information concerning other powers of representation which are registered by a competent authority, and where national law does not provide for the confirmation of such powers of representation, shall ensure that those registers record the mandatory information referred to in Article 45(2).
Article 47
Interconnection of registers
1. By means of implementing acts, the Commission shall establish a decentralised system for the interconnection ('system of interconnection') that is composed of:
(a) Member States' protection registers of measures referred to in Article 45 and, where applicable, Member States' protection registers of confirmed powers of representation referred to in Article 45 and Member State's registers of other powers of representation Article 46;
(b) a central electronic access point to the information in the system.
2. The system of interconnection shall provide a search service in all the official languages of the Union in order to make available the following:
(a) the mandatory information set out in Article 45(2);
(b) any other documents or information included in the protection registers or other registers of powers of representation, which the Member States choose to make available through the system of interconnection.
Article 48
Condition of access to information via the system of interconnection
1. Member States shall ensure that the information referred to in Article 47(2) is available free of charge via the system of interconnection.
2. The information available through the system of interconnection shall only be available to those competent authorities or Central Authorities of a Member State which:
(a) have access to the mandatory information under their national law;
(b) have a legitimate interest in accessing this information.
3. For the purposes of paragraph (2), point (a), Member States shall provide the means to authorise those competent authorities or Central Authorities to access to the system of interconnection.
4. Upon a request made by those competent authorities or Central Authorities, the system of interconnection shall automatically make the information referred to in Article 47(2) accessible to them.
Chapter IX
DIGITAL COMMUNICATION
Article 49
Means of communication between competent authorities or Central Authorities
1. Written communication between competent authorities or Central Authorities, including the exchange of forms set out in Annexes I to X, shall be carried out through a secure and reliable decentralised IT system.
2. The use of the decentralised IT system may not be appropriate for direct communication between authorities carried out pursuant to Article 27(1), and any other means of communication may be used instead.
3. Where electronic communication in accordance with paragraph (1) is not possible due to the disruption of the decentralised IT system, the nature of the transmitted material or exceptional circumstances, the transmission shall be carried out by the swiftest, most appropriate alternative means, taking into account the need to ensure a secure and reliable exchange of information.
Article 50
Communication through the European electronic access point
1. The European electronic access point established on the European e-Justice Portal pursuant to Article 4 of Regulation EU [...] [the Digitalisation Regulation] may be used for electronic communication between natural and legal persons and Member States' competent authorities and issuing authorities in connection with the following:
(a) proceedings for a decision on the recognition or non-recognition of a measure taken in a Member State pursuant to Article 10;
(b) an application for the issuance of the attestation pursuant to Articles 15 and 17;
(c) an application for the issuance, rectification, modification, withdrawal, suspension or redress procedures of the European Certificate of Representation pursuant to Chapter VII.
2. Article 4(3), Article 5(2) and (3), and Article 6 of Regulation EU [...] [the Digitalisation Regulation] shall apply to electronic communications pursuant to paragraph (1).
Article 51
Electronic signatures and electronic seals
1. The general framework for the use of trust services set out in Regulation (EU) No 910/2014 of the European Parliament and of the Council26 shall apply to the electronic communication under this Regulation.
2. Where a document transmitted as part of the electronic communication under Article 49(1) requires or features a seal or handwritten signature, qualified electronic seals or qualified electronic signatures as defined in Regulation (EU) No 910/2014 may be used instead.
3. Where a document transmitted as part of the electronic communication under Article 50 requires or features a seal or handwritten signature, advanced electronic seals, advanced electronic signatures, qualified electronic seals or qualified electronic signatures as defined in Regulation (EU) No 910/2014 may be used instead.
Article 52
Legal effects of electronic documents
Documents transmitted as part of electronic communication shall not be denied legal effect or be considered inadmissible in the context of cross-border judicial procedures under this Regulation solely on the ground that they are in electronic form.
Chapter X
DATA PROTECTION
Article 53
General provision on data protection
1. Personal data required for the application of this Regulation shall be processed by Member States' competent authorities and Central Authorities for the purposes of streamlining cross-border procedures and cooperation among Member States in matters falling within the scope of this Regulation and thus for enhancing protection of adults in international situations. In particular, personal data shall be processed under this Regulation for the purposes of:
(a) determining the Member States whose authorities have jurisdiction under Chapter II;
(b) determining the law applicable to measures and powers of representation under Chapter III;
(c) facilitation of cross-border proceedings for the recognition and enforcement of measures under Chapter IV, including obtaining of a decision on recognition or non-recognition of a measure pursuant to Article 10 and the presentation of documents for the purposes of the invocation or enforcement of the measure pursuant to Article 14;
(d) facilitation of the acceptance of authentic instruments in all Member States under Chapter V;
(e) cooperation among competent authorities and Central Authorities of Member States under Chapter VI and of their digital communication pursuant to Article 49;
(f) electronic communication with Member States' competent authorities that natural and legal persons may use in connection with specific proceedings and applications under this Regulation;
(g) the issuance of the attestations pursuant to Articles 15 and 17, of the forms simplifying cross-border cooperation set out in Annexes, and of a European Certificate of Representation pursuant to Chapter VII.
2. Personal data to be processed pursuant to this Regulation shall be those contained in the documents handled, for the purposes referred to in paragraph (1), by Member States competent authorities and Central Authorities. Processing of personal data under this Regulation shall be limited to the extent necessary for the purposes set out in paragraph (1), without affecting further processing for archiving purposes in the public interest in accordance with Article 5(1), point (b) and Article 89 of the Regulation (EU) 2016/679.
3. For the purposes of this Regulation, competent authorities and Central Authorities empowered by Member States to apply this Regulation shall be regarded as controllers within the meaning of Article 4(7) of the Regulation (EU) 2016/679. Controllers shall ensure the security, integrity, authenticity and confidentiality of the data processed for the purposes set out in paragraph (1).
4. Notwithstanding paragraph (3), the Commission shall be regarded as a controller within the meaning of Article 3(8) of the Regulation (EU) 2018/1725 with respect to personal data processing by the European electronic access point pursuant to Article 50. This processing shall be for the purposes of providing for electronic communication means with Member States' competent authorities that natural and legal persons may use in connection with specific proceedings and applications under this Regulation. The Commission shall implement the technical measures required to ensure the security of personal data transmitted, in particular confidentiality and integrity of any transmission.
Article 54
Data accessed through the system of interconnection
1. Notwithstanding Article 53, processing of personal data under Chapter VIII on the establishment of protection registers and interconnection of registers shall be governed by the paragraphs 2 to 5 of this Article.
2. Processing of personal data under Chapter VIII shall be limited to the extent necessary for the purposes of facilitating the cross-border provision of information about a measure or powers of representation concerning a particular adult. Without affecting Article 47(2), point (b), the processing shall be limited to the personal data included in the mandatory information set out in Article 45(2).
3. Personal data shall be stored in the Member States' protection registers referred to in Article 45(1) or registers of other powers of representation referred to in Article 46. The retention period of data in the system of interconnection shall be limited to what is necessary to interconnect those registers and to enable the retrieval of and the access to the data from them.
4. Member States shall be responsible, in accordance with Article 4(7) of Regulation (EU) 2016/679, for the collection and storage of data in registers referred to in Article 45 and Article 46 and for decisions taken to make that data available in the system of interconnection referred to in Article 47.
5. With respect to the system of interconnection referred to in Article 47, the Commission shall be regarded as controller within the meaning of Article 3(8) of Regulation (EU) 2018/1725. It shall adopt necessary technical solutions to fulfil its responsibilities within the scope of this function. The Commission shall in particular implement technical measures required to ensure the security of personal data while in transit, especially their confidentiality and integrity.
Chapter XI
DELEGATED ACTS
Article 55
Delegation of powers
The Commission is empowered to adopt delegated acts in accordance with Article 56 concerning the amendment of Annexes I to X in order to update or make technical changes to those Annexes.
Article 56
Exercise of the delegation
1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.
2. The power to adopt delegated acts referred to in Article 55 shall be conferred on the Commission for an indeterminate period of time from [date of entry into force of this Regulation].
3. The delegation of power referred to in Article 55 may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.
4. Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making.
5. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.
6. A delegated act adopted pursuant to Article 55 shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.
Chapter XII
GENERAL AND FINAL PROVISIONS
Article 57
Legalisation or other similar formality
No legalisation or other similar formality shall be required in the context of this Regulation.
Article 58
Relations with other instruments
1. This Regulation shall not affect the application of international conventions to which one or more Member States are party at the time of adoption of this Regulation and which concern matters covered by this Regulation.
2. Notwithstanding paragraph 1, this Regulation shall, as between Member States, take precedence over conventions concluded exclusively between two or more of the Member States in so far as such conventions concern matters governed by this Regulation.
Article 59
Relation with the HCCH 2000 Protection of Adults Convention
1. As concerns the relation with the HCCH 2000 Protection of Adults Convention, this Regulation shall apply:
(a) subject to paragraph (2), where the adult concerned has his or her habitual residence in the territory of a Member State;
(b) even if the adult concerned has his or her habitual residence in the territory of a State, which is a Party to that Convention, and in which this Regulation does not apply, as concerns the recognition and enforcement of a measure taken, or the acceptance of an authentic instrument drawn up by a competent authority of a Member State in the territory of another Member State.
2. Notwithstanding paragraph 1,
(a) with respect to an adult who is a national of a Party to the HCCH 2000 Protection of Adults Convention in which this Regulation does not apply, Article 7 of that Convention shall apply;
(b) as concerns the transfer of jurisdiction between an authority of a Member State and an authority of a Party to the HCCH 2000 Protection of Adults Convention in which this Regulation does not apply, Article 8 of that Convention shall apply;
(c) as concerns cooperation among competent authorities and Central Authorities, Chapter V of the HCCH 2000 Protection of Adults Convention shall apply between a Member State and a Party to that Convention in which this Regulation does not apply.
Article 60
Adoption of implementing acts by the Commission
1. The Commission shall adopt implementing acts establishing a decentralised system for the interconnection of registers referred to in Article 47 ('system of interconnection') setting out the following:
(a) the technical specification defining the methods of communication and information exchange by electronic means on the basis of the established interface specification for the system of interconnection;
(b) the technical measures ensuring the minimum information technology security standards for communication and distribution of information within the system of interconnection;
(c) minimum criteria for the search service provided by the system of interconnection based on the information set out in Article 45;
(d) minimum criteria for the presentation of the results of the searches in the system of interconnection based on the information set out in Article 45;
(e) the means and the technical conditions of availability of services provided by the system of interconnection;
(f) a technical semantic glossary containing a basic explanation of the Member States' of protection measures or of powers of representation;
(g) specification of the categories of data that can be accessed, including pursuant to Article 47(2), point (b); and
(h) data protection safeguards.
2. The Commission shall adopt implementing acts establishing the decentralised IT system referred to in Chapter IX, setting out the following:
(a) the technical specifications defining the methods of communication by electronic means for the purposes of the decentralised IT system;
(b) the technical specifications for communication protocols;
(c) the information security objectives and relevant technical measures ensuring minimum information security standards and a high level of cybersecurity for the processing and communication of information within the decentralised IT system; and
(d) the minimum availability objectives and possible related technical requirements for the services provided by the decentralised IT system;
(e) data protection safeguards.
3. The implementing acts referred to in This article shall be adopted in accordance to the procedure referred to in Article 64.
4. The implementing acts establishing the system of interconnection pursuant to paragraph 1 shall be adopted by [3 years after the entry into force].
5. The implementing acts establishing the decentralised IT system pursuant to paragraph 2 shall be adopted by [2 years after the entry into force].
Article 61
Reference implementation software
1. With a view to setting up the decentralised IT system referred to in Article 50, the Commission shall be responsible for the creation, maintenance and development of reference implementation software which Member States may choose to apply as their back-end system instead of a national IT system for the purposes of the communication between competent authorities and Central Authorities referred to in Article 49 and between natural and legal persons and competent authorities and issuing authorities referred to in Article 50.
2. The creation, maintenance and development of the reference implementation software shall be financed from the general budget of the Union.
3. The Commission shall provide, maintain and support on a free-of-charge basis the reference implementation software.
Article 62
Costs of establishing protection registers and interconnecting Member States' registers
1. The establishment, maintenance and development of the system of interconnection established under Chapter VIII shall be financed from the general budget of the Union.
2. Each Member State shall bear the costs of establishing and adjusting its registers referred to in Articles 45 and 46 to make them interoperable with the decentralised system for the interconnection of registers, as well as the costs of administering, operating and maintaining those registers. This shall not affect the possibility to apply for grants to support such activities under the Union's financial programmes.
Article 63
Costs of the decentralised IT system, European electronic access point, and national IT portals
1. As regards the decentralised IT system established pursuant to Chapter IX, each Member State shall bear the costs of the installation, operation and maintenance of the decentralised IT system’s access points which are located on their territory.
2. Each Member State shall bear the costs of establishing and adjusting its national IT systems to make them interoperable with the access points, and shall bear the costs of administering, operating and maintaining those systems.
3. Member States shall not be prevented from applying for grants to support the activities referred to in paragraphs 1 and 2, under the relevant Union financial programmes.
4. The Commission shall bear all costs related to the European electronic access point.
Article 64
Committee procedure
1. The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/201127.
2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.
Article 65
Transitional provisions
1. This Regulation shall apply only to measures taken, to authentic instrument formally drawn up or registered, and to powers of representation confirmed after [date of application].
2. Notwithstanding paragraph (1), this Regulation shall apply as from [date of application] to powers of representation previously granted by an adult under conditions corresponding to those set out in Article 15 of the HCCH 2000 Protection of Adults Convention.
3. Chapter VI on cooperation between Central Authorities shall apply to requests and application received by the Central Authorities as from [date of application].
4. Chapter VII on the European Certificate of Representation shall apply to applications for the Certificate received by the issuing authority as from [date of application].
5. Member States shall use the decentralised IT system referred to in Article 49(1) to procedures instituted from the first day of the month following the period of two years after the adoption of the implementing act referred to in Article 60(5).
6. Chapter VIII on the establishment and interconnection of protection registers and registers of other powers of representation shall apply to the measures taken and the powers of representation confirmed or registered from the first day of the month following the period of two years after the adoption of the implementing act referred to in Article 60(4).
Article 66
Monitoring and evaluation
1. By [10 years after the entry into force], the Commission shall carry out an evaluation of this Regulation and present to the European Parliament, to the Council [and to the European Economic and Social Committee] a report on the evaluation of this Regulation supported by information supplied by the Member States and collected by the Commission. The report shall be accompanied, where necessary, by a legislative proposal.
2. As of [3 years after the entry into force], the Member States shall provide the Commission, on an annual basis, within the framework of the European Judicial Network in civil and commercial matters, with:
(a) the number of incoming communications received by their authorities under Article 7 of the HCCH 2000 Protection of Adults Convention, which were sent by authorities of another Member State;
(b) the number of incoming requests received by their authorities under Article 8 of the HCCH 2000 Protection of Adults Convention, which were sent by authorities of another Member State;
(c) the number of European Certificates of Representation issued by their competent authorities, as well as the number of requests for rectifications, modifications or withdrawals of European Certificates of Representations previously issued, and, where possible, the division between Certificates issued on the basis of a source measure and those issued on the basis of source confirmed powers of representation;
(d) the number of incoming requests received by the Central Authorities coming from Central Authorities of other Member States, and where possible the nature of those requests;
(e) the number of incoming requests received by their authorities or Central Authorities coming from authorities and competent authorities of other Member States, and where possible the nature of those requests;
(f) the average duration of the cases handled by the Central Authorities under this Regulation, based on the number of cases closed during the relevant year. The duration of a case is calculated from the day it is registered by the Central Authority until the day the file is permanently closed.
Article 67
Information made available to the public
1. The Member States shall, with a view to making the information available to the public within the framework of the European Judicial Network in civil and commercial matters, provide factsheets with a short summary of their national legislation, including, where available, information on:
(a) an indicative list of measures directed to the protection of adults;
(b) an indicative list of powers of representation directed to the protection of adults;
(c) the existence of and the procedures for the confirmation of powers of representation;
(d) the authorities which have competence in matters of protection of adults, their roles and contact details where possible;
(e) the national procedures applying to the establishment, registration, confirmation, modification and termination of measures and/or powers of representation.
2. The Member States shall keep the information permanently updated.
Article 68
Accessibility
Information provided to the public and forms and applications made available to it under this Regulation shall be made accessible to the public in line with the accessibility requirements of Directive (EU) 2019/882.
Article 69
Information to be communicated to the Commission
1. The Member States shall communicate to the Commission the following:
(a) the authorities competent to decide on the recognition or non-recognition of a measure taken in another Member State referred to in Article 9(2);
(b) the authorities competent to issue the attestation referred to in Article 15;
(c) the relevant provisions of their national law on the evidentiary effects of authentic instruments directed to the protection of adults;
(d) the conditions for establishing the authenticity of an authentic instrument under their national law, as referred to in Article 16(2);
(e) the authorities competent to issue the attestation referred to in Article 17;
(f) the names, addresses and means of communication for the Central Authorities designated pursuant to Article 18;
(g) where applicable, the names, addresses and contact details of the authorities and other bodies competent to establish mediation or other means of alternative dispute resolution, referred to in Article 28;
(h) languages accepted for the translations pursuant to Article 31;
(i) the authorities competent to issue the European Certificate of Representation, as referred to in Article 36(2);
(j) the authorities competent to deal with the redress procedures, as referred to in Article 43;
(k) fees, if any, that Member States charge for the issuance of the European Certificate of Representation in accordance with Article 37(2);
(l) the judicial authorities competent to deal with redress procedure pursuant to Article 43 and with the requests for a suspension of the effects of the Certificate pursuant to Article 44;
(m) authorities referred to in Article 48(2), point (a) having access to information via the system of interconnection of registers.
2. The Member States shall communicate the information referred to in paragraph 1, points (a) to (l) by the first day of the month following a period of 15 months after the start of application at the latest, and the information referred to in paragraph 1, point (m), by the first day of the month following the period of two years after the date of entry into force of the implementing act referred to in Article 60(4).
3. The Member States shall communicate to the Commission any changes to the information referred to in paragraph 1.
4. The Commission shall make the information referred to in paragraph 1 publicly available through appropriate means, including through the European e-Justice Portal.
Article 70
Entry into force and application
1. This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
2. It shall apply from [the first day of the month following a period of 18 months from the date of entry into force of this Regulation].
3. Article 49 and Article 50 shall apply from the first day of the month following the period of two years after the date of entry into force of the implementing act referred to in Article 60(2).
4. Articles 45 and 46 shall apply from [two years after the date of entry into application].
5. Article 47 shall apply from the first day of the month following the period of two years after the date of entry into force of the implementing act referred to in Article 60(1).
6. Article 38(3) shall apply from the first day of the month following the period of two years after the adoption of the implementing act referred to in Article 60(4).
This Regulation shall be binding in its entirety and directly applicable in all Member States.