Explanatory Memorandum to COM(2023)281 - Authorisation of Member States to become or remain parties to the Convention of 13 January 2000 on the International Protection of Adults - Main contents

Please note

This page contains a limited version of this dossier in the EU Monitor.

dossier	COM(2023)281 - Authorisation of Member States to become or remain parties to the Convention of 13 January 2000 on the International ...
source	COM(2023)281
date	31-05-2023

1. CONTEXT OF THE PROPOSAL

• Reasons for and objectives of the proposal

The EU aims to create, maintain and develop an area of freedom, security and justice in which the free movement of persons, access to justice and the full respect of fundamental rights are ensured.

1. This aim should also include the cross-border protection of adults who, by

reason of an impairment or insufficiency of their personal faculties, are not able to protect their interests (‘adults’). An adult is a person who has reached the age of 18 years.

The number of adults in such situations in the EU is on the increase due to the ageing population and the associated incidence of age-related illnesses, and the growing number of people with disabilities. Depending on the national legislation of the Member State where they live, they can be under a protection measure taken by a court or an administrative authority, or they can be supported by a third party they had designated in advance (through powers of representation’) to manage their interests.

Adults may need to manage their assets or real estate located in another country, undergo emergency or planned medical care abroad, or relocate to another country for various reasons.

In those cross-border situations, adults are confronted with the complex and sometimes conflicting rules of Member States. These include deciding which court or other authority competent to take protection measures has jurisdiction, which law applies to their case, and how to recognise or give effect to a decision taken or to powers of representation established abroad. This leads to situations where adults, their families and their representatives experience significant legal uncertainty as to what rules will apply to their case and as to the outcome of the procedures and formalities they need to undertake. To ensure that their protection continues to be effective across borders or that they have access to their rights abroad, they often have to go through long and expensive proceedings. In some instances, their protection and the powers entrusted in their representative are ultimately not recognised, either by courts or by non-judicial actors such as banks, medical staff or real estate agents.

On 13 January 2000, under the auspices of the Hague Conference on Private International Law (HCCH), the intergovernmental organisation whose purpose is ‘to work for the progressive unification of the rules of private international law’¹, the Convention on the International Protection of Adults (HCCH 2000 Protection of Adults Convention) was adopted. This Convention provides a comprehensive body of rules on jurisdiction, applicable law, recognition and enforcement of protective measures, and provisions on the law applicable to powers of representation which give effect to such powers in a cross-border context. It also establishes mechanisms of cooperation between the competent authorities of Contracting States and between Central Authorities of Contracting States.

This Convention is widely considered as an efficient and flexible private international law instrument that is fit for purpose at global level. The recent work carried out under the Special Commission on the practical operation of the HCCH 2000 Protection of Adults Convention ² will soon provide practitioners with useful tools for its proper application, such as a Practical Handbook.

However, only 12 EU Member States are currently party to that Convention ³. Ratification of and accession to the HCCH 2000 Protection of Adults Convention by all Member States is a long‑standing EU objective.

Since 2008, the HCCH 2000 Protection of Adults Convention has been explicitly endorsed by the Council of the European Union ⁴ the European Parliament ⁵, and the European Commission ⁶. Broad ratification of the HCCH 2000 Protection of Adults Convention by Member States, and beyond, is essential for its effective operation. Parliament has actively supported the ratification of the Convention by all Member States, as well as a possible EU legislative initiative to complement the HCCH 2000 Protection of Adults Convention.

From 5 to 8 December 2018, the Commission and the HCCH organised an international joint conference to promote the ratification of the HCCH 2000 Protection of Adults Convention and examine possible shortcomings that would require further action ⁷.

On 3 May 2021, the Ministers of Justice of Czechia, France and Slovenia wrote to the Commission to request that the Commission speed up its preparatory work on a legislative initiative.

In June 2021, Council conclusions ⁸ were adopted which, inter alia, invited Member States to ratify the HCCH 2000 Protection of Adults Convention as swiftly as possible and prompted the Commission to consider the possible need for a legal framework within the EU to facilitate the circulation of protection measures and present, if necessary, legislative proposals.

In 2021-2022, the Portuguese, French and Czech Presidencies organised various events to raise awareness on this issue.

Notwithstanding these activities, the ratification pace of the Convention is still too slow. In some Member States, the draft law implementing the ratification has been pending for years in parliament, or it has not been submitted by the government notwithstanding the conclusion of the preparatory work. Other Member States are applying the Convention partially in practice (in particular the rules on jurisdiction and applicable law) without taking any initiative to formally ratify the Convention. This would imply the appointment of a Central Authority in order to render effective the cooperation among Contracting States.

Against this backdrop, the Commission has decided to present an initiative aimed at authorising those Member States not yet Party to the Convention to ratify or accede to it. Reference to this initiative is made in the Commission Work Programme 2022:’ We will propose measures […] to strengthen judicial cooperation on the protection of vulnerable adults in cross-border situations.

As the HCCH 2000 Protection of Adults Convention is open for signature and ratification to States which were Members of the Hague Conference on Private International Law on 2 October 1999 ⁹ (Article 53 of the Convention), the following Member States will have to both sign and ratify the Convention: Bulgaria, Spain, Croatia, Hungary, Romania, Slovenia, Slovakia, and Sweden. Conversely, Ireland, Italy, Luxembourg, Netherlands and Poland will only have to ratify the Convention as they have already signed it. Lithuania will have to accede to it, as it has been a Member of the Hague Conference on Private International Law since 23 October 2001.

• Consistency with existing policy provisions in the policy area

There is currently no EU legislation on cross-border protection of adults. However, the present proposal is part of a package with a Commission proposal for a Regulation of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of measures, authentic instruments and powers of representation and cooperation in civil matters relating to the protection of adults. The proposal provides for the application in Member States of some of the rules of the HCCH 2000 Protection of Adults Convention and lays down complementary rules to facilitate an even closer intra‑EU cooperation in this area.

The present proposal concerns ratification and accession for those Member States not yet Party to the HCCH 2000 Protection of Adults Convention, which is the only international instrument dealing with private international law issues concerning the cross‑border protection of adults.

Both proposals concern private international law, a well-developed policy area within the EU. Indeed, since 2000, the EU has adopted a number of legislative acts in the area of judicial cooperation in civil matters having cross-border implications. However, none of these legislative acts govern the cross-border aspects of legal capacity of persons ¹⁰ or the protection of adults who, ‘by reason of an impairment or insufficiency of their personal faculties’¹¹, are not in a position to protect their interests.

The proposed Regulation would apply in Member States, while the HCCH 2000 Protection of Adults Convention would be applicable vis-à-vis non-EU States that are Contracting States to the Convention. Since adults in the EU may have relations in respect of both Member States and non-EU States (for instance owning property there or having personal links there), a coherent private international law framework applicable to the protection of adults in both the EU and non-EU States that are party to the Convention is crucial for ensuring the protection of adults in international situations.

Both proposals are thus complementary to each other and for this reason are presented together.

• Consistency with other Union policies

The EU and its Member States are parties to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), which, since its adoption in 2006, represents the international foundation for the rights of people with disabilities.

Article 3(c) of the HCCH 2000 Protection of Adults Convention contains provisions allegedly favouring or condoning substituted decision-making measures (mostly because of the use of the term ‘guardianship, curatorship and analogous institutions’). The question has been raised whether this could favour or allow the recognition of measures establishing substituted decision-making rather than supported decision-making, and whether it would infringe the right to autonomy and equality of adults.

The consistency and complementarity of the HCCH 2000 Protection of Adults Convention with the rights laid down in the UNCRPD has been recognised on several occasions, for instance in the Conclusions and Recommendations (conclusions 2 and 3) adopted at the above-mentioned EC-HCCH Joint Conference in 2018 ¹².

The HCCH 2000 Protection of Adults Convention is a private international law instrument. It is neutral with regard to material law, which does not prescribe any type of measures, and, in its preamble, it puts the interest of the adult and the respect of their dignity and autonomy as primary considerations. By facilitating cross-border cooperation and removing legal and practical barriers, it furthers some important objectives of the UNCRPD. Among these are those of Article 12 on equal recognition before the law and of Article 32 on international cooperation, for which the HCCH 2000 Protection of Adults Convention establishes a system of Central Authorities.

In addition, not all people with a disability are adults in need of a cross-border protection within the meaning of the HCCH 2000 Protection of Adults Convention, but only those who are not in a position to protect their personal or financial interests. Conversely, not all adults whose psychosocial faculties are diminished are people with disability.

It is also worth recalling that the UNCRPD Committee, in its 2015 report on the implementation of the UNCRPD in the EU, expressed concerns as to barriers faced by people with disabilities when moving from one Member State to another. The Committee recommended that the EU ‘takes immediate action to ensure that all persons with disabilities and their families can enjoy their right to freedom of movement on an equal basis with others’¹³.

A legal study was commissioned by the Special Rapporteur on the rights of persons with disabilities ¹⁴, and a related joint statement ¹⁵ was made by the Special Rapporteur on the rights of persons with disabilities and the Independent Expert on the enjoyment of all human rights by older persons. These have clarified the issue by concluding that the HCCH 2000 Protection of Adults Convention leaves enough room for interpretation and practical improvements, and it can evolve to reflect the modernisation of national laws. The Special Rapporteur recalls that the HCCH 2000 Protection of Adults Convention contains provisions to avoid any conflict with the UNCRPD and that both instruments can and should supplement each other. The EU and all its Member States have to use the available room for interpretation in such a way as to ensure compliance with that Convention.

When applying the HCCH 2000 Protection of Adults Convention, the Contracting States that are also Parties to the UNCRPD are bound to respect the UNCRPD and the principles set out in it. It is also settled case law of the Court of Justice of the European Union that international conventions form an integral part of Union law so that their implementation must comply with the principle of proportionality, as a general principle of Union law ¹⁶.

In March 2021, the Commission adopted the Strategy for the Rights of Persons with Disabilities 2021-2030 ¹⁷. This addresses in particular the issue of ‘improving access to justice, legal protection, freedom and security’ for people with disabilities. To achieve this outcome, among the various initiatives, it is explicitly stated that ‘the Commission will work with Member States to implement the 2000 Hague Convention on the international protection of vulnerable adults in line with the UNCRPD, including by way of a study on the protection of vulnerable adults in cross-border situations, notably those with intellectual disabilities, to pave the way for its ratification by all Member States’¹⁸.

The Commission legal study was carried out in 2021 ¹⁹ and, inter alia, reached the conclusion that the ratification of the HCCH 2000 Protection of Adults Convention by all Member States would address some of the problems linked to the significant gaps and inconsistencies, which exist in the cross-border protection of adults.

Once this Decision is adopted by the Council, the HCCH 2000 Protection of Adults Convention will become part of Union law. It may thus be interpreted by the Court of Justice of the European Union in the light both of the general principles of the EU - safeguarding the free movement of people, access to justice, and full respect of fundamental rights - and of the UNCRPD.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

• Legal basis

This proposal regards the authorisation of certain Member States to ratify or accede to an international convention in the interest of the EU. Judicial cooperation in civil and commercial matters is governed by Article 81 TFEU, which is thus the legal basis of EU competence in this area. Therefore, the applicable legal basis is Article 218(6) of the Treaty on the Functioning of the European Union (TFEU) in conjunction with the substantive legal basis of Article 81 i TFEU.

Article 81(3) TFEU is not applicable because the cross-border protection of adults is not a family law matter.

The term ‘family law’ within the meaning of Article 81(3) TFEU must be interpreted autonomously regardless of the definition provided for in the national legislation of Member States.

So far, EU legislation has construed the notion rather strictly and has limited it to the rules governing family relationships, such as matrimonial matters, parental responsibilities or maintenance obligations.

It is not uncommon that vulnerable adults benefit from protection provided by family members. In some Member States, the legal protection of vulnerable adults is attributed, as a matter of law, to the spouse or to family members. However, the adult’s family, if indeed the adult has a family, is merely one of the contexts in which protection can be ensured. The involvement of family members is not a necessary requirement, nor is it governed by rules under private international law. Instead, the crucial concern in adult protection is the support provided, and ensuring the adult’s rights to dignity, self-determination, non-discrimination and social inclusion, regardless of his or her family relations.

It is to be noted that the HCCH 2000 Protection of Adults Convention does not contain any reference to family relationships (such as ‘parent’, ‘children’ or ‘spouse’), contrary to the EU Regulations covering family law matters.

The proposed Regulation will complement the HCCH 2000 Protection of Adults Convention and will incorporate some rules of the Convention, in particular those on international jurisdiction and applicable law, making them directly applicable in Member States.

Therefore, pursuant to established jurisprudence of the CJEU, there is a risk that the HCCH 2000 Protection of Adults Convention may affect or alter the scope of the proposed Regulation.

The scope of Union rules may be affected or altered by international commitments where such commitments are concerned with an area which is already covered to a large extent by such rules or in light of foreseeable developments of Union law, as in the present case.¹

Therefore, the HCCH 2000 Protection of Adults Convention falls within the exclusive competence of the Union in accordance with Article 3 i TFEU.

The EU therefore may authorise Member States to become or remain parties to the HCCH 2000 Protection of Adults Convention.

As only States can become parties to the Convention, which does not contain a clause that would allow the EU to become a party, Member States can ratify or accede to it as well as remain parties acting in the Union’s interest, pursuant to the settled jurisprudence of the Court of Justice of the European Union ².

A similar initiative was already taken in 2008 to authorise certain Member States to ratify or accede to the HCCH 1996 Convention on the Protection of Children ³.

By reason of Protocol No 21, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, legal measures adopted in the area of justice do not bind or apply in Ireland. However, once a proposal has been presented in this area, Ireland can notify its wish to take part in the adoption and application of the measure and, once the measure has been adopted, it can notify its wish to accept that measure.

In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Decision and is not bound by it or subject to its application.

• Proportionality

The present proposal is drafted along the lines of already adopted Council Decisions authorising Member States to join an international convention. It does not go beyond what is necessary to achieve the objective of a coherent EU action in the matter of cross-border protection of adults by ensuring, for Member States not yet Party to the Convention, that they ratify or accede to the HCCH 2000 Protection of Adults Convention within a given time frame.

It is also understood that Member States retain their competence as regards regulation of the adoption of rules under substantive law directed at the protection of adults.

The proposal therefore respects the principle of proportionality.

• Choice of the instrument

As the proposal concerns an international agreement to be ratified and acceded to in the interest of the Union by certain Member States, the only instrument applicable is a Council Decision, pursuant to Article 218(6).

3. RESULTS OF EX POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS

• Stakeholder consultations

This proposal, together with the parallel proposal for a Regulation on the matter, was preceded by intense and broad consultations with stakeholders.

The open public consultation¹ and the call for evidence² were carried out in early 2022. A majority of respondents, including Member States and professional organisations representing lawyers and notaries, supported an EU initiative that would oblige Member States to ratify the HCCH 2000 Protection of Adults Convention. They also called for an EU instrument supplementing the Convention. One NGO, an umbrella organisation for the protection of the rights of persons with disabilities, expressed concerns regarding the fundamental rights of adults with disabilities, if an EU instrument would favour the circulation of decisions taken in violation of UNCRPD and the fundamental rights of adults with disabilities. This is a recurring question concerning the relationship between the UNCRPD and the HCCH 2000 Protection of Adults Convention, which has been addressed by the study and joint statement mentioned under footnotes 14 and 15.

As part of the consultation strategy, an informal online meeting with stakeholders was organised on 29 September 2022. Moreover, on 27 October 2022, the Commission organised an online meeting with experts from Member States to provide information about the initiative on the protection of adults and to exchange initial views.

Finally, during the meeting held on 7 and 8 November 2022, the European Judicial Network in civil and commercial matters (EJN-civil) was consulted on its possible role in a future initiative.

To sum up, strong support and overall positive feedback on the HCCH 2000 Protection of Adults Convention could be identified in all consultation activities. Furthermore, the consultations showed a practical need, and support by most stakeholders, for additional measures at EU level.

• Collection and use of expertise

A legal study³ was carried out in 2021. The authors of the study reached the following conclusions: (i) significant gaps and inconsistencies exist in the cross-border protection of vulnerable adults (rules on jurisdiction, recognition of powers of representation, absence of legal certainty and practical problems for authorities); (ii) the general ratification of the HCCH 2000 Protection of Adults Convention in the EU would directly address some of those problems, both between Member States and with non-EU States; and (iii) an EU instrument would further strengthen the protection of vulnerable adults and facilitate their lives and the work of responsible authorities.

Additional expertise on the topic of cross-border protection of adults was also gathered in the study accompanying the European Parliament’s Legislative Initiative Report ⁴ (2016) and in the European Law Institute Report ⁵ (2020).

• Impact assessment

An impact assessment was carried out in 2022 to explore the various policy options available within the EU to improve the cross-border protection of adults and to assess their impact.

As this proposal only concerns the ratification of and accession to the HCCH 2000 Protection of Adults Convention by certain Member States, a more detailed explanation of the findings of the impact assessment will be given in the accompanying proposal for a Regulation. It is appropriate to limit the current analysis to the indication of the final policy choice.

This includes a Regulation complementing the Convention, and the ratification of and accession to the Convention by those Member States not yet Party to it. It would ensure that appropriate Private International Law rules for the protection of adults in cross-border situations would be applicable not only at EU level, but also between Member States and non-EU States. It is also expected that the ratification by all Member States would encourage more non-EU States to join the Convention.

• Fundamental rights

The general objective of the proposed action is to protect the fundamental rights of adults in line with Article 6 TFEU, the Charter of Fundamental Rights of the European Union and the UNCRPD.

In cross-border situations, this would entail in particular preventing dispossession or denial of access to the adult’s property abroad, ensuring access to justice, and ensuring self-determination and autonomy of the adults.

By harmonising rules of private international law, the HCCH 2000 Protection of Adults Convention connects different legal systems to facilitate, within the scope of the Convention, non-discriminatory respect for the rights of adults, protection of their interests, and the exercise of their legal capacity.

The preamble of the Convention reflects these values: it affirms that respect for both the dignity and the autonomy of the adult are to be primary considerations. Such priorities are also established in the preamble of the UNCRPD.

Under the rules of the Convention, if a measure of protection is taken in one Contracting State by a competent authority, that measure should continue to have effect in another Contracting State, for instance if the adult happens to move from one Contracting State to another. The Convention also includes safeguards that allow for the measures not to be recognised or enforced if, for example, the measure was taken by an authority whose jurisdiction was not based on, or was not in accordance with, one of the grounds provided for by the Convention, or if the recognition of the measure would be contrary to the public policy of the requested State ⁶. In this context, non-compliance with the fundamental rights of the adult concerned by the measure could justify refusal of recognition.

4. BUDGETARY IMPLICATIONS

The proposed decision has no budgetary implications for the European Union.

5. OTHER ELEMENTS

• Implementation plans and monitoring, evaluation and reporting arrangements

As the proposal concerns the authorisation of certain Member States of the European Union to ratify or accede to the HCCH 2000 Protection of Adults Convention, the monitoring of its implementation is primarily aimed at the respect by those Member States of the time frame to ratify or accede to the Convention, in line with the Council Decision.

However, once all Member States are Party to the Convention, it is planned to carry out several actions to raise awareness of the Convention and to ensure its correct application. In addition, coordinated EU positions will be adopted as part of preparation for future Special Commissions on the operation of the Convention; this will allow the EU to monitor the implementation of this instrument by Member States.