Considerations on 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
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| dossier | COM(2023)281 - Authorisation of Member States to become or remain parties to the Convention of 13 January 2000 on the International ... |
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| document | COM(2023)281 |
| date | May 31, 2023 |
(2) To fulfil this objective, the Union has adopted a number of legislative acts in the area of judicial cooperation in civil matters having cross-border implications. The Union is also Party, in its own right or through its Member States acting in the interest of the Union, to several international Conventions in the same field.
(3) However, there is no Union legislation in the matter of the cross-border protection of adults, who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their interests, or who may require that the support in the exercise of their legal capacity provided to them in one Member State continues across the Union.
(4) Various difficulties may arise for the adults in cross-border situations, including where those adults move to another Member State or when they own property or assets in another Member State. Difficulties may arise for instance where measures taken in one Member State with a view to protecting the adults need to be invoked in another Member State, or where powers of representation granted by the adults to be exercised by their representatives when the adults are not in a position to protect their interests need to be later invoked abroad. Those difficulties can have serious adverse consequences on legal certainty in cross-border dealings and on the rights and wellbeing of the adults and on respect for their dignity. In particular, fundamental rights of the adults, such as access to justice, the right to self-determination and autonomy, the right to property and to free movement, may be negatively affected.
(5) Uniform private international law rules governing cross-border situations are thus necessary to enhance the protection of fundamental rights of adults with an impairment or insufficiency of their personal faculties. At international level, the Convention of 13 January 2000 on the International Protection of Adults (‘HCCH 2000 Protection of Adults Convention’) includes such rules. The Convention provides for rules on jurisdiction, applicable law, recognition and enforcement of measures for the protection of those adults, on applicable law for powers of representation and rules on cooperation among authorities of its Contracting Parties.
(6) Pursuant to the HCCH 2000 Protection of Adults Convention, only sovereign States may be party to it. For that reason, the Union may not conclude that Convention.
(7) The ratification of and the accession to the HCCH 2000 Protection of Adults Convention by all Member States is a long-standing objective pursued by the European Union.
(8) To date Belgium, the Czech Republic, Germany, Estonia, Greece, France, Cyprus, Latvia, Malta, Austria, Portugal, and Finland are Party to the HCCH 2000 Protection of Adults Convention. Ireland, Italy, Luxembourg, Netherlands and Poland have only signed it.
(9) On […], the Commission submitted a legislative proposal for a Regulation on jurisdiction, applicable law, recognition and enforcement of measures, authentic instruments and powers of representation and cooperation in civil matters relating to the protection adults (the ‘proposed Regulation’). The proposal provides for the application of some of the rules of the HCCH 2000 Protection of Adults Convention between Member States and lays down complementary rules in order to facilitate an even closer intra-EU cooperation in this area. The provisions of the proposed Regulation overlap and are in close connection with the HCCH 2000 Protection of Adults Convention.
(10) For this reason, there is a risk that the HCCH 2000 Protection of Adults Convention may affect or alter the scope of the proposed Regulation. Therefore, the HCCH 2000 Protection of Adults Convention falls within the exclusive competence of the Union in accordance with Article 3(2) of the Treaty on the Functioning of the European Union.
(11) The Council should therefore authorise the Member States not yet parties to the HCCH 2000 Protection of Adults Convention to sign, ratify, or accede to, the Convention in the interest of the Union, under the conditions set out in this Decision. The Council should also authorise the Member States that are parties to the HCCH 2000 Protection of Adults Convention to remain parties thereto.
(12) The Union and its Member States are parties to the United Nations Convention on the Rights of Persons with Disabilities (‘UNCRPD’).
(13) Under the Treaty on European Union and the Treaty on the Functioning of the European Union, the competence to adopt substantive and procedural rules in the area of the protection of adults lies with the Member States. As contracting Parties to the UNCRPD, Member States are to ensure that their national substantive and procedural laws on the treatment of adults are consistent with the human rights obligations provided by the UNCRPD, including the measures of “guardianship” and “curatorship” as well as incapacitation as referred to in Article 3 of the HCCH 2000 Protection of Adults Convention.
(14) The rules of the HCCH 2000 Protection of Adults Convention should be applied consistently with the human rights obligations under the UNCRPD.
(15) The non-respect of this obligation should also affect the recognition and enforcement by Member States of measures taken by third countries.
(16) [[In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the TFEU, and without prejudice to Article 4 of that Protocol, Ireland is not taking part in the adoption of this Decision and is not bound by it or subject to its application.] OR
(17) In accordance with Article 3 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Ireland has notified[, by letter of …,] its wish to take part in the adoption and application of this Decision
(18) In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed 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.