Considerations on COM(2023)280 - Jurisdiction, applicable law, recognition and enforcement of measures and cooperation in matters relating to the protection of adults - Main contents
Please note
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 |
(2) The Union has set itself the objective of creating, maintaining and developing the Union as an area of freedom, security and justice in full respect of fundamental rights in which the free movement of persons is ensured. For the gradual establishment of such an area, the Union is to adopt, among others, measures relating to judicial cooperation in civil matters, particularly when necessary for the proper functioning of the internal market.
(3) In accordance with Article 81(2) of the Treaty on the Functioning of the European Union ('TFEU'), such measures may include those aimed at ensuring the compatibility of the rules applicable in the Member States concerning conflict of laws and jurisdiction and the mutual recognition and enforcement between Member States of judgments and of decisions in extrajudicial cases.
(4) The Union has adopted a number of legislative acts in the area of judicial cooperation in civil matters having cross-border implications. With the exception of a rule on the capacity of natural persons in the context of cross-border contractual obligations in civil and commercial matters laid down in Article 13 of the Regulation (EC) No 593/2008 of the European Parliament and the Council10, none of those Union legislative acts governs the cross-border aspects of legal capacity of natural persons. Similarly, no legal act of the Union governs the civil aspects of the cross-border protection of adults who, by reason of barriers faced in the interaction between an impairment or insufficiency of their personal faculties and a range of personal factors and factors linked to their living environment, are not in a position to protect their interests, or who may require that the support and safeguards in the exercise of their legal capacity provided to them in one Member State continues across the Union.
(5) In the absence of such common rules, various difficulties may arise for the adults who are not in a position to protect their interests in cross-border situations, including where those adults move to another Member State or where they own real property or other assets in another Member State. Difficulties may arise for instance where measures taken in one Member State with a view to protecting the adults, including support measures provided to exercise their legal capacity, need to be invoked in other Member States, 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 autonomy, and the right to property and to free movement, may be negatively affected.
(6) 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’) 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 competent authorities or Central Authorities of its contracting Parties.
(7) The HCCH 2000 Protection of Adults Convention does not prevent its contracting Parties from furthering their cooperation in the field of the protection of adults beyond the provisions of that Convention itself or even departing from its rules in their mutual relations. In compliance with Article 49(2) and (3) of the HCCH 2000 Protection of Adults Convention, this Regulation establishes rules in the matters covered by that Convention in respect of adults having habitual residence in a Member State. The rules established by this Regulation should not affect, in the relationship of the Member States with third States that are contracting Parties to the HCCH 2000 Protection of Adults Convention, the application of that Convention.
(8) This Regulation should incorporate some rules from the HCCH 2000 Protection of Adults Convention, in particular on international jurisdiction and applicable law, and makes them directly applicable in relations between Member States. However, it is appropriate that in relations between Member States, the Union further improves the protection of adults in cross-border situations within the Union, building on the principle of mutual trust between Member States and on the experience from other areas of judicial cooperation in civil matters. This Regulation should thus complement the rules of the HCCH 2000 Protection of Adults Convention by laying down rules aimed to simplify, streamline and modernise the procedures and the cooperation among competent authorities of Member States. In particular, it should be possible to foster the right to autonomy of adults and their right to exercise their legal capacity on an equal basis with others, by facilitating the use, in a cross-border context, of powers of representation, whereby adults have organised in advance their protection for a time when they will not be in a position to look after their own interest, and giving full and immediate effect to choices made by the adults.
(9) Given the complementarity of this Regulation and the HCCH 2000 Protection of Adults Convention, as well as the need to ensure continued protection of adults in cross-border situations involving Member States and third countries, the interpretation of the rules laid down in this Regulation and those included in the HCCH 2000 Protection of Adults Convention should be aligned, where possible.
(10) In addition, the interpretation of the rules laid down in this Regulation should be guided by its objectives that are to enhance the protection of fundamental rights and freedoms and other rights of adults in cross-border situations, including their right to autonomy, access to justice, right to property, right to be heard, right to free movement and equality. In this regard, this Regulation builds on the Charter of Fundamental Rights of the European Union (‘Charter’) and on international human rights law in this area. In particular, a significant part of adults to which this Regulation applies are persons with disabilities. Their rights, including the right to equality before the law, integrity, access to justice and respect for their inherent dignity and individual autonomy, are guaranteed by the United Nations Convention on the Rights of Persons with Disabilities11 (‘UNCRPD’), to which both the Union and its Member States are parties. The rights safeguarded in the UNCRPD are to be protected both in national and cross-border cases, and where measures are taken in relation to persons with disabilities, those measures are to be in line with the UNCRPD. This Regulation, laying down private international law rules for cross-border cases, should be applied consistently with the human rights obligations under the UNCRPD, in particular with its Articles 3, 9, 12 and 19. 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. In particular, Member States are to respect the equality of adults before the law and their right to enjoy legal capacity on equal basis with others in all aspects of life, with the support that they may require, as well as the autonomy and integrity of the adults in accordance with Article 12 of the UNCRPD.
(11) Besides the protection, in cross-border situations, of fundamental rights and freedoms and other rights of adults, including the respect for their will and preferences, this Regulation also aims to improve the effectiveness and speed of judicial and administrative proceedings concerning the protection of adults by simplifying and streamlining the mechanisms for cooperation in cross-border proceedings. It further aims to strengthen legal certainty and predictability in cross-border dealings, both for adults and their representatives and for other parties, whether they are public or private entities. Providing greater legal certainty and simpler, streamlined and digitalised procedures should also encourage individuals to exercise their right to free movement.
(12) This Regulation should cover civil matters involving the protection of adults, in particular related to measures, authentic instruments and powers of representation, aimed at the protection of an adult. The protection is required due to an insufficiency or an impairment of the personal faculties of the adult, which can be permanent or temporary and, among others, of physical or psychosocial nature, or in connection with an age-related disease, such as Alzheimer’s disease, or resulting from a health condition, such as a coma. The protection is in particular required where barriers in the interaction with a range of environmental and personal factors hinder their participation in society on equal basis with others, in particular where the insufficiency or impairment of the personal faculties of the adult is such as to prevent that adult from looking after his or her own interests, such as property interests and personal or health interests. Serious neglect of the personal or property interests of the relatives for whom the adult is responsible may also reveal an impairment or insufficiency of the adult's personal faculties.
(13) Where measures have been taken for the protection of a child, and are to remain in force or take effect after that child reaches the age of majority, they should fall within the scope of this Regulation as soon as the child has reached 18 years of age.
(14) The terminology used for protective measures differs in the legal systems of each Member State and these differences in terminology should not affect the recognition of those protective measures in other Member States.
(15) Irrespective of the legal terminology used in each Member State, measures directed to the protection of adults and taken in compliance with the fundamental rights of the adults concerned should circulate without obstacles in the Union. To this end, this Regulation should be interpreted in accordance with the Charter and the UNCRPD. To protect the right to autonomy, safeguards should be provided in this Regulation and make it possible to refuse recognition of measures which are taken without providing the adult with the opportunity to be heard, except in justified exceptional circumstances related to the urgency of the situation, or which are manifestly contrary to public policy. Where assessing whether a measure taken by the authorities of another Member State is not manifestly contrary to public policy, the authorities of a Member State where the recognition is sought should assess whether that measure ensures the fundamental rights of the adult, in light of Articles 3, 9 12 and 19 of the UNCRPD.
(16) To ensure a uniform interpretation of this Regulation, this Regulation should define in particular the notions of adults, representatives and authorities, which may have divergent meanings in the Member States legal systems. For the purposes of this Regulation, an adult is a person who has reached the age of 18 years. Depending on the context, this should refer for example to adults who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their interests, or adults who granted powers of representation to be exercised when those adults are not in a position to protect their interests.
(17) References to a representative in this Regulation should be construed as referring to one or more representative(s), as appropriate.
(18) For the purposes of this Regulation, and in line with the terminology used in the HCCH 2000 Protection of Adults Convention, the concept of ‘authority’ should be interpreted as referring to the judicial or administrative authorities taking measures directed to the protection of the adult. More broadly, a ‘competent authority’ should be interpreted as referring to a public authority of a Member State with responsibilities in matters of protection of adults. This includes authorities taking measures, authorities drawing up authentic acts and authorities issuing attestations, forms or the European Certificate of Representation. It further includes other authorities, or entities acting in an official capacity in matters related to the protection of adults, such as those that are responsible for the supervision or implementation of measures.
(19) The rules on international jurisdiction and on applicable law in respect of the protection of adults should be those set out in the HCCH 2000 Protection of Adults Convention, to avoid discrepancies and ensure, to the extent possible, that the same rules apply to a case involving Member States and third countries that are party to that Convention. Some Member States may not be contracting Parties to the HCCH 2000 Protection of Adults Convention at the time this Regulation will be applicable. To take account of all scenarios, the HCCH 2000 Protection of Adults Convention should be attached to this Regulation.
(20) It is appropriate to supplement the system of international jurisdiction established by the HCCH 2000 Protection of Adults Convention to give due weight to the choice of jurisdiction made by adults in the Union. To better protect the right to autonomy of the adults, the choice of jurisdiction made by adults when making arrangements for their future representation should be respected without the need for additional proceedings in particular for the approval by the authorities of the Member States of the habitual residence of the adults. Nevertheless, taking into consideration that the personal or financial circumstances of an adult may evolve between the time when the choice of jurisdiction is made and the time when the adult is in need of protection, the courts chosen should have the possibility to assess whether the choice made by the adult is still in the interests of that adult at the time they are seised. This assessment should be made primarily with regard to the views of that adult, and the significance of the changes in his or her living conditions and assets since the time when the choice of jurisdiction was made.
(21) The establishment of an additional ground of jurisdiction based on the choice of the adult should not disrupt the mechanism established by the HCCH 2000 Protection of Adults Convention, nor affect the effectiveness of communication between authorities, and should avoid positive and negative conflicts of jurisdiction. The mechanisms established by Articles 7, 9, 10 and 11 of the HCCH 2000 Protection of Adults Convention giving priority to certain grounds of jurisdiction, limiting the effects of certain measures, and setting up an exchange of information between the authorities of the habitual residence and the authorities with subsidiary or concurrent jurisdiction, should therefore also apply in the Union to authorities exercising their jurisdiction according to the choice made by the adult. Thus, those provisions should apply in respect of the authorities chosen by an adult in the same way as they apply in respect to the authorities of the habitual residence.
(22) The authorities contemplating the exercise of their jurisdiction according to the choice made by the adult should not exercise their jurisdiction where the authorities of the habitual residence of the adult have already exercised their jurisdiction, in particular where those authorities have taken a measure, or have decided that no measure should be taken, or where proceedings are pending before them.
(23) This Regulation should fully incorporate the rules on applicable law laid down by the HCCH 2000 Protection of Adults Convention. To ensure consistent application of this Regulation, the reference to Chapter III of the HCCH 2000 Protection of Adults on applicable law should be read as referring to the whole chapter, including the rules laid down by Article 16 of the Convention regarding the modification or termination of powers of representation.
(24) Mutual trust in the administration of justice in the Union justifies the principle that measures directed to the protection of adults given in a Member State should be recognised in all Member States without any special procedure being required. This should not preclude any interested person from applying for a decision that there are or that there are no grounds for refusal of recognition. It should be for the national law of the Member State where such application is made to determine who should be considered as an interested person entitled to make such application. To safeguard the right of the adults to access to justice and provide them with sufficient remedies, and irrespective of the nature and the extent of the measure, adults should have the right to apply for a decision that there are or that there are no grounds for refusal.
(25) The recognition and enforcement of measures should be based on the principle of mutual trust. Therefore, the grounds for non-recognition should be kept to the minimum in the light of the underlying aim of this Regulation which is to facilitate recognition and enforcement of measures and the circulation of powers of representation and to effectively safeguard the rights of the adults. In particular, the jurisdiction of the authorities of the Member State of origin should not be reviewed.
(26) It should only be possible to refuse the recognition of a measure if one or more of the grounds for refusal of recognition are present. To uphold the principle of mutual trust, the list of grounds for refusal of recognition in this Regulation should be exhaustive. Measures directed to the protection of adults may be long-term ones and involve successive adjustments. The rules applicable to refusal of recognition of measures should take account of those changes over time. Therefore, a later measure, taken in a third country which would have had jurisdiction under the rules of this Regulation, should supersede an earlier measure to the extent that they are irreconcilable. To avoid that incompatible measures are taken in the Member States, the closed system of jurisdiction and the mechanism of mutual information between competent authorities and Central Authorities should be established by this Regulation.
(27) Proceedings directed to the protection of an adult should, as a basic principle, be guided by the views expressed by the adult. Adults should thus be given an effective and genuine opportunity to express their views freely in accordance with Articles 20, 25, 26, and 47 of the Charter and Articles 3, 9, 12, 13 and 19 of the UNCRPD. The opportunity for the adult to express his or her views should be given, except in cases of urgency, including cases where the adult is absolutely unable to express his or her views. A measure taken without the adult having had an opportunity to be heard, apart from the exceptional circumstances of urgency and the demonstrated incapacity to express himself or herself, may not be recognised. The fact that the adult has had an opportunity to be heard should be assessed uniformly in the Union, and should not be assessed against the fundamental procedural principles of the Member State where recognition is sought. An example of a case of urgency is a situation where the adult needs to undergo urgent surgery and is not, because of his or her medical condition, in a position to express his or her views.
(28) The question of the procedure and the method of the hearing of the adult should be left to national law, with due respect for the rights of adults to accessibility. When a hearing is required in a cross-border context, Member States authorities should use the specific instruments of international judicial cooperation, including, where appropriate, those provided for by Regulation (EU) 2020/178312.
(29) In order to take account of the different systems for dealing with the protection of adults in Member States, authentic instruments directed to the protection of adults and their interests should be accepted in all Member States. An authentic instrument directed to the protection of an adult or his or her interests drawn up by an authority of a Member State may in particular record powers of representation granted by an adult for a time when that adult will not be in a position to protect his or her interests, or advance directives recording wishes and preferences of the adult or giving direct instructions in some matters including health, welfare or appointment of a representative by an authority. Those authentic instruments should have the same evidentiary effects in another Member State as they have in the Member State of origin, or the most comparable effects. When determining the evidentiary effects of a given authentic instrument in another Member State or the most comparable effects, reference should be made to the nature and the scope of the evidentiary effects of the authentic instrument in the law of the Member State of origin.
(30) To facilitate the circulation of measures and authentic instruments in the Union, it is necessary to provide for attestations to accompany them where they need to be recognised, enforced, or, as the case may be, accepted abroad. The procedures for rectifying, withdrawing and challenging attestations used for the recognition and enforcement of measures and the acceptance of authentic instruments should be left to national law. In light of the case-law of the Court of Justice, authorities exercise judicial functions when issuing the attestations and issuance of forms part of the continuity of the previous judicial proceedings. Therefore, adequate and effective remedies in the context of this issuance should be made available by Member States.
(31) Central Authorities should be designated in all Member States. Central Authorities should in particular assist competent authorities in cross-border proceedings, and cooperate both in general matters and in specific cases. In individual cases, the cooperation should not be limited to a specific part of the judicial or administrative procedure, and should be initiated and continued where a cross-border element exists and there is a need for cooperation.
(32) To avoid unnecessary intermediaries and foster expedite communication, competent authorities should be able to request information or assistance directly from the Central Authority of the requested Member State, but should also have the possibility, where appropriate, to send their request through the Central Authority of their Member State.
(33) According to Article 19 of the UNCRPD, persons with disabilities are to have the opportunity to choose their place of residence and where and with whom they live, on an equal basis as others, and not to be obliged to live in a particular living arrangement. For the purposes of this Regulation, situations may arise where the authorities of a Member State need to take a measure concerning the place of residence or temporary placement of an adult. Examples of such situations are cases where authorities provide assistance to the adult in making a decision on his or her place of residence or where an adult is not in a position to express his or her views and has not granted powers to make a decision concerning his or her place of residence to a representative, and an admission to a care facility is required. Where such placement is to be implemented in another Member State, a consultation procedure for obtaining consent of the Central Authority of the Member State of implementation should be carried out prior to taking that measure. The request for consent made by the authority of origin should include the reasons for the proposed measure, and the views expressed by the adult concerned where possible, in light of Article 19 of the UNCRPD. The Central Authority of the Member State of implementation should be able to decide promptly whether to grant the consent or to refuse it. The absence of a reply within six weeks should not be understood as consent and without consent the measure should not be implemented. The consultation should not be carried out when the placement is with an individual and does not require the supervision of any public authority of the Member State of implementation.
(34) In situations where the adult has substantive connections with a Member State other than the one whose authorities have jurisdiction under this Regulation, for example based on his regular presence, or complex financial assets in that State, the appointment of a representative in that other Member State may be required. In those situations, geographical proximity of the representative and good knowledge of the legislation may be necessary to ensure the continuity of the protection of the adult. In cases where that representative in another Member State should be appointed from a competent authority, it should be possible to request the designation of such a representative to the authorities of that other Member State to which the adult has substantive connections, and it should be possible to recover the expenses incurred.
(35) Representatives of adults who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their interests, should be able to invoke their powers to represent those adults and to protect the interests of those adults without obstacles within the Union. Therefore, representatives should be able to demonstrate easily their status and powers in another Member State, for instance in a Member State in which adult’s real property or other assets are located. To enable them to do so, a European Certificate of Representation (‘the Certificate’) should be created. That Certificate should be a uniform certificate to be issued for use in another Member State. In order to respect the principle of subsidiarity, the Certificate should not take the place of internal documents, which may exist for similar purposes in the Member States.
(36) The Certificate can be requested by the adult's representative on the basis of an existing measure or confirmed powers of representation (the ‘source measure’ and ‘source confirmed powers of representation’). It should thus only be issued in situations where an adult is effectively not in a position to protect his or her interests and the representative is entitled to actively represent that adult in one or more specific matters. The Certificate should include information on the extent of the powers which the representative is entitled to exercise on behalf of an adult and, where relevant, on the matters where the representative is not entitled to act or is entitled to act under certain conditions.
(37) The use of the Certificate should not be mandatory. This means that a representative of an adult entitled to apply for a Certificate should be under no obligation to do so but should be free to use national documents or other instruments available under this Regulation (a measure or an authentic instrument) when invoking his or her powers in another Member State. Persons acting on their own behalf should not be required to present a Certificate, so the Certificate should be issued only for representatives who need to demonstrate their powers to act in support or on behalf of an adult.
(38) To expedite the issuance of the Certificate and to ensure that the competent authority issuing the Certificate has sufficient information about the case at hand, the competence to issue the Certificate should be vested with the competent authority, which has either taken the measure or confirmed the powers of representation, or with another competent authority that has access to information on the source measure or the source powers of representation (‘issuing authority’). It should be for each Member State to designate its issuing authorities and to determine whether they may involve other competent bodies in the issuing process. The Member States should communicate to the Commission the relevant information concerning the authorities empowered to issue a Certificate in order for that information to be made publicly available.
(39) To ensure that the process of the issuance of the Certificate is uniform throughout the Union, this Regulation should provide rules on the issuance of the Certificate. The issuing authority should issue the Certificate upon application and after verifying the elements to be certified. The process for the application for and the issuance of the Certificate should be simplified by the fact that the authority issuing the Certificate has access to the source measure or source confirmed powers of representation and has knowledge concerning their continued validity and the information contained therein. Where feasible, the issuing authority should consult the system of interconnection of protection registers established in this Regulation before the issuance of the Certificate to verify whether a conflicting measure or powers of representation exist in another Member State. Where the applicant indicates in the application for a Certificate that the Certificate should serve to demonstrate their powers for a specific purpose or in a specific context, the issuing authority should, as far as possible, include in the Certificate sufficiently detailed information that reflects that purpose or context. The original of the Certificate should remain with the issuing authority, which should issue one or more certified copies of the Certificate to the applicant. The Certificate should be issued in a mandatory form set out in the annex to this Regulation. To reduce translation costs when the Certificate is presented in another Member State, the form for the Certificate set out in the annex to this Regulation should be available in all Union languages.
(40) To ensure that the Certificate and its certified copies remain up-to-date and based on a valid source measure of source confirmed powers of representation, the validity of the Certificate and of its certified copies should be limited in time. Upon the expiry of the Certificate, the issuing authority may issue a new Certificate if all the elements for the issuance of the Certificate are verified. The purpose of the limited validity is to ensure that the issuing authority regularly verifies that the legal situation concerning the adult has not changed, for instance on the basis of a later measure concerning the adult or of a revocation of the representative’s powers. The validity of the Certificate should be in principle limited to one year. However, the issuing authority may determine the validity period of the Certificate differently on a case-by-case basis, in particular bearing in mind the presumption of validity of the Certificate and the effects linked to the issued Certificate, especially the protection of third parties transacting with the representative. The issuing authority should consider in particular the nature and the expected duration of the protection, the validity of the source measure, any arrangements made by the adult in the source confirmed powers of representation, as well as the objective that the Certificate should reflect accurately the legal situation of the adult throughout the duration of validity of the Certificate. Against this background, the issuing authority may issue the Certificate for a shorter period than a year, for instance where the source measure is to last less than a year, or issue it for a longer period than a year, for instance where the source measure is to last for several years and the probability of a change of circumstances concerning the adult is minimal. The validity period of the certified copies of the Certificate should correspond to the validity period of the Certificate.
(41) The Certificate should produce the same effects in all Member States. It should not be an enforceable title in its own right but should have an evidentiary effect and should be presumed to demonstrate accurately elements included in the Certificate which have been established under the law applicable to the protection of a particular adult or under any other law applicable to specific elements. That presumption of accuracy is strengthened by the fact that before issuing the Certificate, the issuing authority should verify, including through the system of interconnection, that the source measure or the source confirmed powers of representation remain valid and have not been replaced by a later measure or confirmed powers of representation. However, the evidentiary effects of the Certificate should not extend to elements which are not governed by this Regulation, such as to the question whether or not a particular asset belonged to the adult.
(42) Any person who deals with a representative indicated in a valid Certificate as being entitled to represent an adult in a specific matter should be afforded appropriate guarantees if he or she acted in good faith relying on the accuracy of the information certified in the Certificate. The same guarantee should be afforded to any person who, relying on the information certified in a valid Certificate, gives access to the adult’s representative to real property or other assets of the adult, makes payments to the representative, or buys or receives property from that representative, where the representative is indicated in a valid Certificate as being entitled to act on behalf of the adult in those matters. The protection should be ensured if certified copies which are still valid are presented.
(43) To ensure access to justice and to improve the reliability of the Certificate, it is necessary to provide for redress against decisions of the issuing authority to issue or to refuse to issue a Certificate or decision to rectify, modify or withdraw a Certificate. Where the Certificate is rectified, modified or withdrawn, the issuing authority should inform the persons to whom certified copies have been issued so as to avoid wrongful use of such copies.
(44) To ensure a continuous protection of adults in cross-border situations in the Union, competent authorities and Central Authorities should have access to relevant information on the existence of measures taken by other authorities, including those measures that have been taken in another Member State. In addition, it is crucial for safeguarding of the right to autonomy and freedom to make one's own choices that the will expressed by an adult in powers of representation is respected, even in cases where those powers of representation have been granted by the adult in another Member State or confirmed by competent authorities of another Member State. In order to improve the provision of information to relevant competent authorities and Central Authorities and to prevent parallel proceedings or failure to take account of powers of representation, Member States should be required to set up and maintain one or more registers recording data related to the protection of adults. Protection registers should record mandatory information concerning measures taken by their authorities and, where their national law provides for a confirmation by a competent authority of powers of representation, mandatory information concerning those confirmed powers of representation. To ensure interoperability and availability of information related to the protection of adults in the Union, those Member States that have established, prior to the adoption of this Regulation, registers of protection measures, of confirmed powers of representation, or other types of powers of representation which are registered under their national law, should make the same mandatory information available in those registers.
(45) To ensure that the information provided through the system of interconnection is relevant, Member States should not be prevented from making available through the system of interconnection additional information besides the mandatory information. In particular, Member States should have the possibility to make available through the system of interconnection information in relation to the nature of the measure, the name of the representative, or historical data concerning measures and powers of representation recorded prior to the application of this Regulation.
(46) To facilitate access to the information recorded in protection registers or registers of other powers of representation for competent authorities and Central Authorities with a legitimate interest located in other Member States, those registers of measures, confirmed powers of representation, or other types of powers of representation should be interconnected. This Regulation should provide legal basis for that interconnection.
(47) The interconnection of Member States' registers is an essential component of the cooperation mechanism to safeguard the rights of adults in cross-border cases and ensure legal certainty in the Union. Member States should hence ensure that the information stored in their registers is up-to-date. The authorities of a Member State, when amending or terminating a measure taken in another Member State, should ensure that appropriate information is provided to the authorities of that other Member State, in particular so that the other Member State can update its protection register(s).
(48) Modern and time-efficient means of written communication among Member States' competent authorities and Central Authorities should be ensured. For the proceedings under this Regulation, written communication between Member States competent authorities and Central Authorities should, as a rule, be carried out by electronic means, via a secure and reliable decentralised IT system. The decentralised IT system should be comprised of the back-end systems of Member States and interoperable access points, including the European electronic access point, through which they should be interconnected. The access points of the decentralised IT system should be based on the e-CODEX system established by Regulation (EU) 2022/850 of the European Parliament and of the Council13.
(49) Transmission through the decentralised IT system could be impossible due to a disruption of the system or where the nature of what has to be transmitted makes transmission by digital means impracticable, such as the transmission of physical or material evidence. Where the decentralised IT system is not used, communication should be carried out by the most appropriate alternative means. Such alternative means should entail, inter alia, transmission being performed as swiftly as possible and in a secure manner by other secure electronic means or by postal service.
(50) To ensure the flexibility of certain cross-border procedures for the protection of adults, other means of communication could be more appropriate. Therefore, communication through the decentralised IT system should not be obligatory for direct communication between authorities, in particular where the authorities need direct personal communication. In such cases, less formal communication means, such as email, could be used. Considering that authorities deal with sensitive data, the security and reliability of the information exchange should always be taken into account when selecting the appropriate means of communication.
(51) It is necessary to provide for a modern means of access to justice making it possible for natural and legal persons and Member States' competent authorities to communicate electronically through the European electronic access point established on the European e-Justice Portal by Regulation (EU) […/…] of the European Parliament of and the Council14 [the Digitalisation Regulation].
(52) The European electronic access point should allow the electronic communication of natural and legal persons with Member State's competent authorities in the context of the proceedings for a decision on the recognition or non-recognition of a measure, of the issuance of attestations, and of issuance, rectification, modification, withdrawal, suspension or redress procedures of the European Certificate of Representation. Member State's competent authorities should communicate through the European electronic access point only where the individual or private entity concerned has given prior express consent to the use of this means of communication.
(53) Any processing of personal data under this Regulation should be undertaken in accordance with Regulations (EU) 2016/67915 and (EU) 2018/172516 and Directive 2002/58/EC17 of the European Parliament and of the Council. Personal data should be processed under this Regulation only for the specific purposes set out therein, without affecting further processing for archiving purposes in the public interest in accordance with Articles 5(1)(b) and 89 of Regulation (EU) 2016/679.
(54) In general, personal data to be processed under this Regulation should be in particular data contained in the documents handled by Member States' competent authorities and Central Authorities concerning adults within the scope of this Regulation and their representatives. That personal data should concern in particular the information needed to take a measure concerning adults within the scope of this Regulation and to ensure their continued protection in cross-border situations. In applying this Regulation, that personal data will be handled by Member States’ competent authorities and Central Authorities. In addition, the Commission may need to process that data for the purposes of developing and maintaining the digital communication means. This Regulation should not limit the storage period of information and personal data processed by the Member States’ competent authorities and Central Authorities, since the protection of adults often needs to be ensured in a long term and the measures and authentic instruments remain relevant for an extended period of time.
(55) Besides the above-described data processing, personal data should also be processed under this Regulation for the purposes of establishing the system for the interconnection of protection registers and other registers of powers of representation and of ensuring the maintenance and proper functioning of that system. This additional processing is justified by the need that Member States’ competent authorities and Central Authorities with a legitimate interest have access to information on whether a particular adult is protected in another Member State, with a view to ensuring continued protection of that adult in cross-border situations and to increasing legal certainty and predictability. Member States should be responsible for the technical management, maintenance, and security of their registers and, as far as their national law provides, for the correctness and reliability of the data included therein. Data relating to data subjects should be primarily stored in the registers maintained by Member States. In addition, the Commission may need to process data for the purposes of developing and maintaining the system of interconnection and temporarily store data that are accessed through the system of interconnection.
(56) Member States’ competent authorities and Central Authorities should process personal data in accordance with applicable data protection legislation, in particular Regulation (EU) 2016/679. This Regulation should provide for the legal basis for the processing of personal data by Member States’ competent authorities and Central Authorities pursuant to Article 6(1) and (3) of Regulation (EU) 2016/679. This Regulation should also provide for the legal basis for processing of personal data by the Commission pursuant to Article 5(1) and (2) of Regulation (EU) 2018/1725.
(57) In addition, data concerning adults processed under this Regulation may also include personal data concerning health of those adults. Those health-related personal data may either be explicitly included in the documents processed under this Regulation or they may be indirectly deduced from the fact that an adult is not, by reason of an impairment or insufficiency of his or her personal faculties, in a position to protect his or her interests. Pursuant to Article 9 of Regulation (EU) 2016/679, personal data concerning health should be treated as special category of personal data. This Regulation should provide conditions and safeguards for the processing of those special categories of personal data by Member States’ competent authorities and Central Authorities in line with Article 9(2) of Regulation (EU) 2016/679. Data will be processed by Member States’ authorities in their judicial capacity in conformity with point (f) of that Article, or the processing will be, in conformity with point (g) of that Article, necessary for reasons of substantial public interest on the basis of this Regulation, which aims to enhance the protection of fundamental rights and freedoms and other rights of adults in cross-border situations, to improve the effectiveness and speed of judicial and administrative proceedings concerning the protection of adults and to strengthen legal certainty and predictability in cross-border dealings. Similarly, this Regulation should provide conditions and safeguards for the processing of those special categories of personal data by the Commission in line with Article 10(2) of Regulation (EU) 2018/1725. That processing of data will be necessary for the establishment, exercise or defence of legal claims in conformity with point (f) of that Article, or the processing will be necessary for reasons of substantial public interest on the basis of this Regulation, in conformity with point (g) of that Article.
(58) Appropriate safeguards should exist for such processing of special categories of personal data and such data should be processed under this Regulation only where it is necessary for and proportionate to the purposes of processing identified under this Regulation. For instance, several safeguards should be introduced when establishing the system of interconnection. The data processed through the system of interconnection should be limited to what is necessary for accessing information about the measures and powers of representation concerning a particular adult. Data processed through the system of interconnection should thus be limited to the personal data included in the mandatory information defined in this Regulation, unless Member States give access through the system of interconnection to additional data, such as on registered powers of representation, or on the name of a representative and the extent of the representation. The system of interconnection should not store any personal data except for a temporary storage needed to ensure access to them. Access to data through the system of interconnection should not be public. Only the competent authorities and Central Authorities that are permitted, under their national law, to access the national registers should have access to the system of interconnection, as long as they also have a legitimate interest in accessing given data. Implementing acts should provide further data protection safeguards regarding the digital communication and the interconnection of registers.
(59) The European Data Protection Supervisor was consulted in accordance with Article 42 of Regulation (EU) 2018/1725 of the European Parliament and of the Council18 and delivered an opinion on [date]19.
(60) In order to ensure uniform conditions for the implementation of this Regulation as regards the establishment of the decentralised IT system and the decentralised system of interconnection provided for in this Regulation, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council20.
(61) The forms and information provided to the public, and the communication between competent authorities and natural persons pursuant to this Regulation should be accessible, in accordance with Directive (EU) 2019/882 of the European Parliament and of the Council21. The accessibility requirement should be assessed and implemented taking account of the nature and the legal effects of the information or the communication. In particular, the attestations and the European Certificate of Representation should reflect accurately and in detail the content of the measure taken or the powers of representation granted and should not be simplified.
(62) In order to ensure that the attestations provided for in Articles 15 and 17 and the European Certificate of Representation provided for in Chapter VII of this Regulation are kept up to date, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission to amend Annexes I to X to this Regulation. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making22. In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States' experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.
(63) In accordance with the principle of mutual trust and to facilitate cross-border procedures, administrative formalities relating to the circulation of public documents should be simplified in matters relating to the protection of adults. Therefore, public documents submitted for the purposes of this regulation should be exempted from legalisation or similar formality, such as an apostille. That exemption should cover the public documents which are issued by a Member State’s public authority and submitted to public authorities of another Member State. That exemption should in particular apply in the context of judicial proceedings with a cross-border element or in procedures established by this Regulation, and should cover public documents directly relating to the protection of adults and other supporting documents
(64) In relations between Member States, this Regulation should take precedence over the HCCH 2000 Protection of Adults Convention. However, to ensure that the HCCH 2000 Protection of Adults is applied in relation to third countries that are contracting parties to that Convention and to which this Regulation does not apply, in certain specific circumstances, where the adult has his or her habitual residence in the Union and where the cross-border element of the case at hand involves that third country, this Regulation should not apply. In addition, the cooperation between competent authorities and Central Authorities of a Member State and those of a contracting Party to the HCCH 2000 Protection of Adults Convention should be governed by the relevant provisions of the Convention.
(65) This Regulation should not apply to children below the age of 18 even in cases where they have acquired capacity before that age. This should avoid an overlap with the scope of the Council Regulation (EU) 2019/111123 and of the HCCH Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children24. This should also prevent that certain persons are not covered neither by this Regulation nor by those two instruments.
(66) 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 Regulation and is not bound by it or subject to its application.
(67) [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 the European Union and to the Treaty on the Functioning of the European Union, and without prejudice to Article 4 of that Protocol, Ireland is not taking part in the adoption of this Regulation and is not bound by it or subject to its application.] OR
(68) [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 the 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 Regulation.]
(69) Since the objectives of this Regulation, namely to enhance the protection of the rights of adults in cross-border situations in the Union, to improve the effectiveness and speed of cross-border proceedings concerning the protection of adults and to increase legal certainty and predictability in those situations, cannot be sufficiently achieved by the Member States, but can rather, by reason of the direct applicability and binding nature of this Regulation, be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.