Meeting in EU Council on Thursday 12 June, the European justice ministers and representatives adopted a partial political agreement (‘general approach’) on the proposal for a regulation issued in May 2023 to provide a better framework for the protection of vulnerable adults in cross-border situations (see EUROPE 13191/15).
According to several Member States, this text, which deals in particular with the rules on jurisdiction, applicable law and the recognition and enforcement of protection measures, represents a “balanced compromise” that responds to a reality that is becoming increasingly prevalent in European societies.
“Many people, in the course of their lives, have to face a situation of limitation for personal reasons – think of people affected by degenerative diseases such as Alzheimer’s”, pointed out the Polish Minister of Justice, Adam Bodnar, representing the Polish Presidency of the Council of the EU, who also pointed out that continuity of protection was a major issue when these people move from one Member State to another.
The purpose of the future regulation is to fill a legal vacuum. To date, only thirteen Member States have ratified the 2000 Hague Convention on the International Protection of Adults.
The text, which is inspired by it, tends to be more ambitious. Article 6 of the adopted text allows adults to choose the competent court in advance, provided there is a sufficient link with the chosen State, such as nationality, habitual residence or location of assets.
“Above all, it’s a question of not damaging the interests of the adult”, said Adam Bodnar.
With regard to the recognition and enforcement of protection measures, the text introduces a principle of mutual trust or recognition between Member States.
It should be noted, however, that such recognition may be refused if the adult has not been given the opportunity to be heard, except where there were serious grounds not to do so. This point was adjusted following the discussions. The text specifies that “recognition of protection measures shall be refused if an adult has not been given the opportunity to be heard”, said the Presidency.
Several Member States have welcomed the progress made in the text. The German Federal Minister of Justice, Stefanie Hubig, described the compromise as “very successful”, although she expressed reservations about several future provisions, in particular the creation of interconnected national registers, due to the sensitivity of health data.
“We reject these registers because we are concerned that these people could be stigmatised on the basis of their health data”, said the German minister.
Conversely, Spain did not support the compromise.
“We cannot support this text or the proposed measures due to a lack of ambition”, said Spanish representative Marcos Alonso Alonso.
He deplored the fact that assistance in decision-making and representation were placed on an equal footing, in contradiction with the United Nations Convention on the Rights of Persons with Disabilities.
Malta and Estonia shared these concerns, particularly on the issue of mandatory registers.
“Implementing this should not overburden the work of the national authorities”, said Estonian representative Kyllike Sillaste-Elling. And she called for greater use to be made of electronic evidence and digital representation.
The text adopted covers the first five chapters of the Regulation, which concern scope, jurisdiction, applicable law, recognition and enforcement, and notarial or official documents drawn up by a competent authority.
Other provisions, such as those on protection registers and European representation certificates, will be discussed at a later date under the Danish Presidency.
“This is an important step in the procedure and is essential for the protection of the autonomy and fundamental rights of the most vulnerable among us”, summed up the European Commissioner for Justice, Michael McGrath.
Ireland, which has confirmed its “opt in” (its formal commitment to take part in the adoption and application of the regulation in the same way as the other Member States), also welcomed a “good basis” for future negotiations on support for decision-making.
According to European Commission projections, the proportion of people aged over 65 living with some form of disability will increase by 77% by 2050. In view of these demographic issues, this partial general approach represents, for France, “an important text for strengthening the protection of vulnerable adults within the EU”. After the day’s meeting, at a press conference, Adam Bodnar described the legislation as “very important for the development of civil law” and hailed “an objective achieved thanks to a Presidency based on trust”.
To see the partial general approach: https://aeur.eu/f/hau (Original version in French by Nithya Paquiry)