CALL FOR EVIDENCE

FOR AN IMPACT ASSESSMENT

This document aims to inform the public and stakeholders on the Commission's future legislative work so they can provide feedback on the Commission's understanding of the problem and possible solutions, and give us any relevant information that they may have, including on possible impacts of the different options.

Title of the initiative

Civil aspects of the cross-border protection of vulnerable adults

Lead DG (responsible unit)

DG JUST (A1)

Likely type of initiative

Legislative proposal

Indicative timetable

Q1-2023

Additional information

A. Political context, problem definition and subsidiarity check

Political context

Vulnerable adults 1  are adults who are unable to manage their personal affairs or property because of an impairment or insufficiency of their personal faculties. The protection of vulnerable adults in cross-border cases is ensured at international level by the 2000 Hague Convention on the International Protection of Adults (2000 Adults Convention), which establishes rules for determining the competent court or authority and the law to be applied in international situations involving parties to the Convention. It also provides for the mutual recognition and enforcement of protection measures and rules facilitating cooperation. 

Over the last two decades, the European Parliament, the Commission and the Council have promoted the ratification of the 2000 Adults Convention by all Member States. After its adoption in 2000, it entered into force on 1 January 2009, and although it is generally recognised as an efficient tool, only 10 Member States are parties to it. The European Parliament and the Council have prompted the European Commission to enact legislation in this area on a number of occasions 2 .

Population ageing is leading to an increase in the number of protection measures, as older people are more likely to be in a situation of vulnerability (for instance, due to dementia, Alzheimer, and other diseases that may affect their intellectual capacities). Moreover, because of the free movement of people within the EU, a significant number of older EU citizens now live in a Member State other than that of their nationality (3.2% of the population aged 65 or over are foreign citizens). Many others own immovable property or bank accounts in a Member State other than the one where they reside. The Green Paper on Ageing adopted on 27 January 2021 called for the ratification of the 2000 Adults Convention to ensure the comprehensive protection of vulnerable adults across the EU in cross-border situations.

Problem the initiative aims to tackle

Vulnerable adults and their legal representatives currently face multiple barriers when they move abroad, buy or sell property, or simply manage their bank account in another Member State. This is because the rules governing cross-border cases – private international law rules – differ from one Member State to another. This creates a lack of legal certainty and unforeseeable hurdles for the people concerned (vulnerable adults, their relatives or their legal representatives) as well as for economic operators wishing to enter into contractual arrangements with them. Although the total number of vulnerable adults in the EU is not known, the protection of vulnerable adults constitutes a significant proportion of the work of national courts. For instance, in 2017, around 688 000 protection measures were adopted in a consulted group of seven Member States (Austria, Czechia, France, Hungary, the Netherlands, Portugal and Slovakia).

As a result of the current situation, protection measures taken in one Member State may not be recognised and enforced in another Member State. When exercising their freedom of movement, vulnerable adults and their legal representatives are at great risk of refusals from banks and other institutions. They equally face uncertainty regarding the continuity of their medical treatments and lack of information on their rights, etc. Furthermore, powers of representation established as a useful precautionary measure in a Member State at a time when a person is still capable of protecting their own interests may not, later on, be recognised in other Member States. This is a violation of individuals’ right to self-determination. In such cases, vulnerable adults or their representatives will need to introduce costly and time-consuming exequatur (declaration of enforceability) proceedings 3 or start protection proceedings all over again. As a consequence, they may forsake the exercise of their right to free movement, not follow up on medical treatment, or, if they move and are no longer legally protected, suffer financial losses and be victims of abuse.

Member States apply different rules for establishing their international jurisdiction. Courts and competent authorities responsible for taking protection measures apply their national rules, which may conflict with other Member States’ rules in the same case. Two Member States may end up dealing with the same case if the ground for jurisdiction provided by the law of one Member State is nationality and by the other is residence. If national courts do not have domestic remedies to transfer their competence to another Member State’s courts, this will create long-term situations of parallel proceedings (lis pendens) and complex situations for vulnerable adults and their families. This creates additional administrative burdens for the authorities in charge and undermines vulnerable adults’ right of access to justice.

In general, courts and central authorities cannot request and obtain assistance from foreign courts and central authorities in the absence of a legal basis for cross-border cooperation. Their national law (if it exists) has limited territorial scope. For instance, the ongoing European Commission legal study’s 4  preliminary findings show that 75% of legal practitioners lack information on foreign procedural and substantial law that would enable them to take decisions (courts) or advise their client (notaries). In addition, when vulnerable adults leave their country of residence and move to another Member State, courts and competent authorities cannot inform their counterparts. Conversely, it is currently impossible for the authorities of the Member State to which a vulnerable person has moved to be informed of previous measures by consulting foreign registries or sending an information request. Therefore, there is a risk that vulnerable adults are no longer protected in their new place of residence and that arrangements contrary to their best interests are made. Alternatively, it obliges them to start new proceedings, placing a disproportionate and unfair burden on this highly fragile category of people.

In practice, language barriers and the disparity of rules (or lack of them) on electronic communication are also a major hurdle for individuals seeking to establish their rights and for the competent courts and authorities to communicate.

The EU is party to the UN Convention on the Rights of Persons with Disabilities (UNCRPD), which lays down rights for equal recognition before the law (Article 12), access to justice (Article 13) and liberty of movement and nationality (Article 18). The adoption of a legislative measure would facilitate the implementation of this international instrument, ensure equal access to justice and protect individuals’ right to self-determination in cross-border cases as outlined in the Strategy for the rights on person with disabilities.

Finally, in accordance with the 2000 Adults Convention, the recognition of a protection measure may be challenged and its enforcement then requires that the parties apply for exequatur in the requested country. Consequently, even if all Member States become party to the 2000 Adults Convention, vulnerable adults would still need to go through cumbersome judicial proceedings in another EU Member State. Further, the Convention does not provide any translation aid (such as multilingual standard forms), and does not resolve language problems for parties, courts and central authorities, which continue to face burdens. Respondents to the public consultation launched by the Green Paper on Ageing identified the need for the ratification of the 2000 Adults Convention and for EU additional measures, with a particular focus on retirees living in another EU Member State 5 .

Basis for EU action (legal basis and subsidiarity check)

Legal basis

The legislative initiative would be taken under Title V TFEU, Chapter 3 on judicial cooperation in civil matters and, in particular, pursuant to Article 81(2) TFEU on measures concerning civil matters with cross-border implications.

Practical need for EU action

Considering current demographic trends (ageing of the population and use of the internal market free movement), the number of older people in need of assistance will only grow in the future.

Harmonisation of private international law rules applying in cross-border cases is, by definition, an area where Member States cannot take appropriate legislative measures on their own. The 2000 Adults Convention provides an international framework, meaning that Member States can sign and ratify it.

However, in the last 13 years, despite strong encouragement from the EU institutions, only 10 Member States have ratified the 2000 Adults Convention. Some signed it more than 10 years ago (Greece, Ireland, Italy, Luxembourg, the Netherlands and Poland), but have still not ratified it. There is no indication that the Member States that have not signed will do so in the foreseeable futureand that all remaining 16 Member States (Denmark is excluded from the EU measures in this area) will ratify the Convention in a reasonable timeframe.

Even in the event that all Member States ratify the Convention in the near future, some of the problems described above will not be solved in the absence of EU legislation. Lengthy and costly proceedings cannot be avoided as long as exequatur is still required and could only be abolished at EU level, based on the principle of mutual trust and mutual recognition. Similarly, some obstacles that remain (language, lack of information on foreign law) would be better overcome at EU level, with for instance EU certificates attesting the status of a representative and multilingual standard forms to eliminate language barriers.

B. Objectives and policy options

The general objective of the proposal is to create, maintain and develop an area of freedom, security and justice in which the free movement of persons is ensured, in particular for vulnerable adults, their relatives and their representatives who travel to or manage their property in another Member State. It would also contribute to a Union of Equality.

The specific objective of the proposal is to facilitate the recognition of protection measures and powers of representation by laying down common conflict rules on jurisdiction and applicable law, as well as an efficient system of cooperation between Member States. This will enable vulnerable adults to maintain all their rights in cross-border situations and will drastically reduce the cost, time and burden of lengthy litigation for the recognition of protective measures in another Member State. It will also greatly improve cross-border cooperation between judicial and competent authorities and make procedures less complex.

In a baseline scenario, no action would be taken at EU level. The problem as defined in Section A would thus remain and potentially increase over time. The EU would keep promoting the 2000 Adults Convention, and after some time some Member States might become parties to it. However, it is highly uncertain that all Member States will at some point ratify the 2000 Adults Convention. The number of vulnerable adults will continue to grow and the burden on social services, courts and competent authorities will increase.

Even in the unlikely event that all Member States become parties to the Convention, vulnerable adults and their relatives and representatives will still face barriers (exequatur). Judicial cooperation would not attain the level of efficiency reached in almost all other civil and family matters in the EU.

When considering action at EU level the Commission will examine the following options:

I)The adoption of soft law measures: the Commission will examine whether national authorities under EU guidance could effectively resolve the problem in the form of, for example, promotion campaigns or recommendations. These recommendations would aim at encouraging Member States to ratify the 2000 Adults Convention.

II)The adoption of legislative measures in the form of a proposal for a regulation and a Council decision on the general ratification of the 2000 Adults Convention. The proposal would address jurisdiction, applicable law, recognition and enforcement as well as cooperation between central authorities. Within this policy option, the Commission will examine in particular the following issues: whether the proposal should cover all areas covered by the 2000 Adults Convention, in addition to specific EU provisions, or only complement the Convention; whether exequatur should be abolished and grounds for non-recognition limited; whether an EU certificate of powers of representation should be adopted; and whether there is room for strengthened cooperation between courts and authorities (digitalisation, legal aid, access to foreign law or national registries, etc.).

C. Likely impacts

Under a common EU legal framework, vulnerable adults would no longer (or to a much lesser extent) need to invest in national litigation or to consult a lawyer/notary to have a protective measure recognised in another Member State. This would save them legal costs. They could easily manage their assets abroad and access their bank account or sell their property abroad when needed.

The financial and legal burden on social services in charge of the protection of vulnerable adults would also be alleviated in cross-border cases, generating savings for the public sector.

In addition, banks and other financial institutions would not face uncertainty as to the legal validity of foreign documents and would implement swifter procedures to manage the financial assets of vulnerable adults.

Competent authorities (such as notaries) and lawyers could give their clients reliable advice, based on the new common legal framework and the resulting access to foreign law. This would also reduce legal costs for vulnerable adults.

Similarly, courts and competent authorities would apply a consistent and uniform legal framework throughout the EU, which would decrease their workload by reducing the length of cross-border proceedings and the complexity of judicial cooperation. They would be provided with EU multilingual forms, streamlining their work in cross-border cases and reducing their administrative burden.

Finally, the fundamental rights of vulnerable adults (equality before the law, access to justice and the freedom to move), as guaranteed by the UN Convention on the Rights of Persons with Disabilities, would be better safeguarded in cross-border cases throughout the EU.

D. Better regulation instruments

Impact assessment

An impact assessment will be conducted to support the preparation of this initiative and feed into the Commission’s decision.

Consultation strategy

Some evidence has already been collected through consultation by the Green Paper on Ageing and the legal study on the cross-border protection of vulnerable adults. A dedicated online public consultation will be launched in Q4 2021 to gather input from groups concerned by situations of cross-border legal protection.

The questionnaire will gather evidence on the problem definition and quantification, and the impact of the different policy options. The consultation will be accessible on the Commission’s Have Your Say portal. It will be available in all 24 languages and the replies can be submitted in any of those languages.

The questionnaire will be sent to the European Judicial Network in civil and commercial matters (EJN). In turn, the EJN contact points will circulate it to their national stakeholders (ministries, judges, notaries, etc.). The questionnaire will also be sent out to all the umbrella organisations identified during the European Commission legal study on the cross-border protection of vulnerable adults.

The factual summary report will be published on the consultation page 8 weeks after the closure of the public consultation. The synopsis report, a summary of all consultation results, will then be drawn up.

In general, the European Judicial Network can be consulted to provide feedback and advice if a specific question arises during the preparatory work. The European Network of Judicial Inspection Services will conduct fact-finding missions in border areas and interview stakeholders in seven Member States. The final report will be available in April 2022.

A group of governmental experts and a group of key stakeholders will be set up to provide their expertise and experience in the field.

Why we are consulting?

Vulnerable adults are adults who are unable to protect their interests because of an impairment or insufficiency of their personal faculties. Together with their legal representatives, they currently face multiple barriers when they move abroad, buy or sell properties, or just manage their bank account in another Member State. This is because the rules governing cross-border cases (private international law rules) differ from one Member State to another. The Commission wishes to gather evidence on the problem and its consequences and to give all interested parties the opportunity to share their views on the possible policy options.

The aim of this initiative is to harmonise and simplify the legal rules for the designation of the court having jurisdiction in a cross-border case, the law applicable to the case and the recognition of foreign measures of protection. The objective is also to facilitate cooperation between EU Member States and speed up the processing of cross-border cases.

Target audience

This public consultation is addressed to:

·vulnerable adults, their relatives and their representatives; 

·people who have adopted powers of representation in the event of future legal incapacity; 

·associations and organisations representing the rights of people with disabilities; 

·people who are in contact with vulnerable adults in their professional activities, such as medical professionals or bank employees; 

·legal practitioners, including judges, notaries and lawyers; 

·other competent authorities, social services, Member States’ central authorities and ministries.