Cross-border implications of the legal protection of adults European Parliament resolution of 18 December 2008 with recommendations to the Commission on cross-border implications of the legal protection of adults (2008/2123(INI))#ANNEX
Date: 2008-12-18
Institutions: Committee on Civil Liberties, Justice and Home Affairs, Committee on Legal Affairs, European Parliament
Subjects: European judicial area, adult, disabled person, judicial cooperation, mutual recognition principle, right to justice








CE2010045EN.01007101.xml










23.2.2010   


EN


Official Journal of the European Union


CE 45/71





Cross-border implications of the legal protection of adults
P6_TA(2008)0638
European Parliament resolution of 18 December 2008 with recommendations to the Commission on cross-border implications of the legal protection of adults (2008/2123(INI))
(2010/C 45 E/13)

The European Parliament,






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having regard to Article 192, second paragraph, of the EC Treaty,










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having regard to the Hague Convention of 13 January 2000 on the international protection of adults,










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having regard to the United Nations Convention on the Rights of Persons with Disabilities of 13 December 2006,










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having regard to the proposal for a Council decision concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities (COM(2008)0530),










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having regard to the Communication from the Commission to the Council and the European Parliament of 10 May 2005 entitled ‘The Hague Programme: Ten priorities for the next five years. The Partnership for European renewal in the field of Freedom, Security and Justice’ (COM(2005)0184),










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having regard to Rules 39 and 45 of its Rules of Procedure,










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having regard to the report of the Committee on Legal Affairs and the opinion of the Committee on Civil Liberties, Justice and Home Affairs (A6-0460/2008),










A.


whereas in its aforesaid Communication on the Hague Programme, the Commission singled out, as one of its priorities, the need to guarantee an effective European area of civil justice, not least as regards the recognition and enforcement of judicial decisions,










B.


whereas work and consultations have been conducted in that context on decisions concerning family property issues, successions and wills, with a view to drawing up new legislative proposals,










C.


whereas there is also a need to promote the recognition and enforcement of legal or administrative decisions regarding persons who are the subject of protection measures,










D.


whereas care must be paid to the often delicate and vulnerable circumstances of persons who are the subject of protection measures and requests for cooperation, information or recognition and enforcement need to be handled swiftly,










E.


whereas situations have developed in which the implementation of legal protection concerns two or more Member States,










F.


whereas situations have also developed in which cases involving legal protection concern two or more Member States and concern Member States and non-EU States, in particular because of traditional migration flows (former colonies, the United States and Canada),










G.


whereas problems have arisen because of the increasing movement between Member States where there is a net outflow of retired people, including vulnerable adults, and those Member States where there is a net inflow of retired individuals,










H.


whereas the need for and the principles governing the legal protection of vulnerable adults were agreed by all EU Member States in the Council of Europe's Recommendation No. R (99) 4 of the Committee of Ministers to member states on principles concerning the legal protection of incapable adults, adopted on 23 February 1999,










I.


whereas the legal protection of vulnerable adults must be a pillar of the right of free movement of persons,










J.


whereas disparities currently exist between the laws of the Member States in the field of protection measures,










K.


whereas the provisions of the UN Convention on the Rights of Persons with Disabilities need to be borne in mind,










L.


whereas the provisions of the Hague Convention can help to achieve the goal of establishing an area of justice, freedom and security by facilitating the recognition and enforcement of decisions granting a protection measure, determination of the law to be applied and cooperation between the central authorities,










M.


whereas specific and appropriate measures for cooperation between the Member States should be implemented, which could draw on the instruments under that Convention,










N.


whereas single Community forms could be introduced to promote information on protection decisions and the circulation, recognition and enforcement of those decisions,










O.


whereas a single Community form could be created at European Union level in the case of incapacity mandates, in order to ensure their effectiveness in all the Member States,










P.


whereas mechanisms could be introduced for the easy recognition, registration and use of lasting powers of attorney throughout the European Union,




1.   Welcomes the commitment of the French Presidency regarding the situation of vulnerable adults and their cross-border legal protection; congratulates those Member States which have signed and ratified the Hague Convention and encourages those Member States which have not yet signed or ratified it to do so;
2.   Requests the Commission, as soon as sufficient experience of the operation of the Hague Convention has been acquired, to submit to Parliament, on the basis of Article 65 of the EC Treaty, a legislative proposal on strengthening cooperation between Member States and improving the recognition and enforcement of decisions on the protection of adults and incapacity mandates and lasting powers of attorney, following the detailed recommendations set out below;
3.   Calls on the Commission to monitor experience with the application of the Hague Convention and its implementation in the Member States, and to submit to Parliament and the Council in due course a report summarising the problems and best practices in its practical application and containing, if necessary, proposals for Community provisions supplementing or specifying the manner in which the Convention is to be applied;
4.   Calls on the Commission to assess the option of the accession of the Community to the Hague Convention; suggests that this could be an area of enhanced cooperation between Member States;
5.   Calls on all Member States which have not yet signed or ratified it to accede to the UN Convention on the Rights of Persons with Disabilities, inasmuch as this would serve to enhance the protection of vulnerable adults within the EU;
6.   Requests that the Commission finance a study to compare Member States' legislation on vulnerable adults and protection measures with a view to ascertaining where legal issues could arise and what measures would be needed at EU or Member State level to resolve any such issues; considers that the study should also address the issue of institutionalised adults with intellectual disabilities as regards their guardianship and their ability to exercise their legal rights; calls on the Commission to organise a series of conferences for legal professionals directly involved in such cases and to take into account in future legislation the results of the study and the views of professionals;
7.   Calls on Member States to ensure that protective measures are proportionate to the state of the vulnerable adults in question, so that individual EU citizens are not denied a legal right when they still have the ability to exercise that right;
8.   Calls on Member States to take measures to protect vulnerable adults from becoming victims of identity theft or fraud or other telephone or cyber-crimes, including legal measures to enhance the protection of and/or limit access to a vulnerable adult's personal data;
9.   Supports the creation of secure mechanisms, subject to robust rules for the protection of personal data and rules on the limitation of access, for the sharing of best practices and other information regarding protective measures currently in force between Member States, including the possibility of Member States' judicial systems sharing information as to the protection status of a vulnerable adult;
10.   Reminds the Commission and Member States that not all vulnerable adults are so because of advanced maturity and asks that steps be taken to strengthen the legal protection and rights not only of elderly vulnerable adults but also of those adults who are vulnerable because of severe physical and/or mental disabilities, and to take their needs into account too when taking future social measures to ensure those legal rights;
11.   Confirms that the recommendations respect the principle of subsidiarity and the fundamental rights of citizens;
12.   Considers that the requested proposal will not have any financial implications;
13.   Instructs its President to forward this resolution and the accompanying detailed recommendations to the Commission, the Council and the governments and parliaments of the Member States.



ANNEX

DETAILED RECOMMENDATIONS AS TO THE CONTENT OF THE PROPOSAL REQUESTED
A.   PRINCIPLES AND AIMS OF THE PROPOSAL
1.   To promote the recognition and enforcement of legal or administrative decisions regarding persons who are the subject of protection measures.
2.   Provisions to help achieve the goal of establishing an area of justice, freedom and security by facilitating the recognition and enforcement of decisions granting a protection measure, determination of the law to be applied and cooperation between the central authorities.
3.   Specific and appropriate measures for cooperation between the Member States should be implemented, drawing on the instruments available under the Hague Convention.
4.   Single Community forms to promote information on protection decisions and the circulation, recognition and enforcement of those decisions.
5.   Single Community form created at European Union level in the case of incapacity mandates, in order to ensure their effectiveness in all the Member States.
B.   ACTION TO PROPOSE
1.   Requests the Commission, as soon as sufficient experience of the operation of the Hague Convention has been acquired, to submit to Parliament, on the basis of Article 65 of the EC Treaty, a legislative proposal on strengthening cooperation between Member States and improving the recognition and enforcement of decisions on the protection of adults, incapacity mandates and lasting powers of attorney.