COMMISSION STAFF WORKING DOCUMENT EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT REPORT Accompanying the document Proposal for a Regulation of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of measures and cooperation in matters relating to the protection of adults and proposal for a Council Decision authorising Member States to become or remain parties, in the interest of the European Union, to the Convention of 13 January 2000 on the International Protection of Adults
Date: 2023-05-31
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: adult, enforcement of ruling, equal treatment, fundamental rights, international convention, judicial cooperation, judicial cooperation in civil matters in the EU, jurisdiction, legal capacity, private international law

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   EUROPEAN COMMISSION  Brussels, 31.5.2023  SWD(2023) 156 final  COMMISSION STAFF WORKING DOCUMENT  EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT REPORT  Accompanying the document Proposal for a Regulation of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of measures and cooperation in matters relating to the protection of adults              and               proposal for a Council Decision authorising Member States to become or remain parties, in the interest of the European Union, to the Convention of 13 January 2000 on the International Protection of Adults {COM(2023) 280 final} - {SEC(2023) 208 final} - {SWD(2023) 154 final} - {SWD(2023) 155 final} - {COM(2023) 281 final}  
 
 
1.  NEED FOR ACTION 

1.1   What is the problem and what are its causes and consequences? 

Vulnerable adults are people above 18 who are not in a position to protect their financial or personal 
interests  because  of  an  impairment  or  insufficiency  of  their  personal  faculties.  The  number  of 
vulnerable  adults  in  the  EU  is  increasing  continuously  due  to  the  growing  number  of  people  with 
disabilities,  as  well  as  the  ageing  of  the  population.  Depending  on  the  national  legislation  of  the 
Member  State  where  they  live,  they  can  be  placed  under  a  protection  measure  by  a  court  or 
administrative  decision,  or  supported  by  a  third  party  they  had  designated  in  advance  (through 
‘powers of representation’) to manage their interest.  

This growing vulnerability, combined with the increasing mobility of people in the EU, give rise to 
many issues that vulnerable adults may face in cross-border situations. For instance, adults may need 
to  manage  their  assets  or  real  estate  located  in  another  country,  undergo  emergency  or  planned 
medical care abroad or relocate to  another country for various reasons.  In the absence of statistics, 
the  number  of  vulnerable  adults  in  cross-border  situations  was  estimated  between  145 000  and 
780 000. 

In those  cross-border situations, vulnerable adults are confronted with  the complex and sometimes 
conflicting rules of Member States on how to decide which court has jurisdiction, which law applies 
to  their  case,  and  how  to  give  effect  to  a  decision  taken  or  powers  of  representation  established 
abroad. At the same time, in cross-border cases, courts and other public authorities in charge of the 
protection  are  confronted  with  language  barriers,  cumbersome  paper  communication,  lack  of 
cooperation  with  other  Member  State  authorities  and  lack  of  information  on  other  Member  States’ 
legal  systems.  This  leads  to  situations  where  vulnerable  adults,  their  families  and  their 
representatives experience significant legal uncertainty as to what rules will apply to their case, the 
outcome  of  the  procedures  and  formalities  they  need  to  carry  out.  To  ensure  that  their  protection 
continues across borders or that they have access to their rights abroad, they often have to go through 
long and expensive proceedings. In some instances, their protection and the powers entrusted to their 
representative  are  ultimately  not  recognised,  either  by  courts  or  by  non-judicial  actors  like  banks, 
medical staff or real estate agents.  

An international instrument,  the Convention of 13 January 2000 on the International Protection of 
Adults (‘HCCH Convention’) provides some solutions to the problems described. It lays down rules 
concerning jurisdiction and applicable law in matters concerning vulnerable adults and rules for the 
recognition  of  measures  in  this  area,  and  sets  up  cooperation  mechanisms  among  its  contracting 
parties.  However,  only  11  Member  States  are  party  to  the  HCCH  Convention.  There  is  no  EU 
legislation harmonising the rules on the protection of adults in cross-border cases.  

The problems described above for vulnerable adults in cross-border cases may severely curtail their 
fundamental  rights  (including  the  right  of  autonomy,  access  to  justice,  property  and  freedom  of 
movement),  possibly  in  contradiction  with  the  UN  Convention  on  the  rights  of  persons  with 
disability,  to  which  the  EU  and  all  Member  States  are  party.  In  addition,  the  problems  result  in 
discontinuous  protection  across  the  EU  borders  and  affect  the  health  and  wellbeing  of  the  adults 
concerned,  causing  them  major  psychological  distress,  while  perpetuating  inequalities.  Under  the 
current  situation,  these  problems  also  affect  public  authorities  and  courts,  which  experience 
additional workload and increased legal complexity in such cases. 

 
 
1.2   What should be achieved? 

The general objective of the EU action would be to protect rights, including fundamental rights of 
vulnerable adults. This would be achieved through the following specific objectives: (i) to increase 
legal certainty for the general public and public authorities involved; (ii) to facilitate the cross-border 
recognition of protection measures and powers of representation; and (iii) to make proceedings faster 
and less expensive. 

2.  SOLUTIONS 

2.1   What are the options to achieve those objectives? 

Based on Article 81(2) of the Treaty on the Functioning of the European Union on the adoption of 
measures concerning cross-border cases in civil and commercial matters, the EU has competence to 
act on the above-described problems that adults experience in cross-border cases.  

The following policy options have been considered:  

  Option 1:  Baseline scenario 
  Option 2:  Council  decision  obliging  Member  States  to  ratify  the  Convention  within  a  certain 

timeframe 

  Option 3:  EU regulation on the protection of adults  
  Option 4:  A combination of options 3 and 4 (a Council decision and an EU regulation). 

2.2   What is the preferred option? 

The preferred option is  option 4, which is  the only option fully addressing the problems  arising  in 
cross-border cases. This option would allow the adoption of: (i) a common set of rules (based on the 
provisions  of  the  HCCH  Convention)  applicable  to  all  Member  States  and  (through  the  HCCH 
Convention  itself)  also  to  other  contracting  states  of  the  Convention  outside  the  EU;  and  (ii)  rules 
allowing  closer,  modernised  and  simplified  cooperation  within  the  EU,  based  on  the  principle  of 
mutual trust. A European certificate of representation would be created, providing a single document 
that  prove  one’s  powers  to  represent  an  adult  abroad  both  vis-à-vis  public  authorities  and 
non-judicial actors and would thus help to ensure that the protection granted in one Member State on 
the basis of a protection measure or confirmed powers of representation would be respected abroad. 
Cooperation in this field would be digitalised and language barriers would be alleviated. 

3.  IMPACTS OF THE PREFERRED OPTION 

3.1   Benefits of the preferred option 

Adopting common rules and closer cooperation within the EU would ensure continuity of the support 
for vulnerable adults in cross-border situations for all purposes. It would guarantee their equal access 
to justice, ensure they can manage their assets or property abroad, and ensure that their medical care 
is  continued.  In  addition,  the  recognition  of  the  arrangements  made  in  advance  (powers  of 
representation)  would  safeguard  their  autonomy  and  avoid  the  need  to  go  to  court.  The  preferred 
option  would  thus  have  a  positive  impact  on  the  protection  of  the  fundamental  rights  of 
vulnerable adults in cross-border situations and other positive legal impacts. Policy option 4 would 
be the most effective in addressing the problems of legal uncertainty, costly and lengthy proceedings, 
and  the  non-recognition  of  protection  measures  and  powers  of  representation  abroad.  This  option 
would therefore best achieve the policy objectives of the initiative. 

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The preferred option would also have a positive social impact as it would benefit vulnerable adults’ 
wellbeing, health, inclusion and equality. 

Through  the  adoption  of  common  EU  rules,  the  preferred  option  would  simplify  and  speed  up 
procedures.  This  would  result  in  significant  savings  in  terms  of  costs,  time  and  burden  for  both 
adults in cross-border situations and for Member States’ public authorities. The total savings under 
option 4 on the costs related to proceedings was estimated between EUR 2.4 and 2.5 billion. 

The macroeconomic and environmental impacts of the preferred option would not be significant. 

3.2   Costs of the preferred option 

The preferred option would not generate any costs for vulnerable adults in cross-border situations. 

The costs that the preferred option would generate for Member States would be moderate and largely 
outweighed  by  the  efficiency  gains  (costs  savings  generated  through  the  simplification  of 
procedures) under the preferred option. 

3.3.   Subsidiarity and complementarity of the action at EU level 

Divergences  in  Member  States’  rules  applying  to  cross-border  cases  and  the  lack  of  cooperation 
between  authorities  lead  to  legal  uncertainty,  long  and  costly  proceedings,  and  non-recognition  of 
protection measures and powers of representation. These problems require the adoption of common 
rules, and cannot be solved by Member States acting on their own. The objectives of the  initiative 
would therefore be better achieved at EU level, in accordance with the principle of subsidiarity. 

The initiative would  also  respect  the principle of proportionality.  By  connecting legal  systems, the 
initiative would only resolve difficulties in cross-border situations and would not interfere with the 
Member  States’  competence  to  adopt  national  substantive  legislation  on  the  protection  of  adults, 
including  the  type  of  measures  available,  the  existence,  extent  and  modification  of  powers  of 
representation, and the procedural rules applying to the manner of exercise or implementation of the 
protection. The legislation would not  go beyond  what  is  necessary to  achieve  the objectives  of the 
initiative.  

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