COMMISSION STAFF WORKING DOCUMENT Subsidiarity Grid 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
Date: 2023-05-31
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: adult, disabled person, enforcement of ruling, fundamental rights, international convention, judicial cooperation, judicial cooperation in civil matters in the EU, jurisdiction, legal capacity, private international law

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 31.5.2023  SWD(2023) 154 final  COMMISSION STAFF WORKING DOCUMENT Subsidiarity Grid 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      {COM(2023) 280 final} - {SEC(2023) 208 final} - {SWD(2023) 155 final} - {SWD(2023) 156 final}  
 
 
Subsidiarity Grid 

1.  Can the Union act? What is the legal basis and competence of the Unions’ intended action? 

1.1 Which article(s) of the Treaty are used to support the legislative proposal or policy initiative? 

This subsidiarity grid concerns the proposal for the Regulation on jurisdiction, applicable law, recognition and 
enforcement of measures and cooperation in matters relating to the protection of adults (hereinafter as: ‘the 
Regulation Proposal’). The Proposal harmonises private international law rules to be applied among Member 
States  to  the  cross-border  protection  of  adults  who,  by  reason  of  an  impairment  of  insufficiency  of  their 
personal faculties, are not in a position to protect their interests (hereinafter as: ‘adults’)1.  

The Regulation Proposal will apply in civil matters to the protection of adults in cross-border situations and will 
provide rules in particular on: 

- 
- 

- 

- 

- 

- 
- 

- 

international jurisdiction on measures aimed at the protection of adults (‘protection measures’); 
law  applicable  to  protection  measures  and  to  powers  of  representation  granted  by  an  adult  to  be 
exercised when that adult is not in a position to protect his or her interests (‘powers of representation’); 
recognition and enforcement in one Member State of protection measures taken in another Member 
State; 
acceptance  in  one  Member  State  of  authentic  instruments  drawn  up  or  registered  by  competent 
authorities of another Member State; 
cross-border cooperation of competent authorities and Central Authorities and their communication, 
including through digital means; 
digital communication among competent authorities and natural and legal persons; 
forms  simplifying  the  cross-border  proceedings  and  dealings,  including  rules  on  the  creation  of  a 
European Certificate of Representation to be used by (a) representative(s) of an adult to invoke his or 
her powers abroad; and 
interconnection of protection registers where information on protection measures taken and powers of 
representation registered or confirmed in a Member State are recorded. 

The legal basis for the Regulation Proposal is Article 81(2) of the Treaty on the Functioning of the European 
Union (‘TFEU’). In accordance with this Article, the Union can adopt, in the ordinary legislative procedure and 
based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases, measures to 
develop  judicial  cooperation  in  civil  matters  having  cross-border  implications.  This  includes,  among 
others,  measures  aimed  at  ensuring:  the  mutual  recognition  and  enforcement  between  Member  States  of 
judgments and of decisions in extrajudicial cases; the compatibility of the rules applicable in the Member States 
concerning conflict of laws and of jurisdiction; the effective access to justice; or the elimination of obstacles to 
the proper functioning of civil proceedings.  

1.2 Is the Union competence represented by this Treaty article exclusive, shared or supporting in nature? 

In  the  case  of  the  cross-border  protection  of  vulnerable  adults,  the  Union’s  competence  is  shared.  In 
accordance with Article 4(2)(j) TFEU, shared competence applies in the area of freedom, security and justice. 
Measures to develop judicial cooperation in civil matters having cross-border implications under Article 81(2) 
TFEU, such as this Regulation Proposal, belong to this area.  

This  shared  competence  is  to  be  distinguished  from  the  Member  States’  exclusive  competence  to  adopt 
measures  of  substantive  civil  law  in  the  field  of  the  protection  of  adults,  such  as  the  rules  governing  the 
conditions  and  consequences  of  a  protection  measure,  as  well  as,  where  applicable,  the  rules  governing  the 
establishment, the extent, the validity and the termination of powers of representation (‘substantive law in the 
field of the protection of adults’). In purely national cases, Member States are also exclusively competent to 
adopt procedural rules, such as rules how to seize a court, how to serve a decision etc. 

2.  Subsidiarity Principle: Why should the EU act? 

1 The insufficiency or impairment of the personal faculties of the adult 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 coma.  

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2.1  Does the proposal fulfil the procedural requirements of Protocol No. 22: 

-  Has there been a wide consultation before proposing the act? 
- 

Is there a detailed statement with qualitative and, where possible, quantitative indicators allowing an 
appraisal of whether the action can best be achieved at Union level? 

Yes. First, in conformity with Article 2 of Protocol No. 2, the Commission conducted extensive consultations 
in the preparation of the Regulation Proposal. These consultations were conducted together for this Regulation 
Proposal and for a parallel initiative concerning the 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 (hereinafter as: ‘the Council Decision’)3.  

The consultations on both proposals included: (i) open public consultation and call for evidence (in early 2022); 
(ii) a meeting with stakeholders (September 2022); (iii) a meeting with experts from Member States’ authorities 
(October 2022); (iv) a consultation of the European Judicial Network in civil and commercial matters; and (v) 
a  fact-finding  mission  by  the  European  Network  of  Justice  Inspection  Services  (RESIJ).  The  consultations 
showed a practical need and strong support by most stakeholders for Union measures in the area of the cross-
border protection of adults.  

Besides the consultation activities conducted by the Commission, further consultations were undertaken by 
an external contractor that prepared a study used in the preparation of the impact assessment. The contractor 
used the following consultation tools: (i) semi-structured interviews; (ii) case studies; and (iii) two focus groups 
used for example to quantify the costs and benefits associated with the Regulation Proposal and other policy 
options.  

The feedback received in the consultation activities informed the preparation of  the Regulation Proposal and 
the impact assessment accompanying it. A detailed summary of the outcome of the consultations is included in 
the impact assessment.  

Second, in preparing the Regulation Proposal, the Commission assessed the subsidiarity of the measures to be 
adopted  at  Union  level  both  in  the  explanatory  memorandum  of  the  Regulation  Proposal  and  in  the  impact 
assessment (Section 3 of the  impact assessment).  The problems to be addressed by the  Regulation Proposal 
were  quantified  in  the  impact  assessment  on  the  basis  of  the  estimated  number  of  ‘vulnerable  adults’  in 
cross-border situations in the Union. The costs incurred by those adults, their families and representatives were 
also estimated. 

2.2  Does the explanatory memorandum (and any impact assessment) accompanying the Commission’s 
proposal  contain  an  adequate  justification  regarding  the  conformity  with  the  principle  of 
subsidiarity? 

Yes. Both the explanatory memorandum and the impact assessment accompanying the Regulation Proposal (in 
its Section 3) include justifications regarding the compliance of the Regulation Proposal with the subsidiarity 
principle. 

The explanatory memorandum states that: 
The policy objective of having an efficient and harmonised set of PIL rules applying to all Member States in 
cross-border cases of protection of adults can be better achieved through a Union initiative.   
The existing problems faced by adults in cross-border situations have an inherent Union dimension because 
they are of cross-border nature and impact fundamental rights of adults and their right of free movement. The 
rules  on  international  jurisdiction,  applicable  law  and  recognition  apply  in  cross-border  context  and 
thus require the involvement of at least two States. The Member States conflicting or diverging PIL rules in the 
area  of  the  protection  of  adults  cause multiple  issues  in  cross-border  situations  in  the  Union,  such  as 
discontinued protection of adults, non-recognition of foreign measures, additional judicial proceedings, or lack 
of recognition of the wills and preferences expressed by an adult. Member States acting individually could not 
satisfactorily remove those problems. 

2 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12016E/PRO/02&from=EN  
3 The  Council Decision, for its part, obliges Member States to join  the Convention of 13 January 2000 on the 
International Protection of Adults providing private international law rules on the cross-border protection of adults 
to be applied with third States that are contracting Parties to the Convention.  

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Similarly, the modernisation and digitalisation of judicial cooperation requires the application of harmonised 
rules (for instance uniform forms streamlining the cross-border procedures), and the use of interoperable tools 
(forms, software, registers etc.), which can only be developed at the Union level. 

2.3  Based on the answers to the questions below, can the objectives of the proposed action be achieved 

sufficiently by the Member States acting alone (necessity for EU action)? 

No.  
There is a growing number of cross-border cases where adults require support with decision-making with or 
continued protection in matters such as managing their assets or real estate located in another Member State, 
relocating to another Member State or undergoing emergency or planned medical care in another Member State. 
In those cross-border situations, adults are confronted with the complex and sometimes conflicting private 
international  law  rules4  of  Member  States.  This  leads  to  situations  where  adults,  their  families  and  their 
representatives experience significant legal uncertainty as to what rules will apply to their case and as to the 
outcome of the procedures and formalities they need to carry out. To ensure that the adults’ protection lasts 
across borders or that they have access to their rights abroad, they often have to go through long and expensive 
proceedings.  In  some  instances,  the  protection  measures  concerning  adults  or  the  powers  entrusted  in 
their  representative  are  eventually  not  recognised,  either  by  foreign  courts  or by  non-judicial  actors  like 
banks, medical staff or real estate agents. 

Since these difficulties stem from the differences and divergences between Member States’ private international 
law  rules  applicable  to  the  protection  of  adults  and  from  a  lack  of  framework  for  effective  cross-border 
cooperation, the problems have an inherent cross-border dimension. The rules on international jurisdiction, 
applicable law and recognition apply in cross-border context and thus require the involvement of at least two 
States.  The  consequences  of  the  problems  also  have  a  Union  dimension  because  the  problems  impact 
fundamental rights of adults in cross-border situations and may even dissuade adults from exercising their right 
of free movement within the Union. 

Due to the cross-border nature of the problems, stemming in particular from the differences and divergences 
between Member States’ private international law rules, Member States cannot solve them by an uncoordinated 
change in their national private international law rules. Harmonisation of these rules across Member States 
would thus be required to solve the existing problems. 

An international convention, the Convention of 13 January 2000 on the International Protection of Adults (‘the 
HCCH 2000 Protection of Adults Convention’) exists and provides for certain private international law rules in 
the field of the cross-border protection of adults. Twelve Member States are currently contracting Parties to that 
Convention5. In addition to those 12 EU Member States, the Convention has three other Contracting Parties6. 
The Convention provides for rules on international jurisdiction, applicable law, recognition and enforcement of 
protective  measures,  as  well  as  provisions  on  powers  of  representation.  It  also  establishes  mechanisms  of 
cooperation between the authorities and Central Authorities of the countries which have ratified the Convention 
('Contracting  Parties'). This  Convention  is  considered  as  an  efficient  and  flexible  private  international  law 
instrument that is fit for its purpose at global level.  

Since the Convention provides for uniform private international law rules concerning the protection of adults, 
it could be argued that the ratification of the HCCH 2000 Protection of Adults Convention by all Member 
States could provide solutions to the problems experienced by adults in cross-border situations in the Union, 
should all Member States  join the  Convention. In addition, as  mentioned above, the  Regulation  Proposal is 
accompanied by another proposal for a Council Decision obliging all Member States to join the Convention 
within a certain timeframe. It should be however noted in this regard that the HCCH 2000 Protection of Adults 
Convention provides only for ‘core’ private international law rules aimed for the global application. This 
means that the rules included in the Convention: (i) do not (or not sufficiently) regulate all relevant aspects 
linked to the cross-border protection of adults; and (ii) do not reach the potential that the European Area of 

4 Those  rules determine for instance  which court or other authority competent to take protection  measures has 
jurisdiction, which law applies to a case, and how to recognise or give effect to a protection  measure taken or 
powers of representation established abroad. 
5  Austria,  Belgium,  Cyprus,  Czech  Republic,  Estonia,  Finland,  France,  Germany,  Greece,  Latvia,  Malta,  and 
Portugal are party to the HCCH 2000 Protection of Adults Convention.  
6 Monaco, Switzerland, and the United Kingdom (in respect to Scotland).  

3 

 
 
 
 
 
 
                                                           
Justice  and  the  principle  of  mutual  trust  among  Member  States  inherently  provide  for  a  closer  cooperation 
among Member States.  

- 

- 

First, the HCCH 2000 Protection of Adults Convention  does not include many rules that are either 
commonplace  in  other  areas  of  civil  justice  in  the  Union  or  are  necessary  in  the  Union  of  the  21st 
century. These include for instance provisions establishing basis for digital communication, rules on 
the circulation of authentic instruments among Member States; binding rules concerning the choice of 
jurisdiction made by an adult; rules on the provision of legal aid; rules establishing a uniform certificate 
available in all languages and in all contracting Parties that would prove one’s representative powers 
abroad  with  a  high  level  of  legal  certainty;  or  rules  on  the  provision  of  information  to  competent 
authorities that a particular adult is under a protection measure in another Member State or has granted 
powers of representation to someone in another Member State. In addition, the Convention does not 
provide  mechanisms  for  close  cooperation  among  competent  authorities  that  are  commonplace  for 
other Union’s acquis in the civil justice area, such as the exchanges of information and regular bilateral 
meetings in the context of the European Judicial network in civil and commercial matters etc.  

Second, the Convention provides a minimum set of rules that can be applied internationally and on 
which an international consensus could be reached. These rules are thus, by design, intended to apply 
even among countries that have different legal systems in general and on the protection of adults in 
particular  and  that  do  not,  like  the  Member  States,  have  a  developed  high  degree  of  judicial 
cooperation, high level of mutual trust, or uniform interpretation of the rules by the CJEU in line with 
the same fundamental rights standards. The Convention thus keeps in place stricter safeguards than 
those that are common in the Union in other areas of civil justice. As compared to the Convention, the 
Regulation Proposal would thus for instance (i) limit those grounds for refusal of the recognition of a 
protection measure that are not necessary in the Union; or (ii) do away with exequatur procedure; or 
(iii) establish closer cooperation.  

These limitations of the HCCH 2000 Protection of Adults Convention were detailed in the impact assessment 
accompanying  the  Regulation  Proposal7.  While  the  Convention  is  an  efficient  tool  at  the  global  level,  its 
limitations are especially noticeable in the Union where the increasing cross-border mobility of people and the 
growing number of adults who require support or protection in cross-border situations are a reality.  

The Convention thus is not able to address all the problems currently faced by adults, their families and their 
representatives in cross-border situations in the Union. It follows that the ratification of the Convention by 
all  Member  States  would  address  some  of  the  problems  experienced  by  adults,  their  families  and 
representatives in the Union, but some not at all or not completely. 

In contrast, a Union regulation, such as the one proposed, would take over the ‘core’ private international law 
rules contained in the Convention and would streamline them and modernise them. It would fill any existing 
gaps and also address future needs for the cross-border protection of adults. The regulation would apply only 
among Member States. Those Member States that are or become a party to the HCCH 2000 Protection of Adults 
Convention would apply this Convention vis-à-vis third States – other contracting Parties to the Convention.   

Finally, it should be highlighted that some of the measures introduced by the Regulation Proposal, by their 
very nature, cannot be adopted by individual Member States. These rules, such as the European Certificate 
of Representation that will have uniform evidentiary effects concerning the powers that a representative of an 
adult has throughout the Union, can only be introduced through a directly applicable legislation at the Union 
level. Similarly, interoperable digital solutions (such as the interconnection of national registers or the digital 
communication means for cross-border proceedings) cannot be developed by a Member State acting on its own.  

In conclusion, the problems in the evolving area of the cross-border protection of adults cannot be solved 
by  individual  Member  States  acting  on  their  own.  They  also  cannot  be,  in  their  varied  nature  and 
comprehensibly, solved by the mere ratification of the HCCH 2000 Protection of Adults Convention by 
all Member States.  

(a)  Are  there  significant/appreciable  transnational/cross-border  aspects  to  the  problems  being  tackled? 

Have these been quantified? 

7 See in particular Annexes 6 and 7 of the impact assessment.  

4 

 
 
 
 
 
 
 
 
 
                                                           
Yes. The problems at the heart of the Regulation Proposal concern exclusively cross-border situations.  

In  the  absence  of  statistics,  the  impact  assessment  estimated  that  there  are  currently  between  145 000  and 
780 000 adults in cross-border situations in the Union. This number is growing steadily in time. Each of those 
adults or their representatives may experience difficulties and incur avoidable costs related to the cross-border 
nature of their situation. It was estimated that the streamlining of the current patchwork of diverging national 
rules concerning the cross-border protection of adults in the Union would bring about significant cost savings 
not only for the adults, their families and representatives, but also for Member States’ competent authorities. 
These cost savings were quantified in the impact assessment report, both for the preferred policy option,  i.e. 
where the Union adopts both the Regulation Proposal and the Council Decision (‘preferred policy option’), as 
well as for the other options where the Union adopts only one of them.   

(b)  Would national action or the absence of the EU level action conflict with core objectives of the Treaty8 

or significantly damage the interests of other Member States? 

Yes.  The  absence of  an  action at the Union  level  would conflict  with core  objectives of the  Treaty. This  is 
because the current status quo leads to problems where the rights of adults, including their fundamental rights, 
are hampered. Those problems may affect in particular adult’s access to justice, right to property, right to be 
heard, autonomy and self-determination, dignity, equality and the right to free movement.  

As explained above, Member States acting on their own cannot tackle the causes of the problems. The absence 
of a Union action would thus fail to prevent the problems and their consequences, in particular to uphold the 
fundamental rights of adults in cross-border situations. It would thus hinder the achievement of the objectives 
and values upheld by the Treaty, in particular by Article 3 of the Treaty on the European Union9 and the Charter 
of Fundamental Rights of the European Union.  

(c)  To what extent do Member States have the ability or possibility to enact appropriate measures? 

As  explained  above,  Member  States  acting  individually  could  not  satisfactorily  remove  the  problems 
experienced by adults, their families and representatives in cross-border situations in the Union. To that effect, 
uniform  private  international  law  rules  applicable  throughout  the  Union,  coupled  with  additional  measures 
improving  the  cooperation  among  competent  authorities  of  different  Member  States  and  streamlining  the 
cross-border procedures, would be appropriate.  

Member States can (and under the Council Decision would be obliged to) join the HCCH 2000 Protection of 
Adults Convention. As detailed above, this instrument would, however, fall short of effectively tackling all the 
problems experienced by the adult in cross-border situations in the Union. Furthermore, without a Union action, 
the  adoption  of  measures  that  are  common  in  other  areas  of  the  Union  acquis  (that  facilitate  cross-border 
proceedings and thus further protect the rights of parties to those proceedings) would not be possible.  

(d)  How does the problem and its causes (e.g. negative externalities, spill-over effects) vary across the 

national, regional and local levels of the EU? 

The current problems stem from (i) conflicting and complex rules on applicable law, (ii) conflicting rules on 
jurisdiction, (iii) conflicting or complex rules on recognition of foreign measures and powers of representation, 
(iv)  unnecessary  or  complex  enforcement  proceedings,  (v)  absent  or  limited  cooperation  among  national 
competent  authorities,  (vi)  lack  of  accessible  information  on  foreign  law;  and  (vii)  lack  of  training  and 
information. In addition, a number of external factors influencing the problems were identified and described 
in the impact assessment.  

In general, the problems stemming from those causes should be most pronounced in relation to those Member 
States that are not contracting Parties to the HCCH 2000 Protection of Adults Convention, since they currently 
do  not  have  harmonised  private  international  law  rules  with  any  other  Member  States  and  cannot  use  the 

8 https://europa.eu/european-union/about-eu/eu-in-brief_en  
9 See in particular the following objective in Article 3 Treaty on the European Union: [The Union] It shall combat 
social exclusion and discrimination, and shall promote social justice and protection, equality between women and 
men, solidarity between generations and protection of the rights of the child. 

5 

 
 
 
 
  
 
 
 
                                                           
cooperation mechanisms under the Convention to solve cross-border cases. However, this is not the only factor 
influencing the existence or prevalence of problems in situations involving cross-border protection of adults. 
Notably, the problems may be (more) marked between Member States with a higher population of vulnerable 
adults with links to other Member States. In addition, the problem is also more noticeable between Member 
States with the same language or in border regions of some Member States.  

In  addition,  those  Member  States  that  are  contracting  Parties  to  the  HCCH  2000  Protection  of  Adults 
Convention have a uniform set of private international law rules vis-à-vis those other 11 Member States that are 
also  contracting  Parties.  However,  the  problems  remain  in  relation  to  those  Member  States  that  are  not 
contracting  Parties  to  the  Convention  (and  even  vis-à-vis  the  other  contracting  Parties  to  the  Convention  in 
instances where the Convention does not include sufficient rules).  

Therefore, to a varying extent, the problems affect or may affect all Member States. In particular, it should be 
noted that with the ageing population and the increasing number of people with disabilities of all ages and with 
the  increasing  mobility  of  the  Union’s  population,  the  problems  will  continue  to  increase  in  the  future 
throughout the Union.   

(e)  Is the problem widespread across the EU or limited to a few Member States? 

See the answer to 2.3(d).  

(f)  Are Member States overstretched in achieving the objectives of the planned measure? 

No. First, the Regulation Proposal would not affect the substantive law in the field of the protection of adults 
or procedural rules currently applied by each Member State to the protection of adults in domestic situations.  

Second, the private international law rules included in the Regulation Proposal partially reflect the rules already 
existing  in  Member  States’  private  international  law  rules.  This  applies  especially  for  Member  States  that 
already  are  contracting  Parties  to  the  HCCH  2000  Protection  of  Adults  Convention,  since  the  Regulation 
Proposal builds on the rules contained in the Convention. In addition, even a number of Member States that are 
not parties to the Convention already now apply similar rules. Member States would not have to change those 
rules,  which  will still apply to third States that are  not contracting Parties to the HCCH 2000 Protection of 
Adults Convention. Some of them may choose to harmonize their national private international law rules with 
those of the Convention, but this is not imperative.  

As  regards  the  other  rules  included  in  the  Regulation  Proposal,  they  are  either  based  on  the  rules  already 
included in other Union instruments on private international law (such as the creation or running of Central 
Authorities, rules on the circulation of authentic instruments, multilingual standard forms, and certificates with 
uniform  legal  effects  throughout  the  Union,  or  cooperation  via  the  European  Judicial  Network  in  civil  and 
commercial matters, interconnection of national registers) or on those measures that are currently in the process 
of being prepared and implemented across the board for all other EU acquis in the civil-law area (such as the 
digitalisation of communication concerning cross-border civil procedures).  

Third, as regards costs, the Regulation Proposal  would only lead to  moderate  adjustment costs  for Member 
States. These would include, for instance, costs arising from the need to train judges and other authorities on 
the new rules, to set up Central Authorities, or to implement digital communication tools10. Minor recurrent 
costs would also be incurred (for example, costs for the issuance of European Certificates of Representation, 
costs of running Central Authorities, or for the continuous training of Member State authorities applying the 
regulation).  These  costs  would  however  be  offset  by  the  savings  on  procedural  costs  made  by  adults,  their 
families  and  their  representatives  and  by  the  Member  States  and  their  competent  authorities.  Additional 
adjustment costs will also arise for the interconnection of national registers concerning protection measures and 
(confirmed)  powers  of  representation.  This  would  entail  making  existing  registers  interoperable  for  the 
interconnection, but in some Member States also creating national registers of measures and confirmed powers 

10 These costs would be however largely mitigated by the fact that equivalent tools are to be implemented in all 
other  area  of  cross-border  civil  justice  under  the  (proposal  for  a)  Regulation  on  the  digitalisation  of  judicial 
cooperation and access to justice in cross-border civil, commercial and criminal matters, and amending certain 
acts in the field of judicial cooperation. 

6 

 
 
 
 
 
 
 
                                                           
of  representation11  or  digitalising  them.  While  all  other  costs  linked  to  the  Regulation  Proposal  will  not 
significant,  the  IT-related  costs  for  the  interconnection  of  registers  are  comparatively  higher,  even  though 
comparable to other systems of interconnection already established at the Union level12. 

(g)  How do the views/preferred courses of action of national, regional and local authorities differ across 

the EU? 

The general need for having uniform private international law rules on the cross-border protection of adults and 
mechanisms for cooperation among Member States in this area was confirmed repeatedly by various actors13. 
This need was supported unanimously during the consultations conducted over several years.  

Most Member States, in particular those that are already contracting Parties to the HCCH 2000 Protection of 
Adults Convention, supported that all Member States should join the Convention14. In addition, the Commission 
consulted Member States on the various measures  that could complement the Convention at a meeting with 
Member States governmental experts in October 2022. Member States representatives expressed their general 
support for the possible measures to be included in the Regulation Proposal, in particular a European Certificate 
of Representation.  

Besides the consultations of Member States, the Commission received feedback from legal practitioners dealing 
with  the  protection  of  adults  in  the  Union,  including  civil  servants,  notaries,  lawyers  and  judges.  Legal 
practitioners (similarly to most of the civil society) were in favour of Union rules on the cross-border protection 
of adults.  

It can thus be concluded that overall, most stakeholders welcome a Union legislation in this field.  

2.4  Based  on  the  answer  to  the  questions  below,  can  the  objectives  of  the  proposed  action  be  better 

achieved at Union level by reason of scale or effects of that action (EU added value)? 

Yes.  The Regulation Proposal aims to tackle difficulties experienced by adults in cross-border situations by 
providing common rules in the area of cross border protection of adults.  The objectives of the  Regulation 
Proposal are to: (i) protect the fundamental rights of the adults; (ii) improve the effectiveness and speed 
of cross-border proceedings concerning the protection of  adults, and (iii) to strengthen legal certainty 
and predictability in cross-border dealings. 

These objectives would be best achieved through the adoption of uniform private international rules and rules 
on cross-border cooperation in the form of a Union  legislation applicable among Member States (combined 
with the ratification of the HCCH 2000 Protection of Adults Convention by all Member States). The adoption 
and  uniform  application  of  these  rules  throughout  the  Union  cannot  be  achieved  by  Member  States  acting 
individually but can be achieved by the Union legislation. The mere ratification of the HCCH 2000 Protection 
of Adults Convention does not go far enough to tackle the problems of adults in cross-border situations and thus 
does not meet the objectives fully.  

Therefore, for reasons of scope and effects, the objectives of the proposal would be best achieved at Union 
level in accordance with the principle of subsidiarity.  

(a)  Are there clear benefits from EU level action?  

11 Where national law provides for powers of representation in respect of which a competent authority can confirm 
that the representative vested with these powers can exercise them (since the adult is, by reason of an impairment 
or insufficiency of his or her personal faculties, not in a position to protect his or her interests).  
12 See for instance the IRI (Interconnection of Insolvency Registers). 
13 Ratification by all Member States of the HCCH 2000 Protection of Adults Convention (or accession thereto) is 
a long-standing objective of the Union. Since 2008, the HCCH 2000 Protection of Adults Convention has been 
explicitly  endorsed  by  the  Council  of  the  European  Union,  the  European  Parliament,  and  the  European 
Commission. The European Parliament has actively supported not only the ratification of the Convention by all 
Member States but also a possible Union legislative initiative in the field of protection of adults to complement 
the Convention. 
14  See  for  instance  the  2021  Council  conclusions  where  all  Member  States  called  for  the  ratification  of  the 
Convention: pdf (europa.eu). 

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Yes. The adoption of uniform rules on the cross-border protection of adults in the Union can be best achieved 
by a Union legislation.  

First, there are clear benefits from the Union’s legislative action as compared to an uncoordinated (legislative) 
action by Member States. As explained above, it is considered that such action by Member States would not 
tackle the existing problems in the area of the protection of adults. In that regard, an EU level action that would 
tackle the problems would have clear benefits, in particular for the adults, their families and representatives, as 
well  as  for  Member  States’  competent  authorities  and  the  overall  legal  certainty  and  predictability  in 
cross-border dealings in the Union.  

The  Union  legislation  would  safeguard  the  rights  of  adults  in  cross-border  context,  in  particular  their  equal 
access to justice, right to property, right to be heard, autonomy and self-determination, dignity, equality and the 
right to free movement. It would thus have a positive impact on the protection of the fundamental rights of 
vulnerable  adults  in  cross-border  situations.  It  would  also  have  other  positive  legal  impacts,  such  as  by 
avoiding the instances where an adult or their representative need to go to court or avoiding legal uncertainty 
and improving the provision of information on the law that applies to the cases involving adults. It would also 
have a positive social impact as it would benefit vulnerable adults’ wellbeing, health, inclusion and equality. 
Through the adoption of common Union rules, the cross-border procedures would be simplified, speeded up 
and digitalised. This would result in significant savings in cross-border situations in terms of costs, time and 
burden for both adults, their families and representatives, and for Member States’ public authorities.  

Second, there  are  clear benefits from Union’s legislative action in comparison to an international legal 
framework (the HCCH 2000 Protection of Adults Convention). Given the existence of the European Area of 
Justice  in  the  Union  established  on  the  principles  of  the  high  level  of  mutual  trust  and  cooperation  among 
Member States, as well as the shared fundamental rights framework (including the Charter and the UNCRPD15), 
the  Union  legislation  is  best  suited  for  creating  rules  that  are  comprehensive,  streamlined  and  modernised 
enough to tackle the problems faced by adults in cross-border situations in the Union. The Union legislation 
can thus build on the existing international law rules in the area included in the Convention, improve them and 
add measures that are needed and appropriate in the Union context. (For details on those additional measures, 
see question 2.3 above or the impact assessment). In addition, the uniform Union rules would be supported by 
a uniform interpretation by the Court of Justice and therefore their consistent application under the control of 
the Court. 

(b)  Are there economies of scale? Can the objectives be met more efficiently at EU level (larger benefits 

per unit cost)? Will the functioning of the internal market be improved? 

The  current  problems  in  the  cross-border  protection  of  adults  have  a  significant  adverse  impact  on  the 
fundamental rights and other rights of those adults. In view of this, the quantitative size of the problem in terms 
of the absolute number of adults affected by the problems should not be considered as the prime or only indicator 
of the seriousness of the problem, or as the basis to assess the need for the Union to take action to address the 
problem.  

Even considering the above, the adoption of the Regulation Proposal would result in cost reductions for both 
adults,  their  families  and  representatives  and  for  Member  States’  competent  authorities.  These  costs 
reductions were quantified, based on a number of assumptions, in the impact assessment.  

Member States would likely to benefit from economies of scale in implementing the Regulation Proposal 
together with the Council Decision obliging them to join the HCCH 2000 Protection of Adults Convention. 
With these two complementary proposals, a coherent legal framework would be established both with respect 
to other EU Member States and to third States. Other economies of scale can be expected for the implementation 
of the digital tools (the digital communication and the interconnection of registers), since those measures have 
been adopted also in other areas of the Union’s (civil) justice acquis.  

Given its nature, the proposal would not have a direct impact on the functioning of the internal market, but it 
would have a positive impact on the free movement of adults within the Union as they would not be deterred 
from exercising their right to free movement and  on the cross-border capital flows as the adult’s rights to 
property and its smooth management would be protected even in cross-border situations.  

15 United Nations Convention on the Rights of Persons with Disabilities. 

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(c)  What are the benefits in replacing different national policies and rules with a more homogenous policy 

approach? 

The introduction at Union level of uniform rules on private international law rules and rules on cooperation in 
the area of cross-border protection of adults would avoid the current problems that are faced, especially by those 
adults,  their  families  and  representatives  but  also  by  Member  States  competent  authorities  and  the  general 
public. This would provide greater legal certainty, reduce the length and costs of proceedings, ensure a better 
recognition  of  protection  measures  and  powers  of  representation,  remove  gaps  and  inconsistencies  in  the 
protection of adults and thereby ensure that their fundamental rights are not at risk in cross-border situations.  
This would be in line with the values, rights and objectives set by the Treaties.  

(d)  Do the benefits of EU-level action outweigh the loss of competence of the Member States and the local 
and regional authorities (beyond the costs and benefits of acting at national, regional and local levels)? 

Yes.  First,  the  Union  action  enable  achieving  objectives  and  tackling  the  problems  that  the  Member  States 
cannot achieve on their own. Most importantly, one clear benefit of the Union’s intervention would be the better 
protection of vulnerable adults in cross-border situations in the Union. This has already been elaborated above.  

Second, the measures adopted under the Regulation Proposal would be standard ones, in the sense that their 
equivalents exist already in other areas of the Union civil-law acquis. Third, the Union’s action would not affect 
the Member States’ competence to regulate matters of substantive law in the field of the protection of adults or 
their  procedural  laws  in  this  field.  Fourth,  given  the  nature  of  the  Union  intervention,  the  division  of 
competences  between  the  Member  States  and  local  and  regional  authorities  would  not  be  affected  by  the 
intervention.   

In view of the above, the benefits of action at Union level outweigh the loss of competence of the Member 
States  as  regards  the  private  international  law  rules  and  rules  on  cooperation  in  the  area  of  cross-border 
protection of adults.  

(e)  Will there be improved legal clarity for those having to implement the legislation? 

Yes.  
First, the uniform rules would reduce the current legal patchwork of different and diverging national rules on 
the  protection  of  adults  in  cross-border  situations.  It  will  thus  improve  the  overall  legal  clarity,  as  well  as 
predictability.  This  includes  for  instance  that  the  measures  taken  or  powers  of  representation  registered  or 
confirmed by competent authorities in one Member State would be given effect in other Member States and 
their content could thus be relied upon. 

The  legislation  will  improve  legal  certainty  for  vulnerable  adults  (current  and  future),  their  families  and 
representatives, as well as for Member States’ competent authorities and for legal practitioners having to deal 
with matters concerning the protection of adults. However, more broadly, the legal certainty will improve for 
everyone. This is because everyone might want to establish powers of representation for the situation when one 
cannot protect his or her interests and would want to ensure that these powers are respected in other States. In 
addition, under the Regulation Proposal, everyone dealing with an adult’s representative entrusted with certain 
powers abroad would have improved legal certainty that the representative may act on behalf of the adult (or in 
the interest of the adult) in specific matters, thanks to, in particular, the European Certificate of Representation. 

Second,  the  measures  to  be  introduced  by  the  Regulation  Proposal,  such  as  the  information  available  in  all 
official  Union  languages  on  the  e-Justice  Portal,  the  use  of  multilingual  standardised  forms,  and  the 
establishment of Central Authorities that can provide assistance or information in this area, modern and direct 
communication tools among (competent) authorities, and practice guides and other tools to be developed by the 
European  Judicial  Network  in  civil  and  commercial  matters  would  greatly  facilitate  legal  clarity  and 
predictability in the field of cross-border protection of adults.   

Third, the Union rules could be further clarified by a uniform interpretation by the Court of Justice ensuring 
their uniform application throughout the Union. 

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Finally, improving legal certainty and predictability in cross-border dealings in the area of protection of 
adults is in fact one of the objectives of the Union initiative.  

3.  Proportionality: How the EU should act 

3.1   Does the explanatory memorandum (and any impact assessment) accompanying the Commission’s 
proposal  contain  an  adequate  justification  regarding  the  proportionality  of  the  proposal  and  a 
statement allowing appraisal of the compliance of the proposal with the principle of proportionality? 

Yes. Both the explanatory memorandum and the impact assessment include an appraisal of the compliance of 
the proposal with the principle of proportionality. As the explanatory memorandum summarises: 

The objectives of this proposal are to protect the fundamental rights of the adults, improve the effectiveness and 
speed of cross-border proceedings concerning the protection of adults, and to strengthen legal certainty and 
predictability in cross-border dealings. To that effect, the proposal harmonises the Member States’ rules on 
international jurisdiction, applicable law, recognition and enforcement of protection measures and acceptance 
of authentic instruments. It also sets out rules giving effect to powers of representation in all Member States. 
Finally, it establishes tools to improve and expedite the cooperation between Member States in this area.  

The proposal does not go beyond what is necessary to achieve its objectives. 

For instance, it does not interfere with national rules governing the support provided to adults with diminished 
capacities;  it  only  applies  to  conflict  of  jurisdiction,  conflict  of  laws  or  recognition  of  foreign  measures  or 
documents in cross-border situations. 

In addition, the European Certificate of Representation established in this proposal is optional and will not 
replace equivalent national documents providing evidence of representation. 

The proposal requires Member States to establish a register of measures and of powers of representation and 
to  interconnect  it  with  other  Member  States  registers,  in  order to  ensure  that  the  protection  of  adults  is 
continuous in cross-border cases, and that their fundamental right to self-determination is respected when they 
move within the Union. However, the set of data to be registered and shared through the interconnection of 
registers under this proposal is extremely limited with a view to providing information on the existing protection 
of an adult. Moreover, Member States will remain responsible for designating their national authorities which 
can access the interconnected system of registers.  

The proposal therefore respects the principle of proportionality. 

3.2  Based on the answers to the questions below and information available from any impact assessment, 
the explanatory memorandum or other sources, is the proposed action an appropriate way to achieve 
the intended objectives? 

Please see the summary in question 3.1  

(a)  Is the initiative limited to those aspects that Member States cannot achieve satisfactorily on their own, 

and where the Union can do better? 

Yes. The Regulation Proposal only contains common rules to the extent necessary to achieve the policy 
objectives and to the extent that Member States cannot achieve satisfactorily on their own. 

The Regulation Proposal does not interfere with national substantive law in the field of the protection of adults, 
nor national procedural law. The initiative is thus limited to those aspects that Member States cannot achieve 
satisfactorily on their own, especially private international law aspects and rules on the cooperation between 
competent authorities of different Member States.  

The  use  of  the  standard  EU  tools,  such  as  the  e-Justice  Portal,  the  European  Certificate  of  Representation, 
multilingual standardised forms or digital communication tools in those cross-border proceedings would greatly 
improve legal clarity and efficiency of the cross-border proceedings. These measures can only be introduced 
through a Union legislation and not by Member States individually.  

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(b)  Is the form of Union action (choice of instrument) justified, as simple as possible, and coherent with 
the  satisfactory  achievement  of,  and  ensuring  compliance  with  the  objectives  pursued  (e.g.  choice 
between regulation, (framework) directive, recommendation, or alternative regulatory methods such 
as co-legislation, etc.)? 

Yes.  The  adoption  of  uniform  rules  on  international  jurisdiction,  and  recognition  of  protection  measures, 
acceptance of authentic instruments, and applicable law on protection measures and powers of representation in 
cross-border situations can only be achieved through a uniform set of rules applying in the Union.  

(As to the choice of a Regulation for relations among Member States instead of the HCCH 2000 Protection of 
Adults Convention, see the explanations above.)  

At the Union level, directly applicable legislation would be necessary to ensure their uniform application and 
interpretation. Only a Regulation ensures a fully consistent interpretation and application  of the  rules in the 
Union  and  ensures  full  reciprocity  in  the  cooperation  (in  contrast  with  e.g.  a  Directive).  In  addition,  other 
measures, such as the European Certificate of Representation, the digitalisation of cross-border communication 
and  the  ease  of  language  barriers  can  only  be  established by  a  Regulation.  Therefore,  in  line  with  previous 
Union  instruments  on  private  international  law  and  to  achieve  the  objectives  of  the  Union  action,  the  only 
possible legal instrument is a Regulation. 

(c)  Does  the  Union  action  leave  as  much  scope  for  national  decision  as  possible  while  achieving 
satisfactorily the objectives set? (e.g. is it possible to limit the European action to minimum standards 
or use a less stringent policy instrument or approach?) 

Yes. First, the Union action is already limited to private international law rules in relation to the protection 
of adults in cross-border situations and cooperation among Member States in that area, and does not regulate 
the substantive law in the field of the protection of adults or national procedural laws. In addition, the Regulation 
Proposal would not substantively16 change the jurisdiction and recognition rules and rules on applicable law 
included in the HCCH 2000 Protection of Adults Convention since those rules are already applied by competent 
authorities of Member States that are contracting Parties to the Convention. 

Second, using a less ambitious instrument (e.g. a soft law or a directive) would not meet the objectives of the 
intervention (or would not be legally possible for the envisaged measures) and using less comprehensive rules 
(such  as  those  under  the  HCCH  2000  Protection  of  Adults  Convention)  would  not  meet  the  objectives 
completely. As a result, the situations where adults’ rights and fundamental rights are violated and they incur 
unnecessary  costs  in  cross-border  situations  would  be  perpetuated.  In  addition,  it  was  confirmed,  including 
through the consultations, that a staged approach (such as introducing first the Convention and then, after time, 
a  regulation)  would  not  be  a  desirable  solution  since  adjustment  costs  would  then  be  incurred  twice  by 
Member States and legal professionals. The consideration of those adjustment needs is important in the area of 
civil justice in general since the rules are to be applied by many legal professionals and courts. It is even more 
important in the area of the protection of adults, dealing with vulnerable people.  

Third, the measures proposed by the Regulation Proposal do not go further than necessary. For instance, 
the European Certificate of Representation established under the Regulation Proposal is optional and will not 
replace  equivalent  national  documents  providing  evidence  of  representation.  Similarly,  the  digital 
communication of natural or legal persons with competent authorities of Member States is not compulsory for 
those  persons,  the  Regulation  Proposal  just  provides  for  a  legal  basis  and  IT  tools  necessary  for  such  a 
communication.  Those  persons  may  (but  do  not  have  to)  use  these  tools.  In  addition,  the  system  of 
interconnection is limited to interconnecting a minimum set of compulsory data that are necessary to access the 
information  whether  or  not  a  protection  measure  was  taken  or  powers  of  representation  were  registered  or 
confirmed concerning a  particular adult and  whether they  are applicable/in force.  Moreover, Member States 
will remain responsible for designating their national authorities which can access the interconnected system of 
registers. The  Regulation  Proposal  would  also  not  limit  the  functioning  of  the  existing  or  future  national 
registers, beyond the obligation that the minimum set of data is included therein. 

16 Beyond specific clarifications and additions aimed at streamlining those rules for the Union’s context. 

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Finally, given the lack of evidence of practical problems met by adults in cases involving the law applicable or 
ex lege representation17, which were mainly mentioned by the academia, the  Regulation Proposal does not 
include additional provisions on applicable law in that respect. 

(d)  Does the initiative create financial or administrative cost for the Union, national governments, regional 
or local authorities, economic operators or citizens? Are these costs commensurate with the objective 
to be achieved? 

The Regulation Proposal would not create any new costs for adults, their families or representatives and would 
significantly lower their existing costs.  This in fact belongs to one of the main objectives of the Regulation 
Proposal. 

As regards Member States, besides usual  minor adjustment costs applicable for the adjustment to a new 
legislation and for the necessary training of competent authorities, the impact assessment also envisages small 
costs  for  the  extension  of  legal  aid  to  some  specific  cases  or  for  the  establishment  and  running  of  Central 
Authorities. These costs would be small and outweighed by the benefits brought about by the Regulation 
Proposal. This is because the labour and procedural costs of processing cases for public authorities and courts 
would be reduced thanks to the uniform predictable rules in the Regulation Proposal.  

As regards the costs for the  digital measures under the Regulation Proposal, the costs would be shared 
between  Member  States  and  the  Union.  The  Regulation  Proposal  includes  provisions  on  digital 
communication  between  national/legal  persons  and  Member  States’  competent  authorities  through  the 
European  electronic  access  point  and  among  Member  States’  competent  authorities  in  the  context  of  the 
decentralised IT system. This will entail some costs for the Member States and for the Union, but the impact 
will not be significant, because the necessary IT infrastructure would be developed for the purposes  of other 
Union acquis that will be digitalised under the Proposal for the Digitalisation of Justice in the meantime. The 
costs borne by Member States for the interconnection of national registers of protection measures and powers 
of representation (and their set-up in Member States where they do not exist yet) would be higher than those 
for other digital solutions. The costs of establishing, interconnecting, maintenance, and future development 
of the system interconnecting national registers would be financed from the general budget of the Union. 
The overall costs for interconnecting and running the system of interconnection (both for Member States and 
the  Union)  would  be  comparable  to  the  costs  for  other  systems  of  interconnection  of  registers  already 
existing  at  the  Union  level  (see  the  assessment  of  the  costs  in  the  impact  assessment).  The  costs  will  be 
proportionate to the objective of ensuring the protection of adults in cross-border situations and the respect 
for  their  wills  and  preferences.  In  concrete  terms,  the  measure  would  be  proportionate  to  ensuring  that  the 
competent authorities have, in cross-border situations, access to information whether or not a person is under a 
protection  measure in another Member State or  whether  the person has granted powers  of representation in 
another Member State. The information to be accessed through the system of interconnection would thus be 
limited to the information strictly necessary for that purpose.  

The costs of the Regulation Proposal would thus commensurate with the objectives to be achieved.  
For detailed estimation of the costs, see impact assessment, in particular its Annex 3 and 4. 

(e)  While  respecting  the  Union  law,  have  special  circumstances  applying  in  individual  Member  States 

been taken into account? 

There are no significant special circumstances applying in individual Member States, other than the difference 
between Member States that are contracting Parties to the HCCH 2000 Protection of Adults Convention and 
those that are not. This difference has been taken into account in the impact assessment.  

This is without prejudice to the fact that Denmark will not take part in the adoption of the Regulation Proposal 
as it does not take part in the measures adopted under Article 81 TFEU18, and without prejudice to Protocol No 
21,  whereby  Ireland  can  notify  whether  it  wishes  to  take  part  in  the  adoption  and  application  of  the  new 
regulation.  

17 In some Member States, the protection of an adult by a spouse or by other relative is provided by law. In those 
cases, the spouse or the relative is automatically vested with the power to represent the adult in the event that the 
latter is not in a position to protect his or her interest. 
18 Protocol No 22 on the Position of Denmark, annexed to the Treaties. 

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