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: 2023-07-24
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: EU Member State, accession to an agreement, adult, area of freedom, security and justice, cross-border cooperation, elderly person, equal treatment, fundamental rights, international convention, physically disabled person

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   EUROPEAN COMMISSION  Brussels, 24.7.2023  COM(2023) 281 final/2 2023/0170 (NLE)  This document corrects COM(2023)281 Concerns all language versions The error concerns the replacement of the expression ‘opinion’ of the European Parliament by 'consent' of the European Parliament in the third citation of the draft Council Decision. The text shall read as follows: 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 {SWD(2023) 155 final} - {SWD(2023) 156 final} - {SEC(2023) 208 final}  
 
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

The EU aims to create, maintain and develop an area of freedom, security and justice in which 
the free movement of persons, access to justice and the full respect of fundamental rights are 
ensured. 

This  aim  should  also 
the  cross-border  protection  of  adults  who,  by 
reason  of  an  impairment  or  insufficiency  of  their  personal  faculties,  are  not  able  to  protect 
their interests (‘adults’). An adult is a person who has reached the age of 18 years. 

include 

The  number  of  adults  in  such  situations  in  the  EU  is  on  the  increase  due  to  the  ageing 
population and the associated incidence of age-related illnesses, and the growing number of 
people  with  disabilities.  Depending  on  the  national  legislation  of  the  Member  State  where 
they  live,  they  can  be  under  a  protection  measure  taken  by  a  court  or  an  administrative 
authority, or they can be supported by a third party they had designated in advance (through 
powers of representation’) to manage their interests. 

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  those  cross-border  situations,  adults  are  confronted  with  the  complex  and  sometimes 
conflicting  rules  of  Member  States.  These  include  deciding  which  court  or  other  authority 
competent  to  take protection measures  has  jurisdiction, which law applies to  their case, and 
how to recognise or give effect to a decision taken or to powers of representation established 
abroad.  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  undertake.  To  ensure  that  their 
protection  continues  to  be  effective  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 in their representative are ultimately not recognised, 
either by courts or by non-judicial actors such as banks, medical staff or real estate agents. 

On  13 January  2000,  under  the  auspices  of  the  Hague  Conference  on  Private  International 
Law  (HCCH),  the  intergovernmental  organisation  whose  purpose  is  ‘to  work  for  the 
progressive  unification  of  the  rules  of  private  international  law’1,  the  Convention  on  the 
International  Protection  of  Adults  (HCCH  2000  Protection  of  Adults  Convention)  was 
adopted. This Convention provides a comprehensive body of rules on jurisdiction, applicable 
law,  recognition  and  enforcement  of  protective  measures,  and  provisions  on  the  law 
applicable  to  powers  of  representation  which  give  effect  to  such  powers  in  a  cross-border 
context.  It  also establishes mechanisms of cooperation between the competent authorities of 
Contracting States and between Central Authorities of Contracting States. 

This  Convention  is  widely  considered  as  an  efficient  and  flexible  private  international  law 
instrument that is fit for purpose at global level. The recent work carried out under the Special 
Commission on the practical operation of the HCCH 2000 Protection of Adults Convention2 
will soon provide practitioners with useful tools for its proper application, such as a Practical 
Handbook. 

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Article 1 of the Statute of the Hague Conference. 
https://www.hcch.net/en/news-archive/details/?varevent=884 

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However, only 12 EU Member States are currently party to that Convention3. Ratification of 
and accession to the HCCH 2000 Protection of Adults Convention by all Member States is a 
long-standing EU objective. 

Since 2008, the HCCH 2000 Protection of Adults Convention has been explicitly endorsed by 
the  Council  of  the  European  Union4    the  European  Parliament5,  and  the  European 
Commission6.  Broad  ratification  of  the  HCCH  2000  Protection  of  Adults  Convention  by 
Member  States,  and  beyond,  is  essential  for  its  effective  operation.  Parliament  has  actively 
supported the ratification of the Convention by  all Member States, as well as a possible EU 
legislative initiative to complement the HCCH 2000 Protection of Adults Convention. 

From 5 to 8 December 2018, the Commission and the HCCH organised an international joint 
conference  to  promote  the  ratification  of  the  HCCH  2000  Protection  of  Adults  Convention 
and examine possible shortcomings that would require further action7. 

On  3 May  2021,  the  Ministers  of  Justice  of  Czechia,  France  and  Slovenia  wrote  to  the 
Commission  to  request  that  the  Commission  speed  up  its  preparatory  work  on  a  legislative 
initiative. 

In June 2021, Council conclusions8 were adopted which, inter alia, invited Member States to 
ratify the HCCH 2000 Protection of Adults Convention  as swiftly as possible and prompted 
the  Commission  to  consider  the  possible  need  for  a  legal  framework  within  the  EU  to 

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Belgium,  Czechia,  Germany,  Estonia,  Greece,  France,  Cyprus,  Latvia,  Malta,  Austria,  Portugal  and 
Finland. 
In  the  Council  Conclusions  ‘Legal  Protection  for  Vulnerable  Adults’  (14667/08  (Press  299), 
24.X.2008),  the  Council  invited  Member  States  that  had  not  already  done  so  ‘to  begin  as  quickly  as 
possible or to actively continue with procedures for […] signature and / or ratification’ of the HCCH 
2000 Protection of Adults Convention and invited Member States ‘which are still engaged in domestic 
consultations  [with  respect  to  joining  the  HCCH  2000  Protection  of  Adults  Convention]  to  conclude 
those consultations as soon as possible’. In addition, in its conclusions on the ‘Stockholm Programme – 
An  open  and  secure  Europe  serving  and  protecting  citizens’,  adopted  in  2009,  the  European  Council 
expressed the wish that Member States join the HCCH 2000 Protection of Adults Convention  ‘as soon 
as possible’. 
See  ‘Cross-border  implications  of  the  legal  protection  of  adults’  (P6_TA(2008)0638),  the  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). In paragraphs 1-4, the 
resolution  called  for  the  ratification  of  the  HCCH  2000  Protection  of  Adults  Convention  by  Member 
States  and  requested  that  the  Commission  make  a  legislative  proposal  on  the  strengthening  of 
cooperation between Member States, to summarise operational issues and best  practices in relation to 
the HCCH 2000 Protection of Adults Convention, and to assess the possible accession of the European 
Community as a whole to the Convention. It is to be noted that Parliament’s 2008 Resolution asked the 
Commission to present a proposal ‘as soon as sufficient experience of the operation of the Convention 
has  been  acquired’.  A  further  Resolution  was  adopted  by  the  European  Parliament  on  1 June  2017 
calling  on  Member  States  to  sign  and  ratify  the  HCCH  2000 Protection  of  Adults  Convention  and  to 
promote self-determination for adults by introducing into their national law legislation on mandates in 
anticipation of incapacity. 
See  Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European 
Economic  and  Social  Committee  and  the  Committee  of  the  Regions,  ‘Delivering  an  area  of  freedom, 
security  and  justice  for  Europe’s  citizens  -  Action  Plan  Implementing  the  Stockholm  Programme, 
Brussels, 20.4.2010, COM(2010) 171 final. Paragraph 13 of the 2010 action plan for implementing the 
Stockholm  Programme,  under  the  heading  of  ‘Ensuring  the  protection  of  fundamental  rights  / 
Vulnerable  Groups,’  refers  to  European  Union  Member  States  becoming  party  to  the  HCCH  2000 
Protection of Adults Convention. 
EC-HCCH  Joint  Conference  on  the  Cross-border  Protection  of  Vulnerable  Adults,  Brussels,  5-
7 December 2018, https://www.hcch.net/en/news-archive/details/?varevent=654. 
Council Conclusions on the protection of vulnerable adults across the European Union (7 June 2021). 

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facilitate  the  circulation  of  protection  measures  and  present,  if  necessary,  legislative 
proposals. 

In  2021-2022,  the  Portuguese,  French  and  Czech  Presidencies  organised  various  events  to 
raise awareness on this issue. 

Notwithstanding  these  activities,  the  ratification  pace  of  the  Convention  is  still  too  slow.  In 
some Member States, the draft law implementing the ratification has been pending for years 
in parliament, or it has not been submitted by the government notwithstanding the conclusion 
of  the  preparatory  work.  Other  Member  States  are  applying  the  Convention  partially  in 
practice  (in  particular  the  rules  on  jurisdiction  and  applicable  law)  without  taking  any 
initiative  to  formally  ratify  the  Convention.  This  would  imply  the  appointment  of  a  Central 
Authority in order to render effective the cooperation among Contracting States. 

Against  this  backdrop,  the  Commission  has  decided  to  present  an  initiative  aimed  at 
authorising  those  Member  States  not  yet  Party  to  the  Convention  to  ratify  or  accede  to  it. 
Reference  to  this  initiative  is  made  in  the  Commission  Work  Programme  2022:’  We  will 
propose  measures  […]  to  strengthen  judicial  cooperation  on  the  protection  of  vulnerable 
adults in cross-border situations. 

As the HCCH 2000 Protection of Adults Convention is open for signature and ratification to 
States  which  were  Members  of  the  Hague  Conference  on  Private  International  Law  on 
2 October  19999  (Article 53  of  the  Convention),  the  following  Member  States  will  have  to 
both  sign and ratify the  Convention: Bulgaria, Spain,  Croatia, Hungary, Romania, Slovenia, 
Slovakia, and Sweden. Conversely, Ireland, Italy, Luxembourg, Netherlands and Poland will 
only  have  to  ratify  the  Convention  as  they  have  already  signed  it.  Lithuania  will  have  to 
accede to it, as it has been a Member of the Hague Conference on Private International Law 
since 23 October 2001. 

• 

Consistency with existing policy provisions in the policy area 

There  is  currently  no  EU  legislation  on  cross-border  protection  of  adults.  However,  the 
present  proposal  is  part  of  a  package  with  a  Commission  proposal  for  a  Regulation  of  the 
European  Parliament  and  of  the  Council  on  jurisdiction,  applicable  law,  recognition  and 
enforcement of measures, authentic instruments and powers of representation and cooperation 
in civil matters relating to the protection of adults. The proposal provides for the application 
in Member States  of some of the rules  of the  HCCH 2000 Protection of Adults Convention 
and lays down complementary rules  to  facilitate  an even closer intra-EU cooperation in this 
area. 

The  present  proposal  concerns  ratification  and  accession  for  those  Member  States  not  yet 
Party  to  the  HCCH  2000  Protection  of  Adults  Convention,  which  is  the  only  international 
instrument  dealing  with  private  international  law  issues  concerning  the  cross-border 
protection of adults. 

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(1) The Convention shall be open for signature by the States which were Members of the Hague Conference on 

Article 53: 

Private International Law at the time of its Eighteenth Session. 

(2) It shall be ratified, accepted or approved and the instruments of ratification, acceptance or approval shall be 
deposited  with  the  Ministry  of  Foreign  Affairs  of  the  Kingdom  of  the  Netherlands,  depositary  of  the 
Convention. 

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Both proposals concern private international law, a well-developed policy area within the EU. 
Indeed,  since  2000,  the  EU  has  adopted  a  number  of  legislative  acts in  the  area  of  judicial 
cooperation  in  civil  matters  having  cross-border  implications.  However,  none  of  these 
legislative acts govern the cross-border aspects of legal capacity of persons10 or the protection 
of adults who, ‘by reason of an impairment or insufficiency of their personal faculties’11, are 
not in a position to protect their interests. 

The proposed Regulation would apply in Member States, while the HCCH 2000 Protection of 
Adults Convention would be applicable vis-à-vis non-EU States that are Contracting States to 
the Convention. Since adults in the EU may have relations in respect of both Member States 
and  non-EU  States  (for  instance  owning  property  there  or  having  personal  links  there),  a 
coherent private international law framework applicable to the protection of adults in both the 
EU and non-EU States that are party to the Convention is crucial for ensuring the protection 
of adults in international situations. 

Both  proposals  are  thus  complementary  to  each  other  and  for  this  reason  are  presented 
together. 

• 

Consistency with other Union policies 

The EU and its Member States are parties to the United Nations Convention on the Rights of 
Persons  with  Disabilities  (UNCRPD),  which,  since  its  adoption  in  2006,  represents  the 
international foundation for the rights of people with disabilities. 

Article 3(c) of the HCCH 2000 Protection of Adults Convention contains provisions allegedly 
favouring or condoning substituted decision-making measures (mostly because of the use of 
the term ‘guardianship, curatorship and analogous institutions’). The question has been raised 
whether  this  could  favour  or  allow  the  recognition  of  measures  establishing  substituted 
decision-making  rather  than  supported  decision-making,  and  whether  it  would  infringe  the 
right to autonomy and equality of adults. 

The  consistency  and  complementarity  of  the  HCCH  2000  Protection  of  Adults  Convention 
with  the  rights  laid  down  in  the  UNCRPD  has  been  recognised  on  several  occasions,  for 
instance  in  the  Conclusions  and  Recommendations  (conclusions 2  and  3)  adopted  at  the 
above-mentioned EC-HCCH Joint Conference in 201812. 

The HCCH 2000 Protection of Adults Convention is a private international law instrument. It 
is neutral with regard to material law, which does not prescribe any type of measures, and, in 
its preamble, it puts the interest of the adult and the respect of their dignity and autonomy as 
primary  considerations.  By  facilitating  cross-border  cooperation  and  removing  legal  and 
practical  barriers,  it  furthers  some  important  objectives  of  the  UNCRPD.  Among  these  are 
those  of  Article 12  on  equal  recognition  before  the  law  and  of  Article 32  on  international 
cooperation, for which the HCCH 2000 Protection of Adults Convention establishes a system 
of Central Authorities. 

In  addition,  not  all  people  with  a  disability  are  adults  in  need  of  a  cross-border  protection 
within the meaning of the HCCH 2000 Protection of Adults Convention, but only those who 

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The only exception is a rule on the capacity of natural persons in the context of cross-border contractual 
obligations  in  civil  and  commercial  matters  laid  down  in  Article 13  of  the  Regulation  (EC) 
No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to 
contractual obligations (Rome I). 
Article 1(1) of the HCCH 2000 Protection of Adults Convention. 
88f10f24-81ad-42ac-842c-315025679d40.pdf (hcch.net) 

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are not in a position to protect their personal or financial interests. Conversely, not all adults 
whose psychosocial faculties are diminished are people with disability. 

It  is  also  worth  recalling  that  the  UNCRPD  Committee,  in  its  2015  report  on  the 
implementation of the UNCRPD in the EU, expressed concerns as to barriers faced by people 
with  disabilities  when  moving  from  one  Member  State  to  another.  The  Committee 
recommended that the EU ‘takes immediate action to ensure that all persons with disabilities 
and  their  families  can  enjoy  their  right  to  freedom  of  movement  on  an  equal  basis  with 
others’13. 

A  legal  study  was  commissioned  by  the  Special  Rapporteur  on  the  rights  of  persons  with 
disabilities14, and a related joint statement15 was made by the Special Rapporteur on the rights 
of persons with disabilities and the Independent Expert on the enjoyment of all human rights 
by older persons. These have clarified the issue by concluding that the HCCH 2000 Protection 
of Adults Convention leaves enough room for interpretation and practical improvements, and 
it can evolve to reflect the modernisation of national laws. The Special Rapporteur recalls that 
the  HCCH  2000  Protection  of  Adults  Convention  contains  provisions  to  avoid  any  conflict 
with the UNCRPD and that both instruments can and should supplement each other. The EU 
and all its Member States have to use the available room for interpretation in such a way as to 
ensure compliance with that Convention. 

When applying the HCCH 2000 Protection of Adults Convention, the Contracting States that 
are also Parties to the UNCRPD are bound to respect the UNCRPD and the principles set out 
in it. It is also settled case law of the Court of Justice of the European Union that international 
conventions  form  an  integral  part  of  Union  law  so  that  their  implementation  must  comply 
with the principle of proportionality, as a general principle of Union law16. 

In  March  2021,  the  Commission  adopted  the Strategy  for  the  Rights  of  Persons  with 
Disabilities 2021-203017. This addresses in particular the issue of ‘improving access to justice, 
legal protection, freedom and security’ for people with disabilities. To achieve this outcome, 
among  the  various  initiatives,  it  is  explicitly  stated  that  ‘the  Commission  will  work  with 
Member  States  to  implement  the  2000  Hague  Convention  on  the  international  protection  of 
vulnerable adults in line with the UNCRPD, including by way of a study on the protection of 
vulnerable  adults  in  cross-border  situations,  notably  those  with  intellectual  disabilities,  to 
pave the way for its ratification by all Member States’18. 
The Commission legal study was carried out in 202119 and, inter alia, reached the conclusion 
that the ratification of the HCCH 2000 Protection of Adults Convention by all Member States 
would address some of the problems linked to the significant gaps and inconsistencies, which 
exist in the cross-border protection of adults. 

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Concluding  observations  on  the  initial  report  of  the  European  Union:  Committee  on  the  Rights  of 
Persons with Disabilities, (2015) draft prepared by the Committee. 
Study  on  ‘Interpreting  the  2000  Hague  Convention  on  the  International  Protection  of  Adults 
Consistently with the UN Convention on the Rights of Persons with Disabilities (CRPD)’. 
Joint statement by the Special Rapporteur on the rights of persons with disabilities, Gerard Quinn, and 
the  Independent  Expert  on  the  enjoyment  of  all  human  rights  by  older  persons,  Claudia  Mahler  – 
Reflections on the Hague Convention (2000) on the International Protection of Adults, 8 July 2021. 
See,  e.g.,  order  of  9 November  2021,  Case  C-255/20,  Agenzia  delle  dogane  e  dei  monopoli  –  Ufficio 
delle Dogane di Gaeta v Punto Nautica Srl, para. 33, ECLI:EU:C:2021:926. 
Strategy for the rights of persons with disabilities 2021-2030 
See paragraph 5.1 of the Strategy. 
Study on the cross-border legal protection of vulnerable adults in the Union, Publications Office of the 
Union(europa.eu) 

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Once  this  Decision  is  adopted  by  the  Council,  the  HCCH  2000  Protection  of  Adults 
Convention will become part of Union law. It may thus be interpreted by the Court of Justice 
of the European Union in the light both of the general principles of the EU - safeguarding the 
free movement of people, access to justice, and full respect of fundamental rights - and of the 
UNCRPD. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

This  proposal  regards  the  authorisation  of  certain  Member  States  to  ratify  or  accede  to  an 
international  convention  in  the  interest  of  the  EU.  Judicial  cooperation  in  civil  and 
commercial  matters  is  governed  by  Article 81  TFEU,  which  is  thus  the  legal  basis  of  EU 
competence in this area. Therefore, the applicable legal basis is Article 218(6) of the Treaty 
on the Functioning of the European Union (TFEU) in conjunction with the substantive legal 
basis of Article 81(2) TFEU. 

Article 81(3)  TFEU  is  not  applicable  because  the  cross-border  protection  of  adults  is  not  a 
family law matter. 

The  term  ‘family  law’  within  the  meaning  of  Article 81(3)  TFEU  must  be  interpreted 
autonomously regardless of the definition provided for in the national legislation of Member 
States. 

So far,  EU legislation has construed the notion  rather strictly  and has  limited it to  the rules 
governing  family  relationships,  such  as  matrimonial  matters,  parental  responsibilities  or 
maintenance obligations. 

It  is  not  uncommon  that  vulnerable  adults  benefit  from  protection  provided  by  family 
members. In some Member States, the legal protection of vulnerable adults is attributed, as a 
matter of law, to the spouse or to family members. However, the adult’s family, if indeed the 
adult  has  a  family,  is  merely  one  of  the  contexts  in  which  protection  can  be  ensured.  The 
involvement  of  family  members  is  not  a  necessary  requirement,  nor  is  it  governed  by  rules 
under private international law. Instead, the crucial concern in adult protection is the support 
provided,  and  ensuring  the  adult’s  rights  to  dignity,  self-determination,  non-discrimination 
and social inclusion, regardless of his or her family relations. 

It is to be noted that the HCCH 2000 Protection of Adults Convention does not contain any 
reference to family relationships (such as ‘parent’, ‘children’ or ‘spouse’), contrary to the EU 
Regulations covering family law matters. 

The proposed Regulation will complement the HCCH 2000 Protection of Adults Convention 
and  will  incorporate  some  rules  of  the  Convention,  in  particular  those  on  international 
jurisdiction and applicable law, making them directly applicable in Member States. 

Therefore, pursuant to established jurisprudence of the CJEU, there is a risk that the HCCH 
2000  Protection  of  Adults  Convention  may  affect  or  alter  the  scope  of  the  proposed 
Regulation. 

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The  scope  of  Union  rules  may  be  affected  or  altered  by  international  commitments  where 
such commitments are concerned with an area which is already covered to a large extent by 
such rules or in light of foreseeable developments of Union law, as in the present case.20  

Therefore,  the  HCCH  2000  Protection  of  Adults  Convention  falls  within  the  exclusive 
competence of the Union in accordance with Article 3(2) TFEU. 

The  EU  therefore  may  authorise  Member  States  to  become  or  remain  parties  to  the  HCCH 
2000 Protection of Adults Convention. 

As  only  States  can  become  parties  to  the  Convention,  which  does  not  contain  a  clause  that 
would allow the EU to  become a party, Member States can ratify  or  accede to  it  as  well as 
remain parties acting in the Union’s interest, pursuant to the settled jurisprudence of the Court 
of Justice of the European Union21. 

A similar initiative was already taken in 2008 to authorise certain Member States to ratify or 
accede to the HCCH 1996 Convention on the Protection of Children22. 

By reason of Protocol No 21, annexed to the Treaty on European Union and to the Treaty on 
the Functioning of the European Union, legal measures adopted in the area of justice do not 
bind or apply in Ireland. However, once a proposal has been presented in this area, Ireland can 
notify  its  wish  to  take  part  in  the  adoption  and  application  of  the  measure  and,  once  the 
measure has been adopted, it can notify its wish to accept that measure. 

In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to 
the Treaty on European Union and to the Treaty on the Functioning of the European Union, 
Denmark is not taking part in the adoption of this Decision and is not bound by it or subject to 
its application. 

• 

Proportionality 

The  present  proposal  is  drafted  along  the  lines  of  already  adopted  Council  Decisions 
authorising Member States to join an international convention. It does not go beyond what is 
necessary  to  achieve  the  objective  of  a  coherent  EU  action  in  the  matter  of  cross-border 
protection of adults by ensuring, for Member States not yet Party to the Convention, that they 
ratify  or  accede  to  the  HCCH  2000  Protection  of  Adults  Convention  within  a  given  time 
frame. 

It is also understood that Member States retain their competence as regards regulation of the 
adoption of rules under substantive law directed at the protection of adults. 

The proposal therefore respects the principle of proportionality. 

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22 

See in particular Opinion 1/13 paragraphs 73 and 74 and cited case law. 
Opinion 1/13 of the Court of Justice of the European Union, paragraph 44, and cited jurisprudence. 
Council  Decision  of  5 June  2008  authorising  certain  Member  States  to  ratify,  or  accede  to,  in  the 
interest  of  the  European  Community,  the  1996  Hague  Convention  on  Jurisdiction,  Applicable  Law, 
Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the 
Protection of Children and authorising certain Member States to make a declaration on the application 
of the relevant internal rules of Community law, OJ L151, 11.6.2008, p. 36. 

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• 

Choice of the instrument 

As  the  proposal  concerns  an  international  agreement  to  be  ratified  and  acceded  to  in  the 
interest  of the Union by certain  Member States,  the only instrument  applicable is  a Council 
Decision, pursuant to Article 218(6). 

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EVALUATIONS, 

EX POST 

OF 

STAKEHOLDER 

Stakeholder consultations 

This  proposal,  together  with  the  parallel  proposal  for  a  Regulation  on  the  matter,  was 
preceded by intense and broad consultations with stakeholders. 

The open public consultation23 and the call for evidence24 were carried out in early 2022. A 
majority of respondents, including Member States and professional organisations representing 
lawyers and notaries, supported an EU initiative that would oblige Member States to ratify the 
HCCH  2000  Protection  of  Adults  Convention.  They  also  called  for  an  EU  instrument 
supplementing the Convention. One NGO, an umbrella organisation for the protection of the 
rights  of  persons  with  disabilities,  expressed  concerns  regarding  the  fundamental  rights  of 
adults with disabilities, if an EU instrument would favour the circulation of decisions taken in 
violation  of  UNCRPD  and  the  fundamental  rights  of  adults  with  disabilities.  This  is  a 
recurring  question  concerning  the  relationship  between  the  UNCRPD  and  the  HCCH  2000 
Protection of Adults Convention, which has been addressed by the study and joint statement 
mentioned under footnotes 14 and 15. 

As  part  of  the  consultation  strategy,  an  informal  online  meeting  with  stakeholders  was 
organised on 29 September 2022. Moreover, on 27 October 2022, the Commission organised 
an  online  meeting  with  experts  from  Member  States  to  provide  information  about  the 
initiative on the protection of adults and to exchange initial views. 

Finally,  during  the  meeting  held  on  7  and  8 November  2022,  the  European  Judicial 
Network in civil and commercial matters (EJN-civil) was consulted on its possible role in a 
future initiative. 

To  sum  up,  strong  support  and  overall  positive  feedback  on  the  HCCH  2000  Protection  of 
Adults  Convention  could  be  identified  in  all  consultation  activities.  Furthermore,  the 
consultations  showed  a  practical  need,  and  support  by  most  stakeholders,  for  additional 
measures at EU level. 

Collection and use of expertise 

• 
A  legal  study25  was  carried  out  in  2021.  The  authors  of  the  study  reached  the  following 
conclusions:  (i)  significant  gaps  and  inconsistencies  exist  in  the  cross-border  protection  of 
vulnerable  adults  (rules  on  jurisdiction,  recognition  of  powers  of  representation,  absence  of 
legal  certainty  and  practical  problems  for  authorities);  (ii)  the  general  ratification  of  the 
HCCH 2000 Protection of Adults Convention in the EU would directly address some of those 

23 

24 

25 

https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12965-Civil-judicial-
cooperation-EU-wide-protection-for-vulnerable-adults_en 
https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12965-Civil-judicial-
cooperation-EU-wide-protection-for-vulnerable-adults/public-consultation_en 
Study on the cross-border legal protection of vulnerable adults in the Union, Publications Office of the 
Union (europa.eu) 

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problems, both between Member States and with  non-EU States; and (iii) an EU instrument 
would further strengthen the protection of vulnerable adults and facilitate their lives and the 
work of responsible authorities. 

Additional expertise on the topic of cross-border protection of adults was also gathered in the 
study  accompanying the European Parliament’s  Legislative Initiative Report26 (2016) and in 
the European Law Institute Report27 (2020). 

• 

Impact assessment 

An impact assessment was carried out in 2022 to explore the various policy options available 
within the EU to improve the cross-border protection of adults and to assess their impact. 

As this proposal only concerns the ratification of and accession to the HCCH 2000 Protection 
of Adults Convention by certain Member States, a more detailed explanation of the findings 
of the impact assessment will be given in the accompanying proposal for a Regulation.  It is 
appropriate to limit the current analysis to the indication of the final policy choice. 

This  includes  a  Regulation  complementing  the  Convention,  and  the  ratification  of  and 
accession to the Convention by those Member States not yet Party to it. It would ensure that 
appropriate  Private  International  Law  rules  for  the  protection  of  adults  in  cross-border 
situations would be applicable not only at EU level, but also between Member States and non-
EU States. It is also expected that the ratification by all Member States would encourage more 
non-EU States to join the Convention. 

• 

Fundamental rights 

The general objective of the proposed action is to protect the fundamental rights of adults in 
line with Article 6 TFEU, the Charter of Fundamental Rights of the European Union and the 
UNCRPD. 

In cross-border situations, this would entail in particular preventing dispossession or denial of 
access  to  the  adult’s  property  abroad,  ensuring  access  to  justice,  and  ensuring  self-
determination and autonomy of the adults. 

By  harmonising  rules  of  private  international  law,  the  HCCH  2000  Protection  of  Adults 
Convention connects different legal systems to facilitate, within the scope of the Convention, 
non-discriminatory  respect  for  the  rights  of  adults,  protection  of  their  interests,  and  the 
exercise of their legal capacity. 

The  preamble  of  the  Convention  reflects  these  values:  it  affirms  that  respect  for  both  the 
dignity  and  the  autonomy  of  the  adult  are  to  be  primary  considerations.  Such  priorities  are 
also established in the preamble of the UNCRPD. 

Under the rules of the Convention, if a measure of protection is taken in one Contracting State 
by a competent authority, that measure should continue to have effect in another Contracting 
State, for instance  if  the adult happens  to  move  from  one Contracting  State to  another. The 
Convention  also  includes  safeguards  that  allow  for  the  measures  not  to  be  recognised  or 
enforced if, for example, the measure was taken by an authority whose jurisdiction  was not 
based on, or was not in accordance with, one of the grounds provided for by the Convention, 

26 
27 

Protection of Vulnerable Adults – European Added Value Assessment 
The Protection of Adults in International Situations, report of the European Law Institute. 

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or if the recognition  of the measure would be contrary to  the public policy of the requested 
State28. In this context, non-compliance with the fundamental rights of the adult concerned by 
the measure could justify refusal of recognition. 

4. 

BUDGETARY IMPLICATIONS 

The proposed decision has no budgetary implications for the European Union. 

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

As the proposal concerns the authorisation of certain Member States of the European Union to 
ratify  or  accede  to  the  HCCH  2000  Protection  of  Adults  Convention,  the  monitoring  of  its 
implementation is primarily aimed at the respect by those Member States of the time frame to 
ratify or accede to the Convention, in line with   the Council Decision. 

However,  once  all  Member  States  are  Party  to  the  Convention,  it  is  planned  to  carry  out 
several actions to raise awareness of the Convention and to ensure its correct application.  In 
addition,  coordinated  EU  positions  will  be  adopted  as  part  of  preparation  for  future  Special 
Commissions  on  the  operation  of  the  Convention;  this  will  allow  the  EU  to  monitor  the 
implementation of this instrument by Member States. 

28 

See Article 22 of the HCCH 2000 Protection of Adults Convention for a list of the grounds available to a 
competent authority to refuse, on a discretionary basis, recognition and enforcement of a measure. 

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2023/0170 (NLE) 

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 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 81(2) in conjunction with Article 218(6), point (a) thereof, 

Having regard to the proposal from the European Commission, 
Having regard to the consent of the European Parliament1,  

Whereas: 

(1) 

(2) 

(3) 

(4) 

The Union has set itself the objective of creating, maintaining and developing an area 
of freedom, security and justice in full respect of fundamental rights in which the free 
movement of persons and access to justice are ensured. 

To fulfil this objective, the Union has adopted a number of legislative acts in the area 
of judicial cooperation in civil matters having cross-border implications. The Union is 
also Party, in its own right or through its Member States acting in the interest of the 
Union, to several international Conventions in the same field. 

However, there is no Union legislation in the matter of the cross-border protection of 
adults, who, by reason of an impairment or insufficiency of their personal faculties, are 
not in a position to protect their interests, or who may require that the support in the 
exercise of their legal capacity provided to them in one Member State continues across 
the Union.  

Various difficulties may arise for the adults in cross-border situations, including where 
those  adults  move  to  another  Member  State  or  when  they  own  property  or  assets  in 
another Member State. Difficulties may arise for instance where measures taken in one 
Member  State  with  a  view  to  protecting  the  adults  need  to  be  invoked  in  another 
Member State, or where powers of representation granted by the adults to be exercised 
by their representatives when the adults are not in a position to protect their interests 
need  to  be  later  invoked  abroad.  Those  difficulties  can  have  serious  adverse 
consequences  on  legal  certainty  in  cross-border  dealings  and  on  the  rights  and 
wellbeing  of  the  adults  and  on  respect  for  their  dignity.  In  particular,  fundamental 
rights  of  the  adults,  such  as  access  to  justice,  the  right  to  self-determination  and 
autonomy, the right to property and to free movement, may be negatively affected. 

(5) 

Uniform private  international  law  rules  governing cross-border  situations  are  thus 
necessary  to  enhance  the  protection  of  fundamental  rights  of  adults  with  an 
impairment  or  insufficiency  of  their  personal  faculties.  At  international  level,  the 
Convention  of  13  January  2000  on  the  International  Protection  of  Adults  (‘HCCH 
2000 Protection of Adults Convention’) includes such rules. The Convention provides 

1 

OJ C , , p. . 

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(6) 

(7) 

(8) 

(9) 

for rules on jurisdiction, applicable law, recognition and enforcement of measures for 
the protection of those adults, on applicable law for powers of representation and rules 
on cooperation among authorities of its Contracting Parties. 

Pursuant  to  the  HCCH  2000  Protection  of  Adults  Convention,  only  sovereign  States 
may be party to it. For that reason, the Union may not conclude that Convention. 

The  ratification  of  and  the  accession  to  the  HCCH  2000  Protection  of  Adults 
Convention  by  all  Member  States  is  a  long-standing  objective  pursued  by  the 
European Union. 

To  date  Belgium,  the  Czech  Republic,  Germany,  Estonia,  Greece,  France,  Cyprus, 
Latvia, Malta, Austria, Portugal, and Finland are Party to the HCCH 2000 Protection 
of Adults Convention. Ireland, Italy, Luxembourg, Netherlands and Poland have only 
signed it. 

On  […],  the  Commission  submitted  a  legislative  proposal  for  a  Regulation  on 
jurisdiction,  applicable  law,  recognition  and  enforcement  of  measures,  authentic 
instruments  and powers  of representation  and  cooperation in  civil  matters  relating  to 
the  protection  adults  (the  ‘proposed  Regulation’).  The  proposal  provides  for  the 
application of some of the rules of the HCCH 2000 Protection of Adults Convention 
between Member States  and lays down complementary rules in  order to  facilitate an 
even  closer  intra-EU  cooperation  in  this  area.  The  provisions  of  the  proposed 
Regulation  overlap  and  are  in  close  connection  with  the  HCCH  2000  Protection  of 
Adults Convention.  

(10)  For this reason, there is a risk that the HCCH 2000 Protection of Adults Convention 
may affect or alter the scope of the proposed Regulation. Therefore, the HCCH 2000 
Protection of Adults Convention falls within the exclusive competence of the Union in 
accordance with Article 3(2) of the Treaty on the Functioning of the European Union. 

(11)  The  Council  should  therefore  authorise  the  Member  States  not  yet  parties  to  the 
HCCH  2000  Protection  of  Adults  Convention  to  sign,  ratify,  or  accede  to,  the 
Convention in the interest of the Union, under the conditions set out in this Decision. 
The  Council  should  also  authorise  the  Member  States  that  are  parties  to  the  HCCH 
2000 Protection of Adults Convention to remain parties thereto. 

(12)  The Union and its Member States are parties to the United Nations Convention on the 

Rights of Persons with Disabilities (‘UNCRPD’). 

(13)  Under  the  Treaty  on  European  Union  and  the    Treaty  on  the  Functioning  of  the 
European Union, the competence to adopt substantive and procedural rules in the area 
of the protection of adults lies with the Member States. As contracting Parties to the 
UNCRPD, Member States are to ensure that their national substantive and procedural 
laws  on  the  treatment  of  adults  are  consistent  with  the  human  rights  obligations 
the  measures  of  “guardianship”  and 
provided  by 
“curatorship” as well as incapacitation  as referred to in Article 3 of the HCCH 2000 
Protection of Adults Convention. 

the  UNCRPD, 

including 

(14)  The  rules  of  the  HCCH  2000  Protection  of  Adults  Convention  should  be  applied 

consistently with the human rights obligations under the UNCRPD. 

(15)  The non-respect of this obligation should also affect the recognition and enforcement 

by Member States of measures taken by third countries.   

(16) 

[[In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United 
Kingdom and Ireland in respect of the area of freedom, security and justice, annexed 

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(17) 

(18) 

to the Treaty on European Union and to the TFEU, and without prejudice to Article 4 
of that Protocol, Ireland is not taking part in the adoption of this Decision and is not 
bound by it or subject to its application.] OR 

In accordance with Article 3 of Protocol No 21 on the position of the United Kingdom 
and  Ireland  in  respect  of  the  area  of  freedom,  security  and  justice,  annexed  to  the 
Treaty  on  European  Union  and  to  the  Treaty  on  the  Functioning  of  the  European 
Union, Ireland has notified[, by letter of …,] its wish to take part in the adoption and 
application of this Decision 

In  accordance  with  Articles  1  and  2  of  Protocol  No  22  on  the  position  of  Denmark, 
annexed  to  the  Treaty  on  the  Functioning  of  the  European  Union,  Denmark  is  not 
taking  part  in  the  adoption  of  this  Decision  and  is  not  bound  by  it  or  subject  to  its 
application, 

HAS ADOPTED THIS DECISION:  

Article 1 

1.  The Council hereby authorises Member States to become or to remain parties  to the 
Convention  of  13  January  2000  on  the  International  Protection  of  Adults  (‘the 
Convention’), in the interest of the Union, subject to the conditions set out in Articles 
2. 

2.  The text of the Convention is attached to this Decision. 

Article 2  

Bulgaria, [Ireland], Spain, Croatia, Italy, Lithuania, Luxembourg, Hungary, the Netherlands, 
Poland,  Romania,  Slovenia,  Slovakia,  and  Sweden  shall  take  the  necessary  steps  to  deposit 
their  instruments  of  ratification  or  accession  with  the  Ministry  of  Foreign  Affairs  of  the 
Kingdom of the Netherlands, acting in its capacity as a depositary of the Convention, no later 
than [24 months after the date of adoption of this Decision]. 

Article 3  

This Decision is addressed to the Member States. 

Done at Brussels, 

For the Council 
The President 

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