On 7 June 2021, the Council of the European Union has adopted a political document titled Conclusions on the Protection of Vulnerable Adults across the European Union.
The document sets out the views of the Council in this area with respect to both civil and criminal matters.
As regards civil matters, the document stresses the importance of the Hague Convention of 13 January 2000 on the international Protection of Adults, which is currently in force for ten Member States, and some third countries, such as Switzerland and the UK (albeit only with respect to Scotland).
The Council invites the Member States for which the Hague Convention is already in force to promote greater awareness of the Convention among courts and practitioners.
Member States that are engaged in procedures procedures to ratify the Convention, are invited to advance such procedures with a view to finalising the ratification as swiftly as possible, in particular in view of the 2022 Special Commission on this Convention organised by the Hague Conference on Private International Law.
Finally, the Council invites all other Member States to commence and/or advance domestic consultations on a possible ratification of the Convention as swiftly as possible.
The document highlights the relevance of the (international) protection of adults, as understood by the Convention, to the implementation of the EU Strategy for the Rights of Persons with Disabilities (2021-2030).
It also notes that both the number and proportion of older people are growing across Europe. According to the Ageing Report 2021 issued by the European Commission on 20 November 2020, the total population of the EU is projected to decline in the long term, and the age structure will change significantly in the coming decades. The EU population is projected to decline from 447 million people in 2019 to 424 million in 2070 and, during this period, Member States’ populations will age dramatically given the dynamics in fertility, life expectancy and migration. The median age is projected to rise by five years over the coming decades.
A significant number of adults – the document observes – face limitations. Eurostat expects a fifth of the EU population to have some form of disability by 2050. Many of these adults are or will become vulnerable and, by virtue of the multiple barriers that are still in place for persons with a serious mental and/or physical disability, are not or will not be in a position to protect their own interests without adequate support.
This situation impacts the legal capacity of vulnerable adults, who face challenges and difficulties in protecting their rights, defending their interests and accessing justice, both in national and in cross-border situations. In cross-border situations, for instance in the case of citizens residing in a State other than that of their nationality, these existing difficulties may be exacerbated by additional obstacles with respect to language, representation or access to the judicial system and to public services in general.
Today, there are no uniform private international law rules applicable in the field of judicial cooperation in civil matters regarding the protection of vulnerable adults in cross-border situations across the EU, and there are disparities between Member States’ laws on jurisdiction, applicable law, and the recognition and enforcement of protection measures.
The Council acknowledges in its Conclusions that diversity of the rules on these issues might impair the exercise of the right of vulnerable adults to move freely and reside in the Member State of their choice, and might also hinder the possibility for these citizens to obtain adequate protection regarding the administration of their property in a cross-border context.
The document further recalls that the right to self-determination is a fundamental right, and powers of representation through which an adult has made arrangements in advance for his or her care and/or representation should be respected within the EU. The Hague Convention, among other things, ensures that such a power of representation has legal force in a Contracting Party.
Finally, the Council takes note that at the ‘High-Level Conference on the protection of vulnerable adults across Europe: the way forward’, held on 30 March 2021, some panelists stressed that, while it is important to build experience and assess the results of implementing the 2000 Hague Convention, the EU should be more ambitious and go further in seeking the approximation of private international law rules to ensure the effective protection of vulnerable adults on the basis of the principle of mutual recognition.
The Conclusions, however, do not include any indication as to whether and when the political institutions of the Union might consider the adoption of such additional measures.