In February 2022, a Working Group has been established within the European Association of Private International Law. The task of the Group was to respond to a public consultation launched by the European Commission on the prospect of an EU-wide protection for vulnerable adults, i.e., persons aged 18 or more who are unable to protect their interests because of an impairment or insufficiency of their personal faculties.
The Group presented the preliminary draft of a position paper prepared for this purpose at a webinar on 10 March 2022.
Having taken note of the feedback received from the participants in the webinar and other interested academics, practitioners and stakeholders, the Working Group shared a final draft with the Association’s Scientific Council.
The position paper, as approved by the EAPIL Council and submitted to the European Commission, is available here.
Here are some of the key takeaways of the paper:
- Private international law has an important role to play in the realisation of the fundamental rights of persons aged 18 and more who are not in a position to protect their interests due to an impairment or insufficiency of their personal faculty.
- The Union should urgently adopt measures of judicial cooperation aimed to support, in cross-border situations, the exercise of legal capacity by the adults concerned, in accordance with the United Nations Convention on the Rights of Persons with Disabilities.
- In taking the above measures, the Union should preserve the operation and the prospect of success of the Hague Convention of 13 January 2000 on the International Protection of Adults. To this end, the Union should combine external action and legislation, meaning that the Convention should provide the basic legal framework in this field, common to all Member States, but legislation should be enacted by the Union to strengthen cooperation between Member States and improve the operation of the Convention in their relations.
- The legal basis for the above measures would be Article 81 TFEU, with the clarification that the protection of adults should not be deemed to fall within the scope of “family law” within the meaning of Article 81(3).
- The Union has external competence, based on Article 216 TFEU to authorise the Member States that have not yet done so to ratify, or accede to, the Hague Adults Convention “in the interest of the Union”, on the ground that the conclusion of the Convention would be “necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Treaties”.
- The legislation of the Union aimed to improve the Hague Convention regionally should relate, inter alia, to choice of court by the adult concerned and the law applicable to ex lege powers of representation.
- Specifically, the Union should enact a rule whereby ex lege powers of representation are governed by the law of the (Member) State where the adult concerned has their habitual residence at the time when those powers are relied upon, without prejudice to the application of the provisions on ex lege powers of representation as may be in force in the Member State where the powers are invoked, whenever the provisions themselves are meant to apply regardless of the law specified by conflict-of-laws rules.