Chairs and contact
- Pietro Franzina (pietro.franzina@unicatt.it)
- Cristina González Beilfuss (cgonzalezb@ub.edu).
Type of Group
Working Group with a limited number of participants.
Current members
- Pietro Franzina (Catholic University of the Sacred Heart, Milan)
- Estelle Gallant (Toulouse 1 Capitole University)
- Cristina González Beilfuss (University of Barcelona)
- Katja Karjalainen (University of Eastern Finland)
- Thalia Kruger (University of Antwerp)
- Tamás Szabados (Eötvös Loránd University)
- Jan von Hein (University of Freiburg)
Mission statement
In December 2021, the European Commission launched a public consultation aimed at gathering evidence on the legal issues surrounding the protection of vulnerable adults in cross-border situations in Europe. The consultation came at a time when the Commission, following the Council Conclusions on the protection of vulnerable adults across the European Union, adopted on 7 June 2021, expressed its willingness to study the scope and content of the (legislative) measures that the Union might take in this area.
The Working Group was initially established to draft a position paper that would represent the contribution of EAPIL to the public consultation.
After the paper was submitted, the Working Group decided to remain active to follow the developments in this area, and contribute to the discussion surrounding the envisaged adoption of EU legislation.
Developments
The Working Group was established in February 2022.
A webinar organised by the Working Group was held on 10 March 2022 to present a preliminary draft of the planned position paper and discuss it with interested academics, practitioners and stakeholders.
The final draft was approved by the Scientific Council of the Association on 26 March 2022.
The position paper was eventually submitted to the European Commission, on behalf of the Association, on 29 March 2022.
The Working Group decided to remain active to follow the developments in this area, and contribute to the discussion surrounding the envisaged adoption of EU legislation. In this context, some of the members of the Working Group will speak, in that capacity, at the World Conference of the International Society of Family Law, due to take place in Antwerp, on 12-15 July 2023.
Outcome
Under the position paper submitted on 29 March 2022 in the framework of the public consultation on the protection of vulnerable adults, launched by the European Commission (see above), the European Association of Private International Law:
a. stressed the importance of private international law to 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;
b. considered that there is an urgent need of measures of judicial cooperation in civil matters aimed to support, in cross-border situations, the exercise of legal capacity by the adults concerned;
c. recalled that the above measures must accord with the United Nations Convention on the Rights of Persons with Disabilities, the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union, and must be consistent with the Union’s own Strategy for the rights of persons with disabilities 2021-2030;
d. underlined that, 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;
e. noted that the legal basis for the above measures, both internally and externally, would be Article 81 TFEU, while considering that the protection of adults would fall within the general rule of Article 81(2) and not in the scope of “family law” within the meaning of Article 81(3);
f. considered that 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”;
g. observed that the legislation of the Union aimed to improve the Convention regionally should relate to choice of court by the adult concerned and the law applicable to ex lege powers of representation, without prejudice to further possible improvements;
h. encouraged the institutions of the Union, as regards choice of court, to further promote self-determination by the adult concerned as regards jurisdiction; different options may be considered for this purpose, as suggested in this position paper;
i. considered that 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.