In May 2023, the European Commission published a proposal for a Regulation and Council Decision regulating the “cross-border ‘protection” of adults. This draft law is based on the 2000 Hague Convention on the international protection of adults, an international non-UN legal text regulating the rules applicable to the ‘protection’ of adults in cross-border situations.  

We are concerned about this proposal because it does not respect the rights of persons with disabilities and the obligations of the European Union and all its Member States under the UN Convention on the Rights of Persons with Disabilities (CRPD). The disability movement also considers the Hague Convention  non-compliant with the CRPD. 

The proposal concerns persons – mostly persons with disabilities and older adults – who are considered to “not be in a position to protect their own interest” and are in what is called a cross-border situation. These can be people that have  money or properties (such as houses) in another country, who are seeking medical care abroad, or who relocate in another EU Member State.   

We call on the European Parliament and Council of the EU to amend the proposed Regulation to avoid human rights violations against persons with disabilities and older people. 

While we recognise the importance of legislation that aims to avoid conflict of law, in particular of national laws, and ensures more legal certainty, we deeply regret that the proposed Regulation includes provisions which would lead to violations of the rights of persons with disabilities.   

Despite the CRPD being mentioned in the recital of the proposed regulation, several binding provisions are not in line with the obligations set by it.   

To ensure that the EU and all the Member States comply with the Convention, we propose amendments to the following articles:   

• Amend the scope of article 2 to avoid legitimation of legal incapacitation (the removal of the capacity to act) and consider the evolution of legislation and policy on legal capacity in EU Member States.  
• Amend article 3 on definition to include the concept of will and preferences of the person.   
• Amend article 13 on “no review as to the substance” to ensure the highest level of protection of the autonomy of adults.  
• Delete article 21 on placement which violates the fundamental rights of persons with disabilities.  

We are also proposing amendments to the recitals based on the CRPD and how it should be interpreted in relation to this proposed Regulation and to the 2000 Hague Convention on the international protection of adults. 

Read our amendments 

In August 2023, two United Nations experts criticised the draft law for not being compliant with international human rights treaties, especially with the UN Convention on the Rights of Persons with Disabilities (CRPD). 

The experts’ reaction centers on the fact that the core of the proposed Regulation does not comply with the CRPD. In their joint submission, they note that: 

• The notion of ‘representation’ seems mixed in the draft proposal with the notion of `supported decision-making’ in the UN Convention. 
• Article 3.3 of the proposal misunderstands the difference between a ‘power of representation’ and ‘supported decision-making’ required by the UN Convention. 
• Article 21 of the proposal allows for a protection measure of ‘placement’ in an institution. This is a clear violation of Articles 5 (equality) and 19 right to live independently) of the UN Convention on the Rights of Persons with Disabilities and should have no place in the Regulation. 

The experts state that “both draft Articles 3.3 and 21 of the Regulation, therefore, require revisiting”. 

In 2021, the Special Rapporteur on the Rights of Persons with Disabilities had already commissioned a legal study on the Hague Convention. The study recommended that countries becoming party to the 2000 Hague Convention adopt a declaration saying that it would interpret and apply the Hague Convention in line with its obligations under the CRPD. 

In September 2023, EDF instructed pro bono lawyers, William Audland KC and Annahita Moradi, through EMG Solicitors, to get additional advice on the compatibility of the European Commission’s proposal with international human rights law and the Charter of Fundamental Rights of the EU.   

The legal opinion dated of 1st of November found that the proposed Regulation, and in particular Article 21 thereof if enacted in its current draft form, risks failing to adequately safeguard a number of fundamental human rights as provided for by the CRPD, EU Charter, and European Convention on Human Rights. 

It highlights issues related to:   

• Torture or cruel, inhuman or degrading treatment   
• Liberty and security of the person  
• Family and private life   
• Equality and non-discrimination  
• Healthcare  

In addition, it notes concerns regarding:   

• The lack of express provision to enshrine a system of supported decision-making requiring Member States to ensure that all individuals receive the necessary support they need to exercise their legal capacity in respect of any decision before they are deemed or assumed to lack such capacity.   
• The lack of provision stipulating which representative would be the ultimate decision-maker in an international situation (i.e., the domestic guardian or the representative appointed abroad), in the context of Articles 21 and 22.   

Read the legal opinion and its conclusions (PDF document). Please, access the Word version below to avoid any accessibility issues.) 
Read the legal opinion and its conclusions (Word document) 

• EDF proposed amendments to the Regulation on Protection of Adults   
• EDF position paper on disability rights in civil judicial cooperation  
• Joint submission of the two UN experts on the Commission’s proposal  
• Legal opinion commissioned by EDF on the Commission’s proposal (legal opinion PDF version | legal opinion Word version)   
• EESC opinion on international protection of adults 
• Council Conclusions on the Protection of Vulnerable Adults across the European Union