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The proposed Regulation on Protection of Adults must be amended

The proposed Regulation on Protection of Adults must be amended

We are extremely concerned by the current text of the Proposal for a Regulation for cross-border protection of adults. Formally referred to as “Proposal for a Regulation on jurisdiction, applicable law, recognition and enforcement of measures and cooperation in matters relating to the protection of adults”, this initiative was proposed by the European Commission in May. It is now on the process of negotiation. 

The law concerns persons – mostly persons with disabilities and older adults – who are deemed “not in a position to protect their own interest” and are in what is called a cross-border situation. These can be people that have assets or estates in another country, who are seeking medical care abroad, or who relocate in another EU Member State.  

In August, 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).  

We join their criticism and are particularly concerned about:  

  • The recognition of deprivation of legal capacity across the Union: the proposal would facilitate the automatic recognition of measures depriving persons of their legal capacity – for example, guardianship and curatorship – even in countries that have abolished full deprivation of legal capacity.  
  • The lack of clarity concerning the recognition of supported decision-making mechanisms: the proposal does not explicitly mention the recognition of supported decision-making mechanisms. Such measures are required by the CRPD – and have been established by law in 13 EU Member States. Any law on cross-border protection of adults should focus on supported decision-making mechanisms.  
  • Facilitated cross-border placement in institutions, including residential and psychiatric institutions: the proposal facilitates the placement of adults in institutions across the Union. This goes against the obligations of the EU and all Member States under the CRPD, and the current effort of deinstitutionalisation.  

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.  

Our position and demands 

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 UN Convention on the Rights of Persons with Disabilities being mentioned in the recital of the proposed regulation, several binding provisions are not in line with the obligations set by the Convention.  

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

  • Amend article 2 on the scope to avoid legitimation of legal incapacitation 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 violate the fundamental rights of persons with disabilities. 

We are also proposing amendments to the recitals based on the UN Convention on the Rights of Persons with Disabilities 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. 

Legal opinion on the proposal 

In September, 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)

Background of the proposal 

In May, 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. For example, when an adult moves to another country or has a house or other financial assets in an EU country other than its country of residence. 

EDF participated in all consultations organised by the European Commission and repeatedly raised concerns about potential lack of compliance with the UN Convention on the Rights of Persons with Disabilities. In March 2022, we published a position paper on disability rights in civil judicial cooperation to support the work of the European Commission.  

Resources  

Contact

Marine Uldry, EDF Human Rights Policy Coordinator

Image credit: Clarissa Leahy via iStock