In a rare move, two UN experts formally criticised the European Commission’s proposal for a Regulation and Council Decision governing the Hague Convention on the Protection of Adults. The proposed law aims to introduce a set of rules regarding the protection of adults when they need to manage their affairs or legal issues across EU countries.
In the beginning of August, the two experts – the UN Special Rapporteur on the Rights of Persons with Disabilities and the UN Independent Expert on the enjoyment of all human rights by older persons – published a joint submission addressed to the European Commission on the adequacy of this proposal with current international treaties.
Background on the proposals
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 Protection of Adults Convention, 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.
Reaction to the proposal: actual and potential violations of human rights
The experts’ reaction centres on the fact that the core of the proposed Regulation does not comply with the UN Convention on the Rights of Persons with Disabilities. 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 addition, they stress that: “as between EU Member States and external parties, we would go further than we did in 2021 and suggest that the Decision authorising Member States to ratify the convention should make clear that they should not only make the general Interpretative Declaration we proposed in 2021, but also should make a Reservation to the Convention excluding (to the effect that it does allow for it) institutionalisation from the scope of protective measures.”
In 2021, the Special Rapporteur 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 UN Convention on the Rights of Persons with Disabilities. Regarding the European Commission’s proposal, the experts suggest that the Council Decision support not only an interpretative declaration, but also a Reservation to the Hague Convention, excluding institutionalisation from its scope.
Despite the criticism, the experts welcomed the efforts made to resolve the “conflict of law” – this means to make it easier to know which law applies in cases where two (or more) countries are involved. They also welcomed the reference to the UN Convention on the Rights of Persons with Disabilities (CRPD) in the recitals of the proposed regulations (recital 10 and 15).
Next steps
The European Commission receives feedback on the proposal (deadline 20th August).
The European Parliament and the Council of the EU will negotiate the text.
We are preparing proposals for amendments to make the text compliant with fundamental rights. We call for the respect of the UN Convention on the Rights of Persons with Disabilities.
Contact
Human Rights Policy Coordinator