Preview document (🔗 origineel)

---

 

COUNCIL OF

THE EUROPEAN UNION

Brussels, 10 October 2008 (14.10)

(OR. fr)



14034/08

LIMITE



JUSTCIV 215

SOC 579



NOTE

from:	Presidency

to:	Permanent Representatives Committee/Council

Subject:	Draft Council conclusions on the situation of vulnerable adults
and their cross-border legal protection



1.	Delegations will find below the draft report to the Council on the
situation of vulnerable adults and their cross-border legal protection.

2.	The Permanent Representatives Committee/the Council is invited to
approve the draft conclusions in annex hereto.

			



REPORT TO THE COUNCIL

on the situation of vulnerable adults and their cross-border legal
protection

I.	INTRODUCTION

1.	Legislation in all Member States provides for legal protection
measures when adults find themselves incapacitated following an
accident, an illness or simply through the effects of ageing, whether
such incapacity is definitive or temporary, partial or total. However,
the systems provided are not identical and the resulting disparity makes
it very difficult to follow up the protection when there is a border
between the authority responsible for the protection measure and the
protected person, or between the protected person and their assets or
the income they receive.

2.	Growing cross-border mobility, which leads people of working age to
leave their country of origin to work in another, or even several other
countries, also leads, for many of them, to a return to their country of
origin once they have finished their working life. After their
departure, how can the continuity of any protection measures taken
before their return be ensured? And if such measures are taken once they
have returned, how can the authority concerned be enabled to ensure the
management of assets such as property acquired and remaining in the host
country or countries?

3.	Every possible effort must be made to ensure that legal protection
measures taken in the Member States in respect of people who are no
longer able to deal with their personal needs or the daily management of
their affairs continue when those people move within the European
judicial area. The help which it has been deemed necessary to provide in
one Member State would thus continue, in accordance with a procedure to
be determined, regardless of the part of the Community area in which
they choose to reside. This would ensure appropriate legal protection
throughout the Community area.

II.	THE HAGUE CONVENTION ON THE INTERNATIONAL PROTECTION OF ADULTS OF
13 JANUARY 2000

4.	The Hague Convention on the International Protection of Adults of
13 January 2000 constitutes a significant advance with regard to
improving the situation of vulnerable adults. The Convention, which is
very comprehensive, encouraging and protecting respect for individual
choice, proposes:

rules of jurisdiction, based principally on the habitual place of
residence of the person concerned,

conflict-of-law rules, the principle being that of the application of
lex fori, mitigated in certain cases deemed to be exceptional by the
possibility of choosing the law with which the case shows the closest
link and accompanied by the possibility of an express and controlled
choice of law applicable to the existence, the extent and the
modification of the powers of representation that an adult may have
conferred before he became incapacitated,

recognition and enforcement rules, limiting the possibilities of refusal
to recognise or authorise the implementation of a foreign decision,

rules for cooperation between States.

5.	Currently, ten States, nine of them European Union Member States
(Germany, Finland, France, Greece, Ireland, Luxembourg, the Netherlands,
Poland and the United Kingdom), have signed the Convention. Of those
nine Member States, three (Germany, France and the United Kingdom) have
ratified it, enabling it to enter into force on 1 January 2009. The
practical impact of the Convention will depend of course on the number
of contracting States and it is thus essential that a significant number
of States ratify it.

6.	At several meetings held during the first half of 2008 the Committee
on Civil Law Matters (General Questions) examined whether the Community
and the Member States ought to accede to a large number of Hague
Conventions, including the 2000 Convention on the International
Protection of Adults.  It was noted that it was for the Member States to
decide themselves if they wished to accede to that Convention.

III.	EUROPEAN UNION INITIATIVES

7.	The European Union is particularly concerned by the issue of
vulnerable adults. Economic considerations and the geographical
diversity of the territory of the Member States mean that population
movements involving, or potentially involving, vulnerable or potentially
vulnerable people on its territory are on the increase. The ambitions of
the internal market, and in particular its objective of free movement of
goods, services and persons throughout the whole European area, call for
guarantees that those persons can, as citizens, benefit from all the
legal protection that their vulnerable state may require .

8.	It is therefore important for the Member States to cooperate closely
and to coordinate their positions, as far as necessary, when
implementing and following up measures taken in the framework of the
Hague Conference on Private International Law.

9.	Before deciding to launch specific initiatives at European Union
level, it would be better to wait and see how application of the Hague
Convention of 2000 works out. As stated above, that Convention will
enter into force on 1 January 2009. Once a significant number of Member
States are parties to the Convention and as soon as there is enough
experience of its application between those States, the results should
be evaluated and, if necessary, consideration could be given to
supplementing the arrangements provided for in the Convention by
appropriate proposals at European Union level.

10.	If appropriate, one possibility might then be to establish
mechanisms for additional cooperation, similar to those already put in
place at Community level in other substantive areas. Such mechanisms
would make it possible to organise and facilitate methods for
transmitting files, knowledge of situations and the best suited
implementation of the legal protection measures applicable.

11.	Consideration could also be given, in the light of experience
gained, to the idea of possibly further simplifying the recognition,
throughout the European Union, of decisions taken in any Member State to
organise and subsequently manage protection and of reducing the
formalities enabling such decisions to be implemented.

12.	Pending possible EU legislative measures in the longer term, and
allowing for any international initiatives taken, other forms of
initiative could be envisaged in the short term, such as, for example,
sharing information on legal protection measures for vulnerable adults
in the Member States through the European Judicial Network on civil and
commercial matters.

IV.	CONCLUSION

13.	On the basis of this report the Permanent Representatives
Committee/the Council is invited to approve the conclusions set out in
annex hereto.

ANNEX

COUNCIL CONCLUSIONS

on the situation of vulnerable adults and their cross-border legal
protection

On the basis of the report submitted to it, the Council approves the
following conclusions on the situation of vulnerable adults and their
cross-border legal protection:

(a)	Member States which have already concluded that it would be in their
interests to accede to the Hague Convention of 13 January 2000 on the
International Protection of Vulnerable Adults are invited to begin as
quickly as possible or actively to continue with procedures for its
signature and/or ratification.

(b)	Member States which are still engaged in domestic consultations are
invited to conclude those consultations as soon as possible.

(c)	The Commission is invited to follow closely experience with
application of the Hague Convention of 13 January 2000 on the
International Protection of Adults.  The discussions in the Hague
Conference and the Council of Europe should also be borne in mind.  If
necessary, once sufficient experience has been acquired in operation of
the Convention, discussions could be begun on the advisability of
introducing additional measures at Community level.

			

 	Legal protection does not include the social protection provided by
the Member States.

	See, amongst others, the Recommendation on principles concerning the
legal protection of incapable adults (Rec(99)4).

14034/08		art/LG/kjf	  PAGE  1 

	DGH 2 A	LIMITE EN

14034/08		art	  PAGE  6 

ANNEX	DGH 2 A	LIMITE EN