In this blog Emily Deane TEP, Technical Counsel & Head of Government Affairs at STEP, explores how a new EU Regulation relating to cross-border issues affecting vulnerable adults will interact with the Hague Convention.

STEP attended a conference recently in Milan that was organised by the Università Cattolica del Sacro Cuore. Speakers from the European Commission, the Hague Conference on Private International Law and universities discussed the European Commission’s proposed Regulation on the protection of adults (COM(2023) 280) and how it will interact with the 2000 Hague Convention when it is implemented.

As populations age and mobility across borders increases, the legal complexities facing vulnerable adults increase. Navigating cross-border issues can be a legal minefield for people who can no longer protect their own interests due to impairment or illness. The European Commission’s new Regulation offers a valuable solution by creating a cohesive framework that works alongside the Hague Convention on the International Protection of Adults.

The Regulation creates a multi-layered relationship with the Hague Convention. The primary goal is to ensure a person’s protection and autonomy are respected no matter where they are in the EU, while also maintaining consistent standards internationally.

A nuanced legal relationship

The Regulation’s interaction with the Hague Convention is both complex and complementary. It will refrain from legislating on matters that the convention already governs, such as applicable law. This ensures that legal experts don’t face conflicting rules and that the Hague Convention’s principles remain intact.

However, the EU framework also deviates from the Hague Convention in specific, permissible ways. A key example is the new provision for ‘choice of court’. The Hague Convention is cautious about allowing adults to choose their court due to concerns about vulnerability. However, the EU Regulation empowers adults with habitual residence in the EU to choose, provided they did so when they were still able to protect their own interests. This upholds the EU’s commitment to individual autonomy, a core feature of the UN Convention on the Rights of Persons with Disabilities (CRPD).

The Regulation also fills some of the gaps left by the Hague Convention, such as addressing the recognition of instruments like powers of representation, ensuring they are valid across EU member states. It will also improve the sharing of information between member states via the creation of power of representation certificates called ‘Certificate of Support and Recognition’ which will be valid for two years. Although there will be discretion to reduce or lengthen these certificates to up to five years depending on individual circumstances.

Key features of the new framework

Together, the Regulation and the Hague Convention will introduce several key features that will enhance adult protection:

• A broad application of the one-stop-shop approach to Private International Law, covering jurisdiction, applicable law, and the recognition and enforcement of measures.
• An enhanced process for recognising authentic instruments, such as powers of representation, through cross border certificates.
• A combined system that deals with both intra-EU and extra-EU cases in a similar manner, creating consistency for everyone involved.

This carefully crafted legal framework will improve protection for vulnerable adults moving across borders. The new EU Regulation reinforces many principles advocated by STEP through its Global Representative Power (GRP) work, such as ensuring legal certainty, respecting individual autonomy and facilitating recognition of cross-border powers of representation.

The Regulation is currently awaiting the European Parliament’s first reading and we will keep members apprised of developments accordingly.

Emily Deane TEP, Technical Counsel & Head of Government Affairs