EUROPEAN COMMISSION

Brussels, 31.5.2023

SWD(2023) 155 final

COMMISSION STAFF WORKING DOCUMENT

IMPACT ASSESSMENT REPORT

Accompanying the documents

Proposal for

a Regulation of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of measures and cooperation in matters relating to the protection of adults













and




















proposal for a Council decision authorising Member States to become or remain parties, in the interest of the European Union, to the Convention of 13 January 2000 on the International Protection of Adults

{COM(2023) 280 final} - {SEC(2023) 208 final} - {SWD(2023) 154 final} - {SWD(2023) 156 final}
{COM(2023) 281 final}

Table of contents

Glossary

1Introduction: Political and legal context

2Problem definition

3Why should the EU act?

4Objectives: What is to be achieved?

5What are the available policy options?

6What are the impacts of the policy options?

7How do the options compare?

8Preferred option

9How will actual impacts be monitored and evaluated?

Annex 1: Procedural information

Annex 2: Stakeholder consultation (Synopsis report)

Annex 3: Who is affected and how?

Annex 4: Analytical methods and Methodology

Annex 5: The HCCH 2000 Protection of Adults Convention

Annex 6: EU Regulation

Annex 7: Problem Differentiation between Contracting Parties to the Convention and Non-Contracting Parties

Annex 8: Monitoring – Potential Evaluation Indicators

Annex 9: Consultations by the External Contractor

Annex 10: National Provisions on Jurisdiction, Applicable Law and Recognition

Table of figures and tables

Figure 1: Problem Tree    

Figure 2: Intervention Logic     

Figure 3: Objectives tree     

Figure 4: The effectiveness of the baseline scenario (Policy Option 1) in achieving the policy objectives of the PA initiative    

Figure 5: The effectiveness of the PO2 in achieving the policy objectives of the PA initiative* as perceived by stakeholders    

Figure 6: The effectiveness of the PO3 in achieving the policy objectives of the PA initiative* as perceived by stakeholders    

Figure 7: The effectiveness of the PO4 in achieving the policy objectives of the PA initiative* as perceived by stakeholders    

Figure 8: Opinion of the Regulatory Scrutiny Board    

Figure 8: Methods to estimate the population of vulnerable adults in the EU    

Figure 9: Number of Contracting Parties bound by the core HCCH Conventions    

Table 1: Costs borne by adults in cross-border context: current situation - illustrations per various scenarios    

Table 2: Overview of costs related to each policy option    

Table 3: Total procedural cost savings per case averaged across all Member States in Option 3 and 4 (EUR)    

Table 4: Overview of costs for each policy option    

Table 5: Comparison of costs and benefits per option (thousands EUR)    

Table 6: Comparison of policy options    

Table 7: Overview of benefits (total for all provisions) – Preferred Option    

Table 8: Overview of costs – Preferred Option    

Table 9: Overview of relevant Sustainable Development Goals – Preferred Option    

Table 10: Sources used for the calculations of protection measures    

Table 11: Estimates of the current number of vulnerable adults involved in cross-border situations – analysis based on protection measures    

Table 12: Estimates of the number of vulnerable adults involved in cross-border situations in 2030 – analysis based on protection measures    

Table 13: Estimates of current number of vulnerable adults involved in cross-border situations – analysis based on self-perceived health difficulties    

Table 14: Estimates of a number of vulnerable adults involved in cross-border situations in 2030 – analysis based on self-perceived health difficulties    

Table 15: Estimated number of vulnerable adults in non-EU Contracting States    

Table 16: Overview of the estimated numbers of vulnerable adults in the EU-26 and in non EU Contracting States    

Table 17: The typology of costs related to the cross-border protection of adults per policy option    

Table 18: Description of typical illustrative examples and related costs    

Table 19: Assumptions regarding the costs incurred by adults and competent authorities    

Table 20: Cost estimates per category    

Table 21: Average Procedural costs for vulnerable adults and competent authorities per case in Option 1 (baseline)    

Table 22: Aggregate of the procedural costs borne by vulnerable adults, per illustrative example under the baseline scenario (thousands EUR)    

Table 23: Estimate of annual costs for running a Central Authority under the HCCH 2000 Protection of Adults Convention (in selected MS)    

Table 24: Estimate of annual costs for running a Central Authority under the HCCH 2000 Protection of Adults per MS (PO1)    

Table 25: Average procedural costs* for adults and competent authorities per case and savings per case in Option 2 as compared to the baseline    

Table 26 Total procedural cost savings per case averaged across all Member States in Option 2    

Table 27: Comparison of aggregate cost-savings on Procedural costs under PO1 and PO2    

Table 28: Estimate of annual costs for running a Central Authority under the HCCH 2000 Protection of Adults per MS (PO2 as compared to PO1)    

Table 29: Average procedural costs for adults and competent authorities per case and savings per case in Option 3 as compared to the baseline    

Table 30: Total procedural cost savings per case averaged across all Member States in Option 3    

Table 31: Comparison of aggregate cost-savings on procedural costs under PO1 and PO3    

Table 32: Aggregate costs for establishment of a digital interconnected register (one-time costs)    

Table 33: Costs of interconnection of registries under the Insolvency Regulation    

Table 34: Aggregate maintenance costs of a digital interconnected register for insolvency (annual costs)    

Table 35: Costs of setting up a digital register per Member State    

Table 36: Comparison of aggregate cost-savings on procedural costs under PO1 and PO4    

Table 37: Additional costs and cost savings of Option 4 as compared to the baseline, 10 years and 15 years scenario    

Table 38: Procedural costs pertaining to the illustrative examples according to the policy options    

Table 39: Comparison of aggregate cost-savings on Procedural costs under POs 1, 2, 3 and 4    

Table 40: Annual adjustment and enforcement costs related to the HCCH 2000 Protection of Adults Convention by MS    

Table 41: Comparison of costs and benefits per option    

Table 42: Possible EU measures under POs 3 and 4 – description and benefits    

Table 43: Problems that would and would not be solved if all Member States become a Contracting Party to the Convention    

Table 43: Examples of potential evaluation indicators    

Table44: Consultation activities per stakeholder group – external contractor    

Table 45: Jurisdiction and applicable law in the Member States that are not party to the Convention    

Table 46: Rules applicable to parallel proceedings in the Member States    

Table 47: Recognition in Contracting States of protection measures taken in Non-contracting States    

Table 48: Recognition in Non-Contracting States    

Glossary

Throughout the report, where a term is marked with an *, the reader is invited to consult this Glossary for an explanation of the term.

11    Introduction: Political and legal context

Vulnerable adults are defined as persons aged 18 or more who are not in a position to protect their interests, due to an impairment or insufficiency of their personal faculties 7 . They are dependent on others for actions or decisions concerning their health and welfare, and/or their property. If not organized in advance (through powers of representation*), their protection involves the adoption of court or administrative measures (protection measures*) to provide the support they need to exercise their legal capacity (from signing rental contracts to opening bank accounts or consenting to medical treatments). The support provided preserves vulnerable adults from significant risks, such as undue influence or neglect.

Over the last two decades, an Area of Justice has been established in the EU. More than 20 EU regulations harmonising rules of Private International Law* (‘PIL’) have been adopted in the field of civil and commercial matters to provide full legal certainty to people and companies crossing EU borders, who thus benefit from the same legal protection as the nationals of the EU Member State in which they happen to be. Those EU regulations do not affect Member States’ domestic substantive legislation, they simply determine which rules apply to cross-border contexts. In particular, these PIL* rules aim to provide efficient solutions to determine i) the courts of which Member State have jurisdiction (‘international jurisdiction’); ii) which law is applicable (‘rules on applicable law’); iii) the rules governing the recognition and enforcement of decisions made in one Member State in other Member States; and iv) the rules on cooperation among authorities of Member States. Finally, for instance in cases of parental child abduction or child support recovery, Central Authorities* have been established and provide their assistance to the most vulnerable people, who are even more vulnerable in an international situation.

Questions relating to the legal capacity of adults and in particular protection measures for vulnerable adults have however been excluded from the scope of all those EU instruments to date. As a result, no EU common PIL rules governing the cross‑border cases involving the protection of adults exist and this area continues to be regulated by Member States’ national PIL rules. This creates a patchwork of (often diverging) PIL rules applicable to the protection of adults throughout the EU. As a result of these discrepancies, vulnerable adults and their representatives currently face multiple barriers when they move abroad, buy or sell property, or simply manage their bank accounts in another Member State.

Due to the ageing of the population and a frequent decline in the faculties of elderly people, as well as the increasing number of persons with disabilities of all ages 8 , the number of persons in need of legal protection is increasing and will continue to increase. Combined with the mobility of the European population within the internal market, the number of adults in the need of protection in cross-border cases will only grow. A significant part of the persons needing legal support to handle their personal or financial interests are persons with disabilities 9 . Their rights, including their right to autonomy, access to justice, or right to property, are safeguarded by the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD*). Their rights must be protected also in cross‑border cases to afford continued protection and full legal certainty within the EU.

The right to self-determination 10 is the cornerstone of the rights of persons with disabilities, in particular those with mental impairments or psychiatric diseases. However, this right may be violated for example when adults are placed in institutions and denied the right to decide on the conditions of their care 11 . A solution exists in the legislation of 16 Member States: the possibility for people to make arrangements in advance for a time when they will no longer be in a position to protect their interests (‘powers of representation’*). Contrary to protection measures taken by competent authorities, powers of representation are established by the adult. An efficient protection of the right to autonomy in cross‑border cases requires that those arrangements are recognised swiftly without the need for complex proceedings. This applies in particular in the 11 Member States whose legislation does not provide for such arrangements 12 . At the moment, the recognition* abroad of powers of representation is highly uncertain.

The international legal context

The international instrument currently applying to the PIL* aspects of the cross‑border protection of vulnerable adults is the HCCH 2000 Protection of Adults Convention* 13 . The Convention provides solutions to the questions arising in cross-border cases. In summary, and subject to a number of exceptions and special cases, it provides rules to establish jurisdiction (with the main criterion being the habitual residence of the adult), and to determine which law applies to a case. It provides for an automatic recognition of foreign protection measures and creates a system of cooperation between Central Authorities* to facilitate the management of cross-border cases 14 . The Convention allows one or more Contracting States to conclude agreements on the same matters 15 .

It is in force in 14 States in total. The Convention is only open to sovereign States; therefore the EU cannot become a party to the Convention itself, only its Member States can ratify* it. Only 11 of the 27 Member States have ratified the Convention so far 16 . While ratification is largely uncontroversial 17 , several possible factors for its low uptake by the Member States 18 were identified, including:

a)The protection of adults is a non-contentious matter* with only one party involved, and most of the time without an intervention of an attorney, as opposed to other contentious matters where the two parties assisted by a lawyer are more likely to challenge the first instance decision. Thus, the protection of adults generates less case law (despite the high number of first instance decisions) and does not involve legal professionals to a great extent. Therefore, it also attracts less attention from authorities or media. More generally, vulnerability limits the ability of people to express themselves and assert their rights. Due to their own limitations, it is much more difficult to seek the assistance of an attorney or to bring their case to the media.

b)In the area of the adults’ protection, cross-border cases are much less frequent than purely domestic ones and therefore attract less political attention. The prevalence of cross-border cases involving the protection of adults is also relatively lower than in other areas of civil justice (like divorce or maintenance recovery).

c)The uptake of international conventions, especially in the field of PIL, requires promotion work among potential future Contracting Parties. The lower uptake of the HCCH 2000 Protection of Adults Convention could thus be partially influenced by the fact that it was promoted internationally less than other comparable conventions 19 .

d)The above factors contribute to a lower visibility of the problem, thus leading to the most important reason for the low uptake of the Convention, which is the political prioritisation of the ratification of the Convention by national legislators. The prioritisation problem was raised not only during the consultations in the context of this impact assessment 20 , but also by the recent report by the European Law Institute 21 that noted that one of the reason for the low ratification rate by Member States was that this topic was not high on governmental agendas given its political nature and a limited number of beneficiaries as compared to other regulatory areas. This report further noted that some States consider substantive reforms of their national legislation on the protection of adults in view of the UN Convention on the Protection of Persons with Disabilities and have therefore postponed the ratification of the Convention (envisaging a legislative package for both measures together).

The above factors seem to contribute to a lower ratification rate of the HCCH 2000 Protection of Adults Convention.

The 2006 United Nations Convention on the Rights of Persons with Disabilities (‘UNCRPD’) is an international instrument defining standards for the protection of persons with disabilities, with the aim ‘to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity’. The UNCRPD* was signed by the EU in 2007 and entered into force for the EU on 22 January 2011. All EU Member States are also party to this Convention. However, the UNCRPD Committee, in its 2015 report on the implementation of the UNCRPD in the EU, expressed its concern when it comes to the barriers faced by persons with disabilities when moving from one Member State to another. The Committee recommended that the EU ‘takes immediate action to ensure that all persons with disabilities and their families can enjoy their right to freedom of movement* on an equal basis with others’ 22 .

The UN Special Rapporteur on the Rights of Persons with Disabilities and the Independent Expert on the enjoyment of all human rights by older persons made a joint statement concerning the relationship between the HCCH 2000 Protection of Adults Convention* and the UNCRPD* in 2021 clarifying that both conventions are complementary and are not in contradiction with each other 23 . The HCCH 2000 Protection of Adults Convention* at times refers to measures that should be avoided to ensure a human rights approach, save in exceptional cases where no other solution exists (such as ‘guardianship’ as a protective measure which may be necessary in case of a coma for instance). However, the Convention only establishes PIL rules* and can and shall be interpreted flexibly to accommodate any development in substantive laws of its Contracting States without locking any concepts or approaches into place.

The national legal context

The national substantive law rules differ among Member States. For instance, the 2021 Legal Study* found that protection measures* for vulnerable adults differ considerably from one Member State to another. Protection measures are available in all Member States, whether adopted by courts or administrative authorities. However, only 16 out of the 27 24  substantive laws of the Member States provide for the possibility that powers of representation* are used in case of incapacity* 25 .

This report does not in principle deal with the differences in the substantive laws* of Member States but mainly addresses the differences in their private international law rules concerning the protection of adults in cross-border situations as each Member States has their own PIL* rules governing cases with an international element (governing international jurisdiction, applicable law, recognition and enforcement and cooperation among competent authorities). First, in States that are not party to the HCCH 2000 Protection of Adults Convention*, those rules often significantly differ from one another. For instance, five Member States that are not party to the Convention 26 consider that their courts have jurisdiction if the adult concerned is habitually resident in their Member State, two Member States if the adult is a national of their State. The other Member States have both of these ‘connecting’ criteria 27 , 28 . In addition, a specific procedure to obtain recognition or enforcement of a foreign protection measure is almost always required. The courts responsible for recognition and enforcement are different in each Member State and this information is not available from abroad. When seeking recognition of a measure in a cross-border case, no assistance can be provided to foreign practitioners.

Second, by contrast, the Member States that are Contracting States* apply the (same) PIL* rules included in the Convention* to cases that involve other Contracting States to the Convention 29 .

Besides the diversity of PIL* rules, several other legal aspects affect vulnerable adults specifically in cross-border cases. These include the (limited) access to legal aid in other Member States. Legal capacity proceedings involve going to court, with experts’ evidence (usually medical reports) and increased costs compared to other fields of law. All Member States grant access to legal aid to the most disadvantaged people who cannot afford legal representation. In cross-border cases, the 2003 Directive on legal aid* establishes the right to legal aid for persons who are habitually resident in the EU, subject to the legislation of the requested State*, as well as a cooperation mechanism for sending a cross-border request for legal aid. However, the scope of the Directive* is limited, and it is ultimately for the requested State*, based on the information submitted and under the conditions set by its domestic law, to decide on the application. There are significant differences between the national legal aid systems. In some Member States the eligibility criteria for legal aid are restricted to people with very low income only, and the scope of this legal aid may also be very narrow 30 .

Information about protection measures* adopted and powers of representation confirmed* in a particular State is mostly only accessible to the national authorities. When an individual shows some vulnerabilities and has connections with another State, authorities need to access the information on (i) the existence of protection measures in another Member State(s) and (ii) the resulting need of the adult to be supported. This can occur in cross-border cases in civil, commercial, and criminal matters. By 2021, all but six Member States had set up registries for protection measures 31 . Registries in those Member States that have a registry tend to be managed centrally 32 , with the exception of three Member States 33 where the registries are handled by local or municipal authorities. While some registries include information on the protection measures 34 , others only contain information on powers of representation* 35 . Fifteen Member States have a digitalised registry 36 . The access to these registries is generally limited to competent authorities, although some Member States also enable the protected adult or their representatives to have access to them 37 . Cross-border access to registers is only possible in five Member States 38 , one of which only partially 39 .

The political context

The cross-border protection of adults. To enhance and facilitate cross-border protection of vulnerable adults*, EU institutions have, since the adoption of the HCCH 2000 Protection of Adults Convention*, continuously promoted the ratification of this instrument by the Member States.

The European Commission has been encouraging Member States to ratify the Convention for several years 40 . It granted financial support to improve cooperation in that field (for instance the project ‘The Vulnerable’ 41 ), translated the Explanatory Report to the Convention* into the official languages of the EU, co-organised a joint conference with the HCCH called ‘Cross-border Protection of Vulnerable Adults’ in 2018 and included the cross-border cooperation in the Strategy for the rights of persons with disabilities 2021–2030 42 .

The European Parliament has been supporting a possible EU legislative initiative to ratify and complement the Convention since 2008. In its resolution of 1 June 2017, the Parliament called on the Commission to submit a proposal for a regulation designed to improve cooperation among the Member States and to ensure automatic recognition and enforcement of decisions on the protection of vulnerable adults* and mandates in anticipation of incapacity*, on the basis of Article 81(2) TFEU 43 .

The Council has likewise encouraged ratification of the Convention by the Member States since 2008 44 . Most recently, in its conclusions of the Justice and Home Affairs meeting of June 2021, the Council invited those Member States which are parties to the Convention to raise awareness among courts, practitioners and all stakeholders involved in the implementation of the Convention, and those Member States that are not yet Contracting States to ratify the Convention. It also invited Member States to ensure that the national measures on the protection of vulnerable adults are in line with the UNCRPD* 45 .

Synergies with the digitalisation of judicial cooperation. With the COVID-19 pandemic, the trend towards increased digitalisation has been reinforced in the EU 46 . The increased importance of digital technologies also impacts cross-border judicial cooperation, as the use of digital means of communication has the potential to improve access to justice, facilitate the cooperation between the competent authorities* of different Member States, improve their efficiency and resilience, and alleviate some obstacles in cross‑border cases (e.g. language or legal barriers) 47 . In its Communication of 2 December 2020 48 , the Commission committed to make the digital channel the default option in EU cross‑border cooperation (‘digital by default’ principle). Consequently, on 1 December 2021, the Commission tabled a digitalisation proposal* 49 . The proposal aims at fully digitalising the written communication inherent to judicial cooperation in 23 existing EU legal instruments on civil, commercial and criminal matters.

22    Problem definition

In cross-border cases, adults* are confronted with a patchwork of different PIL rules which makes it difficult, if not impossible, to know in advance which court will have jurisdiction over their case, which law will apply, and at the end of the day whether or not protection measures already taken, or arrangements made in advance will be accepted abroad. Outside the borders of their Member State, adults cannot predict how their case will be handled. The same goes for legal practitioners advising clients or drawing up legal acts (e.g. powers of representation). As soon as action needs to be taken abroad, for instance when it is necessary to close or open a bank account, transfer funds, sell a property, move, accept a succession, stop a medical treatment, consent to a surgery, be placed in an institution etc., an additional burden in the form of lengthy and expensive proceedings is put on the adults, and in turn on their families, representatives and on competent authorities.

In some instances, domestic law requires the initiation of court proceedings to obtain the recognition of the protection measures or the powers granted in another Member State 50 . Eventually, at the end of this long process, the recognition may be refused by a court or by other actors in a State other than the State where the measure was adopted. In that scenario, even though a measure is in place in the State of origin, a new procedure will have to be initiated in that other State to advance the case 51 .

Despite the lack of statistical information (and the lack of comparability of such information where it exists), the findings on the existence of these challenges are based on solid evidence gathered, e.g. through fact-finding missions, consultations of practitioners and experts, online surveys, interviews, case law, and multiple reports from the academia and the European Parliament 52 .

It must be noted that in describing the problems, the upcoming section differentiates between Member States that are and that are not Contracting Parties to the HCCH 2000 Protection of Adults Convention only partially. This is because the Convention can only solve problems in Contracting Parties in relation to other Contracting Parties and not where one of the Member States involved is not a Contracting Party. The problems thus remain when cross-border cases involve one of the 15 EU Member States that have not ratified the Convention 53 . In addition, the Convention provides only ‘core’ private international law rules suitable for international context but does not go as far as is the standard in the EU justice area, thus leaving some issues unaddressed. Annex 7 of this report elaborates in more detail which problems could be solved if all Member States were Contracting Parties to the Convention and which problems the Convention does not address.

Figure 1: Problem Tree

2.12.1    What are the problems?

Understandably, cross-border cases have been identified by many stakeholders as more complex than domestic ones, since they always involve the prior application of PIL* rules on top of the national rules, to establish jurisdiction and the applicable law, and, if applicable, to assess whether a foreign measure can be given legal effects 54 . This complexity is also per se problematic for the adults, their families or representatives as well as for authorities and legal practitioners, and should be therefore reduced to the extent possible in all cases.

In this context, three specific problems were identified: (i) the lack of legal certainty; (ii) lengthy and costly proceedings; and (iii) non-recognition of court decisions and non-acceptance of powers of representation*.

2.1.12.1.1    The problems

2.1.1.1The lack of legal certainty

The concept of legal certainty refers to the predictability of a given legal system, as well as its transparency and the guarantee that there is no room for arbitrariness. Legal certainty is ensured when the subjects of a legal system know exactly what to expect and how to adapt their conduct. This principle is therefore fundamental for preserving individual freedom 55 . 

In cross-border situations, the principle of legal certainty implies that adults themselves, but also their relatives and representatives should be assured that their rights and protection granted in one EU Member State will be recognised and guaranteed in all other Member States, and should know under which law their case will be considered and by which authority. Legal certainty also entails for competent authorities of Member States to know which foreign body to communicate with, to ensure that their nationals are protected abroad, and to be able to have a reliable and quick access to foreign law when necessary.

Legal certainty is considered a significant problem by the stakeholders consulted in the context of this impact assessment. Out of 33 stakeholders interviewed by an external contractor* about the importance of the lack of legal certainty as an obstacle to the protection of vulnerable adults in cross-border situations, 29 (88%) considered this issue as very or rather important. Of all problems identified, the lack of legal certainty was regarded as the most important problem by the stakeholders. This conclusion is corroborated by many other sources beyond the interviews. For instance, concerns based on broad practical experience in multiple cases have been expressed by stakeholders representing a large number of legal practitioners 56 . This issue was also expressly mentioned by stakeholders in replies to the Call for Evidence*, where a number of practitioners reported experiencing practical difficulties related to the lack of legal certainty in cross-border situations 57 . It follows from the nature of this problem that statistical data on the phenomenon of legal uncertainty could not be collected.

2.1.1.2Lengthy and costly proceedings

Despite the fragmented data on the average length and costs of cross-border proceedings 58 , it is estimated that the average duration of cases involving the protection of adults and having cross-border aspects is considerably longer than that of comparable national cases 59 . An extreme example of such long duration was a case concerning the recognition of a protection measure between Germany and Greece which lasted 12 years 60 .

There are inherent factors to those cross-border cases that automatically increase their length and the costs incurred, such as the language difference, the geographical distance, or the different legal systems. In addition, courts have the obligation to verify their international jurisdiction and applicable law which is an additional procedural step that takes time. In some cases, they will also have to rule on the recognition of a foreign measure.

The most frequent case scenarios and the corresponding types of costs that the adults* may incur in cross-border situations are illustrated in Table 1: Costs borne by adults in cross-border context: current situation - illustrations per various scenarios.

When asked about the problems impeding the protection of vulnerable adults in cross-border situations, 20 out of 33 stakeholders interviewed by the external contractor estimated that the length and costs of judicial or administrative proceedings for vulnerable adults, their families and representatives were very or rather important problems. An association representing a category of vulnerable adults also highlighted to the external contractor the importance of the length and costs of judicial and administrative proceedings for vulnerable adults, their families and representatives. The report of the RESIJ fact-finding mission* underlined that in the absence of well-known and efficient tools, vulnerable adults and their families have to turn to lawyers to solve their cross-border issues. The report added that professional representatives have to take complex steps and activate their network to solve the problems arising from cross-border situations. Although legal aid can be granted to adults to help them meet the costs of legal proceedings, it does not cover all costs 61 , is only attributed to people with very limited income, and does not apply in all cross-border cases. The Legal Aid Directive* has a limited scope and does not apply to the recognition of protection measures*, or to service of documents for instance. Legal aid lawyers designated by the requested State* often do not (properly) speak the language of the applicant which adds to the duration and complexity of the case. In addition, only 12% of the people are aware of the existence of cross‑border legal aid, and therefore 88% are unlikely to benefit from this possibility. In summary, the current situation and the excessive duration and costs of proceedings significantly affect the most vulnerable people 62 . 

Additionally, as explained by a judicial representative interviewed, some national specific requirements to give effect to a foreign measure can add to the length and costs of proceedings, such as time‑consuming medical examinations that were not required in the State of origin*. 

2.1.1.3Non-recognition of court decisions and non-acceptance of powers of representation

Depending on the application or not of the HCCH 2000 Protection of Adults Convention*, or on the nature/origin of the protection (judicial decision or powers of representation*), a protection effective in one Member State may not be recognised, and thus implemented, in other Member States. This occurs: (i) either when a judicial measure is not recognised by the court of the requested State* which rejects the application for recognition under its own PIL* rules; or (ii) when powers of representation* are not accepted by private actors (banks, insurances, real estate agents, medical staff etc.) who refuse to give effect to foreign measures/mandates, and do not allow the representative to act on behalf of the adult concerned.

Finally, when it is not known that a protection measure in another Member State exists, authorities (for instance registrars and notaries) and the general public will logically not be able to act according to it (and the measure will thus remain de facto unrecognised as if it did not exist). The situations described above occur in particular when adults live abroad for part of the year, or own assets abroad that they wish to dispose of or simply to manage efficiently. In that case, contradictory protection measures may be adopted across the Member States.

Overall, 24 out of 32 stakeholders (75%) interviewed by the external contractor regarded the non‑recognition of protection measures and confirmed powers of representation in cross-border situations as a very or rather important obstacle to the protection of vulnerable adults. This issue was also substantiated by numerous examples of non-recognition provided by stakeholders during the consultations undertaken in the context of this impact assessment, which are summarised in the illustrative scenarios in Annex 4.

2.1.22.1.2    The consequences of the problems

These problems have several adverse consequences, and jeopardise the protection, and therefore, the health and the assets of the adults at risk. Several fundamental rights are directly jeopardized, such as the right to property, to autonomy, to access to justice and to free movement*. Courts and authorities are affected by the additional workload entailed by the cross-border nature of the cases and do not receive any assistance.

2.1.2.1Health risks

The length and costs of proceedings in cross-border situations create a risk to the physical and mental health of vulnerable adults. For instance, delays in obtaining necessary medical treatment may occur in cross-border situations* 63 . Some stakeholders explained that the physical and moral integrity of vulnerable persons may not be adequately protected in cross-border cases where these adults have to go through burdensome proceedings. According to them, these cases where the physical and mental integrity of adults* is not adequately protected could be in contradiction with the obligations for the EU and Member States under the UNCRPD* 64 .

The non-recognition in some Member States of protection measures adopted in other Member States can also create a risk to the physical and mental health of vulnerable adults due to the discontinuity of the protection across borders (the vulnerable adult is under certain safeguards in one Member State and under different or no safeguards in another Member State). This can create an environment prone to abuse of the adult 65 . In that regard, situations of neglect in cross-border cases* or even abductions or dispossessions were reported on numerous occasions by practitioners and judges 66 in the context of consultations, including during the focus groups* organised in the context of this impact assessment, as well as various conferences involving stakeholders over the past couple of years 67 . In addition, the non‑recognition of protection measures in one Member State that have already been adopted in another Member State can create distress for and have negative psychological and mental impacts on the persons concerned and their families.

2.1.2.2Access to justice

The lack of legal certainty can become a barrier to access to justice for vulnerable adults 68 . This is highlighted by a report from the Centre for Disability Law and Policy and the Institute for Lifecourse and Society, which underlined that access to information for people with disabilities is particularly hampered in cross-border cases* 69  due to: (i) the very impairments of the people; and (ii) the inability of the justice system to provide adequate assistance; and (iii) the additional barriers in international situations (distance, language, etc.). The same could be inferred not only for persons with disabilities, but for vulnerable adults in general.

Specifically in the context of this impact assessment, access to justice for vulnerable adults can be hindered by the length and costs of proceedings in cross-border cases. The sometimes exorbitant costs of particularly complex proceedings, the fact that these costs are not necessarily covered by legal aid, and the duration of all these legal steps may prevent vulnerable adults from fully exercising their right to access to justice. Access to free or affordable legal representation and advice is considered necessary to fulfil the right to access to justice 70 . This is especially true in a cross-border context 71 .

2.1.2.3Dispossession and financial loss

The lack of legal certainty can also lead to reluctance by third parties to enter into transactions with the vulnerable person. One example pointed out by a report of the European Law Institute (ELI) 72 , relates to the legal uncertainty faced by a bank when it comes to determining under what conditions the immovable property owned by a vulnerable adult abroad can be used to refund borrowed money by the latter 73 .

The excessive length and costs of proceedings in cross-border situations involving vulnerable adults lead to a significant risk of dispossession and/or denied access to the adult’s property abroad. In cross‑border situations, vulnerable adults can be deprived of their ability to manage their financial affairs abroad due to the proceedings they would have to go through. From the interviews carried out, it appears that private institutions like banks are particularly demanding and require steps that vulnerable adults often cannot take, such as travelling to a foreign country and being present during the transaction in question. This consequently restricts the vulnerable adult's access to their bank accounts and assets. Additionally, the issue of the language barriers (and the requirement of costly translations) tends to exacerbate the pre-existing difficulties that vulnerable adults may face in their interactions with foreign institutions 74 . Finally, the costs entailed because of the cross-border nature of the proceedings may discourage adults from asserting the rights related to their assets abroad.

A risk of dispossession and/or denied access to the adult’s property abroad can also arise from non‑recognition, in particular when national PIL* rules do not provide for automatic recognition or, even when they do so, when private actors refuse to recognise a measure or powers of representation*. The costs linked to the non‑automatic recognition of a measure and the need to start judicial proceedings can be very high (hiring a foreign lawyer, travel costs, etc.). In cases where the measure is not recognised, vulnerable adults or their representatives will not be able to access assets located abroad at least during the proceedings, and even indefinitely if they are deterred from starting judicial proceedings. In cases where an adult moves to another country, the absence of recognition of a prior decision in that country may also cause disruption in the protection, with no support to claim e.g. social welfare. One representative of a vulnerable adult interviewed by the external contractor experienced a non-recognition of a protection measure of the adult under his care, and the need to go through an exequatur procedure*, which lasted about 15 months. The representative was not able to obtain access to the bank accounts and was thus unable to detect a scam. He was unable to stop this scam and report the relevant person to police earlier.

The inability to access assets can also have consequences on the health of vulnerable adults if they cannot meet medical expenses or pay for a care home. This was repeatedly mentioned by stakeholders consulted in the context of this impact assessment 75 .

2.1.2.4Right to self-determination and autonomy

Not recognising powers of representation* may result in impeding the adults’ right to self‑determination and autonomy. Powers of representation give people the opportunity to decide for themselves (in advance) who will look after their personal and financial interests and thus promote personal autonomy. If powers of representation are not accepted in another country, the wish of an adult to assign powers of representation to a specific person, or to choose a law/court can be ignored 76 , 77 , in breach of Article 12(3) of the UNCRPD*.

Even when powers of representation* are in principle accepted abroad, the long, uncertain and complicated procedures that vulnerable adults experience in cross-border situations 78 may lead to the non-respect of their wishes or preferences. For instance, when powers of representation* established abroad need to be confirmed in another country where the adult resides and has become incapacitated, competent authorities tasked with the confirmation of powers often need assistance since they have to assess the conditions of the entry into force of the powers under another law which they have to find, understand (legally and linguistically) and interpret, if necessary, in addition to applying some of their own substantive rules. Without proper guidance and assistance to these authorities, the respect of the wishes expressed in a foreign mandate may be hindered 79 .

2.1.2.5Freedom of movement

The freedom of movement* of adults (and their families) may be hindered by the lack of legal certainty. Factors that may deter adults from travelling or moving abroad may be for instance: (i) the uncertainty as to whether protective instruments will be recognised abroad; (ii) the uncertainty as to which law will be applicable; (iii) the expected difficulties with the communication with foreign legal actors; and (iv) the likelihood of having to face multiple procedures in different Member States and related costs. According to the ELI* report, such difficulties cause indirect discrimination, as mobility across borders for vulnerable adults becomes significantly more difficult to enjoy compared to that of people who have full legal capacity 80 .

The length and costs of proceedings can additionally be a strong deterrent for vulnerable adults who would have wanted to move abroad, and some might not have the necessary resources to go through these proceedings 81 . Thus, the right to free movement* of vulnerable adults may also be disproportionally hampered by the prospect and/or the experience of having to go through judicial proceedings, while again, people enjoying full capacity will never have to go through those proceedings in cross‑border cases.

2.1.2.6Increased workload of competent authorities

Finally, the length and costs of proceedings also have an impact on competent authorities who experience increased workloads and costs when dealing with cross-border cases involving vulnerable adults. It can take courts longer to process cross-border cases dealing with the protection of adults than similar domestic cases 82 . The lack of harmonised rules on the matter adds to the workload of courts, as they have to deal not only with the application of their national law but also apply complex PIL* rules and eventually research on the application of foreign law 83 . In order to avoid additional costs and workload, judges sometimes tend to simply ignore the international element 84 . If they do so, they only apply their substantive law rules without verifying their jurisdiction and that their law should apply to the matter. In such circumstances (non-respect of international jurisdiction and applicable law), the chances are great that the decision will not be recognised abroad, and that adults or their representatives will have to start new proceedings in the requested State 85 . Difficulties encountered by competent authorities in obtaining information and cooperating with institutions of other Member States or non-EU countries also have a direct impact on their workload and associated costs. For Member States which are not party to the Convention*, the workload and costs are usually even higher, especially as their competent authorities* do not have the assistance of a Central Authority* 86 .

National provisions instituting powers of representation* have the objective of decreasing the workload of courts and encouraging non-judicial handling of protection cases. Where those mandates are not accepted by private actors (which will force representatives of the adults to start new protection proceedings*), or are only recognised after lengthy and costly proceedings, the objective of alleviating the workload of courts is not met.

2.1.32.1.3    The size of the problem 

2.1.3.1The number of vulnerable adults in the EU

The calculations based on different assumptions and the methodology detailed in Annex 4 resulted in two sets of estimates of the number of vulnerable adults in the EU: The first one is based on the number of protection measures taken by an authority in the EU, based on which there are approximately 5.1 million vulnerable adults (1.4% of the EU population). This estimate does not include the high number of adults protected by powers of representation and thus in reality underestimates the number of protected adults by some margin. The second estimate, based on the criteria of health complications, accounts for approximately 27.4 million of adults in a situation of vulnerability and in an assumed need of legal support (7.5% of the EU population).

2.1.3.2The number of vulnerable adults in cross-border situations in the EU

This being said, not every vulnerable adult needs a cross-border arrangement. This report only concerns adults who need legal protection in cross-border situations.

There are no statistics available at EU level on the number of cross-border cases of protection. The IT systems of Members States’ courts do not record the cross-border element. The available data are hence scattered and do not reflect the number of cross-border cases (79 cases of recognition proceedings in one Member State over a period of 5 years, 100 cases with a cross-border element in the court of another Member State over a period of 3 years). The RESIJ fact-finding mission* also revealed that most complex situations involving foreign aspects were settled without judicial intervention (with no record of those cases). The number of cross‑border cases recorded by Central Authorities* remains low; however, these authorities are only involved in relation to cases involving two Contracting States to the Convention and out of these cases only in those where specific support of the Central Authorities is needed 87 . Therefore, all cases registered by Central Authorities* are by definition cases where one or several problems arose. A large proportion of the total number of problematic cross-border cases is however not reported to them, for instance due to the lack of visibility and knowledge among competent authorities on the existence of the Central Authorities.

In the absence of data reflecting the actual number of cross-border cases, applying the methodology described in Annex 4 (based on EU population and mobility statistics), the number of vulnerable adults living abroad in the EU and potentially experiencing problems in cross-border context due to legal uncertainties can be estimated between ca. 144 649 (lower estimate calculated from the number of protection measures) and 780 169 (higher estimate calculated based on the reported health complications). See more details including estimates per country in Annex 4.

It could be estimated that 100% of the population of vulnerable adults in cross‑border cases experience at least one of the problems described above in their lifetime 88 . For instance, the problem of legal uncertainty affects by definition all adults in cross‑border cases, not only those that are vulnerable. Even in cases where the cross-border nature of the case is solely related to the foreign nationality of the adult (without having assets abroad), the rather likely possibility of a succession abroad, or a travel or return to the State of their nationality creates legal uncertainty.

Furthermore, the problems actually affect a much larger population. For instance, in all 16 Member States that provide for powers of representation* in their legislation, virtually all adults living in those Member States are covered by the initiative, since everyone has the possibility to establish powers of representation* (including advance directives* for future medical treatments) and would expect that they are respected not only in their Member State but also everywhere in the EU. Unlike other areas of law that cover only certain categories of persons or activities (children/parents in family law or companies in insolvency law), the issue at hand concerns the general public. Moreover, the number of adults having been granted powers of representation cannot be estimated (and is partly not reflected in the figures above), but it is in millions. However, all of those who are in cross-border situations are affected by the legal uncertainty, even if the powers of representation have not been activated yet 89 . In addition, most competent authorities who by law need to assess the legal capacity of individuals, like notaries or land or civil registrars, are confronted with the lack of legal certainty each time they have a case involving a foreigner 90 . This is because they do not have access to the registries of protection measures of the State of which this person is a national or where the person lived before.

Finally, given the duration of the cases, the problems of lengthy and costly proceedings and non‑recognition of measures and powers of representation* are likely to affect all adults protected by a measure or powers of representation. They will necessarily arise when the adult owns property or financial assets abroad, moves abroad, inherits from a relative abroad, or has a medical emergency abroad.

Furthermore, in addition to the quantitative size of the problem in terms of the absolute number of adults affected, the seriousness of the problems encountered by this population also underlines that the current situation is highly undesirable. Where the problems described above arise, serious violations of the adults’ rights take place (as illustrated in the Section 2.1.2 – The consequences of the problems). Under international law, EU law and Member States’ law, persons with disabilities and mental disorders and older persons are granted the same rights as other persons. Situations in which those rights are fully not protected pose a grave problem in the EU, which has set itself the objective of creating, maintaining and developing an area of justice in which the free movement of persons is ensured 91 .

2.22.2    What are the problem drivers?

The problems, namely (i) lack of legal certainty; (ii) the lengthy and costly proceedings; and (iii) the absence of recognition of protection measures*, powers of representation* described above stem from a number of indirect causes. Some of the causes are of a legal nature and linked to the complexity of the legal picture in cross-border cases, which can be broken down into different drivers, but should also be considered as a whole. This complexity is a deterrent against vulnerable adults asserting their rights, as demonstrated by the RESIJ fact finding mission*: ‘[as a result of this disparity in cross-border cases], most difficulties are ultimately resolved by the efforts and ingenuity of the representatives of the protected person who manage to obtain information or documents through an informal network of stakeholders. However, in addition to the energy and time required, this reality most often requires a financial outlay on the part of the vulnerable adult [resulting in] a breach of equality between European citizens, as their protection is facilitated when they have the financial means to pay the services of professionals (lawyers, notaries and other professionals, including translators).’ Some other drivers relate to practical issues, in particular the lack of modernisation and lack of guidance.

2.2.12.2.1    Conflicting and complex rules on applicable law

Conflicting rules on applicable law 92 are a direct cause of the lack of legal certainty. Depending on the legal systems of Member States, several connecting factors (nationality, habitual residence, location of the property, law of the competent authority) may apply to the cross-border cases concerning the protection of adults and thus designate different applicable laws in the same cross-border‑ case. This leads to uncertainties as to the legal regime applicable to the subject matter of the case and can result in practical issues. In addition, national rules on protection measures* and powers of representation* significantly vary from one Member State to the other. In the absence of identical and simple conflict of law rules, it is impossible to predict whether a mandate or a measure will be implemented in another State as was intended. Indeed, if the intended law is not applied, there is a great risk that the measure or the mandate will be distorted and that their implementation will not correspond to what was initially envisaged.

21 out of 29 respondents (72%) to the interviews carried out by the contractor* considered Member States’ conflicting applicable law rules to be a very important or rather important factor explaining the lack of legal certainty. Literature indicates that, for instance, the determination of the law applicable to ex lege powers of representation* is problematic 93 ,  94 . Several stakeholders representing competent authorities and courts of the non‑Contracting States* considered that the lack of legal certainty is important in States that have not ratified the Convention*. The same point was made at a workshop on cross-border protection of vulnerable adults organised by the Czech Presidency 95 . 

Even for Contracting Parties* to the Convention that all apply the rules provided for in the Convention*, the lack of proper guidance for the authorities can make the application of these rules complex. An illustration provided by a representative of a Council of Notaries (CNUE) refers to the issues encountered by practitioners when identifying which law applies to the authorisation of a donation abroad when powers of representation* have been established.

Conflicting applicable law rules* also lead to the ‘non-recognition’ of powers of representation*. The acceptance of powers of representation* is not governed by the provisions on recognition, but by the applicable law provisions 96 . 11 Member States do not provide for such mandates in their national law 97 , meaning that foreign mandates will be considered non-existent in those States. 

2.2.22.2.2    Conflicting rules on jurisdiction

Member States’ conflicting rules on jurisdiction impact legal certainty, as it may be difficult for vulnerable adults to know which court will have jurisdiction to hear their case. Where the Convention does not apply, Member States’ PIL* laws contain different grounds for jurisdiction, such as the nationality of the person to be protected, or their habitual residence or domicile, and in some cases both or either of these two elements 98 . Two courts of different Member States can therefore be competent for the same case, for instance on the ground of nationality in State A and on the ground of habitual residence in State B.

Nineteen out of 28 respondents to interviews replied that conflicting rules between Member States on jurisdiction is a very or rather important factor explaining the lack of legal certainty. An organisation representing the interests of vulnerable adults emphasised the difficulty for them to determine which court has jurisdiction. This lack of clarity also results in the risk of parallel proceedings in two Member States. It was for instance raised as an issue by a competent authority that referred to a case where two courts in two Member States had been seized of the same case, which was only discovered when the adult moved away 99 . In general, the transfer of a case from one court to another is also problematic in practice in the absence of common rules 100 .

2.2.32.2.3    Conflicting or complex rules on recognition of foreign measures and powers of representation 

Conflicting (and/or complex) rules on recognition* of foreign decisions (protection measures*) contribute greatly to legal uncertainty, as vulnerable adults, their representatives, and practitioners are not ensured that the protection measures adopted in one State will be recognised in other States where they move or where they own assets. Out of 28 respondents to the public consultation, 19 considered that conflicting rules between Member States on recognition of foreign decisions were very or rather important to explain the lack of legal certainty. According to the RESIJ fact-finding mission* in seven Member States, lawyers consider that the differences between the rules in the Member States constitute a serious difficulty for their work in cross-border cases. Even among Member States that provide for similar protection measures, differences remain regarding for instance the scope, duration and review, as well as forms of control of measures and representatives and remedies. Such differences may result, in the absence of a common rule on automatic recognition, in hurdles in the circulation of protection measures adopted in one Member State in another Member States with different rules.

The conflicting and complex rules on recognition of foreign measures and powers of representation indirectly lead to an increase of the length and costs of proceedings, as recognition procedures are complex and lengthy (thus generating costs), as identified by 15 out of 20 respondents (75%) to the open public consultation. In addition, in cases where the foreign protection measure or powers of representation are ultimately not recognised (see below), applicants have to file a new request for protection/establish a new mandate in the Member State where recognition was refused, which will take time and generate new costs 101 .

In States that are not party to the Convention and where the recognition is not automatic 102 , recognition requires the initiation of judicial proceedings, thus entailing costs e.g. with regard to legal representation, court fees, legalisation and sworn translation of documents.

Quite evidently, conflicting and complex rules on recognition diverging from one Member State to another lead to non-recognition of protection measures or powers of representation 103 . According to one national authority, the refusal of recognition by a foreign private or public entity of a protection measure is one of the most recurring issues observed 104 . 12 out of 24 persons (50%) interviewed by an external contractor found the absence of harmonised rules on cross-border protection of vulnerable adults across Member States very or rather important to explain the non-recognition of protection measures.

A court may refuse to recognise a foreign decision based on the grounds for non-recognition listed in national law and in the Convention*. The grounds for refusal* are considered important by Member States to block foreign decisions that do not comply with their fundamental principles or for other reasons. However, the longer the list of grounds for non-recognition, the higher the risk that a decision will not be recognised. Furthermore, a foreign decision may also not be recognised by non-judicial actors (e.g. banks), as they may not be familiar with foreign formats and languages, and could not know how to apply the complex recognition rules. A judicial representative gave the example of a bank in a Contracting State of the Convention, which asked for an exequatur* judgment of the foreign protection measure, despite the fact that a measure is automatically recognised under the Convention (see below Section 2.2.4 unnecessary and complex enforcement proceedings).

Finally, in some Member States, powers of representation* are established and registered by a competent authority (such as notaries), and have a much higher evidential value than in other Member States. Neither the Convention* nor national PIL* rules provide for rules on the recognition of such powers of representation. Such rules could only be adopted at EU level, as was done in succession or matrimonial property matters 105 . 

2.2.42.2.4    Unnecessary or complex enforcement proceedings

The protection of adults is a non-contentious matter*, which rarely involves enforcement 106 of a court decision. Most court decisions consist in establishing a protection measure (e.g. designation of a representative and restrictions to the legal capacity or support in some activities) and authorising the adult or the representative to take certain types of actions (sell a property or invest the funds in a life insurance policy). Those decisions only need to be recognised (i.e. to be given a legal effect in another country), hence forced enforcement is almost never needed However, on many occasions, unnecessary exequatur* proceedings (which are a precondition for enforcement) are still requested. 

Fifteen respondents out of twenty (75%) considered that the question of unnecessary enforcement proceedings is either very important or rather important. Several stakeholders interviewed by the external contractor* described situations where a protection measure taken in one Member State was not accepted in another Member State (mostly by non-judicial actors), with the requirement that an exequatur* procedure had to be carried out to ensure that the representative is authorised to act on behalf of the adult 107 . In these cases, it is often necessary to hire a foreign lawyer, to carry out various administrative procedures abroad, to send numerous letters or emails, documents and sometimes to organise a trip to the other country. In States that are not party to the Convention, there is no provision simplifying exequatur proceedings and a declaration of enforceability is required which delays the procedure. A representative of practitioners consulted pointed out that it may take months to complete an exequatur* procedure, which implies a severe prejudice for vulnerable adults in cases where the person has no other assets than those located abroad 108 . In terms of costs, a judicial representative gave the example of a case where all the costs associated with an exequatur procedure* and other ancillary costs were higher than closing the foreign account itself, which was the originally intended step.

In Contracting States to the Convention, Article 25(2) of the Convention provides that the enforcement of protection measures taken in another Contracting State shall be done via simple and rapid procedures. Nevertheless, the Convention leaves it to the Contracting States to implement such procedures, with no prescription regarding the costs. In fact, most Contracting States* have not put in place such simple and rapid procedures 109 . A respondent to interviews highlighted that the procedure in their country (a Contracting State) is neither simple nor fast, as the competent court is a court of appeal, and the legal requirements to guarantee the authenticity of the decision are very formal. For instance, it is necessary to send the original document by post. Therefore, in the rare cases where enforcement is actually needed, the simplification brought by the Convention is not always a reality in practice 110 . Finally, in Contracting States as well, private actors such as banks, insurance companies, medical staff or real estate agents sometimes unduly require an exequatur of foreign decisions by the courts of their country (even though those decisions should be automatically recognised), in order to ensure that they will not be liable for damages caused by the guardian.

Those unnecessary proceedings automatically prolong procedures and generate significant additional costs for vulnerable adults, their families and representatives.

2.2.52.2.5    Absent or limited cooperation among national competent authorities

The representative of a competent authority of a non-Contracting State underlined that all the problems in the cross-border protection of vulnerable adults were to some extent related to the lack of cooperation among Member States. This is the case in particular for those countries that have not ratified the Convention, which thus cannot rely on the assistance of Central Authorities*. Central Authorities communicate with each other, provide information in their State regarding the international protection of adults or assist their authorities as well as foreign authorities in specific cross-border cases 111 . The difficulty of determining the competent foreign authorities and persons in non-Contracting States*, the need for translations on one hand, and the lack of imposed deadlines to provide a response on the other hand, mean that competent authorities spend more time and therefore more money on cases of vulnerable adults in cross-border situations.

Even among those Member States which have ratified the Convention and cooperate with each other, legal uncertainty for competent authorities remains to some extent. It is linked to the absence of an international court that would settle the differences of interpretation of the Convention between the Contracting Parties, and of a forum to discuss different interpretations of certain terms, such as the notion of ‘habitual residence’ 112 . While the Convention provides for open notions allowing flexibility and facilitating adaptation to all situations 113 , in practice, this can lead to a lack of clarity and legal certainty for the public and professionals, as pointed out by literature 114 and stakeholders 115 .

The lack of legal certainty is closely linked to either complex or conflicting rules, or lack of knowledge of the PIL* rules. Practitioners (lawyers, notaries, professional representatives) lack experience in the area of cross-border protection of vulnerable adults and are thus rarely able to meaningfully inform their client regarding what to expect in cross-border procedures. This is particularly problematic when it comes to producing powers of representation* abroad or when managing assets abroad or planning to move abroad.

The absent or limited cooperation between competent authorities increases the length of proceedings. This occurs at the level of courts and authorities, as well as at central level in non-Contracting States*. This particularly holds true for non-Contracting States, who cannot rely on the help of Central Authorities* to cooperate.

Despite the absence of significant concerns 116 and as identified by the European Parliament’s EAVA Study* even Member States party to the Convention* have problems, including poor cooperation and communication between the competent authorities of the Contracting Parties. The Convention* makes communication between authorities mandatory in many cases 117 . This communication is however made difficult by the use of paper channels and the language barrier. An association representing a category of vulnerable adults referred to the lack of modernisation of judicial and administrative proceedings (i.e. not digitalised and lengthy), leading competent authorities to be very slow in taking practical measures in sometimes urgent situations. A judicial representative from a Contracting State mentioned during his interview that, of the 5 to 10 cases with a cross-border element out of the 90 measures he deals with (a proportion that remains constant over time), he never had a case in which guardianship judges or public prosecutors have exchanged with their foreign colleagues on their cases. This occurs despite the obvious need in cross-border cases to exchange information on the state of play of the proceedings but also on the personal and financial situation of the adult.

The lack of communication is another cause of non-recognition of protection measures, as recognition presupposes knowledge of the measure in the first place (the adults are often not in a position to provide this information) and suboptimal communication among competent authorities of different Member States about the existence of protection measures is a recurring issue. This was illustrated by an authority consulted in the context of this impact assessment, which accounted for numerous difficulties in determining the existence of a proceeding concerning a protection measure before the courts of another State, including because there is no centralised archive or register at EU level or even, depending on the State, at national level 118 , 119 . The representative of a chamber of notaries gave the example of a situation where authorities of the country in which a sale was to be concluded could not access the information that the legal capacity of a buyer was limited, and that this person should be supported to sign the property sale.

2.2.62.2.6    Access to foreign law

The current absence of cooperation between authorities and the lack of accessible information on (i) the conflict of law rules applicable in another Member State and (ii) the content of the substantive law* that is eventually found applicable create complications. These complications negatively affect the work of legal practitioners and representatives when advising their clients, as well as of Member States’ courts that apply foreign law to a case. This lack of cooperation with determining the content of the foreign law equally exacerbates all three problems. This factor was mentioned by multiple stakeholders in the context of the consultations. A pan-European organisation representing vulnerable adults mentioned, among the practical issues encountered, that information on the applicable law and competent authorities of another Member State was indeed not available or was not available in their languages. The website of CNUE* The Vulnerable offers information, but it remains limited in terms of information, content and languages available and does not cover all Member States 120 .

The lack of clarity about the applicable law contributes to the length and costs of proceedings in non‑Contracting States*, as courts which need to apply a foreign legislation cannot ask a Central Authority to provide information on that law. Obtaining this information in a foreign language takes time and requires more resources (human resources, translations etc.). In addition, a representative of notaries pointed out that most people and even legal practitioners do not know the content of foreign applicable law, as they are not experts on all the national legal systems. The assistance of external experts is thus required, likely resulting in additional costs.

Circulation of mandates adopted in another Member States is a recurring issue pointed out by literature 121 and by stakeholders 122 . As an explanation, a national authority, in their response to the OPC*, pointed out that the exercise of the mandate in a State other than that of the designated law implies for the person from whom recognition or acceptance is sought to have knowledge of that law, which is a significant difficulty 123 .

2.2.72.2.7    Lack of training on the existing instruments

Finally, one of the main findings of the report from the RESIJ fact-finding mission* is that competent authorities of Contracting States*, including courts, are not sufficiently trained and aware of the Convention*, including on its rules on jurisdiction, recognition and cooperation. This creates many issues in practice. For instance, when an adult moves to another country, courts close their file instead of transmitting it to the court of another State with jurisdiction, and a new procedure has to be started from scratch in the other country 124 . In addition, the report showed that, in this area, there is a general lack of knowledge and subsequent underuse of European instruments of civil cooperation (facilitating service of judicial documents or taking of evidence abroad).

2.32.3    How likely is the problem to persist?

There is a reasonable expectation that the number of vulnerable adults will rise, especially because of the ageing population. The projected life expectancy in the EU is supposed to increase in the future by approximately five years by 2050 and expected to reach 90.82 by 2100. The number of dependent people will double by 2050, affecting mainly Germany and Italy, but also countries of Central and Eastern Europe. Additionally, the proportion of people older than 65 with some form of disability is projected to increase by 77% by 2050 125 . While medical advancement can increase average life expectancy, it remains challenging to fight against health problems due to ageing, especially the Alzheimer’s disease. Recent studies predict that by 2050, the number of people in Europe suffering from dementia will double, reaching more than 16 million people 126 . This figure is somewhat lower accounting only for the EU countries; nevertheless, these projections show that the number of vulnerable adults will rise significantly in the future.

Disabilities are also increasing worldwide 127 . The number of people with disabilities does not only grow because of the increase of life expectancy, but also because of non-communicable diseases, such as the chronic health conditions (diabetes, cardiovascular disease, cancer and mental health disorders) and lifestyle influenced disorders (such as alcohol use or drug addiction). There has been a 13% rise in mental health conditions and substance use disorders in the last decade 128 .

Another aspect, which may also increase the number of vulnerable adults in cross-border cases in the future is the growing mobility of people in the EU. The Joint Research Centre of the European Commission (JRC) identified migration as one of the 12 megatrends of the future 129 . Even though it is challenging to develop a reliable migration forecast, it is reasonable to expect it continues to grow in the future 130 .

It is very challenging to provide a reliable future estimate about the number of vulnerable adults. As regards the estimates based on the number of protection measures ordered by courts, this estimate is complicated by the fact that the number of protection measures does not reflect completely the number of people who are actually supported in the exercise of their legal capacity. For instance, the support is often granted through (confirmed) powers of representation*, which in some Member States do not require any judicial procedure and in others require only a simple confirmation by a court or a competent authority. As explained in Section 2.1.3.1  The number of vulnerable adults in the EU , powers of representation are not always registered. The current number of people protected/supported by powers of representation* is hence impossible to measure, due to the overall absence of statistics. The increase of powers of representation* are often correlated with a decrease of protection measures ordered by courts, which complicates the picture. As regards the high-end estimates based on long-standing health-related limitations in usual activities, it is expected that these limitations will continue to grow, given their current increasing trend, and will reach almost 30 million in 2030 (as compared to 27.4 million in 2020).

The combination of pre-pandemic migration statistics and the projected number of vulnerable adults yielded two sets of estimates for the number of vulnerable adults in need of a cross-border arrangement in 2030: low-end estimate (based on the number of protection measures) of 190 000 adults and high-end estimate of slightly more than 1.1 million adults (based on long-standing health limitations). Both estimates are higher than those calculated for 2020, confirming the assumption that the number of vulnerable adults requiring cross-border protection will rise in the coming years, at least doubling by 2030 (based on the assumptions used). The estimates were developed based on the methodology and assumptions described in Annex 4.

Furthermore, the problems will most likely substantially increase in the absence of an EU action given the growing vulnerable population in cross-border situations. The problem drivers, problems and their consequences, as consistently identified in the literature and by stakeholders, are very likely to persist in the future in the absence of an EU action.

33    Why should the EU act?

3.13.1    Legal basis

The aim of any EU intervention would be to improve the cross-border protection of adults who are unable to protect their interests because of an impairment or insufficiency of their personal faculties. This could be done through harmonisation of the rules on private international law concerning the protection of adults, that is, through the adoption of uniform rules on international jurisdiction and applicable law in cross-border cases and on the mutual recognition and enforcement of protection measures and of rules facilitating cooperation among competent authorities.

Any measures adopted by the EU concerning civil aspects of the cross-border protection of vulnerable adults would not change the substantive and procedural rules of the Member States and would thus respect the Member States’ competence in substantive and procedural law. While the competence on substantive and procedural law concerning the protection of adults lies with Member States (including the definition of key concepts, such as ‘guardianship’, the rules concerning protection measures or concerning the legal effects of powers of representation* granted by an adult in anticipation of their incapacity*), the harmonisation of PIL* rules fall within the scope of the powers vested in the EU by Article 81 TFEU.

Depending on the policy option chosen, several legal bases allow the adoption of measures aimed at improving the cross-border protection of adults. First, an EU legislation on the protection of vulnerable adults could be adopted under Article 81(2) TFEU on measures concerning civil matters with cross‑border implications 131 . The EU has a shared competence with Member States to adopt measures in this area through the ordinary legislative procedure.

Second, in addition to its internal competence, the EU also has external competence in the field of cross‑border protection of vulnerable adults. The EU could thus adopt measures obliging Member States to ratify, ‘in the interest of the Union’ the HCCH 2000 Protection of Adults Convention*. These measures could take the form of a Council decision adopted on the legal basis of Articles 218(5) and (6) and 81(2) TFEU under the consent legislative procedure 132 . The Council decision could set a certain timeframe within which Member States are obliged to ratify the Convention. That external competence exists regardless of the prior adoption of an internal EU legislation on the matter. The Council could thus adopt a decision obliging Member States to ratify the HCCH 2000 Protection of Adults Convention without first adopting an EU legislation on the matter. Where no internal EU legislation is in place, the Union has the competence to authorise Member States to become parties to the Convention. Depending on the determination of the risk of affectation of common rules, this competence may be either shared or exclusive. In both cases, the Commission may propose the adoption of a Council decision based on Article 218(6) TFEU authorising the Member States to become (or remain) parties to the Convention 133 .

Third, the Council decision could be adopted together with (or shortly after) the EU internal legislation on the matter. Where EU internal legislation is in place and its rules may be affected by an external action, the EU has exclusive external competence, meaning that only the EU (as opposed to Member States) may act externally. The subsidiarity principle would not apply to the exercise of such exclusive external competence since Member States would no longer have the capacity to act individually.

3.23.2    Subsidiarity: Necessity and added value of EU action

The problems addressed in this report only concern adults living in the EU who are in cross-border situations. The cross-border EU dimension of the problem is thus given by the very nature of the subject matter. The existing problems have consequences with an EU dimension as they negatively affect the exercise of the right of free movement* by the adults. The problems arise due to: (i) the different national PIL* rules on the protection of vulnerable adults, (ii) the lack of recognition* in one Member State of protection measures* and powers of representation* adopted in another Member State, as well as (iii) limited or non-existent cooperation mechanisms concerning the protection of adults between Member States’ competent authorities. All these problem drivers also have a cross-border EU dimension. The harmonisation of the rules on these matters would thus help to mitigate or prevent the problems affecting adults in cross-border situations and would better safeguard their rights, including fundamental rights.

Such harmonisation cannot be achieved at the level of individual Member States, through an uncoordinated change in national PIL* rules. Such changes to national PIL rules on cross-border cases would not ensure the necessary uniformity of these rules and could not establish cooperation mechanisms among Member States that would facilitate resolution of problematic cases. The need for uniformity of rules (that would be applied in the same manner by the courts and other competent authorities throughout the EU) is at the basis of all other PIL* legislation of the EU and is generally supported by Member States and stakeholders. That uniformity also cannot be achieved by a directive, Commission recommendation or a guidance. In contrast with the leeway left by a directive to Member States to achieve its binding results and with a non-mandatory nature of a recommendation, the uniformity of the PIL rules on the cross-border protection of adults can only be achieved through an EU regulation or the HCCH 2000 Protection of Adults Convention. 134  The application of a single set of rules is a condition for the reciprocity and mutual trust. Similarly, the modernisation of judicial cooperation (digitalisation of communication between competent authorities via a specific decentralised IT system or the use of identical multilingual standard forms) can only be achieved by a directly applicable regulation 135 .

Therefore, the necessary harmonisation and cross-border cooperation can be achieved either through an action at the EU level or through the ratification of the HCCH 2000 Protection of Adults Convention* by those Member States that are not yet a party to the Convention, or a combination of both.

As regards the Convention, the EU institutions, several Member States and the HCCH* have been actively promoting the ratification of the Convention by all Member States for many years 136 . Moreover, Member States’ representatives seem to agree that the Convention is a relatively functional tool for advancing the rights of adults in an international context, in that its PIL* rules function well 137 . Nevertheless, only 11 of the 27 Member States have ratified the Convention. While Member States also largely agreed that it is important that all EU Member States become parties to the Convention to ensure that the protection of adults continues across the EU, many preferred that an initiative is taken at the EU level instead of by individual Member States. The reasons given for this preference were in particular the limited (even if growing) number of cases and a related limited prominence of the topic on the national legislative agenda, lengthy or cumbersome national decision-making processes needed for the ratification of the Convention, or the preference for closer cooperation within the EU through an EU legislation 138 . In addition, those Member States that are already Contracting States to the Convention likewise strongly support that other Member States join the Convention, so that the Convention receives a wider geographical coverage, that reciprocity within the EU is ensured and that more people benefit from the rules included in the Convention. Also these Member States supported that the EU should act concerning the protection of adults in cross-border situations.

An EU intervention appears necessary to ensure that adults are protected in cross-border situations in the EU. This is in particular given (i) the limited success that the mere promotion of the Convention had among EU Member States to date, (ii) the expectation that it could take many years or decades before all Member States become a Contracting Party to the Convention 139 , (iii) the preference of many Member States that action is taken at the EU level, and (iv) some of the regulatory gaps of the Convention stemming from its international nature 140 , which could only be filled by an EU regulation and not by a mere ratification of the Convention (digitalisation, increased cooperation, etc.).

The added value of an EU intervention consisting of an EU legislation and the ratification of the Convention* by all Member States, was also confirmed in the Parliament’s EAVA Study* 141 . The necessity of the EU to act in this area was also supported by the stakeholders consulted in the context of this impact assessment 142 . 

Considering the increasing number of vulnerable adults and the growing mobility within the EU (See Section 2.3 How likely is the problem to persist?), an EU intervention becomes ever more needed to prevent an increase in the magnitude of the problems currently experienced and reported by competent authorities, practitioners, and vulnerable adults and their representatives across the EU.

In conclusion, the objectives of this EU action, by reasons of its scope and effects, would be best achieved at EU level in accordance with the principle of subsidiarity.

44    Objectives: What is to be achieved?

The following objectives reflect the problems identified in Section  2 and set out goals which the policy options aim to achieve. All the objectives contribute to the overall Treaty-based objective of creating, maintaining and developing an area of freedom, security and justice in which the free movement of persons is ensured 143 .

4.14.1    General objectives

The general objective of any EU policy intervention in the field of protection of adults in cross-border situations would be to protect fundamental rights of vulnerable adults (General objective), in line with Article 6 TFEU, the Charter and the UNCRPD*.

In cross-border situations concerning vulnerable adults, this would entail in particular:

·preventing physical and psychological abuse resulting from the lack of protection 144 ;

·preventing dispossession or denial of access to the adult’s property abroad, as well as those of their families and representatives;

·ensuring access to justice 145 ;

·ensuring self-determination and autonomy of adults 146 ;

·facilitating the exercise by adults of the right to free movement 147 .

4.24.2    Specific objectives

The specific objectives that should be achieved through the implementation of one of the policy options are, in cases involving the protection of adults in cross-border cases, to:

·increase legal certainty for the general public and competent authorities involved (Specific objective 1);

·facilitate the cross-border recognition of protection measures and powers of representation* (Specific objective 2);

·make proceedings faster and less expensive (Specific objective 3).

These specific objectives present strong synergies, and their achievement is at least to some extent interdependent. For instance, the facilitation of cross-border recognition of the protection measures would mean a reduction of conflicting rules on recognition which would positively affect both legal certainty and the length and costs of procedures.

The following figure shows the intervention logic underpinning a possible EU intervention.

Figure 2: Intervention Logic (Source: Study by an external contractor*)

Figure 3: Objectives tree (Source: Study by an external contractor*)

55    What are the available policy options?

The following policy options will be considered:

·Option 1:     Baseline scenario

·Option 2:    Council decision obliging Member States to join the Convention* within a certain    timeframe

·Option 3:     EU regulation on the protection of adults

·Option 4:     A combination of Options 2 and 3 (a Council decision and an EU regulation).

5.15.1    What is the baseline from which options are assessed?

Under the baseline scenario (Policy option 1), the EU would make no policy change to address the problems described above. The EU institutions and the HCCH* would continue to encourage Member States to ratify the HCCH 2000 Protection of Adults Convention* but the EU would not take any additional legislative step, nor oblige Member States to ratify the Convention.

Expected impact of the baseline scenario (Policy Option 1)

As explained, Policy option 1 entails maintaining the current situation, without any EU intervention that would go beyond mere promotion of the ratification of the Convention*. The ratification of the Convention would remain optional, resulting in different legal regimes throughout the EU, with some Member States being party to the Convention and others not. Based on the experience with the promotion of the Convention over the past 14 years 148 , it is reasonable to expect that this effort would result in a limited success and would in any case take many years. Therefore, some Member States will be parties to the Convention and others not. The legal framework would remain fragmented. No EU legislation would be adopted.

In such a scenario, the above-mentioned problems would remain and likely increase over time given the trends such as the overall ageing of the population and related prevalence of mental illnesses and disabilities, alongside with the increasing cross-border mobility in the EU and the growing demand for powers of representation* among the general public that may need to circulate among EU Member States in the future. As a result, the consequences of the problems would keep affecting negatively the rights and psycho-social wellbeing of adults, their families and their representatives. The status quo can also perpetuate obstacles to accessing justice that the adults currently face, including inter alia obstacles in accessing legal assistance and representation 149 . This all could put in jeopardy the fundamental rights of adults in cross-border situations and thus risk negatively affecting the EU and MS’ human rights obligations, including under the UNCRPD* 150 . It thus follows that the general objective of safeguarding rights, including fundamental rights, of vulnerable adults and the specific objectives of the initiative would not be achieved at all or only be achieved to a very limited extent 151 . This is also the view shared by the stakeholders consulted in the context of the preparation of this impact assessment 152 , as illustrated in Figure  4 : The effectiveness of the baseline scenario (Policy Option 1) in achieving the policy objectives of the PA initiative* (Source: Study by an external contractor*) below. 

Figure 4: The effectiveness of the baseline scenario (Policy Option 1) in achieving the policy objectives of the PA initiative* (Source: Study by an external contractor*)

The persisting difficulties caused by the fragmentation of PIL* rules concerning the protection of adults in cross-border situations would also continue to cause delays in the procedures and generate procedural costs* for all the persons and competent authorities involved. These procedural costs*, borne by adults and competent authorities were calculated on the basis of the methodology detailed in Annex 4 using a set of eight scenarios (below) reflecting a variety of situations and the resulting costs 153 . 

Table 1: Costs borne by adults in cross-border context: current situation 154 - illustrations per various scenarios

Based on the above findings, the baseline scenario would not adequately address the current and upcoming need to protect adults in the EU 156 and would not tackle the existing problem drivers linked with the divergent PIL rules. It should thus be discarded as an option.

Hypothetically, even in the unlikely scenario that all Member States join the Convention* swiftly, certain problems and their drivers would still be perpetuated since the rules in the Convention do not address all of them. These problems include for instance the missed opportunity of modernisation and adaptation of the rules in the Convention for the EU context as described in Boxes 1 and 2 below and in Annex 6. For instance, in the absence of EU rules on the cross-border protection of adults, this area will not be digitalised 157 . Under this scenario, the CJEU would not have jurisdiction to provide uniform interpretation of the Convention.

5.25.2    Description of the policy options

Several policy options can be envisaged to meet the objectives of an EU intervention set out above. Given the available legal basis dealing with civil matters with cross-border implications (see Section 3) and the existing problem drivers (see Section 2), all policy options (with the exception of the baseline scenario) would provide uniform PIL* rules that would apply in cross-border situations concerning vulnerable adults. They would thus lay down rules governing international jurisdiction, law applicable to vulnerable adults in cross-border situations, and rules on the recognition of protection measures* and powers of representation*. All policy options would in principle apply to all Member States, except Denmark 158 . The rules envisaged in the policy options would apply to adults habitually residing in the EU, regardless of their nationality. Policy Options 2 and 4 would also cover adults habitually living in other Contracting States to the Convention.

The main difference between the available policy options lies in their territorial and material scope (i.e. in relation to which countries the rules would apply and how far-reaching these rules would be).

5.2.15.2.1    Option 2: Mandatory ratification of the Convention by Member States (‘PO2’)

This policy option would aim to ensure that all Member States become parties to the Convention* within a certain time. Under this policy option, the Commission would prepare a proposal for a Council decision that, once adopted, would oblige Member States that have not yet done so to ratify, or accede to, the Convention ‘in the interest of the Union’ within the timeframe agreed in the Council decision. Member States that are already party to the Convention would be authorised to remain parties.

As a result, the rules contained in the Convention would apply both in the EU and vis-à‑vis other non‑EU Contracting Parties 159  (wide territorial scope). No additional rules would be adopted at the EU level, so the new rules applicable in the EU would be limited to those already included in the Convention (limited material scope). Option 2 ensures that the Convention becomes applicable between all Member States and, compared to Options 3 and 4, it represents the smallest intervention by the EU in the area.

It should nevertheless be noted that Option 2 does not in principle exclude a later adoption of an EU regulation, after Member States will have learnt from the lessons of a general implementation of the Convention in the EU. However, this staged approach was discarded as a specific option under this impact assessment (see related explanations in Section 5.3).

5.2.25.2.2    Option 3: An EU Regulation (‘PO3’)

Under this policy option, the EU would adopt a regulation that would harmonise the PIL* rules concerning the protection of adults. The PIL rules (e.g. rules on jurisdiction and applicable law) included in such a regulation would largely replicate those included in the Convention*; however, they could be improved or adapted to the EU legal landscape whenever desirable (wide material scope). In addition, the regulation would simplify the rules applying to recognition and enforcement, on the basis of mutual trust, and would completely modernise cooperation between competent authorities.

In contrast to Option 2, the rules contained in an EU regulation would apply only among EU Member States (limited territorial scope). There would be no compulsory ratification of the Convention. The Member States that are already a party to the Convention would thus continue to apply their rules vis-à-vis other non-EU Contracting Parties but would apply the EU regulation vis-à-vis EU Member States 165 . The remaining Member States that are not Contracting Parties to the Convention would have no legal framework with regard to non-EU Member States.

5.2.35.2.3    Option 4: Combined option (Ratification of the Convention* and the adoption of the EU Regulation) (‘PO4’) 

Policy Option 4 would consist in adopting both (i) the Council decision obliging Member States to join the Convention* within a certain timeframe and (ii) the EU regulation including the rules mentioned in the Box 1 and 2 above. Through the combination of both internal and external EU action, vulnerable adults living in the EU would enjoy the widest possible protection – both in the EU and other Contracting States to the Convention (wide territorial scope). In addition, the rules applicable among Member States would build on the rules contained in the Convention, thus further facilitating their functioning (wide material scope).

The combination of external action and an EU internal legislation is not new in European private international law. Prominent examples of this approach are found in the law of international child abduction and the law of maintenance obligations 166 . The combination of universal and regional rules rests on the idea that the EU may want to espouse a set of worldwide standards (the Convention*), but implement them regionally in accordance with its own values and in a manner that reflects the high degree of mutual trust that exists between its Member States 167 .

5.35.3    Discarded policy options

It was explained above (section 3), why a directive or a recommendation are not a suitable to achieve the objectives of the initiative given the need for uniform rules that would be consistently applied throughout the EU.

In addition, it could be possible to consider a staged approach – first a ratification of the Convention by all Member States, followed later by an EU regulation. In fact, this staged approach is not excluded by Option 2 which suggests only the ratification of the Convention at this stage but does not rule out the possibility of EU Regulation at a later stage. However, this staged approach would have marked negative impacts in terms of adjustment costs incurred twice, opportunity missed to modernise judicial cooperation and to establish interoperable IT systems, as well as multiple changes of rules over time undermining legal certainty 168 . Given the hypothetical nature and the hypothetical content of a postponed Regulation in that scenario, this approach is not specifically analysed in this report.

It could also be conceivable to propose a limited EU initiative with a narrower scope than the Convention. However, this was considered as counterproductive, in view of the existence of an efficient international instrument in the area, to which 11 Member States are already party. None of the stakeholders or the experts consulted have even contemplated an alternative to the ratification of the Convention and/or to a similar EU Regulation. That option would require the use of resources by the EU and Member States, to eventually fall short of the achievements of the HCCH 2000 Protection of Adults Convention.

66    What are the impacts of the policy options?

6.16.1    Achievement of policy objectives by the policy options

It should first be examined whether the policy options are ‘fit for purpose’, that is, whether they achieve the General Policy Objective of protecting rights, including fundamental rights, of vulnerable adults as well as the Specific Objectives 1, 2 and 3 169 .

The achievement of the policy objectives by Option 1 (baseline scenario) would largely depend on the rate at which Member States take up the Convention*. It was described above that the prospects that all Member States become Contracting Parties to the Convention soon are rather unrealistic, thus leading to limited achievement of the policy objectives and to the impacts described above in the Section Expected impact of the baseline scenario (Policy Option 1). Policy option 1 was thus discarded as it does not satisfactorily achieve the objectives.

Option 2 would achieve each of the specific objectives but only to some extent. The compulsory ratification of the HCCH 2000 Protection of Adults Convention* would increase legal certainty in cross‑border situations within the EU and with non-EU Contracting States. Since the rules on jurisdiction, applicable law and on recognition and enforcement would be common to all Member States, all vulnerable adults, their families and representatives could be aware of the rules applicable to the cross‑border situations they might face. Rules requiring Contracting States to establish simple and rapid enforcement procedures would tend to make proceedings faster and less expensive. The ratification of the Convention would lead to easier cooperation between Member States’ competent authorities, especially through Central Authorities*. Nevertheless, the opportunity to modernise and complement the rules in the Convention to fully achieve the objectives of the initiative would be missed as no EU rules complementing the Convention would be adopted under this policy option. In addition, the experience of some competent authorities with the Convention shows that even under the Convention, procedures remain expensive and time-consuming and that cooperation between Member States’ competent authorities is not used to the full extent possible.

This conclusion was confirmed by the stakeholder consultations conducted in the context of this impact assessment where the largest majority of stakeholders opined that the PO2 would be only somewhat effective in achieving the policy objectives 170 .

Figure 5: The effectiveness of the PO2 in achieving the policy objectives of the PA initiative* as perceived by stakeholders (Source: Study by an external contractor*)

Option 3 would meet the specific objectives to a greater extent than PO2 since all the basic rules of the Convention* would be included in the regulation and more provisions would be added to further streamline the rules. The additional rules (e.g. rules concerning the limitation of grounds for non‑recognition or on the abolition of exequatur) would facilitate the circulation of protection measures, and powers of representation*. With these additional elements and more extensive legal aid, proceedings would become much less expensive for adults and their representatives. They would also be faster thanks to the multilingual European Certificates of Representation with presumed validity, rapid and efficient digital communication, and cross‑border access to registries of protection measures and (confirmed) powers of representation. However, this option also has some shortcomings. These objectives would only be met within the EU, meaning that the current situation and related problems would remain unchanged when vulnerable adults find themselves in cross-border situations between an EU Member State that has not ratified the Convention* and other non-EU countries. It would also create two substantially different legal regimes – under the Convention and the EU regulation. In practice, in the States applying both the EU regulation and the Convention, legal practitioners would have to distinguish which of the two instruments should be used on the basis of a complex set of criteria: the adult’s habitual residence or nationality or the location of his or her property. Since the criteria (in particular habitual residence) may change in time, this determination could be rather cumbersome in practice. This could affect legal certainty.

Figure 6: The effectiveness of the PO3 in achieving the policy objectives of the PA initiative* as perceived by stakeholders (Source: Study by an external contractor*)

In Option 4, an EU regulation comparable to the one proposed in Option 3 would become applicable within the EU, and therefore would respond to the specific objectives in the same way. In this ‘package’ option however, the regulation would only complement the Convention*. Without going into the details of the legislative technique, this option would make the Convention’s provisions on jurisdiction and applicable law applicable to all cross-border cases (identical rules within and outside the EU), and at the same time establish simplified rules for recognition and cooperation for EU Member States. In addition to those effects, EU Member States would be obliged to ratify the HCCH 2000 Protection of Adults Convention*, which would ensure a greater legal certainty, the facilitation of the recognition of protection measures, as well as faster and less expensive proceedings in relation to cross-border cases involving a non-EU Contracting States to the Convention 171 .

Figure 7: The effectiveness of the PO4 in achieving the policy objectives of the PA initiative* as perceived by stakeholders (Source: Study by an external contractor*)

In conclusion, policy options 2, 3 and 4 meet the objectives and can thus be analysed. 

The degree of fulfilment of the general and specific objectives differs depending on the options proposed. The more extensively the specific objectives are achieved by each policy option, to the greatest extent are rights protected, including fundamental rights of the persons concerned.

-The first Special objective of increasing the level of legal certainty is achieved most satisfactorily under Option 4. Options 1 and 2 enable such an increase because of the common rules under the Convention, though at a much slower pace under Option 1. These two options do not fully achieve legal certainty due to the areas of unclarity and the gaps in the rules set by the Convention. Option 3 fully achieves legal certainty, but only provided that the basic rules laid down in the regulation are aligned to those of the Convention. Option 4 achieves the highest increase in legal certainty as it ensures a full harmonisation of the rules across Member States both within the EU and vis-à‑vis non-EU Contracting Parties to the Convention.

-The second Special objective of facilitating the recognition of protection measures and powers of representation is best achieved under Options 3 and 4. Options 1 and 2 partially achieve the objective, mainly because the Convention harmonises and simplifies the recognition of protection measures. Options 3 and 4 both fully achieve the objective, as not only all types of measures would be covered but also    recognition* of powers of representation. An EU regulation under PO3 and 4 would also simplify and streamline the rules, thus maximising the positive effect on predictability of these options 172 . Option 4 would in addition expand the scope of recognition to non-EU Contracting Parties*.

-The third Special objective of making proceedings faster and less expensive is achieved the most optimally under Options 3 and 4. The objective is partially achieved under Option 2, and to a much lesser extent under Option 1: whereas the minimum degree of harmonisation of the rules across the EU and the setup of Central Authorities* in all Member States would most likely speed up procedures and reduce the number of unnecessary proceedings (thus reducing costs), experience shows that some procedures remain expensive, and that cooperation between Contracting States’ competent authorities remains difficult. Option 3, and even more Option 4, provide for further streamlining in that regard with additional mechanisms for cooperation.

Based on the above, Options 3 and 4 achieve the objectives to the highest extent, with Option 4 being the most effective in achieving the intended objectives. 

6.26.2    Impacts of the Policy Options 2, 3 and 4

This section assesses the impact of all the policy options that envisage an EU intervention (PO2, PO3 and PO4). Impacts of the baseline scenario (PO1) were described above.

The following main impacts will be assessed: (1) legal impacts (impact on rights of vulnerable adults and impact on legal environment); (2) social impacts (including the impact on emotional and psychological wellbeing of adults and their families, their economic welfare and equality); (3) economic impacts (including both costs implications and macroeconomic impacts) and (4) impacts on the digitalisation of justice. Other minor impacts were also assessed (such as impact on non-EU States or impact on SDGs). All the impacts described below are intended ones 173 . No relevant environmental impact or impact on competitiveness are expected. The analysis of impacts also includes a foresight component as the baseline against which the policy options are assessed took into account the future demographic changes in the EU (aging of the population and increasing mobility) and the likelihood that other non-EU States join the Convention in the future 174 .

While the biggest difference with the current status quo would be felt by adults* who are the main target group of the policy intervention, other stakeholders would also be positively affected by the policy options. These include for instance: families and representatives of adults, competent authorities of Member States and all legal professionals dealing with vulnerable adults. In addition, other non‑judicial actors (such as medical staff, social workers, banks and insurance companies) would indirectly benefit from the simplification of the legal context and from the tools that would facilitate their work in cross-border cases (such as the ECR* under some POs) 175 .

The impacts would be distributed among Member States since all Member States would be able to benefit from the uniform harmonised rules covering the entire EU (or under some options even a wider geographical area). However, adjustment costs under PO2 and 4 may be comparatively higher for those Member States that are not Contracting States to the Convention* yet and would have to put in place processes and appoint authorities to comply with the rules in the Convention. Under PO3 and 4, all Member States would bear some costs; however, adjustment costs borne by Member States that are not Contracting States yet would be higher than for Contracting States 176 .

6.2.16.2.1    Legal impacts 

Legal impacts can be divided into two categories: (i) legal impact on adults and their families; and (ii) impact on the legal environment.

6.2.1.1Legal impact on adults, including on their fundamental rights

By harmonising the PIL* rules applicable to the protection of adults in the EU and facilitating cooperation in this field, the POs 2, 3 and 4 would help to solve the existing problems faced by adults* and ensure that the negative effects on their rights (as described in Section 2) do not materialise. For instance, by facilitating the recognition abroad of powers of representation* drawn up by the adults*, the adults’ right to self‑determination and autonomy would be preserved in cross-border situations. Problems concerning their access to justice (including in accessing legal assistance and representation) would also be mitigated through (i) the increased legal certainty and (ii) the streamlined and less burdensome and costly procedures resulting from the adoption of any policy option 177 . Similarly, as the problems experienced by adults in cross-border situations may deter them from exercising their right to free movement (see Section 2), the policy options would have a positive impact on the right to free movement. As a result of the policy intervention, the fundamental rights of adults would thus be more protected in cross-border situations.

Even though it is not possible to quantify the impact of policy options on rights of adults*, including their fundamental rights, this impact would be one of the most significant benefits of the PA initiative*. While all policy options have positive legal impacts, those policy options with a broader material and territorial scope cover more adults and/or facilitate their cross-border dealings to greater extent and as such have more positive legal impacts than those with a more limited scope. Therefore, in line with this assessment, PO4 (with wide territorial and wide material scope) would have the highest positive legal impacts.

6.2.1.2Impact on legal environment 

As the policy options would provide uniform PIL* rules for the protection of adults in the EU, discussed at the EJN-civil* meetings and possibly interpreted by the CJEU, they would contribute to the consistency of decisions and uniform application of the rules among Member States (by avoiding conflicting decisions given by courts in different Member States) and facilitate the mutual recognition of protection measures and of powers of representation*. The new rules would also have to be interpreted in light of the UNCRPD*, thus further contributing to the harmony of decisions and providing a concrete way of implementing the UNCRPD. Besides, they would also simplify the current patchwork of rules and increase legal predictability for all parties concerned, including for competent authorities. Ultimately, the policy options would ‘build bridges’ between legal systems and increase mutual trust among Member States in matters of the protection of adults.

6.2.26.2.2    Social impacts

Protection measures and powers of representation govern the representation/support of adults in various personal and property matters with a view to protecting their interests. Their improved circulation among Member States under POs 2, 3 and 4 could thus ensure that the adults’ protection is not disregarded in cross-border situations. This would in turn have positive impact on wellbeing of these adults and other positive social and psychological impacts.

The presence of effective support and protection of vulnerable adults positively impacts their well‑being, equality and psychological and mental health. Based on literature 178 and stakeholder consultations, the lack of consistency concerning protection measures, the difficulty in identifying them, as well as the lack of access to justice and risk of financial dispossession are factors that can lead to a detrimental impact on the vulnerable person’s well-being. It thus follows that an increase in legal certainty and the cross-border recognition of protection measures concerning adults that would be achieved through the adoption of uniform PIL* rules would have a positive impact on the general well-being of the adults. The swift recognition of protection measures concerning property management would also protect the financial interests of the adult in cross-border situations and thus have positive effects on their welfare and social inclusion. As regards the psychological dimension, the policy options would diminish emotional distress thanks to the increased legal certainty and the reduction of problems with the recognition of protection measures that they will bring about. The emotional dimension is also particularly relevant as regards families of vulnerable adults given the increased strain, expenses and uncertainty often placed on these family members when dealing with the protection measures abroad.

Given their positive social impacts, the POs 2, 3 and 4 would be in line with the goals of the European Pillar of Social Rights , the Strategy for the Rights of Persons with Disabilities and the commitment of the EU to scale up its action in the area.

The above-described social impacts are highly individual, and thus depend on the situation of each adult and differ in each jurisdiction. Therefore, the approach was taken in this report not to quantify the social impacts 179 . However, their importance in individual cases is always appreciable. While all policy options have positive social impacts, those policy options with a broader material and territorial scope cover more adults and/or further facilitate their cross-border dealings and as such have more positive social impacts than those with a more limited scope. Therefore, in line with this assessment, PO4 (with wide territorial and wide material scope) would have the highest positive social impacts.

6.2.36.2.3    Economic impacts 

The following section assesses economic impacts of the POs 2, 3 and 4 and quantifies them to the extent possible. However, it should be noted that these quantifications are a result of numerous assumptions and simplifications that needed to be made in the absence of data and statistics on the scale of the problem and on the costs inherent to these problems. For details, see Annex 1 and Annex 4. The resulting estimates should thus be taken with caution.

6.2.3.1Impact on costs and administrative burden

As a minimum, POs 2, 3 and 4 would provide uniform PIL* rules concerning the protection of adults. These uniform rules would significantly simplify the current system of diverse (and often contradictory) national PIL* rules on the matter. Due to this simplification and increased consistency and clarity, most affected stakeholder groups, in particular vulnerable adults (including their families and representatives) and competent authorities and practitioners, would experience considerable cost savings as compared to the baseline.

6.2.3.1.16.2.3.1.1    Procedural costs borne by vulnerable adults, their families and representatives & by competent authorities

Under POs 2, 3 and 4, vulnerable adults, their families and representatives would benefit from savings on costs of various arrangements, including medical assessment, travel, sworn translations of documents, and necessity of hiring legal assistance. Member States’ competent authorities would also benefit from savings on labour costs related to the shorter duration of judicial or administrative procedures, avoidance of duplicate procedures, better access to cross-border information, better international cooperation and digitalisation (including the new possibilities of accessing the interconnected registers, of digital communication and of the European Certificate of Representation with presumed validity throughout the EU). Competent authorities would likewise benefit from the simplification of the PIL* rules. As an effect of the clearer legal framework and the lower incidence of court litigation, POs 2, 3 and 4 are estimated to generate a reduction in the time and effort needed by competent authorities to process cross-border cases concerning the protection of adults.

Table 2: Overview of costs related to each policy option

To quantify these costs savings on ‘procedural costs’ for adults and competent authorities, the same set of scenarios described above was used (see the details in Table 1). The table below shows the calculation of average cost savings per vulnerable adult in cross-border situation under POs3 and 4.

Table 3: Total procedural cost savings per case averaged across all Member States in Option 3 and 4 (EUR) - Source: Study by external contractor*

It follows that for each case of cross-border protection, the savings made by an adult, a representative or the family of the adult in PO3 and PO4 range, on average, from EUR 40 to EUR 9 000.

6.2.3.1.26.2.3.1.2    Costs resulting from a possible EU intervention – borne by Member States

Notably, the various policy options would introduce no new costs or administrative burden to be borne by vulnerable adults, their representatives or families.

However, unlike individuals, Member States’ competent authorities would have to also bear certain adjustment costs* generated by the various policy options. Some of these adjustment costs would be one-off and some recurrent.

-For instance, one-off costs for Member States could arise for the introduction of the new PIL* rules in matters concerning the protection of adults with cross‑border implications. These costs would however be virtually non-existent for those Member States that are already Contracting Parties*. Under POs 2 and 4, this would also include the ratification of the Convention* by Member States that are not Contracting States. In contrast, none of the policy options would oblige Member States to change their national substantive law* in this area 180 .

-As is the case with any legislation, one-off and recurrent costs would also arise for the familiarisation with a new legal framework and regular training of judges and legal professionals. Depending on the policy option, these would be significantly lower (or none in case of PO2 in Member States that are Contracting States). The full realisation of the benefits from the European Certificate of Representation under POs 3 and 4 may also require some accompanying measures, such as communication campaigns.

-Under POs 2, 3 and 4, fifteen Member States would have to set up Central Authorities* that will coordinate and facilitate the implementation of the Convention*. These costs were estimated as limited, based on the experience with setting up these authorities in the present Contracting States.

-PO3 and 4 would include provisions that would extend legal aid to additional categories of formalities in cross-border situations that currently cannot benefit from the national or EU legal aid arrangements. This would entail additional costs for the provision of such aid. However, quantitative data assessing such costs are very limited. It is challenging to estimate in how many cross-border cases of adults it would actually apply. Nevertheless, it is not expected that the provision of legal aid in some cross-border cases would create a significant economic burden on the public finances of Member States considering the small number of vulnerable adults in cross-border situations estimated, and the limited categories of additional costs covered 181 .

-Under POs 3 and 4, Member States would incur additional IT-related costs for implementing the provisions concerning the digitalisation of this area 182 (such as the possibilities for issuing electronic European Certificates of Representation, and/or for electronic communication channels). With respect to the latter, and in line with the approach for digitalising other areas of civil justice, the European Commission could provide a common reference implementation software solution. A decentralised IT system is already adopted for the purposes of other instruments 183 . Moreover, the establishment of a European electronic access point has been proposed under the digitalisation proposal* for certain areas of cross-border judicial cooperation in civil matters 184 . This IT infrastructure developed for the purposes of other legal acts could easily be built upon in order to support the digitalisation of a regulation on the protection of adults. In this regard, significant costs savings are expected given the economies of scale. Moreover, Member States’ competent authorities could benefit from grants under current and future EU programmes 185 .

Additional IT‑related adjustment costs* would also include the regular maintenance costs for the digital solutions established through the regulation. The PO3 and 4 could also envisage the interconnection of national registers concerning protection measures* and (confirmed) powers of representation*. This would entail making existing registers interoperable for the interconnection, but in some Member States also creating protection registers or digitalising them.

While the majority of costs listed above are not significant, the IT-related costs for the interconnection of national registers are comparatively higher. They are thus quantified separately from the remainder of the costs to ensure clarity 186 (see Annex 4).

In addition to the adjustment costs*, additional enforcement costs* associated with activities such as monitoring of the application of the legislation or costs related to international cooperation within the framework of the Convention can be expected*. In particular, under POs 2, 3 and 4, sufficient resources would need to be provided to the Central Authorities* to ensure their effective functioning. Related costs would however not be significant since in practice the majority of Contracting States to the Convention attributed the function of a Central Authority* to their ministries of justice without further requirements in terms of additional staffing 187 . Relying on the data provided by several Member States, an average annual cost of EUR 10 562 per Member State for running the Central Authority* was estimated (methodology detailed in Annex 4). Of course, these costs would be outweighed by the above‑described cost savings on procedural costs* by competent authorities.

Table 4: Overview of costs for each policy option

Table 5: Comparison of costs and benefits per option (thousands EUR) 190  (Source: Study by an external contractor*)

According to the estimates detailed in Annex 4, Option 2 would result in net savings of ca. EUR 827 million in the perspective of 10 years. Options 3 and 4 would result in much higher savings, in the range of EUR 2.46 - 2.54 billion, with Option 4 being slightly more beneficial than Option 3 due to higher savings on procedural costs*.

-Costs resulting from a possible EU intervention – borne by the European Commission

The digitalisation of the area of the protection of adults under PO3 and PO4 would require investment in IT infrastructure. In line with the approach for digitalising other areas of civil justice, the Commission could provide Member States’ competent authorities with a common reference implementation software solution to facilitate the interoperable communication between competent authorities. The existing decentralised IT system would likely require certain adjustments. Likewise, the European electronic access point on the e-Justice Portal* would require modifications to enable digital communication between citizens and competent authorities in the area of the adult’s protection. While at this stage it is not feasible to calculate the costs in this regard, they are expected to be comparable to those arising in relation to the digitalisation of other civil-justice instruments 192 .

6.2.3.2Macroeconomic impacts

Given the relatively limited size of the population of vulnerable adults who are in cross‑border situations, the different policy options are unlikely to have any substantial macro-economic impacts across the Member States.

6.2.46.2.4    Digitalisation of justice and data protection impacts

The HCCH 2000 Protection of Adults Convention* does not include any provisions concerning digital communication or other digital tools. The PO2 (envisaging the compulsory ratification of the Convention by Member States) would thus not have any impact on digitalisation of the area.

In contrast, an EU regulation included under POs 3 and 4 would be coherent with the ‘digital by default’ principle and the EU policy on digitalisation of justice 193 . In particular, the regulation would provide for specific provisions on digitalisation of the cross-border procedures involving the protection of adults, as described in Box 2, while building on the precedents in that area 194 . These rules would include the mandatory use of digital communication channels for competent authorities in the area of adult protection, digital multilingual standard forms, and an electronic portal for the general public to have the possibility to make their requests in a digital way, including with regard to the ECR*.

In addition, the regulation would propose interconnection of national registers of protection measures* and powers of representation*. This would entail, in several Member States, first setting up such national registers or digitalising the existing ones 195 . Such interconnection would make it easier to obtain information about the legal capacity of adults to act in various cross-border contexts.

The introduction of the new EU digital rules concerning the protection of adults could also have the indirect effect to serve as a stimulus for the digitalisation of these processes at the Member States’ level also in cases without a cross-border dimension. The digitalisation of the procedures would further result in a higher security of the communication and exchange of data and increased transparency as to the validity of the documents submitted when seeking recognition.

Overall, the digitalisation measures under POs 3 and 4 would positively contribute to the EU’s objectives on the digitalisation of justice.

In addition, a regulation under POs 3 and 4 would provide a legal basis for the processing of personal data of natural persons, especially those of protected adults. The protection of such data would be ensured in line with the General Data Protection Regulation* and EUDPR*. The Member States’ competent authorities and, in some cases 196 , the European Commission would act as data controllers responsible for the lawfulness of the processing. The Regulation would observe the principles applicable to the processing of personal data, including data minimisation 197 and purpose limitation. For details concerning data protection impacts of the Regulation, see Annex 6.

6.2.56.2.5    Impact on non-EU countries

The Policy options 2 and 4 also have a distinctive positive impact on non-EU countries. These policy options envisage that all EU Member States become a party to the HCCH 2000 Protection of Adults Convention*. First, other non-EU Contracting Parties to the Convention (Switzerland, the United Kingdom (in respect to Scotland only) and Monaco) would thus immediately benefit from this enlarged geographical coverage of the rules included in the Convention. As a result, adults living in the EU that have a connection with these States (e.g. owning a property in these States) would benefit from the improved protection of their rights. Adults living in these States who also have a link with the EU would likewise benefit from the uniform rules introduced by the Convention.

The ratification of the Convention by all Member States would also likely encourage other non-EU States to follow suit and join the Convention 198 . In fact, once a certain matter has become an EU policy area, it can also be promoted by the EU vis-à-vis non-EU countries 199 .

6.2.66.2.6    Impact on Sustainable Development Goals (SDGs)

The impacts of the policy options on Sustainable Development Goal 1 (reduction of poverty), Goal 3 (access to health), Goal 10 (reduction of inequalities) and Goal 16 (peace and justice) are directly linked to the social and legal impacts described above. Consequently, Options 3 and 4 would have the strongest positive impact on reaching these SDGs.

77    How do the options compare?

The comparison considers POs 2, 3 and 4, while comparing them with the baseline (PO1). The options are mutually exclusive, and their potential combination is therefore not taken into consideration for the purposes of the comparison.

Based on the detailed assessment of the policy options above, the table below provides an overview of the rating of each policy option. In the multi-criteria decision analysis, a score was given to each policy option, theoretically going from ‘---’ (negative impact) to ‘+++’ (positive impact) 200 based on three criteria: (i) effectiveness in achieving the policy objectives, (ii) efficiency in terms of costs and benefits from the option, (iii) coherence of the option with existing policy initiatives and legal frameworks, in particular in the area of fundamental rights and UNCRPD*.

The first criterion, effectiveness was defined as the extent to which the policy options achieve the policy objectives of the PA initiative*. The assessment of effectiveness was thus detailed in Section 6.1 on the achievement of policy objectives. To avoid double counting, the extent to which policy options achieve the General objective of protecting fundamental rights of vulnerable adults and legal impacts of the options have been assessed together under the coherence criterion. The second criterion, efficiency was defined as the extent to which the benefits of the policy option exceed its costs. It includes the indicators such as procedural costs*, adjustment costs*, and other economic impacts. For this criterion the different signs of the scores should be read as benefits and costs. Finally, the last criterion of coherence assesses to which extent the policy options are aligned with other EU instruments, law and policies. This criterion includes: (i) the legal impact of policy options on fundamental rights of vulnerable adults, including the right to free movement as these are protected under EU law, in particular the Charter, the Treaties and the UNCRPD*; (ii) EU policies aimed at increasing the protection of vulnerable adults and their fundamental rights, such as the Disability Strategy; (iii) synergies with the EU policy on digitalisation; and (iv) existing EU acquis in the area of civil justice. 201  

Table 6: Comparison of policy options

The total corresponds to the sum of ‘+’ and ‘-’, where one + equals 1 point, +/- equals 0 points, and one ‘–’ equals -1 point.

Based on the analysis carried out above, Option 4 seems to be the most satisfactory option. This is also consistent with the views of most stakeholders. For instance, five out of six participants in one focus group* 202 indicated Option 4 as the preferred option.

In the above matrix, all assessment criteria were given the same importance (weight). Nevertheless, the importance given to each of these criteria can vary. As an alternative, a greater weight could be given to the criterion of coherence, which includes the crucial assessment of the extent to which each of the policy options protects the fundamental rights of the adults. If the criterion of coherence and impact on fundamental rights was given a greater weight, the results of the analysis would nevertheless remain the same, with PO4 as the preferred option.

88    Preferred option

Based on the above analysis, Policy Option 4, whereby the EU would adopt both (i) the Council decision obliging Member States to ratify the Convention* within a specific timeframe and (ii) a Regulation complementing the rules of the Convention*, is the preferred option. 

In PO4, all problems described in Section 2 (lack of legal certainty, lengthy and costly proceedings, and non-recognition of protection measures* and powers of representation*) would be solved to the extent possible, while avoiding the respective limitations of PO2 and PO3. Since it is practically and legally impossible to make a clear distinction between intra-EU and extra-EU situations, PO4 would maximise the geographical scope of the initiative, and safeguard the fundamental rights of adults* on the long term regardless of whether their trajectory/assets involves non-EU States. Since a part of the rules of the Convention* would apply to the EU as well, merely being supplemented in certain aspects at EU level, this option also ensures that practitioners apply a single, simplified set of rules in EU and non-EU cases. The regulation would provide for the establishment of a European Certificate of Representation (ECR*), substantially simplifying the proof of the powers entrusted to a representative. It would also modernise the cross-border cooperation and allow the use of tools that have proven their effectiveness in other areas, such as the EJN-civil* or the e-Justice Portal*. All limitations in the operation of the Convention* that have been observed would be overcome within the EU. The CJEU would have jurisdiction to interpret both the EU regulation and the Convention, if necessary, thus increasing even more legal certainty for adults.

The preferred Policy Option 4 will not create any new administrative requirements on individuals and will thus add no additional administrative costs for individuals. On the contrary, Option 4 will significantly reduce the administrative costs for individuals 203 . The objectives of the ‘one in, one out’ approach are thus fully achieved by the initiative. (For details, see the OIOO* methodology in Annex 3 and at the end of Annex 4.).

In PO4, the EU action would comply with the principles of subsidiarity, as detailed in Section 3. In fact, this option is the only one which can at the same time (i) meet the strong expectations of many Member States already Contracting Party to the Convention and stakeholders not to derogate from the rules of the Convention* (in particular on jurisdiction and applicable law) 204 , and (ii) provide adults* with the tool that was unanimously supported/requested by States and stakeholders during the consultations: the electronic multilingual ECR*. The principle of subsidiarity is therefore maximised in PO4. The ratification of the Convention* would in addition meet the general objective expressed by Member States to support a multilateral approach in international cooperation in the field of justice 205 .The complementing provisions on cooperation provided for in a Regulation, in particular the possibility to have an EU document asserting their rights would be a game changer for all adults* in cross-border situations.

In terms of proportionality, both PO2 and PO1 achieve the objectives of the initiative only to a limited extent. The preferred option (PO4) on the other hand is the most ambitious policy option, and the one that most modifies the current legal framework. However, taking into account the primary objective of protection of fundamental rights of adults, and the positive balance in terms of costs engaged, the preferred option remains proportionate. Indeed, the substantive scope of the preferred option would be limited to what is necessary to achieve the policy objectives, in particular to protect the rights, including fundamental rights, of adults in cross-border situations. For instance, given the lack of evidence of practical problems met by adults in cases involving the law applicable to advance directives* or ex lege* representation, which were mainly mentioned by the academia, the PA initiative* does not foresee additional EU provisions on applicable law in that respect. Another example of proportionality is that it would be optional for adults and their representatives whether they request the uniform European Certificate of Representation that would be introduced by PO4 206 . In addition, the costs for competent authorities anticipated in PO4 (through the interconnection of registers) would be offset by the corresponding reduction of procedural costs* for adults. Furthermore, it must be underlined that, in line with the development of e-government (digitalisation of public services) in general 207 , and digitalisation of justice in particular, the creation and/or digitalisation of national registers of protection measures and (confirmed) powers of representation will most likely be undertaken by Member States, independently of this initiative 208 . They will hence only be accelerated by the initiative and streamlined to ensure interoperability. In that sense, as far as digitalisation and interconnection of registers is concerned, PO4 would only accelerate an inevitable and expected development.

Under PO4, all adults* would benefit from increased legal certainty and would feel safe travelling or moving abroad. Vulnerable adults would no longer (or to a much lesser extent) need to invest in litigation or to consult a lawyer/notary to have a protection measure recognised in another Member State (and in other non-EU Contracting States to the Convention). Thanks to the ECR*, the adults’ representatives would be able to manage the adults’ assets abroad more easily, e.g., access their bank account or sell their property abroad when needed. In addition, banks, insurance companies, medical staff, social workers or real estate agents would not face uncertainty as to the legal validity of foreign documents.

Competent authorities (such as notaries) and lawyers could give their clients reliable advice, and access to foreign law when necessary. Similarly, courts and competent authorities would apply a consistent and uniform legal framework throughout the EU, which would decrease their workload by reducing the length of cross‑border proceedings and the complexity of judicial cooperation. They would communicate with each other using electronic channels through EU multilingual forms, streamlining their work in cross-border cases and reducing their administrative burden. They would be better trained and would have, in case of a problem, the possibility to ask Central Authorities* and refer a question to the EJN-civil*. Relevant competent authorities in the EU could access the information on the legal capacity of an individual with a connection to a foreign State, and ensure that the appropriate support is provided.

Finally, the HCCH 2000 Protection of Adults Convention* would be implemented in line with the UNCRPD* 209 . Given the expected very positive impacts of the preferred option on the rights of adults in cross‑border situations, the preferred option would significantly improve the protection of fundamental rights of vulnerable adults (such as equality before the law, access to justice, self‑determination, right to property and to free movement).

99    How will actual impacts be monitored and evaluated?

The legal instruments adopted under the preferred policy option (i.e. the combination of the EU Regulation on PA* and the Council decision on adults*) would complement each other, the monitoring of their application can thus be done together.

First, it is the practice of the Hague Conference on Private International Law*, under whose auspices the HCCH 2000 Protection of Adults Convention* was drawn up, to organise regular meetings (‘Special Commissions’) to take stock of the practical operation of conventions, in order to monitor and evaluate their success and help resolve difficulties in their interpretation and application. The HCCH 2000 Protection of Adults Convention would not be an exception. Such a Special Commission was in fact held in November 2022, and was preceded by an initial work of data collection (2022 Special Commission*). If a Council decision on adults* is adopted, the Commission would coordinate and support such work in preparation of future Special Commissions.

In addition to this HCCH assessment mechanism, the EU should put in place its own monitoring and evaluation mechanism for both the Convention and the Regulation. This mechanism would ensure that the legislation continues to address the current problems faced by adults in the most efficient way and that the legislation is applied correctly and in a uniform manner. To meet the objectives of the PA initiative*, it would also be necessary that awareness about the legislation concerning the protection of adults in cross‑border situations is increased 210 . This can be done through national and/or EU measures, such as awareness-raising campaigns on the ECR* for the general public, dedicated EJTN* trainings for the judiciary, or EU-funded training programs for all practitioners.

The monitoring of the application of the legislation would be done in a close cooperation with the Central Authorities* that would be established under the Council Decision and the Regulation and would be tasked with the assistance in cross-border cases. In addition, the Commission would discuss the application of the legislation and promote exchanges of best practices among Member States in the framework of the EJN-civil*. As a rule, the application of any EU legislation in the area of civil justice is monitored through regular meetings of EJN-civil*. Thematic meetings of EJN-civil contact points would be essential for assessing how the legislation is applied in practice and collect and discuss statistics as is already done for other regulations. EJN-civil would also help to address any potential legal or practical problems that would arise with the application of the legislation 211 , provide the necessary information on the e-Justice Portal*, establish factsheets or practice guides.

212 213 Finally, a full evaluation of the application of the legislation would be carried out by the Commission. Given the variety and complexity of the various measures envisaged under Option 4, an evaluation of the preferred option would take place, as appropriate, 10 years after the entry into application of the Regulation or 5 years after the entry into application of the last time-phased measure. The evaluation would be done on the basis of input collected from the competent authorities of the Member States (including Central Authorities*), external experts, and relevant stakeholders and literature. The obtention of quantitative data would heavily rely on legal practitioners and national competent authorities (in particular for quantifying the number of powers of representation*). As is the case for other EU legislation in the area of cross-border civil justice, a legal requirement on Member States to provide specific information relevant for the evaluation of the operation and application of the legislation would be included in the Regulation. The mandatory use of IT tools, such as reference implementation software and the e-CODEX communication tool by the Central Authorities* and the courts would allow for reliable, secure and swift exchange of harmonised data on the functioning of the Regulation. Similarly, the online issuance of ECRs* would allow for immediate and complete collection of statistical data. Finally, the evaluation would be based on case law and, if available, on the findings from academic literature on the topic.

214 215 The evaluation would also benefit from the results of the monitoring of the implementation of the other related EU initiatives, such as the Strategy for the rights of persons with disabilities 2021–2030 and the digitalisation proposal* with respect to the digitalisation aspects of the initiative. If the timeframes for the evaluation of these instruments coincide with that of the PA initiative*, joint monitoring and evaluation could be considered to benefit from possible synergies and save costs.

Table  44 : Examples of potential evaluation indicators  in Annex 8 provides suggested indicators for the evaluation.

Annex 1: Procedural information

9.11.    Lead DG, Decide Planning/CWP references

Lead DG: DG JUSTICE AND CONSUMERS (‘DG JUST’)

Decide Planning: PLAN/2021/10564 – Civil aspects of the cross-border protection of vulnerable adults

The 2022 Commission Work Programme announced the PA initative* in the narrative as follows “We will propose measures to improve the recognition of parenthood between Member States and to strengthen judicial cooperation on the protection of vulnerable adults in cross-border situations”.

9.22.    Organisation and timing

A Commission inter-services steering group (ISG) was established in November 2021 for preparing the PA initiative*. It was chaired by Directorate-General Justice and Consumers (DG JUST). The following DGs participated at the inter-service group: Legal Service (SJ), Secretariat‑General (SG) and DG Employment, Social Affairs and Inclusion (DG EMPL).

The ISG met three times in the period from November 2021 to December 2022. The inter-service group approved the Call for Evidence* for an impact assessment in November 2021 and the Impact Assessment report on 9 December 2022.

9.33.    Consultation of the RSB

Before the finalisation of the Impact Assessment report, DG JUST received advice from the members of the Regulatory Scrutiny Board (‘RSB’) at an upstream meeting organised on 19 September 2022.

The Impact Assessment report was then examined by the RSB and received a positive opinion on 20 January 2023. In its opinion, the Board also provided suggestions as to possible improvements of the report. The table below shows how this report takes into account the main comments of the RSB.

Figure 8: Opinion of the Regulatory Scrutiny Board

9.44.    Evidence, sources and quality

In the preparation of this impact assessment, DG JUST collected evidence from remarkably high number of sources, using different methods and targeting various stakeholder groups.

First, DG JUST collected evidence and expertise through several years of continuous efforts at promoting the Convention*.

Second, evidence used in this impact assessment was gathered based on a Commission’s consultation strategy, which included: (i) feedback to the call for evidence*; (ii) open public consultation*; (iii) a workshop with stakeholders; (iv) meeting with Member States’ representatives; (v) an exchange on the topic of vulnerable adults at the meeting of the contact points of the European Judicial Network for civil and commercial matters (EJN-civil*); and (vi) a fact‑finding mission by the European Network of Judicial Inspection Services to courts and other competent authorities to seven selected Member States 217 (‘RESIJ fact-finding mission*’). The results of these consultation activities are presented in Annex 2 of this report.

Third, in the preparation of the PA initiative*, DG JUST commissioned two studies conducted by external contractors in a close cooperation with academia and professionals working in the field.

-First, 2021 Legal Study * examined the national laws and practices of Member States and evaluated the current main legal difficulties and practical challenges concerning the cooperation in the field of the protection of vulnerable adults. In the context of the 2021 Legal Study*, the contractor carried out semi-structured interviews and questionnaire-based surveys, which included, among others, a call for quantitative data on the current state of play and recent evolution in the number and type of protection measures taken in the EU.

-Second, Study supporting the impact assessment* focused on collecting information to be used for the preparation of this impact assessment report. It included further evidence about the existing problems and the assessment of the impacts of each policy option. The external contractor* employed the following stakeholder consultation tools specifically designed for the purposes of the Study: (i) 36 semi-structured interviews; (ii) case studies; and (iii) two focus groups* held in particular to validate the emerging findings. For details concerning these consultations, see Annex 9 summarising the consultations by the external contractor.