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Martina Drventić: THE PROTECTION OF ADULTS IN THE EUROPEAN UNION 803
THE PROTECTION OF ADULTS IN THE EUROPEAN
UNION
Martina Drventić, LLM, PhD candidate of the
Croatian Science Foundation*
Josip Juraj Strossmayer University of Osijek, Faculty of Law Osijek
Stjepana Radića 13, Osijek, Croatia
mdrventic@pravos.hr
ABSTRACT
A far-reaching freedom of movement of persons in the European Union imposes the EU legisla-
tor’s obligation to create a legal framework for regulating an increasing number of aspects aris-
ing from cross-border movements. e current legal arrangement of these aspects is to a great
extent related to the protection of family life and the rights of children. However, strong migra-
tions have also aected people who are considered vulnerable in terms of their disability or age.
Travelling that has become easier, medical treatments available abroad, a desire to live in more
attractive or more aordable countries in retirement, and a change of lifestyle in general, have
made the elderly move more frequent during the past decade. Cross-border proceedings arising
from the movement of older people have become more common before the courts of Member
States. It is necessary to ensure that protective measures directed at vulnerable adults, which
have been imposed by the authorities of one Member State, have their eect in another Mem-
ber State. is situation implies the adoption of the rules of private international law that
will regulate the issues as to authorities of which Member States are responsible for adopting
protective measures, which law is applicable to such measures, under which conditions these
measures are to be recognized in that other Member State and the cooperation of the competent
authorities. ese issues are regulated by the Convention on the International Protection of
Adults, adopted within the framework of the Hague Conference on Private International Law.
While, on the one hand, the European Union is a Contracting State to the UN Convention on
the Rights of Persons with Disabilities and is obliged to take its standards into account in its
policies and legislation, on the other hand, very few Member States are Contracting Parties to
the Convention on the International Protection of Adults. At EU level, there are currently only
recommendations for the regulation of private international law aspects related to mobility
of vulnerable adult persons, which also include the adoption of a special regulation that will
govern these issues. However, among the existing recommendations, the winning attitude is the
one that calls for Member States to ratify the Convention on the International Protection of
Adults. Starting with the hypothesis that the European Union does not provide any eective
legal framework for the protection of vulnerable adults in cross-border cases, this paper will
examine whether there is room for the introduction of enhanced mechanisms for the protection
of adults at EU level and make proposals accordingly.
* e work of doctoral student Martina Drventić has been fully supported by the “Young researchers’
career development project – training of doctoral students” of the Croatian Science Foundation.
EU AND COMPARATIVE LAW ISSUES AND CHALLENGES SERIES – ISSUE 3
804
Keywords: Convention on the International Protection of Adults, Convention on the Rights
of Persons with Disabilities, disability, adult, impairment or insuciency of personal faculties,
protective measures
1. INTRODUCTION
More than 80 million people in the European Union (hereinafter: the EU) have
some kind of disability, which to a certain extent limits their participation in social
and economic life.1 Disability is universal, and the risk of a certain kind of physi-
cal disability due to injury or disease threatens all persons in dierent proportions
and time periods.2 ere is no consensus about a unique and fully appropriate
term for a “person with disability”.3 Guided by the denition provided by the
World Health Organization, disability is an umbrella term, which, in the context
of health experience, implies any restriction or lack of ability to perform an ac-
tivity in the manner or within the range considered normal for a human being.
Disability is a wider term than impairment. While impairment is concerned with
individual functions of particular parts of the body, disability refers to the body
as a whole, with emphasis placed on the ability to perform the activity.4 What is
unquestionable is the fact that people with disabilities belong to a group of vulner-
able persons.5 Discrimination of persons with disabilities throughout history and
their marginalized position in society makes them a particularly vulnerable group
in society. Vulnerability implies greater exposure to the risk of harm and human
rights violations, given their cognitive, intellectual and physical impairments.6
1 European Commission, Communication from the Commission to the European Parliament, the
Council, the European Economic and Social Committee and the Committee of the Regions. Europe-
an Disability Strategy 2010-2020: A Renewed Commitment to a Barrier-Free Europe, COM(2010)
636 nal, 15.11.2010, p. 3
2 Weisbrock, A., Disability as a Form of Vulnerability under EU and CoE Law: Embracing the ‘Social
Model’?, in: Ippolito, F.; Iglesias Sánchez, S. (eds.), Protecting Vulnerable Groups, Hart Publishing,
London, 2015, p. 71
3 See: Marinić, M., Jesu li osobe s invaliditetom „invalidi“? Pitanje konceptualne naravi, ali i potreba iz-
jednačavanja mogućnosti, Društvena istraživanja: časopis za opća društvena pitanja, Vol . 17, No. 1-2,
2008, pp. 93-94
4 World Health Organization, International Classication of Impairments, Disabilities, and Handi-
caps, A manual of classication relating to the consequences of disease, Published in accordance with
resolution WHA29.35 of the Twenty-ninth World Health Assembly, May 1976, [https://apps.who.
int/iris/bitstream/handle/10665/41003/9241541261_eng.pdf;jsessionid=67608BFED5E7593D-
1015133963FDB238?sequence=1] Accessed 15.02.2019
5 Poretti, P., Vulnerable Person, in: Bartolini, A.; Cippitani, R.; Colcelli, V. (eds.), Dictionary of Statuses
within EU Law, Springer International Publishing, 2019, p. 622
6 Nifosi-Sutton, I., e Protection of Vulnerable Groups under International Human Rights Law, Rout-
ledge, London, 2017, p. 4
Martina Drventić: THE PROTECTION OF ADULTS IN THE EUROPEAN UNION 805
Disability has traditionally been seen only as a purely medical issue, not the issue
of human rights protection. e legal framework for the protection of persons
with disabilities has long lagged behind the protection of human rights of other
vulnerable groups - the protection of women and children. Although attention
was paid to persons with disabilities very early within the Council of Europe, i.e.,
in the European Social Charter,7 this framework remained legally non-binding.
By signicantly promoting the human rights of persons with disabilities, the 2006
United Nations Convention on the Rights of Persons with Disabilities (hereinaf-
ter: the UN Convention 2006)8 has been the signicant milestone in protection of
their rights. Since then there has been a shift in the protection of individual rights
of persons with disabilities and the inclusion of the protection of the rights of
persons with disabilities in international and regional human rights instruments.9
Real challenges for competent authorities, and hence the need for an appropriate
international and national legal framework, arise when the issues of the protec-
tion of persons with disabilities leave the public law framework as a result of the
cross-border movement of natural persons. European countries are faced with the
challenge of the growing number of older people. Improved medical technology
has increased life expectancy. An increase in life expectancy has resulted in more
and more people suering from age-related diseases such as Alzheimer’s disease
and dementia.
Strong migration ows within the EU have also aected persons who can be con-
sidered vulnerable by their age or disability. ere are common situations in which
younger people, when searching for a job, leave their country of origin and decide
to spend the rest of their lives in the state of their new habitual residence. On the
other hand, many people choose to leave their homes after retirement. Such mi-
gration at older ages is caused by various reasons; e.g. these people want to avoid
paying high taxes, circumvent national succession law, or spend the rest of their
lives in a more temperate climate or in a more aordable place.10 In addition to
the aforementioned mobility trends of the elderly, young adults with disabilities
7 Council of Europe, European Social Charter, 18 October 1961, ETS 35
8 e United Nations Convention on the Rights of Persons with Disabilities, Treaty Series 2515 (2006):
3
9 Weisbrock, op. cit., note 2, p. 72
10 Von Hein, J., Chapter A.4: Adults, protection of, in: Basedow, J.; Rühl, G.; Ferrari, F.; de Miguel Asen-
sio, P. (eds.) Encyclopedia of Private International Law, Cheltenham: Edward Elgar Publishing, 2017,
pp. 298-300
EU AND COMPARATIVE LAW ISSUES AND CHALLENGES SERIES – ISSUE 3
806
or those who are incapable of making decisions for themselves due to e.g. injury
are also in need of protection.11
e rules of private international law rules should be responsive to signicant
demographic and social changes in developed countries, including the examples
of cross-border movement of adults.12 e Convention on the International Pro-
tection of Adults (hereinafter: the Hague Convention 2000)13 was adopted within
the framework of the Hague Conference on Private International Law (hereinafter:
HCCH), and it regulates the issues of jurisdiction, applicable law, recognition and
enforcement, including the cooperation between competent authorities. At EU
level, there are no uniform rules of private international law in these situations.
Unlike the UN Convention 2006, which was ratied by the European Union as
a whole, the Hague Convention 2000 has been ratied by only 10 EU Member
States.14 A lack of uniformity in dealing with cross-border situations leads to legal
insecurity and unpredictability. A large number of diculties arising from cross-
border movement of vulnerable adults will be solved if the EU raties the Hague
Convention 2000. In spite of ratication, some issues may remain ambiguous,
but there is room for their regulation within the framework of European private
international law.
e paper consists of two parts. In the rst part, the standards for the protection of
persons with disabilities in the EU will be analyzed and the EU’s eorts to adopt
a private international law framework for the protection of vulnerable adults will
be presented.15 e second part includes an analysis of the solution oered by the
Hague Convention 2000 with an emphasis placed on its scope of application,
11 Curry-Sumner, I., Vulnerable Adults in Europe, EPRS European Parliamentary Research Service, Pro-
tection of Vulnerable Adults. European Added Value Assessment. Accompanying the European Parlia-
ment’s Legislative Initiative Report (Rapporteur: Joëlle Bergeron), Study, [http://www.europarl.europa.
eu/RegData/etudes/STUD/2016/581388/EPRS_STU(2016)581388_EN.pdf] Accessed 15.01.2019
12 See: Weller, M., Mutual trust: in search of the future of European Union private international law, Journal
of Private International Law, Vo l . 11, No. 1, 2015, pp. 64-102
13 HCCH, Convention of 13 January 2000 on the International Protection of Adults, [https://www.
hcch.net/en/instruments/conventions/full-text/?cid=71] Accessed 17.01.2019
14 e Convention has been ratied by Austria, Cyprus, the Czech Republic, Estonia, Finland, France,
Germany, Latvia, Portugal and the United Kingdom. HCCH, Convention of 13 January 2000 on the
International Protection of Adults – Status table, [https://www.hcch.net/en/instruments/conventions/
status-table/?cid=71] Accessed 05.03.2019
15 e legal instruments elaborated within this paper use a dierent terminology. e UN Convention
2006 uses the term “persons with disabilities” while the Hague Convention 2000 uses only the term
“adult”. When elaborating the specic legal instrument, the terminology from this instrument will be
used in respective chapter. In general part of the paper the term “vulnerable adults” will be used as a
term which corporates aforementioned terminology
Martina Drventić: THE PROTECTION OF ADULTS IN THE EUROPEAN UNION 807
jurisdiction criterions, law applicable to the mandates in case of incapacity and
conditions for the recognition and enforcement.
e hypotheses of the paper are that at EU level there is no legal framework for the
eective protection of vulnerable adults in cross-border cases and that the adop-
tion of uniform private international law rules at EU level will contribute to the
level of protection of this vulnerable group of people. In addition to presenting the
current level of protection, the aim of the paper is to point to legal gaps currently
in place and to check if there is a possibility of adopting enhanced adult protection
mechanisms at EU level and oer solutions accordingly.
2. STANDARDS FOR THE PROTECTION OF ADULTS IN THE
EUROPEAN UNION
e existing legal framework on cross-border protection of adults is dispersed and
consists of a complex mosaic of diverse instruments which include international,
European and national legal sources.16 is chapter will show various interna-
tional and EU instruments currently applicable to adult protection situations.
In addition to classication into international and EU instruments, these instru-
ments may also be classied in the light of the nature of public or private inter-
national law and with regard to whether these instruments are specically related
to the protection of adults. It is also important to note that certain international
agreements that will be mentioned have not necessarily been ratied by all Mem-
ber States.
2.1. UN Convention 2006
e UN Convention 2006 is the rst international legally binding instrument
setting minimum standards for the protection of the rights of persons with
disabilities,17 and it is also the rst human rights convention to which the EU is a
contracting party. e EU signed the Convention in March 2007, and it entered
into force on 22 January 2011. In accordance with the binding nature of the UN
Convention 2006, all European legislation, policies and programs must comply
with the obligations established by the Convention. e obligation to implement
16
17 MacKay, D., e United Nations Convention on the Rights of Persons with Disabilities, Syracuse Journal
of International Law and Commerce, Vol . 34, 2007, pp. 323-331
EU AND COMPARATIVE LAW ISSUES AND CHALLENGES SERIES – ISSUE 3
808
the Convention is divided between the EU and the Member States, given the
scope of their respective competencies.18
e aim of the UN Convention 2006 is to protect and promote the rights and
dignity of persons with disabilities.19 e UN Convention 2006 does not create
any new right, but conrms and raties the existing ones.20 Its importance derives
from the fact that it imposes obligations on the Contracting States as to how to
ensure the full realization of individual rights of persons with disabilities.21 In or-
der to ensure that the Contracting States act in accordance with the UN Conven-
tion 2006 and implement it eectively, they are required to establish a framework
to promote, protect and monitor its implementation.22 As a party, the EU has
dened such a framework for issues within its competence. e EU framework
complements the national monitoring mechanisms, which are responsible for pro-
moting, protecting and monitoring the implementation of the Convention in EU
Member States.
Following the EU Convention Initial Report,23 in 2015, the Committee on the
Rights of Persons with Disabilities adopted its Concluding observations on the
implementation of the UN Convention 2006 in the EU. In view of access to
justice and the freedom of movement for adults, the Committee recommended
the EU to take appropriate action to combat discrimination against persons with
disabilities when accessing justice, in such a way as to ensure full process adap-
tation and funding of training for those working in the eld of administration
of justice.24 e Committee expressed its concern about the obstacles faced by
persons with disabilities and other persons whose family members are persons
18 e UN Convention 2016 is a mixed agreement. Each of the parties involved, i.e. contracting states,
should have ratied the Convention. All EU Member States signed and ratied the Convention, while
22 EU countries have also signed and ratied the Optional Protocol. United Nations, Treaty Col-
lection, Status. [https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-15&chap-
ter=4] Accessed 22.02.2019
19 Hendricks, A., UN Convention on the Rights of Persons with Disabilities, European Journal of Public
Health, Vol . 14, 2007, p. 276
20 Korać Graovac, A.; Čulo, A., Konvencija o pravima osoba s invaliditetom - novi pristup shvaćanju prava
osoba s duševnim smetnjama, Zbornik Pravnog fakulteta u Zagrebu, Vol . 61., No. 1, 2011, pp. 65-109
21 UN Convention 2006, op. cit., note 8, Art. 3
22 Ibid., Art. 33
23 United Nation, Committee on the Rights of Persons with Disabilities, Consideration of reports sub-
mitted by States parties under article 35 of the Convention Initial report of States parties due in 2012
European Union, CRPD/C/EU/1, Distr.: General 3 December 2014, [https://documents-dds-ny.un-
.org/doc/UNDOC/GEN/G14/232/64/PDF/G1423264.pdf?OpenElement] Accessed 17.02.2019
24 United Nations Committee on the Rights of Persons with Disabilities, Concluding observations on the
initial report of the European Union, CRPD/C/EU/CO/1, Distr.: General 2 October 2015, paras 38
and 39. [https://daccess-ods.un.org/TMP/4831370.41330338.html] Accessed 17.02.2019
Martina Drventić: THE PROTECTION OF ADULTS IN THE EUROPEAN UNION 809
with disabilities when moving to another Member State, regardless of the length
of their stay. It also recommended that urgent action be taken at EU level to en-
sure that persons with disabilities and their families enjoy the right to freedom of
movement at the same level as other persons do.25
Although the UN Convention 2006 is a legal instrument of public law, and the
rights provided for and obligations imposed on the Contracting States are of sub-
stantive legal nature, one should not overlook the dimension of private law.26 e
Hague Convention 2000 has adopted a number of provisions laid down in the
UN Convention 2006, in particular the rights to autonomy and independence
of persons with disabilities, equality before the law, access to justice, freedom of
movement and nationality, health and international cooperation.27 Although the
aim of the UN Convention 2006 is not to harmonize substantive law, these two
instruments still interact since the Hague Convention 2000 ensures that the rights
acquired by a person under the relevant national law of a Contracting State which
are in accordance with the UN Convention 2006, are recognized in the other
Contracting State.28
2.2. Regulation of Private International Law Issues of Adult Protection in the
EU
In relation to the protection of adults in the EU from the perspective of private
international law, there are currently various international, European and national
instruments which apply, to some extent, to cross-border aspects of the protection
of vulnerable adults. At the international level, the following three conventions
of the HCCH deal with cross-border cases related to the protection of vulnerable
adults: the Convention on the Prohibition and Related Protection Measures,29 the
Convention on the Law Applicable to Agency30 and the Hague Convention 2000.
e EU does not provide for the legal framework on the adults protection. Some
of the existing EU legislative can be applied to certain aspects that may arise from
25 Ibid., paras 48 and 49
26 Curry-Sumner, op. cit., note 11, p. 37
27 HCCH, Outline Hague Protection of Adults Convention, [https://assets.hcch.net/docs/a3920f8f-
ee66-470e-943b-cf6865af8226.pdf] Accessed 25.01.2019
28 Ibid., p. 38
29 Unocial translation of the title. HCCH, Convention du 17 juillet 1905 concernant l’interdiction et
les mesures de protection, [https://www.hcch.net/en/instruments/the-old-conventions/1905-depriva-
tion-of-civil-rights-convention] Accessed 27.01.2019
30 HCCH, Convention of 14 March 1978 on the Law Applicable to Agency, [https://www.hcch.net/en/
instruments/conventions/full-text/?cid=89] Accessed 27.01.2019
EU AND COMPARATIVE LAW ISSUES AND CHALLENGES SERIES – ISSUE 3
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the situation of cross-border movement of adults. ese instruments are how-
ever not specically related to the protection of adults, i.e., Regulation (EC) No
593/2008 of the European Parliament and of the Council of 17 June 2008 on
the law applicable to contractual obligations (Rome I),31 Regulation (EU) No
1215/2012 of the European Parliament and of the Council of 12 December 2012
on jurisdiction, and the recognition and enforcement of judgments in civil and
commercial matters (recast) (Brussels I Regulation Recast),32 Regulation (EU) No
606/2013 of the European Parliament and of the Council of 12 June 2013 on
mutual recognition of protection measures in civil matters (Protection Measures
Regulation)33 and Regulation (EU) No 650/2012 of the European Parliament and
of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and en-
forcement of decisions and acceptance and enforcement of authentic instruments
in matters of succession and on the creation of a European Certicate of Succes-
sion (Succession Regulation).34
e most important instrument for the protection of vulnerable adults in cross-bor-
der situations is the Hague Convention 2000, a complementary private interna-
tional law instrument that contains the rules referring to jurisdiction, applicable
law and the international recognition and enforcement of protection measures. It
was concluded on 13 January 2000 and it entered into force on 1 January 2009
between France, Germany and the United Kingdom (extend to Scotland only).
e Hague Convention 2000 has been ratied by 12 states, of which 10 are EU
Member States. Eight Member States have signed the Hague Convention 2000,
but have not ratied it yet.35
Following the data presented above, there is concern that there are deciencies in
the protection of vulnerable adults in Europe in cross-border situations. In as early
as 2008, in its resolution the European Parliament (hereinafter: the Parliament)
31 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the
law applicable to contractual obligations (Rome I) [2008] OJ L177/6
32 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012
on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters
[2012] OJ L351/ 1
33 Regulation (EU) No 606/2013 of the European Parliament and of the Council of 12 June 2013 on
mutual recognition of protection measures in civil matters [2013] OJ L181/4
34 Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on ju-
risdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement
of authentic instruments in matters of succession and on the creation of a European Certicate of
Succession [2012] OJ L201/ 107
35 e Convention was signed by Belgium, Greece, Ireland, Italy, Luxembourg, the Netherlands and
Poland. HCCH, Convention of 13 January 2000 on the International Protection of Adults – Status
table [https://www.hcch.net/en/instruments/conventions/status-table/?cid=71] Accessed 05.03.2019
Martina Drventić: THE PROTECTION OF ADULTS IN THE EUROPEAN UNION 811
called on all Member States to ratify the Hague Convention 2000.36 e Euro-
pean Commission (hereinafter: the Commission) is requested by the Resolution
to report back to the Parliament and the EU Council on the implementation of
the Hague Convention 2000 in the Member States, assess the possibility of the
EU accession to the Hague Convention 2000 and submit a legislative proposal
aimed at strengthening cooperation and improving recognition and enforcement
of protection measures. In its reply, the Commission stated that the possibility of
conducting a study on the Hague Convention 2000 with a view to considering
other measures involving EU legislation would exist only when it were in force for
more than a few years.37 In the absence of the Commission’s report on the imple-
mentation of the Hague Convention 2000, the Parliament launched its own new
initiative for the protection of adults in 2015. It resulted in a report provided by
the European Parliament’s Committee on Legal Aairs, which included Added
Value Assessment.38
In June 2017, the Parliament adopted a new Resolution on the Protection of
Vulnerable Adults.39 In this resolution, the Parliament emphasizes that the dif-
ferences existing between the applicable law and a large number of competent
courts jeopardize the right of vulnerable adults to the freedom of movement and
residence in the Member State of their choice, as well as to have adequate protec-
tion for their property where such property is located in more than one Member
State.40 e Parliament calls on the Commission again to encourage those Mem-
ber States which have not yet ratied the Hague Convention 2000 to do so as
quickly as possible.41 It calls on the Commission to submit to the Parliament and
the EU Council, before 31 March 2018, a proposal for a regulation designed to
improve cooperation among the Member States and the automatic recognition
and enforcement of decisions on the protection of vulnerable adults and man-
36 European Parliament, European Parliament resolution of 18 December 2008 with recommendations to
the Commission on cross-border implications of the legal protection of adults (2008/2123(INI)) [http://
www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P6-TA-2008-638] Ac-
cessed 27.02.2019
37 European Commission, Follow-up to the 2008 European Parliament resolution with recommenda-
tions to the Commission on the legal protection of adults: cross-border implications, SP(2009)988
38 European Parliament, Protection of Vulnerable Adults European Added Value Assessment Accompa-
nying the European Parliament’s Legislative Initiative Report (Rapporteur: Joëlle Bergeron), [http://
www.europarl.europa.eu/RegData/etudes/STUD/2016/581388/EPRS_STU(2016)581388_EN.pdf]
Accessed 27.02.2019
39 European Parliament, European Parliament resolution of 1 June 2017 with recommendations to the
Commission on the protection of vulnerable adults (2015/2085(INL)) [http://www.europarl.europa.
eu/sides/getDoc.do?type=TA&language=EN&reference=P8-TA-2017-0235] Accessed 28.02.2019
40 Ibid., para G
41 Ibid., para 1
EU AND COMPARATIVE LAW ISSUES AND CHALLENGES SERIES – ISSUE 3
812
dates in anticipation of incapacity.42 In its answer to this Resolution, the Commis-
sion states that the potential legislative initiative would be complementary to the
Hague framework and that it would bring the desired results only if a sucient
number of Member States acceded to the Hague Convention 2000. It states that
it will encourage Member States to accede the Hague Convention 2000, but also
warns that consultations showed that the main reasons Member States have for
the non-accession to the Hague Convention 2000 are a small number of cases the
Convention applies to and the costs that the operation of the Convention may
entail.43
e analysis of the Parliament’s long-standing eorts to make the Commission
adopt a legislative initiative for a special instrument aimed at regulating the inter-
national protection of adults does not indicate whether and when such an instru-
ment is likely to be adopted. e only activity carried out by the Commission in
this respect is to encourage Member States to ratify the Hague Convention 2000,
as conrmed at the joint European Commission and HCCH on this topic, which
was held in Brussels at the end of 2018.44 Improvements in relation to the existing
Hague Convention 2000 that could be brought by a specic instrument at EU
level will be included in the description of the Hague Convention 2000 provisions
in the next chapter.
3. HAGUE CONVENTION 2000
e Hague Convention 2000 can be linked to the Convention on the Prohibi-
tion and Related Protection Measures dating back to 1905. is Convention con-
tained provisions on the applicable law and jurisdiction for personal status, where
the nationality was primary connecting factor for identifying the applicable law
and the criteria for establishing the jurisdiction. is Convention was ratied by
only a few European countries and soon it became obsolete, primarily because of
the nationality criterion.45 After a long break in the regulation of protection mea-
sures, the HCCH dedicated themselves to the protection of children. Concepts
developed in these conventions46 have found their place in the Hague Convention
42 Ibid., para 10
43 European Commission, Answer - Protection of vulnerable adults - E-003844/2017, 30 August 2017
44 HCCH, Vulnerable Adults – An Important Step Forward, [https://www.hcch.net/en/news-archive/
details/?varevent=654] Accessed 25.02.2019
45 Ruck Keene, A., e Cross-border Protection of Adults: Hague 35, in: Frimston, R., Ruck Keene, A.,
Van Overdijk, C., D Ward, A. (eds.), e International Protection of Adults, Oxford University Press,
Oxford, 2015, p. 78
46 HCCH, Convention of 5 October 1961 concerning the powers of authorities and the law applicable
in respect of the protection of infants, [https://www.hcch.net/en/instruments/conventions/full-tex-
Martina Drventić: THE PROTECTION OF ADULTS IN THE EUROPEAN UNION 813
2000. For example, the concept of measures directed to the protection of person
and property (of a child), the importance of making decisions in the best interests
(of a child) as the basis of measures to be adopted by the authorities of the state
which is not the state of habitual residence, and nally, the importance of coopera-
tion manifested by setting up Central Authorities.47
e Preamble to the Hague Convention 2000 is very short; it consists of only four
sentences. e fourth sentence states that “the interests of the adult and respect for
his or her dignity and autonomy are to be primary considerations”. e concept of
“the interests of the adult” is mentioned repeatedly in the text of the Hague Con-
vention 2000. It should be distinguished from the concept of “the best interests
of the child”48 given in the Hague Convention on Jurisdiction, Applicable Law,
Recognition, Enforcement and Cooperation in Respect of Parental Responsibility
and Measures for the Protection of Children (hereinafter: the Hague Convention
1996).49 e literature suggests that these are two dierent concepts and that the
aim of this preamble is to ensure that there is a balance between the autonomy of
the adult’s will and the protection of his or her interests, which is dierent from
the concept of the best interests of the child.50
3.1. Scope of Application
e Hague Convention 2000 shall apply to situations in which there is an inter-
national element, for example, when property of an adult is located in another
state. Other terms of application in the geographic context have not been set.51
e Hague Convention 2000 follows the trends and accordingly, represents loi
t/?cid=39] Hague Convention of 25 October 1980 on the Civil Aspects of International Child Ab-
duction, [https://assets.hcch.net/docs/e86d9f72-dc8d-46f3-b3bf-e102911c8532.pdf] Hague Con-
vention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry
Adoption, [https://www.hcch.net/en/instruments/conventions/full-text/?cid=69] Convention of 19
October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Re-
spect of Parental Responsibility and Measures for the Protection of Children, [https://www.hcch.net/
en/instruments/conventions/full-text/?cid=70] Accessed 28.02.2019
47 Ruck Keene, op. cit., note 45, p. 79
48 On the best interest of the child see: Župan, M., e Best Interest of the Child: A Guiding Principle in
Administering Cross-Border Child-Related Matters?, in: Liefaard, T., Sloth-Nielsen, J. (eds), e United
Nations Convention on the Right of the Child. Taking Stock after 25 Years and Looking Ahead, Brill
- Nijho, Leiden - Boston, 2017, pp. 213-230
49 Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and
Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children,
[https://www.hcch.net/en/instruments/conventions/full-text/?cid=70] Accessed 28.02.2019
50 Ruck Keene, op. cit., note 45., p. 99
51 Von Hein, op. cit., note 10, p. 23
EU AND COMPARATIVE LAW ISSUES AND CHALLENGES SERIES – ISSUE 3
814
uniforme; its rules on the applicable law also apply in cases where they refer to the
law of a non-contracting state.
The Hague Convention 2000 applies to persons who have reached the age of 18
years.52 is limit overlaps with the age limit of the Hague Convention 1996,
which is applied to children until they reach the age of 18 years.53 Such limit should
help us avoid diculties in delimiting the application of the two conventions in
relation to the personal eld of application. In addition, the Hague Convention
2000 shall also apply to measures in respect of an adult who had not reached the
age of 18 years at the time the measures were taken.54 us, the authorities com-
petent under the Hague Convention 1996 that adopt a measure in relation to a
child with disability will be able to envisage that these measures would continue
to remain eective beyond the child’s majority.55 e eectiveness of these two
instruments depends indeed on the ratication of the conventions themselves,
and the continuity will only be maintained in those situations in which both states
are parties to both conventions.56 At EU level, this complementarity will only be
achieved by all EU Member States ratifying the Hague Convention 2000, as all
Member States are contracting parties to the Hague Convention 1996.57
e Hague Convention 2000 gives a denition of adults, determining how it ap-
plies to the protection of adults who are not in a position to protect their interests
by reason of an impairment or insuciency of their personal faculties. An accom-
panying Explanatory Report gives the interpretation of the terms “an impairment
or insuciency of one’s personal faculties”. It is stated that the Hague Convention
2000 does not apply to the protection of adult victims of violence, such as abused
women. In such cases, at EU level, the protection can be achieved in accordance
with the provisions of the Protection Measures Regulation.58 Likewise, the Hague
Convention 2000 shall not apply to persons with only physical disabilities, which
is justied by the fact that a physical disability that is not accompanied by a mental
disability does not bring persons into a situation in which they are unable to make
52 Hague Convention 2000, op. cit., note 13, Art. 2(1)
53 Hague Convention 1996, op. cit., note 49, Art. 2
54 Hague Convention 2000, op. cit., note 13, Art. 2(2)
55 Lagarde, P., Explanatory Report on the 2000 Hague Protection of Adults Convention, [https://www.
hcch.net/en/publications-and-studies/details4/?pid=2951&dtid=3] Accessed 25.02.2019, para 15.
56 Curry-Sumner, op. cit., note 11, p. 48
57 With eect from 1 January 2016 in Italy, the Convention on Measures for the Protection of Children
is eective in all EU Member States
58 See: See: Dutta, A., Cross-border protection measures in the European Union, Journal of Private Interna-
tional Law, Vol. 12, No. 1, 2016, pp. 169-184
Martina Drventić: THE PROTECTION OF ADULTS IN THE EUROPEAN UNION 815
decisions and protect their interests.59 On the other hand, such a position can be
considered restrictive. Namely, a physical disability itself can justify the adoption
of a protection measure if a person agrees that such measures should be taken.60
e Hague Convention 2000 provides for a list of measures to be imposed in
relation to an adult. e list is not exhaustive. e scope of application of these
measure encompasses a wide range of measures and deal in particular with: a) the
determination of incapacity and the institution of a protective regime; b) the plac-
ing of the adult under the protection of a judicial or administrative authority; c)
guardianship, curatorship and analogous institutions; d) the designation and func-
tions of any person or body having charge of the adult’s person or property, repre-
senting or assisting the adult; e) the placement of the adult in an establishment or
other place where protection can be provided; f) the administration, conservation
or disposal of the adult’s property; g) the authorization of a specic intervention
for the protection of the person or property of the adult.61 e Explanatory Report
states that it is possible that some of the measures listed above are not known in
some legal systems. However, the provision in the Hague Convention 2000 does
not make them available to all Contracting States, but only applicable only if they
are provided for by the law applicable by the Convention.62
e Hague Convention 2000 also provides for certain issues outside its scope of
application. Unlike a list of possible measures, this list is exhaustive. is means
that any measure directed at the protection of an adult or his or her property not
excluded by the Hague Convention 2000 is covered by its scope of application.63
Certain issues are excluded from the scope of application of the Hague Conven-
tion 2000 because they have already been regulated by other Hague Conventions
or because the application of the Hague Convention 2000 thereto would not be
appropriate: a) maintenance obligations; b) marriage; c) property regimes in re-
spect of marriage; d) trusts or succession; e) social security; and f) health. Other
restrictions concern public law, and in those cases, the aim of the Hague Conven-
tion 2000 was not to impose limits on the states in terms of their jurisdiction in
matters of key interest: 64 g) measures taken in respect of a person as a result of
penal oences; h) asylum and immigration; and i) public safety. If in the context
of any of the above questions the issue of adult representation is raised, the Hague
59 Clive, E., e New Hague Convention on the Protection of Adults, Yearbook of Private International Law,
Vol. 2, 2000, p. 5
60 Von Hein, op. cit., note 10, p. 24
61 Hague Convention 2000, op. cit., note 13, Art. 3
62 Lagarde, op. cit., note 55, para 18
63 Ibid., para 29
64 Ibid., para 32
EU AND COMPARATIVE LAW ISSUES AND CHALLENGES SERIES – ISSUE 3
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Convention 2000 shall apply.65 For example, an appointed representative may
accept or renounce a succession on behalf of an adult, while the succession pro-
ceeding itself will be excluded from the scope of application of this Convention.66
3.2. Jurisdiction
e Hague Convention 2000 contains a set of rules for determining jurisdiction
in situations falling within its scope of application. e judicial authorities of the
state of habitual residence of the adult have jurisdiction to take measures directed
to the protection of the adult’s person or property.67 e Contracting State in the
territory where these adults are present as a result of their displacement has the
jurisdiction for adults who are refugees and persons who, due to disturbances oc-
curring in their countries, are internationally displaced. e same also applies to
adults whose habitual residence cannot be established.68 Concurrent or subsidiary
jurisdiction appears in the form of nationality as a jurisdiction criterion.69
e Hague Convention 2000 provides for the possibility of a consensual transfer
of jurisdiction from a Contracting State of habitual residence or the authorities
of the state in whose territory refugees, displaced persons or persons whose habit-
ual residence cannot be established are present to the authorities of certain other
Contracting States, where this is in the interest of the adult. Jurisdiction may be
transferred upon request from the authorities of either the Contracting State of
habitual residence or another Contracting State. e request may relate to all or
some aspects of such protection.70 Finally, the Hague Convention 2000 stipulates
that Contracting State where property of the adult is located has jurisdiction to
take measures of protection concerning that property.71
3.2.1. Habitual Residence vs. Nationality
e traditional approach, which prevails in most national jurisdictions, is that the
authority of a state of which the adult is a national shall have jurisdiction to take
measures for the protection of that person. e application of the law of the state
of which the adult is a national, when this adult is habitually resident in another
65 Hague Convention 2000, op. cit., note 13, Art. 4(2)
66 Von Hein, op. cit., note 10, p. 24
67 Hague Convention 2000, op. cit., note 13, Art. 5
68 Ibid., Art. 6
69 Ibid., Art. 7
70 Ibid., Art. 8
71 Ibid., Art. 9
Martina Drventić: THE PROTECTION OF ADULTS IN THE EUROPEAN UNION 817
state, may cause diculties. is often leads to delays in proceedings, higher costs,
diculties arising from the relationship between substantive and procedural law,
and ultimately to a high level of legal insecurity. e Hague Convention 2000
chooses the principle of habitual residence as the primary jurisdiction criterion.
is makes it equal to other conventions of the HCCH and European instru-
ments of private international law.72
e Hague Convention 2000 stipulates that the authorities of the state of ha-
bitual residence of the adult shall have jurisdiction to take measures directed to
the protection of the adult’s person or property. In case of a change of the adult’s
habitual residence to another Contracting State, the authorities of the state of the
new habitual residence have jurisdiction, without the conditions foreseen for the
perpetuation fori.73
Subsidiary jurisdiction appears in the form of a nationality criterion.74 It is pro-
vided for cases where the authorities of the state of which the adult is a national
consider that they are in a better position to assess the interests of the adult. is
jurisdiction criterion is quite limited. e authorities of the state of which the
adult is a national are obliged to notify the authorities of the state of habitual resi-
dence of the adult. Circumstances may be envisaged under which this jurisdiction
of the state of which the adult is a national shall not be exercised. ese are cases
in which the authorities having jurisdiction in accordance with general rules of
jurisdiction, the rules of jurisdiction of the authorities of the state where the per-
son is present or the rules of the transfer of jurisdiction, take all measures required
by the situation, decide that no measures should be taken or when proceedings
are pending before them. e measures taken by the state of which the adult is a
national are time-limited, they shall cease to apply as soon as the aforementioned
authorities having jurisdiction take a measure or decide that no measure shall be
taken. is rule of jurisdiction does not apply to adults who are refugees and those
who are internationally displaced due to disturbances occurring in the state of
which the adult is a national. e reason for that is obvious. e aim of the Hague
Convention 2000 is to avoid that the authorities of the state the adult has been
forced to leave make decisions referring to the protection of adults.75
Although there is no turmoil in this arrangement, some diculties may arise when
applying the provisions. e rst is related to the denition of the term “habitual
72 Von Hein, op. cit., note 10, p. 22
73 Hague Convention 2000, op. cit., note 13, Articles 5 and 6
74 Ibid, Art. 7
75 Lagarde, op. cit., note 55, para 58
EU AND COMPARATIVE LAW ISSUES AND CHALLENGES SERIES – ISSUE 3
818
residence of an adult”.76 As is common, the Hague Convention 2000 does not de-
ne the term, which is a factual term.77 e obvious need for further clarication
of the concept of “habitual residence” is clearly expressed in the cases referring to
the protection of children’s rights, where in a large number of cases national courts
have requested clarication of the term “habitual residence” from the Court of
Justice of the European Union (hereinafter: CJEU).78 It is to be expected that dif-
culties in practice will be shown in relation to the concept of “habitual residence
of an adult”, particularly when considering the fact that for an adult adaptation
to a family environment can hardly be a relevant fact.79 e concept of “habitual
residence” is attractive because it does not represent a rigid legal concept, but a
exible factual concept that can satisfy every situation.80 Providing any quantita-
tive or qualitative denition of this concept in any convention would be to cast
doubt on the interpretation of this expression in numerous other conventions it
is used in.81 Nevertheless, the lack of a commonly accepted denition of the term
can indeed cause legal uncertainty. e concept of “habitual residence of an adult”
could certainly be subject to the interpretation of the EU if a special instrument
for the international protection of adults were adopted at EU level. is implies
the interpretation by the CJEU in relation to the reference for a preliminary rul-
ing, or the taking of a good solution adopted in the Succession Regulation, where
in the recital of the Regulation the legislator introduced those indicators which
might helpful when determining the habitual residence of the deceased.82 e so-
lution from the Succession Resolution has resulted with a consensus; it retains the
exibility of the concept, and the indicators given in the recital ensure a uniform
interpretation of this concept.83
Another diculty is the fact referring to a small number of states that are contract-
ing parties to the Hague Convention 2000. As currently only 10 EU Member
States are applying the Hague Convention 2000, the national private internation-
76 Kruger, T., Habitual Residence: e Factors that Courts Consider, in: Beaumont, P., Danov M., Trim-
mings, K., Yüksel, B. (eds.), Cross-Border Litigation in the Europe, Hart Publishing, Oxford and
Portland, Oregon, 2017, pp. 741-755
77 Lagarde, op. cit., note 55, para 49
78 Case C-523/07 A [2009] ECLI:EU:C:2009:225; Case C-497/10 PPU Mercredi [2010]
ECLI:EU:C:2010:829; Case C-376/14 PPU C [2014] ECLI:EU:C:2014:2268; Case C-499/15 W
and V [2017] ECLI:EU:C:2017:118; Case C-111/17 PPU OL [2017] ECLI:EU:C:2017:436; Case
C-512/17 HR [2018] ECLI:EU:C:2018:513; Case C-393/18 PPU UD [2018] ECLI:EU:C:2018:835
79 Ruck Keene, op. cit., note 45, p. 112
80 Curry-Sumner, op. cit., note 11, p. 63
81 Lagarde, op. cit., note 55, para 49
82 See: Succession Regulation, op. cit., note 33, Rec 23-25
83 Curry-Sumner, op. cit., note 11, p. 63
Martina Drventić: THE PROTECTION OF ADULTS IN THE EUROPEAN UNION 819
al law rules are applied in the remaining 18 Member States. Member States which
are Contracting States to the Hague Convention 2000 will primarily establish
jurisdiction in relation to habitual residence of adults, whereas national law will be
applied in other states, which may be based on dierent grounds of jurisdiction.
As a result, both courts can establish their jurisdiction, which will ultimately lead
to conicting decisions.84 e accession of the EU to the Hague Convention 2000
would eliminate this problem.
3.2.2. Jurisdiction in Cases of Urgency and Temporary Protection Measures
e rule of jurisdiction in cases of urgency stipulates that in cases of urgency,
the authorities of any Contracting State in whose territory the adult or property
belonging to the adult is present have jurisdiction to take any necessary measures
of protection.85 is rule is concurrent and its application is justied only because
of the existence of an emergency situation. e Explanatory Report states that a
situation of urgency arises where the situation might bring about irreparable harm
to the adult or his or her property if remedial action were only sought through
primary jurisdiction. It is also stated in the Report that this ground of jurisdiction
must not be used as general justication for the jurisdiction of the authorities of
the state where the adult is present, especially in medical matters, giving an ex-
ample of termination of pregnancy of a young incapacitated woman.86 An accept-
able example given in the Report is the situation in which it is necessary to ensure
the representation of an adult who is away from his or her habitual residence and
who must undergo an urgent surgical operation. ese measures are limited to
the period of time in which the authorities responsible for acting on other grounds
of jurisdiction take measures required by the situation, i.e., in case an adult is
habitually resident in a non-Contracting State, this means as soon as measures
taken by the authorities of the third state are recognized in the Contracting State
in question.87
e rule of jurisdiction for taking temporary protection measures is not related to
cases of urgency. Exceptional concurrent jurisdiction is conferred on Contracting
States where the adult is present to take measures concerning the protection of his
or her person. ese measures are temporary in nature and their territorial eect
is limited. Unlike Article 12 of the Hague Convention 1996, in which jurisdic-
tion is conferred for the purpose of taking measures of provisional character for
84 Ibid., p. 62
85 Hague Convention 2000, op. cit. note 13, Art. 10
86 Lagarde, op. cit,. note 53, para 63
87 Hague Convention 2000, op. cit., note 13, Art. 10(3)
EU AND COMPARATIVE LAW ISSUES AND CHALLENGES SERIES – ISSUE 3
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the protection of the person and property of the child, this Hague Convention
2000 limits the scope of jurisdiction only to the protection of the person of the
adult, not his or her property. e Explanatory Report indicates that it is obvious
that this rule applies to medical treatment. ese would be the cases of placement
or hospitalization, which by their nature are not urgent.88 In contrast to urgent
protection measures, these measures will cease to have eect whenever it has been
established by the primary competent authorities that it is not necessary to take
any measure.
e system of urgent and temporary measures does not indicate possible dicul-
ties in the implementation. It contributes to the protection of adults and as such,
it would be of benet to the EU, where a similar concept was partially recognized
as benecial for the protection of the child and his or her property within the
meaning of Article 20 of the Brussels IIbis Regulation.89 Without the existence of
provisions to regulate urgent and temporary protection measures in the interna-
tional protection of adults, at EU level, Member States will determine the juris-
diction to take urgent and temporary measures pursuant to their national rules.
e level of protection of adults in the respective state will certainly depend on
whether national law provides for the possibility of adopting such measures on the
grounds of presence or whether the jurisdiction to adopt such measures is limited
only to nationals of that state.
3.3. Applicable Law
3.3.1. General Rules of Applicable Law
e Hague Convention 2000 determines that in exercising its jurisdiction the
Contracting State applies its law. is rule applies irrespective of the criterion on
which jurisdiction is based and, like the Hague Convention 1996, it is justied
by the fact that the application of national law makes it easier for the authorities
as they apply the law they know best and since ultimately the protection mea-
sures themselves shall primarily be enforced in the state that determine them.90
Exceptionally, in so far as the protection of the person or the property of the adult
88 Lagarde, op. cit., note 55, para 84
89 See: Drventić, M., New Trends in European Family Procedural Law, in: Duić, D., Petrašević, T. (eds.),
Procedural Aspects of EU Law, Sveučilište J. J. Strossmayera u Osijeku, Pravni fakultet Osijek, Osi-
jek, 2017, p. 433. and Župan, M.; Ledić, S.; Drventić, M., Provisional Measures and Child Abduction
Proceedings, Pravni vjesnik: časopis za pravne i društvene znanosti Pravnog fakulteta Sveučilišta J.J.
Strossmayera u Osijeku, Vol . 35, No. 1, 2019, pp. 9-32
90 Župan, M., Roditeljska skrb u sustavu Haške konvencije o mjerama dječje zaštite iz 1996., in: Rešetar, B.
(ed.), Pravna zaštita prava na (zajedničku) roditeljsku skrb, Pravni fakultet Osijek, Osijek, 2012, p. 212
Martina Drventić: THE PROTECTION OF ADULTS IN THE EUROPEAN UNION 821
requires, the court may exceptionally apply or take into account the law of another
state with which there exists a substantial connection.91 e purpose of this provi-
sion is not to strengthen the connection but to apply the rights of another state in
order to protect the interests of a person or his or her property.92 In addition, the
Hague Convention 2000 lays down the law applicable to the implementation of
the measure in another Contracting State. Where a measure taken in one Con-
tracting State is implemented in another Contracting State, the conditions of its
implementation are governed by the law of that other State.93
e rules of this Convention’s applicable law shall apply even if the law referred to
by them is the law of a non-Contracting State.94 In addition, the Hague Conven-
tion 2000 excludes renvoi, stipulating that in terms of the rules of applicable law,
the term “law” means the law in force in a State other than its choice of law rules.95
3.3.2. Mandate in Case of Incapacity
e Hague Convention 2000 provides for the situation in which the adult himself
or herself organizes in advance his or her protection for the time when he or she
will not be in a position to protect his or her own interests. An adult does that by
conferring powers of representation on a person of his or her choice, by a volun-
tary act which may be an agreement concluded with this person or a unilateral act.
is situation is characterized by the fact that the powers of representation cannot
begin to be exercised until after the adult who has conferred them is no longer able
to protect his or her own interests. is measure is quite common in certain states,
particularly in North America, and it is known in some European states.96 As part
of strengthening the rights of persons with disabilities, the Council of Europe
promotes the regulation of a mandate in case of incapacity.97 By adopting various
resolutions and recommendations, the Council of Europe endeavors to transpose
91 Hague Convention 2000, op. cit. note 13, Art 13(2)
92 Ruck Keene, op. cit., note 45, p. 125
93 Hague Convention 2000, op. cit. note 13, Art. 14
94 Ibid., Art. 18
95 Ibid., Art. 19
96 E.g. England and Wales, Ireland, Belgium, Denmark, Finland, Germany, Netherlands. See more: Part
III Existing Law in Various Jurisdictions, in: Frimston, R.; Ruck Keene, A.; Van Overdijk, C.; D Ward,
A. (eds.), e International Protection of Adults, Oxford University Press, Oxford, 2015.
97 Council of Europe, Principles concerning continuing powers of attorney and advance directives for
incapacity, Recommendation CM/Rec(2009)11 and explanatory memorandum. [https://rm.coe.in-
t/168070965f] Accessed 18.02.2019
EU AND COMPARATIVE LAW ISSUES AND CHALLENGES SERIES – ISSUE 3
822
into national law the principles on which legal regulations governing this situation
should be based.98
e mandate in case of incapacity is completely dierent from the ordinary man-
date which a fully capable adult confers on a person to take care of his or her inter-
ests. Such mandate takes eect immediately and in most legal systems ends with
the onset of the adult’s incapacity or by the determination of his or her incapacity
to protect his or her interests. is situation is regulated within the framework of
private international law by the Hague Convention of 14 March 1978 on the Law
Applicable to Agency.99
On the basis of the Hague Convention 2000, the mandate in case of incapacity is
governed by the law of the State of the adult’s habitual residence at the time of the
agreement or the unilateral act.100 is law is applicable to the existence, extent,
modication and extinction of powers of representation. e manner of exercise
of such powers of representation is governed by the law of the state these powers
are exercised in.101
e link between the law of the state the adult is habitually resident in and the
existence, extent and extinction of powers conferred by him or her is retained only
if the adult has not designated himself or herself another law to govern the afore-
mentioned. An adult may, for this purpose, choose the law of: a) a state of which
the adult is a national; b) the state of a former habitual residence of the adult; c) a
state in which property of the adult is located, with respect to that property. Such
limitation in the choice of the applicable law represents the balance between the
principle of personal autonomy and the idea that this situation falls into a category
in which not all decisions should be entirely left to persons.102 However, such ar-
rangement does not prevent the law of a non-Contracting State to be chosen as
the applicable law. A positive aspect of this provision is manifested in the fact that
nothing prevents a person from designating more applicable laws for the mandate
in case of incapacity, which is ecient in cases where a person has property in
several states. Finally, if an adult wishes to choose the law of the state which does
not recognize the mandate in case of incapacity, such authorization shall be null
and void.103
98 Hrstić, D., Anticipirano odlučivanje pacijenata, Zagrebačka pravna revija, Vol. 5, 2016, p.12
99 HCCH, Convention of 14 March 1978 on the Law Applicable to Agency, [https://www.hcch.net/en/
instruments/conventions/full-text/?cid=89] Accessed 01.03.2019
100 Hague Convention 2000, op. cit., note 13, Art 15(1)
101 Ibid., Art 15(3)
102 Curry-Sumner, op. cit., note 11, p. 64
103 Ruck Keene, op. cit., note 45, p. 159
Martina Drventić: THE PROTECTION OF ADULTS IN THE EUROPEAN UNION 823
While the fact referring to the right to the choice of applicable law does not entail
too many issues related to the application in practice, questions arise from the ap-
plication of a provision regulating the law applicable to the manner of exercising
the powers conferred on the authorized person in case of incapacity, determining
the law of the state in which the powers of representation are exercised as the law
applicable thereto. is provision results in a situation in which, under the law
applicable to the mandate in case of incapacity, the authorized person is entitled
to the right to manage the property of a person without any restriction, whereas
under the law of the state in which the measure is executed, the authorized person
shall have additional authorization for property management. In such a case, the
authorized person will need to obtain such authorization in a manner prescribed
by the law of the state where execution takes place.104
3.4. Recognition and Enforcement
e Hague Convention 2000 stipulates that the measures taken by the authorities
of a Contracting State shall be recognized by operation of law in all other Con-
tracting States.105 Recognition by operation of law means that it will not be neces-
sary to resort to any proceeding in order to obtain such recognition, so long as the
person relying on the measure does not take any step towards enforcement. e
party against whom the measure is invoked is the one who must allege a ground
for non-recognition provided for by the Hague Convention 2000.106
ere are ve reasons why recognition may be refused: a) if the measure was taken
by the authority whose jurisdiction was not based on, or was not in accordance
with, one of the grounds provided for by the Hague Convention 2000; b) if the
measure was taken, except in a case of urgency, in the context of a judicial or ad-
ministrative proceeding, without the adult having been provided the opportunity
to be heard, in violation of fundamental principles of procedure of the requested
state; c) if recognition is contrary to public policy of the requested state, or con-
icts with a provision of the law of that state which is mandatory, whichever law
would otherwise be applicable; d) if that measure is incompatible with a later
measure taken in a non-Contracting State that would have had jurisdiction on the
basis of jurisdiction provided for by the Hague Convention 2000, where this later
measure fulls the requirements for recognition in the requested State; and e) if
104 Clive, op. cit., note 59, p. 12
105 Hague Convention 2000, op. cit., note 13, Art. 22(1)
106 Lagarde, op. cit. note 55, para 116
EU AND COMPARATIVE LAW ISSUES AND CHALLENGES SERIES – ISSUE 3
824
the procedure referring to the placement of the adult in an establishment or other
place where protection can be provided has not been complied with.107
It is clear from the provision on enforcement that the provision applies only to
measures taken by a Contracting State whose recognition is sought in another
Contracting State. At present, the application of this provision is geographically
limited in the EU, as there are only 10 Member States which are contracting
parties to the Hague Convention 2000. e Hague Convention 2000 is virtu-
ally non-applicable in respect of mutual recognition and enforcement of measures
between Member States. e lack of a legal framework to ensure mutual recogni-
tion and enforcement of protection measures in relation to adults, in particular
with respect to the recognition of foreign powers of representation, is currently
one of the biggest disadvantages of the EU system.108 e free movement of such
measures in the EU will certainly contribute if the EU raties the Hague Conven-
tion 2000. If Member States are left to ratify the Hague Convention 2000 inde-
pendently, the procedure will, as in the Hague Convention 1996, take a very long
time. e situation would be most eectively solved by a new instrument at EU
level. e new instrument is in favor of the fact that, at the EU level, an equiva-
lent to the ground for non-recognition because the measure was not taken by an
authority whose jurisdiction was not based on one of the grounds envisaged by the
Hague Convention 2000, has been removed from the recent regulations.109 It is
not only that this reason is not included in the list of possible reasons for rejection,
but there is the existing EU standard on prohibition of review of jurisdiction of
the court of origin.110 It is clear that such arrangement with respect to the progress
of European private international law is outdated and needs to be updated in line
with European trends that aim at building mutual trust between Member States.
With regard to the enforcement of measures, the Hague Convention 2000 pro-
vides for a procedure for the declaration of enforceability, stating that measures
taken in one Contracting State and enforceable there shall, upon request by an
interested party, be declared enforceable and registered for the purpose of en-
forcement in another Member State. In so doing, Contracting States shall apply
a simple and rapid procedure, while the declaration of enforceability or registra-
tion may be refused only for one of the reasons for which their recognition may
be refused.111 In this case, there is also a question the declaration of enforceability
107 Hague Convention 2000, op. cit., note 13, Art. 22(2)
108 Curry-Sumner, op. cit., note 11, p. 66
109 Brussels IIbis Regulation, Art. 22 and 23; Maintenance Regulation, Art. 24, Succession Regulation,
Art. 40, Brussels I Regulation Recast, Art. 41(1)
110 Brussels IIbis Regulation, Art. 24, Brussels I Regulation Recast, Art. 41(3)
111 Hague Convention 2000, op. cit., note 13, Art. 25
Martina Drventić: THE PROTECTION OF ADULTS IN THE EUROPEAN UNION 825
within the framework of European private international law. Shortcomings of this
concept have already been recognized at EU level.112 e need for the declaration
of enforceability has become increasingly excluded from European legislation.113
4. CONCLUSION
Vulnerable adults who are unable to protect their interests need to be specically
protected by a special legal framework. At EU level, there is still no special legal
framework for adequate protection of vulnerable adults in cross-border situations.
Each Member State has its own legal framework, which provides for dierent legal
instruments for the protection of vulnerable adults. Such an arrangement causes
unpredictability when it comes to cross-border cases. Ratication of the Hague
Convention 2000 by the EU can be a solution to the existing legal unpredictabil-
ity in this area. A further step is the adoption of a special legal instrument at EU
level, in the form of a regulation, for which the legal basis is found in Article 81
TFEU on judicial cooperation in civil matters. e EU-level regulation is a more
eective and comprehensive solution, which has the potential to ll the gaps in
the provisions of the Hague Convention 2000. Guided by the principle of mutual
trust of Member States, specic provisions contained in the Hague Convention
2000 have reached more modern forms within the framework of the European
private international law.
Despite the well-grounded reasons and the existence of the basis within the EU
primary legislation, the introduction of private international law rules for the in-
ternational protection of adults in the EU remains only in the form of recom-
mendations. As early as in 2008, the Parliament adopted a Resolution, which
requires the Commission to adopt a legislative proposal that will facilitate the free
movement of Europe-wide protection measures relating to vulnerable adults. In
its subsequent Initiative and Added Value Assessment, the Parliament justied
the reasons for the need to adopt a special regulation, which did not dier greatly
from those contained in the existing legal framework for the protection of families
and children at EU level. Not even after the second Parliament Resolution of 2017
did the Commission express their will to adopt the proposal. Such stance limits
the rights of the vulnerable adults to the freedom of movement. It suggests that
112 Arenas García R., Abolition of Exequatur: Problems and Solutions – Mutual Recognition, Mutual Trust
and Recognition of Foreign Judgments: Too Many Words in the Sea, Yearbook of Private International Law,
2010, p. 362
113 Maintenance Regulation regarding decisions given in a Member State bound by the 2007 Hague Pro-
tocol, Art. 17(2); Brussels IIbis Regulation regarding decisions on the right to access, Art. 41(1), and a
decision on the return of a child, Art. 42., Brussels I Regulation Recast, Art. 39, Protection Measures
Regulation, Art. 4
EU AND COMPARATIVE LAW ISSUES AND CHALLENGES SERIES – ISSUE 3
826
EU legislator considers that the mobility of vulnerable adults does not aect the
freedom of movement of workers, at least not to the extent to which it is linked to
the mobility of families and children. us the current state of play of vulnerable
adults protection in the EU is contrary to the recommendation of the Committee
on the Rights of Persons with Disabilities which warns the EU that the persons
with disabilities and their families must enjoy the right to freedom of movement
at the same level as other persons do.
REFERENCES
BOOKS AND ARTICLES
1. Arenas García R., Abolition of Exequatur: Problems and Solutions – Mutual Recognition, Mu-
tual Trust and Recognition of Foreign Judgments: Too Many Words in the Sea, Yearbook of
Private International Law, Vo l . 12, 2010, pp. 351-375
2. Clive, E., e New Hague Convention on the Protection of Adults, Yearbook of Private Inter-
national Law, Vol. 2, 2000, pp. 1-25
3. Dutta, A., Cross-border protection measures in the European Union, Journal of Private Interna-
tional Law, Vol. 12, No. 1, 2016, pp. 169-184
4. Hendricks, A., UN Convention on the Rights of Persons with Disabilities, European Journal of
Public Health, Vol. 14, 2007, pp. 273–298
5. Hrstić, D., Anticipirano odlučivanje pacijenata, Zagrebačka pravna revija, Vol. 5, No. 1,
2016, pp. 11-36
6. Korać Graovac, A.; Čulo, A., Konvencija o pravima osoba s invaliditetom - novi pristup
shvaćanju prava osoba s duševnim smetnjama, Zbornik Pravnog fakulteta u Zagrebu, Vol. 61.,
No. 1, 2011, pp. 65-109
7. Kruger, T., Habitual Residence: e Factors that Courts Consider, in: Beaumont, P.; Danov
M.; Trimmings, K.; Yüksel, B. (eds.), Cross-Border Litigation in the Europe, Hart Publish-
ing, Oxford and Portland, Oregon, 2017, pp. 741-755
8. Marinić, M., Jesu li osobe s invaliditetom „invalidi“? Pitanje konceptualne naravi, ali i potreba
izjednačavanja mogućnosti, Društvena istraživanja: časopis za opća društvena pitanja, Vol . 17,
No. 1-2, 2008, pp. 93-94
9. MacKay, D., e United Nations Convention on the Rights of Persons with Disabilities, Syra-
cuse Journal of International Law and Commerce, Vol. 34, 2007, pp. 323-331
10. Nifosi-Sutton, I., e Protection of Vulnerable Groups under International Human Rights Law,
Routledge, London, 2017
11. Poretti, P., Vulnerable Person, in: Bartolini, A.; Cippitani, R.; Colcelli, V. (eds.), Dictionary
of Statuses within EU Law, Springer International Publishing, 2019, pp. 621-629
12. Ruck Keene, A., e Cross-border Protection of Adults: Hague 35, in: Frimston, R.; Ruck
Keene, A.; Van Overdijk, C.; D Ward, A. (eds.), e International Protection of Adults,
Oxford University Press, Oxford, 2015, pp. 77-174
Martina Drventić: THE PROTECTION OF ADULTS IN THE EUROPEAN UNION 827
13. Von Hein, J., Chapter A.4: Adults, protection of, in: Basedow, J.; Rühl, G.; Ferrari, F.; de
Miguel Asensio, P. (eds.) Encyclopedia of Private International Law, Cheltenham: Edward
Elgar Publishing, 2017, pp. 298-300
14. Weller, M., Mutual trust: in search of the future of European Union private international law,
Journal of Private International Law, Vol. 11, No. 1, 2015. pp. 64-102.
15. Weisbrock, A., Disability as a Form of Vulnerability under EU and CoE Law: Embracing the
‘Social Model’?, in: Ippolito, F.; Iglesias Sánchez, S. (eds.), Protecting Vulnerable Groups,
Hart Publishing, London, 2015, pp. 71-95
16. Župan, M., Roditeljska skrb u sustavu Haške konvencije o mjerama dječje zaštite iz 1996., in:
Rešetar, B. (ed.), Pravna zaštita prava na (zajedničku) roditeljsku skrb, Pravni fakultet Osi-
jek, Osijek, 2012, pp. 199-222
17. Župan, M.; Ledić, S.; Drventić, M., Provisional Measures and Child Abduction Proceedings,
Pravni vjesnik : časopis za pravne i društvene znanosti Pravnog fakulteta Sveučilišta J.J.
Strossmayera u Osijeku, Vol . 35, No. 1, 2019, pp. 9-32.
18. Župan, M., e Best Interest of the Child: A Guiding Principle in Administering Cross-Border
Child-Related Matters?, in: Liefaard, T.; Sloth-Nielsen, J. (eds), e United Nations Con-
vention on the Right of the Child. Taking Stock after 25 Years and Looking Ahead, Brill
-Nijho, Leiden - Boston, 2017, pp. 213-230
COURT OF JUSTICE OF THE EUROPEAN UNION
1. Case C-523/07 A [2009] ECLI:EU:C:2009:225
2. Case C-497/10 PPU Mercredi [2010] ECLI:EU:C:2010:829
3. Case C-376/14 PPU C [2014] ECLI:EU:C:2014:2268
4. Case C-499/15 W and V [2017] ECLI:EU:C:2017:118
5. Case C-111/17 PPU OL [2017] ECLI:EU:C:2017:436
6. Case C-512/17 HR [2018] ECLI:EU:C:2018:513
7. Case C-393/18 PPU UD [2018] ECLI:EU:C:2018:835
EU LAW AND OTHER DOCUMENTS
Regulations
1. Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June
2008 on the law applicable to contractual obligations (Rome I) [2008] OJ L177/6
2. Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 De-
cember 2012 on jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters [2012] OJ L351/ 1
3. Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July
2012 on jurisdiction, applicable law, recognition and enforcement of decisions and accept-
ance and enforcement of authentic instruments in matters of succession and on the creation
of a European Certicate of Succession [2012] OJ L201/ 107
EU AND COMPARATIVE LAW ISSUES AND CHALLENGES SERIES – ISSUE 3
828
4. Regulation (EU) No 606/2013 of the European Parliament and of the Council of 12 June
2013 on mutual recognition of protection measures in civil matters [2013] OJ L181/4
Preparatory Acts
1. European Parliament, European Parliament resolution of 18 December 2008 with rec-
ommendations to the Commission on cross-border implications of the legal protection of
adults (2008/2123(INI)) [http://www.europarl.europa.eu/sides/getDoc.do?type=TA&lan-
guage=EN&reference=P6-TA-2008-638] Accessed 25.02.2019
2. European Commission, Follow-up to the 2008 European Parliament resolution with rec-
ommendations to the Commission on the legal protection of adults: cross-border implica-
tions, SP(2009)988.
3. European Parliament, Protection of Vulnerable Adults European Added Value Assessment
Accompanying the European Parliament’s Legislative Initiative Report (Rapporteur: Joëlle
Bergeron). [http://www.europarl.europa.eu/RegData/etudes/STUD/2016/581388/EPRS_
STU(2016)581388_EN.pdf] Accessed 25.02.2019
4. European Parliament, European Parliament resolution of 1 June 2017 with recommen-
dations to the Commission on the protection of vulnerable adults (2015/2085(INL))
[http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&refer-
ence=P8-TA-2017-0235] Accessed 15.03.2019
5. European Commission, Answer - Protection of vulnerable adults - E-003844/2017, 30 Au-
gust 2017
6. European Commission, Communication from the Commission to the European Parlia-
ment, the Council, the European Economic and Social Committee and the Committee
of the Regions. European Disability Strategy 2010-2020: A Renewed Commitment to a
Barrier-Free Europe, COM(2010) 636 nal, 15.11.2010, p. 3
7. Curry-Summer, I., Vulnerable Adults in Europe, EPRS European Parliamentary Research
Service, Protection of Vulnerable Adults. European Added Value Assessment. Accompany-
ing the European Parliament’s Legislative Initiative Report (Rapporteur: Joëlle Bergeron),
Study, [http://www.europarl.europa.eu/RegData/etudes/STUD/2016/581388/EPRS_
STU(2016)581388_EN.pd] Accessed 25.02.2019
UN CONVENTIONS AND OTHER DOCUMENTS
1. e United Nations Convention on the Rights of Persons with Disabilities, Treaty Series
2515 (2006): 3
2. United Nations Committee on the Rights of Persons with Disabilities, Concluding obser-
vations on the initial report of the European Union, CRPD/C/EU/CO/1, Distr.: General
2 October 2015, paras 38 and 39, [https://daccess-ods.un.org/TMP/4831370.41330338.
html] Accessed 23.02.2019
Martina Drventić: THE PROTECTION OF ADULTS IN THE EUROPEAN UNION 829
HCCH CONVENTIONS AND OTHER DOCUMENTS
1. HCCH, Convention du 17 juillet 1905 concernant l’interdiction et les mesures de protec-
tion, [https://www.hcch.net/en/instruments/the-old-conventions/1905-deprivation-of-civ-
il-rights-convention] Accessed 25.02.2019
2. HCCH, Convention of 5 October 1961 concerning the powers of authorities and the law
applicable in respect of the protection of infants, [https://www.hcch.net/en/instruments/
conventions/full-text/?cid=39] Accessed 22.03.2019
3. HCCH, Convention of 14 March 1978 on the Law Applicable to Agency, [https://www.
hcch.net/en/instruments/conventions/full-text/?cid=89] Accessed 25.03.2019
4. HCCH, Convention of 25 October 1980 on the Civil Aspects of International Child Ab-
duction, [https://assets.hcch.net/docs/e86d9f72-dc8d-46f3-b3bf-e102911c8532.pdf] Ac-
cessed 15.02.2019
5. HCCH, Convention of 29 May 1993 on Protection of Children and Co-operation in
Respect of Intercountry Adoption, [https://www.hcch.net/en/instruments/conventions/
full-text/?cid=69] Accessed 25.02.2019
6. HCCH, Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition,
Enforcement and Co-operation in Respect of Parental Responsibility and Measures for
the Protection of Children, [https://www.hcch.net/en/instruments/conventions/full-tex-
t/?cid=70] Accessed 25.02.2019
7. HCCH, Convention of 13 January 2000 on the International Protection of Adults, [https://
www.hcch.net/en/instruments/conventions/full-text/?cid=71] Accessed 27.02.2019
8. HCCH, Outline Hague Protection of Adults Convention, [https://assets.hcch.net/docs/
a3920f8f-ee66-470e-943b-cf6865af8226.pdf] Accessed 27.02.2019
9. HCCH, Vulnerable Adults – An Important Step Forward, [https://www.hcch.net/en/
news-archive/details/?varevent=654] Accessed 23.02.2019
10. Legarde, P., Explanatory Report on the 2000 Hague Protection of Adults Convention,
[https://www.hcch.net/en/publications-and-studies/details4/?pid=2951&dtid=3] Accessed
27.03.2019
COUNCIL OF EUROPE CONVENTIONS AND OTHER DOCUMENTS
1. Council of Europe, European Social Charter, 18 October 1961, ETS 35
2. Council of Europe, Principles concerning continuing powers of attorney and advance direc-
tives for incapacity, Recommendation CM/Rec(2009)11 and explanatory memorandum.
[https://rm.coe.int/168070965f] Accessed 26.02.2019
WEBSITE REFERENCES
1. World Health Organization, International Classication of Impairments, Disabilities, and
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cordance with resolution WHA29.35 of the Twenty-ninth World Health Assembly, May
1976, [https://apps.who.int/iris/bitstream/handle/10665/41003/9241541261_eng.pdf;j-
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