Changes from report parliamentary committee draft to plenary report

AddedRecital 33: (33) According to Article 19 of the UNCRPD, persons with disabilities are to have the opportunity to choose their place of residence and where and with whom they live, on an equal basis as others, and not to be obliged to live in a particular living arrangement. For the purposes of this Regulation, situations may arise where the authorities of a Member State need to take a measure concerning formal support and living arrangements. In line with Article 19 of the UNCRPD, the courts of a Member State should obtain free and informed consent of the adult where a decision concerning the place of residence or temporary placement of that adult is contemplated in order to provide protection. Competent authorities should provide support at all times for adults to make decisions whenever possible in line with the best interpretation of their will and preferences. Where such formal support and living arrangements is to be implemented in another Member State, a consultation procedure for obtaining consent of the Central Authority of the Member State of implementation should be carried out prior to implementing those measures. The request for consent made by the authority of origin should include the reasons for the proposed measure, and the views expressed by the adult concerned where possible, in light of Article 19 of the UNCRPD. The Central Authority of the Member State of implementation should be able to decide promptly whether to grant the consent or to refuse it. The absence of a re…

RemovedRecital 55: (55) Besides the above-described data processing, personal data should also be processed under this Regulation for the purposes of establishing the system for the interconnection of protection registers and other registers of powers of representation and of ensuring the maintenance and proper functioning of that system. This additional processing is justified by the need that Member States’ competent authorities and Central Authorities with a legitimate interest have access to information on whether a particular adult is protected in another Member State, with a view to ensuring continued protection of that adult in cross-border situations and to increasing legal certainty and predictability. The access should be strictly limited to information necessary for the purposes set out in this Regulation in relation to the vulnerable adult concerned by the ongoing proceedings before the requesting authorities. Member States should be responsible for the technical management, maintenance, and security of their registers and, as far as their national law provides, for the correctness and reliability of the data included therein. Data relating to data subjects should be primarily stored in the registers maintained by Member States. In addition, the Commission may need to process data for the purposes of developing and maintaining the system of interconnection and temporarily store data that are accessed through the system of interconnection.

AddedRecital 35: (35) Representatives of adults who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their interests, should be able to invoke their powers to support those adults in exercising their legal capacity or represent those adults and to protect the interests of those adults without obstacles within the Union. Therefore, representatives should be able to demonstrate easily their status and powers in another Member State, for instance in a Member State in which adult’s real property or other assets are located. To enable them to do so, a European Certificate of Support and Representation (‘the Certificate’) should be created. That Certificate should be a uniform certificate to be issued for use in another Member State. In order to respect the principle of subsidiarity, the Certificate should not take the place of internal documents, which may exist for similar purposes in the Member States.

RemovedArticle 1 – paragraph 1 – point e: (e) provide for the acceptance of authentic instruments in all Member States in the matters falling under this Regulation;

AddedRecital 36: (36) The Certificate can be requested by the adult or, where applicable, by the the adult's representative on the basis of an existing measure or confirmed powers of representation (the ‘source measure’ and ‘source confirmed powers of representation’). It should thus only be issued in situations where an adult is being supported in their decision-making or where they are effectively not in a position to protect his or her interests and the representative is entitled to actively represent that adult in one or more specific matters. The Certificate should include information on the extent of the powers which the representative is entitled to exercise on behalf of an adult and, where relevant, on the matters where the representative is not entitled to act or is entitled to act under certain conditions.

RemovedArticle 1 – paragraph 1 – point g a (new): (ga) provide for the use of AI, where appropriate, in assisting the vulnerable adult in exercising her or his legal capacity in the matters falling under this Regulation;

AddedRecital 37: (37) The use of the Certificate should not be mandatory. This means that a representative of a adult entitled to apply for a Certificate should be under no obligation to do so but should be free to use national documents or other instruments available under this Regulation (a measure or an authentic instrument) when invoking his or her powers in another Member State. Persons acting on their own behalf should not be required to present a Certificate, but should have the possibility of choosing when the Certificate should be used by a representative. It should be possible, however, for the Certificate to be used by representatives who need to demonstrate their powers to act in support or on behalf of an adult.

RemovedArticle 1 – paragraph 1 – point h a (new): (ha) establish support measures for vulnerable adults in the matters falling under this Regulation;

AddedRecital 39: (39) To ensure that the process of the issuance of the Certificate is uniform throughout the Union, this Regulation should provide rules on the issuance of the Certificate. The issuing authority should issue the Certificate upon application and after verifying the elements to be certified. The process for the application for and the issuance of the Certificate should be simplified by the fact that the authority issuing the Certificate has access to the source measure or source confirmed powers of representation and has knowledge concerning their continued validity and the information contained therein. Where the applicant indicates in the application for a Certificate that the Certificate should serve to demonstrate their powers for a specific purpose or in a specific context, the issuing authority should, as far as possible, include in the Certificate sufficiently detailed information that reflects that purpose or context. The original of the Certificate should remain with the issuing authority, which should issue one or more certified copies of the Certificate to the applicant. The Certificate should be issued in a mandatory form set out in the annex to this Regulation. To reduce translation costs when the Certificate is presented in another Member State, the form for the Certificate set out in the annex to this Regulation should be available in all Union languages.

RemovedArticle 2 – paragraph 1: 1. This Regulation shall apply in civil matters to the protection in cross-border situations of adults who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their interests or require support and safeguards in the exercise of their legal capacity.

AddedRecital 41: (41) The Certificate should produce the same effects in all Member States. It should not be an enforceable title in its own right but should have an evidentiary effect and should be presumed to demonstrate accurately elements included in the Certificate which have been established under the law applicable to the protection of a particular adult or under any other law applicable to specific elements. That presumption of accuracy is strengthened by the fact that before issuing the Certificate, the issuing authority should verify, that the source measure or the source confirmed powers of representation remain valid and have not been replaced by a later measure or confirmed powers of representation. However, the evidentiary effects of the Certificate should not extend to elements which are not governed by this Regulation, such as to the question whether or not a particular asset belonged to the adult.

RemovedArticle 2 – paragraph 3 – point c: (c) where applicable, guardianship, curatorship and analogous institutions;

AddedRecital 42: (42) Any person who deals with a representative indicated in a valid Certificate as being entitled to represent an adult in a specific matter should be afforded appropriate guarantees if they acted in good faith relying on the accuracy of the information certified in the Certificate. The same guarantee should be afforded to any person who, relying on the information certified in a valid Certificate, gives access to the adult’s representative to real property or other assets of the adult, makes payments to the representative, or buys or receives property from that representative, where the representative is indicated in a valid Certificate as being entitled to act on behalf of the adult in those matters. The protection should be ensured if certified copies which are still valid are presented.

RemovedArticle 2 – paragraph 3 – point c a (new): (ca) the provision of measures to support the vulnerable adult in exercising her or his legal capacity;

AddedRecital 44: (44) To ensure a continuous protection of adults in cross-border situations in the Union, competent authorities and Central Authorities should have access to relevant information on the existence of measures taken by other authorities, including those measures that have been taken in another Member State. In addition, it is crucial for safeguarding of the right to autonomy and freedom to make one's own choices that the will expressed by an adult in powers of representation is respected, even in cases where those powers of representation have been granted by the adult in another Member State or confirmed by competent authorities of another Member State.

RemovedArticle 2 – paragraph 3 – point d: (d) the designation and functions of any person or body assisting or representing the vulnerable adult, or having charge of the vulnerable adult's person or property;

AddedRecital 45: deleted

RemovedArticle 2 – paragraph 3 – point e: (e) decisions concerning the placement of the adult in an establishment or other place where support or protection can be provided once it has been established by the court that it is in the best interests of the vulnerable adult;

AddedRecital 46: deleted

RemovedArticle 2 – paragraph 3 – point g: (g) the authorisation of a specific intervention for the support or protection of the person or property of the vulnerable adult.

AddedRecital 47: deleted

RemovedArticle 3 – paragraph 1 – point 1 a (new): (1a) ‘vulnerable adult’ means an adult who, by reason of an impairment or insufficiency of her or his personal faculties, is not in a position to protect their interests or requires support and safeguards in the exercise of their legal capacity; / (This amendment applies throughout the text and shall replace all occurrences of 'adult' except in Article 2,(3) point (a) and Article 3, points (1) and (3). Adopting it will necessitate corresponding changes throughout.)

AddedRecital 54 a (new): (54a) In cases where a disclosure or confirmation of the relevant information could jeopardise the health, safety or liberty of the adult or another person, for example where the adult or his or her representative have been the victims of domestic violence and a court has ordered the new address of the adult not to be disclosed to the applicant, this Regulation should aim to ensure that a delicate balance is struck. While this Regulation should provide that a Central Authority, court or competent authority should not disclose or confirm to the applicant or to a third party any information gathered or transmitted for the purposes of this Regulation, where it determines that to do so could jeopardise the health, safety or liberty of the adult or another person, it should nonetheless provide that that should not impede the gathering and transmitting of information by and between Central Authorities, courts and competent authorities in so far as necessary to carry out the obligations laid down in this Regulation. This means that, where possible and appropriate, it should be possible for an application to be processed under this Regulation without the applicant being provided with all information necessary to process it. For example, where national law so provides, a Central Authority should be able to institute proceedings on behalf of an applicant without passing on the information about the adult's whereabouts to the applicant. However, in cases where merely making the request …

RemovedArticle 3 – paragraph 1 - point 6: deleted

AddedRecital 55: deleted

RemovedArticle 3 - paragraph 1 - point 6 a (new): (6a) ‘court’ means any judicial or administrative authority of a Member State with jurisdiction in the matters falling within the scope of this Regulation pursuant to Article 2; / (This amendment applies throughout the text and shall replace all occurrences of 'authority' except: (1) when used to define another term in Article 3; (2) when used as part of a defined term pursuant to Article 3 or as part of the following undefined terms: 'Central Authority', 'public authority' and 'issuing authority'. Adopting it will necessitate corresponding changes throughout.)

AddedRecital 58: (58) Appropriate safeguards should exist for such processing of special categories of personal data and such data should be processed under this Regulation only where it is necessary for and proportionate to the purposes of processing identified under this Regulation.

RemovedArticle 7 a (new): Article 7a / Support Measures for jurisdiction rules / In proceedings concerning the protection of a vulnerable adult that fall within the scope of this Regulation, Courts shall ensure, in accordance with national procedural law, that the vulnerable adult has access to appropriate legal support, including: / (a) assistance as regards the determination of jurisdiction, including guidance on the most appropriate forum in the event that multiple Member States could be competent under this Chapter; / (b) providing videoconferencing or other distance communication means where a vulnerable adult is heard in judicial proceedings.

AddedRecital 60: (60) In order to ensure uniform conditions for the implementation of this Regulation as regards the establishment of the decentralised IT system provided for in this Regulation, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council20 .

RemovedArticle 8 a (new): Article 8a / Support measures under applicable law rules / The competent authorities shall: / (a) provide multilingual guidance tools to inform vulnerable adults and their representatives about the applicable law under this Chapter, ensuring they understand the legal consequences of protection measures in different Member States; / (b) establish dedicated legal information services to help vulnerable adults understand and deal with conflicts of law, particularly when advance planning instruments or decisions made in one jurisdiction require recognition elsewhere.

AddedRecital 65 a (new): (65a) In line with UNCRPD, to which the Union and the Member States are parties, persons with disabilities must enjoy the right to legal capacity on an equal basis with others in all aspects of life. The rules applicable for this Regulation should allow a shift from substitute decision-making regimes - such as guardianship, curatorship, and analogous institutions - toward supported decision-making arrangements that respect the rights, will, and preferences of the individual. In recognition of the need to ensure legal certainty and allow sufficient time for Member States to adjust their national legislation and administrative practices, this Regulation should continue to apply to existing protective measures of a substitute nature until 2035. This transitional provision should apply strictly within the scope of this Regulation, which is limited ratione materiae to the private international law rules governing the recognition, enforcement, and applicable law of such protection measures within the Union. It should not affect the procedural autonomy of the Member States or their competence to determine the substantive and procedural frameworks applicable to protection regimes under national law. Moreover, a similar policy orientation should be envisaged for related areas, such as the placement of adults in establishments, where the principles of autonomy and supported decision-making must also be progressively applied in full respect of the national traditions which are favourabl…

RemovedArticle 10 – paragraph 1 – point a: (a) if the measure was taken, except in a case of urgency, in the context of a judicial or administrative proceedings, without the adult having been provided the opportunity to be heard or without respecting the will and preference of the adult;

AddedRecital 65 b (new): (65b) In order to ensure that this Regulation remains effective and aligned with evolving human rights standards, particularly those set out in the UNCRPD, the Commission should carry out an evaluation of its application. This review should pay particular attention to the functioning and advisability of decision-making regimes applied to adults, including the determination of their ability to act on their own behalf, the institution of protective measures, and the placement of adults in establishments. The evaluation should be based on information gathered from Member States and should assess whether further legislative measures are necessary. To ensure transparency and accountability, where no legislative proposal accompanies the report, the Commission should publicly justify its decision within two years of the report’s publication.

RemovedArticle 12 – paragraph 2 a (new): 2a. Before enforcing a measure restricting a vulnerable adult’s legal capacity, the competent authority shall consider whether a less restrictive alternative, including supported decision-making mechanisms, could achieve the same objective in a manner more consistent with the vulnerable adult’s rights and preferences.

AddedArticle 1 – paragraph 1 – point a: (a) determine the Member State whose courts have jurisdiction to take measures directed to the protection of the person or property of the adult;

RemovedArticle 14 – paragraph 2: 2. The authority before which a measure taken in another Member State is invoked or before which recognition or enforcement of a measure taken in another Member State is sought or contested, may only require the applicant to provide a translation or a transliteration of the contents of the attestation referred to in paragraph (1), point (b) where that authority considers that the information included in the form is not sufficient for processing the application.

AddedArticle 1 – paragraph 1 – point b: (b) determine which law is to be applied by such courts in exercising their jurisdiction;

RemovedArticle 15 a (new): Article 15a / Support measures for enforcement of measures / Competent authorities shall designate cross-border liaison officers to assist vulnerable adults and their representatives in addressing enforcement-related difficulties.

AddedArticle 1 – paragraph 1 – point c: (c) determine the law applicable to the support and representation of the adult;

RemovedArticle 19 – paragraph 1: 1. Central Authorities shall carry out the following tasks: / (a) cooperate and promote cooperation among the competent authorities in their Member States in the application of this Regulation; / (b) communicate information on national laws, procedures and services in matters relating to the protection of vulnerable adults, and take the measures that they consider appropriate for improving the application of this Regulation; / (c) facilitate communications, by every means, between the competent authorities.

AddedArticle 1 – paragraph 1 – point e: (e) provide for the recognition of authentic instruments in all Member States in the matters falling under this Regulation

AddedArticle 1 – paragraph 1 – point f: (f) establish cooperation between the courts, competent authorities and Central Authorities of the Member States to achieve the purposes of this Regulation;

AddedArticle 1 – paragraph 1 – point g: (g) digitalise the communications between courts, competent authorities and Central Authorities, and provide digital means of communication between natural and legal persons and courts and competent authorities;

AddedArticle 1 – paragraph 1 – point h a (new): (ha) establish support measures for adults in the matters falling under this Regulation (23 Rapporteur);

AddedArticle 1 – paragraph 1 – point i: deleted

AddedArticle 2 – paragraph 1: 1. This Regulation shall apply in civil matters to the protection in cross-border situations of adults who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their interests or require support and safeguards in the exercise of their legal capacity on a temporary or permanent basis (24 Rapporteur).

AddedArticle 2 – paragraph 3 – point a: (a) determining the extent to which an adult is able to act on their own behalf and the institution of a protective regime;

AddedArticle 2 – paragraph 3 – point a a (new): (aa) measures to provide access by adults to the support they may require in exercising their legal capacity;

AddedArticle 2 – paragraph 3 – point a b (new): (ab) powers of representation granted by adults for their support or representation, to be exercised when those adults require support in protecting their interests;

AddedArticle 2 – paragraph 3 – point b: deleted

AddedArticle 2 – paragraph 3 – point c: deleted

AddedArticle 2 – paragraph 3 – point d: (d) the designation and functions of any person or body providing support in decision making to an adult with regard to property, or other forms of assistance;

AddedArticle 2 – paragraph 3 – point d a (new): (da) the designation and functions of any person or body that is granted the powers of representation;

AddedArticle 2 – paragraph 3 – point d b (new): (db) the designation and functions of any person or body that is granted the powers of representation;

AddedArticle 2 – paragraph 3 – point e: deleted

AddedArticle 2 – paragraph 3 – point f: deleted

AddedArticle 2 – paragraph 3 – point g: deleted

AddedArticle 2 – paragraph 5: 5. Paragraph (4) does not affect, in respect of the matters referred to therein, the entitlement of a person to provide the adult support in decision making, nor the executing powers of representation.

AddedArticle 3 – paragraph 1 – point 2: (2) ‘measure’ means any measure taken by a court or a competent authority of a Member State, whatever it may be called, directed to the support or protection of an adult or their property;

AddedArticle 3 – paragraph 1 – point 5 – introductory part: (5) ‘authentic instrument’ means a document in a matter of support or protection of an adult which has been formally drawn up or registered as an authentic instrument in a Member State and the authenticity of which: