The proposed Regulation on the protection of adults, which has already been analyzed in this forum, under negotiation since June 2023, will be integrated into European Law in the new area of Personal Law, which completes Family and Inheritance Law. It represents an undoubted benefit for the free movement of people in the territory of the European Union, both with respect to the measures adopted by the national competent authority – now the Court, comprising judicial authorities and extrajudicial authorities – together with the Central Authorities, and in relation to the voluntary measures that the adult adopts in anticipation of a future disability, which are carried out in Spain and in numerous Member States before a notary.
To the complexity of the applicable law, which Chapter III refers en bloc to the 2000 Hague Convention on the same matter, serious difficulties are added to the fit between both international instruments since it is not the Regulation that establishes the universality of the applicable law. .
With this, it presents the worst technical proposal than R. (CE) 4/2009 Food, in relation to the Protocol on applicable law of the 2007 Convention. For its part, Chapter II on Jurisdiction does not include a contentious appeal, so it does not its recognition and execution is contemplated, expressly excluded in R. (EU) 2012/1215 (Brussels I bis)
This is because the Hague Conventions are not based on mutual trust (see Convention Sentences of 2019), which produces an undoubted setback in the acquisby having to resort to national law. The Proposal separates itself from the 2000 Convention by allowing a limited choice of forum (Court); and establishes in Chapter IV the recognition of non-contentious measures, with a list of grounds for opposition. The treatment of public documents, generally notarial, established in Chapter V is insufficient, especially in the latest version of the text of the December 2024 proposal.
Two underlying problems are added to the above. The first, the variable geometry that creates the referral – not Europeanization since its updating is not foreseen at all, not even for the admission of the EU as REIA – of the 2000 Hague Convention on the international protection of adults and the second, the paradigm shift that the 2006 New York Convention on the rights of persons with disabilities represents for the exercise of legal capacity, which prevents the protection or placement of adults with disabilities. These issues are still open, since the proposal is based on the “protection and representation” of adults with disabilities.
Likewise, the planned creation of a European certificate of representation together with the interconnection of national electronic records on this matter in the field of the digitalization of Justice, a matter on which There are numerous doubts.
The certificate is difficult to understand from the Spanish perspective, in which Law 8/2021 made an interpretation of Art. 12 of the New York Convention, which is not uniform in the European Union.
Only the Spanish delegation, together with the Maltese and Croatian delegation, considers, in response to the communication made by the competent United Nations Commission, that the Regulations and the Convention that serves as their basis violate the New York Convention.
In this context, the European certificate of representation (Chapter VII) presents the initial problem of its terminology. The person with a disability may not be represented, unless it is through temporary judicial support measures or through the prior granting of preventive powers, if they are directed at the disability of the principal or contemplate its non-extinction for such reason, which, remember, cannot be represented. be declared judicially.
The certificate will be digital as far as possible, by application of R. (EU) 2023/2844 and will be issued by the Court or competent authority, in accordance with its Annex VII without resorting to an implementing Regulation, preferring the regulatory scheme of the R. ( EU) 2019/1111 (Brussels II Ter) or previously the extracts provided for in R. (EC) 4/2009. However, R (EU) 650/2012 Successions, in which the certificate has a clear inspiration, approves the annexes in an implementing R. of the Commission, 1329/2014 that publishes the relevant forms including the CSE.
Its validity will be temporary, for a period that must be adapted to the measure adopted, with a maximum duration of five years; and supposes a legitimation of the support measures, powers or confirmed powers (where action by the Court is foreseen later) adopted, against any third party throughout Europe, including in relation to the control, administration or disposal of the adult’s movable or immovable property. . It does not exclude, as the R. Inheritance does, the operation and effects of the national Public registries, nor are adaptation measures foreseen.
The certificate will be issued at the request of whoever has a legitimate interest in the opinion of the Court or whoever authorizes the public document – generally Notaries – keeping a list of those issued (note of sac, in notarial offices). It may be modified or revoked, ex officio – if permitted by national law – or at the request of a party with a legitimate interest, if it is demonstrated that any of its elements are not true or valid. Persons in possession of copies will be informed of this without delay.
In short, the proposal represents an enormous challenge, in that the situation in the Member States of support measures and preventive powers is very different from each other, as has been the incorporation of the New York Convention into each legal system. .
When it has been approved – which is certain to happen – it will require its implementation in Spanish Law and the modification of Law 8/2021.
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