Protection of adults with a European perspective

In Germany, notaries play a central role in the protection of adults through the provision of advice on, and the public documentation of, lasting powers of attorney and advance healthcare directives. In addition, the German Federal Chamber of Notaries maintains the Central Register of Lasting Powers of Attorney, which enables courts and medical professionals to verify the existence of such instruments. Whilst legally secure mechanisms are therefore well established at national level, there has to date been no EU-wide harmonisation of private international law in the field of the protection of adults. As a result, significant legal uncertainty arises in cross-border cases owing to divergent national rules, particularly with regard to the determination of the applicable law.

Against this background, on 31 May 2023 the European Commission presented its proposal for a regulation of the European Parliament and of the Council Jurisdiction, applicable law, recognition and enforcement of measures and cooperation in matters relating to the protection of adults. The proposed Regulation seeks to establish a coherent framework at European Union level designed to enhance legal certainty and to ensure the effective operation of protection measures for adults and their representatives in cross-border situations, building upon the system established by the Hague Convention of 13 January 2000 on the International Protection of Adults.

The Commission proposes to define the scope of application, rules on jurisdiction, and applicable law in close alignment with the 2000 Hague Convention. The proposal further seeks to strengthen the recognition and enforcement of protection measures by limiting the grounds for refusal of recognition to exceptional cases and by abolishing the exequatur procedure. In addition, the draft Regulation aims to facilitate the cross-border utility of authentic instruments (i.e. public documents) through the introduction of rules governing their acceptance across the European Union – i.e. extending their evidential effect. It also provides for detailed cooperation mechanisms intended to support cross-border assistance and enforcement between competent authorities. Furthermore, the proposal envisages the introduction of a European Certificate of Representation designed to provide proof of representative powers, with the intention that the certificate may also be used in domestic contexts. The draft Regulation additionally provides for the interconnection of national registers in order to improve access to information concerning protection measures and representation arrangements, as well as for the standardisation of digital communication. Numerous annexes containing uniform standard forms are likewise intended to simplify administrative and judicial procedures.

Interinstitutional negotiations

The European Parliament’s Committee on Legal Affairs adopted its position on the proposal on 1 July 2025. In its report, the Committee recommends a number of targeted amendments to the Commission’s draft Regulation. These include replacing the term “authority” with “court” and expressly incorporating so-called “support measures” for the exercise of legal capacity, a concept reflected in particular in the UN Convention on the Rights of Persons with Disabilities. The Committee further advocates improved access to legal assistance and the provision of free and accessible information concerning the applicable law. It also proposes stricter conditions for the recognition of foreign protection measures by placing greater emphasis on the right of the person concerned to be heard, as well as on their will and preferences. In relation to authentic instruments, the Committee calls for their “recognition” rather than their “acceptance”. In addition, the Parliament’s position seeks to strengthen cross-border cooperation through central authorities and dedicated networks, whilst further promoting the transition from substitute decision-making towards supported decision-making.

On 6 March 2026, the Council of the European Union reached a general approach on the proposed Regulation. In its position, the Council seeks to refine the Commission’s draft, with a particular emphasis on preserving greater national regulatory discretion and introducing practical adjustments to the mechanisms for cross-border cooperation. In this regard, the Council proposes, inter alia, that Member States should retain the competence to determine the legal effects of the European Certificate of Representation within their respective national legal systems. It further suggests the removal of the envisaged interconnected system of protection registers, instead providing for the possibility of reassessment at a later stage based on an evaluation of its necessity and feasibility.

Interinstitutional negotiations are underway between the Council of the European Union, the European Commission, and the European Parliament in the framework of so-called trilogue negotiations. In this stage of the ordinary legislative procedure, the co-legislators seek to agree on a consolidated compromise text for the proposed EU legislative act, reconciling their respective positions in order to enable its final adoption. On 12 Mai 2026 Parliament and Council reached a provisional agreement, the content of which is, however, not yet available. The text has not yet been formally approved. 

Development of the EU acquis

The Commission’s proposal, together with the positions adopted by both the European Parliament and the Council of the European Union, offers an opportunity to reflect on the ongoing development and refinement of key legal concepts within the EU acquis. The acquis refers to the body of European Union law that is binding on Member States and which they are required to implement in full.

European certificates

The concept of a European certificate designed to attest to specific facts or legal status is already established, for example, under the European Succession Regulation. In that context, the European Certificate of Succession is intended, in particular, to enable heirs to prove their legal status or exercise their rights in another Member State. It is issued on a case-by-case basis as a functional equivalent to national certificates of inheritance and may likewise be used within the issuing Member State. However, the proposed European Certificate of Representation differs fundamentally from the European Certificate of Succession and therefore cannot be regarded as a suitable model. The former would necessarily be based either on a judicial protective measure or on a “confirmed” power of attorney and would thus be issued in addition to the underlying national instrument. This dual-layer structure may give rise to legal inconsistencies, particularly where the national evidentiary instrument for the protection of adults – such as, in Germany, regarding legal representation by guardians – does not itself constitute a legal instrument endowed with public faith, whereas the European Certificate of Representation is intended to produce precisely such effects. These effects may arise even where the certificate is based not on an “confirmed” power of attorney but on a court-ordered protective measure, thereby generating a potentially problematic tension with the principle that legal appearances are justified only where they are attributable to the person invoking them.

Acceptance of authentic instruments

The concept of the acceptance of authentic instruments is a well-established element of the EU acquis. It is reflected not only in the European Succession Regulation but also in the Regulation on matrimonial property regimes, and is likewise envisaged by the Commission within the framework of the proposed Regulation on the protection of adults. This concept was developed during the negotiations on the European Succession Regulation, where it correctly prevailed over the view that the notion of “recognition”, which is designed for judicial decisions, could also be extended to authentic instruments, which are not court decisions. Once final, judicial decisions have binding effect and may conclusively determine the legal relations between the parties. Authentic instruments, by contrast, do not possess res judicata effect and therefore cannot be “recognised” in the strict procedural sense. Their evidentiary value, however, may in principle extend beyond the State of origin. 

Courts and authorities

Another term likely to be subject to negotiation is that of a “court”. Whereas the Commission’s proposal is closely modelled on the 2000 Hague Convention and refers to “authorities” adopting “measures” directed to the protection of an adult, the European Parliament proposes alignment with the EU acquis through the use of the term “court”. This term is to be interpreted broadly, so as to encompass administrative authorities or other bodies – such as notaries  – where these exercise jurisdiction in matters falling within the scope of the Regulation. In this respect, the European Parliament appears to favour a broad functional definition of “court”, inspired by instruments such as the Brussels IIa Regulation and the Rome III Regulation, under which a “court” is understood as any authority of a Member State exercising jurisdiction in matters covered by the respective instrument. However, the EU acquis does not, in fact, provide a uniform definition of “court”. Both the Succession Regulation and the Regulation on matrimonial property regimes require that such bodies exercise judicial functions or act under judicial control, ensure impartiality and respect for the right to be heard, and that their decisions are subject to judicial review in the relevant Member State and produce effects equivalent to those of court decisions. Member States are further required to notify the Commission of the relevant bodies falling within this category. The divergence of national legal traditions is particularly evident in the debate on the concept of a “court” in the context of the protection of adults. This is further illustrated by the European Parliament’s continued use of the term “measures”, whereas the acquis would more consistently point towards the terminology of “decisions”. The structural parallels between these conceptual difficulties and those encountered in the doctrine of “recognition” are readily apparent.

Conclusion

The negotiations and respective positions on the Commission’s proposal for a Regulation on the protection of adults clearly demonstrate that the EU acquis functions both as a source of inspiration and as an evolving body of law. They also highlight both the considerable advantages and the inherent limitations of relying on the acquis in the development of new legislative instruments. Each regulatory framework is necessarily shaped by the specific realities it seeks to govern; it is therefore unsurprising that the EU acquis remains in a constant state of development and incremental expansion. The final legal text, which now remains subject to formal adoption by both Parliament and the Council, is awaited with considerable interest.
 

About the author

Dr. Moritz Blenk is a notary candidate in the district of the Brandenburg Chamber of Notaries and works as a legal advisor in the Brussels office of the German Federal Chamber of Notaries.