Jurysdykcja krajowa i prawo właściwe na tle konwencji haskiej o ochronie dorosłych z 2000 r. oraz projektu uzupełniającego rozporządzenia unijnego z 2023 r.

Abstract

The subject of the considerations are drafts of: the EU regulation on jurisdiction, applicable law, recognition and enforcement of measures and cooperation in matters relating to the protection of adults, as well as the decision to authorize EU Member States to accede to the 2000 Hague Convention on the protection of adults concerning cross-border personal and care matters. The documents dated May 31, 2023 refer not only to the legal status of a person (e.g. partial incapacitation, guardianship, assistance in performing legal actions or functionally similar institutions under foreign law), but also the effects on civil law contracts with third parties (including rights and obligations within legal transactions). Detailed comments are presented about “measures of protection” for adults in legal transactions with foreign countries. The 2000 Hague Convention raises reflections on current trends in the sources of international civil procedure and private international law. They include, among others, the planned co-existence of the Hague convention and the EU “Brussels” and “Rome” regulations. The attempt to increase the number of parties to the convention and the participation of EU Member States generally deserve a positive assessment, which also means the ratification of the 2000 Hague Convention by Poland. However, some doubts are cast by the intention for simultaneous modification through an EU regulation. The idea of a draft EU regulation of 2023, intended to supplement and modify an international agreement for the needs of a regional economic integration organization, could prima facie be assessed positively. However, a detailed look at the draft regulation of 2023 leads to the conclusion that it should be corrected, as it partly contains provisions that are both desirable for judicial cooperation between Member States and solutions that are unnecessary or questionable. In particular, the proposed solution allowing for an unlimited choice of jurisdiction may raise doubts. It is not intended — as is typically the case in personal civil matters — that a jurisdiction can be chosen from among states that are in some way related to the adult’s current or future situation (e.g. by citizenship, location of assets, past or future residence, circumstances relating to the guardian or curator). Thus, a country (and law) may be chosen that are completely unrelated to the actual situation. Additionally, the proposed Articles 6—7 are not compatible with the conventional catalog of circumstances that determine the transfer of jurisdiction, nor with the conflict of law rules (Article 15), which provide for the choice of the applicable law in a narrower range of situations (citizenship, previous habitual residence, location of property). Under the proposed EU regulation the indirect possibility of choice of foreign law is possible through the choice of foreign jurisdiction. This makes it possible to achieve a substantive legal effect by the adult “selecting” the substantive law that he or she deems desirable at the time of choice, thus completely departing from the remaining provisions of the Convention and the Regulation in terms of jurisdiction and applicable law. There is no limitation to such an indirect choice from the perspective of the interests of third parties with whom the adult has personal or property relations. Moreover, such a solution may mean, in practice, a departure from the basic substantive legal principles of the country in which a given adult lives (habitually resides) or is a citizen, in favor of accepting the consequences resulting from a distant fact (i.e. unrelated to the actual situation) and legally (i.e. providing for axiologically different solutions concerning the broad category of ‘measures of protection’) of given law and state. Taking into account the variants of legislative action described in the impact assessment report (document 10108/23ADD), it would be worth postulating a change to the proposed method of legislative action. It seems more rational to temporally distinguish the two planned activities (projects) under option 4. First, take steps to join the 2000 Hague Convention and gather several years of experience in its operation, also between Member States. And then, in the longer term, taking into account the experience of applying the convention on the territory of the EU, consider supplementing or modifying intra-EU judicial cooperation in these matters. The longer experience of applying the 2000 Hague Convention can — firstly — verify the thesis about the need to improve its functioning, and secondly — determine precisely in which areas it would be desirable for the welfare of adults and their guardians in cross-border cases.