This is an activity log which will be updated whenever relevant activities take place.
ENIL has launched a lobby campaign in favour of supported decision making. The reason is a regulation on the protection of vulnerable adults in cross-border situations which was proposed by the European Commission. The regulation foresees the automatic recognition of deprivations of legal capacity when adults who are perceived to be vulnerable such as disabled and older people, move or are moved to other countries. Also orders to place someone in an institution are supposed to receive automatic recognition. The draft regulation also includes the enforcement across-borders. The proposed regulation is currently discussed in the EU Council.
The content of the draft regulation rests on the assumption that a person might be unable to protect their own interest due to “an impairment or insufficiency of their personal faculties”. Mostly disabled people or older people would fall under this definition. The regulation intends to resolve the question which country´s authorities are in charge if a person regarded as lacking in personal faculties, moves to another EU member state.
In the regulation the European Commission proposes that the authorities of the new member state should automatically take charge of the “vulnerable” adult and receive permission to decide about matters such as. “(a) the determination of the incapacity of an adult and the institution of a protective regime, (b) the placing of an adult under the protection of a judicial or administrative authority, (c) guardianship, curatorship and analogous institutions … (e) decisions concerning the placement of the adult in an establishment or other place where protection can be provided.
The draft regulation promotes deprivations of legal capacity. That approach is in sharp violation of the United Nations Convention on the Rights of Persons with Disabilities (UN CRPD). In a statement the special rapporteur on the rights of persons with disabilities confirmed that under the UN CRPD the notion of incapacity does not exist and a transfer of the rights of personhood is not possible. Recently, legal experts from the Bochum Centre for Disability Studies confirmed the assessment that the Commission proposal violates the Convention. Article 12 stated that disabled people enjoy legal capacity on an equal level to others and obliged member states to replace laws on substituted decision-making with rules on supported decision-making. The regulation is also in conflict with article 5 which establishes that disabled people are equal before the law, article 14 on the right to be free of deprivations of liberty and article 19 on living independently in the community.
Already 13 EU countries have largely abolished substituted decision-making. Should the draft regulation be adopted, it would put this progress in jeopardy by giving new legitimacy to deprivations of legal capacity.
The European Network on Independent Living, the European Disability Forum and Mental Health Europe are conduction joint advocacy activities to effectuate changes to the draft regulation. We believe that a large overhaul is necessary. All references to deprivations of legal capacity need to be replaced by paragraphs on supported decision-making. Thus, the regulation also presents an opportunity to improve the acceptance of supported decision-making.
ENIL has published a statement and amendments, which were sent to the Belgian ministries of Social Affairs and Justice.
On the 6th of May, ENIL Policy Coordinator Florian Sanden and EDF Human Rights Policy Coordinator Marine Uldry met with representatives of the Belgian Ministry of Social Affairs to highlight our criticism.
On the 6th of June, Florian and Marine met with representatives of the Belgian Ministry of Justice to present our arguments and amendments.
Our position paper and amendments were also sent to the government of Malta. A meeting to elaborate our positions will likely take place in July.
In the discussions on EU legislation, Germany is frequently playing a pivotal role in the EU Council since it is holding a large share of the votes given it is the most populated country in the EU. In cooperation with our German member, Interessenvertretung Selbstbestimmt Leben (ISL e.V.), letters were prepared to ask the government of Germany to use its influence to have the draft regulation changed. This week a package containing the letters, amendments and a position paper were sent together with a request for meetings. An article was published in the specialised news-outlet kobinet.
We hope the efforts will pay off and move governments to recognise the risks this draft regulation represents. ENIL will keep you informed about the progress of its advocacy campaign here.
Our letter to the Ministry of Justice can be downloaded in pdf and in word. The letter to the Ministry of Social Affairs is available in pdf and in word too. The letters are only available in German.
Our position paper can be downloaded in English in pdf and in word format here and in the original German is available in pdf and in word too.
Our amendments can be downloaded in English in word format here and in the original German is available in pdf and in word too.
