Weekend Edition Nº191

MATHIAS MÖSCHEL

THE EU’S NEW DIRECTIVE ON COMBATING GENDER-BASED VIOLENCE (GBV)

The EU’s New Directive on Combating Gender-Based Violence (GBV)

Mathias Möschel 1

On 24 April 2024, the European Parliament (EP) approved the Directive on combating violence against women and domestic violence (the GBV Directive) by 522 votes in favour, 27 against, and 72 abstentions. Followed by a decision by the Council of the European Union (CoEU) on 7 May, it was published in the Official Journal of the European Union on 24 May 2024.2 Member States will need to implement it by 14 June 2027.3 The legal basis for its adoption were Articles 82(2) of the Treaty on the Functioning of the European Union (TFEU) on judicial cooperation in criminal matters and 83(1) TFEU on the definition of serious transnational crimes, also known as the ‘Eurocrimes’, amongst which also figure the ‘trafficking in human beings and sexual exploitation of women and children’ and ‘computer crimes’. Structured in seven chapters, Chapters 1 and 7 respectively establish certain definitions and final provisions. Chapter 2 establishes the specific offences which Member States need to punish: female genital mutilation (Art. 3), forced marriage (Art. 4), non-consensual sharing of intimate or manipulated material (Art. 5), cyber stalking (Art.6), cyber harassment (Art.7), cyber incitement to violence or hatred (Art. 8). Chapters 3 and 4 further strengthen the protection of victims and victim support whereas Chapters 5 and 6 lay down rules on prevention and coordination and cooperation.

This instrument had a complicated, but ultimately surprisingly quick, adoption time

This instrument had a complicated, but ultimately surprisingly quick, adoption time. First official traces of this GBV Directive can be found in the EC’s Gender Equality Strategy 2020-2025, in which the EC’s President, Ursula von der Leyen, indicated that ‘[t]he EU will do all it can to prevent and combat gender-based violence, support and protect victims of such crimes, and hold perpetrators accountable’.4 At that time, the GBV Directive was presented as an alternative to the EU’s ratification of the Convention on Preventing and Combating Violence Against Women and Domestic Violence (Istanbul Convention), if that ratification failed to take place.5

1. Associate Professor at Central European University (CEU), Department of Legal Studies, Vienna, Austria (moschelm@ceu.edu).

2. Directive (EU) 2024/1385 of the European Parliament and of the Council of 24 May 2024 on combating violence against women and domestic violence, PE/33/2024/REV/1.

3. Ibid., at art. 49.

4. Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions a Union of Equality: Gender Equality Strategy 2020-2025, COM/2020/152 final, at 3.

5. Ibid.

The GBV Directive was presented as an alternative to the EU’s ratification of the Convention on Preventing and Combating Violence Against Women and Domestic Violence (Istanbul Convention), if that ratification failed to take place

On 8 March 2022, the European Commission published an official proposal for a GBV Directive, which already used the final provisions as a legal basis.6 At this stage, the EC presented this proposal as constituting part of its implementation of the Istanbul Convention in the areas of its already existing competences and even going beyond that instrument especially with regard to cyber-crimes.7 Given that since then the EU has ratified the Istanbul Convention,8 the GBV Directive became a self-standing instrument.

Two years of intensive discussions, debates and compromises between opposing actors and positions ensued. On the one hand –favouring a broad approach to this instrument– were the European Commission, the European Parliament as well as many European women’s NGOs and some Member States. On the other hand –favouring a narrower approach– were the CoEU and other Member States. The reasons and positions on both ends did not always have the same basis or underpinning logic.

6. Proposal for a Directive of the European Parliament and of the Council 2022/0066(COD) of 8 March 2022 on combating violence against women and domestic violence, (COM)2022 105 final.

7. Ibid., p.7.

8. The process was a tortuous one. The EU signed the Istanbul Convention via two separate Council decisions (Council Decision (EU) 2017/865 of 11 May 2017 on the signing, on behalf of the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence with regard to matters related to judicial cooperation in criminal matters, OJ 2017 L 131/11, pp. 11-12; and Council Decision (EU) 2017/866 of 11 May 2017 on the signing, on behalf of the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence with regard to asylum and non-refoulement, OJ 2017 L 131/11, pp. 13–14), followed by a legal opinion by the CJEU (CJEU, Opinion of 6 October 2021 (1/19 [GC]). Finally, it adopted two decisions on the accession on 1 June 2023: Decision no. 2023/1076 (Council Decision (EU) 2023/1076 of 1 June 2023 on the conclusion, on behalf of the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence with regard to matters related to judicial cooperation in criminal matters, asylum and non-refoulement, LI 143/4) with regard to matters related to judicial cooperation in criminal matters, asylum and non-refoulement and Decision no. 2023/1075 (Council Decision (EU) 2023/1075 of 1 June 2023 on the conclusion, on behalf of the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence with regard to institutions and public administration of the Union, LI 143/1) with regard to institutions and public administration of the Union, published in the official journal on the following day. They both entered into force on 22 June 2023, and the Istanbul Convention became binding on the EU as of 1 October 2023.

One might have expected that Article 19 TFEU which allows the EU to legislate in the domain of nondiscrimination, would have been the theoretically most appropriate legal basis

The choice and discussions surrounding the adequacy of the legal basis already point to some of those differences. In fact, one might have expected that Article 19 TFEU which allows the EU to legislate in the domain of non-discrimination, would have been the theoretically most appropriate legal basis for an instrument which in numerous of its recitals (e.g. 2, 3, 4, 6) refers to the idea that such violence constitutes discrimination. However, this legal basis would have required unanimity and in practice it was known that such unanimity was very difficult to achieve, given some Member States’ resistance. Hence, the second-best theoretical and practical choice was using the two above-mentioned provisions which require only a majority vote under the ordinary legislative procedure.

But even with such a legal basis, it was not all smooth sailing. The main bone of contention of the whole debate eventually became whether to include rape in the list of crimes, as had been the case in the EC’s initial proposal under Article 5. In EU Member States, there exist differences in defining rape where some already adopt modern consentbased definitions whereas others still have old-fashioned force-based definitions. The GBV Directive’s goal would have been to harmonize this, thus ensuring that all women throughout the EU can be protected in similar ways from rape.

However, at the end of 2022, the Legal Service (LS) of the CoEU issued a legal opinion on the draft proposal for the GBV Directive.9 The main skepticism in that document concerned the possibility of including rape and female genital mutilation as Eurocrimes under Art. 83(1) TFEU. This can only be achieved via a separate reading of sexual exploitation of women and children from trafficking in human beings. Admittedly, there had been a precedent of using Art. 83(1) TFEU for certain crimes under the Child Sexual Abuse and Sexual Exploitation Directive.10 Moreover, in the drafting history of this provision the word ‘and’ had substituted the words ‘in particular’ between the expressions ‘trafficking in human beings’ and ‘sexual exploitation of women and children’, allowing the EC to argue that these could be read as separate elements. The LS, instead, opined that including rape limitedly to women and not also

9. Opinion of the Legal Service of the Council of the European Union of 31 October 2022, no. 14277/22.

10. Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA, OJ 2011 L 335, p. 1–14.

men in the proposal could raise issues of non-discrimination in as far as the autonomous reading of sexual exploitation of women and children would not extend to men. A similar objection would not apply to female genital mutilations for obvious reasons. Hence, the LS recommended not to include rape in the proposed directive due to the legal risks involved, unless a gender-neutral formulation would be adopted.

The main bone of contention of the whole debate eventually became whether to include rape in the list of crimes

Apart from the CoEU, some Member States like Germany, France, Hungary and Poland prior to its recent political change also had doubts about including rape in this new instrument, albeit for different reasons. Despite having already a consent-based definition of rape, Germany probably feared an EU competence creep with possible ultra vires claims before its constitutional court, also because the cross-border element in rape cases might be seen as lacking or very limited.11 France, instead, still has a force-based definition of rape and possibly was more concerned about something that would be seen as imposed externally, rather than initiated as an internal process. For Hungary (and initially Poland, too), the resistance is mostly due to a more profound objection against using gender and progressive Western instruments in the domain, like the related Istanbul Convention.

These and probably other Member State delegations’ reactions led to some changes to the draft text of the GBV Directive already in mid-2023. In fact, without Germany and France no majority could be reached to pass the GBV Directive.12 Most importantly, already then rape had been omitted –along with some of the procedural issues raised by the Bundesrat– and the transposition time had been raised from two to three years.

At this point, the floor was opened for the final interinstitutional negotiations (trilogue) between the EC, EP and the CoEU. Those ended with a political agreement on 6 February 2024,13 which was then tabled for the final vote in April 2024. On the downside, in the final version rape remained excluded. However, on the upside –and possibly to compensate for that loss– the EP and other actors managed to insert a whole set of other and new elements into this instrument. A new offence of forced marriage was added (Art. 4); the list of aggravating circumstances was expanded to include when certain offences are committed against public representatives, journalists, human rights defenders (Art. 11 (n)) and for honour crimes (Art. 11 (o)); intersectional discrimination, was explicitly mentioned in a series of recitals (e.g. 6, 71) and provisions (e.g. Art. 33), explicitly including certain groups such as lesbian, bisexual or disabled women (Recitals 71 and 74); specific rape prevention measures were inserted

11. For a critical analysis of this position, see: Dilken Çelebi, Lisa Marie Koop and Leokadia Melchior, ‘Germany Blocks EuropeWide Protection of Women Against Violence’, Verfassungsblog, 17 January 2024. Interestingly, an earlier input by the Upper Chamber of the German Parliament had only critiqued some procedural issues relating to penalties, aggravating circumstances, limitation periods and protection of victim’s life and how they could constitute an unnecessary intervention into the coherence of the national criminal law system as well as potential violations of the constitutional and supranational right to fair trial but there was no mention about the question of rape at that point. Beschluss des Bundesrats of 8 July 2022 on Vorschlag für eine Richtlinie des Europäischen Parlaments und des Rates zur Bekämpfung von Gewalt gegen Frauen und häuslicher Gewalt, Drucksache 131/22 (Beschluss).

12. Council of the European Union, Interinstitutional File: 2022/0066(COD), 17 May 2023.

13. See European Parliament, Legislative Train 03.2024 6 A new Push for European Democracy, Legislative Train, 20 March 2024.

In the final version rape remained excluded. However, on the upside –and possibly to compensate for that loss– the EP and other actors managed to insert a whole set of other and new elements into this instrument

(Art. 35) as well as the encouragement for rape offenders to take part in intervention programmes (Art. 37, para. 3); and a general extension of certain victim’s rights for all victims of crimes that are defined as amounting to violence against women under national or EU law, including cyberflashing, forced sterilization, sexual harassment at workplace (see e.g. Recital 9 and Art. 28). Last but not least, the report and review period was increased from seven to eight years from the entry into force of the GBV Directive, but it included the explicit mention that the EC can then determine if new offences need to be inserted and if sexual harassment and violence in the workplace need to be further addressed (Art. 45). Thus, the door was kept open to bringing rape (or other crimes related to gender-based violence) back into the picture as Eurocrime offence, if little or no progress is made.

despite the disappointment concerning the exclusion of rape, the adoption of the GBV Directive must be celebrated as a success for the EC, given the tortuous path to its adoption

In conclusion, despite the disappointment concerning the exclusion of rape, the adoption of the GBV Directive must be celebrated as a success for the EC, given the tortuous path to its adoption. Since its launch five years ago at the start of the COVID pandemic, the EP, some Member States, and civil society actors worked tirelessly for a broad approach to this issue, in an overall political climate of populism, attacks on gender, and democratic/constitutional backsliding. Moreover, its adoption during the last EP’s session prior to its renewal in June, when its political composition may change profoundly, also had a certain urgency to it. If not passed now, who knows if this instrument might have seen the light of the day, at least in its current form?