Friday 21 June 2024

Advancing Gender Equality: The EU`s Landmark Directive 2024/1385 on Violence Against Women



Dr. Ceren Kasım, Postdoctoral Research and Teaching Fellow, University of Hildesheim, Germany

Photo credit: MesserWoland, via Wikimedia Commons




The first-ever binding European Union (EU) legal instrument to combat violence against women and domestic violence was approved on the 14th of May 2024 by the EU and has already been published in the Official Journal of the European Union. This Directive, known as Directive 2024/1385 on combating violence against women and domestic violence (Directive), marks a historic moment for equality and equal opportunities in the European Union and is a significant symbol of the EU`s dedication to achieving not only de jure but also de facto equality.


Gender-based violence is prevalent in the European Union, with one in three women in the EU reporting experiences of physical and/or sexual violence. Each day, between 6 and 7 women in Europe are killed by their partner or ex-partner, resulting in an estimated total of 2300 women becoming victims of femicides every year. The structural nature of such violence is inherently connected to gender-based discrimination, serving as a central social mechanism that perpetuates women`s subordination in society. The Directive represents a step closer to gender equality in the European Union, not only through the criminalisation of many offenses but also by promising preventive, supportive, and prosecutorial measures linked with training and coordinated Europe-wide policies.




The Directive 2024/1385 is a groundbreaking legal document that aims to prevent and combat violence against women (VAW) and domestic violence. It highlights the European Union’s objectives to achieve equality between women and men, as outlined in the Treaties, including Art. 2, Art. (3)(2) TEU, Art. 8, 10, 19 TFEU, as well as Art. 21 and 23 of the Charter of Fundamental Rights, which represent the fundamental values of the EU. The Directive also aligns with the EU Gender Equality Strategy 2020-2025, which includes the objective of eliminating gender-based violence.


European women`s organisations have advocated for a European legal instrument to empower women in Europe, aiming to create a safer environment for women and girls. In a parallel development, the Directive was launched on March 8, 2022, a significant symbolic date for women's rights – International Women`s Day. Subsequently, on June 9, 2023, the Council agreed on its position regarding the proposed Directive, leading to a deal being reached among EU legislators in February 2024. The EU Parliament then adopted the directive on April 24, 2024, with 522 in favor, 27 against, and 72 abstentions, which was later adopted by the council on May 7, 2024. Finally, on May 14, 2024, the act was signed.


Moreover, a significant advancement towards gender equality in the European Union was the accession of the EU to the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) (IC) on October 1, 2023 – the sole binding European human rights document addressing gender-based violence. However, controversy surrounding the Istanbul Convention arose within the broader European context, with instances such as the Bulgarian Constitutional Court declaring it unconstitutional in 2018. Additionally, Polish government argued that the convention disregards religious beliefs and promotes what they term ‘gender ideology’. In 2019, the Slovakian parliament chose not to ratify the Convention, despite earlier signing it. Notably, an Opinion by the European Court of Justice (Grand Chamber) on October 6, 2021 (Opinion 1/19), paved the way for swift ratification of the Convention, allowing the Council to adopt it through a qualified majority vote. EU acceded to the Convention, handling matters falling under its exclusive competences as defined by agreed common rules related to judicial cooperation, asylum, non-refoulement, institutions, and public administration of the Union. So, it was crucial for the EU to have its own legal instrument, especially considering that some EU Member States have not ratified the Istanbul Convention.


The Directive stands as the sole European Union legal source addressing VAW and domestic violence directly. Member States now have three years to implement the provisions (Art. 49).




The Directive stands out in many aspects. Foremost, it acknowledges the shared responsibility of Member States in addressing and advocating for a comprehensive framework to effectively prevent and combat VAW and domestic violence.


This holistic approach within the Directive introduces detailed regulations and sets down rules to prevent and address VAW and domestic violence, with the aim of ensuring effectiveness and enforceability. The Directive's obligations cover four key pillars: prevention and early intervention, protection and access to justice, victim support, coordination and cooperation. In alignment with the four aims of the Istanbul Convention – prevention, protection, prosecution, and coordinated policies – the EU seeks to bolster the protection of all victims of VAW and domestic violence by establishing measures focusing on prevention, minimum guidelines for reporting, early intervention, victim protection, support, access to justice, perpetrator prosecution, training, enhanced data collection, coordinated mechanisms, and cooperation requirements.


The Directive establishes mechanisms for prevention and early intervention, as well as measures to protect and support victims, outlining the minimum rights of victims of all forms of VAW or domestic violence before, during, and for a period of time after criminal proceedings. It advocates for a comprehensive preventive approach and ensures the existence of early intervention mechanisms. It is convenient to emphasise the importance of these mechanisms going beyond basic preventive measures to include compulsory comprehensive sexuality education, consent education, and challenging negative gender norms.


The Directive mandates the provision of protection and support for victims, guaranteeing victims access to comprehensive medical care and sexual and reproductive health services. This marks the first instance where EU law imposes explicit obligations on Member States to ensure access to essential medical care for victims of sexual violence. Additionally, it ensures that victims have access to justice. Member States are required to provide training for professionals who are likely to interact with victims, including law enforcement, prosecutors, and judiciary. Moreover, the prosecution of perpetrators must be consistently ensured across all Member States. The training provided should be based on human rights, centered around the victim, and sensitive to gender, disability, and children (Art. 36).


In many respects, the Directive is determined, demanding that Member States adopt comprehensive and coordinated policies (Art. 38) and introduce national action plans (Art. 39) that should be implemented with union-level cooperation (Art. 43). These efforts should be bolstered by collaboration with non-governmental organisations (Chapter 6). Member States are urged to consider the expertise of women's organisations and women's specialist services, as crucial players in addressing all forms of VAW and offering assistance to survivors with a gender-sensitive and intersectional outlook.




In addition, the Directive establishes minimum rules specifying criminal offences and penalties related to the sexual exploitation of women and children, as well as cybercrime. In doing so, it criminalises and categorises forms of gender-based violence that were previously only acknowledged by a limited number of Member States. By taking this step, the Directive aims to standardise criminal legislation across the European Union concerning certain forms of VAW.


One key aspect is the requirement for EU countries to criminalise female genital mutilation (Art. 3) and forced marriage (Art. 4). This demonstrates the Directive`s firm stance that these issues are not merely products of cultural distinctions but are rather gender-related crimes.


Moreover, the Directive places a significant emphasis on addressing cyber-related violence. It considers the non-consensual sharing of intimate or manipulated material as a criminal offence (Art. 5), providing a safety measure to protect women, which also encompasses instances like deepfakes. Additionally, cyber stalking (Art. 6), cyber harassment (Art. 7), and cyber-incitement (Art. 8) are recognised as punishable criminal offences. The Directive also addresses issues such as cyber stalking that have previously not been adequately covered in EU legal regulations, thereby filling a legal gap and for the first time criminalising various forms of cyber violence that predominantly target and impact women due to their gender.


Furthermore, the Directive outlines a list of aggravating circumstances (Art. 11), which include offences driven by motives related to the victim`s sexual orientation, gender, colour, religion, social origin, or political beliefs, as well as actions intended to uphold or restore “honour”. It also covers crimes against public figures, journalists, or human rights defenders.




One of the most visionary aspects of the Directive is its consistent reference and emphasis on intersectional discrimination. The term ‘intersectional discrimination’, coined by Kimberle Crenshaw in the early 1990s, highlights the nature of discriminatory practices by showing how different discriminatory grounds interact with each other in a multifaceted way. The intersectional aspect of discrimination makes women more vulnerable and at a heightened risk of experiencing gender-based violence.


The Directive refers to intersectional discrimination in connection with Art. 21 of the Charter of Fundamental Rights and the referenced grounds of discrimination (Articles 16, 21, 33). With advancing technologies, Art. 21 of the Charter becomes more significant as it includes genetic features as a ground for discrimination. By acknowledging intersectional discrimination, the Directive extends its protection to the most vulnerable groups who are at risk of all forms of gender-based violence and domestic violence – including women from racial minorities, women with disabilities, individuals with different sexual orientations, gender identities, and expressions, such as transgender and non-binary individuals, sex workers, individuals with lower socio-economic status, those who are homeless, with unstable immigration status – to access improved support services. These groups are the least protected and supported in society.




However, there is a missing human rights perspective in the Directive. Neither in the Preamble nor anywhere else does the Directive acknowledge that gender-based violence is a human rights violation. This recognition is a core element of the Istanbul Convention. However, the Directive refers to VAW and domestic violence as a violation of fundamental rights and, thereby losing its connection to the most significant human rights document on VAW and domestic violence in Europe. (Compare Art. 3(a) IC to Art. 2(a) Directive 2024/1385) The Directive missed an opportunity to align closely with the Istanbul Convention's human rights approach, which would have been a groundbreaking step in addressing gender-based violence and domestic violence at the EU level.




In the Directive, a clear reference to gender and a distinction between ‘gender’ and ‘sex’ are also lacking. The Directive has an ambiguous relationship with the concept of gender. It uses the terms ‘sex’ and ‘gender’ interchangeably in most cases, leading to significant uncertainty and undermining all the progress that has been made thus far. It lacks a genuine gender perspective. Which would have allowed for an understanding of the root causes, socially structured and historically ingrained nature of violence in relation to structural inequalities, moving away from a binary understanding of sex and stereotyping.


Unlike the Istanbul Convention, the Directive does not provide a definition of gender. CEDAW has also amended its General Recommendation No. 35 by explicitly choosing the phrase ‘gender-based violence against women’, a new and more inclusive approach to addressing the issue. Gender is socially constructed, whereas sex is genetically determined. The concept of gender enables us to comprehend violence within its societal context rather than viewing it as an individual problem. Considering that the European Court of Justice also does not clearly differentiate between ‘gender’ and ‘sex’ and regrettably uses the two terms interchangeably, it would have been appropriate for the European legislative body to rectify this and bring clarity.[1] The Directive could have simply followed the footsteps of the Istanbul Convention and provided clear definitions of the term gender and distungish betwenn gender and sex.


Furthermore, the Directive uses the term ‘violence against women’ instead of gender-based violence. However, it defines ‘violence against women’ as “gender-based violence directed against a woman or a girl because she is a woman or a girl or that affect women or girls disproportionately”. (Art. 2(a)) ‘Victim’ refers to “any person, regardless of their gender, who has suffered harm directly caused by violence against women or domestic violence”. (Art. 2(c) ) Throughout the text, the directive does not clearly differentiate between ‘sex’ and ‘gender’. Although some use ‘violence against women’ and ‘gender-based violence against women’ interchangeably, there is a distinction in understanding. Gender-based violence, including violence against women, encompasses all forms of violence that disproportionately affect women and marginalised communities. Using ‘violence against women’ as an umbrella term excludes also individuals who do not fit into the category of ‘women’, such as sexual minorities and non-binary people.




In addition, other forms of violence, such as intersex genital mutilation and forced sterilisation, were ultimately not criminalised in the Directive. Intersex genital mutilation affects intersex individuals, who are one of the most discriminated groups among the LGBTI population. On the other hand, forced sterilisation is a surgical procedure that removes a person`s ability to have children without consent or under undue pressure. Women with disabilities are disproportionately subjected to forced and involuntary sterilisation. United Nations human rights instruments, mechanisms, and agencies have acknowledged that the forced sterilisation of persons with disabilities constitutes discrimination, a form of violence, torture, and other cruel, inhuman, or degrading treatment. The UN Special Rapporteur on the rights of persons with disabilities stated in 2017 that protecting the rights of persons with disabilities to make decisions about their own bodies and sexuality is crucial in the global effort to end violence, exploitation, and abuse against women. Forced sterilisation is still either permissible by law or not expressly banned in 12 out of the 27 EU Member States –Bulgaria, Cyprus, Croatia, Denmark, Estonia, Hungary, Finland, Latvia, Lithuania, Portugal, Slovakia and the Czech Republic– as reported by the European Disability Forum.




One of the continuous criticisms and demands preceding the adoption of the Directive was a common European consent-based definition of the crime of ‘rape’. Article 5 of the initial Proposal, focusing on the definition of ‘rape’ – a definition similar to the Spanish law from 2022, known as the “yes means yes” approach – was deliberated for nearly two years and was ultimately removed from the draft. This sets the Directive apart from the Istanbul Convention, which already includes a definition of rape based on the absence of consent (Art. 36 IC). Member States held varying opinions on this matter, with Italy and Greece supporting the inclusion of such a definition, while Germany and France opposed it, arguing that the EU lacked the authority to address this issue. Despite persistent demands from women's and human rights organisations, as well as many academics, the approved Directive does not provide a definition.




The Directive lacks a dedicated chapter addressing migrant women. The absence of an independent residence status, a secure status, or any status poses challenges for women, increasing their vulnerability to violence or exploitation in a variety of contexts by employers, intimate partners, or other individuals. As a result, they are less likely to report violence and abuse., limiting their access to justice and their ability to escape abusive situations, rendering them vulnerable to further abuse. Recently, the European Court of Justice in two landmark cases WS v Bulgaria (C621/21)[2] and K, L v Staatssecretaris van Justitie en Veiligheid (C-646/21) reaffrimed the status of women as a whole, including minors, and women facing domestic violence in their country of origin in particular, and women who identify themselves with the fundamental value of equality between women and men qualify as a protected ‘social group’ in reference to Istanbul Convention. While the initial proposal included provisions to ensure that no personal data about victims of abuse, including residence status, would be shared by police with immigration authorities, the final text omits these safeguards (Art. 16(5) Propsal) As stated by many human rights organisations, this approach would run counter to the EU's rules on victims' rights (Victims' Rights Directive) and data protection (General Data Protection Regulation), which mandate rights and safeguards for all individuals without discrimination. This discrepancy with the Istanbul Convention contradicts the Convention`s requirement that all women be treated equally, irrespective of their residence status.




In its preamble, the Directive highlights that VAW and domestic violence pose a threat to the fundamental values and rights of the European Union, particularly equality between women and men and non-discrimination. These forms of violence undermine women and girls' rights to equality across all aspects of life, including the world of work. The European Gender Equality Strategy 2020-2025 as well outlines key objectives, such as ending gender-based violence, challenging gender stereotypes, closing gender gaps in the labour market, achieving equal participation in various sectors of the economy, addressing gender pay and pension disparities, bridging the gender care gap, and attaining gender balance in decision-making and politics.


However, the Directive falls short in thoroughly regulating gender-based violence in the world of work. The initial Proposal in Article 4 defines ‘sexual harassment at work’ as any form of unwanted verbal, non-verbal, or physical conduct of a sexual nature that violates the victim`s dignity, particularly when creating a hostile or offensive environment. Despite efforts to include work-related violence, such provisions were rejected and are absent from the final text.


The Preamble of the Directive refers to sexual harassment at work in connection to EU non-discrimination Directives (No. 65 Preamble) and also in relation to support and protection mechanisms (No. 77 Preamble). Only Article 28 mandates that Member States ensure counselling services are accessible for victims and employers in cases of sexual harassment at work that constitute a criminal offence under national law. Article 36 states that individuals with supervisory in the workplace should receive training on recognising, preventing, and addressing sexual harassment at work. Additionally, Article 19 briefly mentions that restraining orders should prevent the perpetrator from entering the victim`s workplace but does not delve into specific scenarios. By 14 June 2032, the Commission is required to assess the need for further Union-level measures to effectively address sexual harassment and violence in the workplace (Article 45).


Given that individuals spend a significant part of their lives in the workplace and the relationship of work to socio-economic rights, an inclusive and comprehensive approach to addressing violence at work will have an emancipatory and empowering impact on women`s rights in the European Union. This approach should involve third-party violence and harassment at work, encompassing gender-based violence as well as domestic violence, whether in employment, occupation, or self-employment. However, the Directive falls short in this regard.




In conclusion, the Directive represents a significant advancement in promoting gender equality within the European Union. It recognises the shared responsibility of Member States in addressing violence against women and domestic violence, advocating for a comprehensive framework to effectively prevent and combat such issues. By criminalising offences that were previously overlooked in EU Member States and establishing minimum standards that Member States can exceed, the Directive serves as a robust legal instrument. It takes a holistic approach, providing detailed regulations and guidelines spanning from prevention and early intervention to protection, access to justice, victim support, and coordination and cooperation.


While the Directive is a positive step forward, it falls short of the initial Proposal's ambition, lacking a clear gender perspective and specific regulations on certain forms of violence, particularly in the context of the world of work. Nevertheless, the Directive is poised to bring about significant changes in the legal norms of Member States and pave the way for a cultural shift in understanding and addressing gender inequality that persists in EU countries. This milestone should be celebrated, while also acknowledging that there is still much work to be done to enhance legal safeguards in preventing and eradicating gender-based violence and domestic violence.

[1] Endres de Oliveira, Pauline / Kasım, Ceren, „Die Relevanz der Istanbul-Konvention für den flüchtlingsrechtlichen Schutz von Frauen in der EU. Das EuGH-Urteil in der Rechtssache WS gegen Bulgarien“, NVwZ 7/2024, 1.4.2024, p. 486-490.

[2] Endres de Oliveira, Pauline / Kasım, Ceren, „Die Relevanz der Istanbul-Konvention für den flüchtlingsrechtlichen Schutz von Frauen in der EU. Das EuGH-Urteil in der Rechtssache WS gegen Bulgarien“, NVwZ 7/2024, 1.4.2024, p. 486-490.

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