Thursday 18 July 2024

A Dilemma of Two Communities: How the Portuguese-speaking Countries Mobility Agreement Might be Conflicting with EU Law



Ana Rita Gil*, Aylin Yildiz Noorda** & Lucas Ricardo***


* Professor, Law Faculty of the University of Lisbon, Portugal. Researcher at the Lisbon Public Law. Email:

** Postdoctoral Researcher at the Lisbon Public Law Research Centre, University of Lisbon, Portugal / Non-resident Research Fellow at the World Trade Institute (WTI) and the Oeschger Centre for Climate Change Research (OCCR), University of Bern, Switzerland. Email: This research has been funded by the Swiss National Science Foundation (SNSF) under grant no P500PS_210910.

*** Investment Policy Consultant at UNCTAD. Email:


Photo credit: Donatas Dabravolskas, via Wikimedia Commons


The recent decision of the European Commission to launch infringement procedures against Portugal concerning the provisions of the Community of Portuguese-speaking Countries (CPLP) Mobility Agreement has placed this new framework in the spotlight. Concluded by Portugal, Angola, Brazil, Cape Verde, Guinea-Bissau, Mozambique, São Tomé and Príncipe, Timor-Leste and Equatorial Guinea in 2021, the CPLP Mobility Agreement facilitates the movement of the citizens of the CPLP member states within the boundaries of ‘the same language space’. As the CPLP Executive Secretary Zacarias da Costa put it, the agreement goes ‘way beyond a set of piecemeal measures’, establishing a legal framework with a flexible and variable system suited to each state’s specificities. Notably, the Mobility Agreement aims to streamline the process for acquiring temporary residence visas and permits, with around 150,000 applications reportedly undergoing processing by the Portuguese Foreigners and Border Service (SEF). In this post, we examine the adoption, content, and implementation of the Mobility Agreement, commencing with a brief introduction to the CPLP.


Founding the CPLP


The inception of the CPLP traces back to early 1980s when the Portuguese Minister of Foreign Affairs at the time, during an official visit to Cabo Verde, endorsed decentralised tricontinental dialogues as a means to formalise the connections between Portugal and its former colonies. This initiative gained momentum in the 1990s, primarily due to the dedicated effort of the Brazilian ambassador to Portugal at the time, and resulted in the creation of the organisation in 1996. Although the CPLP was ostensibly established with benign objectives, centred on fostering cooperation across various areas rooted in a professed shared language and culture, it appeared to be the ‘political face’ of the Lusophone world. In this regard, it bears a resemblance to its French- and English-speaking counterparts, albeit neither the Organisation internationale de la Francophonie nor the Commonwealth of Nations have adopted a mobility agreement of the kind seen within the CPLP.


Initially comprising seven member states, the CPLP expanded with the admission of the newly independent state of Timor-Leste in 2002 and Equatorial Guinea in 2014. Brazil stands as the largest member state in terms of territory, population and economy, boasting the highest number of Portuguese speakers. However, projections indicate that by the close of the 21st century, the majority of Portuguese speakers will likely reside in Africa, attributed to demographic growth in Angola and Mozambique. While the list of potential future CPLP members may seem to have been exhausted, the CPLP has proactively introduced the category of an ‘observer’, enabling international organisations and interested countries to participate in CPLP summits and Council of Foreign Affairs Ministers meetings, albeit without voting rights.


Adopting the Mobility Agreement


The CPLP’s founding texts had already established the objective of ‘contributing to the strengthening of human ties, solidarity and fraternity among Peoples who have the Portuguese Language as one of the foundations of their specific identity and, in this sense, promoting measures that facilitate the movement of citizens of Member Countries within the CPLP space’. Acting on this, the CPLP member states agreed to explore possible avenues for policy development in mobility issues in the Praia Declaration in 1998. Two years later, a working group was established to facilitate intra-CPLP mobility and to ensure the equality of social and political rights among CPLP member state citizens. Several agreements followed soon after, including on common maximum requirements for short-term visa applications in 2002 and student visas in 2007. During this period, the goal to institute a Lusophone or CPLP citizenship status garnered much attention but has not reached a consensus. In the meantime, the path was laid for a mobility agreement, which was eventually signed in Luanda, Angola, on 17 July 2021, following seven sessions of text-based deliberations.


Facilitating Three Types of Movement


The Mobility Agreement does not create a free movement regime. Instead, the CPLP member states have established minimum standards to facilitate three types of movement: short stay, temporary stay, and residency. Although short stays do not necessitate prior administrative authorisation, temporary stays (with a duration not exceeding 12 months) are conditional upon such authorisation. Conversely, the streamlining of residency contemplates a novel documentation category called the ‘CPLP residence permit’, which may be granted subsequent to the authorisation of a ‘CPLP residence visa’.


Sitting at the heart of this framework are the applicable terms and conditions. Essentially, each state is free to choose mobility modalities and categories. This allows the states to undertake obligations gradually and with varying degrees of integration across one or more mobility modalities and/or categories of people, tailoring them to internal circumstances. Each state retains the authority to define, based on its internal legislation, the necessary documentation required to apply for the CPLP residence visa. Furthermore, none of the states are obligated to undertake commitments that are incompatible with their international commitments or regional integration agreements.


Implementation by Portugal


Portugal approved the CPLP Mobility Agreement by Resolution of the Assembly of the Republic No. 313/2021 of 9 December, implementing it by enacting Acts No. 4/2022 of 30 September, and No. 18/2022 of 25 August.


Accordingly, CPLP member state citizens may apply for a temporary-stay visa, work-seeker visa or a CPLP residence visa. Such requests shall be granted outright, unless the applicant is identified in the Schengen Information System as the subject of an alert for return or an alert for refusal of entry and stay. In other words, the applicants no longer need to apply for a visa in person, and are exempted from the prior decision of SEF (which has recently been replaced by AIMA).


Furthermore, as of March 2023, certain CPLP member state nationals have been able to apply for a temporary residence permit online. This is not an automatically granted visa, but rather a temporary residence permit granted to CPLP member state nationals who already had migration processes pending at SEF/AIMA or had visas issued by Portuguese consulates. Similarly, those with a CPLP residence visa are entitled to apply for a CPLP residence permit.


The decision to grant a CPLP temporary residence permit to citizens who were already staying in the territory, and who were waiting for a residence permit, was also taken with the aim to respond to the high number of pending applications made under the permanent regularisation scheme existing in Portugal. Indeed, Articles 88 and 89 of the Immigration Law establish a ‘right to regularisation’ to citizens who are illegally staying in the territory and who have a labour contract or a promissory agreement to formalize a labour contract. These legal norms attracted a high number of migrants, mainly from Brazil, that entered Portugal with the purpose of seeking job opportunities, and stayed illegally there, waiting for their regularisation. The number of pending procedures amounted to more than 120,000 and the waiting time was exceeding two years. The dissatisfaction among the immigrants’ community was growing, and the Ombudsman reported an extreme rise of complaints against SEF. With the CPLP scheme, the Government was expecting to solve this backlog, that was seriously jeopardizing the good functioning of the services and raising social discontent.


European Commission’s Infringement Procedure against Portugal


In September 2023, the Commission started an infringement procedure against Portugal. The Commission considers that the Mobility Agreement provides for a residence permit which is not compliant with the uniform format for residence permits for third-country nationals under Council Regulation 1030/2002. Furthermore, the Commission contends that both the residence permits as well as the long-stay visas issued for job-seeking purposes to nationals of the CPLP States do not allow their holders to travel within the Schengen area, in contradiction with EU law.


The CPLP ‘residence permit’ consists of a document which simply states that its holder has authorisation to reside in Portugal under the CPLP mobility agreement. The fact that it does not follow the EU’s residence permit format has also contributed to raise several uncertainties in the daily lives of its holders. In fact, it was common for private or even public entities not recognising the document and denying access to some rights, such as opening bank accounts or renting houses. Also, it was very frequent that holders of CPLP residence permits were denied embarkment in international flights or even returning to Portugal by foreigner airports’ officials, who were not familiarised with the document.


Portugal has two months to respond to the letter and address the shortcomings identified by the Commission. Portuguese Secretary of State for European Affairs, Tiago Antunes, has already denied incompatibility between the Mobility Agreement and the Schengen regime, and announced that the implementation of the agreement would continue. In the absence of ‘a satisfactory response’ by Portugal, the Commission may decide to issue a reasoned opinion, which is a formal request to comply with EU law. In case the country in question does not comply with the reasoned opinion, the Commission may decide to refer the matter to the Court of Justice of the EU.


Conclusion: Is CPLP Mobility Agreement one of a kind or part of a larger trend?


The CPLP Mobility Agreement may be seen as a distinctive framework, emanating from a political and cultural cooperation organisation rather than an integrated trade bloc. Integrated trade blocs, such as the EU, African Union (AU), Southern Common Market (MERCOSUR), and the Economic Community of West African States (ECOWAS), have established their own systems of free movement, albeit at various stages of implementation. While trade agreements designed between developed and developing nations have been observed to facilitate human mobility to a certain extent, the extent of such facilitation is typically more limited. The CPLP Mobility Agreement echoes the conventional observation that states operating at differing levels of development tend to facilitate human mobility to a more restricted degree.


Nonetheless, the CPLP Mobility Agreement has been observed as being unique for putting an end to an unjustifiable limit to the right to work for certain non-EU citizens in an EU country. In this sense, it can be viewed as part of a larger trend in favour of international cooperation on migration issues. This issue topped the UN agenda particularly post-2015, leading to the adoption of the legally non-binding Global Compact for Safe, Orderly and Regular Migration (GCM) in 2018. All CPLP member states have voted in favour of adopting the GCM during the historic UN General Assembly vote, with the exception of São Tomé and Príncipe and Timor-Leste which did not vote. Furthermore, three CPLP member states (Portugal, Cabo Verde and Guinea-Bissau) have submitted voluntary national reports on the implementation of the GCM. In their reports, Portugal and Guinea-Bissau make references to the CPLP Mobility Agreement as instances of successful implementation of the objective on enhancing the availability and flexibility of pathways for regular migration. Also, both states mention in their reports that they have accepted to become a ‘GCM Champion country’ and to contribute to achieving the objectives of the GCM.



Thursday 11 July 2024

Mass hacking and fundamental rights: a missed opportunity for the CJEU?

Hugo Partouche, Attorney-at-law (avocat) at the Paris Bar, and Chloé Berthélémy, Senior Policy Advisor, EDRi


Photo credit: hacker-silhoutte, via Wikimedia commons


*A first version of this article was published in French by Actualité Juridique (AJ) Pénal, Dalloz Revues here.


On 30 April 2024, the Court of Justice of the European Union (CJEU) published its decision in the ‘EncroChat’ case.


The case emerged from recent European police cooperation operations against organised crime, involving the mass interception of encrypted communications by means of spyware (‘hacking’). They enabled the collection, for EncroChat alone, of millions of messages associated with 32,000 users in 122 countries, including nearly 4,600 in Germany, and leading to more than 6,500 arrests and 3,800 legal proceedings in the Union.[1]


The Berlin Regional Court (the ‘Berlin court’) referred questions to the CJEU, asking whether a German European Investigation Order (‘EIO’) concerning the transmission of data collected by French investigators using hacking techniques was compatible with fundamental rights.


The Court's response is based primarily on the principle of mutual trust, which guarantees the effectiveness of European judicial cooperation.[2] Unfortunately, it carefully avoids linking this decision to its case law on the rights to privacy and data protection in criminal matters developed since the entry into force of the EU Charter of Fundamental Rights (the ‘Charter’).


Thus, the Court considers that EU law is of very little assistance to the fundamental rights issues at stake, since the transmission of data between two Member States in the context of an EIO is subject only to the rules applicable to a similar procedure within the issuing State (here, Germany). Similarly, the proportionality of an EIO is analysed solely in light of the law of the issuing State, particularly with regard to the evidence that should be considered sufficient to order such a measure. This question is considered to be distinct from the debate on the integrity of the data before the court hearing the case, which alone is capable of assessing whether the defence is able to comment effectively on the evidence – which is an ability that EU law prescribes.[3]


    1. The EncroChat investigation


‘EncroChat’ was a closed network of encrypted communications using modified telephones, used for organised crime, whose servers were in France. In April 2020, the French authorities set up a joint investigation team with the Netherlands, under the aegis of Eurojust, with the support of Europol, and obtained a judicial authorisation to install Trojan horse software on the servers and then directly on the terminals (the phones). The investigators informally announced via Europol's messaging system (SIENA) that they were going to intercept data located beyond their own territory. The German criminal police (BKA) expressed an interest in the data.


On the basis of this information, the Berlin court took the view that the investigation should be seen as a single European project with the aim of dismantling the EncroChat service and enabling criminal proceedings to be brought against all European users in their respective countries. It supports this analysis using a variety of indicators: the cooperation between France and the Netherlands starting in 2018, the support of Eurojust and Europol, the development of a complex interception technique, the prior knowledge of the German authorities that the interception would extend over its territory and, above all, the opening in 2020 of an ‘empty shell’ procedure by the Frankfurt public prosecutor's office, intended to receive information on German users, who would then be prosecuted in separate procedures on the basis of information accessed from Europol’s servers.


Furthermore, the technical characteristics of the hacking[4] are not known because the method used is classified as a French national defence secret.[5] A large part of the file is also being kept confidential by the German public prosecutor's office, which refused to inform the Berlin court of what information had actually been shared between national authorities before the interception measure was launched.[6] Lastly, numerous errors have been identified in the data (message senders, time stamps, etc.).[7]


2. The limited added value of the judgment on the data protection jurisprudence


According to the Berlin court, the course of the investigation suggests that the transmission of the data motivated the collection and not vice versa. With concerns, the referring court suggested that the EIO Directive could not, in such circumstances, separate collection and transmission and that only an independent court could review the proportionality of the latter. However, in the Court's view, the distinction between transmission and collection is clear and the EIO Directive is to be interpreted literally in that it subjects the admissibility of an EIO for the purposes of transmission solely to the law of the issuing State (§92), so that a German public prosecutor may be regarded as competent (§77).


The Court did not take the opportunity offered to draw on its own case law relating to Directive 2002/58, known as the ‘ePrivacy’ Directive, interpreted in the light of the Charter (in the context of mass data retention). (See, for example, the judgments in Prokuratuur and La Quadrature du Net and others). Indeed, the retention of and access to telecommunications data are both data processing operations involving serious interference with the fundamental rights to respect for private life and to the protection of personal data. This means that they are subject to EU law criteria, independently of national rules, in particular with regards to the control of proportionality and to the competent authority.


The Berlin court noted that the infringement of rights was even more serious in the EncroChat case because of the collection of the content of communications, which is considered sensitive, the long collection period, the massive and indiscriminate nature of the targeting without any specific and individualised suspicion and the immediate collection by law enforcement authorities without any action on the part of the service provider.


However, the CJEU refuses to follow this reasoning and to transpose its own criteria in the data protection field to a transfer of data between law enforcement authorities. For the Court, the logic of European judicial cooperation takes precedence over the protection of privacy when the competent authority is dealing with another judicial authority and not with a telecommunications operator.[8] As a result, there is a risk of a significant disparity between the levels of protection and guarantees afforded to different data processing operations during a cross-border telecommunications interception operation.


The laundering of EncroChat data from its original controversial method of collection is of importance in the current debate at EU level on the (illegal) use by several Member States of spyware such as Pegasus and Predator, and their compliance with EU law. The technical characteristics and practical impact on privacy of the Trojan Horse software used to target EncroChat bear many similarities to these contentious spywares. The European Data Protection Supervisor is even of the view that they threaten the very essence of the right to privacy and would therefore be contrary to EU law. As modern state hacking techniques became ever more intrusive, the adequacy of current European instruments for police and judicial cooperation to preserve fundamental rights can be reasonably put into question.


It is also regrettable that the conditions under which EncroChat data is stored by the national authorities and by Europol are not mentioned. Such storage constitutes an autonomous infringement of fundamental rights. This question is all the more relevant as the 2022 reform of Europol's mandate allows the agency to derogate exceptionally from its own data protection rules to process large datasets (e.g. data collected in bulk) and authorises the long-term storage of investigative data. This enables Europol and investigating authorities to regularly draw on databases without, however, having to demonstrate the existence of concrete evidence of individualised suspicions, or to comply with the requirements of necessity and proportionality.


3. Minimum review of proportionality and right to a fair trial


To assess the proportionality of the EIO measure, the Berlin court asks the CJEU to assess the related infringements of procedural rights.[9]


With regard to the right to privacy, the Berlin court held that in order for an EIO ordering the transmission of data to satisfy the conditions of necessity and proportionality set out in the EIO Directive, it is not sufficient to have evidence of multiple offences committed by unidentified persons.


The Court replied that: ‘By using the terms “under the same conditions” and “in the context of a similar national procedure”, Article 6(1)(b) of Directive 2014/41 [the EIO Directive] makes the determination of the precise conditions required for the issuing of a European investigation order depend solely on the law of the issuing State’. It concludes that, if the law of the issuing State makes the transmission of data subject to the existence of concrete indications that the person being prosecuted has committed serious offences or to the admissibility of the evidence, the adoption of an EIO is subject to those same conditions. It can be inferred from the request for preliminary ruling that the Berlin court holds that very position, whereas other German courts don’t.


With regard to the right to a fair trial, the Berlin court asked the Court of Justice whether the principle of proportionality precluded the issuing of an EIO where the integrity of the data obtained could not be verified because of the confidentiality of the technical bases, and the defence might not, for that reason, be able to comment effectively on that data in subsequent criminal proceedings. The Court replied that it follows from Article 4 of the EIO Directive that the necessity and proportionality of the measure are to be assessed in the light of the law of the issuing State. The Court explains that if the transmission of evidence were to appear either disproportionate or not in conformity with the framework of the ‘similar’ national proceedings, the consequences would be those of national law (§103).


However, and it may be one of the most important contributions of this judgment to the many ongoing EncroChat proceedings across Europe, the Court reasserts that if a party ‘is unable effectively to comment on evidence which is capable of having a preponderant influence on the assessment of the facts, that court must find that there has been a breach of the right to a fair hearing and exclude that evidence in order to avoid such a breach.’ (§105).


Unfortunately, the CJEU refuses to outline an enhanced control, whether substantive or procedural (§89), in the area of technically complex cross-border investigative measures. It limits the control on this point to the question of judicial review of compliance with fundamental rights provided for in Article 14 of the EIO (§§101 et seq.).


However, the Berlin court’s questions seemed particularly relevant on two fronts. First, it follows from the Court's case-law that the practical ease of an interference is not sufficient to make it proportionate.[10] Secondly, the limitation of a Charter right, while presumed proportionate, ‘may prove to be disproportionate if the criteria governing it are imprecisely drafted and if they do not lay down genuinely objective and controllable conditions’.[11] These concepts are not used in the judgment.


The Court's reasoning, however unsatisfactory in its minimalism, is not surprising: it seizes every opportunity to defend the principle of mutual trust rather than to seek in the Charter the elements for a full review of the implementation of judicial cooperation tools. And for good reason: that is the inherent logic of these tools.


However, the complexity of the EncroChat investigation had given the opportunity to the Court to develop its case law. The Court started applying in the Aranyosi and Caldararu case what some commentators have described as the principle of acquired mutual trust rather than blind mutual trust,[12] particularly with regard to the risk of forum shopping.


4. Wilful blindness to the risk of forum shopping?


In the Court's view, the singular structure of the investigative measures does not present any particularity of relevance to the EIO Directive.


Although it acknowledges that the data was collected on behalf of Germany and on its territory, the Court does not explain why it completely rules out the risk that Germany might have opportunistically subcontracted the collection to France where data interception is less regulated. In the Court's view, the EIO Directive does not take into account the location of the data collection (§98). This allows the Court to not assess the risk of forum shopping, that implies taking advantage of the difference in rules between collection and transmission in the State where the data are collected (here, Germany).


In those circumstances, it is particularly surprising that the judgment states, without giving any reasons, that ‘in the present case, it does not appear that the purpose or effect of the collection and transmission, by means of a European Investigation Order, of the evidence thus collected was such circumvention, which it is for the referring court to ascertain’ (§97). The Court is ruling on a point that it considers to be outside its purview.


However, the Berlin Court was rather clear about the genuine risk of circumvention, particularly since it would have been more logical for an EIO to have been issued prior to collection and, in such a case, the authorisation of an independent court would have been required under German law (on the basis of the CJEU judgment of 16 December 2021, Spetsializirana prokuratura (Traffic and location data)). The referring court therefore finds itself on the receiving end of a paradoxical answer to its question.


The Court's ambivalence stems from its overreliance on the principle of mutual recognition in this context. This principle, which is itself based on mutual trust, justifies that the referring court is not authorised to review the validity of the procedure by which an EIO was issues to the executing State for the purpose of transmission (§§99-100). This was the Advocate General's position, according to whom the ‘interception took place independently of the EIOs at issue’ (paras 15-16 of the opinion).


As said, however, it was specifically questioned in cases where mutual trust, instead of merely facilitating cooperation between two States, serves as a screen for opaque police strategies. No control over such strategies and their impact on fundamental rights would therefore come directly from EU law, despite the fact that EU law has been able to act as a bulwark against the protection of privacy in relation to new technologies.


Could it be that the Court has missed its appointment with complex and new technical issues destined to change the economics of European judicial cooperation?

[1]  The spyware made it possible to intercept their traffic and location data, as well as the content of communications, including those stored on the devices prior to the operation. Given the massive scale of the data extraction, many lawyers have publicly questioned the lawfulness of the data interception measures, as well as the reliability and admissibility of the resulting evidence:

[2]The Court has vigorously defended this principle because of its role in European integration, allowing only exceptional circumstances to derogate from it. See also:

[3]Note D. Berlin, La Semaine Juridique Edition Générale n° 19, 13 May 2024, act. 606.

       Note V. Barbault, Lexis « EncroChat : précisions de la CJUE sur la transmission et l'utilisation de preuves dans les affaires pénales transfrontalières »

[4]But also the storage, allocation and filtering of data by the French authorities or by Europol.

[5]French law provides minimal control over hacking measures, as demonstrated by Decision no. 2022-987 QPC of April 8, 2022 (M. Saïd Z. ), dealing in particular with the provisions of article 706-102-1 of the French Code of Criminal Procedure, and a ruling by the French Supreme Court (Cour de cassation) on the nullity of interception and capture operations carried out on the basis of this same text, as well as on the failure to include the master procedure in the proceedings (Crim. October 11, 2022, no. 21-85.148).

[6]The Berlin Court explains that this opacity explains a divergent decision by the Federal Court of Justice on March 2, 2022.

[7]For a technical analysis of the practical impossibility of effectively commenting on the data and possible errors: V. R. Stoykova, Encrochat: The hacker with a warrant and fair trials?, Forensic Science International: Digital Investigation 46 (2023) 301602

[8]H. Christodoulou, Issuance of a European investigation order for the transmission of telecommunications data possessed by the executing State: sufficiency of the prosecutor's control, CJEU Apr. 30, 2024, aff. C-670/22, Dalloz Actualité, 31 May 2024

[9]It is regrettable that the Berlin Regional Court did not use Article 52(1) of the Charter, which is intended to verify that the infringement of a fundamental right does not affect the essence of that right, which in principle takes precedence over the examination of the necessity and proportionality of the interference.

[10] P. Gilliaux, Droit général des droits fondamentaux de l’Union européenne, Bruylant, 2024, §770

[11]Ibid. §784.  In this respect, by submitting such a complex investigative technique to the Court for the first time, the Encrochat case could have provided an opportunity to reinforce the standard of equality of arms by abandoning the idea that it is sufficient for the defendant to be able to "comment" on information from investigations carried out by foreign authorities.

[12] V. Mitsilegas, Trust (2020) German Law Review 69. This consideration is not, however, absent from the decision, which recalls that the presumption of respect for fundamental rights in the executing State is rebuttable (§99).

Wednesday 10 July 2024

“Good IED !” - The CJEU Grand Chamber “Ilva” judgment : a Kirchberg view of conciliating environmental law and human rights



Jacques Bellezit, University of Strasbourg (France)


Photo credit: mafe de baggis, via Wikimedia Commons


If one wants to trace back the history of European construction, it would necessarily have to mention the European Coal and Steel Community (ECSC). Inspired by the Schumann Declaration of May 9th 1950, it was the first attempt to put in a common market, strategic materials (coal and steel). This was done in order not only to enhance European post-war reconstruction but also to impede re-weaponization policies on both side of the Rhine, in the first years of the Cold War.

If the ECSC now belongs to history, and the use of coal is (theoretically) aimed to follow the same path under environmental treaties (such as the Paris Agreement), steel production can always be an issue in EU aw, especially under Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control  (“The IED”). 

This was the case with the Italian Ilva SpA factory, which has led to the 25/06/2024 CJEU Grand Chamber judgment in case C‑626/22, C.Z. and Others v Ilva SpA in Amministrazione Straordinaria. 


I) Facts and background of the case


The Ilva SpA steel producing plant (ISSPP) is located in the city of Tarantino (Italy) and is one of the major steel factories of the region : AG Kokott recalls in her Opinion (point 49) that the ISSP “ is the largest industrial steelworks complex in Europe, covering an area of roughly 1 500 ha and employing around 11 000 workers” in 2019. She also reminds the reader that “the Italian State still holds almost 40% of the shares” in Ilva  and “exerts particular influence” on it (point 64 of the Opinion).

Neighbours and residents of Tarantino and nearby cities seized the Milano district court for violation of their right to health, their right to peace and tranquillity in the conduct of their lives and their right to a clean climate, due to the activities of the ISSPP. 

If the ISSPP was unknown to the Kirchberg’s judges in the CJEU before the present case, the European Court of Human Rights, on its side, was very familiar with this facility. Indeed, the Strasbourg Court has condemned Italy for violations of articles 8 (right to private life) and 13 of the European Convention of Human Rights (right to effective remedies) due to Italian management of the ISSPP:

- on the part of 161 neighbours of the facility (ECHR 01/24/2019 Cordella and others v Italy)
- on the part of 39 of its current or former employees (ECHR 5/5/2022 Ardimento and others v Italy)

- on the part of 3 former employees (ECHR 5/5/2022 Briganti and others v Italy

All of these applicants have suffered from occupational or environment-caused conditions (such as cancers) due to exposure to toxic rejects of SO² (Sulphur dioxide) and  PM10 particulate matter emitted by the ISSPP. These rejects were consistently assessed during twenty years, by several scientific reports, from both national and international specialists between 1997 and 2017 (§13 to 31 of the Cordella judgment).


IED provisions and the case of the Ilva factory

Under Italian law, the IED provisions were transposed through the Legislative Decree No 152 on Environmental rules of 3 April 2006.

In 2012, the Taranto District Court ordered a provisional seizure “of the equipment of the ‘hot zone’ of the Ilva plant and all Ilva’s materials” stopping the production (Point 27 of the Ilva judgment). To counter this Order, the Italian authorities adopted several regulations, from 2012 to 2016, creating a tailor-made, sui generis legal regime aiming to maintain the ISSPP’s activities (points 27 to 35 of the Ilva judgment): 

- the ISSP was classified as “‘plant or facility of strategic national importance’”, so the “Minister for the Environment and the Protection of the Land and Sea may, when the Integrated Environmental Permit is reconsidered, authorise the continuation of the activity in question for 36 months” under the previous permit;

- the facilities were under the control of “provisional administrators designated by the government”;

- several deadlines for environmental rehabilitation plans of the facilities were rescheduled;

- in 2016 and in the frame of the ISSPP’s cession of shares to ArcelorMittal, the Environmental Impact assessment (EIA) regime was replaced by an ad hoc “Decree of the President of the Council of Ministers, which was to be regarded as constituting an Integrated Environmental Permit”.

II) Procedure and preliminary ruling of the CJEU


In the current CJEU case, residents and neighbours of the ISSPP seized the Milano District Court of a class-action request for “an injunction in respect of the operation of the installation or at least parts thereof to protect their rights to health, to peace and tranquillity in the conduct of their lives and to the climate. In their view, those rights have been very seriously affected for decades by the operation of the steelworks” (point 46 of the “Ilva” judgment). 

The CJEU, after having dealt with an admissibility issue that we will exclude from the present analysis, was sent a request for a preliminary ruling request with 2 questions: 

- Does Directive 2010/75, read in the light of Article 191 TFEU, must be interpreted as meaning that the Member States are required to impose a prior assessment of the effects of the activity of the installation concerned on the environment and on human health as an integral part of the procedures for granting or reconsidering a permit to operate such an installation under the directive ? 

- Must Directive 2010/75 be interpreted as meaning that, for the purposes of granting or reconsidering a permit to operate an installation under that directive, the competent authority must take into account, in addition to the polluting substances that are foreseeable having regard to the nature and type of industrial activity concerned, all those polluting substances which are the subject of emissions scientifically recognized as harmful which result from the activity of the installation concerned, including those generated by that activity which were not assessed during the initial authorisation procedure for that installation?


The CJEU preliminary rulings

The CJEU Grand Chamber rules that  the IED Directive « read in the light of Article 191 TFEU and Articles 35 and 37 of the Charter of Fundamental Rights of the European Union »   must be interpreted as meaning that:

- Member States are required to provide that the prior assessment of the effects of the activity of the installation concerned on the environment and on human health must be an integral part of the procedures for granting or reconsidering a permit to operate such an installation under that directive;

-  for the purposes of granting or reconsidering a permit to operate an installation under that directive, the competent authority must take into account, in addition to the polluting substances that are foreseeable having regard to the nature and type of industrial activity concerned, all those polluting substances which are the subject of emissions scientifically recognised as harmful which are liable to be emitted from the installation concerned, including those generated by that activity which were not assessed during the initial authorisation procedure for that installation;

- it precludes national legislation under which the period granted to the operator of an installation to comply with the measures for the protection of the environment and human health provided for in the permit to operate that installation has been repeatedly extended, whereas serious and significant risks to the integrity of the environment and human health have been identified. Where the activity of the installation concerned presents such risks, [...] in any event, that the operation of that installation be suspended.


III) Analysis

If the Ilva Grand Chamber judgment condemns specific regimes such as the one tailor-made for the case’s steelworks activities, it nevertheless extends in a pretorian way, the field of the IED.

The Luxembourg Court does not only states that environmental impact assessments are an “integral part of the procedures” of granting or re-considering permits for IED’s facilities, but also extends the frames of the these assessments by including “polluting substances which are the subject of emissions scientifically recognized as harmful which are liable to be emitted from the installation concerned” and not only foreseeable ones. 

This extension is motivated by the protection of health and environmental, in accordance with Articles 35 and 37 of the Charter of Fundamental Rights of the European Union; but it might put a burden on national EIA authorities.

If the hazards of polluting substances can be determined especially in regard to relevant ban-conventions or EU Law (ex the 2001 Stockholm Convention on Persistent Organic Pollutants, enforced in EU law by Regulation (EU) 2019/1021 of the European Parliament and of the Council of 20 June 2019 on persistent organic pollutants (recast)), the presence of such polluting substances on a designated industrial site as well the impact of this presence on human health, might be a scientific and legal challenge.

So as EIA authorities are now required to examine substances “which are liable to be emitted”, it would expand the weight and the complexity of EIA documents. 

Meanwhile, treaties such as the Aarhus Convention on access to information, public participation in decision‐making and access to justice in environmental matters require “environmental information [to be] available to the public [...] transparent and […] effectively accessible” (Article 5§2 of the Aarhus Convention). Conciliating the right to environmental information with the complexity of the matter is a conundrum, as even lawyers and judges are “unable to, on their own,  to assess and weigh complex scientific evidence” in environmental matters (cf. Point 4 of the Joint dissenting opinion of Judges AL-KHASAWNEH and SIMMA  under the 2010 ICJ “Pulp Mills on the River Uruguay” judgment).

The Italian authorities, by organizing an ad hoc legal regime for the Ilva factories, have also contributed to create this legal, political and scientific muddle, even if it was in order to keep jobs in an economically stricken area.

How would it be possible for the common man, the one the Clapham omnibus, to deal with such information in a “transparent” and “effectively accessible” manner? Especially if this man suffers from pollution-induced conditions.

The “Ilva” case is, according to a French ecologist newspaper, “an ecological monster [or] […] an ecological bomb”, dealt twice by the Strasbourg Court and now by the CJEU Grand Chamber. 

Would it be sufficient to avoid further pollution? Probably not.

Would it be enough to relieve the victims of such pollution? Certainly not. 

However, with the “Ilva” judgment, the CJEU gives an example of the way IED’s provisions have to be conciliated with the EU Charter of Fundamental Rights.

Such conciliation between Human Rights law and Environmental law was previously established by the ECHR’s Grand Chamber “Klima v Switzerland” judgment (in the field of climate change) and the CJEU cannot not ignore such conciliation anymore due to the authority it grants to its Strasbourg counterpart.


The Ilva judgment, a step closer in Strasbourg-Luxembourg dialogue?


Indeed, since 1970 and the CJEU “Nold” judgment, the Court recognizes that “international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories, can supply guidelines”, and chiefly the European Convention of Human Rights.

If the “principle of equivalence” in protection of human rights between the ECHR and EU legal systems was recognized by Strasbourg judges (in cases “Bosphorus Airways v Ireland” and “Avotins v Latvia”), the CJEU was more reluctant to follow its Strasbourg counterpart, wanting to preserve its authority over EU Law interpretation (cf. the CJEU Full Court Opinion 2/13 of 2014). 

However, in the present case, the Luxembourg Court takes into consideration the previous cases by the Strasbourg Court rendered on the “Ilva” issue. 

Might this consideration be a paving stone to the road leading to a EU membership of the European Convention of Human rights? Maybe. 

But one has to never forget that is road is not a “yellow brick road” any more, as some of its cobbles are now tainted by the “Ilva” steelworks’ polluting substances, and dampened by the tears of the victims.

Thursday 27 June 2024

Only one bite at the cherry: Appealing a default judgment of the General Court to the Court of Justice, and simultaneously asking the General Court under the specific remedy to set aside its own default judgment is not permitted: Eulex Kosovo v SC (Case C-785/22 P)



Antje Kunst*

* Antje Kunst is an international lawyer and barrister of Pavocat Chambers, admitted to the Bar of England and Wales, and the Bar of Berlin, advising and representing individuals in a wide range of matters related to the CFSP, including employment cases. She has appeared in numerous cases before both the Court of Justice and the General Court, within the Court of Justice of the European Union. She was Counsel for SC in the Eulex Kosovo case.

Photo credit: George Chernilevsky, via Wikimedia Commons



On 18 January 2024 in Eulex Kosovo v SC (Case C-785/22 P), a case that has been before the EU courts since 2017, the Court of Justice ruled that an appeal against a default judgment of the General Court is inadmissible before the Court of Justice if dual proceedings are brought to both EU courts. In other words, appealing a default judgment of the General Court to the Court of Justice, and simultaneously asking the General Court to set aside its own default judgment, is not permitted.

Until now, there was no case law on this precise type of situation, and hence, the Court of Justice’s judgment is highly significant for EU procedural law as a gap in the case law has now been closed.

Previously in October 2022, the General Court issued a default judgment in Case T-242/17 RENV, in favour of SC – a former member of contract staff of the EU Rule of Law Mission in Kosovo (Eulex Kosovo) – following the failure of Eulex Kosovo to file a defence, in this case.  The failure to file a defence occurred in referral proceedings after a successful appeal before the Court of Justice in Case C-730/18 SC v Eulex Kosovo, at a time the case was already ongoing for four years.

In November and December 2022, Eulex Kosovo filed not only for that default judgment of the General Court under Article 166 of the Rules of Procedure of the General Court (RPGC) to be set aside by the General Court itself,  but also brought appeal proceedings against that default judgment of the General Court to the Court of Justice, with the consequence that not only the General Court but also the Court of Justice became seized of the same subject matter. As a result, SC had to defend against not only an opposition in proceedings before the General Court, but also an appeal in proceedings before the Court of Justice.

Default judgment which is the subject of an application to set it aside is not a final decision

The judgment by the Court of Justice in Case C-785/22 P clarifies that it followed from its own Statute that an appeal is admissible only against a final decision of the General Court, with respect to which no other legal remedies remain open (para. 29 of the judgment). It also clarified that ‘[s]ince the exercise of such a remedy has the effect of re-opening the proceedings before the General Court, a default judgment which has been the subject of an application to set it aside cannot be regarded as a final decision, within the meaning of Article 56 of its Statute’. Consequently, it followed that an appeal brought against a default judgment which is the subject of an application to set it aside is inadmissible (paras. 31 and 32 of the judgment).

To have two bites at the cherry is not permitted

In an entirely other case, Advocate General (AG) Emiliou delivered an Opinion on the same day, i.e. in Case C-766/21 P, Parliament v Axa Assurances Luxembourg and Others stating that [p]ermitting the use of two legal remedies in parallel would be tantamount to allowing a defendant in default to have two bites at the cherry – or, to continue with the metaphor, to ride two trains at the same time’. The AG added to allow this would be against the principle of equality of arms asking the correct question: ‘how could it be permissible for a party, which had failed to participate at first instance, to nonetheless have the possibility to pursue one remedy before the General Court, and another remedy before the Court of Justice, both ultimately seeking the same outcome?’ (Para. 108, Opinion of Advocate General Emiliou, Case C‑766/21 P, European Parliament v Axa Assurances Luxembourg SA, Bâloise Assurances Luxembourg SA, La Luxembourgeoise SA, Nationale-Nederlanden Schadeverzekering Maatschappij NV, ECLI:EU:C:2024:63).

The AG in that case made another important point, in that allowing parallel proceedings could cause confusion as to the suitable remedy in a particular case and contribute to the escalation of costs for any party involved in parallel procedures (para. 109 of his Opinion).

Appeal may be admissible against a default judgment if the opposition is late

The Court of Justice in Case C-785/22 P, Eulex Kosovo v SC nonetheless stated that an appeal against a default judgment may be admissible before it if the party has not asked for the General Court to set aside its own judgment within the prescribed time limit of one month pursuant to Article 166 RPGC.

Whilst this was not the situation in Eulex Kosovo v SC, given that a request was made in time by the defendant to the General Court for itself to set aside its default judgment, the Court of Justice did state that if such a situation were to arise, such an appeal would be inadmissible during the time the default judgment is not yet final, but could be regularised, i.e. upon expiry of that time limit (para. 33 of the judgment) ‘if that legal remedy has not be exercised’. Thus, according to the Court of Justice, there is an exception to the rule if the party does not comply with the time limit to file an opposition or does not file an opposition at all, it can appeal the default judgment, once it is final, before the Court of Justice.

Unhealthy choice of legal remedies

To leave a choice of remedies to the defendant, i.e. either to pursue an application to set aside a default judgment based on Article 166 RPGC before the General Court, or an appeal against such a judgment before the Court of Justice, is problematic. It is even more problematic to allow an appeal, when the defendant does not manage to file an opposition within the stipulated time limit of the specific legal remedy under Article 166 RPGC, i.e. one month.

Specific remedy in Article 166 RPGC

In view of the considerations, AG Emiliou, fully aware of the Court’s reasoning in Case C-785/22 P, Eulex Kosovo v SC (see para. 102 of his Opinion), in his Opinion in Case  C‑766/21 P, Parliament v Axa Assurances Luxembourg and Others is entirely correct in stating that a defendant in default cannot lodge an appeal against a first-instance decision because of the requirement to make use of the specific remedy set out in Article 166 RPGC. ‘The two procedural avenues are […] not only alternatives and mutually exclusive, but also not interchangeable. […] to lodge an appeal, a party must fulfil the formal requirements outlined in Article 56 of the Statute, in essence, mandating participation at first instance. […] a defendant in default does not fulfil that criterion. Any attempt to bring a successful appeal would seem futile.’ (See paras. 101, 103 and 104 of the Opinion of AG Emiliou).

An appeal against a default judgment before the Court of Justice will regularly unduly prolong proceedings before the EU courts, with a possible referral back to the General Court due to the incomplete provisional appraisal of the facts, within the procedure for default judgments inaudita altera parte. The consequences for applicants will be an unreasonable length of adjudication of their cases before the CJEU, and of course, escalating their costs.

In order to avoid that defendants more often fail to file a defence in the initial proceedings, despite being requested to do so, the tight time limit of one month of the specific remedy set out in Article 166 RPGC must be adhered to by defendants. There should not be available another train which can be taken later, i.e. an appeal of the default judgment after two months, if the train to the General Court is missed to use the metaphor of AG Emiliou. The Court of Justice is not the correct forum to set aside a default judgment as it is bound to address points of law only. It must be left to the General Court to conduct the adversarial procedure in which the principle audi alteram partem is respected with a complete appraisal of the facts after it has not in the default procedure. (see also paras. 106 and 107 of the Opinion of AG Emiliou).

In the end, the view of Advocate General Emiliou can only be agreed with, in that ‘the procedural avenue permitting a defendant in default to submit an application to have set aside a judgment by default before the General Court is the most appropriate (rectius, the only) course of action that such a party may use in such circumstances.’

There is only one train and if missed, there is no other train.

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.