European Public Prosecutor’s Office: the tension between supranationalism, sovereignty and legitimacy

 

Jacob Öberg, Professor of EU law, University of Southern Denmark

Photo credit: EPPO

The aim of this blog post is to summarise the key argument of a recent article published by the author in 50(6) 2025 European Law Review titled “The European Public Prosecutor's Office - supranationalism, sovereignty and legitimacy”.

For readers not acquainted with the European Public Prosecutor’s Office (“EPPO”) it could be briefly stated that the EPPO is a centralised European public prosecutor tasked with prosecuting and investigating crimes against the EU’s financial interests (as defined in the PIF Directive) following its mandate in Art 86 TFEU. EPPO which commenced its operation in June 2021, is undoubtedly the pinnacle to date of supranational criminal law in the history of European integration. It represents a significant achievement in terms of its potential for a fundamental system change for EU criminal policy, departing markedly from the conventional Member State-centric view that intergovernmental cooperation should remain the dominating principle of governance in this field (Öberg, 2021).

It is well-known that the EPPO was established in October 2017 through the EPPO Regulation on the basis of the new Art 86 , which provides the Council with a competence to ‘establish a European Public Prosecutor’s Office’ which shall ‘be responsible for investigating, prosecuting, and bringing to judgment … the perpetrators of, and accomplices in, offences against the Union’s financial interests’ and ‘exercise the functions of prosecutor in the competent courts of the Member States in relation to such offences’. The final EPPO Regulation had been preceded by politically protracted negotiations over four years, involving the highest number of official negotiation documents in the Council on criminal law to date (Eurocrim database) and a Yellow Card from national parliaments (Commission Communication, 2013).  Because of far-reaching objections from Member States to the creation of the office, the EPPO Regulation ultimately had to be adopted by means of an enhanced cooperation procedure involving 20 Member States under Art 86(1) 2nd para, TFEU.

In light of this brief account of the genesis of the EPPO, this blog offers a critical analysis of the evolution, structure and functioning of the EPPO on the basis of three theoretical frameworks: the theory of supranationalism, the concept of sovereignty and the critical approach of legitimacy. The first part of the analysis accounts for the current design of the EPPO along the supranational-intergovernmental (Stone Sweet and Sandholtz, 1997) spectrum based on the general literature on EU law and integration (Cappeletti, Seccombe and Weiler, 1986, Pescatore, 1974).  Secondly, the analysis proceeds to examine the governance of the EPPO in attempting to ascertain the extent to which Member States have been capable of maintaining control of its operation. Finally, we consider the EPPO from the perspective of legitimacy, with a specific focus on judicial review of the EPPO’s activities.

First, we reflect on the institutional structure of the EPPO. The key argument here is that the establishment and operationalisation of the EPPO marks a significant transformation from a ‘cooperative’ philosophy in EU criminal justice towards an integrated ‘supranational’ criminal justice system based on formal powers exercised by the EPPO (Monar, 2013). The EPPO Regulation nonetheless captures an intricate compromise between a supranational and intergovernmental conception of the EPPO (Schmeer, 2023). The central feature for the supranational characterisation is the creation of a European prosecutor with binding decision-making powers in respect of criminal investigations and prosecutions in the area of crimes against the EU’s financial interest (Art 86(2) TFEU and Art 13(1) of the EPPO Regulation), with jurisdiction transcending the territorial borders of the EU Member States (Art 23 of the EPPO Regulation). However, the complicated rules in the EPPO Regulation on the exercise of competence (Arts 25-27 of the EPPO Regulation), the removal of exclusive competence and the inclusion of a ‘national link’ in the EPPO’s governance structure (Art 13 of the EPPO Regulation) present limits to the ‘supranationalisation’ of the EPPO. A review of the first years of the EPPO’s activities nonetheless suggests that the body operates de facto as a highly supranational body without being restrained by the legal framework surrounding its operations. The limited evidence available indicates that the EPPO in practice defines its mandate broadly (both in terms of the PIF offences and in respect of ‘ancillary offences’) and that national law enforcement agencies acting on behalf of the EPPO act seemingly in a spirit of loyalty towards the EPPO’s interests (see Recital 69 of the EPPO Regulation). This lends some support to the contention that the EPPO – based on its legal powers and operational practice – is the most ‘supranational’ EU body created to date within the context of EU integration (Öberg, 2021).

The establishment of the EPPO, in conjunction with the adoption of the new PIF Directive, makes a compelling argument for holding that the EU appears to have adopted a ‘federal vision’ of criminal law, at least when it comes to protecting its financial interests (Herlin Karnell and Gomez-Jara, 2013). This development asks more fundamental questions about legitimacy and state sovereignty and if the EPPO stand as a role model for the creation of a ‘European criminal justice system’. It is important to observe that the EPPO exerts significant powers with severe implications for the fundamental freedoms of individuals and that the exercise of those powers also markedly encroaches on ‘core state powers’. Whilst there is a strong normative justification for conferring these enforcement powers to the EPPO (Öberg, 2024, ch 5), these powers need to be accompanied with strong fundamental rights safeguards both at national and EU level.

This brings us to the final observation which relates to the key fundamental rights challenges for a European ‘supranational’ prosecutor. While the establishment of the EPPO is a welcome step towards a ‘federalisation’ of EU criminal justice in this area, the EPPO cannot function effectively without some degree of harmonisation of national criminal procedures and national criminal laws. The recent case law of the Court (G.K. and others, Case C-281/22) highlights the implications of this incomplete centralisation of national criminal procedures which makes it more cumbersome for the EPPO to fulfil its task of combatting crimes against the EU’s financial interests. The ‘output’ (legitimacy) perspective aside, another central tenet of legitimacy for the EPPO is that there should be structures and mechanisms established to hold that body responsible and accountable for its actions. Not only must the legality of the EPPO’s decisions be subject to review by the Court of Justice, as follows from Art 263 TFEU, but national courts must also have the comprehensive ability to request preliminary rulings as per Art 267 TFEU. Therefore, the EPPO Regulation needs to be reformulated to make clear that the Court of Justice’s Treaty-based jurisdiction cannot be restricted by reference to secondary law. Furthermore, stronger common EU measures for protecting the rights of the defendant, along with effective safeguards that form the basis for the exercise of the EPPO’s powers, should be a central feature of a potential future amendment of the EPPO Regulation.

As suggested in the analysis, the Court can have an important role to play in this regard. First, the Court should expand its jurisdiction, following Art 47 of the Charter, to ensure robust judicial review of the actions of the EPPO, and by developing common standards constituting the basis for the EPPO’s operation through the autonomous interpretation of key provisions in the EPPO Regulation. Secondly, the Court can contribute to the development of a system of EU judicial remedies against actions undertaken by the EPPO in its operational activities. As demonstrated by G.K. and Others (Parquet européen) and EPPO v I.R.O. & F.J.L.R. (Case C‑292/23), the CJEU has taken a nuanced approach to judicial remedies, carefully balancing the need for an effective supranational system of criminal enforcement with judicial safeguards for defendants. To conclude, a supranational prosecutor such as the EPPO does not only need to have institutional structures, tools and resources to fight effectively against the EU’s financial interests effectively (output). It also needs a robust legal framework surrounding the EPPO’s operational action, combined with strong legal safeguards for individual defendants, is imperative for ensuring the (throughput) legitimacy of this new unique supranational prosecutor.

 

Protecting EU Funds: The Promise and Pitfalls of the PIF Directive

 

Dr. Krystyna Bakhtina, Luiss University

Photo credit: Kiwiev, via Wikimedia Commons

In mid-July 2025, the European Commission announced a structured reflection process to review the EU Anti-Fraud Architecture, complementing the preparatory work on the next multiannual financial framework. The goal is to ensure a stronger and more efficient protection of the Union’s financial interests. This review comes at a critical moment: transnational fraud schemes are becoming more sophisticated, organised crime continues to target EU funds, and criminal networks increasingly exploit advanced technologies such as AI and cryptocurrencies to misappropriate Union funds.

Examining the Directive (EU) 2017/1371 on the fight against fraud to the Union’s financial interests by means of criminal law (PIF Directive) is therefore highly relevant. Drawing on findings from the BETKONEXT project’s working paper, this blog outlines how PIF Directive has been implemented across several EU Member States. It provides insight into how effectively the EU financial interests are safeguarded, highlighting the main challenges and gaps that persist.

Built on Article 325 TFEU, the Directive establishes common rules to protect EU funds, harmonising definitions of key crimes, such as fraud, corruption, misappropriation, and money laundering, it provides rules on sanctions and limitation periods. Its aim is to close legal loopholes, reduce fragmentation across national frameworks, and enhance the safeguarding of EU funds and taxpayers’ money.

Implementation in Practice: A Comparative Perspective

While the European Commission’s report confirmed that the PIF Directive’s core provisions have been transposed, it also noted certain gaps and shortcomings in national implementation. The comparative research as part of the BETKONEXT project shows that many of these problems remain and, in some cases, reveal deeper systemic shortcomings affecting the Directive’s uniform application and the safeguarding of the EU financial interests.

An examination of four Member States, namely Italy, Poland, Belgium, and Spain, illustrates how these divergences manifest in practice.

Italy demonstrates a generally high degree of compliance; however, recent legislative reforms risk reversing this progress. The repeal of the offence of abuse of office and the introduction of a much narrower offence limited to the improper allocation of money or movable property significantly restrict the intended scope of the Directive. Unlike the Directive, which refers broadly to “funds or assets,” the new offence applies only to money or physical assets and is triggered exclusively when conduct violates specific laws that leave no discretion to public officials. This raises concerns about compliance with Article 4(3) of the Directive, as certain harmful behaviour could escape prosecution under Italian law.

Poland faces some transposition challenges, most notably its failure to criminalise attempts to commit certain offences covered by the Directive, and its reliance on restrictive jurisdictional provisions grounded in the principle of double criminality, contrary to Article 11. Moreover, some forms of misuse of EU funds, such as non-disclosure of relevant information when granting financial support, remain insufficiently addressed.

Belgium presents similar concerns. Its legislation does not criminalise attempts to commit certain offences relevant to the Directive, particularly embezzlement and misuse of company assets. Additionally, Belgian law conditions prosecution of nationals for crimes committed abroad on the filing of a complaint by the victim or foreign authorities - a procedural requirement that conflicts with the Directive.

Spain introduced broad reforms to align its criminal law with the Directive, including lowering the monetary thresholds for fraud offences, expanding the definition of “public official” for bribery and embezzlement cases, and extending corporate criminal liability to embezzlement. These changes closed an important gap in the previous framework and strengthened the overall system of protection for the EU’s financial interests. However, overlapping provisions on fraud remain in force, creating legal uncertainty. Research highlights that this overlap could lead to inconsistent enforcement until the redundant rules are clarified or repealed.

Conclusion

Although the PIF Directive aims to harmonise criminal law and enhance the protection of the EU budget, its potential to fulfil the obligations enshrined in Article 325 TFEU remains only partially achieved. Persistent divergences in national implementation and unresolved gaps undermine uniform application and weaken the level of protection envisioned by the Treaty. To ensure genuine compliance with Article 325 and strengthen the Union’s financial integrity, targeted legislative reforms and closer coordination among Member States and key Union institutions are essential. At the same time, preventive systems—such as internal controls, audits, and compliance measures—play a complementary role and should be reinforced where criminal sanctions are limited.

 

The Council’s position on proposed EU law on migrant smuggling: cynical political theatre?

 

Professor Steve Peers, Royal Holloway University of London

Photo credit: Ggia, via Wikimedia Commons

Introduction

Member States’ ministers (the EU Council) are likely to agree a negotiating position this week on replacement of existing EU law on smuggling of migrants – raising questions in particular about the compatibility of this law with human rights, including as regards humanitarian assistance for migrants. The following analysis first sets out the current law, comparing it to the Commission’s proposal for replacing that law last year, then comparing that proposal in turn to the likely text of the Council position, concluding with comments on the latest text. The proposal will still have to be negotiated with the European Parliament, which does not yet have a negotiation position of its own.

Current law

Because it was adopted before the entry into force of the Treaty of Lisbon, the current law is divided between two measures – a Directive setting out the prohibition on facilitating illegal entry or stay, and a Framework Decision providing for criminal offences based on the prohibition. (The proposed law is a Directive that will combine and replace the two).

According to the 2002 Directive, Member States must impose ‘appropriate sanctions’ on anyone who ‘intentionally assists a person who is not a national of a Member State to enter, or transit across, the territory of a Member State in breach of the laws of the State concerned on the entry or transit of aliens’ (illegal entry), and anyone ‘who, for financial gain, intentionally assists a person who is not a national of a Member State to reside within the territory of a Member State in breach of the laws of the State concerned on the residence of aliens’ (illegal stay). Note that the prohibition on facilitating ‘illegal entry’ is not subject to a ‘financial gain’ motive; but the Directive goes on to say that any Member State ‘may decide not to impose sanctions’ in such cases, ‘by applying its national law and practice for cases where the aim of the behaviour is to provide humanitarian assistance to the person concerned’. Member States must also apply sanctions where people are instigators of or accomplices in, or attempt, such actions.

The Framework Decision then specifies that the prohibitions in the Directive must be enforced by ‘effective, proportionate and dissuasive criminal penalties which may entail extradition’, possibly accompanied by ‘confiscation of the means of transport used to commit the offence’, ‘a prohibition on practising directly or through an intermediary the occupational activity in the exercise of which the offence was committed’, or ‘deportation’. In the case of illegal entry for financial gain or instigation, the Framework Decision is more precise about sentencing: there should be a possible maximum penalty of at least eight years where the offence was committed as part of an organised crime group (as defined by a separate EU law), or ‘while endangering the lives of the persons who are the subject of the offence’. But that could be lowered to six years if that was ‘imperative to preserve the coherence of the national penalty system…provided that it is among the most severe maximum sentences available for crimes of comparable gravity.’

After standard provisions on liability of, and sanctions for, legal persons, the Framework Decision requires Member States to establish jurisdiction over an offence committed ‘in whole or part upon its territory’, by its nationals, or for the benefit of a legal person established there. But Member States may waive either of the latter two rules, or apply them only in ‘specific cases or circumstances’. There is also a specific rule on extradition and prosecution (no longer relevant in light of the European Arrest Warrant), and rules on communication between Member States, where one of them is informed about breaches of the law of another Member State, or requests another Member State to prosecute as regards breaches of its own law.

Finally, the Framework Decision includes a safeguard for asylum:

This framework Decision shall apply without prejudice to the protection afforded refugees and asylum seekers in accordance with international law on refugees or other international instruments relating to human rights, in particular Member States' compliance with their international obligations pursuant to Articles 31 and 33 of the 1951 Convention relating to the status of refugees, as amended by the Protocol of New York of 1967.

There is limited case law on the current law, but the Advocate-General’s opinion in the pending case of Kinsa addresses its application to a family member being prosecuted for assisting her child to enter the territory. According to the opinion, this is covered by the obligation to criminalise assistance in the Directive (unless Member States opt out of that aspect), and the Directive is valid; but Member States are obliged to impose lower penalties in such cases.

 

Proposal

The Commission’s proposal starts with a merged criminal offence of assisting illegal entry or stay, either subject to a financial benefit test or a serious harm test:

a) the person who carries out the conduct requests, receives or accepts, directly or indirectly, a financial or material benefit, or a promise thereof, or carries out the conduct in order to obtain such a benefit; or

b) there is a high likelihood of causing serious harm to a person.

The preamble states that these elements of the offence:

…will usually not be fulfilled when it comes to assistance among family members or the provision of humanitarian assistance or the support of basic human needs. Third-country nationals should not become criminally liable for having been the subject to such criminal offences. Moreover, it is not the purpose of this Directive to criminalise, on the one hand, assistance provided to family members and, on the other hand, humanitarian assistance or the support of basic human needs provided to third-country nationals in compliance with legal obligations.

Although the asylum safeguard would be dropped from the main text, a version of it would still appear in the preamble:

Member States should apply this Directive in accordance and in full compliance with the 1951 Convention Relating to the Status of Refugees as amended by the Protocol of New York of 1967, obligations related to access to international protection, in particular the principle of non-refoulement, and fundamental rights.

The proposal also suggests a fleshed-out offence of ‘public instigation’ of illegal entry or stay, although the preamble states that providing ‘objective information’ about immigration and asylum law is not to be covered by this, and that the instigation would amount to ‘illegal content’ covered by the social media content regulation rules in the Digital Services Act.

The offence must be treated as ‘aggravated’ where it was committed within the framework of organised crime, ‘deliberately or by gross negligence caused serious harm to, or endangered the life of, the third-country nationals who were subject to the criminal offence’, was ‘committed by use of serious violence’, where those subject to the offence ‘were particularly vulnerable, including unaccompanied minors’, or where it caused the death of the migrant. Member States must also criminalise incitement, aiding and abetting and attempt – except as regards the ‘public instigation’ offence.

There would be more details on penalties: a maximum penalty possible of at least three years in general for the main offences; ten years (up from eight, or maybe six) for the (longer) list of aggravated cases, also now applying to illegal stay assistance, not only assistance for illegal entry; and fifteen years where a death was caused. (There would be no specific sentencing rule as regards the inchoate offences of incitement, aiding and abetting, or attempt).  

An expanded list of other penalties would include ‘withdrawal of permits or authorisations to pursue activities which have resulted in committing the criminal offence, or prohibition on practising directly or through an intermediary the occupational activity in the exercise of which the criminal offence was committed’ (the latter part reflecting the current law); return to a non-EU country either following sentence in the Member State concerned, or serving some or all of the sentence in the non-EU country, without prejudice to more favourable EU or national rules (building upon the current ‘deportation’); an entry ban for an appropriate period of a maximum ten years, again without prejudice to more favourable EU or national rules; exclusions from public funding etc; fines; and freezing and confiscation of proceeds and instrumentalities (building on the current confiscation of means of transport).

The current provisions on liability of legal persons would be supplemented by more detailed rules on levels of fines, resembling more the penalties in EU competition law (or the Digital Services Act): 3% of worldwide turnover as the general rule, 5% in the case of aggravated offences, 6% where a death is caused. There would also be a list of aggravated circumstances: an offence committed by a public official; a link to illegal employment offences; a prior conviction for the same offence; a link to ‘the exploitation or instrumentalisation of’ the migrant; dispossessing migrants of their ‘identity or travel documents’; or committing the offence while carrying a firearm. Conversely, helping the authorities to ‘find evidence’ or ‘identify or bring to justice other offenders’ would be a mitigating circumstance. But the consequences of either would not be further specified by the Directive.

Like several recent EU criminal law measures, there would be rules on minimum limitation periods: at least seven years after the commission of the offence as a general rule; ten years for aggravated offences; and fifteen years for deaths (including attempts). The same limitation periods would apply as regards enforcement of the sentence, from the date of conviction. As a derogation, these periods could be reduced to five, eight and ten years, ‘provided that the period may be interrupted or suspended in the event of specified acts’.

Jurisdiction would be expanded, to include not only acts committed on the territory in whole or part, but also by nationals and non-EU habitual residents, for the benefit of a legal person also where it does business in the territory, on board its ships or aircraft (registered or flying its flag), or resulting in the entry, transit or stay of the migrants concerned. Unlike the current law, Member States could not opt out of any of these jurisdiction rules. Where an offence was committed outside its territory, Member States would have to drop any requirement that the act was a criminal offence in the other country, or that prosecution required information from the other country first.  

There are some vague new provisions on prevention, resources, training, investigative tools, and data collection, and finally a requirement to apply the new law within one year – shorter than the normal two years for Directives.

 

Council position

First of all, the Council version simplifies the main criminal offence by dropping the provision about causing serious harm as well as the ‘public instigation’ offence. The offence remains assistance to illegal entry or stay, with a financial benefit element. A further safeguard clause has been added to the preamble:

In particular, nothing in this Directive should affect the rights, obligations and responsibilities of Member States and individuals to provide assistance to third-country nationals, for humanitarian reasons or aimed at meeting their basic human needs, under applicable international law - including international human rights law and in particular, where applicable, the 1951 Convention relating to the status of refugees as amended by the Protocol of New York of 1967, the United Nations Convention on the Law of the Sea, and in compliance with legal obligations. This assistance can also include legal, linguistic or social advice or support.

However, the preamble also expressly reserves the possibility for Member States to criminalise support not motivated by financial benefits (new text underlined):

Assistance of unauthorised entry, transit or stay in the Union should constitute a criminal offence at least when there is a link with an actual or a promised financial or material benefit. This is without prejudice to the way in which Member States deal in their national law with facilitation conducts for which an actual or a promised financial or material benefit is not a constituent element of the offence.

A wholly new recital in the preamble makes the point even more clearly:

This Directive is an instrument of minimum harmonisation. As a consequence, Member States are free to adopt or maintain legislation providing for a broader incrimination than what is set out in this Directive, in the interests of enhancing the effectiveness of the fight against migrant smugglers. Member States should ensure that intentionally assisting a third-country national to enter, or transit across, or stay within the territory of any Member State in breach of relevant Union law or the laws of the Member State concerned on the entry, transit and stay of third-country nationals constitutes a criminal offence at least where the person who carries out the conduct requests, receives or accepts, directly or indirectly, a financial or material benefit, or a promise thereof, or carries out the conduct in order to obtain such a benefit. However, since this Directive is an instrument of minimum harmonisation, Member States are free to criminalise such conduct when no financial or another material benefit has been provided.

And the Commission’s proposed recital stating that family members, and migrants subject to the offence, should not themselves be criminalised, is replaced by two recitals giving Member States leeway to do just that:

Nothing in this Directive should be understood as requiring the criminalisation, on the one hand, of assistance provided to close family members and, on the other hand, of humanitarian assistance or the support of basic human needs provided to third-country nationals in compliance with the applicable national and international legal framework.

Without prejudice to rules of national law relating to unauthorised entry in the territory of the Member State concerned, third-country nationals should not become criminally liable for the sole fact of having been the subject to the criminal offence of facilitating the unauthorised entry, transit across, or stay within the territory of any Member State.

In this context, it should be noted that the case law on the Returns Directive, beginning with El Dridi, places limits on Member States enforcing criminal law against migrants for irregular entry or stay by means of custodial sentences – although this is subject to exceptions, and the rationale for it is to speed up expulsion.  

The penalty would follow the Commission proposal for at least a three year possible maximum sentence for the offences. But it would revert to eight years (as at present, although without the option to lower that to six years) for (a longer list of) aggravated offences. It would also revert to an option to apply these sentences to illegal stay cases, and refer to serious endangerment of life – a higher threshold than the current law – as regards one of the grounds of aggravated offences (and the proposed extension to include serious harm would be dropped). The possible maximum sentence would be at least ten (not fifteen) years where a death is caused (subject to the added requirement that the death was caused by seriously endangering the migrant’s life; a new recital in the preamble refers to ‘intention’ being defined by national law, and the avoidance of strict liability). As for additional penalties, the Council would drop the reference to return (thus being less stringent on this point than the current law) as well as the specific reference to a 10-year entry ban (the length of the ban would not be specified).

The penalties for legal persons would be simplified by adding a possibility of a lump sum (€24 million for basic cases, €40 million for aggravated cases); deaths of migrants would be subsumed within the rules on other aggravated cases. A new provision would allow for different penalties than these, if necessary to be consistent with national penalty systems. Aggravating circumstances would no longer include a link to illegal employment, exploitation of migrants (although ‘instrumentalisation’ would now be defined in the preamble), or carrying a firearm, but would now include cases where ‘the criminal offence was committed involving cruel, inhuman, or degrading treatment of a third-country national who was subject to the criminal offence.’

Limitation periods for prosecution would be reduced compared to the proposal, matching the sentencing rules – ie a limitation period of three years where the maximum penalty must be at least three years, eight years for aggravated offences, and ten where death was caused via serious endangerment. A separate set of limitation periods would apply to enforcement after a sentence – three, five, eight or ten years from the conviction, depending on the length of the sentence. Member States could reduce either set of limitation periods to five years (where they were longer than that).

Next, Member States would only be obliged to assert jurisdiction where the offence was committed in whole or part on its territory, or by their nationals, or on board their ships or aircraft. Unlike the proposal, it would be optional to assert jurisdiction as regards non-EU habitual residents, where the act was for the benefit of a legal person established or doing business in the territory, or where the act aimed at the entry, transit or stay of the migrants concerned. Where an offence was committed outside its territory, Member States could retain a requirement that the act was a criminal offence in the other country. Finally, Member States would have two years to give effect to the Directive – probably bringing us to the second half of 2027.

 

Comments

If the European Parliament accepts the Council’s position – and we have no idea what the Parliament (now less liberal than it was before on immigration issues) will argue for – then the main changes from the current law would be:

-          criminalising assistance to illegal entry without financial benefit would no longer be the rule under EU law, with an opt out for Member States, but rather outside the scope of the law, leaving Member States free to criminalise it if they wish;  

-          a three year possible maximum criminal sentence for the main offences, and ten years where a death was caused by seriously endangering a migrant’s life;

-          returns would no longer be explicitly referred to as a penalty, although entry bans now would be;

-          there would be more specific possible penalties for legal persons;

-          there would be new rules on aggravating circumstances, mitigating circumstances, and limitation periods; and

-          jurisdiction would have to be asserted also as regards ships, aircraft and nationals.

The most controversial element here is likely to be exactly how to treat offences not committed for financial gain. (On this point, see also the Belgian Presidency redraft six months ago) Although nominally removing the default obligation under EU law to criminalise all cases of assisting illegal entry, unless Member States choose to opt out, Member States will still be left to criminalise such cases if they wished to, outside the scope of EU law.

In fact, if the Advocate-General’s opinion in the pending Kinsa case is followed, the position of anyone criminalised in this situation will arguably be worse: if EU law no longer applies to them, then even the obligation to reduce the possible penalties applicable to them, recommended by the Advocate-General, will no longer apply. Only a fully-fledged humanitarian defence to criminal liability would suffice. But on that point, it might be argued that since the EU can only set minimum rules on criminal offences (according to the Treaties), EU law is unable to provide fully for defences, because Member States are always free to insist upon greater criminal obligations than EU law provides for.

As for the other changes to the law, the provisions on sentencing, entry bans, limitation periods, special circumstances and jurisdiction may already reflect what many Member States do in practice. It’s hard to be sure because the Commission did not produce an impact assessment on its proposal, although the explanatory memorandum to that proposal did give some examples of potential maximum sentences of less than three years in some Member States. Taken as a whole, this exercise looks like another example of ‘migration theatre’ – an activity intending to signal some effort to control migration flows, but which does not change things much in practice, either as regards criminal liability for those profiting from smuggling, or exemption from liability for humanitarians and desperate family members who do not.

 

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?

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[1]https://www.europarl.europa.eu/RegData/etudes/ATAG/2022/739268/EPRS_ATA(2022)739268_EN.pdf  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: https://www.computerweekly.com/news/252526497/Dutch-lawyers-raise-human-rights-concerns-over-hacked-cryptophone-data

       https://www.fairtrials.org/articles/news/encrochat-hack-fair-trials-denounces-lack-of-transparency-and-oversight/

[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: https://www.eurojust.europa.eu/20-years-of-eurojust/recent-jurisprudence-cjeu-judicial-independence-and-european-arrest-warrant

[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).

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

 

INTRODUCTION

 

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.

 

BACKGROUND

 

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).

 

COMMON RESPONSIBILITY AND A COMPREHENSIVE FRAMEWORK

 

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.

 

CRIMINALISING FORMS OF VIOLENCE

 

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.

 

INTERSECTIONAL DISCRIMINATION

 

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.

 

THE ABSENCE OF ACKNOWLEDGEMENT OF GBV AS A HUMAN RIGHTS VIOLATION

 

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.

 

A CLEAR GENDER PERSPECTIVE MISSING

 

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.

 

NOT CRIMINALISED FORMS OF VIOLENCE

 

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.

 

ABSENCE OF A DEFINITION OF RAPE

 

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.

 

UNDOCUMENTED WOMEN AND WOMEN WITH AN INSECURE RESIDENCE STATUS

 

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 (C‑621/21)^[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.

 

THE WORLD OF WORK AND THE NEW DIRECTIVE

 

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.

 

CONCLUSION

 

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.

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[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.