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.

The Dillon Judgment, Disapplication of Statutes and Article 2 of the Northern Ireland Protocol/Windsor Framework

 

 

Anurag Deb, PhD researcher, Queens University Belfast, and Colin Murray, Professor of Law, Newcastle Law School

Photo credit: Aaronward, via Wikicommons media

Extensive provisions of an Act of Parliament have been disapplied by a domestic court in the UK for the first time since Brexit. That is, in itself, a major development, and one which illustrates the power of the continuing connections between the UK and EU legal orders under the Withdrawal Agreement. It is an outcome which took many by surprise, even though we have argued at length that the UK Government has consistently failed to recognise the impact of Article 2 in rights cases. So here is the story of this provision of the Withdrawal Agreement, the first round of the Dillon case, and why understanding it will matter for many strands of the current government’s legislative agenda.

Article 2 of the Windsor Framework, as the UK Government insists on calling the entirety of what was the Northern Ireland Protocol (even though the Windsor Framework did nothing to alter this and many other provisions), is one of the great survivors of this most controversial element of the Brexit deal. Whereas other parts of the Brexit arrangements for Northern Ireland have been repeatedly recast, the wording of this provision has remained remarkably consistent since Theresa May announced her version of the Brexit deal in November 2018 (although it was Article 4 in that uncompleted version of the deal).

The provision was tied up relatively early in the process. Indeed, it suited the UK Government to be able to claim that rights in Northern Ireland were being protected as part of the Withdrawal Agreement, to enable them to avoid claims that Brexit was undermining the Belfast/Good Friday Agreement of 1998. Although the 1998 Agreement makes limited mention of the EU in general, it devotes an entire chapter to rights and equality issues, and EU law would play an increasing role with regard to these issues in the years after 1998.   

The UK Government made great play of explaining, in 2020, that its Article 2 obligations reflected its ‘steadfast commitment to upholding the Belfast (“Good Friday”) Agreement (“the Agreement”) in all its parts’ (para 1). Even as it appeared ready to rip up large portions of the Protocol, in the summer of 2021, the Article 2 commitments continued to be presented as ‘not controversial’ (para 37). It might more accurately have said that these measures were not yet controversial, for no one had yet sought to use this provision to challenge the operation of an Act of Parliament. In a powerful example of Brexit “cake-ism”, the UK Government loudly maintained that Article 2 was sacrosanct only because it had convinced itself that the domestic courts would not be able to make much use of it.

Little over a month ago, the Safeguarding the Union Command Paper all-but sought to write the rights provision out of the Windsor Framework (para 46):

The important starting point is that the Windsor Framework applies only in respect of the trade in goods - the vast majority of public policy is entirely untouched by it. … Article 2 of the Framework does not apply EU law or ECJ jurisdiction, and only applies in the respect of rights set out in the relevant chapter of the Belfast (Good Friday) Agreement and a diminution of those rights which arises as a result of the UK’s withdrawal from the EU.

Article 2 is a complex and detailed provision, by which (read alongside Article 13(3)) the UK commits that the law in Northern Ireland will mirror developments in EU law regarding the six equality directives listed in Annex 1 of the Protocol and, where other aspects of EU law protect aspects of the rights and equality arrangements of the relevant chapter of the 1998 Agreement, that there will be no diminution of such protections as a result of Brexit. But notwithstanding the complexity of these multi-speed provisions, by no construction can it be tenable to suggest that ‘the Windsor Framework applies only in respect of the trade in goods’.

The Dillon judgment marks the point at which the Government’s rhetoric is confronted by the reality of the UK’s Withdrawal Agreement obligations, and the extent to which they are incorporated into domestic law by the UK Parliament’s Withdrawal legislation. The case relates to the controversial Northern Ireland Troubles (Legacy and Reconciliation) Act 2023, heralded by the UK Government as its vehicle for addressing the legal aftermath of the Northern Ireland conflict. This Act, in preventing the operation of civil and criminal justice mechanisms in cases relating to the conflict, providing for an alternate body for addressing these legacy cases (Independent Commission for Reconciliation and Information Recovery) and requiring this body to provide for immunity for those involved in causing harms during the conflict, has provoked widespread concern within and beyond Northern Ireland.

The Act has been the subject of challenges under the Human Rights Act 1998 and an inter-state action against the UK launched before the European Court of Human Rights by Ireland. In the interest of brevity, however, this post will explore only the challenges under the Protocol/Windsor Framework. This is not the first case to invoke Article 2 (see here and here for our analysis of earlier litigation to which the UK Government should have paid more attention), but this remains the most novel element of the litigation, testing the operation of this element of the Withdrawal Agreement. It is also offers the most powerful remedy directly available to those challenging the Act; disapplication of a statute to the extent that it conflicts with those elements of EU law which this provision preserves.

These requirements are explained by the operation of Article 4 of the Withdrawal Agreement, which spells out that elements of the Withdrawal Agreement and the EU law which continues to be operative within the UK as a result of that Agreement will continue to be protected by the same remedies as applicable to breaches of EU law by Member States. Section 7A of the European Union (Withdrawal Act) 2018 reflected this obligation within the UK’s domestic jurisdictions, as accepted by the UK Supreme Court in the Allister case (see here for analysis). For Mr Justice Colton, his task could thus be summarised remarkably easily; ‘any provisions of the 2023 Act which are in breach of the WF [Windsor Framework] should be disapplied’ (para 527). All he had to do, therefore, was assess whether there was a breach.

The rights of victims are a prominent element of the Rights, Safeguards and Equality of Opportunity chapter of the 1998 Agreement. These rights were, in part, given protection within Northern Ireland Law through the operation of the Victims’ Directive prior to Brexit and, insofar as this EU law is being implemented, through the operation of the EU Charter of Fundamental Rights with regard to its terms. The key provision of the Victims’ Directive is the guarantee in Article 11 that applicants must be able to review a decision not to prosecute, a right clearly abridged where immunity from prosecution is provided for under the Legacy Act. The breach of this provision alone was therefore sufficient to require the application of extensive elements of the Legacy Act (sections 7(3), 8, 12, 19, 20, 21, 22, 39, 41, 42(1)) (para 608):

It is correct that article 11(1) and article 11(2) both permit procedural rules to be established by national law. However, the substantive entitlement embedded in article 11 is a matter for implementation only and may not be taken away by domestic law. The Directive pre-supposes the possibility of a prosecution. Any removal of this possibility is incompatible with the Directive.

The UK Government cannot claim to have been blindsided by this conclusion. They explicitly acknowledged the specific significance of the Victims’ Directive for the 1998 Agreement commitments in their 2020 Explainer on Article 2 (para 13). Moreover, in the context of queries over the application of Article 2 to immigration legislation, the UK Government insisted that in making provisions for victims the 1998 Agreement’s ‘drafters had in mind the victims of violence relating to the conflict in Northern Ireland’. Exposed by these very assertions, the Government hoped to browbeat the courts with a vociferous defence of the Legacy Act (going so far as to threaten consequences against Ireland for having the temerity to challenge immunity arrangements which raised such obvious rights issues).

The strange thing about the Dillon case, therefore, is not that the court disapplied swathes of the Legacy Act. This outcome is the direct consequence of the special rights protections that the UK agreed for Northern Ireland as part of the Withdrawal Agreement. The strange thing is that Mr Justice Colton arrived at this position so readily, in the face of such a determined efforts by the UK Government to obscure the extent of the rights obligations to which it had signed up. In the context of the UK’s full membership of the EEC and its successors, it took many years and many missteps to get to Judicial Committee of the House of Lords applying the remedy of disapplication of statutory provisions which were in conflict with EU law (or Community law, as it then was) in Factortame (No. 2). The Northern Ireland High Court was not distracted from recognising that these requirements remain the same within Northern Ireland’s post-Brexit legal framework when it comes to non-diminution of rights as a result of Brexit.

Indeed, the Court could not be so distracted. As we set out above, once Colton J determined that relevant sections of the Legacy Act had breached the Victims’ Directive, the judge had no discretion in the matter of disapplying the offending sections. This marks perhaps one of the strangest revelations to emerge from Brexit. Disapplication of inconsistent domestic law (of whatever provenance) as a remedy extends across much of the Withdrawal Agreement, covering any and every aspect of EU law which the Agreement makes applicable in the UK. This fact – spelled out in the crisp terms of Article 4 of the Withdrawal Agreement – was nowhere to be found in the 1972 Accession Treaty by which the UK became part of the (then) EEC. This is unsurprising, considering that the primacy of Community law over domestic law was then a relatively recent judicial discovery. In the decades since then, however, the principle of EU law primacy and the requirement that inconsistent domestic laws be disapplied have become a firm and irrevocable reality. Small wonder then, that the UK Government accepted it as a price to pay for leaving Brussels’ orbit without jeopardising the 1998 Agreement – no matter how it has since spun the notion of “taking back control”.

Where the government might have its own interests in attempting to obscure the clarity of Article 2 and its attendant consequences, Dillon is by some measure a wake-up call for Westminster. The report of the Joint Committee on Human Rights’ scrutiny of the Bill which became the Legacy Act contained no reference to the Windsor Framework, notwithstanding consistent work by the statutory Human Rights and Equality Commissions in Northern Ireland (the NIHRC and ECNI) to highlight the issue. Dillon marks not only some of the most extensive disapplication of primary legislation ever enacted by Parliament, but also the first such outcome after Brexit. But Dillon is only the beginning. It will be followed in the weeks to come by a challenge to the Illegal Migration Act 2023 by the NIHRC, where there are clear arguments that relevant EU law has been neglected. The Government, and Westminster in general, have not woken up to the legal realities of the Brexit deal. Dillon makes clear that Parliament needs to pay far greater attention to the Windsor Framework; not as a legal curio that only occasionally escapes its provincial relevance, but as a powerful source of law which impacts law-making and laws which are intended to apply on a UK-wide basis.

  

Some Complex Legal Questions Examined from a Legal Perspective in a Partial and Passionate Manner Or, The EU’s Ratification of the Istanbul Convention: Competence, Bases and Common Accord

 

 

Catherine Briddick, Martin James Departmental Lecturer in Gender and Forced Migration at the Refugee Studies Centre, University of Oxford - @CateBriddick*

 

On the 11th March 2021 Advocate General Hogan of the CJEU delivered his Opinion (Opinion Procedure 1/19, ECLI:EU:C:2021:198) on the European Parliament’s request for an advisory opinion on the accession of the EU to the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence.

To prepare the reader concerned by the EU’s attempt to assume just a small selection of the legal obligations the Istanbul Convention imposes on its parties, the Advocate General cautions that:

“While that [the Istanbul] convention seeks to advance the noble and desirable goal of combating violence against women and children, the question of whether the conclusion of that particular convention would be compatible with the EU Treaties presents complex legal questions of some novelty which must naturally be examined from a legal perspective in a detached and dispassionate manner.” (para 2)

In this blog, I present my initial thoughts on the Advocate General’s Opinion and the implications that a CJEU judgment along the same lines could have for women in Europe. Detached and dispassionate I am not.

So, “complex legal questions” and their answers first.

The Istanbul Convention is only the second international legal instrument to focus on violence against women, such violence being, per the Convention’s preamble:

“a manifestation of historically unequal power relations between women and men, which have led to domination over, and discrimination against, women by men.”

Both the EU and its Member States can accede to or ratify the Istanbul Convention. Accession involves the Council, with the consent of the European Parliament, adopting a decision to do so. The decision must identify the legal bases of the EU’s accession, bases which must be derived from the EU’s legal competence (its ability or power) to act in a particular field. Once ratified, the agreement is binding on the institutions of the EU and EU Member States, within the relevant competences and to the extent that the EU has concluded the treaty. Further information about the EU’s accession to the Istanbul Convention can be found here. Some previous thoughts of mine on this topic are available here.

On 11 May 2017 the Council adopted two separate decisions relating to the signing of the Istanbul Convention. The first decision (2017/865) refers to arts 82(2) and 83(1) TFEU and limits accession only to those parts of the Convention concerned with “judicial cooperation in criminal matters.” The second decision (2017/866) identifies art 78(2) TFEU on the establishment of a common European asylum system as its legal base, this time referring only to “asylum and non-refoulement.”

These two Council decisions departed from that proposed by the Commission in two, interconnected ways.

First, the decisions rely on different legal bases to those the Commission identified. Second, the identified bases differ because the decisions limit, or attempt to limit, the legal obligations the EU will accept in relation to the Istanbul Convention only to those that concern judicial cooperation in criminal matters and to asylum and non-refoulement. Such a limited accession would insulate swathes of EU law, including free movement law, from the purview of the Convention and its monitoring body, GREVIO.

The European Parliament was quick to express its “regret” and to recommend a “broad EU accession to the Convention without any limitations”. On 9 July 2019, it requested an Advisory Opinion from the CJEU on the following questions:

(a) Do Articles 82(2) and 84 TFEU (the bases proposed by the Commission) constitute the appropriate legal bases for the Council act concluding the Istanbul Convention on behalf of the Union, or should that act be based on Articles 78(2), 82(2) and 83(1) TFEU (the bases selected by the Council)?

(b) Is it necessary or possible to split each of the two decisions on the signing and on the conclusion of the convention as a result of this choice of legal basis?

 

Is the conclusion by the Union of the Istanbul Convention in accordance with Article 218(6) TFEU compatible with the Treaties in the absence of a common agreement of all the Member States giving their consent to being bound by the convention?’

On 1(a), the Advocate General opines that the decision(s) authorising the EU to conclude the Convention must be based on Articles 78(2), 82(2), 84 and 336 TFEU (para 166). These bases concern the common European asylum system, judicial co-operation in criminal matters, non-harmonising measures for crime prevention and EU officials’ conditions of employment. The Advocate General selects these bases because they correspond to those which, whilst not covering the entirety of the Istanbul Convention, correspond to those competences the Council has chosen to exercise (paras 136, 148).

Reaching this decision required the Advocate General to accept the Council’s “limited adhesion” to the Istanbul Convention, even though such an “adhesion” involved “renouncing its [the EU’s] competence in the area of combating discrimination based on gender” (para 165). Notably, the Advocate General rejects as a base for accession the key objective of the Istanbul Convention - the elimination of sex discrimination (para 129) notwithstanding the EU’s competence and legal obligation to do so (arts 8 & 10 TFEU).

Having already accepted the Council’s/EU’s “limited adhesion” to the Convention, the Advocate General proceeds to answer question 1(b) in the affirmative, noting as he does the potential impact of the Convention’s protections for asylum-seeking and refugee women on the relevant EU rules (more on which later).

The Istanbul Convention takes an intersectional approach to violence and discrimination against women, art 4(3) prohibiting discrimination on a range of grounds, including sexual orientation, marital status, migrant or refugee status. A number of States have objected to and sought to undermine this approach, even after they have signed the Convention and are, therefore, obliged to refrain from acts which would defeat its objects and purposes (per art 18, Vienna Convention on the Law of Treaties 1969).

The European Parliament has condemned what it describes as a “backlash” against women’s rights, expressing its support for the rights and protections the Convention provides to all women. Notwithstanding the concerted efforts of the Council of Europe and others to respond to ‘concerns’ about the Convention’s aims and impacts, a number of EU States have failed to ratify it. Poland and Turkey (the latter a member of the Council of Europe but not the EU) have announced their intention to withdraw from the Convention altogether (see Professor Başak Çali’s analysis of Turkey’s decision).

Should and can the EU accede to an international instrument when a significant and vocal proportion of its Member States have chosen not to do so? The Advocate General opines that while there are “strong practical reasons” (para 218) to wait for its Member States to ratify the Convention, the Council is under no obligation to do so (para 223).

And now to the partial and passionate bit.

The Advocate General accepts, from the outset of his opinion, that the Council can proceed to a partial conclusion of the Istanbul Convention. When discussing this, however, he shifts from a discussion of the legal powers and choices of the EU itself (“where the Union chooses not to exercise the competence…” para 84) to that of the Council (“…it is clear that the Council intends...para 85).

In this linguistic and legal shift, the Advocate General substitutes the Council’s intentions for those of the Union as a whole, a move that is surprising given the lack of agreement on the necessity of ratifying the Istanbul Convention within the EU’s institutions, or between its Member States. The Advocate General does acknowledge the possibility that the Council’s decisions could be the subject of further challenge, once the competences exercised are known (paras 86, 164). He fails, however, to subject to adequate scrutiny the Council’s decision not to draw on its competence in relation to sex discrimination to accept all the obligations the Convention imposes. This failure seems particularly stark given that this is almost precisely the course of action that arts 8 & 10 TFEU seem to demand, (“the Union shall aim to combat discrimination based on sex…”), in addition to being called for by the European Parliament. 

Second and linked to the above, the Advocate General’s acceptance of a partial accession of the Istanbul Convention could, as explained, exempt key areas of EU law from having to meet the standards it imposes. One could be forgiven for speculating that this is precisely the point, or one of the points, of the proposed accession. It is extremely troubling, however, that the Advocate General takes this approach without understanding exactly which parts of EU law his Opinion, if followed by the Court, would effect and protect in this way.

Having side-stepped the question of whether or not the EU’s free movement rules meet the standards set by the Istanbul Convention for the protection of migrant victims of violence against women (para 106, spoiler alert – they really don’t), the Advocate General erroneously assumes (paras 104-112, 160) that the second Council decision is concerned with them. This is simply incorrect. As set out in para 9 and art 1, the second decision only concerns asylum and non-refoulement, Istanbul Convention arts 60 and 61. It specifically does not cover the Istanbul Convention’s art 59, which takes a protective four-fold approach to migrant victims’ residence rights. It is of real concern that the Advocate General is so mistaken on this point, particularly given the CJEU’s “shameful” decision in NA to deny residence rights to migrant victims of domestic violence who are abandoned by their EU Citizen spouses before they can start divorce proceedings. Space precludes me from discussing this point any further, or for railing at the Advocate General’s comment to the effect that EU law does not “generally”  require violence against women to be taken into account as a form of persecution that could give rise to refugee status (para 161).

All of which brings me to my third and final point which concerns detachment and power in legal decision-making.

This case is, as the Advocate General acknowledges, about violence and discrimination against women. It is about the fact that, in another State that has failed to ratify the Convention, the UK, a woman is killed by a man, on average, every three days. Violence, and the fear of it, determines the course of, and shapes, many women’s lives. It has shaped my own. I’ve been assaulted by men who followed me home from a late night at work. I’ve been sworn at on the street for refusing an “offer” of sex, and harassed and threatened when cycling back from drinks with colleagues. In the first of these incidents I was 8 months pregnant with my first child. In the second, I had my second child, then a 6-week-old baby, with me. I can’t be detached from, or dispassionate about, State and EU responses to violence and discrimination against women. Nor can the women whose migration statuses are currently determined by EU rules which offer them significantly less protection that that provided by the Istanbul Convention.

Violence against women is discriminatory violence that breaches women’s human rights, including the right to be equally protected by the law (per the ECtHR case of Opuz v Turkey and the Charter of Fundamental Rights of the EU). Opinions and decisions that give insufficient weight to legal prohibitions of sex discrimination, and attempts to circumvent them, sustain and amplify such discrimination. Combating violence against women and children is not a “noble and desirable goal” (para 2 of the Advocate General’s Opinion). It is a legal obligation. Exhortations of and to detachment, when offered in lieu of a principled vindication of women and children’s rights, serve only to reveal the position and power held by those who write them.

To be completely clear - I am not comparing, or in any way equating, my experiences of violence with the experiences of migrant women, like NA. We are all differently situated within co-constituting and mutually reinforcing networks of power and oppression. The Istanbul Convention’s prohibition of intra-sex discrimination recognises this, and seeks to ensure that those who are at the intersection of more than one axis of discrimination, including migrant women, and women who face violence because of their race and sex, receive the specialist support and services they need to overcome it. This is just one part of a Convention the whole of which is worth fighting for. I look forward to reading a CJEU judgment that sees and understands this.

*I would like to thank Professor Shazia Choudhury for reading this piece; all errors remain my own 

Barnard & Peers: chapter 20

Photo credit, Cedric Puisney, via Wikicommons Media

The EU’s commitment to combatting violence against women: rhetoric or reality?

Catherine Briddick, Martin James Departmental Lecturer in Gender and Forced Migration at the Refugee Studies Centre of the University of Oxford - @CateBriddick

Background

The EU has, at its heart, a legal commitment to combat discrimination, including that based on sex, and to promote gender equality. It has however, been subject to sustained and justified criticism for its failure(s) to live up to these commitments, particularly in relation to its treatment of migrant and refugee women. The announcement by the Commission in 2016 that the EU would sign and conclude (ratify) the Council of Europe Convention on Preventing and Combatting Violence Against Women (the Istanbul Convention) was, therefore, warmly received by activists and academics alike.

 

The Istanbul Convention, for readers unfamiliar with it, is only the second international, legal instrument to focus on violence against women and the role of that violence in maintaining women’s inequality. The purposes of the Convention (set out in Article 2) are to protect women from all forms of violence and to prevent, prosecute and even eliminate violence against women and domestic violence. To achieve these purposes the Convention imposes on Parties a comprehensive range of obligations including that they:

-          adopt integrated, co-ordinated and properly resourced policies and programmes to challenge gender inequality, monitor and respond to violence against women (Istanbul Convention, Chapter II);

-          prevent violence through education, training and awareness-raising (Chapter III);

-          protect and support victims via a range of non-legal and legal measures (Chapters IV, V and VI);

-          investigate, prosecute and punish offenders (Chapter VI);

-          grant autonomous and/or renewable residence permits to migrant women who are victims of violence (Article 59); and,

-          ensure that refugee women’s claims for protection and dealt with in a gender-sensitive way (Arts 60 and 61).

Significantly, the rights and protections the Convention provides victims are to be secured by Parties without discrimination on any ground, including migration or citizenship status (Article 4(3)).

In force since 2014, the Convention has, at the time of writing, been ratified by thirty-three States (including Germany, Austria, Denmark, France, Italy, Spain, Sweden and Turkey) and signed by many others, including the UK.

The EU’s current approach

The Istanbul Convention itself envisages EU accession (Article 75), something that the EU can do to the full extent of its competences, as this blog has already discussed. The procedure to be followed involves the Council, following a Commission proposal and the consent of the European Parliament, adopting a decision which concludes the agreement. The agreement must identify the legal bases for the EU’s accession, bases derived from the EU’s legal competence (its ability or power) to act in a particular field. Once ratified, this agreement is binding on the institutions of the EU and EU Member States, to the extent that the EU has concluded the treaty. You can read more about this process here.

The EU’s competence in relation to violence against women is extremely broad. The legal bases under the Treaty on the Functioning of the European Union (TFEU) identified by the Commission in its Proposal for the Council on the conclusion of the Istanbul Convention were:

Article 16 (data protection), Article 19(1) (sex discrimination), Article 23 (consular protection for citizens of another Member State), Articles 18, 21, 46, 50 (free movement of citizens, free movement of workers and freedom of establishment), Article 78 (asylum and subsidiary and temporary protection), Article 79 (immigration), Article 81 (judicial cooperation in civil matters), Article 82 (judicial cooperation in criminal matters), Article 83 (definition of EU-wide criminal offences and sanctions for particularly serious crimes with a cross-border dimension), Article 84 (non-harmonising measures for crime prevention), and Article 157 (equal opportunities and equal treatment of men and women in areas of employment and occupation).

The Commission argued that it was appropriate to base a Council Decision signing the Istanbul Convention on Articles 82(2) and 84 TFEU because the ‘predominant purpose’ of the Convention is to prevent crime and protect victims. Selecting these bases would enable the EU to ‘exercise its competences over the entirety of the Convention’. Accordingly, the Commission’s draft Council Decision refers to Article 82(2) and Article 84 TFEU and refers to the EU signing up to the Convention as a whole.

The Council, however, took a radically different approach to that proposed by the Commission, taking not one but two decisions to sign the Convention in May 2017.

The first decision refers to Article 82(2) and Article 84 TFEU but states in Article 1 that:

The signing, on behalf of the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence with regard to matters related to judicial cooperation in criminal matters is hereby authorised, subject to the conclusion of the said Convention (emphasis added).

The second decision identifies Article 78(2) TFEU (on the establishment of a Common European Asylum System) as its legal base, stating in its Article 1 that the signing of the Convention is ‘with regard to asylum and non-refoulement’ (again, emphasis added).

These decisions limit the legal obligations the EU will accept in relation to the Istanbul Convention only to those that concern judicial cooperation in criminal matters and to asylum and non-refoulement (not, for example, European Union free movement law).

These decisions not only diverge from the Commission’s proposal, but also from the EU’s position in relation to the UN Convention on the Rights of Persons with Disabilities (the CRPD). The Council decision which signed the CRPD signed the Convention as a whole and took as its legal basis the EU’s commitment to non-discrimination.

(Update: in April 2019, the European Parliament decided to ask the Court of Justice about legal issues relating to the EU's proposed conclusion of the Istanbul Convention).

Commentary

Readers of this blog can be forgiven for asking if any of the above really matters. The obligations that the EU is planning to assume under the Istanbul Convention are significant, even if they are more limited than many hoped for and anticipated. EU action in either of the two areas it has signed up to could yield significant improvements in the way that violence against women is responded to, at both an EU and national level.  

Well it does matter, for at least two reasons.

First, EU free movement law disadvantages women, including women who have been subject to violence. To take just one example, as this blog and I have argued, the CJEU’s shameful decision in NA (which concerned Article 13 of the Citizens Directive), left a third-country national woman whose EU citizen husband subjected her to domestic violence and then left the UK, without a secure migration status. Article 59 of the Istanbul Convention requires Parties to grant autonomous and/or renewable residence permits to victims of violence in a broader range of circumstances than that currently provided for by EU law, potentially improving the position of women like NA whose migration status is (or was) dependent on their partner. The EU’s decision not to sign up to this provision means that women who are subject to violence whose migration status is determined by EU law will continue to face considerable hardship.

Second, the Convention itself and the holistic approach it adopts to violence and discrimination against women have been attacked and undermined by States who are either Parties or signatories to it.  Some States, including Poland, Latvia, Lithuania and Croatia have sought to limit the obligations the Convention imposes by making impermissible and potentially invalid declarations / reservations to it. In Bulgaria the process of ratifying the Istanbul Convention has been halted following a controversial judgement from its Constitutional Court that the Convention contradicts Bulgaria’s constitutional protection of women as mothers. The Commission has expressed concern about these developments and has sought to encourage States to ratify the Convention fully and without delay, highlighting its own role as a potential enforcer of the Convention where EU competences are involved. The EU’s ability to provide either political leadership or legal support on these issues is, however, hampered by its own partial and highly selective engagement with the Convention. Not only is the EU open to allegations of hypocrisy, but its own actions give succour to, rather than challenge, the conduct of the very States whose behaviour it seeks to influence.

Can the Council’s position be challenged?

Whether the Council’s two decisions will actually lead to the EU engaging with the Istanbul Convention in the very limited way described here is, as yet, far from clear.  

The European Parliament has stated that it ‘regrets’ the Council’s approach because it raises ‘legal uncertainties as to the scope of the EU’s accession, as well as concerns regarding the implementation of the Convention’. The Parliament has recommended instead ‘a broad EU accession to the Convention without any limitations’. It is not known whether the Parliament’s ‘regret’ will extent to withholding its agreement to the Council’s decisions.

The decisions could also be subject to legal challenge. The Commission has successfully challenged a Council decision to enter into a legal agreement with a third country on the grounds that it did not proceed on the correct legal bases. A similar challenge, based on the arguments the Commission advanced in its Proposal (as discussed briefly above) or, more persuasively in my view, on the grounds that the EU’s legal response to violence against women should be based in its commitment to combat sex discrimination, may well yield success.

The Istanbul Convention is monitored and enforced by a committee, the Group of Experts on Action against Violence against women and Domestic Violence (GREVIO) via a reporting and inquiry procedure. The EU’s approach to the Istanbul Convention could also be challenged by GREVIO or another Party to it. Article 75 of the Istanbul Convention refers to the Convention as a whole being open for signature, not parts of it whilst Article 73 provides for a dispute mechanism to be created if Parties disagree over the application of its provisions.

At the time of writing the EU’s (stalled) ratification of the Istanbul Convention is being considered by the Council working party on Fundamental Rights, Citizens’ Rights and Free Movement of Persons (FREMP). This scrutiny is being accompanied by a concerted, EU-wide campaign in support of the Istanbul Convention and the EU’s full ratification of it. Over the next few months we will be able to gauge the impact of these processes, as the EU proceeds (slowly) to conclude the Convention. We will then find out whether the EU’s rhetoric on violence against women is any more than that. 

Barnard & Peers: chapter 9, chapter 20

JHA4: chapter I:5

Photo credit: Council of Europe