Today's report from the EU's Fundamental Rights Agency (FRA) on the scale of violence against women within the European Union is simultaneously an enormously impressive attempt to collect standardised data on this important issue, and a very upsetting indication at how prevalent such forms of violence are. The FRA report makes a large number of detailed and useful recommendations to Member States and the EU about how to address this issue, as regards changes to national law, the interpretation of existing EU laws, and the role of education and awareness-raising. Yet it does not suggest that the EU adopt legislation on the specific subject. In my view, the EU could - and should- do so. So despite the great value of the FRA's report, it is, in my view, unfortunate that it did not take this opportunity to advocate EU legislation.
The EU's ability to act
No matter how desirable a particular law might be, the EU can only act when powers have been conferred upon it. To what extent can it act to deal with violence against women? First of all, Article 83(1) TFEU gives the EU power to adopt criminal law measures on specific offences which were deemed by the Treaty drafters to have a EU-wide impact. This includes legislation concerning 'trafficking in human beings and the sexual exploitation of women and children'. Indeed, as the FRA report points out, the EU has adopted Directives on trafficking in persons and sexual offences against children.
The EU has also used its power to adopt a Directive on the protection of crime victims generally, which, as the report points out, contains specific provisions on protection against gender-related violence. However, this Directive does not address issues of substantive criminal law. Neither does the EU legislation on cross-border enforcement of criminal law protection orders or civil law protection orders.
Could the EU adopt a substantive criminal law measure on other aspects of violence against women? It does have power to adopt criminal law measures on offences not listed in Article 83(1), if (according to Article 83(2)) this is 'essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures'. As regards gender equality, there is (inter alia) EU law on sex equality in employment and sex equality as regards goods and services. It seems obvious that violence against women could impact in practice upon their equal access to employment or goods and services. The FRA report mentions in particular the fear of crime that deters women from moving freely. Of course, violence against women shouldn't normally be examined in such utilitarian terms, but it is necessary to do in the particular context of proving the EU's competence to act. And this analysis would apply equally as regards EU legislation concerning racial hatred, which I discussed in a previous blog post.
Should the EU use its powers?
The FRA report makes many references to the Council of Europe's recent Convention on violence against women, and encourages Member States and the EU to ratify it. Of course, this would be desirable, since the Convention is a comprehensive recent instrument which is moreover open to non-EU Member States. But is it enough? Certainly the EU did not simply rely on the Council of Europe Conventions on trafficking in persons or the exploitation of children when it adopted its own legislation on the issue, or upon the UN Convention on the Elimination of Discrimination Against Women when it adopted its sex equality laws.
The fact is, while ratification of the Convention should be encouraged, most Member States have not yet ratified it. Moreover, EU law has an inherent advantage over international treaties in terms of its enforceability, given that the Commission can bring proceedings against Member States for non-application or incorrect application of the law, and individuals can rely on it before the national courts.
What specific issues could EU legislation address? Here, the FRA report points to some failings in national law which could be addressed by an EU measure, ensuring that the EU measure would add value compared to the existing legal position. In particular: some national laws have a restrictive definition of sexual violence; one Member State does not criminalise rape of married women; some Member States do not address repeat victimisation; some national laws do not address psychological violence, stalking or cyber-harassment; and current EU anti-discrimination law only concerns sexual harassment at the workplace, not in other contexts. This represents a significant catalogue of issues which EU law could usefully address.
The FRA's suggestion that the EU ratify the Council of Europe Convention presents an opportunity to bring the two issues (can the EU act, and should it act) together. According to EU external relations law, the EU can ratify treaties not just as regards its competence which it has already exercised (as regards crime victims' rights, for instance), but also in respect of competences which it has not exercised. Furthermore, a treaty which the EU has not yet ratified can be sent to the Court of Justice of the European Union, in order to examine its compatibility with EU law, including as regards EU competences. So the European Parliament, the Council, the Commission or a Member State could use this process to ask the Court to clarify the exact extent of the EU's powers to conclude the Convention as regards substantive criminal law.
[Update: in March 2016, the Commission proposed that the EU sign the Council of Europe Convention. See further discussion here.]
Barnard & Peers: chapter 20, chapter 25