At the ‘Justice and Home Affairs’ (JHA) Council on Friday 9 June, the EU Justice Ministers will vote on the directive aimed at combating violence against women. Despite support for the political agreement (‘general approach’) drawn up by the Swedish Presidency of the Council of the EU, the legal basis and its interpretation continue to give rise to debate (see EUROPE 13185/14).
The text suggests criminalising a series of offences, such as rape or cyber-violence. To do this, it relies on Article 83 of the TFEU, which governs judicial cooperation in criminal matters and lists European crimes.
Cyber-violence and computer crimes
However, for the Czech Republic, Estonia and Hungary, considering various forms of cyber-violence as “computer-related crimes” under Article 83(1) of the TFEU raises questions.
In a written commentary, they point out that European legislation referring to computer crimes concerns “offences that can only be committed through the use of technology” (“cyber-dependant crime”). In contrast, the directive aimed at combating violence against women deals with offences that can be committed offline, but where technology “is used to increase the scale or reach of ‘traditional’ crimes” (“cyber-enabled crime”).
A broad interpretation which, they argue, would give the EU “unlimited competence” to criminalise a wide range of offences if they can be perpetrated via a computer system. The three countries maintain that an “agreement to expand the list of eurocrimes” would have been a better solution. However, this procedure requires unanimity in the EU Council and is therefore rarely successful (see EUROPE 13173/1, 13180/11).
Withdrawal of rape from the directive
It was also because of considerations relating to the EU’s competences that the Swedish compromise text finally withdrew rape from the directive aimed at combating violence against women. According to our information, some Member States felt that, in the absence of a solid legal basis, introducing European rules on the subject could lead to legal uncertainty.
But for Belgium, Greece, Italy and Luxembourg, the main problem is a “lack of political ambition”. In a written declaration, they call for a broad interpretation of the European crime of “sexual exploitation of women and children”. They also point out that, in the directive on the sexual abuse of children, this interpretation has made it possible “to establish minimum rules concerning an offence where the exploitative element is less present” by considering the use of violence as a form of sexual abuse.
To see the comments from Member States: https://aeur.eu/f/78b (Original version in French by Hélène Seynaeve)