On Friday 9 June, at the ‘Justice and Home Affairs’ Council in Luxembourg (see EUROPE 13185/14), the Council of the European Union adopted its position on the future Directive to combat violence against women.
Although the Swedish Presidency has managed to reach a political agreement (‘general approach’), it has not been without reservations. Indeed, while some Member States criticise the text for its lack of ambition, others feel that some of its provisions should only have been approved by a unanimous procedure.
Withdrawal of the rape provision
Criticism of the lack of political ambition centred on the withdrawal of the provisions on the criminalisation of rape. Sweden’s Minister of Justice, Gunnar Strömmer, took the initiative at the start of the discussion, assuring that this choice was essentially “related to the legal basis”.
However, for Belgium, Greece, Italy, Luxembourg and Ireland, the basis proposed by the European Commission, namely the European crime of “sexual exploitation of women and children” contained in Article 83 of the TFEU, was largely justified. “The same legal basis has already been used for the criminalisation of sexual abuse of children in the child sexual abuse Directive on [the subject]”, insisted Commissioner for Equality Helena Dalli.
In addition, while rape is already considered a criminal offence throughout the EU, one of the aims of the text was to introduce a common definition based on the lack of consent, pointed out Austria and Luxembourg.
Cyber-violence
It was also because of the legal basis chosen that the criminalisation of the various forms of cyber-violence, which were ultimately maintained, gave rise to further debate at the meeting of Ministers. The Czech Republic, Estonia, Finland, Poland and Hungary have argued that a broad interpretation of the concept of “computer-related crime” in Article 83 TFEU would give the EU the power to criminalise any offence that can be committed through a computer system (see EUROPE 13194/22).
In their view, the appropriate procedure would have been to extend the list of European crimes by working to include, for example, hate speech. However, this procedure has been blocked in the EU Council for over a year, as the required unanimity has not been achieved (see EUROPE 12902/24).
Behind the debates on the legal basis, there is also the question of unanimity, given that the Directive under discussion can be adopted by a single qualified majority. Poland criticised the Commission for “force back” of provisions that had already been rejected “through the backdoor [of] qualified majority”.
An “ideological” text
“This draft Directive deserves one thing: to be thrown out to a dustbin, because this is all about ideology”, continued the Polish Minister.
In addition to the reasons given above, Poland, like Bulgaria, is also critical of the references to “gender” in the legislation. In an attempt to reconcile positions, the Swedish text exchanges the term “sex” for “gender”, but removes the definition.
“These changes suggest that the notion of gender could be interpreted as referring to biological sex only”, Mrs Dalli regretted, pointing out that the Istanbul Convention defines gender as “the persisting stereotypes about the roles of women and men in society” and therefore as a concept that transcends the biological aspect alone.
Half-hearted approval
Several delegations gave their consent only “in the spirit of compromise”, and only Germany and France were more enthusiastic. At the same time, Hungary abstained and Poland threatened to do everything in its power to ensure that the Directive was not transposed in Poland once it had been adopted. It was therefore with mixed support that the Swedish Presidency adopted its negotiating mandate with the European Parliament.
The general approach: https://aeur.eu/f/7et (Original version in French by Hélène Seynaeve)