EU Law Analysis: 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
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.
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
Photo credit: Council of Europe



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