EU Directive on Combating Violence Against Women, Explained

Differences have arisen between the European Parliament and the Council regarding the inclusion of an Article about rape in the proposed EU Directive on Combating Violence Against Women. 

Here’s why. 

The European Parliament’s lead negotiator for the EU’s first directive combating violence against women expressed disappointment and anger that the Council decided to omit provisions pertaining to consent and the crime of rape. The European Parliament’s position is to include an Article about rape in the new Directive. Directives are types of EU legislation that individual countries need to transpose into national law, if passed. 

The Directive has hit a political impasse. This is because of the difficulties raised by certain Member States on how to define the crime of rape and whether it is an EU competency to legislate this area. Ireland is one of those opposing Member States, even though it arguably has strong legal protections in the area of domestic violence, including rape. It is clear that this sensitive issue was always going to cause difficulties amongst EU countries where protections vary so largely. This Just the Facts delves into the EU Directive on Combating Violence Against Women and explores some of the issues at play.  

Background 

There is a clear lack of data regarding gender-based violence against women in the EU. However, the most comprehensive EU-level survey, published by the EU Agency for Fundamental Rights (FRA) in 2014, painted a stark picture of the extent to which it occurs. FRA’s research found that one in ten women in the EU have experienced some form of sexual violence since the age of 15, and one in twenty have been raped. In addition, over one in five women have experienced physical and/or sexual violence from a partner or ex-partner.  

On International Women’s Day, March 8, 2022, the European Commission proposed its very first Directive to combat violence against women in Europe. This Directive focuses on three crucial areas: prevention, protection and prosecution. It aims to:  

• Impose minimum standards in EU law in terms of criminalising certain forms of gender-based violence.  
• Improve access to justice, protection and support for victims. 
• Ensure coordination between relevant services and prevent these types of crimes. 

This legislation includes establishing a common definition of rape in Europe based on lack of consent. This would make rape an ‘EU Crime,’ and would harmonise criminal penalties between the 27 Member States. The proposed Directive would also criminalise female genital mutilation and cyber violence, which includes non-consensual sharing of intimate images, cyber stalking, cyber harassment and cyber incitement to violence or hatred. 

The Council and Parliament positions 

In the Council, the file was first considered by the Working Party on Judicial Cooperation in Criminal Matters (COPEN) in 2022. Following many subsequent COPEN meetings, the Justice and Home Affairs Council adopted the Council’s ‘general approach’ text on 9 June 2023. Importantly, the Council position opted to remove any provisions, as set out in the proposed Article 5, relating to an EU-wide definition of rape due to the lack of a sufficient legal basis within the EU Treaties.  

The European Parliament has consistently taken a strong stance on the issue of violence against women and has repeatedly asked the Commission to propose a comprehensive EU directive on the issue. The Committee on Women’s Rights and Gender Equality (FEMM), in collaboration with the Committee on Civil Liberties, Justice and Home Affairs (LIBE) have the responsibility of working on the Commission’s proposal. The two lead negotiators are Irish MEP, Frances Fitzgerald, for FEMM (rapporteur) and Swedish MEP, Evin Incir, for LIBE (shadow rapporteur). 

In July 2023, the European Parliament’s Plenary Session confirmed the decision to go into inter-institutional negotiations. In opposition to the Council, the Parliament retained the provision setting out rape as an ‘EU Crime.’ The Parliament also broadened the definition of non-consensual acts, emphasising that consent can be withdrawn at any given moment. 

Interinstitutional negotiations 

Now, almost two years after the Directive was initially proposed by the Commission, it has remained stuck in interinstitutional negotiations between the Parliament, the Council and the Commission. Three rounds of inter-institutional negotiations (trilogues) have already taken place in July, November and December 2023, but no agreement has emerged. The Parliament’s and Council’s positions on Article 5 regarding rape are still far away from one another.  

What are some of the national positions?  

France and Germany are among the countries which oppose an EU definition of rape, along with Poland, Hungary, Malta, the Czech Republic, Estonia, Bulgaria and Slovakia. Fifteen countries in total have backed the original Directive, including rape as an ‘EU Crime.’ However, when the Council votes on a proposal by the Commission, the proposal is only adopted if a qualified majority is reached. A qualified majority is reached if two conditions are simultaneously met: 

• 55% of Member States vote in favour – in practice this means 15 out of 27 countries voting in favour.  
• the proposal is supported by Member States representing at least 65% of the total EU population. 

Currently, the 15 countries backing the proposed legislation do not represent 65% of the total EU population which is why getting France or Germany on board has been imperative for the Parliament.  

Where is the disagreement and what is Ireland’s position?  

Ireland, as a Member State, could be considered a leader in legislating for the area of domestic violence and violence against women domestically. Currently, Ireland is undecided as to its position. It is included among those Member States who have questioned the legal basis of the proposed Directive and maintain that this area of criminal law should only be dealt with by the Member States themselves. The Irish Department of Justice stated in January 2024 that: 

“Ireland will continue to work constructively with Member States to find a path forward and reach an agreement that is legally sound and not open to challenge.” 

At the moment, the Criminal Law (Sexual Offences and Human Trafficking) Bill 2023 is progressing through the Irish government. The Bill aims to strengthen existing laws on sexual offences, and particularly in the area of consent. 

The Commission, as well as MEPs and women’s rights organisations, have defended the legal basis pointing to provisions in the Treaties (Article 82(2) and Article 83(1) TFEU) regarding sexual exploitation which already address areas such as trafficking and child sexual abuse.  

Other Member States such as France are at odds with the consent-based definition of rape proposed by the European Parliament and the Commission. In France, rape is defined as a sexual act committed against a person under threat, coercion, surprise or violence. A growing number of EU Member States, including Belgium, Spain and Ireland (under the 2017 Sexual Offences Act) have wording on consent in their criminal laws regarding rape. However, an European Parliamentary Research Service report from January 2023 indicates that the majority of EU Member States still do not.  

What happens if consensus cannot be reached? 

Some MEPs have maintained that there are other areas which this Directive will still legislate for such as female genital mutilation and cyber stalking. Many Member States have no legislation regarding these issues. In Ireland, the Criminal Justice (Female Genital Mutilation) Act 2012 prohibits female genital mutilation. There is no provision regarding specifically ‘cyber stalking’ in Irish legislation. However, in 2020 the offence of harassment in Section 10 of the Non-Fatal Offences Against Person Act 1997 was extended to include all forms of communication, including through online or digital communications to or about a person. 

Some MEPs have argued that, even without the definition of the crime of rape, this EU Directive will raise standards generally in the EU in relation to how Member States combat domestic violence.  

However, it is clear that other MEPs will be reluctant to pass the Directive at all in the European Parliament if the provision regarding rape is not included. Alternatively, MEPs could leave this legislation open for the next European Parliament, elected in June 2023, so that they may go back to the drawing board and continue to work on the legal text in the next mandate. 

What happens next?  

The next round of negotiations is expected to take place in late February 2024. It is now up to the Belgian presidency, which began in January and will end in July 2024, to find a legal definition that works to bring currently opposed Member States on board and to a consensus. There is significant pressure on the Belgian presidency as the responsibility of the Council presidency will fall to Hungary in July 2024 and then to Poland in January 2025, as per the Council presidency rotation. For civil society, MEPs and NGOs this is a make-or-break moment as they are sceptical that the Directive will be prioritised under the subsequent Hungarian presidency in the latter half of this year. 

It should be noted, even if the Directive is passed, it will still need to be transposed into national law which would undoubtedly present further obstacles at a national level. However, it is clear that the interinstitutional negotiations have brought the important debate about the issue of consent laws to the fore.  

Published 2 February 2024. Disclaimer: some details mentioned in this article may have since changed.

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