Explanatory Memorandum to COM(2022)105 - Combating violence against women and domestic violence

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This page contains a limited version of this dossier in the EU Monitor.

dossier COM(2022)105 - Combating violence against women and domestic violence.
source COM(2022)105 EN
date 08-03-2022


1. CONTEXT OF THE PROPOSAL

• Reasons for the proposal

The current proposal aims to effectively combat violence against women and domestic violence throughout the EU. It does so by proposing measures in the following areas: the criminalisation of and sanctions for relevant offences; protection of victims and access to justice; victim support; prevention; coordination and cooperation.

Violence against women is gender-based violence directed against a woman because she is a woman or that affects women disproportionately. It includes all acts of gender-based violence that result in or are likely to result in physical, sexual, psychological or economic harm or suffering, including threats of such acts. It encompasses offences such as sexual violence, including rape, female genital mutilation, forced marriage, forced abortions or sterilisation, human trafficking for the purposes of sexual exploitation, stalking, sexual harassment, femicide, hate speech and crimes on the basis of sex and various forms of online violence (‘cyber violence’), including non-consensual sharing or manipulation of intimate material, cyber stalking and cyber harassment. Such violence is rooted in gender inequality being a manifestation of structural discrimination against women. Domestic violence is a form of violence against women as it disproportionately affects women. It occurs in the family or domestic unit, irrespective of biological or legal family ties, either between intimate partners or between other family members, including between parents and children. Women are disproportionately represented as victims of both forms of violence due to the underlying patterns of coercion, power and/or control. However, anyone can be a potential victim of such violence, regardless of their sex or gender. In the case of domestic violence, in particular, it can affect any person, including men, younger or older people, children and LGBTIQ 1 persons.

Violence against women and domestic violence are matters of criminal law, violations of human rights and forms of discrimination. Combating them is part of the European Commission’s action to protect the core EU values and to ensure that the EU Charter on Fundamental Rights is upheld 2 .

Violence against women and domestic violence are pervasive throughout the EU and are estimated to affect 1 in 3 women in the EU. Looking at the more specific types of violence, in 2014, 1 in 10 women reported that they had been victim of sexual violence and 1 in 20 had been raped. More than 1 in 5 women have suffered domestic violence 3 . Cyber violence is just as prevalent: in 2020, it was estimated that 1 in 2 young women experienced gender-based cyber violence 4 . Women in general, more frequently experience cyber violence based on their sex or gender, in particular sexual forms of cyber violence. Women are systematically targeted online by violent right wing extremist groups and terrorist groups intending to spread hatred against them. The so-called ‘incel’ (involuntary celibate) movement, for instance, incites to violence against women online and promotes such violence as heroic acts. Cyber violence particularly impacts women active in public life, such as politicians, journalists and human rights defenders. This can have the effect of silencing women, hindering their societal participation and undermining the principle of democracy as enshrined in the Treaty on European Union.

Women also experience violence at work: about a third of women in the EU who have faced sexual harassment experienced it at work.

President von der Leyen’s political guidelines highlighted the need to prevent and combat violence against women, protect victims and punish offenders as a key priority for the Commission. The Gender Equality Strategy 2020-2025 5 announced EU measures to prevent these forms of violence, protecting victims, prosecuting offenders, and implementing related comprehensive and coordinated policies. The European Pillar of Social Rights Action Plan reiterates the commitment to combat gender-based violence and propose legislation to this effect 6 .

The European Parliament has repeatedly called on the Commission to propose legislation on violence against women and domestic violence, and on gender-based cyber violence. The European Parliament most recently has adopted two own-initiative legislative reports based on Article 225 Treaty on the Functioning of the European Union (TFEU), requesting the Commission 7 to submit proposals on combating gender-based violence and cyberviolence 8 and on adding gender-based violence as a new area of crime listed in Article 83 i of the TFEU 9 , respectively.

• Objectives of the proposal

This proposal aims to prevent and combat violence against women and domestic violence to ensure a high level of security and the full enjoyment of fundamental rights within the Union, including the right to equal treatment and non-discrimination between women and men. The proposal thus contributes to the establishment of an area of freedom security and justice (Title V TFEU). To achieve these objectives, the proposal:

·makes the current EU legal instruments relevant to combating violence against women and domestic violence more effective;

·creates upwards convergence and fills gaps in protection, access to justice, support, prevention and coordination and cooperation; and

·aligns EU law with established international standards.

The proposal criminalises certain forms of violence that disproportionately affect women and strengthens victims’ rights, using the existing legal bases as set out in Articles 82(2) and 83 i TFEU. It thereby ensures such offences are effectively prosecuted and contributes to the elimination of violence against women and domestic violence and to better support and protection for victims. By increasing trust in the judicial schemes of other Member States, it will aid mutual recognition of judgments and decisions in criminal matters and improve judicial cooperation in criminal matters.

An important point of reference for the proposal is the 2014 Council of Europe Convention on preventing and combating violence against women and domestic violence (‘Istanbul Convention’) 10 . The Istanbul Convention is the most extensive international framework to comprehensively address violence against women and domestic violence.

This proposal aims to achieve the objectives of the Convention within the EU’s remit by complementing the existing EU acquis and Member States’ national legislation in the areas covered by the Convention. The need for action appears both in Member States that have ratified the Istanbul Convention and in those that have not 11 . The preparatory work has identified a need for action in the areas of access to justice, including minimum rules on definitions and sanctions relating to certain criminal offences, the rights and protection of victims in connection with criminal proceedings, specialised victim support, prevention of such violence and strengthening closer coordination and cooperation at EU and national level. Relevant EU standards are fragmented across several legal instruments and have not led to effective monitoring and enforcement. While action at national level has been mainly triggered by the Istanbul Convention, the monitoring of the Convention’s implementation 12 shows that gaps persist. Given the way in which violence against women and domestic violence have evolved in the past decades, these types of crimes are unlikely to significantly decrease without additional EU action.

In addition, this proposal takes into account recent phenomena such as cyber violence against women, which is not specifically addressed by the Istanbul Convention. Cyber violence has been growing in the wake of the use of the internet and IT tools. It is often an extension of violence experienced by victims offline. Despite cyber violence’s wide prevalence, regulation has been highly fragmented to date, and significant legal gaps have been identified at both EU and Member State level.

Currently, no specific piece of EU legislation comprehensively addresses violence against women and domestic violence. This Directive will be the first act specifically addressing this type of violence. The measures are based on the recommendations of the Group of Experts on Action against Violence against Women and Domestic Violence (‘GREVIO’) 13 , the independent expert body responsible for monitoring the Istanbul Convention’s implementation. They also take into account recommendations by international experts and bodies in the field, including under the auspices of the United Nations, and their reflections on internationally accepted good practices in combating violence against women and domestic violence. The targeted measures on criminal offence and victims’ rights lay down minimum rules that enable the Member States to set higher standards and leave flexibility for the Member states to take into account country-specific situations.

Contents

1.

In particular, the following measures are proposed:


–Criminalising certain forms of violence that disproportionately affect women and that are not sufficiently addressed at national level and fall within the EU’s remit, based on existing legal bases. This concerns the criminalisation of rape based on lack of consent (in some Member States, the use of force or threats is required), female genital mutilation, and certain forms of cyber violence.

–Strengthening victims’ access to justice and rights to appropriate protection responding directly to the specific needs of victims of violence against women and domestic violence. Such measures include:

–ensuring that national authorities are appropriately equipped to address violence against women and domestic violence;

–ensuring that national authorities treat victims in a gender-sensitive manner;

–providing for an individual needs assessment for protection and support tailored to the specific needs of victims of violence against women or domestic violence;

–providing for specific safeguards for child victims of violence against women or domestic violence;

–ensuring protection through emergency barring and protection orders;

–ensuring that victims can effectively claim compensation from the offender;

–ensuring the removal of online content in relation to offences of cyber violence, and a possibility of judicial redress for the affected users; and

–ensuring that government bodies exist to assist, advise and to represent victims in court proceedings in matters of violence against women or domestic violence.

–Providing victim support tailored to the specific needs of victims of violence against women or domestic violence. This includes specific support in cases of sexual violence and female genital mutilation, access to national helplines, increased accessibility of shelters and comprehensive support for victims of sexual harassment at work. It also entails targeted support for victims with specific needs and groups at risk, including women fleeing armed conflict.

–Preventing violence against women and domestic violence, including by raising awareness, training professionals who are likely to come in contact with victims, and working with offenders.

–Strengthening coordination and cooperation at national and EU-level by ensuring a multi-agency approach and enhanced data collection on violence against women and domestic violence.

·Consistency with existing policy provisions in the policy area

No specific EU legal instrument addresses violence against women and domestic violence particularly. However, there are several EU legal instruments, which are relevant for victims of violence against women and domestic violence. They either establish general rules applicable also to this category of victims, or lay down specific rules on certain forms of such violence. Below are the most relevant ones:

–Directive 2012/29/EU (the ‘Victims’ Rights Directive’) 14 :

The Victims’ Rights Directive applies to all victims of crime. It lays down minimum standards on the rights, protection and support of victims of crime in the EU. It also makes reference to victims of gender‑based violence, victims of sexual violence and victims of violence in a close relationship. However, the Directive does not prescribe specific rules tailored to victims of these types of crime. The current proposal complements the rules of the Victims’ Rights Directive to cater for the specific needs of victims of violence against women and domestic violence. In addition to the more specific measures, covered by the current proposal, victims will continue to benefit from the general provisions of the Victims’ Rights Directive.

–Directive 2011/99/EU (the ‘European Protection Order Directive’) 15 and Regulation (EU) No 606/2013 (the ‘Mutual Recognition Regulation’) 16 – EU rules on European protection orders:

These two instruments enable cross-border recognition of protection orders issued under national law. The current initiative requires that Member States provide for emergency barring and protection orders under their national legislation, thus providing the basis for the European Protection Order Directive and the Mutual Recognition Regulation.

–Directive 2011/93/EU (‘Child Sexual Abuse Directive’) 17 and Directive 2011/36/EU (the ‘Anti-Trafficking Directive’) 18 :

The Child Sexual Abuse Directive and the Anti-Trafficking Directive provide for measures of prevention, protection, support and access to justice to specific categories of victims, namely of sexual abuse and sexual exploitation of children and child pornography, as well as trafficking in human beings. These more specific Directives’ standards on criminalisation of such violence and corresponding sanctions will continue to apply. The Anti-Trafficking Directive combats trafficking in human beings for the purpose of sexual exploitation. It is currently under review to assess the possible need for future amendments, taking into account the EU-level criminalisations and corresponding penalties introduced by this Directive.

The Child Sexual Abuse Directive will continue to apply to sexual abuse of children. Article 24 of the European Charter of Fundamental Rights sets out that children shall have the right to such protection and care as is necessary for their well-being, and that in all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration. It is evident that the protection of a specific framework to criminalise rape based on the notion of consent should also be extended to children inasmuch as they are able to consent validly. This is determined by the age of sexual consent, which is regulated at Member State level and differs across Member States. Given that the Child Sexual Abuse Directive already provides a dedicated framework for all children, the present proposal introduces the necessary changes to ensure coherence by way of a targeted modification of that directive. This modification introduces penetration as a further aggravating circumstance, and the notion of lack of consent for children above the age of sexual consent. In parallel, the Child Sexual Abuse Directive is also undergoing evaluation, which may result in a proposal for a recast in 2023. This will provide an opportunity to ensure the overall coherence of the dedicated framework to protect children against all forms of sexual abuse and sexual exploitation with the current proposal.

The provisions under the current proposal relating to the rights, protection and support of victims, and prevention of violence against women or domestic violence (Chapters 3-5) will also apply to victims falling under the Child Sexual Abuse Directive and the Anti-Trafficking Directive, where such acts are also classified as amounting to violence against women or domestic violence.

–Council Directive 2004/80/EC (the ‘Compensation Directive’) 19 :

The Compensation Directive enables persons who have fallen victim to violent intentional crime to apply for state compensation. The current initiative further strengthens victims’ rights to access to compensation by reinforcing the right to compensation from the offender, including by setting up minimum rules on providing such compensation.

–The ‘Gender Equality Directives’ 20 stipulate that sex-based and sexual harassment at work and in access to goods and services are contrary to the principle of equal treatment between men and women. The Directives require Member States to prohibit such conduct, ensure remedies (including compensation), and provide for effective, proportionate and dissuasive penalties. The current directive complements these instruments by setting minimum standards on support and access to justice of victims of such harassment.

–Proposal for a Regulation on a Single Market for Digital Services (the ‘Digital Services Act’ or ‘DSA’) 21 : With the DSA proposal, the Commission aims to protect fundamental rights online and address risks in the online space, including the risk to women’s safety online. The DSA proposal sets out a horizontal framework for regulatory oversight, accountability and transparency of online service providers. The current proposal makes the DSA more effective in two crucial aspects:

–The DSA contains due-diligence obligations for certain intermediary service providers to address illegal online content. It does not provide an EU-level definition of what constitutes such illegal content. The current proposal complements the DSA proposal by including minimum rules for offences of cyber violence.

–The current proposal ensures that national judicial authorities have the power to issue orders to providers of intermediary services to act against certain types of illegal content amounting to cyber violence as covered by this proposal.

–Proposal to accede to the Istanbul Convention

In 2016, the Commission proposed the EU’s accession to the Istanbul Convention 22 , after which the Commission and the Presidency of the Council signed the Convention on behalf of the EU in 2017. To date, the EU accession process has not been finalised as the Council has not yet adopted the final conclusion decision. Finalisation of the EU’s accession to the Convention remains a priority for the Commission. The measures of the current proposal seek to attain the objectives of the Convention within the areas of EU competence, thus strengthening the protection granted by the Convention. Once the EU accedes to the Convention, the current initiative will constitute an implementation of the Convention within such areas.

The Commission has assessed all EU legal instruments relevant to combating violence against women and domestic violence and relevant to victims’ rights against the objectives of this proposal. The Commission has taken into account the outcome of this assessment when preparing this proposal (see Annex 8 to the impact assessment report). Therefore, this proposal is consistent with the relevant provisions of existing EU legislation.

• Consistency with other EU policies

This proposal is in line with the Treaty goals of ensuring a high level of security in the EU’s area of freedom, security and justice as laid down in Title V TFEU, and the enjoyment of fundamental rights in the EU. It is also consistent with numerous EU policies that have highlighted the need to tackle gender-based violence. This goal figures prominently in the EU Comprehensive Strategy on the Rights of the Child 23 , the EU Strategy on victims’ rights (2020-2025) 24 , the LGBTIQ Equality Strategy 2020-2025 25 , the Strategy for the Rights of Persons with Disabilities 2021-2030 26 , and the European Pillar of Social Rights Action Plan 27 . The Gender Action Plan III 28 makes the fight against gender-based violence one of the priorities of the EU’s external action.

The Commission adopted a communication ‘A more inclusive and protective Europe: extending the list of EU crimes to hate speech and hate crime’ 29 to elicit a Council decision to extend the list of EU crimes in Article 83 i TFEU to include hate speech and hate crime (the ‘EU crime initiative’). Hate speech and hate crime undermine the very foundations of a democratic and pluralistic society and the common values enshrined in Article 2 of the TEU. The particular gravity of these conducts, given their impacts on the fundamental rights and values, and their cross-border nature call for common action at Union level. To address in particular the stark increase of public incitement to violence and hatred online based on sex or gender, in particular misogynous incitement to hatred or violence, this Directive sets minimum rules for the definition and the penalties of the offence of this type of cyber violence. Following the adoption of the Council Decision adding hate speech and hate crime as a new legal basis to Article 83 i TFEU, the Commission will be able to propose additional legislation to harmonise hate speech and hate crime by adding protected grounds.

·Conformity of the proposal with the climate consistency principle

As established in the impact assessment, no environmental impacts are expected.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

• Legal basis

This proposal is based on the combined legal bases of Article 82(2) and Article 83 i TFEU.

Article 83 i TFEU provides the legal basis for minimum rules on the definition of criminal offences and sanctions in relation to the sexual exploitation of women and children and computer crimes.

The term ‘sexual exploitation’ in Article 83 i TFEU can be understood as any actual or attempted abuse of a position of vulnerability, differential power or trust, including, but not limited to, profiting monetarily, socially or politically from a sexual act with another person. The exploitative element can refer to the achievement of power or domination over another person for the purpose of sexual gratification, financial gain and/or advancement. The criminal offences of rape and female genital mutilation presuppose these elements. Female genital mutilation is an exploitative practice performed for the purpose of preserving and asserting domination over women and girls and to exert social control over girls and women’s sexuality. It is sometimes performed in the context of child or forced marriage or domestic violence. This reflects the typical power-imbalance between women and men in such cases, which is also prevalent in the case of rape.

The term ‘computer crime’ in Article 83 i TFEU covers offences against or intrinsically linked to the use of information and communication technologies. Using such technologies as a means of attack can amplify the severity of the offence in terms of quantity, quality, intensity, target selection and duration, to an extent that cannot be achieved by other means. The minimum rules on crimes amounting to cyber violence against women under this proposal address such offences, which are intrinsically linked to the online environment and the use of such technologies.

Article 82(2) TFEU provides the legal basis for laying down minimum rules on the rights of victims of crime to the extent necessary to facilitate mutual recognition of judgments and judicial decisions, and police and judicial cooperation in criminal matters with a cross-border dimension.

• Subsidiarity (for non-exclusive competence)

Violence against women and domestic violence are widespread in the EU and the COVID-19 pandemic has exacerbated the situation. This violence has an impact on millions of people in the EU, leads to violations of fundamental rights and causes considerable costs. This creates a special need to combat violence against women and domestic violence on a common basis at EU level.

Cyber violence against women, including in the context of domestic violence, has emerged as a new form of such violence, spreading and amplifying beyond individual Member States via the internet. Given cyber violence’s inherent cross-border dimension, action by Member States acting individually will be insufficient to solve this problem.

All Member States address violence against women and domestic violence in legislation and policies, but to different degrees. The multitude of approaches creates legal uncertainty about rights of such victims across the EU. There is even more fragmentation at regional and local levels.

The EU already supports the Member States in addressing this kind of violence, using funding, policy measures and relevant horizontal legal instruments. However, targeted legislative action at EU level is necessary to make the existing measures more effective and to further strengthen the Union’s instruments to combat violence against women and domestic violence by laying down minimum rules. For the Member States that are parties to the Istanbul Convention, the EU measures would support the Convention’s implementation. The current proposal would enable further, coordinated measures across the EU and enable EU-level enforcement. The current proposal aims to strike the balance between ensuring that the obligations it lays down are effective, and leaving flexibility for the Member States to take into account national specificities and needs when implementing its rules.

To ensure equal treatment of victims throughout the EU, the initiative will ensure upward convergence by laying down minimum rules on the rights of victims of violence against women and domestic violence. These rules aim to support and protect victims of such violence before, during or after criminal proceedings, and introduce minimum rules on definitions of and penalties on conduct where gaps in criminalisation exist. The proposal lays down the minimum level of the maximum penalties applicable to the offences listed in the proposal. The proposal therefore leaves it to Member States to set minimum penalties.

• Proportionality

This proposal aims at combating violence against women and domestic violence comprehensively. This means that action is taken from various angles, aiming to prevent such violence; protecting and supporting victims, and ensuring access to justice, if violence occurs anyway; and ensuring coordination among all relevant actors.

Numerous studies (e.g. an extensive study by the European network of legal experts in gender equality and non-discrimination 30 and an in-depth study by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs 31 ) show that only a comprehensive approach, targeting all components of the problem in a single EU act imposing minimum rules on the Member States can effectively contribute to the elimination of violence against women and domestic violence and to ensuring more effective, targeted support and protection responding to the specific needs of victims of this type of violence. Action scattered throughout a patchwork of various pieces of EU legislation, each targeting a goal of its own, would not achieve such results.

2.

The Commission considered several policy options to achieve the objectives of this proposal:


·the first option mainly consists of measures implementing the Istanbul Convention standards in EU law in areas within the EU’s remit; and

·a second policy option, which builds on the measures outlined in the first option and introduces more comprehensive and detailed measures to ensure higher minimum standards, facilitates their enforceability and addresses additional gaps, including on cyber violence, taking into account recommendations made by the Group of Experts on Action against Violence against Women and Domestic Violence in the context of its monitoring of the Convention. This option was further divided in two sub-options (2A and 2B), with sub-option 2B consisting of further-reaching obligations on sexual harassment, access to justice, victim protection and data collection.

This proposal is based on policy option 2A since it provides for the most effective set of measures, while respecting the principle of proportionality. This choice is based on a prior in-depth analysis of the impact of the various policy options on fundamental rights, and social and economic impact. It is also based on a careful analysis of the effectiveness, efficiency and consistency of the policy options. Overall, option 2A proved to perform better in contributing to these areas and provides a higher net benefit. It is expected to provide extensive protection of fundamental rights and improve the social situation of victims and society at large thanks to its comprehensive set of obligations.

In line with the principle of proportionality and necessity of EU action, this proposal will establish minimum rules enhancing the actions taken by Member States in the areas of prevention, victim protection and support, access to justice and coordination. The proposal will enhance legal certainty, effective enforcement and protection of victims. For the first time, it draws up a targeted and coordinated EU approach to tackle violence against women and domestic violence. This approach is based on a set of minimum rules that add value to existing national, EU and international rules, while leaving Member States flexibility for implementation.

• Choice of the instrument

Under the legal basis chosen for the proposal, the appropriate instrument is a directive adopted in accordance with the ordinary legislative procedure. This proposal aims to deliver simplification benefiting the professionals and victims concerned, by compiling relevant EU rules in a single instrument in a transparent manner.

A specific directive on violence against women and domestic violence is chosen over an amendment of existing instruments. The rules of this Directive will apply in addition to the rules laid down in the Victims’ Rights Directive, the EU’s general legal framework on victims’ rights. Some provisions of this directive lay down specific measures complementing the general rules, in a similar manner as this is done for victims of other specific types of crime such as victims of trafficking in human beings, of child sexual abuse and of terrorism.

3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS

• Ex-post evaluations/fitness checks of existing legislation

When preparing the impact assessment report, the Commission assessed the effects of the relevant provisions of existing EU law on preventing and combating violence against women and domestic violence. This was accompanied by a mapping of the Member States’ policy and legislative measures.

The preparatory work also drew on the recent monitoring reports of the Victims’ Rights Directive 32 and European Protection Order Directive 33 . The Commission conducted this work in coordination with the upcoming general evaluations of the Victims’ Rights Directive, the Child Sexual Abuse Directive and the Anti-Trafficking Directive.

The analysis shows that the relevant EU legislation has provided rights for victims of violence against women and domestic violence very selectively. This has happened under legislation that does not primarily cover these types of violence (see above on the interplay with existing EU-legislation for an overview of the current situation). EU measures do not explicitly address victims of violence against women and domestic violence. The relevant obligations are not specific enough for victims of violence against women and domestic violence, or leave wide discretion to the Member States. Furthermore, the relevant EU legislation is over 10 years old on average. During this time, the needs of victims have not been met sufficiently and should be addressed accordingly.

• Stakeholder consultations

The Commission consulted extensively with stakeholders to inform the preparations of this legislative initiative. In doing so, the Commission aimed to gather up-to-date information and expertise, and to develop effective measures to counter violence against women and domestic violence, as indicated in the stakeholder strategy underpinning the initiative. The Commission has also taken into account relevant results from previous consultations. In 2016, the Commission conducted a Eurobarometer survey on gender-based violence with a sample of over 27 000 respondents from all EU Member States 34 . This has helped design and test the policy options.

Many stakeholders have called for increased EU legislative and non-legislative action on violence against women and domestic violence. Details on the individual consultations are provided in the following section.

An open public consultation: “protecting victims and punishing offenders” was held on the Commission’s consultations website from 8 February until 10 May 2021. Questions to the public addressed various aspects of preventing and combating violence against women and domestic violence. In particular, the questions concerned the relevant Member State measures, the need for further regulation, and preferred policy options. The main results were:

–The survey showed that a problem was that the public is not sufficiently aware of this kind of violence or sees it as a private matter. In addition, the survey showed that there are not enough services and activities to empower victims and encourage them to speak up. On possible further prevention measures, most found it important to tackle harmful gender stereotypes.

–60% of the respondents believed that it is necessary to improve the current structures for providing information to victims of violence against women and domestic violence about their rights, the services they can turn to, and the follow-up given to their complaints. On the timeliness of this information and its accessibility, respondents predominantly found that information was not provided quickly enough (43%), was difficult to find (42%), and was inconsistent and spread over different sources (42%).

–73% of the respondents believed that further measures to improve access to justice in matters of violence against women and domestic violence are needed at both national and EU level.

–In response to whether support services systemically account for the needs of victims of violence against women and domestic violence, about half (48%) did not believe they did. Responses on whether victims receive information on support services in a timely manner and in a language they understand showed diverging views, but with a higher proportion of people not knowing (41%).

–On specific forms of violence against women, most respondents believed that the primary gaps in protection against sex-based and sexual harassment resulted from the perception that such harassment was not considered a real problem by the general public (66%), that sanctions were insufficient (66%), and that provisions were ineffectively enforced (62%).

The Commission conducted comprehensive targeted consultations jointly for the impact assessment and the gap analysis of the existing legislative framework.

The Commission consulted the Member States in writing and at a workshop. The Member States expressed their openness on EU action and found the envisaged measures relevant. Targeted consultations of non-governmental and international organisations showed large support for the most ambitious measures. In particular, non-governmental organisations stressed the need to enhance prevention and protection measures by setting minimum rules at the EU level, improve data collection and accessibility for specialised services and provide targeted training programmes for professionals across sectors. International organisations highlighted the need for additional prevention measures such as early intervention, prevention programmes and trainings for relevant professionals.

On protection and support services, the international organisations identified a lack of a gendered understanding of violence, which can lead to secondary and repeat victimisation, intimidation and retaliation. They identified one-stop-shop approaches to seek assistance as best practice. On access to justice, they highlighted shortcomings on access to compensation from the state or the offender in particular on too short timeframes to claim compensation and limitations to claims for moral damages (for certain types of crimes).

In the targeted workshop held with social partners, trade unions and employers supported the objective of combating sexual harassment at work and welcomed further measures. Employers were, however, wary of obligations that would be imposed on them. In particular, social partners stressed the relevance of risk assessments in preventing and combating violence against women. Trade unions and employers insisted on the importance of the role of social partners in this field.

• Collection and use of expertise

To facilitate the preparatory work, the Commission contracted a supporting study by an external consultancy firm. Furthermore, it commissioned the European network of legal experts in gender equality and non-discrimination to carry out a comparative analysis of the criminal law provisions that apply to gender-based violence against women, including domestic violence and cyber violence, at national level in Europe. Additionally, the European Institute for Gender Equality (EIGE) updated its 2014 study on the cost of violence against women. These materials were complemented by substantial information drawn from other existing sources, as indicated in Annex 1 of the impact assessment report.

• Impact assessment

In accordance with better regulation requirements, a Commission inter-service steering group chaired by the Secretariat-General was set up in September 2020 to support the preparation of this initiative. This group met four times between September 2020 and October 2021, and participated in several written consultations.

The draft impact assessment considered a range of non-legislative and legislative measures to attain the objectives of the initiative. It assessed the effectiveness, efficiency and consistency of each selected option and concluded that the combination of measures in the preferred option was the most proportionate and consistent in light of the general and specific objectives of this initiative.

On the expected impact of the preferred option, the quantitative analysis showed positive economic impacts. The reduced prevalence of violence against women and domestic violence, in particular, could have economic benefits of around EUR 53.1 billion, potentially reaching around EUR 82.7 billion in the long term. The greatest potential for economic benefits is due to the reduction of the cost of physical and emotional harm to victims (an estimated reduction ranging from EUR 32.2 billion to EUR 64.5 billion). Social impacts would affect various stakeholders, namely victims, witnesses, offenders, companies, national authorities and the wider society. The preferred option would improve victims’ health, safety and quality of life (especially due to the measures on protection and support). It would also increase victims and witnesses’ awareness of and access to information on protection and support services. Measures on intervention programmes for offenders are expected to have a positive impact on offenders’ attitudes and behaviour. For employers, awareness and better understanding of and support for workers who are victims of sex-based harassment at work would enable the development of a safe work environment. This would also have a positive impact on productivity. National authorities would benefit from measures addressing legal uncertainties and data collection, allowing a better design of national policies to prevent and combat violence against women and domestic violence. Increased recognition of harmful gender stereotypes and norms among the general public would have a positive impact on society as a whole.

The draft impact assessment report was submitted to the Commission’s Regulatory Scrutiny Board on 15 September 2021 and discussed on 13 October 2021. Following a negative opinion by the Board, a revised version of the report was submitted on 1 December 2021. While noting the efforts made to improve the impact assessment report in response to its initial comments, the Board nevertheless on 12 January 2022 maintained its negative opinion.

The Board considered that the impact assessment report i did not sufficiently present the impact of several actions at EU and Member State level in the baseline scenario; (2) was not sufficiently clear on the overall objectives and did not sufficiently justify the need for a comprehensive approach; (3) did not sufficiently clearly present the concrete envisaged measures as well as the combinations of specific measures in the different options; i did not fully incorporate the revised set of options in the revised analysis of costs and benefits and remained unclear in the comparison of options, including in terms of criteria and scoring methodology used; and (5) did not sufficiently assess the proportionality of the preferred option, including the chosen lex specialis approach.

The current proposal is based on a further assessment of some of the issues raised. The measures taken to address the identified shortcomings are explained in the Commission staff working document Follow-up to the second opinion of the Regulatory Scrutiny Board and additional information (SWD(2022) 61, hereinafter “the Staff Working Document). In particular, the Staff Working Document explains how the baseline takes into account what has been achieved in this policy area at Member State level so far. In doing so, it responds also to the Board’s recommendation to present a more comprehensive analysis of the gaps in Member States’ implementation of the Istanbul Convention and in the lack of response to the evolution stemming – among others - from developments in the digital sphere.

To address the comments regarding the lack of clear objectives, the Staff Working Document clarifies that the objective of the proposal is to prevent and combat violence against women and domestic violence as criminal acts. The text of the proposed directive further outlines its main objectives, explaining that these objectives shall be achieved by criminalising certain forms of violence against women (including rape, female genital mutilation and offences concerning various forms of cyber violence) and by strengthening protection, access to justice and support of victims of violence, as well as violence prevention and coordination.

With regard to the choice of the policy option, the Staff Working Document provides evidence, based on the evaluation of relevant EU acts and the mapping and gap analysis of Member State legislation, that further explains why a comprehensive approach – a specific directive on violence against women and domestic violence – was chosen rather than an amendment of existing horizontal instruments.

The working methods under the Better Regulation rules of the European Commission empower the Vice President for Inter-Institutional Relations and Foresight to approve the continuation of an initiative that has been subject to a second negative opinion by the Regulatory Scrutiny Board. It is important to flag also that the opinions of the Regulatory Scrutiny Board are an assessment of the quality of the impact assessment and not an assessment of the related legislative proposal.

The Commission, also in the light of the agreement by the Vice-President for Inter-Institutional Relations and Foresight, has considered it opportune to proceed with the initiative for the following reasons:

the political importance of this initiative for the Commission as highlighted in the political guidelines;

the urgency of action in order to make progress on preventing and combating violence against women and domestic violence as well as gender-based cyber violence, as also called for by the European Parliament;

the additional clarifications and evidence provided satisfactorily addressed the shortcomings identified by the Regulatory Scrutiny Board and were considered in the adapted legal proposal.

The current proposal is thus based on a further assessment of some of the issues raised by the Board.

• Fundamental rights

3.

The proposed Directive will strengthen the protection of a number of fundamental rights, in particular:


–the right to life (Article 2 of the Charter of Fundamental Rights of the European Union – ‘the Charter’), the right to integrity (Article 3 of the Charter), the prohibition of inhuman or degrading treatment (Article 4 of the Charter), and the right to private and family life (Article 7 of the Charter), the right to personal data protection (Article 8 of the Charter), for example because it provides measures to protect victims, their private life and personal data and prevent violence by introducing criminalisations, ensuring protection of persons at risk (based on a risk assessment and following support measures) and training relevant professionals to recognise this kind of violence and respond appropriately;

–the rights of the child (Article 24 of the Charter), for example by recognising child witnesses as direct victims of violence against women and domestic violence and providing for specific measures to protect and support children, and that cases be handled in the best interests of the child;

–the victim’s right to an effective remedy and a fair trial (Article 47 of the Charter), for example by ensuring more effective investigation and prosecution of violence against women and domestic violence (e.g. own-motion prosecution of certain offences and as a matter of public interest, enabling victims to report cases online and introducing guidelines for law enforcement, and judicial authorities) and ensuring the victim’s right to claim for full compensation from the offender and to obtain a decision in one single procedure.

–non-discrimination and equality between women and men (Articles 21 and 23 of the Charter), for example by treating violence against women and domestic violence as a severe form of prohibited discrimination between women and men, and mitigating the risk of this kind of violence for persons in vulnerable situations and groups at a heightened risk; by requiring targeted awareness-raising and information provision activities to reach out to groups at risk and to facilitate their access to support services.

–the rights to social assistance and healthcare (Article 34 and 35 of the Charter), for example by providing for specialist support services, notably to victims of sexual violence (e.g. immediate medical support, the collection of forensic medical evidence in cases of rape, psychological counselling and trauma care).

The proposed Directive duly takes into account the presumption of innocence and right of defence (Article 48 of the Charter) of suspects, and the principles of legality and proportionality of criminal offences and penalties (Article 49 of the Charter). On the right to freedom of expression (Article 11 of the Charter), the provisions on the removal or blocking of illegal content are limited to what is strictly necessary and proportionate to attain the objective of the Directive.

4. BUDGETARY IMPLICATIONS

4.

The proposed Directive is expected to give rise to the following costs for the EU budget:


–development and deployment of a data collection tool – one-off cost incurred by the European Institute for Gender Equality (‘EIGE’);

–technical maintenance and operation of the data collection tool – recurring cost incurred by EIGE;

–development and deployment of common data disaggregations and methodology in cooperation with Member States – recurring cost incurred by EIGE;

–development of guidelines to harmonise and standardise crime statistics on violence against women and domestic violence, supporting Member States in the gathering of data – recurring cost incurred by EIGE.

The costs for EIGE are explained in detail in the accompanying legislative financial statement. In total, EIGE would require the following financial and human resources for the administrative data collection task:

–one-off set-up cost – EUR 200 000;

–annual maintenance and operation cost – EUR 750 000;

–staff – one (in full-time equivalents) temporary agent as of 2025 and two (in full-time equivalents) contract agents as of 2025 (three in total).

5. OTHER ELEMENTS

• Implementation plans and monitoring, evaluation and reporting arrangements

Member States will be required to transpose the Directive 2 years after its entry into force. They will be required to communicate to the Commission their national implementation measures. Furthermore, Member States will have to report to the Commission on the Directive’s implementation 7 years after its entry into force. After this period, reporting must be carried out at regular intervals in the form of a questionnaire to the Member States. The strengthened data collection requirements under this proposal will form the basis for monitoring and evaluation of the impact of the initiative against its specific objectives. The monitoring and evaluation of the proposal will primarily be based on the current harmonised indicators developed by EIGE. This work will be supported and supplemented by the planned harmonisation measures on the collection of disaggregated administrative data (including from law enforcement agencies, the judiciary, social and health services) and the obligation to conduct regular surveys on violence against women and domestic violence and send relevant data to the Commission (Eurostat). The details will be described in a monitoring and enforcement plan that the Commission will draw up.

• Detailed explanation of the specific provisions of the proposal

Chapter 1 sets out general provisions, including the subject matter (Article 1) and particular attention to be paid to victims of violence against women and domestic violence at an increased risk of such violence (Article 2). The scope of the current proposal covers criminal offences as defined therein, acts of violence against women or domestic violence as criminalised under Union law or under national laws (Article 3). This Chapter also provides definitions of key terms used in the Directive (Article 4).

Chapter 2 contains provisions on minimum rules on the definition of criminal offences and penalties based on Article 83 i TFEU. These offences concern certain forms of violence against women or domestic violence that amount to sexual exploitation of women or to computer crime. Even though these offences disproportionately affect women, criminalisation under this chapter applies to all victims, including men and non-binary persons, except in the case of rape and female genital mutilation. These are criminalised at EU-level only where perpetrated against women or children due to the legal basis in Article 83 i TFEU, which refers to sexual exploitation of women and children only. The chapter includes minimum harmonisation of the offences of rape against women (Article 5) and female genital mutilation (Article 6). In light of the fast pace of the current digital transformation and the increase of cyber violence, it also provides for minimum rules for certain computer crime offences: non-consensual sharing of intimate or manipulated material (Article 7), offences concerning cyber stalking (Article 8), offences concerning cyber harassment (Article 9), and cyber incitement to hatred or violence (Article 10). Article 11 contains provisions on the incitement, aiding and abetting and attempt of such offences. Article 12 sets the minimum level of the maximum sanction applicable to the offences defined in Articles 5 to 11, and Article 13 specifies the aggravating circumstances. The rules on jurisdiction and limitation periods are found in Articles 14 and 15.

Chapter 3 concerns the protection and access to justice of victims of all forms of violence against women or domestic violence. This chapter is applicable to all victims of offences of violence against women and domestic violence. While this proposal mainly focuses on types of violence disproportionately affecting women, it does not exclude men or non-binary persons from benefitting from victims’ rights if they become victims of such violence, including domestic violence.

This chapter includes rules on the reporting of violence against women and domestic violence to ensure that such offences can be easily brought to justice (Article 16). This entails the expedient processing of such reports and encouraging that such offences are reported, for example by removing in some cases obstacles imposed by confidentiality rules, ensuring that children can easily report offences and ensuring that undocumented persons and persons with uncertain residence status do not fear to report violence. In no way does this last aspect introduce under this Directive a right to a residence status for persons reporting violence. Article 17 ensures that offences are effectively investigated and prosecuted, that there are sufficient expertise and resources, and that offences amounting to rape are prosecuted ex officio. This chapter introduces an individual risk assessment to identify victims’ protection and support needs (Articles 18 and 19). This assessment shall be understood as an integrated part of the existing individual assessment under the Victims’ Rights Directive and is meant to be tailored to the specific needs of victims of violence against women and domestic violence. Article 20 sets out obligations to ensure that victims are referred to appropriate support services, for example ensuring that support services reach out to victims proactively. At the same time, this Article aims to ensure compliance with data protection rules. Furthermore, this chapter lays down that Member States provide for emergency barring and protection orders to ensure that victims are effectively protected (Article 21). Article 22 provides that potential questions concerning the victim’s sexual past conduct are excluded in the criminal investigations and court proceedings, without prejudice to the rights of the defence. This chapter also contains the obligation to provide law enforcement and judicial authorities with guidelines to ensure that victims are treated appropriately throughout the proceedings and that cases of violence against women and domestic violence are handled appropriately (Article 23). This chapter also provides that national bodies, such as equality bodies, are competent to, for example, assist and give advice to victims of violence against women and domestic violence – both severe forms of discrimination against women (Article 24). Such bodies are also granted legal standing to act on behalf of victims in criminal proceedings where they deem so appropriate. Article 25 ensures the removal of online content in relation to offences of cyber violence, and a possibility of judicial redress for affected users. The right of victims to claim compensation from the offender is covered by Article 26.

Chapter 4 contains the provisions on victim support, which victims must receive before, during and for an appropriate time after criminal proceedings. Article 27 lays down the specific services, arrangements and specific resources of support services that provide specialist services for victims of violence against women and domestic violence. This chapter further provides for specific and immediate support in rape crisis or sexual violence referral centres (Article 28) and specialist support for victims of female genital mutilation (Article 29). Member States should also ensure victims of sexual harassment at work can make use of counselling services external to the work place, including advice for employers on how to address such offences appropriately (Article 30). Member States must set up national helplines for victims and ensure their operation under a harmonized EU level number (Article 31). Specialised shelters or other interim accommodations are to be made available to victims indiscriminately to ensure they are assisted in returning to independent living after they have experienced violence (Article 32). Furthermore, Member States must provide appropriate protection and support to child victims, taking into account the child’s best interests (Article 33). This includes providing safe places for children visiting with parent offenders, who have rights of access (Article 34). Article 35 provides victims who belong to groups at risk with safeguards, for example easier access for victims with disabilities.

The provisions in Chapter 5 focus on effectively preventing violence against women and domestic violence. This includes the obligation to conduct awareness-raising campaigns and research and education programmes, and to broadly distribute relevant information (Article 36). Professionals that are most likely to come into contact with victims must receive training and targeted information. This aims to ensure that such professionals can respond in an appropriate manner and identify instances of violence, and that responsible organisations can effectively coordinate their actions (Article 37). Article 38 provides for intervention programmes available also for voluntary participation by persons who fear that they would commit such crimes.

Chapter 6 contains rules on the coordination of Member States’ national policies on violence against women and domestic violence, but also provisions on EU-level coordination. To streamline national policies and ensure an effective multi-level response to these types of violence, Article 39 requires Member States to designate or set up an official body to coordinate and oversee policies in this area. This is complemented by the obligation under Article 40 to ensure the effective coordination and cooperation of all agencies involved in supporting victims. Non-governmental organisations are key players in providing support to victims and preventing violence. Under Article 41, Member States should cooperate with non‑governmental organisations and consult them on relevant policies. To ensure cyber violence as defined in the current proposal is appropriately addressed, Member States are to facilitate the taking of self-regulatory measures by providers of intermediary services (Article 42). Article 43 aims to facilitate cooperation between Member States to ensure an exchange of best practice, aiming to implement this Directive as effectively as possible. Data collection and research are essential in formulating appropriate policy measures in the field of violence against women and domestic violence. In order to ensure the availability of comparable data at EU level, Article 44 provides for rules on data collection throughout the Member States. Given EIGE’s expertise and ongoing work in the field, it is to support Member States in the development of a common methodology and the collection of data.

Chapter 7 contains the final provisions of this Directive. Article 45 amends the Child Sexual Abuse Directive to ensure coherence by introducing the crime of penetration for sexual purposes, and clarifying that the circumstances in which consent cannot be validly given by a child above the age of sexual consent include those referred to in Article 5 of this proposal. Article 46 concerns the level of protection and Article 47 the Member States’ reporting obligations. Article 48 clarifies the relationship with other Directives and contains non-prejudice clauses. This Article clarifies that the provisions apply in addition to those of the Victims’ Rights Directive, the Anti-Trafficking Directive, the Child Sexual Abuse Directive and [the proposal for a Digital Services Act]. This means that victims should benefit from the protection of all directives applicable to them. Article 49 includes a non-regression clause. Article 50 contains provisions on the transposition of this Directive. Article 51 stipulates when the Directive will enter into force and Article 52 stipulates to whom it is addressed.