Explanatory Memorandum to COM(2024)217 - - Main contents

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dossier	COM(2024)217 - .
source	COM(2024)217
date	21-05-2024

1. Subject matter of the proposal

This proposal concerns the decision establishing the position to be taken on the Union's behalf, at the 16^th meeting of Committee of the Parties (‘CoP’) of the Council of Europe Convention on preventing and combating violence against women and domestic violence (‘the Istanbul Convention’ or ‘the Convention’) on 31 May 2024, in connection with the envisaged adoption of one draft recommendation and four draft conclusions addressed to five State Parties on their implementation of the Convention.

2. Context of the proposal

2.1. The Istanbul Convention

The Istanbul Convention aims to lay down a comprehensive and harmonised set of rules to prevent and combat violence against women and domestic violence in Europe and beyond. The Convention entered into force on 1 August 2014.

The EU signed the Convention in June 2017, and completed the accession procedure with the deposit of two instruments of approval on 28 June 2023, triggering the entry into force of the Convention for the EU on 1 October 2023. The EU has acceded to the Convention as regards matters falling within its exclusive competence, namely with regard to matters related to institutions and public administration of the Union ¹ and with regard to matters related to judicial cooperation in criminal matters, asylum and non-refoulement ². All EU Member States have signed the Convention but only 22 have ratified the Convention ³.

2.2. The Committee of the Parties

The Committee of the Parties ⁴ is composed of the representatives of the Parties to the Convention. Parties must endeavour to nominate, as their representatives, experts of the highest possible rank in the field of preventing and combating violence against women and domestic violence ⁵. The tasks entrusted to the CoP are listed in Rule 1 of its Rules of Procedure ⁶. On 1 October 2023 the EU became a Party to the Istanbul Convention, and thus a member of the CoP (Article 67(1) of the Convention).

2.3. The monitoring mechanism of the Istanbul Convention

The Istanbul Convention sets up a monitoring mechanism to ensure effective implementation of its provisions by the Parties ⁷. The purpose is to assess how the provisions of the Convention are put into practice and to provide guidance to Parties. This monitoring mechanism consists of two distinct, but interacting, bodies: an independent expert body (the Group of Experts on Action against Violence against Women and Domestic Violence ‘GREVIO’), and the CoP.

GREVIO is an independent and impartial group of experts on action against violence against women and domestic violence tasked to monitor the implementation of the Istanbul Convention on a country-by-country basis, in accordance with Article 66(1) of the Convention. GREVIO is composed of 15 members chosen from among nationals of the Parties and elected by the CoP for a term of office of four years, renewable once.

The monitoring procedure is described in Article 68 of the Convention. In short, each Party is required to submit a report based on a questionnaire prepared by GREVIO, on legislative and other measures giving effect to the provisions of the Convention. Based on this information, as well as information received from civil society, other treaty bodies, other Council of Europe bodies and country visits, GREVIO prepares a draft report on the measures taken by the Party concerned to implement the provisions of the Convention and gives suggestions and proposals on the way in which the Party may deal with identified problems ⁸. After having given the Party the possibility to comment on the report, GREVIO adopts its final report ⁹. The report contains conclusions highlighting the measures to be taken by the Party concerned to implement the Convention.

On the basis of GREVIO’s reports and its conclusions, the CoP, in accordance with Article 68(12) of the Convention, may adopt recommendations addressed to the Party concerned on the implementation of the Convention and set a date for submitting information on their implementation. Based on this provision, according to the agreed procedures, the CoP adopts recommendations which differentiate between those actions which it considers the Party concerned should take as soon as possible, with a requirement to report back to it on steps taken in this regard within a three years period, and those which, while important, the CoP considers could be left at a secondary level of immediacy ¹⁰. At the end of the 3-year period, the Party must report back to the CoP on the progress made in implementing those measures. On the basis of this information, and any additional information obtained from non-governmental organisations, civil-society and national institutions for the protection of human rights, the CoP adopts conclusions on the implementation of the recommendations in relation to each Party under review, prepared by the Secretariat of the Committee ¹¹. To date, the practice in the CoP has been to adopt recommendations and conclusions on the basis of consensus at its meetings which are to take place upon request ¹², normally twice a year.

2.4. The envisaged acts of the Committee of the Parties

On 31 May 2024, during its 16^th meeting, it is foreseen that the CoP will proceed with the adoption of the following draft recommendation and conclusions (‘the envisaged acts’ or ‘the draft recommendation and conclusions’):

- Recommendation on the implementation of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence by Liechtenstein [IC-CP(2024)1-prov];

- Conclusions on the implementation of recommendations in respect of Andorra adopted by the Committee of the Parties [IC-CP(2024)2-prov];

- Conclusions on the implementation of recommendations in respect of Belgium adopted by the Committee of the Parties [IC-CP(2024)3-prov];

- Conclusions on the implementation of recommendations in respect of Malta adopted by the Committee of the Parties [IC-CP(2024)4-prov]; and

- Conclusions on the implementation of recommendations in respect of Spain adopted by the Committee of the Parties [IC-CP(2024)5-prov].

3. Position to be taken on the Union's behalf

The envisaged acts are directed to five State Parties and include recommendations on measures to be taken to implement the Istanbul Convention as well as conclusions on State Parties’ implementation of previous recommendations. They concern the implementation of provisions of the Convention which relate to judicial cooperation in criminal matters, such as matters relating to the protection of victims and support for victims of violence against women and domestic violence, as well as provisions of the Convention relating to asylum and non-refoulement. These matters are covered by the Union acquis, in particular the Directive on combating violence against women and domestic violence ¹, the Victims’ Rights Directive ², the Asylum Procedures Regulation ³ and the Reception Conditions Directive ⁴. They fall within the Union’s exclusive competence insofar as the relevant provisions of the Convention may affect common rules or alter their scope within the meaning of Article 3 i of the Treaty on the Functioning of the European Union (TFEU). It is therefore appropriate to establish the position to be taken on the Union's behalf in the CoP with regard to matters related to judicial cooperation in criminal matters, asylum and non-refoulement, as the envisaged acts are capable of decisively influencing the content of Union law in that they may affect the interpretation of relevant provisions of the Convention in the future.

The draft recommendation and conclusions on matters falling within the competence of the Union are in line with the Union’s objectives and policies in the areas of judicial cooperation in criminal matters, asylum and non-refoulement and do not raise any concerns with respect to Union law. It is therefore proposed that the Union does not object to the adoption of the draft recommendation and conclusions at the 16th meeting of the CoP.

4. Legal basis

4.1. Procedural legal basis

4.1.1. Principles

Article 218(9) TFEU provides for decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement.’

The concept of ‘acts having legal effects’ includes acts that have legal effects by virtue of the rules of international law governing the body in question. It also includes instruments that do not have a binding effect under international law, but that are ‘capable of decisively influencing the content of the legislation adopted by the EU legislature’¹.

4.1.2. Application to the present case

The CoP is a body set up by the Istanbul Convention. The envisaged acts which the CoP is called upon to adopt constitute acts having legal effects. The envisaged acts are capable of decisively influencing the content of Union law, because they may affect the interpretation of the relevant provisions of the Istanbul Convention in the future. Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU.

4.2. Substantive legal basis

4.2.1. Principles

The substantive legal basis for a decision under Article 218(9) TFEU depends primarily on the objective and content of the envisaged act in respect of which a position is taken on the Union’s behalf. If the envisaged act pursues two aims or has two components and if one of these aims or components is identifiable as the main one, whereas the other is merely incidental, the decision under Article 218(9) TFEU must be founded on a single substantive legal basis, namely that required by the main or predominant aim or component.

With regard to an envisaged act that simultaneously pursues a number of objectives, or that has several components, which are inseparably linked without one being incidental to the other, the substantive legal basis of a decision under Article 218(9) TFEU will have to include, exceptionally, the various corresponding legal bases.

4.2.2. Application to the present case

As regards the substantive legal basis, the EU has acceded to the Istanbul Convention as regards matters falling within its exclusive competence, namely with regard to matters related to institutions and public administration of the Union ² and with regard to matters related to judicial cooperation in criminal matters, asylum and non-refoulement ³. The EU’s accession to the Istanbul Convention was split into two separate Council decisions to take into account the special position of Denmark and Ireland with respect to Title V of the TFEU. Consequently, also the decision establishing the position to be taken on the Union’s behalf in the CoP is to be split into two decisions, when the relevant recommendations or conclusions concern both matters.

The envisaged acts pursue objectives and have components in the area of judicial cooperation in criminal matters (Article 82 i and Article 84 TFEU), as well as on asylum and non-refoulement (Articles 78 i TFEU). They are inseparably linked without one being incidental to the other. Therefore, the substantive legal basis of the proposed decision comprises the following provisions: Article 78 i, Article 82 i and Article 84.

4.3. Conclusion

The legal basis for the proposed decision should be Article 78 i, Article 82 i and Article 84, in conjunction with Article 218(9) TFEU.

Proposal for a