Council of theEuropean Union
Brussels, 31 October 2022
(OR. en)
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LIMITEJUR 695
JAI 1401
COPEN 372
FREMP 227OPINION OF THE LEGAL SERVICE1
From:

Legal Service

To:

COPEN

Subject:

Proposal for a Directive of the European Parliament and of the Council on
combating violence against women and domestic violence

Legal basis – Scope of Article 83 TFEU



Rules for specific victims – Compatibility with the principle ofnon-discriminationI.

INTRODUCTION

1.

On 8 March 2022, the Commission presented a proposal for a Directive of the European
Parliament and the Council on combating violence against women and domestic violence2(the ‘proposed directive’).

12This document contains legal advice protected under Article 4(2) of Regulation (EC)No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding
public access to European Parliament, Council and Commission documents, and notreleased by the Council of the European Union to the public. The Council reserves all its
rights in law as regards any unauthorised publication.
COM(2022)105, 2022/0066(COD).

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The Council Legal Service (CLS) was asked to concentrate its analysis on the following two
aspects of the proposed directive:(A) whether Article 83(1) TFEU allows for the adoption of minimum rules for the criminal
offences, as proposed, of rape against women and female genital mutilation (Articles 5
and 6 of the proposed directive),3 as well as non-consensual sharing of intimate ormanipulated material (so-called “revenge porn”), cyber stalking, cyber harassment, andcyber incitement to violence or violence (Articles 7 to 10 of the proposed directive) and(B)

whether establishing measures which only apply to specific victims or specific contexts,
namely victims of violence against women and domestic violence, would be incompliance with the principle of non-discrimination4.

The two issues will be examined in turn.

3

4

In addition, it may be noted that Article 45 of the proposed directive would amend Article 3
of Directive 2011/93/EU of the European Parliament and of the Council of 13 December
2011 on combating the sexual abuse and sexual exploitation of children and childpornography, and replacing Council Framework Decision 2004/68/JHA (OJ L 335,
17.12.2011, p. 1), thereby aligning some of the already existing offences concerning sexual
abuse against children provided for in Article 3 of the above-mentioned Directive, with thedefinition set out in Article 5 of the proposed directive for the crime of rape against women.
The analysis of the proposal is still ongoing in the COPEN Working Party. This opinion is
without prejudice to issues which could arise in the course of this analysis, including as
regards the competence of the EU co-legislators to adopt specific provisions on the rights ofvictims, and which in principle will be addressed in the course of the discussion.

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LEGAL ANALYSISA.

LEGAL BASIS FOR THE MINIMUM RULES ON CRIMINAL OFFENCES SET OUT
IN ARTICLES 5 TO 10

3.

Article 83(1), first subparagraph, TFEU, confers on the EU a competence to establish
minimum rules concerning the definition of criminal offences and sanctions in specific areasof crime, following the ordinary legislative procedure. In accordance with this provision,
those areas of crime are defined on the basis of two criteria, namely (1) that the area must
relate to crimes that are “particularly serious”, and (2) that those crimes must have “a crossborder dimension”. The cross-border dimension in the specific context of Article 83 TFEU
can result from (i) the nature of such offences, (ii) from their impact, or (iii) “from a special
need to combat them on a common basis”.

4.

The second subparagraph of Article 83(1) TFEU then lists areas of crime which the authors of
the Treaty considered to already fulfil those two criteria. This list of so-called “euro-crimes”
includes, in particular, “trafficking in human beings and sexual exploitation of women andchildren” and “computer crime”. The third subparagraph of Article 83(1) TFEU contains a
so-called simplified revision procedure that enables the Council, by unanimity and after
obtaining the consent of the European Parliament, to extend the list of such “euro-crimes”.

5.

This list of “euro-crimes” finds its origin in the Amsterdam Treaty, which, at the time,
provided for a non-exhaustive list of such crimes, which could be subject to EU level
minimum rules, to be adopted by unanimity in the Council.

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6.

This approach concerning EU substantive criminal law was reviewed in the Lisbon Treaty. It
was agreed that the Treaty would set out an exhaustive list of crimes, on which EU legislation
could then be adopted by qualified majority voting and ordinary legislative procedure. Thisexhaustive list could, however, be adapted by the Council, which would be empowered to add
further crimes to the list, acting by unanimity. The list of “euro-crimes” inserted in
Article 83(1), second subparagraph, TFEU by the Lisbon Treaty was, in essence, acombination of the areas of crime identified in Articles K.1 and K.3(e) ex-TEU, and thoselisted in the conclusions of the Tampere European Council of 15-16 October 1999.

7.

It follows from the drafting history of Article 83(1) TFEU that the intention of the authors of
the Treaties was to counterbalance, in that provision, the transition from unanimity toqualified majority voting by establishing an exhaustive list of areas of crime, which could
then be extended by a unanimous decision of the Council.

8.

Any such extension must comply with two criteria (and sub-criteria) referred to in paragraph
3 above, namely the seriousness and the cross-border dimension of the crimes.

9.

As the Commission proposed to set out minimum rules on the criminal offences referred to in
Articles 5 to 10 of the proposed directive on the basis of the current list of “euro-crimes”, thequestion whether Article 83(1) TFEU constitutes an appropriate legal basis for the adoption ofminimum rules for those criminal offences must be examined, as EU law currently stands, inlight of that list of “euro-crimes”.

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10.

More specifically, this requires an assessment as to whether the crimes of rape against womenand of female genital mutilation can be considered as being part of, and included in, the areaof crime concerning “trafficking in human beings and sexual exploitation of women andchildren”5 and, on the other hand, whether the crimes of non-consensual sharing of intimate
or manipulated material (so-called “revenge porn”) cyber stalking, cyber harassment, andcyber incitement to violence or hatred can be considered as being part of, and included in, thearea of “computer crime”.

1)

Legal basis for the rules relating to the criminal offences of rape against women and offemale genital mutilation (Articles 5 and 6 of the directive)

11.

Articles 5 to 10 of the proposed directive are included in its Chapter 2, titled “Offences
concerning sexual exploitation of women and children and computer crime”.
According to Article 5, the crime of “Rape” is defined as follows:“1. Member States shall ensure that the following intentional conduct is punishable as acriminal offence:(a) engaging with a woman in any non-consensual act of vaginal, anal or oral penetration ofa sexual nature, with any bodily part or object;(b) causing a woman to engage with another person in any non-consensual act of vaginal,
anal or oral penetration of a sexual nature, with any bodily part or object.
2. Member States shall ensure that a non-consensual act is understood as an act which is
performed without the woman’s consent given voluntarily or where the woman is unable toform a free will due to her physical or mental condition, thereby exploiting her incapacity toform a free will, such as in a state of unconsciousness, intoxication, sleep, illness, bodily
injury or disability.

5

According to the Explanatory memorandum of the proposed directive, the minimum rules
set out in Articles 5 and 6 of the proposed directive would fall within the scope of the areaof crime of “sexual exploitation of women”.

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LIMITEEN3. Consent can be withdrawn at any moment during the act. The absence of consent cannot be
refuted exclusively by the woman’s silence, verbal or physical non-resistance or past sexual
conduct.”
According to Article 6, the crime of “Female genital mutilation” is defined as follows:“Member States shall ensure that the following intentional conduct is punishable as acriminal offence:(a) excising, infibulating or performing any other mutilation to the whole or any part of thelabia majora, labia minora or clitoris;(b) coercing or procuring a woman or a girl to undergo any of the acts referred to in point(a).”14277/22

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It should therefore be examined whether the two crimes can be considered as falling withinthe “euro-crime” of “sexual exploitation of women and children” as set out in article 83(1),second subparagraph, TFEU. As the notion of “sexual exploitation of women and children”
forms part of a provision of the Treaties setting out the competence of the EU co-legislators to
adopt common rules, this notion must be interpreted as an autonomous concept of EU law6.
Furthermore, in accordance with established case-law, in interpreting a provision of EU law
and its wording, it is necessary to consider i) its origins7 and ii) its context and the aims
pursued by the legislation of which it forms part8. In order to ensure a consistent approach, acomparison with the relevant EU and international law instruments already referring to thenotion of exploitation is also of essence in this context.

a)Origins of Article 83 TFEU

13.

The process leading up to the adoption of the text of Article 83(1) TFEU started in the Treatyof Amsterdam, which amended Article K.1 ex-TEU. The resulting article provided that “theUnion's objective (…) to provide citizens with a high level of safety within an area of freedom,security and justice (…) shall be achieved by preventing and combating crime, organised orotherwise, in particular (…), trafficking in persons and offences against children, (…)”
(emphasis added).

6

7

8

This view is also consistent with the case-law of the Court according to which the uniform
application of EU law and the principle of equality require that the terms of a provision of
EU law which make no express reference to the law of the Member States for the purpose ofdetermining its meaning and scope must normally be given an autonomous and uniform
interpretation throughout the EU; that interpretation must take into account the context ofthe provision and the purpose of the legislation in question. See, for example, judgments of
18 January 1984, Ekro, 327/82, EU:C:1984:11 and of 19 September 2000, Linster,C-287/98, EU:C:2000:468, paragraph 43.
Judgments of 27 November 2012, Pringle, C‑ 370/12, EU:C:2012:756, paragraph 135, of
3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑ 583/11
P, EU:C:2013:625, paragraph 50 and of 27 October 2016, Commission v Germany, C220/15, EU:C:2016:815, paragraph 39.
Judgments 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council,
C‑ 583/11 P, EU:C:2013:625, paragraph 50 and of 22 June 2021, Venezuela v Council(Whether a third State is affected), C-872/19 P, EU:C:2021:507, paragraph 42.

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14.

Article K.3(e) ex-TEU, which listed the non-exhaustive list of areas of crime whereapproximation of rules could be envisaged, did not explicitly refer to “sexual exploitation of
women”. However, as follows from the conclusions of the Tampere European Council of
15-16 October 1999, “exploitation of women” was understood as a component of trafficking
in human beings. The conclusions, which spelled out the focus for the legislative work in thisarea post-Amsterdam, stated that “[w]ithout prejudice to the broader areas envisaged in theTreaty of Amsterdam and in the Vienna Action Plan, the European Council considers that,with regard to national criminal law, efforts to agree on common definitions, incriminations
and sanctions should be focused in the first instance on a limited number of sectors ofparticular relevance, such as (…) trafficking in human beings, particularly exploitation of
women, sexual exploitation of children, (…)”(emphasis added).

15.

This led to the adoption of series of framework decisions, including Council Framework
Decision 2002/629/JHA of 19 July 2002 on combating trafficking in human beings9, andCouncil framework Decision 2004/68/JHA of 22 December 2003 on combating the sexual
exploitation of children and child pornography10.

910

OJ L 203, 01/08/2002, p. 1.
OJ L 13, 20/01/2004, p. 44.

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16.

When the approach on substantial criminal law was reviewed in the context of the European
Convention that led to the draft Constitutional Treaty, the exhaustive list of areas of crimewhere EU minimum rules concerning the definition of criminal offences and sanctions can beestablished was drafted by combining the areas of crime identified in Articles K.1 and K.3(e)ex-TEU, and those in the conclusions of the Tampere European Council of 15-16 October
199911. There were several requests by members of the Convention to amend the list, notably
to include “domestic violence”12, but these amendments were not retained. In the process,however, the wording of the relevant area of crime did evolve, going from “trafficking inhuman beings, particularly exploitation of women, sexual exploitation of children”, to“trafficking in human beings and sexual exploitation of women and children” (emphasis
added). The resulting Article III-271 of the draft Treaty establishing a Constitution for Europe
was taken over unchanged in the Treaty of Lisbon and became what is now Article 83 TFEU.

17.

It therefore appears from the drafting history of Article 83 TFEU that “sexual exploitation of
women” was construed as being narrowly linked to, and a specific and important form of,trafficking in human beings. Domestic violence was deliberately left out of the list of areas ofcrime. There is no conclusive evidence in the preparatory works relating to Article 83 TFEU
that the intention of the authors of the Treaties was to consider the criminal offences of rapeand female genital mutilation to be covered by the area of crime of “trafficking in humanbeings and sexual exploitation of women and children”. Nevertheless, it must be noted thatthe fact that the wording of the area of crime went from using the preposition “particularly”
in the conclusions of the Tampere European Council to using the coordinating conjunction“and” in the text of Article 83 TFEU is an element that could plead in favour of a more
extensive reading of this provision.

11
12

Praesidium, Espace de liberté, de sécurité et de justice - projet d’article 31, partie I - projet
d’articles de la partie II, CONV 614/03, p. 25.
Working group X "Freedom, Security and Justice", Changes to the Draft Final Report(WD 18) proposed by Anne Van Lancker, Elena Paciotti, Iñigo Mendez de Vigo, WP X –WD 29, p.6 and Secretariat of the European Convention, Reaction to draft text,
CONV 802/03 – Analysis, CONV 821/03, p.90.

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b)

Context and aim of Article 83 TFEU

18.

Concerning the systematic and contextual reading of Article 83 TFEU, it must first be notedthat “sexual exploitation of women” is one part of a single area of crime, identified in Article
83(1), second subparagraph, TFEU as “trafficking in human beings and sexual exploitation of
women and children”. In light of the context in which they appear in the second subparagraphof in Article 83(1) TFEU, it would seem that, first, the terms “sexual exploitation” should beinterpreted as being in relation with “trafficking in human beings”13.

19.

Second, the interpretation of this legal basis must be consistent with the aim of promoting
equality between women and men and the prohibition against discrimination based on sex, set
out in Articles 2 and 3(3) TEU, Articles 8 and 11 TFEU and Article 21 of the Charter ofFundamental Rights (the Charter), which are all provisions of primary EU law of equal legal
value to Article 83 TFEU. Interpreting “sexual exploitation of women” as part of a wider areaof crime identified as “trafficking in human beings and sexual exploitation of women andchildren” would be one way to ensure such consistency in so far as, read as a single area ofcrime, the reference to “women” is not exhaustive but mainly descriptive of a situation where
those two categories (women and children) are, and were considered by the authors of theTreaties to be, the main victims of sexual exploitation and therefore requiring particularattention.

20.

In the present case, the interpretation of the Treaties advocated by the Commission in the
explanatory memorandum for the proposed directive, according to which “sexual exploitationof women” should be interpreted in isolation and as including rape, leads it to propose an
incrimination of the crime of rape as concerns adults which only relates to women.

13This appears to reflect the criminological reality. Indeed, as noted by the Commission in its
recent Communication on the EU Strategy on Combatting Trafficking in Human Beings
2021-2025 (COM(2021)171), “[t]he majority of the victims [of trafficking in human beings]
in the EU are women and girls trafficked for sexual exploitation”. The same conclusion wasreached by the European Parliament in its Report on the implementation of Directive
2011/36/EU on preventing and combating trafficking in human beings and protecting its
victims (2020/2029(INI)), according to which “sexual exploitation remains the mostprevalent form of trafficking in the European Union”.

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21.

Indeed, according to the proposed directive, contrary to the gender-neutral approach taken, forexample, in the Council of Europe Convention on preventing and combating violence against
women and domestic violence (the “Istanbul Convention”)14 as concerns the criminal law partof the Convention15, rape of adults would be criminalised at EU-level only where perpetrated
against women, despite the fact that sexual freedom and physical integrity of man is to beequally protected by the incrimination of rape16. However, no justification consistent with thecase-law of the Court of Justice for this difference in treatment of comparable situations canbe found, namely one based on an objective and reasonable criterion, related to a legallypermitted aim pursued by the legislation in question and proportionate to the aim pursued by
the treatment17.

14

15

16

17

See Article 36 of the Council of Europe Convention on preventing and combating violenceagainst women and domestic violence, signed in Istanbul on 11 May 2011, Council ofEurope Treaty Series - No. 210, available at https://rm.coe.int/168008482e. This Article,
which defines sexual violence, including rape, is drafted in such way that the crime refers to“persons”, i.e is defined regardless of the sex of the persons concerned.
The only exceptions to this gender neutrality concerns female genital mutilation and forced
abortion and forced sterilisation, given the nature of the offences. See the Explanatory
Report to the Council of Europe Convention on preventing and combating violence against
women and domestic violence, available at https://rm.coe.int/1680a48903, paragraphs 153,
198 and 203.
According to Eurostat, 9 in 10 rape victims are women and girls (Eurostat, Violent sexual
crimes recorded in the EU, 2018, available at https://ec.europa.eu/eurostat/web/productseurostat-news/-/EDN-20171123-1). The fact that men are less likely to get raped does notmean that, in relation to the existence of an incrimination of rape at EU level, they are not in
a comparable situation to women and children.
See judgment of 16 December 2008, Arcelor Atlantique et Lorraine a.o., C-127/07,
EU:C:2008:728, paragraph 47 and the case-law cited.

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The CLS recalls that the interpretation of a provision of the Treaties cannot lead to a situation
where the EU co-legislators would be conferred a competence which would entail, by its
nature, the risk of a breach of the principle of non-discrimination, provided for in Articles 2
and 3(3) TEU, Articles 8 and 11 TFEU and Article 21 of the Charter. The non-discrimination
provisions and Article 83(1) TFEU, all provisions of primary law of the same legal value,
contained in the same Treaties, must be interpreted in a manner that is consistent between
themselves. Article 83(1) TFEU and notably the criteria set out in that provision cannot beinterpreted as ensuring only partially the protection provided by the Charter and the Treatiesin this field, and giving the EU co-legislators the competence to establish, only with regard to
one sex, minimum rules concerning the definition of a criminal offence which, by its very
nature, affects the sexual integrity and the human dignity of all persons regardless of their sex.

23.

Limiting the EU-law definition of the crime of rape only to women would lead to a situation
which cannot be reconciled with the non-discrimination provisions set out in Articles 2 and3(3) TEU, Article 8 and 11 TFEU, and Articles 1, 3 and 21 of the Charter.

24.

This leads to an interpretation of the notion of “sexual exploitation of women” as forming partof the wider area of crime, namely “trafficking in human beings and sexual exploitation of
women and children”, with the exploitation element being a common component together
with trafficking in human beings. In accordance with such interpretation, it is possible toadopt rules which apply to both sexes, as was done in the Human Trafficking Directive
2011/36/EU18 and the Child Sexual Abuse and Sexual Exploitation Directive 2011/9319.

18

19

Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on
preventing and combating trafficking in human beings and protecting its victims, andreplacing Council Framework Decision 2002/629/JHA (OJ L 101, 15.4.2011, p. 1).
Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011
on combating the sexual abuse and sexual exploitation of children and child pornography,
and replacing Council Framework Decision 2004/68/JHA (OJ L 335, 17.12.2011, p. 1).

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25.

Such interpretation, where the reference to “women” is not exhaustive but mainly descriptiveof a situation where those two categories (women and children) are the main victims of sexual
exploitation, would ensure that Article 83(1) TFEU could be applied in a manner consistent
with the non-discrimination provisions set out in Articles 2 and 3(3) TEU, Article 8 and 11
TFEU, and Articles 1, 3 and 21 of the Charter.

26.

This approach would however exclude that the notion of “sexual exploitation of women” beinterpreted in isolation, as an autonomous area of crime that would comprise crimes being
centred on sexual violence, and thus capable of including the crime of rape, and not having
the exploitative element as a common component with trafficking of human beings.

27.

That being said, the fact that the provision uses the coordinating conjunction “and” (and not
the preposition “particularly” used in the conclusions of the Tampere European Council),
could allow for an interpretation, according to which “sexual exploitation of women” would
be considered an autonomous area of crime and thus be capable of including the crime ofrape. However, in order to safeguard the internal consistency of the Treaties and in particular
the consistency between, on the one hand, Articles 2 and 3(3) TEU, Article 8 and 11 TFEU,
and Articles 1, 3 and 21 of the Charter and, on the other hand, Article 83(1) TFEU, it must be
stressed that if such interpretation were to be followed, the phrase “sexual exploitation of
women and children” would have to be interpreted in such a way as to include the sexual
exploitation of all persons, including men. Therefore, if the Council would decide to follow
this avenue, the crime of rape could not be defined as solely referring to women.

28.

When it comes to the criminal offence of female genital mutilation, provided for in Article 6of the proposed directive, it is a practice affecting seriously the physical integrity of girls anddoes not concern men. It follows that the considerations and reasoning set out above inparagraphs 18 to 27 are not relevant here.

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c)

Notion of "sexual exploitation" in relevant international law instruments

29.

The most relevant international instrument20 in the field, namely the Istanbul Convention,
demonstrates that “sexual exploitation”, apart from being generally linked with trafficking inhuman beings, is a distinct legal concept from sexual violence, which in turn includes rape.
The Istanbul Convention is referred to in the explanatory memorandum for the proposed
directive as an “important point of reference for the [proposed directive]”. This instrument
and its explanatory memorandum do not use the word “sexual exploitation”, but “genderbased violence” or “violence against women” concerning the various offences it defines, and,as concerns rape, explicitly classifies it as a form of sexual violence21.

20

21

In the course of the discussion in COPEN, the Commission services have referred to thedefinition of “sexual exploitation” contained in the UN Secretary-General’s Bulletin Special
measures for protection from sexual exploitation and sexual abuse(https://www.unhcr.org/protection/operations/405ac6614/secretary-generals-bulletinspecial-measures-protection-sexual-exploitation.html) as a definition which has inspired theone used in the explanatory memorandum of the proposed directive. According to thatdefinition, “sexual exploitation” is “any actual or attempted abuse of a position ofvulnerability, differential power, or trust, for sexual purposes, including, but not limited to,
profiting monetarily, socially or politically from the sexual exploitation of another”.
However, it must be noted that this Bulletin from the UN Secretariat was issued in a specificcontext, namely “for the purpose of preventing and addressing cases of sexual exploitationand sexual abuse, and taking into consideration General Assembly resolution 57/306 of 15
April 2003, ‘Investigation into sexual exploitation of refugees by aid workers in West
Africa’”. It thus concerns the situation of particularly vulnerable persons, in a specificcontext. In this regard, the Bulletin specifies that the definitions it contains in Section 1 havebeen explicitly drafted “[f]or the purposes of the present bulletin”.
See Article 36 of the Istanbul Convention.

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30.

In parallel, the main international instruments concerning the fight against trafficking inhuman beings, namely the 2005 Council of Europe Convention on Action against Trafficking
in Human Beings22, as well as the 2000 United Nations Protocol to Prevent, Suppress andPunish Trafficking in Persons, Especially Women and Children, supplementing the United
Nations Convention against Transnational Organised Crime23, both confirm the meaning
generally given to the notion of “sexual exploitation”, namely not as covering forms of sexual
abuse based only on violence or lack of consent (non-consensual act) but as being centred ona more specific unlawful advantage obtained by abusing of various forms of vulnerable
situations.

31.

In particular, the 2005 Council of Europe Convention on Action against Trafficking in Human
Beings defines trafficking in human beings as “the recruitment, transportation, transfer,harbouring or receipt of persons, by means of the threat or use of force or other forms of
coercion, of abduction, of fraud, of deception, of the abuse of power or of a position ofvulnerability or of the giving or receiving of payments or benefits to achieve the consent of aperson having control over another person, for the purpose of exploitation. Exploitation shall
include, at a minimum, the exploitation of the prostitution of others or other forms of sexual
exploitation, forced labour or services, slavery or practices similar to slavery, servitude or
the removal of organs” (emphasis added). Article 19 of the Convention refers to the possible
financial component of human trafficking and of sexual exploitation, and encourages parties
to “establish as criminal offences under its internal law, the use of services which are theobject of exploitation (…), with the knowledge that the person is a victim of trafficking inhuman beings”. The 2000 United Nations Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and Children follows the same logic, and defines
trafficking in human beings in exactly the same terms.

22

23

Council of Europe Convention on Action against Trafficking in Human Beings, signed in
Warsaw on 16 May 2005, Council of Europe Treaty Series - No. 197, available athttps://rm.coe.int/168008371d.
United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children supplementing the United Nations Convention against Transnational
Organised Crime, adopted by UN General Assembly resolution 55/25, available athttps://treaties.un.org/pages/viewdetails.aspx?src=ind&mtdsg_no=xviii-12-a&chapter=18.

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32.

This stresses the importance of the exploitative element as an essential and distinctive
element, which is the main characteristic of the notion of sexual exploitation as a specificform of sexual abuse, but goes above and beyond the issues of sexual violence and consent toa sexual activity, which are central to the notion of rape.

d)Notion of "sexual exploitation" in relevant EU secondary legislation and policy
documents

33.

This interpretation is confirmed, to a large extent, by already adopted or issued EU
instruments, with one exception. It is recalled that, even if previous practice cannot create aprecedent binding on the institutions24, it constitutes a useful element to inform the ordinary
meaning associated with these terms in an EU context.
i)34.

The Human Trafficking Directive

In the Human Trafficking Directive25, which was adopted by the EU legislator after the entry
into force of the Lisbon Treaty, Article 2(3), which concerns offences related to trafficking inhuman beings, states that “[e]xploitation shall include, as a minimum, the exploitation of theprostitution of others or other forms of sexual exploitation, forced labour or services,
including begging, slavery or practices similar to slavery, servitude, or the exploitation of
criminal activities, or the removal of organs” (emphasis added). Article 2(4) provides that“[t]he consent of a victim of trafficking in human beings to the exploitation, whether intendedor actual, shall be irrelevant (…)”. Exploitation thus relates to the act of taking illicit
advantage of a person or abusing of its vulnerable situation, in particular in the context of
trafficking in human beings, irrespective of the issue of consent, rather than the act having as
its only purpose and consequence the infliction of sexual activity upon a person without his or
her consent.

24
25

Judgment of 26 March 1996, Parliament v Council, C‑ 271/94, EU:C:1995:367, paragraph24.
Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on
preventing and combating trafficking in human beings and protecting its victims, andreplacing Council Framework Decision 2002/629/JHA (OJ L 101, 15.4.2011, p. 1).

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ii)
35.

The Child Sexual Abuse and Sexual Exploitation Directive

The Child Sexual Abuse and Sexual Exploitation Directive26, also adopted after the entry into
force of the Lisbon Treaty, covers, and distinguishes between, “offences concerning sexual
abuse” in Article 3 (concerning sexual activities with children) and “offences concerning
sexual exploitation” in Article 4 (concerning procurement of children for child pornography
and for child prostitution). It then further incriminates conduct in relation to distribution andconsumption of child pornography (Article 5) and solicitation of children for sexual purposes(Article 6).

36.

This Directive thus covers all the different forms of sexual abuse of children and sexual
exploitation of children, all under the legal basis of “trafficking in human beings and sexual
exploitation of women and children” provided for in Article 83(1), second subparagraph,
TFEU.

37.

It must be stressed however that children below the age of consent are, inherently, in asituation of vulnerability and, by definition, cannot consent to sexual activities with an adult,
precisely because of their vulnerability and their sexual immaturity. The rules applicable toprotect children having reached the age of sexual consent, but still below the age of eighteen,
are slightly different, but as minors, they still need a specific legal protection. Any sexual
activity with a minor entails the risk of exploitation, by the adult, of a position ofvulnerability, differential power, or trust, for sexual purposes, with a different degree
depending on the age of the minor. Therefore, as concerns children, the exploitative element
can be considered as an underlying central element both for “sexual abuse” as defined in
Article 3 of the Directive, for “sexual exploitation” as defined in Article 4 of the Directive, for“offences concerning child pornography” covered by Article 5 and for “solicitation ofchildren for sexual purposes” covered by Article 6.

26

Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011
on combating the sexual abuse and sexual exploitation of children and child pornography,
and replacing Council Framework Decision 2004/68/JHA (OJ L 335, 17.12.2011, p. 1).

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38.

With regard however to the children above the age of sexual consent, Article 8 of the
Directive, which concerns “consensual sexual activities”, explicitly leaves it to the discretionof the Member States to decide whether to apply some of the criminal offences defined in the
Directive to consensual sexual activities between peers who are close in age and degree ofpsychological and physical development or maturity, in so far as the acts did not involve any
abuse. This confirms that the criminal offences provided for by the Directive are based on thelegal presumption that the relationship between an adult and a child entails the exploitation by
the adult of the vulnerable position of the minor.

39.

Nevertheless, it must be stressed that there is a provision of the Directive that appears tofollow a different logic, namely Article 3(5)(iii) thereof. That provision concerns sexual
activities with a child which involve coercion, force or threats. It appears that the main
constitutive element of that crime is not so much in relation to the inherent vulnerability of theminor, but is rather focused on the use of violence as a form of sexual abuse, and concerns not
only cases where the child has not reach the age of sexual consent, but also cases where theminor has reached that age. Admittedly, such a provision is based on an extensive
interpretation of the notion of “sexual exploitation” as comprising crimes centred on sexual
violence, and thus capable of including rape.

40.

It is however still arguable that the situation is different as concerns the crime of rape ofadults, as for the latter, there is not necessarily the exploitation of a position of vulnerability,
differential power, or trust, which, in the case of minors, can be presumed. For adults, theexploitative element of a vulnerability may be linked to specific circumstances, but is not
relevant as such and, in any event, this element is not defined by simply referring to age orsex.

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The CLS notes that Article 45 of the proposed directive would amend Article 3 of the Child
Sexual Abuse and Sexual Exploitation Directive, thereby aligning, in substance, thedefinitions of rape and sexual consent for the child above the age of sexual consent with
Article 5 of the proposed directive concerning the crime of rape against women. This would
introduce the concept of consent in Article 3 of the Child Sexual Abuse and Sexual
Exploitation Directive, thereby further stretching also in this Directive the link with the notionof sexual exploitation in the strict sense. This would entail that the notion of “sexual
exploitation” in Article 83(1), second subparagraph, TFEU, be interpreted as containing two
notion: exploitation in the strict sense and abuse in the sense of sexual violence or rape.
iii)

42.

Relevant EU policy documents.

Apart from EU legal instruments, relevant EU policy documents also seem to confirm that a
cautious approach has been followed when interpreting the scope of the notion “sexual
exploitation”.

43.

In particular, the many reports and communications from the Commission related to the fightagainst trafficking in human beings use the term “sexual exploitation” as relating to the act oftaking unjust advantage of a person for one’s own financial benefit, notably in the context of
trafficking in human beings27. The same is true in the latest “EU Gender Equality Strategy
2020-2025”, which clearly distinguishes, on the one hand, between “sexual exploitation”, as acriminal activity related to trafficking in human beings, and, on the other hand, “gender-based
violence”, including sexual harassment, abuse of women and female genital mutilation28.

27

28

See, for example, the Third report on the progress made in the fight against trafficking inhuman beings (2020) as required under Article 20 of Directive 2011/36/EU on preventing
and combating trafficking in human beings and protecting its victims (COM2020/661 final),
Second report on the progress made in the fight against trafficking in human beings (2018)as required under Article 20 of Directive 2011/36/EU on preventing and combating
trafficking in human beings and protecting its victims (COM/2018/777 final) and Report on
the progress made in the fight against trafficking in human beings (2016) as required under
Article 20 of Directive 2011/36/EU on preventing and combating trafficking in humanbeings and protecting its victims (COM/2016/0267 final).
COM(2020)152 final.

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e)Conclusion on the notion of “sexual exploitation” and on the material scope of
Article 83 TFEU

44.

It follows from the above that both in international instruments and in the EU acquis, thenotion of “sexual exploitation” is generally used in relation to, or as a specific aspect of,human trafficking or, in any event, concerns crimes characterised by a component ofessentially exploitative nature and related to taking unjust advantage of a sexual activity
imposed upon a person in a vulnerable situation. Conversely, the notion of “sexual
exploitation” is generally not used to cover crimes like rape or engaging sexual activity with aperson without his or her consent, of which the essential constitutive element is sexual
violence directly affecting physical integrity and sexual freedom.

45.

Nevertheless, the Council could choose to take a different approach and endorse a more
extensive reading of the legal basis as regards the notion of sexual exploitation of women andchildren, on the basis of two aspects referred to above, namely i) the use of the coordinating
conjunction “and” in the description of the area of crime in Article 83(1) TFEU, and ii) thefact that in the Child Sexual Abuse and Sexual Exploitation Directive, the legal basis of“sexual exploitation of children” has been interpreted somewhat extensively and used in orderto establish minimum rules concerning an offence where the exploitative element is lesspresent but is rather focused on the use of violence as a form of sexual abuse.

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46.

If that were the case, and if the EU co-legislators were to consider rape as being part of thearea of “sexual exploitation of women and children”, the CLS stresses that this would
constitute an important extension of the scope of Article 83 TFEU. Such an extension would
constitute a precedent as regards possible extensive interpretations of the areas of crimes
already established by this provision. In particular, the notion of “sexual exploitation” in thelegal basis would then have to be read as allowing the EU co-legislators to adopt secondary
legislation on all forms of sexual abuse based on violence and, in effect, as covering “sexual
exploitation of persons”. Furthermore, such an extensive interpretation of the areas of crime
already provided for by Article 83 TFEU would entail significant legal risks in case of
litigation. It could also be considered as encroaching on the specific powers conferred on theCouncil to extend the list of “euro-crimes”, as provided for in the third subparagraph of
Article 83(1) TFEU.

47.

A more nuanced approach may be justified for the crime of female genital mutilation, in so far
as genital mutilation is a practice that could be narrowly linked to forms of exploitation ofminors29. It could be argued that it contains an exploitative element, in so far as it affects, to alarge effect, the vulnerable situation of minors and could thus be interpreted as falling within
the scope of “sexual exploitation of children”.

29

Furthermore, it follows from the information gathered by the European Institute for Gender
Equality that female genital mutilation is mostly performed on girls between 0 and 15 yearsof age (World Health Organization (WHO) (2008), Eliminating Female Genital Mutilation:
An Interagency Statement - OHCHR, UNAIDS, UNDP, UNECA, UNESCO, UNFPA,UNHCR, UNICEF, UNIFEM, WHO, Geneva, cited in European Institute for Gender
Equality (2013), ‘Female genital mutilation in the European Union and Croatia — Report’.
See also, European Institute for Gender Equality (2018), Estimation of girls at risk of female
genital mutilation in the European Union, Step-by-step guide, 2nd Edition, Annex 3), in a
family context (Communication from the Commission to the European Parliament and theCouncil “Towards the elimination of female genital mutilation”, p.6. See also World HealthOrganization (WHO) (2008), Eliminating Female Genital Mutilation: An Interagency
Statement - OHCHR, UNAIDS, UNDP, UNECA, UNESCO, UNFPA, UNHCR, UNICEF,UNIFEM, WHO, Geneva, p.5.).

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48.

In order to avoid the legal risks referred to above in paragraph 45, the scope of the second
subparagraph of Article 83(1) TFEU could be extended, in accordance with its third
subparagraph, by means of a unanimous Council decision to be taken on the basis of aCommission proposal (in accordance with the Article 76(a) TFEU), after obtaining theconsent of the European Parliament, in order to add thereto, a new “euro-crime” andconferring on the EU co-legislators the competence to establish minimum rules on thedefinition of criminal offences and sanctions in the field of sexual abuse and sexual violence
concerning persons.

49.

In this context, with regard to the two criteria that need to be fulfilled, as explained above inparagraph 3, the CLS observes that the crimes of rape and female genital mutilation
undoubtedly meet the first criteria set out in Article 83(1) TFEU. They do constituteparticularly serious crimes.

50.

The gravity of those crimes is also evidenced by the fact that both “rape” and “grievous
bodily injury” are mentioned in Article 2(2) of the European Arrest Warrant Decision30,
which lists those serious offences which give rise to surrender pursuant to a European arrest
warrant without verification of the double criminality of the act.

30

Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest
warrant and the surrender procedures between Member States (OJ L 190, 18.7.2002, p. 1).
On rape, see also judgement of 21 June 2022, Ligue des droits humains, C-817/19,
EU:C:2022:491, paragraph 149.

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51.

As regards the second criteria, namely the cross-border dimension of the areas of crime, even
if it is doubtful that those two crimes can be held to have a cross-border dimension by their“nature” or their “impact”, nothing appears to exclude that, on the basis of objective factors,
the Council could, by making use of its margin of discretion, decide that the cross-borderdimension of those crimes would result from “a special need to combat them on a common
basis”, for instance in view of their particular seriousness and the need to ensure an equivalentlevel of protection to persons enjoying the right of free movement within the EU. This could
be the case, for example, if the Council, having assessed the situation objectively, would
conclude that the existing instruments of judicial cooperation in criminal matters are regarded
as insufficient in order to achieve the objectives set out in Article 67(3) TFEU31.

52.

If, however, the Council would decide to maintain in the proposed directive the crime of rape
as defined in its Article 5, on the basis of the same considerations and reasoning set out inparagraphs 18 to 27, such provision would still have to be redrafted in a way that would
ensure its compliance with the non-discrimination principle, as set out in Articles 2 and 3(3)TEU, Articles 8 and 11 TFEU and Article 21 of the Charter.

31

Article 67(3) TFEU provides that “[t]he Union shall endeavour to ensure a high level of
security through measures to prevent and combat crime, racism and xenophobia, andthrough measures for coordination and cooperation between police and judicial authorities
and other competent authorities, as well as through the mutual recognition of judgments incriminal matters and, if necessary, through the approximation of criminal laws.” In thiscontext, it may be noted that the European Parliament has called upon the Council to adopt a
decision enlarging the list of crimes in Article 83(1) TFEU in order “to include violenceagainst women and girls and other forms of gender-based violence in the catalogue of EUrecognised crimes” and then “to use that new area of crime as a legal basis for a holistic
and victim-centred directive of the European Parliament and of the Council to prevent andcombat all forms of gender-based violence, both online and offline”. See European
Parliament resolution of 28 November 2019 on the EU’s accession to the Istanbul
Convention and other measures to combat gender-based violence (2019/2855(RSP)),
paragraph 20, European Parliament resolution of 16 September 2021 with recommendations
to the Commission on identifying gender-based violence as a new area of crime listed in
Article 83(1) TFEU (2021/2035(INL)), paragraph 67 and European Parliament resolution of
14 December 2021 with recommendations to the Commission on combating gender-based
violence: cyberviolence (2020/2035(INL)), paragraphs 55 and 56.

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2)

Legal basis for rules related to cyberviolence (Articles 7 to 10)

53.

The rules related to cyberviolence are set out in Articles 7 to 10 of the proposed directive.
Article 7 of the proposed directive aims at establishing minimum rules concerning thedefinition of the crime of non-consensual sharing of intimate or manipulated material (socalled “revenge porn”), Article 8 concerning cyber stalking, Article 9 covering cyberharassment, and Article 10 concerning cyber incitement to hatred or violence.

54.

Among the areas of crime listed in Article 83(1) TFEU, the second subparagraph lists“computer crime”, which the Commission has indicated as the basis for the adoption of therules set out in Articles 7 to 10 of the proposed directive.

55.

“Computer crime” has been present in the lists of area of crime throughout the process leading
up to the insertion of Article 83(2) TFEU in the current Treaties. This area of crime wasalready present in the conclusions of the Tampere European Council of 15-16 October 1999,
where the terms “high tech crimes” was used in English, and “criminalité utilisant lestechnologies avancées” (i.e. criminality using advanced technologies) in French. During thediscussion in the European Convention, an amendment was proposed, to replace “computer
crime” with “attacks against information systems”32, but it was rejected, thus confirming thatthe intention was not to restrict this provision only to threats to computer infrastructures. The
resulting Article III-271 of the Treaty establishing a Constitution for Europe was taken overunchanged in the Treaty of Lisbon and became what is now Article 83 TFEU.

32

Secretariat of the European Convention, Reaction to draft text CONV 802/03 – Analysis,
CONV 821/03.

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56.

According to the Commission, “[t]he term ‘computer crime’ in Article 83(1) 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 theoffence in terms of quantity, quality, intensity, target selection and duration, to an extent thatcannot be achieved by other means. The minimum rules on crimes amounting to cyberviolence against women under this proposal address such offences, which are intrinsicallylinked to the online environment and the use of such technologies.”33

57.

This definition does indeed correspond to the meaning that has been assigned to these terms in
an EU context. The EU binding instruments adopted in the area have focused on one aspect ofcomputer crime, namely threats to computer infrastructure34. Nevertheless, EU policy
documents confirm that the area of computer crime (also referred to indifferently as “hightech crime”, “computer-related crime” or “cybercrime”) has been consistently understood ascovering two types of threats: not only threats to computer infrastructures but also computerassisted threats35.

33
34

35

Explanatory memorandum.
Council Framework Decision 2005/222/JHA of 24 February 2005 on attacks against
information systems (OJ L 69, 16.3.2005, p.67) and Directive 2013/40/EU of the European
Parliament and of the Council of 12 August 2013 on attacks against information systems andreplacing Council Framework Decision 2005/222/JHA (OJ L 218, 14.8.2013, p. 8) focus on
threats to computer infrastructure.
See, for example, Explanatory memorandum for the Proposal for a Council Framework
Decision on attacks against information systems (COM(2000)173), Commission
Communication Towards a general policy on the fight against cybercrime (COM(2007)267),
Council Conclusions of 27-28 November 2008 on a Concerted Work Strategy and Practical
Measures Against Cybercrime (doc. 15569/08), Council conclusions of 26 April 2010 on an
Action Plan to implement the concerted strategy to combat cybercrime (doc. 5957/2/10 REV2), Explanatory Memorandum for the proposal for a Directive on attacks against information
systems and repealing Council Framework Decision 2005/222/JHA (COM(2010)517) andCommission and High Representative Joint Communication Cybersecurity Strategy of theEuropean Union: An Open, Safe and Secure Cyberspace (JOIN(2013)01).

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58.

That interpretation is corroborated by a systematic and contextual reading of the provision:–

First, the areas of crime listed in Article 82(1), subparagraph 2, TFEU, one of which is“computer crime”, are indeed “areas of particularly serious crime with a cross-borderdimension resulting from the nature or impact of such offences or from a special need tocombat them on a common basis”.

–

Second, both threats to computer infrastructures and computer-assisted threats, by their natureand their impact, have an inherent cross-border dimension, linked to the cross-border natureof information and communication systems. Both threats to computer infrastructures andcomputer-assisted threats are particularly serious. As concerns computer-assisted crime,
beyond the intrinsic seriousness of the underlying criminal activities potentially involved(child sexual abuse, psychological violence, hate speech, drugs and arms trafficking, etc.), andas mentioned by the Commission in the explanatory memorandum of the proposed directive,
the use of computers has an amplification effect which increases the harm caused and thus theseriousness of the offences36.

59.

In the light of the foregoing considerations, having regard not only to the wording of Article
83(1) TFEU but also to its origins, context and aim, the CLS considers that the terms“computer crime” in Article 83(1) TFEU may be read as allowing the adoption by the EU colegislators of minimum rules on computer-assisted crime.

36

In this context, it may be noted that, according to the case-law, a distinction must be drawn
between the definition of an area of crime, which is linked to the seriousness and the crossborder nature of the crimes at stake, and the competence of the EU co-legislators to adopt
minimum rules, which does not cover solely situations in which the elements inherent in thecommission of a particular offence are confined within a single Member State (see, to thiseffect, judgment of 21 October 2021, Okrazhna prokuratura – Varna, C-845/19,
EU:C:2021:864, paragraph 33). This would appear to mean that, provided that the minimum
rules adopted by the EU co-legislators relate to an area of serious crime with a cross-borderdimension, the specific rules themselves may relate to situation which, by themselves andtaken in isolation, do not necessarily have a cross-border dimension, or, by inference, are notnecessarily serious.

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MEASURES PROTECTING SPECIFIC VICTIMS AND COMPLIANCE WITH THE
PRINCIPLE OF NON-DISCRIMINATION

60.

Beyond the issue of the legal basis for the above-mentioned substantive criminal provisions of
the proposed directive, the CLS was asked to examine whether establishing measures which
only apply to specific victims, namely victims of violence against women and domestic
violence, was legally appropriate in light of the principle of non-discrimination.

61.

According to consistent case-law, the principle of equal treatment, as a general principle of
EU law, requires that comparable situations must not be treated differently and different
situations must not be treated in the same way unless such treatment is objectively justified37.
A breach of the principle of equal treatment as a result of different treatment presumes thatthe situations concerned are comparable, having regard to all the elements which characterise
them. The elements which characterise different situations, and hence their comparability,
must in particular be determined and assessed in the light of the subject-matter and purpose of
the EU act which makes the distinction in question. The principles and objectives of the field
to which the act relates must also be taken into account38.

37
38

See judgment of 16 December 2008, Arcelor Atlantique et Lorraine a.o., C-127/07,
EU:C:2008:728, paragraph 23 and the case-law cited.
See judgment of 16 December 2008, Arcelor Atlantique et Lorraine a.o., C-127/07,
EU:C:2008:728, paragraph 25 and 26 and the case-law cited.

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62.

As regards victims’ rights, the aim of the proposed directive is to establish minimum rules forthe victims of violence against women and domestic violence. As indicated in the explanatory
memorandum and as follows implicitly from the preamble of the proposed directive, theobjective is to complement the rules set out in the Victims Directive39, in order to cater for the
specific needs of victims of violence against women and domestic violence. Judicial
cooperation in criminal matters in the EU, to which the relevant provisions of the proposed
directive relate, aims, in accordance with Article 82(2) TFEU, to facilitate mutual recognitionof judgments and judicial decisions and police and judicial cooperation in criminal matters
having a cross-border dimension, in particular with regard to the rights of victims of crime40.

63.

In relation to the subject-matter of the proposed directive, its objectives and the principles on
which judicial cooperation in criminal matters in the EU is based, the different categories ofvictims of crime are not necessarily in a comparable situation, depending on their specificvulnerabilities, on the type of harm suffered or on other relevant characteristics. A differencein treatment between categories of victims may thus be justified.

39

40

Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012
establishing minimum standards on the rights, support and protection of victims of crime,and replacing Council Framework Decision 2001/220/JHA (OJ L 315, 14.11.2012, p. 57)
It may be noted, in this regard, that the measures based on Article 82(2)(c) TFEU are notlimited to minimum rules on the rights of victims of crimes which have been made subject
to minimum rules based on Article 83(1) TFEU or of the “euro-crimes” listed in Article
83(1) TFEU. It is therefore possible to adopt such measures also for victims of crimes which
are not subject and cannot be subject to EU minimum rules of substantive criminal law. It
appears to have been the intention of Article 3 of the proposed directive to provide that
Member States will have to ensure that all victims of acts of violence against women or
domestic violence will have to benefit from the minimum rules on the rights of victims
contained in the proposed directive, whether the offences are criminalised under EU law or
under national law. Such an approach is legally possible. However, the drafting andplacement of such a provision could be adapted in order to avoid any misunderstandings on
its scope.

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64.

However, this needs to be assessed for each provision that creates a difference in treatment, inorder to ensure that such difference in treatment is justified by the specificities of the situationof the categories of victims concerned. Such justification must be adequately reflected in thepreamble of the proposed directive.

65.

In other words, the EU co-legislators may provide specific rights to specific victims, andtherefore exclude other victims from their benefit, provided the latter are in a different
situation from the former. If they are in the same situation, excluding them from those rights
would constitute discrimination. Moreover, when the EU co-legislators provide for specificrights to specific victims, the justification for the difference in treatment must be set out in thepreamble to the directive.

66.

In the present case, for many provisions of Chapters 4, 5 and 6 of the proposed directive,
which are targeted at violence against women and domestic violence and victims of cyberincitement to violence or hatred, this justification is not immediately apparent and not spelled
out in the recitals.

67.

First, some of the key terminology used in the directive is unclear41 and potentiallymisleading. Indeed, the terms “victims of violence against women and domestic violence”,
used in many of the provisions of Chapters 3 to 6 of the proposed directive, would give theimpression that the rules contained therein are addressed only to victims who are women or
victims of domestic violence. This is compounded by the fact that Article 4(a) of the proposed
directive defines “violence against women” as “gender-based violence” so, presumably,
violence based on the gender of the person.

41

See also, on this point, the two negative opinions of the Regulatory Scrutiny Board,
SEC(2022)150, which, concerning the impact assessment report, indicated that “[t]he reportstill needs to define more clearly the differences between the concepts of violence against
women as opposed to gender-based violence against women and domestic violence affecting
all victims and use the clarified definitions consistently throughout the report.”

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68.

However, it follows from Article 4(a) that “violence against women” is a category of crimes
that not only includes violence which only affects women42 but any “gender-based violence(…) which affects women or girls disproportionately” so, presumably, irrespective of the sexof the victim. Moreover, Article 4(c) provides that victim means “any person, regardless ofsex or gender, unless specified otherwise”. Finally, “gender-based violence” is defined in thepreamble of the Victims Directive as “Violence that is directed against a person because ofthat person's gender, gender identity or gender expression or that affects persons of aparticular gender disproportionately”. So this notion goes beyond violence based on thegender of the person.

69.

The gender-neutral nature of “violence against women” appears to be corroborated by
Recital 5, which states that:“The measures under this Directive have been designed to address the specific needs ofwomen and girls, given that they are disproportionately affected by the forms of violence
covered under this Directive, namely violence against women and domestic violence. This
Directive, however, acknowledges that other persons may also fall victim to these forms ofviolence and should benefit from the measures provided for therein. Therefore, the term
‘victim’ should refer to all persons, regardless of their sex or gender”. (emphasis added)70.

Nevertheless, the ambiguity created by the apparent contradiction between the expression
used and its definition creates a significant legal uncertainty, which is a problem in itself for alegislative act which aims at “facilitat[ing] mutual recognition of judgments and judicial
decisions and police and judicial cooperation in criminal matters having a cross-borderdimension” (Article 82(2) TFEU).

71.

Moreover, the use of a criminological definition in Article 4(a) of the proposed directive(“violence (…) that affects women or girls disproportionately”) and an open-ended list ofcrimes contained in Recital 4 adds to the uncertainty of the scope of the victims’ rights.

42

Such as femicide, female genital mutilation or forced abortion.

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72.

The above drafting problems could be addressed by ensuring consistency with the existing
acquis and use the terminology of the Victims Directive, namely “gender-based violence”(see Article 9(3)(b) of the Victims Directive and Recital 17)43. Another approach could be to
streamline and clarify the definition of “violence against women” in the operative provisions,in order to make clear that it is a category of violence, irrespective of the sex of the victim44.

73.

Second, it is not always clear from the recitals why the victims of sexual violence or domestic
violence should be the only victims benefitting from certain rights, and not, for example, othervictims of serious crimes suffering from comparable “physical, sexual, psychological or
economic harm”45, vulnerable victims of other crimes or victims of forms of hate speech notcovered by Article 10 of the proposed directive.

74.

This is particularly the case as “violence against women” has a very wide scope and covers
homicide (femicide), sexual violence (rape, sexual abuse), sexual exploitation of children andtrafficking of human beings for the purpose of sexual exploitation (covered by Directives
2011/93 and 2011/36), early and forced marriage, forced abortion, forced sterilisation, on-line
harassment incriminated by the proposed directive (non-consensual sharing of intimate ormanipulated material, cyber stalking, cyber harassment, cyber incitement to violence against
persons defined by reference to sex or gender) or which may be incriminated at national level(online sexual harassment, cyber bullying or the unsolicited receipt of sexually explicit
material), and off-line harassment (sexual harassment, stalking)46.

43

44

45
46

A further inconsistency between the Victims Directive and the proposed directive whichshould be addressed is the notion of “domestic violence”, which appears to have a quasiidentical scope to “violence in close relationships”, defined in Recital 18 of the Victims
Directive and used in Articles 9(3)(b), 22(3), 23(2)(d) and 26(2) of the Victims Directive.
A possible definition could be: “‘violence against women’ means all forms of violence that
only affect women or that affect women disproportionately, irrespective of the sex of thevictim, including all acts of such violence that (…)”.
See Article 4(a) of the proposed directive.
See Recital 4 of the proposed directive.

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75.

This affects several provisions of the proposed directive. To give a few examples, in no way
exhaustive, it would need to be better justified in the recitals why facilitated reporting ofcrimes, including online, set out in Article 16(1), should be limited to victims of violenceagainst women and domestic violence, and should not also benefit to other vulnerable victims
or victims of violence in general.

76.

Similarly, it should be clarified why specific rules on reporting on the residence status of a
victim to competent migration authorities, set out in Article 16(5), should not also benefit toother vulnerable victims or victims of violence in general. The same is true as regards thebenefit of the specific obligations on the speedy processing of complaints (Article 17(2)) andobligations to record and investigate allegations of sexual violence and domestic violence(Article 17(3)), which could benefit in the same way to other vulnerable victims or victim ofviolence in general.

77.

It should be examined whether it would not be justified to extend measures to remove certain
online material (Article 25) to other victims, beyond those victims of incitement to violence or
hatred against a group of persons or a member of such a group defined by reference to sex orgender, including to victims of other forms of hate speech, some of which is already covered
by EU secondary legislation, such as public incitement to discrimination, violence or racial
hatred in respect of a group of persons or a member of such a group defined by reference tocolour, race, religion or national or ethnic origin47.

78.

Another question is whether specialist support to victims (Article 27) should not be extended
to all “victims with specific needs” in general, as defined in Article 9(3) of the Victims
Directive as “victims with specific needs, such as victims of sexual violence, victims ofgender-based violence and victims of violence in close relationships”.

47

Joint Action 96/443/JHA of 15 July 1996 adopted by the Council on the basis of Article K.3of the Treaty on European Union, concerning action to combat racism and xenophobia (OJ
L 185, 24/07/1996, p. 5).

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79.

It remains unclear why the specific measures related to shelters and other interim
accommodations (Article 32) should be limited to “women victims of domestic violence andsexual violence” (emphasis added), not also benefit to all other “victims in need of a safe
place due to an imminent risk of secondary and repeat victimisation, of intimidation and of
retaliation”, referred to in Article 9(3) of the Victims Directive, which establishes theobligation for Member States to develop and provide such shelters.

80.

To take a last example, it should be envisaged whether to extend measures to allow for safe
contact between a child and a holder of parental responsibilities who is an offender or suspectof violence against women or domestic violence (Article 34) to all situation where a childenters into contact with a violent offender.

81.

In order to address the issue, and depending on what is considered appropriate, the EU colegislators could either explain what justifies the differences in treatment, or widen the scopeof the rights in order to include all victims which are in the same situation, or clearly specify
the victims targeted by the measures, so that the justification for the difference in treatment isimmediately apparent48.

82.

It follows from the above that for the rules set out in Chapters 3, 4 and 5, the text of the
proposed directive should clarify the victims to which the rules apply, by using terminology
and definitions guaranteeing sufficient legal certainty. Moreover, it should be ensured that
adequate justification for differences in treatment between victims is provided in the preambleof the proposed directive or, alternatively, if that is not possible, that the scope of thebeneficiaries of the rights set out in the articles of the proposed directive in Chapters 3, 4 and
5 is adapted in so far as necessary to ensure that there is no unjustified difference in treatment
between victims which are in a comparable situation.

48

This targeted approach was used in the proposed directive, for example, for Article 12(specialist support for victims of sexual violence), Article 30 (specialist support for victimsof sexual harassment at work), Article 33 (support for child victims), or Article 35 (targeted
support for victims with specific needs and groups at risk).

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83.

In view of the above, the Council Legal Service is of the opinion that:a)Having regard to the origins, the context and the aim pursued by Article 83 TFEU, as well as
the relevant EU and international law instruments and policy documents, the area of crime“trafficking in human beings and sexual exploitation of women and children” concerns crimes
characterised by a component of essentially exploitative nature, which therefore does notcover crimes like rape, of which the essential constitutive element is sexual violence.

b)

However, given that the notion of “sexual exploitation” was already interpreted extensively
by the EU co-legislators in Article 3(5) iii of the Child Sexual Abuse and Sexual Exploitation
Directive, with the objective of protecting minors, the Council could choose to consider thatthe notion of “sexual exploitation” set out in Article 83(1) TFEU may include, to a certain
extent, other crimes based on sexual violence such as the crime of rape. Nevertheless, such a
reading i) would set a precedent as concerns the extensive interpretation of Article 83 TFEU,ii) would require, in order to comply with the principle of non-discrimination, that the notion
be, in effect, interpreted as referring to the “sexual exploitation of adults” or rather “sexual
exploitation of persons” and that the crime of rape as defined in Article 5 of the proposed
directive be redrafted in a gender-neutral way, and iii) would entail significant legal risks incase of litigation, notably a risk of annulment of the relevant provisions of the proposed
directive.

c)

In order to avoid the above-mentioned legal risks, the Council could choose to extend the listof “euro-crimes” set out in the second subparagraph of Article 83(1) TFEU, by following theprocedure set out in the third subparagraph, in order to add thereto a crime related to sexual
abuse and sexual violence concerning persons.

d)

The crime of female genital mutilation can be interpreted as falling within the scope of“sexual exploitation of children”, in so far as it affects, to a very large extent, the vulnerable
situation of minors.

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The terms “computer crime” in Article 83(1), second subparagraph, TFEU can be read asallowing the adoption, by the EU co-legislators, of minimum rules on computer-assisted
crime, namely concerning the definition of the crime of non-consensual sharing of intimate ormanipulated material (so-called “revenge porn”), cyber stalking, cyber harassment, and cyberincitement to hatred or violence, as aspects of the area of crime of computer crime.

f)With a view to complying with the principle of non-discrimination, the drafting of the rules
set out in Chapters 3, 4 and 5 and the related recitals in the proposed directive should be
redrafted so as to clarify the victims to whom the rules apply – by using terminology anddefinition guaranteeing sufficient legal certainty – so as to provide adequate justification forany difference in treatment between victims and so as to adapt the scope of the beneficiariesof the rights.

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