EUROPEAN COMMISSION Strasbourg, 8.3.2022 SWD(2022) 61 final COMMISSION STAFF WORKING DOCUMENT Follow-up to the second opinion of the Regulatory Scrutiny Board and additional information Accompanying the document PROPOSAL FOR A DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on combating violence against women and domestic violence {COM(2022) 105 final} - {SEC(2022) 150 final} - {SWD(2022) 60 final} - {SWD(2022) 62 final} - {SWD(2022) 63 final}



Table of Contents 1.Introduction 2.Findings of the second opinion of the regulatory scrutiny board 3.Baseline – what has been achieved at Member State level so far 4.The objectives and the need for a comprehensive approach 5.Expected impacts, Costs and Benefits, subsidiarity, and Proportionality considerations Annex 1Detailed comparison how the proposed measures compare with the results of the gap analysis of existing Member States’ and EU legislation Annex 2New tables on costs and benefits, including the OI-OO view



1.Introduction The present document has been compiled to ensure an optimal transparency and tractability of the lawmaking process preparing the proposal for the Directive on combating violence against women and domestic violence. It presents and explains additional evidence and clarifications and thus demonstrates that the comments and observations of the Regulatory Scrutiny Board, hereafter “the Board”, on the impact assessment of the proposal have been adequately addressed. The impact assessment supporting the legal proposal for the Directive was submitted to the Board on 15 September 2021. A hearing of the Board took place on 13 October 2021. On 18 October 2021, the Board issued a negative opinion on the draft impact assessment. A revised version of the impact assessment was submitted on 1 December 2021. The Board issued a second negative opinion on 12 January 2022, based mainly on the insufficient quality of the evidence base as presented in this second submission. This document complements the regular and standard documents that are submitted with the Commission proposal to the co-legislators, namely the Impact assessment report, the subsidiarity grid, and the Explanatory Memorandum. With the same aim of ensuring the highest possible level of transparency and tractability, the Impact assessment report has not been changed compared to the version that was re-submitted for scrutiny by the Board. In this manner, the Impact assessment report is preserved, as a document, in the form that has triggered the observations and comments by the Board in its final opinion of 12 January 2022. It is important to note 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, which was presented for adoption at a later stage. The presented proposal has benefited from the further substantiated evidence, presented in this document. Reflections on the issues raised by the Board and changes that have been made to the proposal are also explained below. The remainder of the document is structured as follows: Section 2 summarises the outcomes of the scrutiny by the Board. Section 3 presents additional evidence in the form of a head-to-head comparison of the main structural elements of the proposed directive with the gap analysis carried out for existing rules in this important policy area at both the level of EU Member States and EU level. Section 4 recalls the objectives and provides additional clarifications as to why, as also confirmed by the additional gap analysis, a comprehensive approach was retained for legislating in this policy area. Section 5 groups a number of replies to the more technical observations of the Board on the dimensions of the expected impacts, estimated costs and benefits, subsidiarity and proportionality considerations. The latter two aspects of subsidiarity and proportionality are also presented in the so-called subsidiarity grid that is published as a separate staff working document accompanying the directive. The document also contains two annexes: Annex 1 compares the proposed legislative measures (provision by provision) with the findings of the gap analysis. Annex 2 contains the detailed data on estimated costs and benefits. 2.Findings of the second opinion of the regulatory scrutiny board

After submission of the first impact assessment to the Board, a hearing took place on 13 October 2021. On 18 October 2021, the Board issued a negative opinion on the draft impact assessment. A revised version of the impact assessment was submitted on 1 December 2021, that responded to the comments given by the Board. In particular, the revised impact assessment clarified the scope of the initiative, presented a more focused problem description showing the specificities related to violence against women and domestic violence, inserted a gap analysis at EU and at Member State level and highlighted the limitations in the evidence concerning the impact of the existing measures taken at Member State and EU level. The revised impact assessment also clarified the content of the policy options, inserted options that were discarded at an early stage, and presented the expected impacts in a clearer manner (going from prevalence reduction to strengthening of victims’ rights). It also contained detailed information on the estimated costs and benefits of the options discussed. While noting the efforts made to improve the draft impact assessment in response to its initial comments, the Board nevertheless maintained its negative final opinion on 12 January 2022, referring to the following significant shortcomings: 1.the baseline not sufficiently reflecting the impact of several actions at EU and Member State level; 2.the overall objective of the proposal not being sufficiently clear, and the need for a comprehensive approach not sufficiently justified; 3.the concrete measures, as well as the combination of specific measures in different options being unclear; as a result, an uncertainty whether the structure of the options ensures that the best possible set of measures is selected as the preferred option; 4.the revised analysis of costs and benefits not fully incorporating the revised set of options; comparison of options being unclear including in terms of the criteria and scoring methods used; 5.proportionality of the preferred option, including the chosen lex specialis approach. In addition to these five negative comments, the Board provided thirteen suggestions for improvement that are summarised in the following: -In addition to the gap analysis, to bring out more clearly where individual Member States still lack measures to comply with the standards of the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention), including the 6 Member States that have not yet ratified the Istanbul Convention. In addition, the Board asked to identify best practices observed in some Member States and going beyond the Istanbul Convention’s requirements to allow a proper assessment of the scale of the problem and its evolution under the baseline. Also in relation to the baseline, the future impacts of recent measures at Member State level should be better taken into account, both in terms of known time lags of expected impacts and in terms of cost estimates. These suggestions are addressed in section 3 and in Annex 1. -A number of other points in the opinion recommend using more precise language and clarifications with regard to the instrument of minimum harmonisation and the precise content of options. The opinion also points out that additional options could have been developed, including by combining selective soft and hard law measures. In response to this, the questioned reasoning of the impact assessment that only a comprehensive approach can deliver on the stated policy objectives is revisited and made more precise in section 4 below. -The remainder of the recommendations for improvement tackle a number of diverse and technical methodological issues. These include the request to increase the SMARTness of objectives, to reconsider the scoring methodology used and to better explain the data used (including its limitations), missing dimensions in the cost tables, missing stakeholder views at the Member State level, and a better link of evidence with the dimensions of proportionality and subsidiarity. These shortcomings identified by the Board are addressed in section 5 below, together with the improved cost table in the annex and the subsidiarity grid, submitted as a staff working document, published at the same time as the legal proposal. 3.Baseline – what has been achieved at Member State level so far As suggested in the Board’s opinion, this section highlights the findings of what has been achieved in this policy area at Member State level so far and is therefore taken up in the baseline. In doing so, the section 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 the lack of response to the evolution stemming – among others - from developments in the digital sphere. The following elements have been developed to address the comments on the baseline and comprehensiveness of assessing the level of achievements in this policy area before introducing the proposed new set of measures: An additional analysis summarises the main gaps in implementation at EU and Member States level (Annex 1). It further demonstrates the intended impact and added value at EU level for each of the draft directive’s provisions and explains how the draft directive adds value to the already existing rules at national level (both in those Member States that have ratified the Convention and those that have not) and at EU level. By means of a comparison table, the additional analysis makes it easier to see and understand how the draft directive (i) responds with more targeted actions where the current rules have proven to be insufficient (such as in the area of victims’ support), (ii) adds consistency to the currently uneven level of prevention and access to justice at national level (including via criminalization of certain forms of crime), and (iii) strengthens coordination at national and EU level. It further demonstrates how the provisions of the draft directive reflect best practices gathered through the monitoring of the Istanbul Convention. In relation to the Board’s comment that the it has not been justified why the problem analysis has not followed an all victims’ inclusive approach (including men and non-binary people), the text of the proposal explains that the initiative focuses on the specificity of women’s experiences of violence as distinct from those of men and proposes measures to respond to these specific experiences. It also takes into account that women present the vast majority of victims of these types of violent acts. At the same time, it clarifies that the draft directive does not exclude men and non-binary people from its scope. The only exception is the criminalisation of female genital mutilation and rape, which had to be limited to women because the legal basis only refers to women. All other criminal offences apply to all victims, not only women. Moreover, the provisions concerning victim support and protection, access to justice, prevention and coordination, while being tailored to this kind of violence which mainly affects women, do not exclude men and non-binary people, who can also become victims of the forms of violence covered by the Directive. This choice also reflects the outcomes of comprehensive targeted consultations among the Member States, non-governmental and international organizations, in support of the impact assessment and of the gap analysis of the existing legislative framework. In relation to the Board’s request to better demonstrate why the existing problems cannot be tackled by amending the existing EU instruments (e.g. Victims’ Rights Directive, Gender Equality Directives, etc.), further explanations are provided in section 4 below. In relation to the Board’s specific comments about the insufficient consideration of the development of the baseline scenario, it is important to note that the present estimates have taken into account lower costs for Member States that have already introduced measures at national level. Even if very little data are available on the efficiency of the measures at national level, whether for the implementation of the Istanbul Convention or otherwise, it may be anticipated that these, and any further measures Member States would take, will continue to produce a positive long-term impact at the national level. It has to be acknowledged though that difficulties in the comparability of data available at national level continue, and will continue, to cause problems in the quantification of estimates. The measures relating to data gathering and the production of official statistics by Eurostat in the proposed directive are important to address this in the longer term. Table 1 provides a summary overview of the gap analysis at EU level, whereas the detailed comparison between the proposed Directive and the existing measures in this policy area at EU Member State level is provided in Annex 1. Table 1 summarises to what extent the 14 instruments at EU level containing legally binding provisions have addressed the five relevant policy areas - prevention, protection, access to justice, victim support and policy coordination. The new analysis in Annex 1 draws a much more comprehensive picture, also addressing the Board’s observations of not having documented the status quo at Member State level sufficiently.

Table 1: mapping 14 instruments at EU level onto the relevant policy areas As this overview table indicates visibly, and as is even clearer from the detailed analysis that has additionally been provided in Annex 1, the existing measures have overall proven insufficient to achieve the objectives of an adequate protection of victims of violence against women and domestic violence (see also next section). In this regard, the gap analysis has clearly demonstrated the need for action and potential for the comprehensive approach that is further explained in the next section. 4.The objectives and the need for a comprehensive approach The main objective of the proposed initiative is to prevent and combat violence against women and domestic violence, which are a daily reality in the EU. Concretely, the initiative aims to incorporate and enhance the standards of the Istanbul Convention in the existing EU policy framework on violence against women and domestic violence, thus pursuing the objectives of the Istanbul Convention within the area of EU competences. This is achieved by doing two things: first, by filling legislative gaps at the EU and national levels, and second, by updating EU law in comparison to the standards of the Istanbul Convention in the areas of digital transformation (in relation to cyber violence) and to those of more recent international developments (in relation to sexual harassment at work). On the Board’s specific comments regarding the lack of clear objectives, this document clarifies the objective of the proposal, which is to prevent and combat violence against women and domestic violence as criminal acts and as forms of discrimination. The text of the draft directive further clearly outlines its main objectives, explaining that these objectives shall be achieved by criminalising certain forms of violence against women (including rape 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. In response to the suggestion of the Board to justify why a comprehensive approach is necessary, the additional analysis in this document provides further evidence of the weaknesses of the current framework (including the gaps in legislation and practice at the national level) and of the patchwork of standards that only selectively responds to the specific needs of victims of violence against women and domestic violence at the EU level. This additional analysis further corroborates the conclusion that such selective standards are insufficient to ensure adequate support and protection of victims of such forms of violence. It better explains that each of the measures envisaged by the directive responds to a gap in the national legal and policy framework, thereby justifying that comprehensive action in all these areas is indispensable to tackle effectively the complexity and prevalence of violence against women and domestic violence. The directive entails provisions which: • criminalise certain forms violence, • lay down preventive measures, • strengthen the protection of and support to victims, • ensure better access to justice, and • improve coordination among the relevant actors including police, judiciary, support services and other services that come into contact with victims (such as health and social service staff). The comprehensive approach is characterised, on the one hand, by the EU level criminalisation and, on the other hand, by the provision of specific protection, access to justice, support, prevention and coordination measures. It has been inspired by the EU rules in the areas of trafficking in human beings, sexual exploitation of children and countering terrorism. Implementation reports of the directives in the above-mentioned areas demonstrate that comprehensive approaches taken by the EU legislator in these areas have proven their effectiveness with regard to this group of crime victims. The proposed draft directive introduces targeted minimum rules, allowing Member States to provide higher standards under national law. The minimum rules are based on the best practices of those Member State that have transposed particular provisions of the Istanbul Convention effectively (thus directly addressing a recommendation by the Board). They take into account the requirements of the Istanbul Convention in the area of the EU competences and include them as benchmarks. When it comes to those aspects of the draft proposal that are not explicitly regulated by the Istanbul Convention, such as cyber-crime and support for victims of sexual harassment at work, the minimum standards are built on the best practices stemming from the public consultations, other international standards and the gap analysis of the national and EU legislation that is documented here. All the measures have been assessed against the overall objective of preventing and combating violence against women and domestic violence, as well as the other objectives that are intended to ensure: ðthat victims and potential victims of violence against women and domestic violence are effectively protected from (further) violence, ðthe effective access to justice for victims of all forms of violence against women and domestic violence, ðthe effective availability of support for victims of all forms of violence against women and domestic violence,

ðthat sexual harassment at work is effectively addressed, and ða more effective coordination in relation to violence against women and domestic violence, including gaps in data collection. The impacts of the measures have been assessed in terms of their social dimension as well as how they ensure the respect of fundamental rights. The detailed findings of this assessment had already been included as Annex 5 of the revised Impact Assessment submitted on 1 December, which has not been changed and is published together with the legal proposal and the present document. In response to the Board’s suggestion to clarify why existing horizontal instrument cannot tackle the specific problems, it should be flagged that the Victims’ Rights Directive and the EU rules on protection orders provide for general rules applicable to all victims of crime, including victims of gender-based violence and victims of domestic violence. In total, 14 EU instruments are relevant to various aspects of combating violence against women and domestic violence. However, the selective standards contained in these acts are insufficient to ensure adequate protection of and support to victims of violence against women and domestic violence, which is of a very specific nature and thus requires a specific approach. This is illustrated by the following Table 2, which provides a traffic light overview visualisation of how these instruments compare across the various dimensions used for the better law-making assessment. Table 2. Good To some extent To a limited extent Poor From the perspective of GBV/DV Effectiveness Efficiency Coherence Relevance EU added value Victims’ Rights Directive (2012) n/a EPO instruments n/a Compensation to Crime Victims Directive (2004) n/a Child Sexual Abuse Directive (2011) Anti-Trafficking Directive (2011) n/a Reception Conditions Directive (2013) (recast) n/a Asylum Procedures Directive (2013) n/a Return Directive (2008) n/a Qualification Directive (2011) n/a Equality Directives n/a Article 16 of the UNCRPD n/a Only the comprehensive approach of the present initiative effectively addresses the weaknesses of the current patchwork of measures, which are characterised by the identified gaps in legislation and practice at the national level (listed in the previous section and in Annex 1) and that only selectively respond to the specific needs of victims of violence against women and domestic violence at EU level. Moreover, the mentioned acts do not criminalise offences of violence against women and domestic violence in general. The directives targeting specific criminal offences – such as the Anti-Trafficking Directive and the Child Sexual Abuse Directive – protect selective groups of victims from very specific forms of crimes. This results in the current situation where all EU acts, relevant for preventing and combating violence against women and domestic violence, as separate acts together do not provide the necessary basis for monitoring their implementation in a comprehensive and coherent manner from the perspective of victims of violence against women and domestic violence. At the level of Member States, this is even more hindered by a lack of uniform definitions that hamper the comparability of data collected for the purpose of monitoring. To allow a better monitoring and implementation of actions it is again a comprehensive approach with a targeted single EU act that can best deliver on this objective – rather than following an alternative option, such as amending all of the existing EU rules (e.g. Victims’ Rights Directive, European Protection Order instruments, Gender Equality Directives). Policy options When addressing the Board’s specific comments on the comparison of policy options, it is important to recall that four alternative options have been considered: -a recommendation (non-legislative option) ensuring a gender-sensitive application of the existing EU law to this group of victims; -an instrument covering only one specific problem area, e.g. prevention; -an amendment of the 14 existing instruments of EU law that are considered relevant to combat violence against women; and -the addition of Gender-based violence to the list of “EU crimes” in Art. 83 (1) of the TFEU. The analysis contained in the resubmitted impact assessment aimed to demonstrate that none of these alternatives could achieve the objectives sought by the initiative. The additional analysis provided in this document, based on the evaluation of relevant EU acts and the mapping and gap analysis of Member State legislation, aims to further support this. It should have become much clearer why a comprehensive approach – a specific directive on violence against women and domestic violence – was chosen rather than an amendment of existing horizontal instruments. In particular, a core measure, such as the criminalisation of certain behaviours, cannot be achieved by mere amendments of the existing EU rules, including those on victims’ rights. The evaluation and the stakeholder consultations have shown support for combining criminalisation with specific protection, prevention, access to justice, support and coordination measures that respond more directly to the specific needs of victims of violence against women and domestic violence. The rules will apply in addition to the rules laid down in the Victims’ Rights Directive, thus constituting a so-called lex specialis to that directive. As regards the choice of the preferred policy option, and more specifically how it has been brought more in line with the principle of proportionality, the next section provides more details..

5.Expected impacts, Costs and Benefits, subsidiarity, and Proportionality considerations On the Board’s specific comments on the analysis of impacts, the additional analysis in Annex I better acknowledges that some measures at Member State level may have an impact only in the years to come, and clarifies that this future impact has indeed been taken into account. In addition, a revised version of the cost table is attached in annex 2 of this document (as an update of Annex 3 of the impact assessment), which now clearly separates the costs for businesses and public authorities. The impact on national budgets and administrations is expected to amount to €4.9 – €6.5 billion per year. Nonetheless, the positive economic impacts regarding the reduced prevalence of violence against women and domestic violence, would bring benefits of €8.2 - €10.6 billion per year, clearly outweighing the costs. No special measures are provided for SMEs, but the potential costs for employers are limited to the participation of managers to a two-hour online training, estimated at €55 per SME and €5.750 per large company per year (the EU-27 average recurring cost of attending training for managers). On the comparison methodology applied to options, it is acknowledged that the scoring method assigns different weighs to the better regulation criteria of effectiveness, efficiency, and coherence. The effectiveness criterion was considered particularly important, considering that the main impact of the draft directive is linked to better safeguarding fundamental rights. As regards the Board’s criticism regarding assigning the comprehensive approach option a higher qualitative score for total net benefits than for the moderate option, it should be noted that it is not a cardinal scoring method, i.e., it puts the focus on the order of the scoring of the options and does not allow the comparison of ratios which precludes a standard cost efficiency approach. The comparison of costs and benefits of the preferred option underlying the proposed directive has been complemented by the approach required since January 2022 under the revised Better Regulation Guidelines. This includes the overview of the administrative burden that needs to be offset in line with the one in – one out principle (OI-OO). The additional tables are included in Annex 2 to this document. However, the headline figures calculated for total estimated costs and benefits for the preferred policy option that underlies the proposal have not changed. This lack of change stems from the fact that adjustments made to the preferred options have emerged from the additional subsidiarity analysis that has been carried out by Commission services (and that is reflected in a detailed manner in the separate subsidiarity grid). This analysis has identified that in light of existing measures at Member State level, the directive could be less prescriptive and leave more flexibility to Member States in the implementation of the new rules. The changes are also quite marginal in terms of costs and did not trigger a revision of the costing of options. A subsidiarity assessment grid has been completed and is published as a separate document with the legal proposal. It explains in detail how the principle of subsidiarity has been respected. On the principle of proportionality, it is important to clarify that the proposal presents a lex specialis to the Victims’ Rights Directive. It has been carefully drafted in order to ensure that the proposed measures do not exceed what is necessary to achieve the objectives and to leave a maximum of flexibility to the Member States, allowing them to adjust the minimum rules to the specificities of their national judicial schemes. For instance: - A separate provision specifies that the draft directive provides for minimum rules which can be surpassed by the Member States; - The proposal limits criminalisation at EU level to those acts where gaps or deficiencies have been identified at the national level (rape, female genital mutilation and certain forms of cyber violence). It otherwise leaves it to Member States to criminalise at national level most types of crimes or offences falling within the remit of violence against women and domestic violence as defined in the directive; - The provision on limitation periods has been reduced to focus on the specific problems that were highlighted in the studies and consultations, while leaving other elements to national law; - Flexibility has been granted to Member States concerning the organisation of victim support. For instance, envisaged obligations to provide for free legal representation, access to legal aid, the right to free trial support, free psychosocial support during proceedings, the right to specific accessibility solutions for victims with disabilities, access to interpretation, one-stop shops for victims and standards on precise geographical availability and distribution of support services have been removed in the proposal as presented; - A right to collective action for victims of violence against women was not included in order to limit the interference with existing judicial procedures in the Member States; - The provisions on protection orders have been revised, leaving only the obligation of Member States to introduce emergency barring orders and long-term protection without setting minimum standards. The draft directive streamlines and simplifies provisions relating to this group of crime victims to ensure a smooth interplay with the Victims’ Rights Directive, and better clarifies (compared to the impact assessment) where new obligations come on top of those provided by the Victims’ Rights Directive: - With regard to sexual harassment, the obligation for Member States to criminalise sexual harassment was not included, leaving only the obligation to provide support and protection; - The role of labour inspectorates has been highlighted while refraining from defining specific tasks and powers, thus leaving flexibility to Member States. On the Board’s specific comments on data and evidence, it can be clarified (as also done in the Explanatory Memorandum) that the existing EU acquis was evaluated to assess its impact on violence against women and domestic violence, and that the results of this analysis are included in the gap analysis. While no additional new data is available in comparison to what is included in the impact assessment report, the Commission services performed additional analyses to show how the measures presented in the draft directive address the established gaps in prevention, protection, victim support, access to justice, and coordination. The result of this analysis is presented in Annex 1 of this document. In order to provide for more robust data in the future, the draft directive also lays down the grounds for more convergence in the administration of data and survey data collection in the future. On the Board’s specific comments on the stakeholder views, the Explanatory Memorandum summarises these views in a succinct manner, including the contributions from the Member States. All 24 Member States that contributed in the consultations highlighted the need for further measures. In addition, during the workshop with Member States on 1 July 2021, during which all Member States participated, no particular concerns on the subsidiarity were expressed. Member States have repeatedly called for action at EU level, for instance, in the 2014 Council conclusions on "Preventing and combating all forms of violence against women and girls, including female genital mutilation". As to the clarity of definitions and the distinction between the concepts of violence against women as a sub-category of gender-based violence and of domestic violence as the offence that affects all victims, the draft directive lays down clear definitions of the relevant concepts (cf. also the clarifications made above).