COMMISSION STAFF WORKING DOCUMENT Subsidiarity Grid Accompanying the document PROPOSAL FOR A DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on combating violence against women and domestic violence
Date: 2022-03-08
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: access to the courts, domestic violence, fight against crime, gender equality, help for victims, human rights, sexual discrimination, sexual violence, woman, women's rights

EN 

  EN 

   EUROPEAN COMMISSION  Strasbourg, 8.3.2022  SWD(2022) 60 final  COMMISSION STAFF WORKING DOCUMENT Subsidiarity Grid 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) 61 final} - {SWD(2022) 62 final} - {SWD(2022) 63 final}  
 
 
Subsidiarity Grid 

1.  Can the Union act? What is the legal basis and competence of the Unions’ intended action? 

1.1 Which article(s) of the Treaty are used to support the legislative proposal or policy initiative? 

The proposal is based on the combined legal bases of Articles 82(2) and 83(1) TFEU.  
Article 82(2) TFEU provides the legal basis for the establishment of minimum rules concerning the 
rights of victims of crime to the extent necessary to facilitate mutual recognition of judgments and 
judicial  decisions  and  police  and  judicial  cooperation  in  criminal  matters  having  a  cross-border 
dimension. Article 83(1) TFEU provides the legal basis concerning the introduction of minimum rules 
on the definition of criminal offences and sanctions in the areas of particularly serious crime with a 
cross-border dimension resulting from the nature or impact of such offences or from a special need 
to combat them on a common basis. These areas of crime include sexual exploitation of women and 
children and computer crime. 

1.2 Is the Union competence represented by this Treaty article exclusive, shared or supporting in 
nature? 

In the case of judicial cooperation in criminal matters, the Union’s competence is shared.  

Subsidiarity does not apply for policy areas where the Union has exclusive competence as defined in 
Article 3 TFEU1. It is the specific legal basis which determines whether the proposal falls under the 
subsidiarity  control  mechanism.  Article  4  TFEU2  sets  out  the  areas  where  competence  is  shared 
between the Union and the Member States. Article 6 TFEU3 sets out the areas for which the Unions 
has competence only to support the actions of the Member States. 

2.  Subsidiarity Principle: Why should the EU act? 

Does the proposal fulfil the procedural requirements of Protocol No. 24: 

-  Has there been a wide consultation before proposing the act? 

In preparation of the legislative initiative, the Commission consulted extensively with stakeholders 
to  gather  up-to-date  information  and  expertise  and  to  develop  effective  measures  to  counter 
gender-based  violence  against  women  and  domestic  violence5.  Results  are  summarised  in  the 
impact assessment report accompanying the proposal. It includes the specific targeted consultations 
for  Member  States:  an  online  survey  and  a  workshop.  The  online  survey  gathered  views  and 
information on the measures taken to prevent and combat violence against women and domestic 
violence.  Responses  were  received  from  all  Member  States  except  for  Malta.  The  consultation 
workshop with the Member States provided Member States with the preliminary results from the 
evaluation and the existing criminal law provisions applied to violence against women and domestic 
violence, and gathered Member States’ views on the options considered by the Commission for the 
legislative initiative. 

- 

Is there a detailed statement with qualitative and, where possible, quantitative indicators 
allowing an appraisal of whether the action can best be achieved at Union level? 

1 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12008E003&from=EN  
2 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12008E004&from=EN  
3 https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12008E006:EN:HTML  
4 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12016E/PRO/02&from=EN  
5 Cf. Annex 2 to the Impact assessment as resubmitted on 1 December 2021.  

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The  Commission consulted extensively with stakeholders  and the general public.  The initiative is 
supported by a large majority of stakeholders. The outcome of the consultations is summarised in 
detail  in  Annex  2  of  the  Impact  Assessment.  The  explanatory  memorandum  and  the  impact 
assessment (chapter 3) contain a section on the principle of subsidiarity. See question 2.2 below. 

2.1 Does the explanatory memorandum (and any impact assessment) accompanying the 

Commission’s proposal contain an adequate justification regarding the conformity with the 
principle of subsidiarity? 

Due to the high EU-wide prevalence of violence against women and domestic violence, exacerbated 
by the Covid-19 pandemic, concerted action across the Union is needed. Its impact on millions of EU 
citizens  and  ensuing  fundamental  rights’  violations,  including  the  Union’s  fundamental  value  of 
equality, as well as the costs created by these types of violence, create a special need to combat 
violence against women and domestic violence on a common basis at EU level. 
In addition, cyber violence against women and in the context of domestic violence has emerged as 
a new form of such violence, spreading and amplifying beyond individual Member States through 
the internet. Given its inherent cross-border dimension, interventions by one Member State will be 
insufficient to solve the issue.  
Furthermore, while mutual recognition of national orders which are of crucial importance to protect 
the safety of women is foreseen in EU law, the current initiative ensures that such orders exist under 
national law.  
While the physical cross-border dimension only concerns certain elements of the proposal, cyber 
violence is inherently cross-border and the Directive’s policy objectives can effectively only be met 
if minimum rules apply equally to all cases of violence against women and domestic violence and 
the rights of victims are ascertained regardless of whether they find themselves in a physical cross-
border situation.  
All Member States have addressed violence against women and domestic violence in legislation and 
policies,  but  to  different  degrees.  Differences  in  the  approaches  create  legal  uncertainty  on  the 
rights of such victims across  the EU. This  fragmentation is more substantial at regional and local 
levels.  The  EU  already  supports  the  Member  States  in  addressing  this  kind  of  violence  through 
funding and policy measures, as well as relevant horizontal legal instruments.  
Targeted action at EU level would increase the effectiveness of the existing measures and fill the 
existing gaps by specifying minimum rules. This is rather evident for the six Member States which 
are not parties to the Council of Europe Convention on preventing and combatting violence against 
women and domestic violence (Istanbul Convention) and have thus not implemented it into their 
national  legal  orders.  Even  for  the  Member  States  parties  to  the  Istanbul  Convention,  the  EU 
measures are designed to fill gaps in its implementation, bring in enhanced protection given the 
evolution, particularly in the online environment, since the Convention adoption. It would enable 
further measures to be taken in a coordinated manner across the EU, as well as enable EU-level 
enforcement.  The  proposal  aims  at  striking  the  balance  between  ensuring  effectiveness  of  the 
obligations it lays down while leaving flexibility to Member States to implement the provisions in a 
manner that allows them to  take into account their national specificities and needs. 
The  proposal  supports  the  EU’s  ongoing  accession  process  to  the  Istanbul  Convention.  Once 
accession is finalised, it will implement the Convention in areas of EU competence.  
To  strengthen  the  protection,  access  to  justice  and  support  of  victims  throughout  the  EU,  the 
initiative will ensure upward convergence through minimum rules on the rights of victims of violence 
against  women  and  domestic  violence,  aimed  at  preventing  and  combating  this  kind of violence 
before, during or after criminal proceedings, and introduce definitions of and sanctions on conduct 
where gaps in criminalisation exist.  The sanctions are defined by reference to the minimum level of 

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the maximum sanction applicable to the offenses defined in the proposal. The proposal therefore 
leaves it to Member States to set the minimum levels.    

2.2 Based on the answers to the questions below, can the objectives of the proposed action be 

achieved sufficiently by the Member States acting alone (necessity for EU action)? 

(a)  Are there significant/appreciable transnational/cross-border aspects to the problems 

being tackled? Have these been quantified? 

As explained in paragraph 3.2 of the Impact Assessment, in some cases, violence against women 
and domestic violence includes a cross-border element. In the EU-27 more than 19 million women 
in the EU-27 have experienced physical violence in the past five years6. Although it is not possible to 
establish  the  precise  share,  women victims of violence  against  women  and  domestic violence  in 
cross-border  situations  are  likely  to  be  in  the  order  of  several  hundreds  of  thousands  in  Europe 
annually, also taking into account possible underreporting. 

In other cases, the cross-border nature may arise at a certain point during proceedings, for instance, 
if  a  suspect  flees  or  a  victim  moves  to  another  country.  Even  after  criminal  proceedings  have 
concluded with  a  final  judgment  imposing a  sentence  on  the  defendant  in  the  Member  State of 
nationality, the case can necessitate judicial cooperation between Member States.7 Cross-border 
elements may equally arise when criminal cases are transferred to another Member State.8  

Cyber violence against women and in intimate partnerships has emerged as a new form of violence 
spreading  and  amplifying  beyond  individual  Member  States.  The  internet  is  inherently  a  cross-
border environment, where content hosted in one Member State can be accessed from another 
Member State. As noted in the Digital Services Act proposal, interventions by one Member State will 
be insufficient to solve the issue.9  

(b)  Would national action or the absence of the EU level action conflict with core objectives of 

the Treaty10 or significantly damage the interests of other Member States? 

The Union is founded on the values of respect for human dignity, equality and respect for human 
rights. It aims at guaranteeing the well-being of its peoples and offer its citizens an area of freedom, 
security and justice through appropriate measures in preventing and combating crime. Given the 
stagnant high prevalence of this kind of crime across the Union, which affects the fundamental rights 
and  well-being  of  citizens,  the  absence  of  EU-level  action  would  be  in  conflict  with  the  above 
objectives. Member States already take national action in this field. Such national action does not 
significantly  damage  the  interests of  other  Member  States. The  EU-level  action  aims  at  ensuring 
upward convergence in victim protection, filling gaps identified at the national level and ensuring 
that Member States take a minimum level of measures in all relevant areas.  

6 Supra Error! Bookmark not defined..  
7  European Commission, Commission Staff Working Paper: Impact Assessment accompanying the Proposal for a Directive on 
the rights of access to a lawyer and of notification of custody to a third person in criminal proceedings, SEC(2011) 687 final, p. 
23. 
8 European Commission,  Commission Staff Working Paper: Impact Assessment accompanying the Proposal for a Directive 
establishing minimum standards on the rights, support and protection of victims of crime, SEC(2011) 580 final), p. 18.  
9  European  Commission,  Commission  Staff  Working  Document:  Impact  Assessment  accompanying  the  Proposal  for  a 
Regulation of the European Parliament and of the Council on a Single Market for Digital Services (Digital Services Act) and 
amending Directive 2000/31/EC, SWD(2020) 348 final, 15 December 2020, pp. 35-36.  
10 https://europa.eu/european-union/about-eu/eu-in-brief_en.  

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(c)  To what extent do Member States have the ability or possibility to enact appropriate 

measures? 

Member States have already put in place measures against this kind of violence and 21 of them have 
taken  measures  to  implement  their  obligations  under  the  Council  of  Europe  Convention.  The 
minimum rules do not prevent Member States from maintaining the existing measures or enacting 
further measures, as long as these are in line with the minimum rules. 

(d)  How does the problem and its causes (e.g. negative externalities, spill-over effects) vary 

across the national, regional and local levels of the EU? 

The causes of the problem are nearly identical at national, regional and local levels. Some evidence 
suggests  that  elements  of  the  problem  might  be  further  exacerbated  in  some  regions  or 
municipalities, e.g. rural areas, due to the insufficient availability of protection and support services, 
as well as stronger harmful stereotypes among the general public and the relevant professionals. 
The  problem  has  spill-over  effects  in  physical  cross-border  cases,  where  mutual  recognition  of 
national protection measures may be involved, as enabled by Directive 2011/99/EU and Regulation 
(EU) No 606/2013. In addition, the internet is by definition cross-border and enables illegal gender-
based content to spread from one Member State to another. 

(e)  Is the problem widespread across the EU or limited to a few Member States? 

Violence  against  women  and  domestic  violence  are  widespread  across  the  EU and  happen  in  all 
Member States in the Union. The first and last ever EU-wide survey on violence against women, 
conducted in 2011-2012 by the Fundamental Rights Agency, showed that one woman in three aged 
15 or above reported having experienced some form of physical and/or sexual violence. One in 10 
women had been victim to some form of sexual violence, and one in 20 had been raped. Just over 
one in five women has suffered physical and/or sexual violence from either a current or previous 
partner,  whilst  43%  of  women  have  experienced  some  form  of  psychologically  abusive  and/or 
controlling  behaviour  when  in  a  relationship.  Women  make  up  to  80%  of  victims  of  domestic 
violence. Data on male and child victims is not readily available. 
The European Institute for Gender Equality (EIGE) provides a composite measure of gender-based 
violence  across  the  EU  in terms of prevalence,  severity and disclosure. Prevalence  measures the 
share of women who have experienced physical and/or sexual violence since the age of 15 and it 
was estimated at 21.2% for EU-28 in 2019. Regarding severity measures, the percentage of women 
who experienced health consequences of physical and/or sexual violence was estimated at 46.9% 
for EU-28. Regarding disclosure measures, the reporting (to anyone) of violence experienced in the 
past 12 months was estimated at 14.3% for EU-2811.  

(f)  Are Member States overstretched in achieving the objectives of the planned measure? 

No. The objectives of the planned measure will be achieved in a manner that supports the existing 
measures  taken by the Member  States, including measures taken to implement  existing EU law, 
such as the Victims’ Rights Directive. The accompanying impact assessment estimates the additional 
costs for the Member States to be between EUR 5 and 6.6 billion (in total for the EU), of which 1.9 
billion on employers.   

11 A large amount of indicators related to violence against women are collected in the Gender Equality Strategy Monitoring 
portal: an online tool that supports with data the monitoring of the Gender Equality Strategy, developed by DG JRC, DG JUST 
and EIGE, available at: https://composite-indicators.jrc.ec.europa.eu/ges-monitor. 

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(g)  How do the views/preferred courses of action of national, regional and local authorities 

differ across the EU? 

In the open public consultation, 63% of respondents indicated that regional differences exist in the 
availability of services regarding violence against women and domestic violence. Most respondents 
indicated strong differences between rural and urban areas in the availability of support services, 
with rural areas more at risk as most services are city-based. In the targeted consultations carried 
out, the majority of Member States did not raise concerns regarding further action at EU level. 

2.3 Based on the answer to the questions below, can the objectives of the proposed action be 

better achieved at Union level by reason of scale or effects of that action (EU added value)? 

(a)  Are there clear benefits from EU level action?  

Targeted EU action will guarantee that the objectives of preventing and combating violence against 
women and domestic violence are achieved at Union level. Given the persistently high prevalence 
of  violence  against  women,  measures  taken  at  national  level  so  far  have  proven  insufficient  to 
effectively tackle this phenomenon. Minimum rules will oblige all Member States to provide for a 
minimum  level  of  measures  in  all  those  policy  areas  that  are  considered  relevant  for  effectively 
addressing  this  kind  of  violence.  Those  rules  will  be  enforceable  at  EU-level,  and  enable  further 
measures that are ultimately expected to lead to a reduction in prevalence, as well as the better 
safeguarding of the fundamental rights of this group of crime victims.  

(b)  Are there economies of scale? Can the objectives be met more efficiently at EU level 

(larger benefits per unit cost)? Will the functioning of the internal market be improved? 

While there are no economies of scale as such, the objectives can be more efficiently achieved at 
EU level. The proposal will facilitate the exercise of the right to free movement by victims of this 
kind of crime in situations where one of the parties to proceedings moves or otherwise exercises 
this right during the proceedings. The functioning of the internal market will be improved through 
the introduction of EU-level criminalisations of certain forms of gender-based cyber violence, which 
will define illegal gender-based content and support the framework of the Digital Services Act. 

(c)  What are the benefits in replacing different national policies and rules with a more 

homogenous policy approach? 

The proposal does not replace existing or upcoming national policies. It establishes minimum rules 
at  EU-level,  while  leaving  flexibility  to  Member  States  as  regards  the  content  of  the  measures. 
Member States may provide for a higher level of protection, e.g. due to corresponding international 
obligations or national policy considerations. 

(d)  Do the benefits of EU-level action outweigh the loss of competence of the Member States 
and the local and regional authorities (beyond the costs and benefits of acting at national, 
regional and local levels)? 

Violence against women is a daily reality across EU. The proposal establishes minimum standards, 
which together with the related enforcement measures set benchmarks to Member States and their 
relevant  authorities  in  ensuring  that  the  rights  of  this  group  of  crime  victims  are  properly 
implemented and enforced across the EU. Such an approach leaves flexibility to the Member States 
in maintaining or setting more  favourable standards and taking into account features specific to 
their national situations, including national, regional and local circumstances. The benefits of the 
EU-level minimum standards hence outweigh the burden on Member States. 

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(e)  Will there be improved legal clarity for those having to implement the legislation? 

The multitude of national approaches creates legal uncertainty on the rights of victims of violence 
against women and domestic violence. The fragmentation is more substantial at regional and local 
levels, where differences in access to protection and support services are observed. The proposal 
will provide legal clarity on the minimum measures to be taken in the relevant problem areas to 
effectively prevent and combat this kind of violence. It will build on and support the applicability of 
relevant general frameworks of EU law, e.g. the Victims’ Rights Directive and the Digital Services 
Act.  

3.  Proportionality: How the EU should act 

3.1  Does the explanatory memorandum (and any impact assessment) accompanying the 

Commission’s proposal contain an adequate justification regarding the proportionality of the 
proposal and a statement allowing appraisal of the compliance of the proposal with the 
principle of proportionality? 

12The preferred policy option is expected to provide extensive protection of fundamental rights and 
improve the social situation of victims and the society at large through the comprehensive set of 
minimum rules it entails.  
By setting EU-wide minimum standards, the proposal will enhance legal certainty with regard to the 
rights of this group if crime victims in the EU and provide for their effective enforcement.  Through 
a set of minimum standards it establishes, for the first time at EU level, a targeted and coordinated 
approach to tackle violence against women and domestic violence. The standards are set in such a 
way that they add value to existing national, European and international rules by filling in identified 
gaps in protection, while leaving flexibility to Member States in their implementation.    
European network of legal experts in gender equality and non-discrimination European Parliament’s 
Policy  Department  for  Citizens’  Rights  and  Constitutional  Affairs13Several  policy  options  were 
considered for reaching the objectives of this proposal. They mainly consisted of, on the one hand, 
implementing the Istanbul Convention standards in EU law insofar as covered by EU competence, 
and, on the other hand, updating such standards with more targeted action on cyber violence.  
This proposal is based on the second policy option, since it provides for the most effective set of 
measures, while respecting the principle of proportionality. This is based on a prior in-depth analysis 
of the various policy options in terms of impacts on fundamental rights, social and economic impacts 
as  well  as  a  careful  analysis  of  their effectiveness,  efficiency  and  coherence.  Overall,  the  second 
option proved to perform better in contributing to these areas and with a higher net benefit.  

3.2 Based on the answers to the questions below and information available from any impact 
assessment, the explanatory memorandum or other sources, is the proposed action an 
appropriate way to achieve the intended objectives? 

in  European  States, 

12 See section 7.2 of the Impact assessment report. 
13 European network of legal experts in gender equality and  non-discrimination. Criminalisation of gender-based violence 
against  women 
ICT-facilitated  violence.  A  special  report,  2021,  available  at 
https://www.equalitylaw.eu/downloads/5535-criminalisation-of-gender-based-violence-against-women-in-european-
states-including-ict-facilitated-violence-1-97-mb  (EELN  2021);  Tackling  violence  against  women  and  domestic  violence  in 
remaining  challenges,  2020,  available  at 
Europe  –  The  added  value  of 
https://www.europarl.europa.eu/RegData/etudes/STUD/2020/658648/IPOL_STU(2020)658648_EN.pdf;  see  also  De  Vido, 
EJLS 9(2), ‘The Ratification of the Council of Europe Istanbul Convention by the EU: A Step Forward in the Protection of Women 
from Violence in the European Legal System’. 

Istanbul  Convention  and 

including 

the 

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The proposal is considered an appropriate way to achieve the intended objectives. The initiative 
aims  to  address  only  the  legal  issues  identified  during  the  preparatory  work  in  support  of  the 
initiative, including the gap analysis conducted by the Commission.   

(a)  Is the initiative limited to those aspects that Member States cannot achieve satisfactorily 

on their own, and where the Union can do better? 

The proposal addresses the gaps identified during the consultation activities conducted in 2021 and 
in the studies conducted by the European Commission, which assessed the situation vis-à-vis this 
group of crime victims at the EU and Member State level. The assessment included a background 
study, which looked into the role of the relevant EU law in safeguarding the rights of this group of 
victims.  The  assessment  drew  on  insufficiencies  and  best  practices  identified  by  international 
monitoring bodies and the EU in its relevant monitoring activities, as well as interviews with national 
authorities. This background material indicates that persisting problems remain in several problem 
areas in preventing and combating violence against women and domestic violence remains and the 
effective  enforcement  of  the  existing  measures,  which  cannot  be  achieved  by  Member  States 
satisfactorily on their own in systematic manner. The proposal hence introduces minimum rules to 
be implemented across the EU. Since 21 Member States are parties to the Istanbul Convention, the 
EU acting on the shared competence moreover supports the implementation of the Convention in 
those  Member  States.  Additional  non-legislative  measures  on  tackling  this  kind  of  violence  are 
included in the EU Gender equality strategy 2020-2025.  

(b)  Is the form of Union action (choice of instrument) justified, as simple as possible, and 
coherent with the satisfactory achievement of, and ensuring compliance with the 
objectives pursued (e.g. choice between regulation, (framework) directive, 
recommendation, or alternative regulatory methods such as co-legislation, etc.)? 

The legal bases chosen for the proposal provide for the adoption of directives in accordance with 
the ordinary legislative procedure as the appropriate instrument. This proposal is aimed at creating 
simplifications for the benefit of the relevant professionals and victims by focusing the relevant EU 
rules in a single instrument in a transparent manner.  
A  specific  directive  on  violence  against  women  and  domestic  violence  is  chosen  rather  than  an 
amendment of the existing instruments. The rules of this directive will supplement those laid down 
in the Victims’ Rights Directive, which constitutes the general legal framework in EU law on victims’ 
rights. This directive lays down specific measures which complement the general rules, as done for 
victims of other specific types of crime, such as victims of anti-trafficking, child sexual abuse, and 
terrorism. 

(c)  Does the Union action leave as much scope for national decision as possible while 

achieving satisfactorily the objectives set? (e.g. is it possible to limit the European action to 
minimum standards or use a less stringent policy instrument or approach?) 

Action  at  the  EU  level  establishing  minimum  standards  regarding  this  kind  of  violence  and  the 
related enforcement measures would ensure that the national measures to prevent and combat 
these kinds of criminal acts, also referred to in Declaration on Article 8 of TFEU, are effective and 
that all victims can claim their rights  according to the  same minimum standards applicable in all 
Member  States.  This  is  a  balanced  measure  at  the  EU-level,  which  takes  into  account  existing 
effective examples of national measures and the positions of Member States, social partners and 
citizens, and helps addressing the problem through a uniform approach across the Union. 

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(d)  Does the initiative create financial or administrative cost for the Union, national 

governments, regional or local authorities, economic operators or citizens? Are these costs 
commensurate with the objective to be achieved? 

The initiative creates additional costs. For the Union, the proposal is envisaged to incur some costs 
related to the enhanced administrative data collection obligation. These costs have been detailed 
in the legislative financial statement annexed to the proposal. Member States will also incur some 
costs, which however are largely offset by the expected benefits of the proposal.  

(e)  While respecting Union law, have special circumstances applying in individual Member 

States been taken into account? 

The proposal takes into account specific circumstances in the Member States. In particular, it takes 
into  account  the  circumstances  in  those  Member  States  experiencing  difficulty  in  ratifying  the 
Istanbul Convention by addressing the topic of violence against women and domestic violence in 
line  with  the  principles  expressed  in  Opinion  CDL(2019)035  of  the  Council  of  Europe  Venice 
Commission  on  the  Constitutional  implications  of  the  ratification  of  the  Council  of  Europe 
Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul 
Convention), by Armenia.  

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