Position of the Ordo Iuris Institute on the request for an opinion submitted by the European Parliament under Article 218(11) TFEU (Opinion 1/19)

Written observations of the Ordo Iuris Institute on the request for an opinion submitted by the European Parliament under Article 218(11) TFEU (Opinion 1/19).

Main thesis:

·         The Council of Europe Convention on preventing and combating violence against women and domestic violence (hereinafter referred to as the Istanbul Convention) is based on controversial and dubious assumptions according to which violence against women is determined by social structure, and forms an effect of unequal relations between men and women, which are conditional on the ages of assigning specific social roles to women and men. It also undermines the existence of objective differences between men and women that stem from biology, indicating that human gender is a social construct. It follows that the prevention of violence must mean the dismantling of social structures whose existence is a condition for discrimination against women.

·         In its request for an opinion addressed to the CJEU (Opinion 1/19), the European Parliament asks whether Article 82(2) and 84 TFEU and Article 78(2), 82(2) and 83(1) TFEU are the relevant legal basis for the conclusion of the Istanbul Convention by the EU. The analysis of the indicated articles has shown that none of the provisions included in the EP's request for an opinion as the proposed basis for the conclusion of the Istanbul Convention by the EU is an adequate legal basis for such an action.

·         It should be stressed that the legal bases proposed in the request are contrary to Article 5 of the Istanbul Convention, which sets out the responsibilities and principles of the liability of the parties to the Convention. The implementation of Article 5 of the Convention would require the EU to impose uniform definitions on the Member States throughout the Union. Article 82(2) TFEU allows the introduction of minimum rules for the mutual recognition of evidence between the Member States, the rights of individuals in criminal proceedings and the rights of victims of crime, and Article 84 TFEU allows measures to promote and support the action of Member States in the field of crime prevention, but at the same time excludes any harmonisation of the laws and regulations of the Member States. This means that both Article 82(2) TFEU and Article 84 TFEU do not allow the EU to act in order to introduce a unification of the conceptual framework for acts falling within the scope of the Convention, and only such an action would ensure that the EU fulfils its obligations under Article 5 of the Convention.

·         It is also important to point out that a number of provisions of the Istanbul Convention are contrary to the EU's primary law (the EU Charter of Fundamental Rights). It is difficult to predict all of the negative consequences of the Istanbul Convention, but there are grounds for concluding that the possible accession of the EU to the Convention would lead to a significant destabilisation of the system of European law. This applies in particular to the relationship between the EU and the Member States in the context of the so-called co-ordinating body referred to in Article 10 of the Istanbul Convention and the obligation to collect and analyse information resulting from Article 11 of the Convention.

·         Regardless of the above circumstances, which determine the impossibility of effective accession of the EU to the Istanbul Convention, the decision on such accession would in any case require unanimity of the Council of the European Union.

1.       Introduction

The Council of Europe Convention on preventing and combating violence against women and domestic violence[1] (the Istanbul Convention) is the result of initiatives aimed at the adoption by the States of standards for combating violence defined as counterfactual gender-based violence.[2] The Convention has three main objectives: the prevention of violence against women, the protection of victims of violence, and the prosecution of perpetrators of violence. These objectives are undoubtedly right, but the Istanbul Convention imposes an ideological opt-out based on the idea of “gender roles”, which assumes that violence against women is structural. In light of this ideology, violence against women is to be determined by the social structure and to be a result of unequal relations between men and women, conditional on the ages of assigning specific social roles to women and men. In light of these assumptions, violence against women will exist as long as objectively existing social structures express a diversity between men and women. It follows that the prevention of violence must mean the dismantling of all social structures, because their existence is a condition for discrimination against women.

                There are substantial doubts at to the recognition by the Istanbul Convention of violence against women as a phenomenon depending exclusively on gender. It is difficult to find any reliable research that proves this theory. At the same time, the results of research that undermine this assumption are known.[3] The Convention ignores or marginalises factors which realistically condition violent behaviours, namely addiction (e.g. alcohol or drugs), progressive relaxation of customs, the presence of violence in the mass media, and especially the current sexualisation of a woman's image.

                The system for monitoring the implementation of the Istanbul Convention is also questionable. A Group of Experts on Action against Violence against Women and Domestic violence (GREVIO) plays a key role in the monitoring system, whose task is to monitor the implementation of the Istanbul Convention by the Parties[4], and which may take decisions motivated by a conventional ideological paradigm. This is particularly dangerous due to the competence of GREVIO to issue “general recommendations” as to the way in which the Istanbul Convention is to be implemented.[5]

                The resolution of the European Parliament (EP) of 28 November 2019 on the accession of the EU to the Istanbul Convention and other measures to combat gender-based violence (2019/2855(RSP))[6] it was concluded that violence against women is one of the most significant social problems in the European Union (EU) and one of its symptoms is an alleged “whereas the present decade is witnessing a visible and organised offensive at global and European level against gender equality and women’s rights, including sexual and reproductive health and rights”.[7]

                The subject of this analysis is the request for an opinion submitted by the EP in accordance with Article 218(11) of the Treaty on the Functioning of the European Union (TFEU)[8] in order to determine: the legal basis of the conclusion and whether the conclusion by the EU of the Istanbul Convention on the basis of Article 218(6) TFEU is compatible with the Treaties, taking into account the absence of a common agreement on the part of all Member States as to their will to bind the Convention.[9]

                In this request, the EP asks the Court of Justice of the European Union (CJEU) whether the relevant legal basis for the conclusion of the Istanbul Convention is Articles 82(2) and 84 TFEU or Article 78(2), 82(2) and 83(1) TFEU. Articles 82 to 84 are a part of Chapter 4 on judicial cooperation in criminal matters, which has been included in Title V (Area of freedom, security and justice) in Chapter 3 of the TFEU. These provisions concern, respectively, the scope and instruments of judicial cooperation in criminal matters; minimum standards; measures to support crime prevention. Article 78, a part of Chapter 2 on policies relating to border control, asylum and migration, provides for the protection of third-country nationals in this regard.

                In spite of its precise full title, the Istanbul Convention regulates precisely the relationship between the parties to the Convention in a number of different spheres that go far beyond the prevention and control of violence against women and domestic violence. The essence of the Istanbul Convention is not to prevent and combat crime, which appears to be officially unnoticed by the EU bodies.

2.       Analysis of the legal bases indicated in the request of the EP

2.1.  Analysis of the basis based on Article 82(2) and Article 84 TFEU

Article 82(2) TFEU empowers the EP and the Council of the European Union  (the Council) to introduce, by means of directives, minimum common rules for the provisions of the criminal procedure of the Member States. This shall be done by establishing minimum standards[10] (referred to in Article 83 TFEU) concerning only cross-border cases. However, the scope of Article 82 does not cover the introduction of minimum rules for substantive criminal law. In accordance with the principle that the EU is acting only within the limits of the powers conferred on it by the Member States in the Treaties to achieve the objectives set out therein, and any powers which are not granted to the EU in the Treaties belong to the Member States[11], it must be pointed out that, in the area of the definition of prohibited acts, the EU has only such powers as set out in Article 83. The wording of Article 82(2) TFEU leaves no doubt that the only remedy available in this case is a directive. Moreover, only minimum rules can be introduced on the basis of this provision: mutual recognition of evidence between Member States, the rights of individuals in criminal proceedings and the rights of victims of crime. The assumption of minimum harmonisation is a particularly sensitive sphere in the area of freedom, security and justice, and the obligation to respect national legal systems and traditions, which has been explicitly referred to in the text of the commented provision.[12] The literature mentions an obligation (and not a possibility) of taking into account the differences between the traditions and legal systems of the Member States.[13]

                With regard to Article 84 TFEU, it must be concluded that it allows measures to be adopted promoting and supporting the activities of the Member States in the field of crime prevention. The provision expressly excludes any harmonisation of the laws and regulations of the Member States (both the minimum and the codification of the rules). The choice of a specific measure must therefore guarantee flexibility which will not lead to the approximation of laws in the Member States.[14] Given the objective of the Istanbul Convention (unification of provisions), the proposed legal basis is incorrect.

                Therefore, neither Article 82(2) nor Article 84 TFEU allows for an EU action consisting in the introduction of a unification of the conceptual framework for acts falling within the scope of the Istanbul Convention. If the EU were to fulfil its obligations under Article 5 of the Istanbul Convention defining the principles of liability of the parties to the Convention, it would have to impose uniform legal definitions on the Member States across the EU. It should be stressed in this regard that the Area of Freedom, Security and Justice (AFSJ)[15] belongs to the category of shared competence of the EU and the Member States, and includes particularly sensitive areas of cooperation between the Member States and the EU.[16]

2.2.  Analysis of the basis under Articles 78, 82(2) and 83(1) TFEU

Considering the above considerations concerning Articles 82 and 83 TFEU as valid, it is necessary to add that Article 78(1) provides the legal basis for the development of a common policy in the field of asylum, subsidiary protection and temporary protection. The objectives pursued under this policy are to grant the appropriate status to any third-country national requiring international protection and to ensure that the principle of non-refoulement is respected. This provision is a development of Article 67 TFEU.

                The principle of non-refoulement relates to the ban on the expulsion of asylum seekers and is based, inter alia, on the rights of international refugees or recognised by the State providing protection. A refugee is a person who has a well-founded fear of being persecuted for reasons of race, religion, nationality or political opinion, is outside the country of his nationality and is unable or, owing to such fear or for reasons other than personal convenience, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear or for reasons other than personal convenience, is unwilling to return to it.[17] The scope of Article 78 TFEU does not cover citizens of EU Member States.[18] It should be stressed that the provisions on asylum does not constitute an adequate legal basis for the adoption of the Istanbul Convention.

                It should therefore be concluded that neither Articles 82(2) and 84 TFEU nor Articles 78, 82(2) and 83(2) constitute an appropriate and adequate legal basis for the conclusion of the Istanbul Convention by the EU. Consequently, there are serious doubts as to the legality of measures aimed at the accession of the EU to the Convention.

3.       Additional requirements relevant to the procedure for the conclusion of the Istanbul Convention by the EU

It should also be pointed out that there are additional indications that the EU cannot accede to the Istanbul Convention. The most important of them are those concerning the unanimity requirement of the Member States and the contradictions of the provisions of the Istanbul Convention with the EU's primary law.

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3.1.  Unanimity requirement

Pursuant to Article 218(8) TFEU, the Council shall act by a qualified majority of votes. However, this does not apply, inter alia, where the agreement concerns an area in which unanimity is required for the adoption of a Union act. In this case, the Council acts by a common, unanimous agreement of all of the Member States.

                Declaration No. 36 annexed to the Art. 218 TFEU concerns the negotiation and conclusion by Member States of international agreements relating to the AFSJ. In accordance with this declaration, the Member States have the right to negotiate and conclude agreements with third countries or international organisations in the field of judicial cooperation in civil matters, judicial cooperation in criminal matters, and police cooperation, provided that such agreements comply with EU law. This declaration actually does not refer so much to the procedure under Article 218 TFEU, but to the competence of the Member States to conclude agreements in the areas designated in accordance with their national procedures.[19]

                An international agreement may be concluded either in a simple or a complex mode. The latter is considered to be more formal and is based on separation of the decision to sign the agreement and the decision on its conclusion. Although the signing of the agreement does not imply the conclusion of the agreement, it already has some legal effects.[20] With the exception of agreements relating only to the common foreign and security policy, the Council's decisions on the conclusion of the agreement shall be taken after obtaining the consent of the EP or after consultation with the EP.[21]

                If the agreement concerns issues in which the EU shares competence with the Member States, it is also necessary to have a negotiating mandate from the representatives of the governments of the Member States. If the agreement concerns shared competence, the Council makes decisions by common agreement of all Member States. In accordance with Article 4(2)(j), the ASFJ belongs to shared competence and, therefore, when entering into international agreements in this area, unanimity in the Council is necessary. This means that, when reference is made to any of the abovementioned grounds specified in the request, the possibility of concluding the Istanbul Convention without the unanimity of the Council is excluded.

3.2.  Non-compliance of the Istanbul Convention with the EU's primary law

A number of provisions of the Istanbul Convention raise objections as to their compatibility with the EU's primary law. Only the selected standards of the convention will be identified below.

                Article 2(1) of the Istanbul Convention limits its protection to women only. The same protection of men has been omitted, and therefore the principles of equality have been violated with regard to the right of non-discrimination on the grounds of gender enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union (CFR).[22]

                Article 14 of the Istanbul Convention obliges the Parties to the Convention to promote ideological assumptions concerning the concept of gender and structural nature of violence, and to disseminate information on “non-stereotypical gender roles” at all levels of education. According to point 95 of the Explanatory Report the conduct of education in this respect, it cannot be left for the decision of individual schools, and cannot have a character of incidental classes, it must be systemic and mandatory. The implementation of these demands is grossly inconsistent with Article 7 of the CFR, stating the principle of respect for private and family life, and Article 14(3) of the CFR, stating that the freedom to found educational establishments with due respect for democratic principles and the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions shall be respected, in accordance with the national laws governing the exercise of such freedom and right.

                Article 53 of the Istanbul Convention provides for the possibility of the Police to issue a restraining order with immediate effect and without hearing the parties. Article 28 of the Convention obliges the parties to ensure that “confidentiality rules imposed by internal law on certain professionals” do not prevent the notification to the competent organisations or authorities of a justified suspicion of a commitment of an act of violence within the meaning of the Convention. This regulation makes possible, or even requires the breach of professional secrecy of an attorney or a legal counsel. The above legal solutions are contrary to Art. 47 CFR, which define, respectively, the right to a fair trial, and respect for the right of defence.

                In accordance with Article 78 of the Istanbul Convention, no objections may be raised to the abovementioned provisions. It should also be noted that a number of provisions of the Istanbul Convention are ambiguous in terms of existing relations between the EU institutions and the Member States. This undermines legal certainty within the EU.

4.       Summary

None of the provisions indicated in this request of the EP as a basis for accession to the Istanbul Convention constitutes an adequate legal basis for such EU action. Moreover, the proposed bases are in contradiction with one of the main objectives of the Istanbul Convention. Both Article 82(2) TFEU and Article 84 TFEU do not allow action by the EU to introduce a unification of the conceptual framework in respect of acts falling within the scope of the Convention. Meanwhile, only the introduction of uniform legal definitions across the EU would ensure that the EU fulfils its obligations under Article 5 of the Istanbul Convention. In addition, a number of provisions of the Istanbul Convention contradict the EU's primary law. It is difficult to predict all of the negative consequences of the Istanbul Convention, but there are grounds for concluding that the possible accession of the EU to the Convention would lead to a significant destabilisation of the system of European law. This applies in particular to the relationship between the EU and the Member States in the context of the so-called co-ordinating body referred to in Article 10 of the Istanbul Convention and the obligation to collect and analyse information resulting from Article 11 of the Convention. It should also be made clear that the EU's accession to the Istanbul Convention requires unanimity of the Council.