In March 2010, the authors were both appointed as rapporteurs of the draft Directive of the Council and the European Parliament on the European Protection Order (hereinafter EPO).¹ This initiative was led by the Spanish Presidency,² which found enough support within the Member States to activate the new powers conferred by the Lisbon Treaty in criminal matters.

This proposal legally emerged from the Stockholm Programme guidelines adopted by the European Council on December 2009, which is a 5-year plan for the EU to settle on a common policy for justice and home affairs, including fundamental rights and the protection of citizens.³ These guidelines indicate that the area of freedom, security and justice must, above all, be a single area where fundamental rights and freedoms are protected.

Moreover, mutual trust between authorities and services in the different Member States is seen as the basis for efficient cooperation in this area and as one of the main challenges in the future. Judicial cooperation in general, especially in criminal matters, is one of the pillars enabling mutual trust and, according to Art. 82(1) of the Treaty on the Functioning of the European Union (TFEU), shall be based on the principle of mutual recognition of judgements and judicial decisions.

The EPO is a mutual recognition instrument enabling the protection stemming from a protective measure adopted according to the law of one Member State (issuing State) to be extended to another Member State into which the protected person moves (executing State), regardless of the type or duration of obligations or prohibitions contained in the protective measure.

I. Objective

The EPO aims to provide continuous protection to victims of violence when they move from one Member State to another.⁴ Therefore, if a person has been granted protection, through a so-called protection order, in one Member State and wishes to move from this Member State to another Member State, this person can request an EPO to be issued so that he can move securely within the EU.

According to the EPO procedure, the Member State into which the victim moves is under an obligation to grant an equivalent protection measure under its national law. The intention is to make it unnecessary for the protected person to start new court proceedings in the new Member State and to facilitate the move, which is often guided by a desire to run way and start afresh.

As European citizens, we have welcomed the European Protection Order wholeheartedly as a great instrument that will significantly help those who suffer from violence and who literally wish to escape it. It will also be an important step for the consolidation of an area of freedom, security and justice.

Since there is an absolute lack of official data concerning protection orders issued in the EU, the Spanish Presidency − when assessing the need for such an instrument (on the basis of the answers to a survey provided by 18 of 27 Member States) – estimated that, in 2008, there was an average of 118,000 restraining orders issued in the EU, mostly for cases of gender violence.⁵

There are no official data either on how many victims with a protection order move from one Member State to another. However, by estimating that at least 1% of these victims would move, we extrapolate an average of 1180 potential EPO users in 2008 in the EU.

The harassment of victims, particularly victims of gender violence, has a global dimension, rather than a merely regional one; it concerns all the countries of the globe, including all EU countries. According to the 2003 United Nations Development Fund for Women document, “Not a Minute more,” one woman in three across the world will be exposed to gender violence in their lifetime; or will be beaten, raped, assaulted, will be victims of trafficking, bullied or forced to submit to acts which damage their health, such as female genital mutilation. According to Eurostat figures, between 700 and 900 women in the EU die each year as a result of gender violence.⁶

The EPO is intended as a tool to protect victims of gender violence, but also victims of any crime, as long as they have an identified perpetrator, such as victims of human trafficking, genitalia mutilation, organised crime, and terrorism. To activate the EPO procedure, basically consisting of recognising and applying the protection order issued in one Member State in another Member State into which the victim moves, it is solely necessary to have an identified perpetrator to whom a protection order can be applied.

II. Legal Controversy

During the entire legislative process, including the bilateral talks between the European Parliament and the European Council, then held by the Belgian Presidency, we have always stuck to the convictions of both the EPP Group and S&D,⁷ namely that victims of domestic violence and other crimes in the EU should be able to move with confidence and the assurance that they will be protected, wherever they are. In the process of achieving this, however, legal complications arose between the European Commission and the European Council.

In order to understand the disputed legal deficit in the European Protection Order, just like the Directive on Human Trafficking, there is a need to emphasise the legal discussion between the Council’s consent to the Directive by means of its initial proposal and the Commission’s scrutiny.

The draft directive has been put on legal footing by several Member States dealing with judicial cooperation in “criminal matters.” For the Commission, the EPO, as proposed and supported by the Council, goes beyond the interpretation of the notion of criminal matters. Therefore, according to the Commission’s interpretation, only purely criminal procedures could be dealt with under the mutual recognition mechanism adopted under the chosen legal basis, i.e., Art. 82 of the TFEU. Hence, all civil and administrative procedures imposing protective measures adopted in an EU Member State would be excluded from the application of such an instrument. In order to be complete and cover all juridisdictions, the Commission proposes narrowing down the EPO to criminal procedure and complementing this instrument with a civil one by spring of this year.

The Council, supported by the legal service of the Parliament, has a broader interpretation of the notion of criminal matters in that they should be interpreted “autonomously,” “i.e., not necessarily by exclusive reference to the national laws and legal sytems of the Member States.” According to this theory, only an autonomous interpretation is capable of securing legislative acts, adopted on the basis of Art. 82 of the TFEU, meaning full efficacy and uniform application throughout the Union. It is not the authority taking a particular decision in this respect, but the nature of the act that gives rise to the decision and the nature of the decision itself.⁸

The EPO, or the national measure behind it, has the objective of safeguarding the protected person against behaviour of another person who may endanger his or her life, physical or psychological integrity, personal liberty, or sexual integrity. These personal rights correspond to fundamental values recognised and upheld in all the Member States to the effect that, in all Member States, acts or behaviour endangering or violating these rights constitute criminal offences.

The battle is still open, and the European Commission − more precisely Vice-President Viviane Reding − indicated several times that, if adopted in its current form, it would seek annulment of the Directive in the Court of Justice of the European Union. Ms. Reding says that the Commission will propose an instrument this spring to look at civil orders as part of a package of measures to protect victims.

III. Outcome

As rapporteurs of the report on the draft directive on the EPO, we advised the European Parliament to follow the line of the Council, as was initially suggested, and to broaden the scope. From our point of view, the Parliament has played a conciliatory role in negotiations between the institutions and has used its co-decision powers wisely. We have tried to reach an agreement in which there is a balance between the needs of victims and a legal basis that takes in account the different procedures among Member States.

Throughout the entire discussion during the Belgian Presidency, we sought to improve the Directive with regard to several issues:

• Most importantly, there is a lack of data in the EU on victims of violence, particularly victims of gender violence. We therefore strongly urged making this a key factor for the EPO, namely recommending the collection of accurate information and statistics on gender violence. Although the Council was reluctant to add this point, we managed to reach a consensus.

• The same goes for translation rights for the victim, as different languages are involved when an EPO is issued between two Member States.

• In addition, using the EPO as a tool to prevent violence from happening and implementing awareness-raising campaigns were part of these negotiations.

• We have also raised the attention paid to minors, because domestic violence does not solely involve the mother or, in some cases, the father, but also the child. The child is a completely defenceless victim who needs extra protection.

Although the EPO received a majority vote in the Parliament last December, since then it has become silent with regard to the Directive. The Hungarian Presidency has so far not responded to further procedures for the adoption of the EPO in the Council.

This hesitation is understandable in part. On the 18th of May, the European Commission will present a proposal for a complete victims’ package, which will probably contain two directives and one regulation. One directive will be a “criminal law version of the EPO,” another directive will be on victims’ rights, and one regulation will concern a “civil law version of the EPO.” This will eliminate legal complications. Let us state clearly that we very much welcome this initiative on the part of the Commission and that we are very glad to finally hear that one proposal from the Commission will consolidate the rights of all types of victims.

Regardless of the objectives of the Commission, however, we believe that the EPO will pass with a majority in the Council. In November of last year, the European Parliament’s Civil Liberties, Justice and Home Affairs Committee and Women’s Rights and Gender Equality Committee voted clearly in favour of the EPO. This success was repeated a month later in the plenary, where it was adopted by a grand majority. In other words, Europe has provided a clear signal that it wants to go ahead with the European Protection Order. Furthermore, the EPO will serve as a vital tool and as a pilot-directive before a protracted victim’s package is put in place by the Commission. It will be a first step in allowing victims of violence to demand the same level of protection in all EU countries. Many victims of crime, especially victims of domestic violence, will once more be able to live in freedom, thanks to the European Protection Order.

Teresa Jiménez Becerril

Member of the European Parliament,

Group of the European People's Party

Carmen Romero Lopez

Member of the European Parliament

Group of the Progressive Alliance of Socialists and Democrats