delivered on 11 March 2021 (1)

Opinion procedure 1/19

Initiated following a request made by the European Parliament

(Request for an Opinion under Article 218(11) TFEU – Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) – Accession of the Union – External competences of the Union – Appropriate legal bases – Article 78(2) TFEU – Article 82(2) TFEU – Article 83(1) TFEU – Article 84 TFEU – Splitting of signature and conclusion decisions into two according to the applicable legal bases – Compatibility with the EU and FEU Treaties – Practice of ‘common accord’ – Compatibility with the EU and FEU Treaties – Admissibility of the request for an Opinion)

I.Introduction

1.The recent case-law of this Court provides ample evidence that the relationship between the Member States and the Union in respect of the conclusion of international agreements which bind both parties is apt to present some of the most difficult and complex questions of European Union law. The delineation of the respective competences of the Member States and the Union (and their interaction with each other) invariably involves difficult questions of characterisation, often requiring a detailed and minute analysis of an international agreement which has not always been drafted with the subtle complexities of the European Union’s institutional architecture (and its division of competences) in mind.

2.This, unfortunately, is also true of the international agreement – namely, the Convention on preventing and combating violence against women and domestic violence was adopted by the Committee of Ministers of the Council of Europe on 7 April 2011 (‘the Istanbul Convention’) – which is the subject matter of the present request for an Opinion pursuant to the provisions of Article 218(11) TFEU. While that convention seeks to advance the noble and desirable goal of combating violence against women and children, the question of whether the conclusion of that particular convention would be compatible with the EU Treaties presents complex legal questions of some novelty which must naturally be examined from a legal perspective in a detached and dispassionate manner. The issue arises in the following way.

II.The background to the Istanbul Convention

3.In 1979, the United Nations adopted the Convention on the Elimination of All Forms of Discrimination against Women (‘the CEDAW’). That convention was supplemented by recommendations drawn up by the CEDAW Committee, including General Recommendation No 19 (1992) on Violence against women, which in turn was updated by General Recommendation No 35 on gender-based violence against women (2017). Those recommendations specify that gender-based violence constitutes discrimination within the meaning of the CEDAW.

4.The Council of Europe, in a recommendation addressed to the members of that organisation, proposed for the first time in Europe a comprehensive strategy for the prevention of violence against women and the protection of victims in all Council of Europe Member States.

5.In December 2008, the Council of Europe set up a committee of experts, called the Group of Experts on Action against Violence against Women and Domestic Violence (‘the Grevio’). That body, composed of representatives of the governments of Council of Europe Member States, was charged with the task of drawing up one or more binding legal instruments ‘to prevent and combat domestic violence, including specific forms of violence against women, other forms of violence against women, and to protect and support the victims of such violence and prosecute the perpetrators’.

6.The Grevio met nine times and finalised the text of the draft Convention in December 2010. The Union did not participate in the negotiations. (2)

7.The Convention on preventing and combating violence against women and domestic violence was adopted by the Committee of Ministers of the Council of Europe on 7 April 2011 (‘the Istanbul Convention’). It was opened for signature on 11 May 2011, on the occasion of the 121st Session of the Committee of Ministers in Istanbul. (3)

8.On 5 and 6 June 2014, the Council of the European Union, in its Justice and Home Affairs configuration, adopted conclusions inviting the Member States to sign, conclude and implement that convention.

9.The Commission subsequently submitted to the Council of the European Union on 4 March 2016 a proposal for a Council Decision on the signing of the Istanbul Convention on behalf of the European Union. The proposal specifies that the conclusion of that convention falls under both the competences of the Union and the Member States. Regarding the Union, the Commission’s proposal provided for the signature of the Istanbul Convention by means of a single decision based on Articles 82(2) and 84 TFEU.

10.Together with that proposal for a Council decision authorising the signature, on behalf of the Union, of the Istanbul Convention, the Commission submitted to the Council a proposal for a single Council decision to authorise the conclusion, on behalf of the Union, of that convention. The legal basis proposed by the Commission was the same as that set out in the Commission’s proposal on the signature, that is to say, it was also based on Articles 82(2) and 84 TFEU.

11.During the discussions on the draft decision in the Council’s preparatory bodies, it emerged that the conclusion of the Istanbul Convention by the Union covering certain areas proposed by the Commission would not obtain the support of the required qualified majority of the members of the Council. It was therefore decided to reduce the scope of the Union’s proposed conclusion of the Istanbul Convention simply to those competences which were considered by those preparatory bodies as falling within the exclusive competence of the Union. Consequently, the legal bases of the proposal were amended by deleting the reference to Article 84 TFEU and by adding Articles 83(1) and 78(2) TFEU to Article 82(2) TFEU. It was also decided to split the Commission’s proposal for a Council decision to sign the Istanbul Convention into two parts and to adopt two decisions in order to take account of the particular positions of Ireland and the United Kingdom as envisaged by Protocol No 21 annexed to the TEU and the TFEU.

12.Those changes, made at the Committee of Permanent Representatives (Coreper) meeting on 26 April 2017, were approved by the Commission.

13.On 11 May 2017, the Council adopted two separate decisions relating to the signing of the Istanbul Convention, namely:

–Council Decision (EU) 2017/865 of 11 May 2017 on the signing, on behalf of the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence with regard to matters related to judicial cooperation in criminal matters (OJ 2017 L 131, p. 11). That decision mentions as substantive legal bases Articles 82(2) and 83(1) TFEU;

–Council Decision (EU) 2017/866 of 11 May 2017 on the signing, on behalf of the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence with regard to asylum and non-refoulement (OJ 2017 L 131, p. 13). That decision indicates Article 78(2) TFEU as a substantive legal basis.

Recitals 5 to 7 of both decisions state that:

‘(5) Both the Union and its Member States have competence in the fields covered by the [Istanbul] Convention.

(6) the [Istanbul] Convention should be signed on behalf of the Union as regards matters falling within the competence of the Union in so far as the [Istanbul] Convention may affect common rules or alter their scope. This applies, in particular, to certain provisions of the [Istanbul] Convention relating to judicial cooperation in criminal matters and to the provisions of the [Istanbul] Convention relating to asylum and non-refoulement. The Member States retain their competence insofar as the [Istanbul] Convention does not affect common rules or alter the scope thereof.

(7) The Union also has exclusive competence to accept the obligations set out in the [Istanbul] Convention with respect to its own institutions and public administration.’

15.According to recital 10 of Decision 2017/865, ‘Ireland and the United Kingdom are bound by [Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA (OJ 2011 L 101, p. 1) and Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA (OJ 2011 L 335, p. 1)] and are therefore taking part in the adoption of this Decision’.

16.According to recital 10 of Decision 2017/866, ‘in accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the TEU and to the TFEU, and without prejudice to Article 4 of that Protocol, those Member States are not taking part in the adoption of this Decision and are not bound by it or subject to its application’.

17.Recital 11 of both decisions states that, ‘in accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Decision and is not bound by it or subject to its application’.

18.In accordance with the above two decisions on the signature of the Istanbul Convention, that convention was signed on behalf of the Union on 13 June 2017. (4) However, no decision was adopted on the conclusion of the Istanbul Convention.

19.On 9 July 2019, the European Parliament requested, in accordance with Article 218(11) TFEU, an Opinion of the Court of Justice on the accession of the European Union to the Istanbul Convention. The request for an Opinion is worded as follows: (5)

‘[(1)(a)] Do Articles 82(2) and 84 TFEU constitute the appropriate legal bases for the Council act concluding the Istanbul Convention on behalf of the Union, or should that act be based on Articles 78(2), 82(2) and 83(1) TFEU[?]

[(1)(b)] Is it necessary or possible to split each of the two decisions on the signing and on the conclusion of the convention as a result of this choice of legal basis?

[(2)] Is the conclusion by the Union of the Istanbul Convention in accordance with Article 218(6) TFEU compatible with the Treaties in the absence of a common agreement of all the Member States giving their consent to being bound by the convention?’

III.The admissibility of the European Parliament’s request for an Opinion

20.There are two main ways in which international agreements concluded by the Union may be brought for consideration by the Court. One is the consideration of an international agreement by the Court in the context of its general jurisdictional mandate, such as in judicial review, enforcement actions, or preliminary ruling procedures. The second, which is relevant in the present case, is by virtue of the procedure laid down by Article 218(11) TFEU, under which the Court is specifically empowered, if so requested by a Member State, the European Parliament, the Council, or the Commission, to give an Opinion as to the compatibility with the Treaties of an international agreement, the conclusion of which is envisaged by the Union. (6)

21.Article 218 TFEU prescribe a procedure of general application concerning the negotiation and conclusion of international agreements which the Union is competent to conclude in the fields of its activity. (7) The final paragraph – Article 218(11) TFEU – provides for the important mechanism of an ex ante constitutional review of the proposed agreement. This mechanism is important from a legal perspective because, by virtue of Article 216(2) TFEU, international agreements concluded by the Union are binding on the EU institutions and on its Member States and thus are capable, in principle, of determining the legality of acts adopted by those institutions. Politically, such a mechanism is also important because the making of the request for an Opinion itself brings with it possible impediments to the formal conclusion of the agreement. (8)

22.Although the use of the Article 218(11) TFEU procedure remains relatively rare, the Opinions of the Court based on that provision have nonetheless generally been of considerable practical importance, not least because of the clarification which they have provided regarding the scope of the Union’s competences in the field of international law, international agreements and cognate matters. The Court’s Opinions have accordingly enunciated fundamental principles of external relations law, ranging from the exclusivity of Union competences to the principle of autonomy and its application in particular to international dispute settlements. Some of the Opinions of the Court have laid down constitutional principles of significance which go beyond the immediate questions raised or even the confines of EU external relations law. (9)

23.The rationale for the procedure was clearly explained by the Court, in Opinion 1/75, (10) namely:

‘to forestall complications which would result from legal disputes concerning the compatibility with the Treaty of international agreements binding upon the [EU]. In fact, a possible decision of the Court to the effect that such an agreement is, either by reason of its content or of the procedure adopted for its conclusion, incompatible with the provisions of the Treaty could not fail to provoke, not only in a[n EU] context but also in that of international relations, serious difficulties and might give rise to adverse consequences for all interested parties, including third countries.

For the purpose of avoiding such complications the Treaty had recourse to the exceptional procedure of a prior reference to the Court of Justice for the purpose of elucidating, before the conclusion of the agreement, whether the latter is compatible with the Treaty.

As the Court has pointed out, (11) a possible judicial decision after the conclusion of an international agreement that is binding upon the European Union, to the effect that such an agreement is, by reason either of its content or the procedure adopted for its conclusion, incompatible with the provisions of the Treaties, would indeed inevitably provoke serious legal and practical difficulties, not only in the internal EU context, but also in the field of international relations and might give rise to adverse consequences for all interested parties, including third countries.

The Opinion which the Court is asked for in the present case requires it to consider important preliminary issues regarding the admissibility of the questions addressed to the Court in the context of this exceptional procedure.

The admissibility of the request for an Opinion has been questioned by various parties in a number of respects.

First of all, with regard to part (a) of the first question, the Council, together with Ireland and the Hungarian Government, maintains that it is inadmissible as it is out of time. They contend that since the Parliament could have challenged the decisions to sign the Istanbul Convention and, on that occasion, the validity of the legal bases adopted, it can no longer refer the matter to the Court, since that would be tantamount to circumventing the rules relating to the time limits for bringing an action for annulment and, in so doing, would distort the subject matter of the Opinion procedure.

With regard to part (b) of the first question, the Council disputes its admissibility in so far as it concerns the signing of the Istanbul Convention on the ground that the decisions relating to the signature have become final.

The Council also claims the second question is inadmissible on the ground that it is hypothetical. Aside from the fact that that question is formulated in a general manner, it is also based on the premiss that the Council acted in accordance with a self-imposed rule consisting in waiting, in the case of a mixed agreement, until all the Member States have concluded such an agreement before the Union concludes it in turn, without the existence of such a rule of conduct having been established by the Parliament.

More generally, the Council, as well as the Spanish and Hungarian Governments, contest the admissibility of the application as a whole. They point out, first of all, that the decision-making process is still at a preparatory stage and, in particular, that it has not reached the stage where the Council has to seek the Parliament’s agreement. Since the Parliament would thus still have the opportunity to submit its observations on the draft decision to conclude the Istanbul Convention, the request for an Opinion is inadmissible as premature.

In addition, the Council considers that the Parliament is, in reality, objecting to the fact that the conclusion procedure has been slow. The Parliament should thus have brought an action for failure to act under Article 265 TFEU. Since the Opinion procedure has a different purpose and cannot be used to compel another institution to act, the application should be dismissed as inadmissible on that ground also. The Spanish, Hungarian and Slovak Governments share that view.

Finally, the Council, together with the Bulgarian Government, Ireland, and the Greek, Spanish, Hungarian and Polish Governments, maintains that, through its request for an Opinion, the Parliament is, in fact, seeking to challenge the Council’s decision to limit the scope of the Union’s conclusion to the Istanbul Convention to provisions falling within the exclusive competences of the Union and, consequently, to challenge the exact division of competences between the Union and the Member States. Since the Opinion procedure can only deal with the validity of a conclusion decision, the request for an Opinion should thus be rejected as inadmissible.

B. Analysis

At the outset, it should be pointed out that, in view of the legal and political significance of the procedure laid down by Article 218(11) TFEU, as outlined above, the Opinion procedure should, in principle, be given a relatively broad scope. (12)

The questions which may be referred to the Court pursuant to that procedure may thus concern both the substantive or formal validity of the decision concluding the agreement, (13) subject, in my opinion, to three limits which are aimed, in essence, at ensuring that the Court will not answer a question that would be of no concrete interest for the conclusion of a specific agreement. (14)

First, the questions raised must necessarily relate to an international agreement the conclusion of which is, but for the triggering of the Article 218(11) procedure, imminent and reasonably foreseeable. (15) This follows from the very language of Article 218(11) TFEU, which speaks of the question of whether an ‘agreement envisaged’ is compatible with the Treaties. Accordingly, the Parliament (or, for that matter, any other qualified applicant referred to in Article 218(11)) would not, for example, be entitled to invoke the Article 218(11) TFEU procedure in order to ask the Court to rule, on a purely abstract or entirely hypothetical basis, on the question of whether the conclusion of a particular international agreement would offend EU law, where the conclusion of that agreement has never been envisaged or the Union has made clear that it will not conclude that agreement.

As a matter of principle, the questions asked may, however, relate to any possible scenario in relation to the conclusion of the envisaged agreement, provided that the purpose of the procedure is to prevent the complications which may arise from the invalidation of the act of conclusion of an international agreement. (16) Indeed, since that procedure is not adversarial and takes place in advance of the conclusion of the proposed agreement by the Union, the case-law suggesting that the Court of Justice should refrain from delivering advisory opinions on general or hypothetical questions is obviously not applicable as such. (17) As that form of ex ante review necessarily involves some hypothetical element, any conclusion to the contrary would be tantamount to depriving Article 218(11) TFEU of its general ‘effet utile’. It is only in the particular situation where certain elements necessary to answer the question posed are not yet known that, in my view, a question posed in an application may be declared inadmissible on the ground not that it is hypothetical, but rather that it is materially impossible for the Court to answer it in view of the state of negotiations or proceedings.

Second, the request must question the compatibility with the Treaties of the conclusion of such an agreement. (18) Given the importance of the objective pursued by that procedure, that is to say, to prevent the complications which may arise from the invalidation of the act of conclusion of an international agreement, for the purposes of the interpretation of the provision itself, (19) the question asked must therefore concern only elements which may have an influence on the validity of the act of conclusion. (20) As the Court held in Opinion 1/75 (OECD Understanding on a Local Cost Standard) of 11 November 1975 (EU:C:1975:145), the Opinion procedure ‘must … be open for all questions capable … in so far as such questions give rise to doubt either as to the substance or formal validity of the [decision to authorise the conclusion, on behalf of the Union, of an international] agreement with regard to the Treaty’. (21) However, while a request for an Opinion may concern the question of whether an agreement should be concluded exclusively by the Member States, by the Union or by both, it is not for the Court in the course of an Opinion procedure to rule on the precise delimitation of the competences held by each. Indeed, in Opinion 2/00 (Cartagena Protocol on Biosafety) of 6 December 2001 (EU:C:2001:664), the Court ruled that where the existence of competences belonging to both the EU and the Member States has been established in the same area, their extent could not, as such, have any bearing on the very competence of the Union to conclude an international agreement or, more generally, on that agreement’s substantive or procedural validity in the light of the EU Treaties. (22)

Apart from those two material conditions, it is also necessary to take into account the existence of a formal condition. Where there is a draft agreement and where the Court is required to rule on the compatibility of the provisions of the envisaged agreement with the rules of the Treaty, the Court must have sufficient information on the actual content of that agreement if it is to be able to discharge its role effectively. (23) If, therefore, the request does not contain the requisite degree of information regarding the nature and content of the international agreement, it must be declared inadmissible. (24)

The various objections of inadmissibility raised by the parties can now be examined in the light of those principles.

As regards the first two exceptions of inadmissibility, concerning respectively, on the one hand, the absence of challenge by the Parliament, at the signature stage, to the choice of Articles 78(2), 82(2) and 83(1) TFEU as legal bases and, on the other hand, the possibility of questioning the Court about the validity of the decisions to authorise the signature, on behalf of the Union, of the Istanbul Convention, the considerations underlying the adoption of the judgment of 9 March 1994, TWD Textilwerke Deggendorf (C‑188/92, EU:C:1994:90), in so far as they relate to the general principle of legal certainty, (25) are, in my view, fully transposable by analogy to the Opinion procedure. As a result, since the Parliament did not, as it could have done, contest the validity of the signature decisions and they have therefore become final, that institution cannot use the Opinion procedure to circumvent the time limits governing an action for annulment. Therefore, in my view, part (b) of the first question should be declared inadmissible, but only in so far as it relates to the decisions to sign the Istanbul Convention.

In expressing that view, I do not overlook the fact that the Court held, in Opinion 2/92 (Third Revised Decision of the OECD on National Treatment) of 24 March 1995 (EU:C:1995:83) that ‘the fact that certain questions may be dealt with by means of other remedies in particular by bringing an action for annulment … does not constitute an argument which precludes the Court from being asked for an opinion on those questions beforehand under [Article 218(11) TFEU]’. (26) This, however, does not mean that the Article 218(11) TFEU procedure can itself be used as a substitute for an action for annulment, in so far as the signature decisions are concerned, as those decisions have become final and any ordinary legal challenge would, accordingly, be well out of time.

As I have, however, already noted, as far as the present request for an Opinion is concerned, it is the decision to sign – as distinct from any decision to conclude the agreement – which is out of time. The Court has already observed that the decision authorising the signature of an international agreement and the measure concluding it are two distinct legal acts giving rise to fundamentally distinct legal obligations for the parties concerned, the second measure being in no way a confirmation of the first. (27) This, in any event, is what standard principles of international treaty law provide. It follows, therefore, that any decision to authorise the conclusion of the Istanbul Convention on behalf of the Union remains open to challenge.

The third objection raised is that the second question is based on the unstated premiss that the Council wrongly believed that it was obliged to wait for all the Member States to conclude the Istanbul Convention before being authorised to do so. It is argued that the reliance on the Article 218(11) TFEU procedure for that purpose is thus founded on an unsubstantiated hypothesis and, accordingly, the request should be rejected as inadmissible.

In that regard, as explained above, it should be pointed out that questions addressed to the Court in the context of a request for an Opinion may relate to any possible scenario in relation to the conclusion of the envisaged agreement, provided that the purpose of the procedure is to prevent complications which may arise from the invalidation of the act of conclusion of an international agreement.

Admittedly, in an action for annulment, a plea based on breach of the Treaties resulting from a practice may lead to the annulment of the contested decision only if the applicant can establish that the decision-maker felt bound by the alleged practice, or, alternatively, considered that it was binding and, accordingly, that the practice was the reason for or the basis of that decision. (28) However, in the context of a request for an Opinion, no burden of proof is placed on the Member State or institution requesting that Opinion and any question can be raised provided that it relates to situations that might have occurred. (29) Indeed, the Opinion procedure is, by its very nature, designed to ascertain the Court’s position on hypothetical situations, since it can only relate, as a matter of principle, to a decision to conclude an agreement that has not yet been adopted. Accordingly, the fact that the Parliament has not shown that the Council would have felt bound by the practice in question is not a ground for the second question to be declared inadmissible.

As regards, the fourth objection, on the premature character of the request for an Opinion, it is worth recalling that Article 218(11) TFEU does not lay down any time limits in that regard. (30) The only temporal condition specified in that provision is that the conclusion of an agreement must be envisaged. It follows that a Member State, the Parliament, the Council or the Commission may obtain the Court’s Opinion on any matter relating to the compatibility with the Treaties of the decision to be adopted in order to conclude an international agreement in so far as its conclusion is envisaged by the EU (31) and for as long as that agreement has not yet been concluded by the Union. Since a request for an Opinion must be considered admissible even when the process leading to the adoption of the decision to conclude that agreement is still at a preparatory stage, this plea of inadmissibility cannot be accepted.

As regards the fifth objection, the Council’s argument that the Parliament should have brought an action for failure to act rather than a request for an Opinion, it must be stressed that the procedure provided for by Article 265 TFEU aims at having a European institution condemned for an unlawful abstention with regard to EU law. In the present case, even if there are indeed elements in the Court’s file suggesting that the Parliament is seeking to speed up the conclusion of the Istanbul Convention process, the fact remains that none of the questions asked by Parliament relates to a possible failure to act. Therefore, the present request for an Opinion cannot be declared inadmissible on such a ground. (32)

As regards, the sixth objection of inadmissibility raised on the ground that the questions posed, in fact, concern the delimitation of competences between the Union and the Member States, it should be noted that this particular objection relates, at most, to the first question, part (a). It is based on the premiss that, since the answer that the Court will give to that question cannot possibly concern the validity of the decision to conclude the convention, it seeks, in fact, a determination of the precise division of competences between the Member States and the Union.

In that regard, it must be recalled that, as the Court has repeatedly stressed, certain irregularities regarding the choice of the relevant legal basis do not necessarily lead to the invalidity of the act in question. It must instead be shown that those deficiencies are likely to have an impact on the applicable legislative procedure (33) or on the competence of the Union. (34)

For example, in its judgment of 18 December 2014, United Kingdom v Council (C‑81/13, EU:C:2014:2449, paragraph 67), the Court ruled that an ‘error in the citations of the contested decision’ (the omission of a legal basis among the others mentioned) was a purely formal one, which did not affect the validity of the decision at issue. Similarly, in the judgment of 25 October 2017, Commission v Council(WRC‑15) (C‑687/15, EU:C:2017:803), although the Court stressed the constitutional importance of legal bases, (35) it took care to verify that, in the circumstances of that case, the irregularity in question was likely to have an effect on the competences of the Commission and of the Council and on their respective roles in the procedure relating to the adoption of the contested act. (36) In particular, in paragraphs 55 and 56 of that judgment, while the Court held that the absence of any reference to a legal basis is sufficient to justify the annulment of the act in question for failure to state reasons, it nevertheless pointed out that the failure to refer to a specific provision of the Treaty – where others were mentioned ‐ may, in certain cases, not constitute a substantial defect.

In the present case, it is true that the different legal bases referred to in part (a) of the first question, namely Articles 78(2), 82(2), 83(1) and 84 TFEU, provide for the application of the ordinary legislative procedure, and will all lead to the adoption of a decision to conclude an agreement based on the same procedure, namely, the one provided for in Article 218(6)(a)(v) and (8) TFEU.

Admittedly, on the one hand, Articles 82(3) and 83(3) TFEU provide for the possibility for a Member State which considers that an act falling under these legal bases affects fundamental aspects of its legal system, to refer the matter to the European Council. On the other hand, those bases fall within the domain for which Protocols No 21 and No 22 to the TEU and the TFEU are likely to apply.

However, first, since the referral to the European Council only has the effect of suspending the legislative procedure, this option offered to Member States to refer the matter to the European Council does not appear to be of such a nature as to be irreconcilable with the procedures provided for in Articles 78 and 84 TFEU. Second, the Court has already held that Protocols No 21 and No 22 are not capable of having any effect whatsoever on the question of the correct legal bases to apply. (37) That view has been recently reaffirmed by the Court, as regards Protocol No 22, in Opinion 1/15 (EU-Canada PNR Agreement) of 26 July 2017 (EU:C:2017:592). (38)

In substance, therefore, while those protocols may certainly have an impact on the voting rules to be followed within the Council regarding the adoption of the act in question, they do not impact on the choice of its legal bases. (39) Indeed, the fact that part of an act falls under Part Three, Title V of the TFEU certainly has the consequence that the relevant provisions of that act are not binding, save in particular cases, on either Ireland or the Kingdom of Denmark. This, however, does not in itself mean that the area concerned by the provisions of that act falling within the scope of Part Three, Title V of the TFEU must be considered to be predominant, with the effect of making it compulsory to mention the corresponding legal bases. This only means that the voting rules within the Council provided for in those protocols will have to be followed when the provisions concerned are adopted, even if no legal bases referring to Part Three, Title V of the TFEU are mentioned.

In that context, one may thus fairly wonder whether part (a) of the first question actually seeks to ascertain the precise point of delimitation between the competences of the Union and those of the Member States. If the answer to that question were in the affirmative that would mean that part of the question would fall outside the scope of the Opinion procedure based on Article 218(11) TFEU.

It may be noted, however, that in order to answer part (a) of the first question, not only will the legal bases mentioned by the Parliament in its question have to be examined, but also the matter of whether any other legal basis will have to be included in the decision to conclude an agreement. Since it cannot be ruled out that a legal basis other than those mentioned by the Parliament may be relevant, it cannot be ruled out either that the Court's answer to the questions raised may have an impact on the validity of the decision to authorise the Union to conclude the Istanbul Convention. (40) Therefore, there is no reason, in my view, to declare part (a) of the first question inadmissible on the ground that it relates to issues unrelated to the validity of the decision to conclude the Istanbul Convention.

Regarding part (b) of the first question and the second question, in addition to the fact that these questions have nothing to do with the distribution of competences between the Union and the Members States, I consider, in any case, that given that the Court has never carried out an in-depth examination of whether those obligations might have an influence on the content of the decision to conclude an international agreement, those questions should be answered, precisely in order to rule on those issues. (41)

Contrary, however, to the assertion advanced by certain parties, the second question cannot be reinterpreted as one relating purely to the question of whether the Council is entitled to wait until all the Member States have concluded the Istanbul Convention. (42) Indeed, even if such a practice were to be considered as incompatible with the Treaties, that circumstance would not lead to the nullity of the decision to conclude that convention since, to repeat, tardiness in that matter is not, as a matter of principle, a cause of invalidity. In order to meet the admissibility criteria, that question is necessarily to be understood exactly as it is formulated, that is to say, as relating to whether the decision to conclude the Istanbul Convention would be compatible with the Treaties if it were to be adopted before that convention had been concluded by all Member States.

I therefore consider that all the questions referred to the Court by the Parliament should be regarded as admissible, except part (b) of the first question, but only in so far as it relates to the decision to sign the Istanbul Convention.

By part (a) of its first question, the Parliament asks the Court to rule on whether Articles 82(2) and 84 TFEU are the appropriate legal bases for the Council’s decision on the conclusion of the Istanbul Convention in the name of the Union or if that act must be based on Articles 78(2), 82(2) and 83(1) TFEU.

The Parliament notes that the Commission’s proposal for a decision to authorise the signature, on behalf of the Union, of the Istanbul Convention and its proposal for a decision to authorise the Union to conclude the Istanbul Convention mentioned Article 218 TFEU as a procedural legal basis, and Articles 82(2) and 84 TFEU as substantive legal bases. However, when the Council adopted the decision to authorise the signature of the Istanbul Convention, the Council modified those substantive legal bases, referring to Articles 78(2), 82(2) and 83(1) TFEU.

In view of the objectives of the Istanbul Convention, which ‐ as the provisions of Articles 1, 5 and 7 and Chapters III and IV thereof make clear ‐ is to protect women who are victims of violence and to prevent such violence, the Parliament queries whether the Commission was justified in identifying Articles 82(2) and 84 TFEU as the two predominant elements of that convention. The Parliament therefore wonders whether the Council would be entitled to abandon Article 84 TFEU as a substantive legal basis and, instead, add Articles 78(2) and 83(1) TFEU, as it did when it adopted the decision to authorise the signature of the Istanbul Convention.

The Parliament has doubts in particular with regard to Article 78(2) TFEU, since this legal basis only covers Articles 60 and 61 of the Istanbul Convention. It queries whether those two provisions can be regarded as an autonomous and predominant element of that convention, or whether Articles 60 and 61 of that convention are not simply the transposition, to the specific field of asylum, of the general concern to protect all women who are victims of violence. If that were the case, those two provisions of the Istanbul Convention would be ancillary in nature and would not require the addition of a specific legal basis.

As regards Article 83(1) TFEU, the Parliament notes that this provision confers competence in criminal matters on the Union only in certain areas which do not include violence against women as such. Such violence could therefore be criminalised at EU level when it relates to trafficking of human beings, the sexual exploitation of women and children, and organised crime, which are the primary focus of the Istanbul Convention as such. Moreover, since the Member States have retained competence for the bulk of substantive criminal law covered by the Istanbul Convention and the elements for which the Union has competence appear to be secondary in nature, the addition of a specific legal basis related to criminal law would not be necessary.

It thus follows from the above that the first question relates to the choice of legal bases and not, as certain arguments developed by some parties may suggest, to the exclusive or non-exclusive nature of the Union’s competence to conclude the Istanbul Convention. Admittedly, the exclusive or non-exclusive nature of certain competences will be examined, but only in so far as is necessary to answer that question. It may be convenient in that respect to make some remarks regarding the choice of methods before examining the content of the Istanbul Convention.

According to the Court’s settled case-law, the choice of the legal bases for an EU act, including one adopted in order to conclude an international agreement, must rest on objective factors amenable to judicial review, which include the aim and the content of that measure. (43)

If an examination of an EU act demonstrates that it pursues a twofold purpose or that it comprises two components and if one of these is identifiable as the main one, whereas the other is merely incidental, the act must be based on a single legal basis, namely that required by the main or predominant purpose or component. (44)

Exceptionally, if it is established that the act simultaneously pursues several objectives or has several components which are inextricably linked, without one being incidental to the other, such that various provisions of the Treaties are applicable, such a measure will have to be founded on the corresponding different legal bases. (45) Nonetheless, recourse to dual legal bases is not possible where the procedures laid down for each legal basis are incompatible with each other. (46)

Hence, it is the objectives and components of an act that determine its legal basis – or in some instances, its multiple legal bases – and not the exclusive or shared nature of the competences held by the Union in relation to that act. (47) As I propose to explain later, it is true that the exclusive or shared nature of those competences can certainly, from the point of view of EU law, exert an influence on the extent, of the conclusion of an international agreement and will therefore circumscribe the available legal bases. However, the choice of the legal bases to be retained among those corresponding to the competences exercised will depend solely on the objectives and components of the act at stake.

As Advocate General Kokott has observed, such an approach should not be applied to the delimitation of the competences respectively held by the Union and by the Member States. Indeed, ‘if … the [Union] is competent only in respect of certain components of a proposed act, while other components come within the competence of the Member States, … the [Union] cannot simply declare that it is competent for the entire act by way of a main-purpose test. Otherwise it would undermine the principle of limited conferred powers …’. (48)

Similar concerns might be raised in regards to the determination, among the competences held by the Union, of those on which the adoption of the act in question must rely and, therefore, to the determination of the relevant legal bases on which to adopt an act. The centre of gravity test leads to the applicable procedure for the adoption of an act being determined solely on the basis of the main legal bases. By definition, therefore, this approach implies to look only to the main competence(s) being exercised. It is important, accordingly, that vital procedural guarantees which are inherent in the exercise of certain other competences – such as unanimous voting by the Council – are not thereby circumvented. Indeed, whereas a legal provision might have been mandatorily adopted in isolation on the basis of a particular legal basis, when inserted into an act containing other provisions, that provision might be adopted on a different legal basis – which, for example, prescribe a different voting rule. This, in effect, might lead to strategies aimed at introducing legal riders (cavalier législatif). (49)

The Court has nevertheless systematically referred to the ‘predominant objectives and components’ test (also called ‘centre of gravity test’) in the existing case-law. For example, the Court once again pointed out in its judgment of 4 September 2018, Commission v Council (Agreement with Kazakhstan) (C‑244/17, EU:C:2018:662, paragraph 38), that if ‘a decision comprises several components or pursues a number of objectives, some of which fall within the [Common Foreign and Security Policy], the voting rule applicable for its adoption must be determined in the light of its main or predominant purpose or component’. As a result, while an act might pursue several objectives and require the ‘mobilisation’ of different competences, the legal basis on which its adoption relies will not reflect all the competences exercised to adopt that act, but only the one(s) corresponding to the main objective(s) or component(s) of the act. (50) In addition, the risk of circumventing certain procedural rules, mentioned above, has been cut down since the entry into force of the Treaty of Lisbon, which has considerably reduced the particularities of certain procedures.

In certain judgments, starting with that of 10 January 2006, Commission v Council (C‑94/03, EU:C:2006:2, paragraph 55), the Court has admittedly emphasised that a legal basis could serve not only to determine the applicable procedure and to verify that the Union was indeed, at least in part, competent to sign the agreement in question, but also to inform third parties about the extent of the EU competence exercised (51) and the scope of the act in question. (52) It might therefore be tempting to infer from that line of case-law that, in order to assume such a role, the legal bases of an act should reflect all the competences exercised by the Union to adopt the act at issue. In particular, such an approach may seem justified when an international agreement falls within several competences shared between the Union and the Member States, since the Union might decide to not exercise some of its competences, which consequently means that it will fall to the Member States to implement the corresponding provision(s) of that agreement. (53)

Such an approach would, however, be at variance with the approach that the Court has so far adopted in order to avoid any conflict of legal bases. (54) For example, in Opinion 1/15 (EU-Canada PNR Agreement) of 26 July 2017 (EU:C:2017:592) ‐ where the Court ruled that the decision to authorise the conclusion by the Union of the international agreement at issue should have two legal bases ‐ the Court referred again to the abovementioned case-law. (55)

In addition, while these matters are, of course, of fundamental importance to the internal order of the Union (and its division of competences between the Union and its Member States) it is not of any direct concern to third States, since by virtue of Article 27 of the Vienna Convention on the Law of Treaties of 23 May 1969 (United Nations Treaty Series, vol. 1155, p. 331) ‐ a treaty which itself codifies customary international law with regard to international agreements and is binding on the European Union (56) ‐, parties to an international agreement, whether they are a State or an international organisation, may not invoke the provisions of their internal law as justification for their failure to execute a treaty. (57)

Regarding the Member States, while it may indeed be of interest to them to be fully cognisant of the extent of the competences exercised by the Union at the time of the conclusion of an agreement, the legal bases of an act are not the only means of conveying this information. Indeed, it is settled case-law that the obligation to state reasons, provided for in Article 296(2) TFEU, is assessed in particular in the light of the content of the act as a whole, (58) especially its recitals. (59) Consequently, while it is important that the Member States should be able to determine what powers were exercised by the Union when it concluded a particular agreement, the fact that it is not possible to deduce this information from the legal bases actually chosen as the basis for the adoption of the decision authorising the conclusion of such an agreement does not appear to be decisive.

In that context, although there is much to be said for the contention that the legal basis of an act should faithfully reflect the competences exercised by the Union to adopt that act, it may nevertheless be observed that such an approach would be not entirely consistent with the state of the case-law. (60)

Accordingly, in the rest of this Opinion, I propose to follow the Court’s line of case-law according to which where an act pursues several objectives or has several components, that act must be based in principle on a single legal basis and, exceptionally, on several such legal bases. Those legal bases must be those which are required by the predominant or, at least, by the main purposes or components of the international agreement. It follows that it is immaterial whether other competences were exercised in the course of the adoption of the act in question as long as those other competences concern objectives or components which are in substance ancillary or incidental.

In the present case, it is clear from the wording of the question put by the Parliament that it is based on the premiss that, for the adoption of the decision authorising the conclusion, on behalf of the Union, of the Istanbul Convention, the Union will exercise, at the very least, the competences it holds in matters of, first, judicial cooperation in criminal matters and, second, asylum and immigration. The relevance of this premiss is, moreover, confirmed by the content of the decisions authorising the signature, on behalf of the Union, of the Istanbul Convention, which may be regarded, despite the case-law referred to in paragraph 42 of the present Opinion, as anticipating, to a certain extent, the competences that will be exercised at the time of conclusion.

However, such a premiss needs to be, at least, compatible with the current distribution of competences. This requires an assessment of whether, apart from those competences, the agreement deals with other EU competences that need to be exercised, since they are exclusive. As I have explained, that implies taking into account not only the competences that the Union intends to exercise, but also the competences which, because they belong exclusively to the EU, will necessarily have to be exercised if it wishes to conclude this agreement.

In that regard, it should be recalled that Article 3(1) TFEU sets out the list of competences which are, by nature, exclusive. In addition to this list, Article 3(2) TFEU specifies that the ‘Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope’. (70)

As the Court’s case-law makes clear, there is a risk that common EU rules might be adversely affected by international commitments, or that the scope of those rules might be altered, which is such as to justify an exclusive external competence of the European Union, where those commitments fall within the scope of those rules. (71)

A finding that there is such a risk does not presuppose that the area covered by the international commitments and that of the EU rules fully coincide. (72) In particular, such international commitments may affect EU rules or alter their scope when the commitments fall within an area which is already covered to a large extent by such rules. (73)

Contrary to the Commission’s argument, it cannot be inferred from the Court’s case-law that a holistic approach should be taken to determine whether, in the areas covered by an agreement, the Union has exclusive or shared competence. On the contrary, since the Union has only conferred competences, any competence, especially exclusive competence, must have its basis in conclusions drawn from a comprehensive and detailed analysis of the relationship between the international agreement envisaged and the EU law in force. (74)

In order to determine whether the agreement is capable of undermining the uniform and consistent application of some EU common rules and the proper functioning of the system which they establish, that analysis must take into account the areas covered by EU rules and by the provisions of the envisaged agreement which will be binding on the Union, since they correspond to competences that the Union has chosen to exercise at the time of the adoption of the decision to conclude that convention, as well as the foreseeable future development of those rules and those provisions. (75)

So far as those issues are concerned, Ireland argues that the Parliament did not, in its application, carry out a comprehensive and detailed analysis of the impact of the Istanbul Convention on secondary EU law. (76) Indeed, the Court has held that it is, for the purposes of such an analysis, for the party concerned to provide evidence to establish the exclusive nature of the external competence of the EU on which it seeks to rely. (77)

It is, however, significant that the reasoning of that line of case-law was contained in judgments delivered in the context of an action for annulment. In those cases, the Court is called upon to rule on the basis of the submissions exchanged between different parties. Such a requirement does not apply to the request for an Opinion procedure, which is marked by a spirit of collaboration between the Court, the other institutions of the Union and the Member States and aims at preventing complications from arising at a later stage. (78) Indeed, since that procedure is both ex ante and not adversarial, arguments based on the adversarial, ex post system of review entailed in an annulment action have little relevance in this context. Consequently, I consider that the fact that the Parliament has not carried out a comprehensive and detailed analysis of the impact of the convention on secondary EU law is not, in itself, material and that it is for the Court to carry out such an analysis.

However, it should be recalled that, according to the Court’s case-law, the adoption of an international agreement will not affect common rules where both the provisions of EU law and those of the international agreement in question lay down minimum requirements. (79) Accordingly, even when an international agreement covers the same areas as common EU rules, that case-law suggests that the Court will not find that EU rules ‐ and thus the shared competence ‐ are affected where minimum standards are prescribed by both. (80)

In the case of the Istanbul Convention, Article 73 provides that ‘the provisions of this Convention shall not prejudice the provisions of internal law and binding international instruments which are already in force or may come into force, under which more favourable rights are or would be accorded to persons in preventing and combating violence against women and domestic violence’.

In that context, therefore, in order for a competence shared by the Union with the Member States to be regarded as an exclusive one (that is to say, one that the Council will be obliged to exercise), it would be necessary to establish that the Union has already adopted common rules in this area which, first, do not lay down minimum standards and, second, that these standards are likely to be affected by the conclusion of the Istanbul Convention.

Regarding the two decisions authorising the signature, on behalf of the Union, of the Istanbul Convention, it is possible to have doubts as to whether the Council was correct in considering that the Union will be obliged to exercise those competences by virtue of the third situation mentioned in Article 3(2) TFEU.

On the one hand, as the Republic of Poland has sought to emphasise, Articles 82(2) and 83(1) TFEU, which concern judicial cooperation in criminal matters, simply provide for the adoption of minimum rules. Therefore, the common rules adopted in that area can validly lay down minimum standards only.

On the other hand, as far as Article 78(2) TFEU is concerned – which confers on the Union a competence in asylum and immigration – it seems at first glance that the common rules adopted by the Union in the field of asylum and immigration policy lay down only minimum rules or, where they do not, these rules, in my view, are unlikely to be affected by the Istanbul Convention provisions.

In that regard, it should indeed be noted that the Istanbul Convention contains three provisions that may be relevant to asylum and immigration policy, namely, Articles 59 to 61 thereof, which form Chapter VII of that convention.

With regard to Article 59 of the Istanbul Convention concerning the residence status of women victims of violence, the rules established by the Union regarding residency provide only minimum requirements. (81) In particular, as Advocate General Bot mentioned in Rahman and Others (C‑83/11, EU:C:2012:174, point 64), Directive 2004/38 (82) introduces minimum harmonisation, since it aims in particular to recognise a right of residence for the family member of a resident of the Union in certain situations without excluding that a right of residence may be granted in other cases.

It is also true that certain judgments regarding Directive 2004/38, such as NA (83) or Diallo, (84) might have given rise to doubts as to the minimum nature of some of the requirements contained in that directive. Those decisions must, however, be viewed in their proper context. Indeed, since, in a preliminary reference procedure, the Court has no jurisdiction either to interpret national law or to apply EU law to a given case, when it gives judgment it always does so by reference to the situation envisaged in the question(s) submitted, which may cover only certain aspects of the dispute. Consequently, when the Court is asked about the interpretation of a particular provision of a directive, even if this directive provides that it lays down only minimum standards, the Court will most often take a stand, depending on how the question is asked on the interpretation that should be given to the provision at stake irrespective of the possibility for Member States to adopt higher standards. (85) The answer given in this type of situation is therefore without prejudice to the possibility for States to grant, on the sole basis of their national law, a right of entry and residence on more favourable conditions. (86) Accordingly, once placed in the context of the preliminary ruling mechanism, the solutions adopted in NA (87) or Diallo (88) are to be understood not as forbidding Member States from issuing a residence permit in the cases referred to, but rather as not requiring Member States to do so. (89)

As for Article 60 of the Istanbul Convention, it provides that signatory parties must, in essence, recognise that gender-based violence against women can be recognised as a form of persecution within the meaning of the 1951 Convention relating to the Status of Refugees and as a form of serious harm giving rise to complementary or subsidiary protection.

Here, again, certain directives, mainly those referred to as ‘first–generation directives’, mention that they only set out minimum rules. (90) Admittedly, the more recent directives specify that Member States may introduce or retain more favourable standards only ‘in so far as those standards are compatible with [those] Directive[s]’, which might suggest that more favourable standards in regards to certain provisions might not be adopted. (91) However, those directives grant procedural rights or guarantees or, alternatively, oblige Member States to take into account certain circumstances without excluding the possibility that others may also be granted or taken into account. In particular, none of the grounds for the exclusion from refugee status or for cessation or revocation of subsidiary protection laid down in those instruments appears likely to contravene the provisions of the Istanbul Convention.

EU law does, of course, harmonise to some extent the conditions for third-country nationals or stateless persons by which such persons may qualify for refugee status or persons who otherwise need international protection, together with the content of such status. (92) Those conditions are, however, such that it seems possible to apply them in accordance with Article 60 of the Istanbul Convention. In particular, with regard to refugee status, I note that Article 2(d) of Directive 2011/95 (93) defines the notion of refugee as referring to any third-country national who is outside the country of nationality and is unable or unwilling to avail himself or herself of the protection of his or her state of nationality, owing to a well-founded fear of persecution for reasons, in particular, of ‘membership of a particular social group’, a concept which is defined very broadly in Article 10 of the same directive, as referring in particular to any group whose ‘members of that group share an innate characteristic’. (94) It further states that ‘gender related aspects, including gender identity, shall be given due consideration for the purposes of determining membership of a particular social group or identifying a characteristic of such a group’.

Finally, with regard to Article 61 of the Istanbul Convention, one may observe that it provides that the parties must take the necessary measures to respect the principle of non-refoulement, an obligation that is already provided for in EU law. (95)

In any case, it does not seem to me necessary in the present case to decide definitively whether the Union has, as the Council considers, exclusive competence to conclude the Istanbul Convention in those two areas by virtue of Article 3(2) TFEU and consequently whether the Union is obliged to exercise those competences. Indeed, even if it turns out that, in the absence of any risk of EU common rules related to that area being affected by the conclusion of the Istanbul Convention, such competences will remain shared, the Council would nonetheless remain free to exercise them, which will in principle be the case. (96) As I have explained above, the question referred by the Parliament is indeed implicitly based on the premiss that the Union will exercise, at the very least, the competences it holds in matters of asylum and immigration and judicial cooperation in criminal matters.

B. Analysis of the objectives and components of the Istanbul Convention

According to its preamble, the objective of the Istanbul Convention is to ‘create a Europe free from violence against women and domestic violence’. As stated in Article 1 of that convention, the achievement of such an objective is divided into five sub-objectives, which are namely, to:

–‘protect women against all forms of violence, and prevent, prosecute and eliminate violence against women and domestic violence;

–contribute to the elimination of all forms of discrimination against women and promote substantive equality between women and men, including by empowering women;

–design a comprehensive framework, policies and measures for the protection of and assistance to all victims of violence against women and domestic violence;

–promote international co-operation with a view to eliminating violence against women and domestic violence;

–provide support and assistance to organisations and law enforcement agencies to effectively co-operate in order to adopt an integrated approach to eliminating violence against women and domestic violence.’

With regard to the content of the Istanbul Convention, this convention comprises 81 articles divided into 12 chapters, worded as follows:

–‘Chapter I – Purposes, definitions, equality and non-discrimination, general obligations’;

–‘Chapter II – Integrated policies and data collection’;

–‘Chapter III – Prevention’;

–‘Chapter IV – Protection and support’;

–‘Chapter V – Substantive law’;

–‘Chapter VI – Investigation, prosecution, procedural law and protective measures’;

–‘Chapter VII – Migration and asylum’;

–‘Chapter VIII – International co-operation’;

–‘Chapter IX – Monitoring mechanism’;

–‘Chapter X – Relationship with other international instruments’;

–‘Chapter XI – Amendments to the Convention’;

–‘Chapter XII – Final clauses’.

Chapter I of the Istanbul Convention contains provisions relating to the aims and definitions and the relationship of that convention to equality and non-discrimination as well as general obligations. In particular, it defines key terminology used throughout the text (97) and obliges parties to condemn all forms of discrimination by ensuring that the principle of equality between men and women is applied in their legal orders, and it is made clear that positive action may be taken. (98) All parties are also obliged to ensure that State actors refrain from engaging in any act of violence and to exercise due diligence so that acts of violence committed by non-State actors are prevented, investigated and punished, and that reparation is provided for such acts. (99) Finally, that chapter states that the parties shall, inter alia, promote policies of equality between women and men and the empowerment of women. (100)

Chapter II obliges the parties to implement a comprehensive policy of response to violence against women, by establishing effective cooperation between all relevant agencies, institutions and organisations, also involving, where appropriate, all relevant actors, such as government agencies, the national, regional and local parliaments and authorities, national human rights institutions and civil society organisations. (101) Parties are also required to collect disaggregated relevant statistical data and endeavour to conduct population-based surveys at regular intervals on cases of all forms of violence covered by the scope of the Istanbul Convention. (102)

Chapter III details the parties’ obligations in the area of prevention. Basically, parties are obliged to take a multifaceted approach, comprising awareness-raising, the inclusion of gender equality and the issue of violence in formal education at all levels through appropriate teaching material and curricula, and extending the promotion of non-violence and gender equality to informal education contexts, sports, culture, leisure and the media. (103) Parties must ensure that appropriate training is provided to professionals dealing with victims and perpetrators. (104) Measures also need to be put in place to provide preventive intervention and treatment programmes, (105) and to encourage the private sector to participate in the elaboration and implementation of those policies and in drawing up material and voluntary standards. (106)

Chapter IV defines the obligations of the parties with respect to the protection and support of victims. (107) Those obligations include that of providing adequate and timely information on available support services and legal measures in a language they understand (108) and to ensure the availability of general support services, such as health care and social services, legal and psychological counselling, financial assistance, housing, education, training and assistance in finding employment, (109) and specialist services, including shelters, cost-free and permanently reachable telephone hotlines, specific medical and forensic support to victims of sexual violence and consideration of the needs of child witnesses. (110) Moreover, measures need to be put in place to encourage reporting of violence by any witness to the commission of acts of violence or person who has reasonable grounds to believe that such an act may be committed or further acts of violence are to be expected, as well as rules on the conditions under which professionals’ reporting of violent acts or expected violent acts does not breach their general obligation to maintain confidentiality. (111)

Chapter V on substantive law contains the most detailed provisions. First, it requires the parties to provide victims with adequate civil remedies against perpetrators of physical or psychological violence, including compensation; to ensure that forced marriages may be voidable, annulled or dissolved without undue financial or administrative burden placed on the victim; and to ensure that, in the determination of custody and visitation rights of children, incidents of violence covered by the scope of the Istanbul Convention are taken into account. (112) Second, that chapter sets out a list of conduct that requires a criminal law response, namely psychological violence through threat or coercion, stalking, physical violence, sexual violence including rape, forced marriage, female genital mutilation, forced abortion or sterilisation, and sexual harassment. (113) That chapter also obliges parties to criminalise the aiding, abetting and attempted commission of the offences, as well as causing third persons to commit these crimes. (114) Third, Chapter V states that the parties must take measures to ensure that ‘honour’ cannot be invoked as a justification for any of those crimes (115) and that offences established in accordance with that convention shall apply irrespective of the nature of the relationship between victim and perpetrator. (116) Fourth, it obliges the parties to take the necessary legislative or other measures to establish jurisdiction over any offence established in accordance with that convention, as soon as that offence has a link with their territory or one of their nationals. (117) Fifth, it obliges the parties to provide for adequate and dissuasive sanctions (118) and to treat a list of situations as aggravating circumstances. (119) Finally, Chapter V allows the parties to take into account sentences passed by another party in relation to the offences established in accordance with that convention when determining the sentence (120) and prohibits the establishment of mandatory alternative dispute resolution processes. (121)

Chapter VI addresses procedural law and protection measures during investigations and judicial proceedings. (122) Parties must ensure inter alia that law enforcement agencies offer prompt protection to victims, including the collection of evidence, (123) and carry out an assessment of the lethality risk and the seriousness of the situation. (124) The availability of firearms to perpetrators needs to be given special attention. Legal orders must provide for the possibility to adopt emergency barring and restraining or protection orders, without placing undue financial or administrative burden on the victim. (125) Any breach of those orders issued shall be subject to effective, proportionate and dissuasive criminal or other legal sanctions. Parties shall ensure that evidence relating to the sexual history and conduct of the victim shall be permitted only when it is relevant and necessary (126) and that the most severe offences must not be made wholly dependent upon a report or complaint filed by a victim. (127) The parties must also provide for the possibility for governmental and non-governmental organisations and domestic violence counsellors to assist and/or support victims, at their request, during investigations and judicial proceedings concerning the offences established in accordance with the Istanbul Convention. In that chapter, that convention sets down an open list of measures to protect the rights and interests of victims, including their needs as witnesses at all stages of investigations and judicial proceedings. The special needs of child victims and witnesses need particularly to be taken into account. (128) Lastly, the parties must provide for the right to legal aid (129) and the statute of limitations must be construed in such a way as to allow for the efficient initiation of proceedings after a victim has reached the age of majority, for the most serious offences. (130)

Chapter VII provides that the parties shall also take the necessary legislative steps to prevent the residence status of victims from being affected by measures to combat violence (131) and that gender-based violence against women as a form of persecution and as a form of serious harm give rise to complementary/subsidiary protection within the meaning of the Convention Relating to the Status of Refugees, signed in Geneva on 28 July 1951. (132) Moreover, gender-sensitive asylum procedures need to be put in place by the parties. That chapter also aims to ensure that in all circumstances the principle of non-refoulement is applied to victims of violence against women. (133)

Chapter VIII is dedicated to ensuring international cooperation between the parties in the implementation of the Istanbul Convention. In particular, the parties need to ensure that claims can be brought in the victim’s country of residence for crimes committed in the territory of another party to this convention. (134) In situations where a person is at immediate risk of violence, parties should inform one another, so that protection measures can be taken. (135)

Similar Documents

We Found Similar Cases for You

Opinion of Advocate General Hogan delivered on 11 March 2021.

ECLI:EU:C:2021:198

62019CC0001

delivered on 11 March 2021 (1)

Opinion procedure 1/19

Initiated following a request made by the European Parliament

I.Introduction

II.The background to the Istanbul Convention

III.The admissibility of the European Parliament’s request for an Opinion

B. Analysis

B. Analysis of the objectives and components of the Istanbul Convention

AI-Powered Case Law Search

Get Instant Answers to Your Legal Questions

Links

Contact Us