This week the Civil Liberties, Justice and Home Affairs Committee of the European Parliament will examine an interesting initiative for a Directive presented by twelve Members of the European Union (the Kingdom of Belgium, the Republic of Bulgaria, the Kingdom of Spain, the Republic of Estonia, the French Republic, the Italian Republic, the Republic of Hungary, the Republic of Poland, the Portuguese Republic, Romania, the Republic of Finland and the Kingdom of Sweden under the Spanish Presidency in accordance to the Stockholm Programme) within the framework of judicial cooperation in criminal matters.
The initiative concerns a proposal for a “European Protection Order” to ensure that the protection provided especially to women victims of violence in one Member State is maintained and continued in any other Member State to which the person moves or has moved.
The Initiative is accompanied by an explanatory memorandum allowing to appraise compliance with the principles of subsidiarity and proportionality, in accordance with Article 5 of Protocol (No 2) to the Lisbon Treaty together with a questionnaire drawn up by the Spanish Presidency on the current legislative framework in the Member States.
According to the proposal for a directive, the victim under threat should, as far as possible, enjoy the same level of protection throughout EU territory as in the State which adopted the original protection measure. The Member State to which the victim under threat moves should provide an “immediate response” in the form of a “European protection order” imposing to the “Person causing danger” one or more of the following obligations or prohibitions:
(a) an obligation not to enter certain localities, places or defined areas where the protected person resides or that he visits;
(b) an obligation to remain in a specified place, where applicable during specified times;
(c) an obligation containing limitations on leaving the territory of the issuing State;
(d) an obligation to avoid contact with the protected person; or
(e) a prohibition on approaching the protected person closer than a prescribed distance.
Naturally, this initiative “shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles” as enshrined in Article 6 (article 3) of the TEU.
The European protection order is issued by a judicial authority or another competent authority only at the request of the protected person, after verifying that the protection measure meets all the requirements of the national legislation of the issuing or the requesting State.
It shall also include a summary of the facts and circumstances which have led to the imposition of the protection measure in the issuing State (if necessary with an explicit indication of a ruling on the basis of article 2 of the framework decision 2008/947/GAI or a decision concerning preventive measures on the basis of article o 4 of the framework decision 2009/829/GAI) as well as the obligations or prohibitions imposed in the protection measure underlying the European protection order on the person causing danger.
Furthermore, the length of these obligations and restrictions and the express indication that their infringement constitutes a criminal offence under the law of the issuing State or may otherwise be punishable by a deprivation of liberty should be indicated.
The proposal for a directive recognises the right by the competent authority of the executing State to refuse to recognise a European protection order in the following circumstances:
(a) the European protection order is not complete or has not been completed within the time-limit set by the competent authority of the executing State;
(b) the requirements set out in Article 2(2) have not been met;
(c) the protection derives from the execution of a penalty or measure that is covered by amnesty according to the law of the executing State and relates to an act which falls within its competence according to that law;
(d) there is immunity conferred under the law of the executing State on the person causing danger, which makes it impossible to adopt the protection measures.
The scrutiny of this initiative appears as a priority of the Spanish Presidency which, therefore, will try to obtain the European Parliament’s support in view of a swift adoption in first reading (as it happened in other cases).
If this will occur, the qualified majority in the Council will be sufficient to adopt the initiative together with the simple majority in the European Parliament.
In addition, national parliaments will be entitled to intervene to signal their opposition if they believe that the proposal does not respect the principle of subsidiarity.
Last but not least, also the European Commission will be able to express its opinion during the legislative process. However, it will not be able to tide the Council’s position as when it does when it concerns its own initiative (indeed, in these circumstances the Council may approve a proposal different from the Commission’s one only by unanimity in order to protect the right of initiative of the institution defined as the “guardian of the Treaties”).
EDC
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