Not a Case of Obstruction – a Matter of Competence

Tatjana Hörnle on the proposed EU Directive on combatting violence against women and domestic violence

In a Verfassungsblog article, criminal law scholar Tatjana Hörnle explains why she considers concerns about the proposed harmonization of the criminal offense of rape across the EU to be warranted.

In an “Open Letter” (available in German only) – dated January 29 and addressed to the German Federal Ministry of Justice – over 100 women in prominent positions in politics, the cultural sector, and the economic sector call for an end to the Ministry’s “obstructionist course” in dealing with a measure proposed by the European Com­mis­sion. The Commission has been advocating a Directive aimed at combating violence against women and domestic violence. Within the framework of this Directive, criminal law governing the offense of rape would be harmonized across the EU. This section of the Di­rective has been met with opposition from the Council of the Eu­ro­pean Union, questioning whether the competence lies with the EU. These concerns have been outlined in detail in a report issued by the Commission’s Legal Service. Conversely, a Verfassungsblog article by the authors Çelebi, Koop, and Melchior takes the opposite view.

The main question is to what extent shaping criminal law falls within the competence of the EU. The signatories to the “Open Letter” seem to be of the opinion that the EU can and is allowed to do anything, with the obstructionist Minister of Justice representing the only obstacle. The legal reality is a different one (see Heger). The EU Member States have defined the competences that fall to the EU in several fundamental Treaties, including the Treaty on the Functioning of the European Union (TFEU). Under these Treaties, criminal law Directives aimed at harmonizing legislation are only permitted to a very limited extent. As a rule, shaping substantive criminal law falls to the Member States, with the exception of particularly serious crimes with a “cross-border dimension” (Art. 83(1) TFEU). Art. 83(1) goes on to list the specific areas of crime this applies to, including terrorism, illicit drug trafficking, illicit arms trafficking, and organized crime. Trafficking and other activities of this sort are often very internationalized affairs. As a logical consequence, national criminal law falls short of adequately governing them. Such a “cross-border dimension” is equally obvious when it comes to computer crime, which is also listed in Art. 83(1) TFEU. Consequently, there is no reason to object to the proposed Directive referring to cybercrime (cyberstalking, cyberbullying). However, it remains a mystery what prompted the EU to include rape. The logic behind the question of who has competence over what is not that the EU should be responsible for all serious crime, whilst the Member States are left to deal with less serious offenses. For example, it goes without saying that national criminal law governs homicide and bodily harm – as it does the majority of offenses – without the EU having the right to interfere. The same should be true for non-digital sexual offenses.

The proposed Directive only very briefly and surprisingly superficially touches on the issue of subsidiarity/EU compe­tence. The only possible link appears to be the fact that “trafficking  in human beings and sexual exploitation of women and children” is listed as a criminal matter with a cross-border dimension. This refers to the common strategy of trafficking people across borders or assisting them in entering a different country with the aim of exploiting them by subjecting them to forced prostitution or sexual abuse. It seems a far-fetched assumption to take this to refer to typical cases of rape. The Legal Service’s report comments in detail on how the list of cross-border crime was developed. Its origins point to the fact that the term “sexual exploitation” refers to cases that are closely connected to the “combat against human trafficking.” The original wording of “in particular the sexual exploitation of women and children” is even clearer evidence of this, which turned out too narrow in scope once awareness grew that human trafficking is a much broader and complex phenomenon. The intention was not to give the EU sole competence over the entire criminal law governing sexual offenses. This is also evident from the wording. Exploitation is not used as an umbrella term that would subsume any kind of sexual assault or sexual violence. Çelebi, Kopp, and Melchior point to a commentary, according to which the term exploitation could be taken to subsume sexual abuse, the exploitation of prostitution, and pornography. While this is correct, it does not help resolve the issue, as sexual assault does not represent a subcase of abuse. In addition, there is the undeniable problem that Art. 83(1) TFEU – based on typical cases of human trafficking – singles out specific groups of potential victims, namely women and children. This alone makes it unconvincing to use this as a basis for arguing that the EU should have the competence to standardize national criminal law governing sexual offenses.  In fact, the proposed Directive only covers the rape of women. While this might be consistent, it is nevertheless absurd. Most rapes are committed against women, but there are also cases of severe sexual violence (sometimes committed by groups) against other victims. The wording of legal provisions for criminal law governing sexual offenses should always be gender-neutral – anything other would mean a step back to 19th century sexual criminal law. There are other reasons why the Commission’s intentions represent a step back, i.e., the focus on the term rape and the modality of “penetration.” Any modern sexual criminal law provisions – which German legislation embraced in 2016 – should include any sexual acts as a matter of course. If this were a debate about legislation proposed by the German Bundestag, it would also be of interest to establish whether the way in which Art. 5 of the proposed Directive understands “non-consensual” would extend criminal liability compared to the “No Means No” solution of Section 177(1) StGB (it is unlikely but the wording of Art. 5 of the proposed Directive would require interpretation).

That said, this is ultimately not about the quality of Art. 5 of the proposed Directive. Even if its contents warranted no objection, it would be understandable and correct for the Council of the European Union and the German government to not agree to the draft as it stands. Just to reiterate it: This is a matter of competence; it is about the issue that we must refrain from unilaterally extending existing barriers to the shaping of substantive criminal law by the EU. The fact that we (including me) consider the national provisions of some countries to be outdated and falling short of providing maximum protection when it comes to sexual self-determination warrants cautious criticism and provides grounds for constructive legal comparison and exchange with scholars and politicians who are interested in reforming matters. However, in the interest of stable cohesion in the EU, we should refrain from attempting to intervene by way of Directives to correct this situation through too broad an interpretation of competence rules.

The article by Tatjana Hörnle was published on Verfassungsblog on January 31, 2024.