5 European Protection Order
| (31237)
17513/09
+ ADDs 1-2
—
| Draft Directive on the European Protection Order
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| Legal base | Article 82(1)(d) TFEU; QMV; co-decision
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| Deposited in Parliament | 8 January 2010
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| Department | Justice
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| Basis of consideration | EM of 15 January
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| Previous Committee Report | None
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| To be discussed in Council | No date set
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| Committee's assessment | Legally important
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| Committee's decision | Not cleared; further information requested
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Background
5.1 The Stockholm Programme, adopted in December 2009 by the European
Council, called on the EU to examine "how to improve legislation
and practical support measures for protection of victims and to
improve implementation of existing measures". This proposal
follows this request up, and is an initiative of several Member
States.[18] Its central
purpose is to assist victims who have obtained a protection order
in one Member State and who subsequently move to another Member
State. In the UK protection orders are often used in domestic
violence cases, although not exclusively so. Examples are non-molestation
orders, occupation orders (regulating who can occupy a property),
restraining orders and injunctions.
Legal basis and opt-in procedure
5.2 The proposal's legal base is Article 82(1)(d) of the Treaty
of the Functioning of the European Union (TFEU). Article 82(1)
TFEU provides that "The European Parliament and the Council,
acting in accordance with the ordinary legislative procedure,
shall adopt measures to…(d) facilitate cooperation between
judicial or equivalent authorities of the Member States in relation
to proceedings in criminal matters and the enforcement of decisions."
Under the TFEU, measures in the field of "Freedom Security
and Justice" (FSJ — formerly JHA) are no longer adopted
by a unanimous vote of the Member States without the participation
of the European Parliament, but by QMV on the basis of the ordinary
legislative procedure (formerly co-decision) with the European
Parliament.
5.3 Measures adopted under Title V are not applicable
to or binding upon the UK unless it decides to opt into them within
three months of their presentation to the Council, or at any stage
after their adoption. If the UK does not opt into a proposal within
the three-month timeframe, it can nevertheless participate in
the negotiations with a view to an acceptable text being adopted,
and then opt into the legislation once it has been adopted.
5.4 The Committee has eight weeks from the publication
to scrutinise whether the UK should opt into the measure, during
which time the Government has agreed not to take a decision on
opting in.
The draft Directive
PREAMBLE
5.5 The recitals state the European Protection Order's
(EPO) aim of ensuring protection for citizens of the EU when they
exercise their right to move and reside freely within the EU.
They note that the recognition of protection orders in other Member
States will avoid the need for the victim to start new proceedings
or to have to produce evidence in the State to which they have
moved, when they will have already produced this evidence to obtain
the original order.
ARTICLES
5.6 Article 1 deals with definitions.
"'European protection order' means a judicial
decision relating to a protection measure issued by a Member State
and aiming at facilitating the taking by another Member State,
where appropriate, of a protection measure under its own national
law with a view to the safeguard of the life, physical and psychological
integrity, freedom or sexual integrity of a person.
"'Protection measure' means a decision adopted
by a competent authority of a Member State imposing on a
person causing danger one or more of the obligations or prohibitions
referred to in Article 2(2), provided that the infringement of
such obligations or prohibitions constitutes a criminal offence
under the law of the Member State concerned or may otherwise be
punishable by a deprivation of liberty in that Member State.
"'Protected person' means the person whose life,
physical and psychological integrity, freedom, or sexual integrity
are the object of the protection stemming from a protection measure
adopted by the issuing State.
"'Issuing State' means the Member State in which
a protection measure has been originally adopted, constituting
the basis for issuing a European protection order.
"'Executing State' means the Member State to
which a European protection order has been forwarded with a view
to its recognition.
"'State of supervision' means the Member State
to which a judgment, as defined in Article 2 of the Framework
Decision [...] on the principle of mutual recognition to judgments
and probation decisions with a view to the supervision of probation
measures and alternative sanctions,[19]
or a decision as defined in Article 4 of the Framework Decision
[...] on the principle of mutual recognition to decisions on supervision
measures as an alternative to provisional detention,[20]
has been transferred."
5.7 Article 2 describes the scope of the EPO. It
can be issued at any moment when the protected person intends
to leave or has left the issuing State (the Member State the victim
is leaving). There must already be in place a national protection
order in the issuing State which imposes obligations or prohibitions
as set out in the Article.
5.8 Article 3 describes the obligation on the executing
State to recognise the EPO, in accordance with the provisions
of the Directive. Article 3(2) states that this Directive will
not alter the obligation to respect fundamental rights and legal
principles under Article 6 of the TEU.
5.9 Article 4 concerns the designation of authorities
competent to issue and recognise an EPO Article 4(1) refers to
judicial authorities (and Article 1(1) states that the EPO is
"a judicial decision relating to a protection measure").
Under Article 4(2), Member States can also designate non-judicial
authorities.
5.10 Article 5 concerns the circumstances in which
an EPO can be issued. It provides that a judicial authority of
the issuing State, or another competent authority referred to
in Article 4(2), shall, only at the request of the protected
person, issue an EPO, after verifying that the protection
measure meets all the requirements set out in Article 3(1). The
protected person or his legal representative may submit a request
for the issuance of an EPO either to the competent authority of
the issuing State or to the competent authority of the executing
State. If such a request is submitted in the executing State,
its competent authority shall transfer this request as soon as
possible to the competent authority of the issuing State in order,
where appropriate, to issue the EPO.
5.11 Article 6 sets out the form and content of the
EPO. It must contain:
- the identity and nationality
of the protected person;
- the use of any technological instruments, if
any, that have been provided to the protected person to carry
out the immediate enforcement of the protection measure;
- the identity of the competent authority of the
issuing State;
- the identification of the protection measure
on the basis of which the EPO is adopted;
- a summary of the facts and circumstances which
have led to the imposition of the protection measure in the issuing
State;
- the obligations or prohibitions imposed in the
protection measure underlying the EPO on the person causing danger,
their length 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;
- the identity and nationality of the person causing
a danger;
- where appropriate, other circumstances that could
have an influence on the assessment of the danger that confronts
the protected person;
- the express indication, where applicable, that
a judgement, as defined by Article 2 of Council Framework
Decision 2008/947/JHA,[21]
or a decision on supervision measures, as defined by Article 4
of Council Framework Decision 2009/829/JHA,[22]
has already been transferred to another Member State and the identification
of the competent authority for the enforcement of such a judgment
or decision.
5.12 Article 7 sets out the procedure for transmitting
an EPO.
5.13 Article 8 lists the obligations on the competent
authority in the executing State. These include:
- recognising the order when
it is received and taking all measures that would be available
under its national law in a similar case to ensure the
protection of the protected person, unless it decides to invoke
one of the grounds for non-recognition in Article 9;
- informing inform the person
causing danger, where appropriate, of any measure taken in the
executing State;
- taking any urgent and provisional measure needed
in order to ensure the continued protection of the protected person;
- immediately notifying the competent authority
of the issuing State and, if the issuing State is different
from the State of supervision, the competent authority of the
State of supervision, of any breach of the protection measure
underlying the EPO and described therein (there is a standard
form of notice for this attached to the draft Directive).
5.14 Article 9 sets out four grounds for non-recognition
of an EPO:
- the EPO is not complete or
has not been completed within the time limit set by the competent
authority of the executing State;
- an EPO has not been previously adopted in the
issuing State imposing obligations on the person causing danger;
- the protection derives from the execution of
a penalty or measure that is covered by amnesty according to the
law of the executing State;
- 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.
In order to invoke either of the first two grounds
the competent authority must first contact its sister authority
in the issuing State to ask for any additional information which
could cure these defects.
5.15 Article 10 concerns subsequent decisions in
the issuing State. It retains jurisdiction to take any subsequent
decision relating to the EPO concerning the renewal, review and
withdrawal of the protection measure; the modification of the
protection measure; the issuing of an arrest warrant or any other
enforceable judicial decision having the same effect; and
the initiation of new criminal proceedings against the person
causing the danger. Where a judgment, as defined in Article 2
of the Framework Decision on the principle of mutual recognition
to judgments and probation decisions with a view to the supervision
of probation measures and alternative sanctions,[23]
or a decision on supervision measures as defined in Article 4
of the Framework Decision on the principle of mutual recognition
to decisions on supervision measures as an alternative to provisional
detention,[24] has already
been transferred to another Member State, subsequent decisions
shall be taken in accordance with the relevant provisions of those
Framework Decisions.
5.16 Article 11 provides that the competent authority
of the executing State may revoke recognition of an EPO where
there is evidence that the protected person has left the territory
of the executing state.
5.17 Article 12 ("Time limits") provides
that an EPO shall be recognised "without delay".
5.18 Article 13 ("Governing law") provides
that decisions made by the competent authority of the executing
State are to be governed by its national law.
5.19 Article 14 ("Obligations of the authorities
involved") is tied to Articles 8 and 10 above. It provides
that where the competent authority of the issuing State has modified
the protection measure, it must inform the competent authority
of the executing State. It further provides that, where appropriate,
the competent authority of the executing State is to take necessary
measures to give effect to the modified protection measure if
those measures would be available under national law in a similar
case.
5.20 Article 15 recommends that competent authorities
in Member States concerned should consult each other in order
to facilitate the smooth and efficient application of this Directive.
5.21 Article 16 requires that the EPO be translated
into the official language or one of the official languages of
the executing State. Any Member State may state in a declaration
deposited with the General Secretariat of the Council that it
will accept a translation in one or more other official languages
of the institutions of the Union.
5.22 Article 17 states that costs resulting from
the application of this Directive shall be borne by the executing
State, except for costs arising exclusively within the territory
of the issuing State.
5.23 Under Article 18 Member States may continue
to apply bilateral or multilateral agreements or arrangements
which are in force upon the entry into force of this Directive,
or conclude bilateral or multilateral agreements or arrangements
after the entry into force of this Directive, "insofar as
they allow the objectives of this Directive to be extended or
enlarged and help to simplify or facilitate the procedures for
taking protection measures".
5.24 In Article 19 the implementation date for the
draft Directive has still to be agreed.
5.25 Annex I to the draft Directive appends the standard
form to be used for an EPO (Article 6); annex II the standard
form to be used to report a breach of an EPO (Article 8(1)(d)).
The Government's Explanatory Memorandum
5.26 The Parliamentary Under-Secretary of State at
the Ministry of Justice (Lord Bach) deposited an Explanatory Memorandum
in Parliament on 15 January 2010. In it he states the Government's
general policy as being very supportive of the idea of the EPO
and the goal of providing protection for people exercising their
free movement rights. The Government attaches importance to the
protection of victims and believes they should have a central
role in justice systems — including, of course, the criminal
justice system. However, in the Government's view, some changes
to the text will be necessary.
IMPACT ON NATIONAL LAW
5.27 The intention behind the EPO is to bridge two
domestic protection systems. The Minister comments that this proposal
will require minimal changes on the part of Member States. Under
Article 8, the executing State is required to take, where appropriate,
all measures that would be available under its national law in
a similar case to ensure protection. The mechanics of the mutual
recognition are not yet clear in the text (see Article 8 below).
As the UK already offers protection orders in a very wide range
of circumstances, the Minister does not expect that the UK would
need to alter its law substantially to be able to adopt protection
measures that it would not normally recognise.
5.28 However, the Government's initial view is that
legislation would be needed to enable magistrates' courts to convert
domestic orders into EPOs and to convert foreign EPOs into domestic
orders. This would impose some burden on magistrates' courts,
but these are unlikely to be considerable. The Government will
continue to monitor the impact on UK law as the text develops.
FUNDAMENTAL RIGHTS ANALYSIS
5.29 In the current draft, Article 8(1)(b) requires
the executing state to inform the person causing danger of the
new protection order "where appropriate". The Government
will want to ensure that the wording of this provision is compliant
with Article 7 ECHR. It wants to avoid the possibility that the
person against whom the protection order is made being punished
retrospectively for breaching an order of which he was unaware
at the time of the breach. The Government will also want to consider
further whether any data protection issues arise. It will also
want to give thought to the possibility of the person causing
the danger having some mechanism to object to the measures taken
against him in the executing state following the issue of an EPO.
SUBSIDIARITY AND PROPORTIONALITY
5.30 The Government has deposited a "detailed
statement" on compliance with the principles of subsidiarity
and proportionality, which was prepared by the Presidency.[25]
It is satisfied that this proposal complies with the principle
of subsidiarity. The EPO deals with continued protection of vulnerable
people who move across borders. Mutual recognition of protection
orders in different Member States can only be achieved at EU level.
There is currently no other instrument which deals with the recognition
of protection orders between Member States from the perspective
of the protected person.
5.31 The Government believes that this proposal is
also in accordance with the principle of proportionality. It is
not proposing harmonisation of the systems of protection in Member
States, beyond requiring all Member States to be able to take
all protection measures which would be available under their national
law in a similar case when someone presents an EPO.
5.32 Although the Government currently knows how
many domestic protection orders are made in the UK each year (around
31,000 in England and Wales), it does not have data regarding
the number of cross-border cases which this instrument will apply
to. Courts in England and Wales are open to all applicants, regardless
of their nationality, so the Government would not refuse to grant
protection to someone moving to the UK from another Member State.
At paragraph 1.2.1 (page 9) of the detailed statement it states
that no data is currently available but the Presidency estimates
that even if only 1% victims with EU protection measures wish
to move and continue their protection, that would equate to 1,180
cases per year. It will consult interested organisations to research
whether they have evidence of dealing with cross border cases.
However, the Government feels that protecting EU citizens from
crime is important in principle and that volume of cases should
not be the only consideration in evaluating this measure. Ensuring
that EU citizens know that continuous protection is available
when they move between Member States is an important factor in
strengthening their confidence in criminal justice systems and
public authorities across the EU and in safeguarding EU citizens'
right to free movement.
POLICY IMPLICATIONS
5.33 The Government will be seeking clarification
of the scope of the following provisions.
5.34 It notes that Article 1(2) of the EPO is drafted
to cover any protection measure, whether granted in civil or criminal
proceedings, provided that infringement of the protection measure
constitutes a criminal offence. In the UK the majority of protection
orders are made in civil proceedings, but their breach can often
be a criminal offence (for example, a non-molestation order).
The Government is considering legal base and will revert to both
Committees as soon as possible. The Government believes that it
may be particularly relevant that the purpose of this instrument
is ultimately to protect people from criminal offences.
5.35 This definition will also have an impact on
how many UK protection orders are covered by this instrument.
The majority (around 75%) are currently orders made in civil proceedings
and for most, breach is a criminal offence. Article 1(2) as currently
drafted captures this type of proceedings.
5.36 The Government has no objections to Article
2 (scope) in principle, but it will look carefully at the criteria
to consider whether they capture the relevant UK protection orders
to which this could apply, and allow the UK to recognise EPOs
transmitted to the UK from other Member States which fall into
these categories.
5.37 The Government is broadly content with the obligation
to recognise the EPO under Article 3.
5.38 In Article 5 (issue of an EPO) the Government
feels it is important that an EPO is only issued at the request
of the protected person as it is for the protected person to determine
whether the EPO is a measure they wish to pursue. The Government
will want to examine the drafting of Article 5, particularly Article
5(3), to ensure that the wording is clear.
5.39 In Article 6 (form and content of the EPO) the
Government will consider the information requested in the EPO
in relation to data protection issues (particularly in light of
inclusion of details about the person causing the danger), but
is otherwise broadly content.
5.40 The Government will want to consider the detail
of Article 7 (transmission procedure) carefully, bearing in mind
that a written record of transmission might potentially provide
a means for the person causing the danger to locate the protected
person when they would not otherwise know their whereabouts.
5.41 Article 8 ("Measures in the executing State"),
Article 10 ("Subsequent decisions in the issuing State")
and Article 11 ("Grounds of revocation") are Articles
that the Government believes need to be looked at together because
they deal with the related roles of the issuing and executing
States. Article 14 ("Obligations of the authorities involved")
is also closely linked with these provisions.
5.42 The Government's initial view is that the mechanics
of executing an EPO are not clear in these provisions. There are
several ways of achieving mutual recognition: Member States can
accept the foreign order directly; they can recognise an EU-wide
generic order, or can issue their own domestic order based on
the foreign order. The Government will reflect on this further,
and work to ensure that the mechanics are clear in the text.
5.43 The current draft provides that the executing
State must take any "urgent and provisional measures needed
to ensure the continued protection of the protected person"
(Article 8(1)(c)). However, the issuing State retains jurisdiction
for all subsequent actions and all legal proceedings for breach
of the order (Article 10). The Government is unable, at present,
to see strong advantages to the issuing State retaining jurisdiction
over proceedings. For example, if the order is breached, it seems
probable that it would be inefficient for the victim to have to
travel back to the State of his or her former residence for legal
proceedings about a breach that occurred elsewhere. And there
are concerns that it may be cumbersome for a court in the issuing
State to obtain the relevant evidence. There could also be the
risk of duplicate proceedings in the executing State if the breach
of the order were also a criminal offence in itself, for example,
if the victim were assaulted. The Government's current view is
that, once the executing State has accepted the EPO, it would
be preferable for all subsequent actions to be determined by and
to occur in the executing State. The issues get even more complex
if the executing State issues its own order, since it would be
likely that it would wish to enforce its breach. The Government
will therefore wish to discuss the approach taken in the text
with EU partners to understand the reasoning behind the current
approach.
5.44 In addition the Government will want to explore
Article 8(1)(b) of the proposal, namely that the person causing
the danger will be informed only "where appropriate".
The Government believes that it is important that someone knows
they have an order against them and the terms of the order to
ensure compliance with Article 7 ECHR.
5.45 The Government is content with the principle
that there should be the option to refuse to recognise an EPO
in Article 9, but will want to give further thought to what grounds
would be appropriate.
5.46 Under Article 12 (time limits) the Government
will consider these obligations, with a view to avoiding being
overly prescriptive.
5.47 In Article 13 the Government agrees that it
is appropriate for the decisions of the competent authority in
the executing State to be made under its national law.
REGULATORY IMPACT ASSESSMENT
5.48 The Presidency has prepared an impact assessment
(paragraph 3, page 10 onwards of the Explanatory Memorandum and
paragraph 5, page 31 onwards of the Detailed Note). The Government
will be looking further at any potential impact on the UK but
its initial view is that any substantial regulatory impact would
be restricted to the public sector within the civil and criminal
justice systems. It will consider this further, including the
implications for legal aid.
FINANCIAL IMPLICATIONS
5.49 A financial note is attached to the Detailed
Statement page 48 onwards. In the current draft there is an obligation
to inform the protected person of the possibility of obtaining
an EPO. Depending on how this obligation is implemented, the Government
anticipates that there would be some cost involved (for example
in producing a leaflet or amending current court forms) and it
is looking into initial costings. There will also be costs associated
with issuing, modifying, varying or terminating the EPO, and in
the possibility of committal hearings as well as criminal sanctions
if breached. Initial thinking suggests that it is probable that
many of these costs may fall on civil justice as the majority
of protection orders will probably be issued in civil proceedings,
and we will consider the financial impact and relationship with
civil legal aid further.
5.50 In addition, there will be translation costs
when an EPO is transmitted to another Member State. The Government's
initial view is that as the text stands, costs should be low as
a high volume of applications for an EPO is not expected.
CONSULTATIONS
5.51 The Government is consulting relevant groups
who represent victims and those people who are likely to utilise
protection orders, groups who are involved in family justice and
those who advocate on behalf of defendants and have an interest
in the criminal law. The consultation will seek views on the current
text, and how this instrument might best work for vulnerable UK
citizens. Consultation will close before any decisions on opt-in
are taken so that the views expressed can be considered and shared
with Parliament.
TIMETABLE
5.52 The Government is not yet aware of the proposed
timetable for adoption of this measure. Working groups started
in January and the Spanish see this as a priority during their
Presidency. It will be subject to co-decision with the European
Parliament, which has not yet set a timetable.
OPT-IN
5.53 The UK has a three-month period in which to
decide whether to opt in to this proposal. During this period
the Government will be following the Parliamentary scrutiny process
and the timetables that have been agreed with Parliament. The
Scrutiny Committees have until the 8 March (8 weeks from publication
of the document) to present a view and the Government will wait
for these views before coming to a decision on opt-in.
5.54 However, the Government's initial view is that
victims of domestic violence and other crimes should be able
to move across the EU with confidence that they will be protected,
wherever they are, and we want to work with our European
partners towards achieving this. A measure to provide continuous
protection to victims that does not require them to apply to another
court for protection fits with the UK's domestic agenda on victims.
The objectives of the measure are ones that the Government can
support.
Conclusion
5.55 We thank the Minister for his detailed Explanatory
Memorandum.
5.56 This is a Decision to which the Government
has to opt-in for it to become binding upon or applicable in the
UK. The Government has three months within which to do so; this
period expires on 6 April. The Government has given an undertaking
to both Houses that it will not decide whether to opt into a measure
until eight weeks have elapsed since its publication; this is
to give sufficient time for Parliamentary scrutiny of the decision
to opt in. The eight-week period expires on 2 March 2010.
5.57 Given this timeframe, we would be grateful
for a quick response from the Government on the following.
— The
question of legal base. It seems to us that there is a strong
argument based on domestic protection proceedings to say that
this proposal is directed at judicial cooperation in civil matters,
the criminal penalty being a consequence of the breach of a civil
order. We would be grateful if the Government could confirm whether
it has adopted this argument in working group discussions, and
if so, what the reactions of other Member States were. In our
view it is essential that the distinctions between chapters 3
and 4 of Title V TFEU are not blurred.
— We would be grateful for the results,
even if preliminary, of the Government's consultation process.
— We agree with the Government that
it makes more sense for the executing State to have jurisdiction
of the EPO once transmitted by the issuing State. We also agree
with the Government that the "person causing danger"
must in all circumstances be informed of the EPO and would like
to know if he would have a right to be heard if an EPO were to
be executed in the UK. We would be grateful for an update on these
aspects of the negotiations.
18 Belgium, Bulgaria, Estonia, France, Italy, Hungary,
Poland, Portugal, Romania, Finland and Sweden. Back
19
2008/947/JHA. Back
20
2009/829/JHA. Back
21
See footnote 19. Back
22
See footnote 20. Back
23
See footnote 19. Back
24
See footnote 20. Back
25
17513/09 ADD2 REV1. Back
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