European Scrutiny Committee Contents

24 European Protection Order




+ ADDs 1-2



Draft Directive on the European Protection Order

Draft Directive on the European Protection Order

Legal baseArticle 82(1)(d) TFEU; QMV; co-decision
Basis of considerationMinisters' letters of 30 March and 10 June; EM of 10 June
Previous Committee Reports(a) HC 5-x (2009-10), chapter 5 (9 February 2010) and HC 5-xi (2009-10), chapter 4 (24 February 2010); HC 5-xviii (2009-10), chapter 5 (7 April 2010)

(b) None

To be discussed in CouncilOctober
Committee's assessmentLegally important
Committee's decision(a) Cleared (b) Not cleared; further information requested


24.1 The European Protection Order (EPO) is intended to assist victims who have obtained a protection order in one Member State and who subsequently move to another Member State. The victim would apply (the EPO cannot be issued other than on the wishes of the victim) for an EPO from the Member State which issued the original protection order, and this EPO would then be transmitted to and recognised by the executing Member State to which the victim has moved. In the United Kingdom protection orders are often used in domestic violence cases, although not exclusively so. Other examples include non-molestation orders, occupation orders (regulating who can occupy a property), restraining orders and injunctions.

Previous scrutiny

24.2 The previous Committee reported on this proposal on three occasions.[102] On the last it noted that the Government shared its own reservations about whether the legal base could cover protection orders made in civil proceedings; thanked the previous Under-Secretary of State at the Ministry of Justice (Lord Bach) for the indication that the UK would opt into the proposal; asked for an update on developments in the negotiations; and asked for confirmation of whether the EPO would only apply to interim as well as final judicial decisions, whether the "person causing the danger" would enjoy full procedural safeguards, and how the Government intended to implement the duty imposed in Article 5(3) to inform all those who benefit from a protection order in the UK of the existence of an EPO.

Minister's letter of 2 March

24.3 The previous Minister wrote again on 30 March informing our predecessors that, despite continuing disagreement among Member States on the legal base, the UK had opted into the proposal as it supported the legislative aim and thought it could better influence the negotiations once it had opted in.

Minister's Explanatory Memorandum of 10 June

24.4 This Explanatory Memorandum from the Lord Chancellor and Secretary of State for Justice (Kenneth Clarke) relates to the latest draft of the Directive (document (b)), deposited in Parliament on 25 May.


24.5 The Minister states the intention of the EPO is to bridge two domestic protection systems as opposed to requiring Member States to make significant changes to their existing systems. Article 8 states that once a Member State has received an EPO, it shall recognise that order and take a decision to adopt any similar protection measure under its own national law. Article 9 enables Member States to refuse to recognise an EPO in specified circumstances including where the protection measure relates to an act that does not constitute a criminal offence in the executing State. England, Wales and Northern Ireland would need to pass legislation to enable Magistrates' courts to convert domestic protection measures into EPOs and to issue domestic protection measures in respect of EPOs received from other Member States. It is likely that a similar provision would be required with regards to Scottish procedures.


24.6 Recital 12 states that the draft Directive conforms with Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and with Article 47, paragraph 2, of the Charter on Fundamental Rights of the European Union because it provides the person causing danger with adequate opportunities to challenge the protection measure. Article 5(3bis) ensures that before the EPO is issued the person causing danger shall be given the right to be heard and the right to challenge the protection measure, if he has not had these rights in the procedure leading to the adoption of the protection measure.


24.7 The EPO deals with continuous protection of vulnerable people who cross borders. The Minister states that the recognition of protection orders in different Member States can only be achieved at EU level and that there is currently no other instrument which deals with the recognition of protection orders between Member States from the perspective of the protected person.


24.8 The aim of the draft Directive is to provide continuous protection to vulnerable people who move from one Member State to another. The Minister says that the Government fully supports that principle. However, due to its concerns about the scope and legal base of the proposal, as currently drafted, it is unable to vote in favour of the current text. He explains that this Explanatory Memorandum therefore outlines the Government's position on Article 1 which deals with the scope of the instrument and some of the consequent issues with legal base. It also sets out the main changes that have been made to the text since the original text and accompanying EM were sent to Parliament in January.

Position on Article 1

24.9 Article 1 defines the objective of the Directive. It states that the draft Directive covers measures issued with a view to protecting a person against a criminal act of another person which may endanger his life, physical or psychological integrity, personal liberty or sexual integrity. There are differing views as to whether this objective is too wide given that the legal base the instrument has been brought under only deals with proceedings in criminal matters. There is one school of thought that because the aim is protection from a criminal act, then this is enough to include protection measures issued in civil proceedings. However others, including the Commission, believe that a Directive brought under a criminal legal base can only deal with measures made in criminal proceedings.

24.10 The uncertainty surrounding this issue means that the Government cannot support the current text of the EPO. It believes that the draft Directive should be confined to orders made in criminal proceedings. It is only the Commission who could bring forward legislation on civil orders, or a Directive with a joint civil/criminal legal base.

Remaining Articles

24.11 Article 4 relating to issuing of an EPO (which was Article 2 in the original text). Previously this Article referred only to orders that "prohibit" contact between the protected person and person causing danger. This has been amended (at the request of the UK) to cover the "regulation" of contact in addition to prohibition of contact as many of the UK's orders permit or even require some contact (e.g. around shared custody of children), but prohibit vexatious contact.

24.12 Articles 8, 9bis and 10 define the roles of issuing and executing States. There has been a significant rebalancing of the roles since the original version of the text. Article 8 sets out what is required in the executing State upon receipt of an EPO. Article 9bis sets out the rights of executing State and their competence to adopt and enforce measures after recognising an EPO and also to deal with the breach of any measures they put in place. Article 10 clarifies the competence of the issuing State still to renew, review, modify or revoke the original protection measure, and then the EPO. The amendments to these Articles provide some clarification regarding the mechanics of the EPO. There would be a three-stage process: the original domestic protection measure in the issuing State, the EPO which would be a form certifying the original protection measure and finally the new protection measure provided by the executing State after recognising the EPO.

24.13 Article 9 sets out grounds for non-recognition of an EPO. Additional grounds for non-recognition have been added since the original text. The additional grounds for non-recognition are: that the protection measure relates to an act that does not constitute a criminal offence under the law of the executing State; a criminal prosecution is statute-barred under the law of the executing State; the recognition of the protection order would contravene the ne bis in idem principle; the person causing danger cannot be held criminally responsible under the law of the executing State because of his age; and also that the protection measure relates to a criminal offence that is regarded as having been committed wholly or for a major or essential part within the territory of the executing State.

24.14 Article 11 now provides more detailed grounds for discontinuation of measures taken on the basis of an EPO. These include a sufficient indication that the protected person does not reside or stay in the executing State and also when, according to national law, the maximum term of duration of the measures adopted in execution of the EPO has expired.

24.15 Articles 12, 13 and 14 have been deleted.


24.16 As currently drafted the EPO would require Member States to issue equivalent domestic protection orders, and so no dramatic change would be required to the UK's system of protection measures. Additional costs would arise when issuing an EPO in terms of translating the form and dealing with the application. There will also be costs in relation to bringing forward secondary legislation to transpose and implement the Directive, and a process set up for issuing and receiving EPOs. Initial indications are that volumes will be low, and the Government is continuing to conduct analysis surrounding costs.


24.17 The Government has consulted a number of groups who represent victims and those people who are likely to make use of protection orders, groups who are involved in family justice and those who perform advocacy on behalf of defendants and have an interest in the criminal law. All of these groups support the initiative in principle and have suggested that there is anecdotal evidence of the need for such a measure.


24.18 The lead Committees in the European Parliament are FEMM (women's rights and gender equality) and LIBE (civil liberties justice and home affairs). The co-rapporteurs published draft amendments to the proposal on 18 May. Both Committees have indicated that they share the Presidency's wide interpretation of the scope of legal base.

Minister's letter of 10 June

24.19 The Minister also wrote to the Committee on 10 June (his officials having regularly kept the Committee's staff informed of developments during Dissolution) to explain that the proposal was presented at the Justice and Home Affairs Council on 4 June in order to obtain a "general approach". The Minister says that he was unable to support the revised text on that occasion because of concerns over the legal base (as described in the Explanatory Memorandum). A number of other Member States expressed similar concerns. The Spanish Presidency required consensus in order to continue discussions with the European Parliament, and the Minister reports that, given the number of Member States who objected, it was less than clear that it had the consensus. Surprisingly, however, the Presidency insisted that it had the majority support needed for a general approach so that the text could be taken to the European Parliament. Unfortunately, it linked this assertion with an interpretation of the UK's opt-in Protocol.[103] Article 3(2) of that Protocol states that "if after a reasonable period of time" a measure cannot be adopted with the UK or Ireland taking part, the Council may adopt that measure without the participation of the UK or Ireland. The Presidency suggested that the UK could be asked again what its view is at the Council in October, in the expectation that a "reasonable time" would then have passed. The Minister reports that he intervened to make it clear that he did not agree with this interpretation of the Protocol.

24.20 The Minister continues that he has indicated to the Spanish Presidency that the UK would support a narrow interpretation of the legal basis, restricting the Directive to measures taken in the context of criminal proceedings and related to a criminal offence. The Commission is exploring the option of bringing forward a mirror civil instrument to ensure that those countries that use civil protection measures will also be covered.

24.21 The Minister then turns to the questions posed by our predecessors when they last reported on this proposal:

"In your report of 7 April you ask for confirmation as to whether the EPO will only apply to final judicial decisions rather than interim decisions. In theory the EPO could cover both. Based on the current draft, it would be the responsibility of the designated competent authorities to recognise an existing protection order and issue an EPO. They will make the decisions on the appropriateness of issuing an EPO on a case by case basis.

"I note the concerns you have raised about procedural safeguards for the person causing danger. You will note that 5(3bis) in the most recent text that was deposited with Parliament on 25 May refers to the rights of the person causing danger. This is a new addition to the text and ensures that the person causing danger has the right to be heard and to challenge the protection measure, if he has not had these rights in the procedure leading to the adoption of the protection measure.

"Finally you ask how the Government intends to implement the duty to inform those who benefit from a protection measure of the existence of the EPO. This is at Article 5(4) in the current text. My officials are working with colleagues from other Departments to look at how the EPO will work in practice and the implications for the UK if we have to implement this draft Directive. These discussions are ongoing but implementation could entail the provision of a leaflet by the competent authority to the protected person explaining the mechanisms for obtaining an EPO."


24.22 We thank the Minister for his letter and Explanatory Memorandum, and his officials for keeping our officials informed of developments in the negotiations during Dissolution and the post-election period.

24.23 We fully support the Government in the stance that it has taken on the scope of the legal base. As our predecessors said before us, we do not agree with the argument that Article 82 TFEU is an appropriate legal base because the purpose of protection orders, whether issued in criminal or civil proceedings, is ultimately to protect the victim from crime. We think "proceedings in criminal matters" in Article 82(1)(d) means exactly that, and cannot be interpreted to cover civil proceedings in which the protection of a victim from crime is the objective.

24.24 We are concerned by the Minister's reports that a general approach was pushed through the JHA Council on 4 June in the face of opposition from some Member States; and by the last Presidency's interpretation of Article 3(2) of the opt-in Protocol. We would be grateful to the Minister for clarification as soon as possible of whether the Council considers that a general approach on this proposal has been agreed. We would also be grateful for clarification of whether the Spanish Presidency's interpretation of Article 3(2) of the opt-in Protocol is shared by other Member States. The Minister's letter indicates that other Member States objected to the general approach, in which case Article 3(2), which can be applied only to the UK and/or Ireland, would appear to be inapplicable.

24.25 We thank the Minister for answering the questions posed by our predecessors. We think the latest draft of the Directive is an improvement in terms of clarity in how an EPO will operate, of the grounds on which an EPO can be refused, and of the safeguards provided to the person causing danger.

24.26 We clear document (a) from scrutiny because it has been superseded by document (b), which remains under scrutiny pending the Minister's replies.

102   See headnote. Back

103   Protocol 21 attached to the EU Treaties. Back

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