The EU has been reluctant in ratifying international conventions in the field of human rights; for the time being, it has only ratified the UN Convention on the Rights of Persons with Disabilities. On 25 February 2014, the European Parlia- ment adopted a Resolution where it called on the Council to add violence against women to the areas of particularly serious crime listed in Article 83(1) TFEU and asked the European Commission to launch the procedure for EU accession to the Istanbul Convention.78
The central question is the following: does the EU have competence in the field of prevention and suppression of violence against women? As highlighted by Sara De Vido in her article79, the answer to the central question above should be indeed positive. First, the Convention is open for signature by the Member States of the Council of Europe, the non-Member States which have participated in its elaboration and the European Union (Article 75); consequently, it can be stated that the Convention paves the way for the EU accession. Secondly, as highlighted in the European Commission ”Roadmap” in 2015, the EU has external compe- tence to conclude international agreements where Treaties or legally binding EU acts so provide, where the agreement is necessary to achieve one of the objec- tives referred to by the Treaties, or is likely to affect common rules or alter their scope (Article 216(1) TFEU); consequently, the EU has competence to ratify the Convention since violence is a form of gender-based discrimination, and gender equality constitutes one of the objectives enshrined in the founding Treaties.
In March 2016, the Commission issued two proposals for Council Decisions, one on the signing and the other on the conclusion (ratification) of the Convention on behalf of the European Union. The Council decided that the draft decision on the signing of the Convention should have been divided into two decisions, one covering judicial cooperation in criminal matters and the other asylum and non-
78. Martina Schonard, “Briefing on the achievements of the FEMM committee in the area of gender equality during the 2014-2019 term,” 2019,
79. Sara De Vido, “The ratification of the Council of Europe Istanbul Convention by the EU:
a step forward in the protection of women from violence in the European legal system,”Eur. J.
Legal Stud.9 (2016): 69
refoulement. These two Council decisions concerning the signing of the Istanbul Convention by the EU have been adopted in May 2017: the first decision refers to Article 82(2) and Article 84 TFEU as legal bases, and authorizes the signing, on behalf of the EU, of the Istanbul Convention with regard to matters related to judicial cooperation in criminal matters (Article 1).80; the second decision refers to Article 78(2) as legal base and authorizes the signing, on behalf of the EU, of the Istanbul Convention with regars to asylum and non-refoulement (Article 1).81 On 13 June 2017, the EU became a signatory to the Istanbul Convention.
Following the signature, the Council and the Commission have been working on Council decisions on the Convention’s conclusion, with the aim of completing the EU’s accession to the Convention. The procedure to be followed in order to complete the EU’s accession requires that the Council adopts a decision in that sense, following a Commission proposal and the consent of the European Parliament.82
However, obtaining the consent of the European Parliament is not an easy task. On 25 November 2019, a plenary debate took place on the EU accession to the Istanbul Convention. On the one hand, some speakers argued in favour of this process, others claimed that the Convention promoted unwelcome gender ideolo- gies and that certain provisions exceeded the scope of the Convention’s declared objectives. Nevertheless, on 28 November 2019, the European Parliament adopted Resolution 2019/2855(RSP) on the EU accession to the Convention, calling for the ratification.
More recently, the European Parliament asked for an opinion from the Eu- ropean Court of Justice on the compatibility with the Treaties of the proposals for this accession, in accordance with the procedure set in Article 218(11) TFEU.
80. 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 No. 2017/865, OJ, L 131, 11–12 (2017)
81. 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 regards to asylum and non-refoulement No. 2017/866, OJ, L 131, 13–14 (2017)
82. Schonard, “Briefing on the achievements of the FEMM committee in the area of gender equality during the 2014-2019 term”
Following this request, on 6 October 2021 the CJEU pronounced its opinion83, answering three questions from the EP: first, if Articles 82(2) and 84 TFEU84 are the appropriate legal bases for the act that concludes the Istanbul Convention, on behalf of the European Union; second, whether and, if yes, under what conditions, the Council may or even has to split a decision to conclude an international agree- ment into several separate decisions; and third, whether that conclusion would be compatible with the Treaties, despite the absence of a common accord of all Mem- ber States through which they give their consent to being bound by the Istanbul Convention.
On the first question, the Court gave a positive answer: it stated that the appropriate substantive legal bases for the adoption of the Council’s act that concludes, on behalf of the EU, the Istanbul Convention are Article 82(2) TFEU and Articles 84 TFEU - that are part of Chapter 4 of the TFEU on judicial cooperation in criminal matters - in view of their broad scope of application.
However, the Court specified that the act concluding the Istanbul Convention should also be based on Articles 336 TFEU, in matters of public administration, and Article 78(2), in matters of asylum and non-refoulement.
Regarding the second question, the Court stated that the Council can divide an international agreement into two separate decisions only as far as that deci- sion considers Ireland and the Kingdom of Denmark as non-participants in the measures adopted in respect of the conclusions of that agreement. According to Protocol No. 21 and Protocol 22 to the TEU and TFEU, the participation of Ire- land and Denmark is in fact limited with regards to certain areas of cooperation of the Union.
Lastly, the Court answered the third question by affirming that the Treaties do not prohibit the Council from concluding the Istanbul Convention while waiting for the common accord of the Member States. It would, however, also be com-
83. Convention d’Istanbul, No. Avis 1/19 (2021)
84. Article 82(2) TFEU provides for minimum rules to facilitate mutual recognition of judge- ments and judicial decisions, and police and judicial cooperation in criminal matters; whereas, Article 84 TFEU provides for the adoption of measures to promote and support the action of Member States in the field of crime prevention, excluding any harmonization of the laws and regulations of the Member States.
patible with the Treaties if the Conclusion were adopted only after such common agreement had been established. It is exclusively for the Council to decide which of those two solutions is preferable.85
In conclusion, the Council has not adopted a decision on the conclusion, on be- half of the European Union, of the Istanbul Convention yet. However, important steps have been taken in that direction. It is also important to remember that agreements concluded by the EU are binding on its institutions and its Member States under Article 216(2) TFEU. Thus, in case of EU accession to the Istan- bul Convention, the Member States will be bound by both the EU policies that implement the Convention and the duties arising from their own ratification.86