EUROPEAN LAW (module 2)
Chapter 1. A first glance at the European Union
Section I. The distincion between the council of Europe and
the European Union
Extra notes from class:
The Istanbul Convention (2011) was created to fight gender-based and
sexual violence. One of its key principles is the consent-based definition of
rape: “If someone engages in a sexual act without the other person’s
consent, it is considered rape.”
Example: the Gisèle Pelicot case. Although France signed the Convention,
its national definition of rape was stricter/ different from the definition
required by the Istanbul Convention.
In the Gisèle Pelicot case, the lawyers of the ‘offenders’ argued that
because the victim was often unconscious, she could not prove that she
had said “no” or shown a lack of consent. Under the old French law, the
absence of a clear “no” made prosecution more difficult. This shows that
even when states sign an international convention, problems can
still arise if their national laws do not fully match the obligations
of that convention.
Enforcement mechanisms:
The EU can impose penalty payments on member states if they fail
to adjust their national laws after committing to do so.
The Council of Europe and the Istanbul Convention rely on a
monitoring system (GREVIO) to check whether states are actually
implementing the rules.
The EU generally has stronger enforcement tools, while international
law often depends on monitoring and political pressure.
International law can still have a significant influence. In the Pelicot case,
the judge was aware of the standards set by the Istanbul Convention. The
case helped trigger legal reform in France. After this case, France
introduced a new consent law: “If a person does not say “yes”, it counts as
1
, rape.” This change removed the possibility for courts to argue about the
need for an explicit “no”.
EU law is a source of law (not a branch of
law)
EU law is a source of national law
The EU is a source of law. The Istanbul Convention is a source of law and
that impacts the branch of national law.
EU constitutional law
EU substantive law
2 types of EU law
Constitional law (constituioneel recht) = about who makes law and
who gets to make the descisions.
Substantive law (materieel recht) = about what is allowed or
prohibited.
• For exemple: iIf the EU decides to make a law about
climate change, for exemple, we can’t use straws – no
platic straws anymore (als het wegwerp is) – so EU said
this is banned
Constitutioneel recht gaat over wie de macht heeft en hoe
2
Chapter 1. A first glance at the European Union
Section I. The distincion between the council of Europe and
the European Union
Extra notes from class:
The Istanbul Convention (2011) was created to fight gender-based and
sexual violence. One of its key principles is the consent-based definition of
rape: “If someone engages in a sexual act without the other person’s
consent, it is considered rape.”
Example: the Gisèle Pelicot case. Although France signed the Convention,
its national definition of rape was stricter/ different from the definition
required by the Istanbul Convention.
In the Gisèle Pelicot case, the lawyers of the ‘offenders’ argued that
because the victim was often unconscious, she could not prove that she
had said “no” or shown a lack of consent. Under the old French law, the
absence of a clear “no” made prosecution more difficult. This shows that
even when states sign an international convention, problems can
still arise if their national laws do not fully match the obligations
of that convention.
Enforcement mechanisms:
The EU can impose penalty payments on member states if they fail
to adjust their national laws after committing to do so.
The Council of Europe and the Istanbul Convention rely on a
monitoring system (GREVIO) to check whether states are actually
implementing the rules.
The EU generally has stronger enforcement tools, while international
law often depends on monitoring and political pressure.
International law can still have a significant influence. In the Pelicot case,
the judge was aware of the standards set by the Istanbul Convention. The
case helped trigger legal reform in France. After this case, France
introduced a new consent law: “If a person does not say “yes”, it counts as
1
, rape.” This change removed the possibility for courts to argue about the
need for an explicit “no”.
EU law is a source of law (not a branch of
law)
EU law is a source of national law
The EU is a source of law. The Istanbul Convention is a source of law and
that impacts the branch of national law.
EU constitutional law
EU substantive law
2 types of EU law
Constitional law (constituioneel recht) = about who makes law and
who gets to make the descisions.
Substantive law (materieel recht) = about what is allowed or
prohibited.
• For exemple: iIf the EU decides to make a law about
climate change, for exemple, we can’t use straws – no
platic straws anymore (als het wegwerp is) – so EU said
this is banned
Constitutioneel recht gaat over wie de macht heeft en hoe
2
