Towards a rights-based approach: victims of violent crime, state-funded compensation and the European Union

This article examines the legal provision of state compensation for victims of violent crime in the European Union (EU). In examining the provisions of Directive 2004/80/EC relating to compensation to crime victims, this article analyses the historical development of EU competencies in the fields of criminal justice and victims’ rights. Additionally, the legislative history of Directive 2004/80/EC is considered, as is the interpretation given to the provisions of this Directive by the Court of Justice of the EU. It is demonstrated that the scope of protection, offered to victims of violent crime through Directive 2004/80/EC, has been limited and uncertain as a result of this complicated legislative history and inconsistent CJEU interpretation. Furthermore, this article examines developments in the context of EU action in the field of state-funded compensation in light of the adoption of both the Lisbon Treaty in 2009 and the Victims’ Rights Directive in 2012. With the recent development of a genuine rights-based approach to victim support in EU law and policy, this article highlights priorities for legal reform at the EU level in the context of state-funded compensation.


Introduction
On 16 July 2020, in Presidenza del Consiglio dei Ministri v BV, the Court of Justice of the European Union (CJEU) held that the provision of 'fair and appropriate compensation' under Article 12(2) of Directive 2004/80/EC (Compensation Directive) relating to compensation to crime victims, 1 applies to all victims of violent crime regardless of whether there exists a cross-border element. 2 The ruling in BV departed from previous CJEU caselaw which held that Article 12 (2) only applies in situations where the crime takes place in a European Union (EU) Member State different to that in which the crime victim permanently resides. 3A core issue concerning the CJEU's caselaw in relation to the proper scope of Article 12 (2) is the gradual expansion of EU competencies in the field of criminal justice and the complicated legislative history of the Compensation Directive itself.This article considers both the Compensation Directive and the related CJEU caselaw, in light of this important constitutional and legislative history.It is demonstrated that the problems associated with Article 12 (2), specifically the initial limiting of the provision to cross-border victims by the CJEU, stemmed from the EU's lack of competencies in relation to victims' rights.Additionally, it is determined that the gradual expansion of these competencies limited the scope of ambition in relation to the Compensation Directive when adopted and also resulted in the ambiguous reference in Article 12 (2)  to 'fair and appropriate compensation'.
As well as examining the historical context of the Compensation Directive, this article also examines the consequences of such ambiguities in the context of determining the current scope of victims' right to state-funded compensation.This examination takes place through a detailed consideration of the relevant CJEU caselaw.Furthermore, the current scope of victims' rights to state-funded compensation is analysed in the context of developments which took place subsequent to the adoption of the Compensation Directive.These developments include the adoption of the Lisbon Treaty in 2009 and the adoption of Directive 2012/29/EU (Victims' Rights Directive) in 2012. 4Finally, this article places the historical and legal context concerning victims' rights to compensation within current developments in EU victims' rights policy which increasingly recognises the importance of a rights-based approach to victim support and compensation. 5It is concluded that such a genuine rights-based approach has the potential to bring about comprehensive reform of the victims' rights framework in the EU, so long as such reform is implemented with the necessary political will.In advance of commencing discussion on the historical aspects of EU action in this field, national compensation schemes will be introduced.

National Compensation Schemes and Initial Attempts at Harmonisation
The concept that the state should make available public monies in order to compensate victims of violent crime for personal injuries criminally inflicted on them has its origins in the creation of the welfare state in Europe and elsewhere in the aftermath of the second world war.There were various justifications for the establishment of national schemes, many of which were premised on the concept of collective insurance whereby the state should compensate victims of crime out of a fear that everyone could potentially become a victim at some point in their lifetime. 6One of the first national compensation schemes for victims of crime was established in New Zealand in 1964 with Great Britain launching their own scheme in the same year.In the context of current EU Member States, Finland established their scheme in 1973, Ireland followed in 1974, Germany, Denmark and the Netherlands first developed their schemes in 1976 and France's scheme came into operation in 1977. 7Schemes were also established in other Member States throughout the 1970's and 1980's with differing eligibility criteria and forms of compensatory relief. 8Despite the differing levels of compensation across the various schemes, access to the schemes was typically not characterised as a right of crime victims but rather a recognition of the community's social solidarity only with victims of crime who the state considered truly innocent and blameless in relation to their victimisations. 9To this end, national compensation schemes have prevented certain categories of crime victims from accessing compensation commonly as a result of their way of life and character, such as if the victim possesses criminal convictions, is a member of a criminal organisation or is responsible for the crime in some way. 10n response to the divergent level and type of compensatory provision throughout continental Europe and the common law world, attempts were made at the United Nations (UN) and the Council of Europe to harmonise the provision of state compensation for criminal injuries. 11The European Convention on the Compensation of Victims of Violent Crimes (Compensation Convention) opened for signature by States Parties of the Council of Europe in 1983, 12 and the UN Declaration of Basic Principles of Justice for Victims of Crime (UN Declaration) was adopted by the UN General Assembly in 1985. 13Overall, the Compensation Convention and the UN Declaration largely mirror the approach of national compensation schemes.For example, the Compensation Convention permits restrictions based on nationality and residency in the respective jurisdictions of the States Parties, 14 and also permits restrictions limiting compensation to innocent and blameless victims. 15he question is, therefore, what factors led to the EU taking action in relation to state compensation for victims of crime?Furthermore, did such action differ, and how did it differ, from the steps taken under the Compensation Convention and the UN Declaration?The proceeding sections of this article will attempt to answer these questions.
Victims' Rights, the European Union and Creation of the AFSJ Both the Compensation Convention and the UN Declaration were adopted in the 1980's when the EU possessed no specific competencies in the EU Treaties in relation to victims of crime or criminal justice matters generally.This changed in the 1990s with the adaption of the Amsterdam Treaty and the creation of the area of freedom, security and justice (AFSJ), where the EU was granted additional competencies to enact legislation concerning criminal justice matters including that of victims' rights.Before the AFSJ was established, however, various EU institutions addressed the matter of compensation for victims of violent crime and called for legislative action based on the established EU competencies of freedom of movement and non-discrimination. 16This section will examine these early calls for action and the development of EU competencies in relation to state compensation for victims of crime will be set out.  20 the Commission expressed doubt as to whether a suitable competency in fact existed. 21he early impetus for action in the EU in relation to state compensation for victims of crime was clearly closely linked with the measures under consideration in the Council of Europe.It is necessary to determine, therefore, the success or failure of the relevant Council of Europe measures from the perspective of the EU institutions.In other words, did the Compensation Convention bring about the required harmonisation and necessary co-operation between States Parties so that a victim of a violent crime in State Party A, but who is resident in State Party B, could apply and receive compensation on an equal basis to residents of State Party A and on an equal basis to victims where the crime takes place in State Party B. To this end, guidance can be found in the judgment of the CJEU in Cowan, 22 along with a further Resolution of the Parliament from 1989 (1989 Resolution). 23e 1989 CJEU Judgment in Cowan The proceedings in Cowen arose as a result of a request for a preliminary ruling from the authority charged with administering the French compensation scheme.The request concerned an application for compensation received from a British national in respect of a violent assault inflicted on him in France. 24At the time, only French nationals, French residence permit holders and nationals of a state with a reciprocal agreement with France, could apply for compensation under the scheme.The British national in these proceedings was not eligible to apply as he was not a French national, nor did he hold a French residency permit and France and the United Kingdom did not have a reciprocal agreement in place in relation to the payment of state compensation under their respective schemes. 25The question to be decided was 'whether the prohibition of discrimination laid down … [in the EU Treaties] … precludes making the award of state compensation … subject to the condition that he hold a residence permit or be a national of a country which has entered into a reciprocal arrangement with that Member State.' 26 Based on the applicable CJEU caselaw, it was held that the prohibition of discrimination 'precludes a Member State from making the award of a right to a person in a situation governed by [EU law] subject to the condition that he hold a residence permit or be a national of a country which has entered into a reciprocal agreement with that Member State.' 27 The important question to be determined, therefore, was whether the award of state compensation to victims of violent crime was a situation governed by EU law.In this regard, the CJEU held that 'a corollary of … freedom of movement … [is] … the protection of person[s] from harm in the Member State in question, on the same basis as that of nationals and persons residing there'. 28Additionally, the CJEU held that, whilst the EU Treaties, at the time, did not confer competencies on the EU institutions in the field of criminal law and procedure, the prohibition of discrimination against persons where EU law is engaged limits the powers of Member States 'to restrict the fundamental freedoms guaranteed by [EU law].' 29 Overall, therefore, the CJEU held that Member States cannot set down conditions in their national compensation schemes for victims of crime which restrict eligibility based on nationality, residency and the existence of reciprocal agreements. 30n evaluating the impact of the CJEU's judgment in Cowen, it is worth recalling that the Compensation Convention states that the obligation to pay state compensation is limited to nationals of the States Parties to the Convention, 31 and to nationals of States Parties of the Council of Europe who are permanent residents in the State on whose territory the crime was committed. 32In other words, the Compensation Convention permitted eligibility restrictions on the grounds of nationality and residency.Importantly, the CJEU held in Cowen that such restrictions were not permissible under EU law.As the CJEU judgment offered better protection for victims than the Compensation Convention itself, and due to the fact that only two States Parties of the Council of Europe ratified the Compensation Convention at the time in which the Cowen judgment was handed down, 33 it is clear that the Compensation Convention did not bring about the expected harmonisation and necessary co-operation between Member States of the EU. 34newed Calls for Action at the Parliament and the Need for Increased Competencies In recognition of the CJEU's judgment in Cowen, the Parliament passed the 1989 Resolution calling for legislative action by the Commission 'to harmonise at the highest level the payment of compensation for victims of violent crimes, regardless of the victim's origin …'. 35Furthermore, the 1989 Resolution called for a minimum level of compensatory relief to include payment for 'loss of current and future earnings, legal expenses, medical and hospitalisation expenses and funeral 27.ibid para [13].28.ibid para [17].29.ibid para [19].30.ibid para [20] expenses, pain and suffering, and, as regards dependants, loss of maintenance.' 36As was the case at the adoption of the 1981 Resolution, at the passage of the 1989 Resolution, the European Commissioner for Taxes, Revenue Harmonisation and Consumer Policies, Christiane Scrivener, again expressed doubt as to whether the EU had in fact the necessary competencies to legislate on this matter.The Commissioner referred to the Single European Act, which amended the EU Treaties in 1987, and set out a roadmap for the development of the EU single market in goods, services, persons and capital. 37He stated that this might possibly contain the required competencies but he told the Parliament that the Commission would have to conduct a comprehensive assessment before definitive conclusions could be reached on this point and before any legislation could be drafted. 38ltimately, the Commission determined in 1990 that the EU did not have the competency to legislate in relation to state compensation for victims of violent crime.Indeed, the Commission suggested that as most Member States had by this time complied with the Cowen judgment, by removing eligibility restrictions based on nationality, residency and the existence of reciprocal agreements, there was no need to take further action.This was despite the fact that some Member States, including Greece and Italy, did not even have a state compensation scheme. 39Clearly, therefore, the decision to establish a scheme was at the discretion of Member States.However, once a scheme was established, it had to comply with the Cowan judgment.
At this time, the Commission's assessment in relation to the EU's competencies concerning crime victims and compensation must be understood against the backdrop of significant reform underway in relation to the EU's competencies generally.The Maastricht Treaty came into force in 1993 and aimed to expand the EU's competencies in the field of criminal justice and procedure.Specifically, the Maastricht Treaty amended the EU Treaties to include judicial cooperation in civil and criminal matters as areas of EU common interests. 40It provided for a decision-making procedure, on the basis of unanimity at an intergovernmental level within the Council of the EU (Council), to ensure co-operation in relation to these issues. 41However, according to the Commission, it did not provide the EU with a competency to legislate in relation to victims of violent crime and their ability to access state compensation. 42The question is, therefore, when did the EU acquire the relevant competency?In order to answer this question, the Amsterdam Treaty, which came into force in 1997, will be examined in the next section, along with the development of legislative proposals in relation to state compensation at the EU level.

The Amsterdam Treaty and the Development of a Compensation Directive Victims' Rights and the Creation of the AFSJ
According to Lupária and Della Torre, the 1990s represented a 'breakthrough' for the EU with victims of crime becoming 'a political priority' with the establishment of the AFSJ under the Amsterdam Treaty in 1997. 43Here, the criminal justice competencies under the Maastricht Treaty moved from being intergovernmental issues, where limited legislative action could be taken, to a situation where criminal justice matters became a fundamental component of the EU's law-making authority.Specifically, the Amsterdam Treaty introduced a new EU objective 'to maintain and develop the … [EU] … as an … [AFJS] … in which the free movement of persons is assured in conjunction with appropriate measures with respect to … the prevention and combating of crime'. 44his objective was to be achieved by the EU taking 'common action among the Member States in the fields of police and judicial cooperation in criminal matters'. 45As a result, the Commission and the Council were now of the view that the EU possessed the required competencies to take legislative action concerning state compensation for victims of violent crime.Under their 1998 Action Plan to implement the relevant provisions of the Amsterdam Treaty, it was agreed that there was a need to 'address the question of victim support by making a comparative survey of victim compensation schemes and assess the feasibility of taking action within the [EU]'. 46Furthermore, in the European Council's Tampere Decision in 1999, it was agreed that 'minimum standards should be drawn up on the protection of … victims of crime, in particular on crime victims' access to justice and on their rights to compensation for damages including legal costs.' 47 In addition to agreeing these priorities for action in relation to compensation for victims, it was recognised that action in relation to victims' rights more generally was needed including in the context of criminal proceedings. 48The first legislative measure was taken relatively quickly after the coming into force of the Amsterdam Treaty, 49 52 The importance of the Lisbon Treaty will be discussed in more detail below.For now, the relevant legislative proposals in relation to state compensation will be examined.

The 2001 Green Paper
In order to implement the European Council's Tampere Decision of 1999 in relation to compensation for victims, the Commission published a Green Paper in 2001. 53This Green Paper stated that there was a 'lack of convergence between the existing [national] schemes' so much so that the question of whether a victim of violent crime is adequately compensated in respect to their injuries is largely dependent on where the victim lives or where the crime actually took place. 54In this light, the Green Paper took the view, due to the differing standards of living across the Member States, that levels of compensation cannot be expressed in purely pecuniary terms.To this end, EU action should aim to set down minimum standards in the area as opposed to requiring strict harmonisation between Member States as to the level of compensation available.According to the Green Paper, if minimum standards are to be put in place, this essentially means determining what restrictions on access are permissible. 55In this regard, the Green Paper did not set down any definitive conclusions but stated that all residents of EU Member States should have access to compensation. 56espite this, the Green Paper did acknowledge that it would be difficult to set down specific requirements in this respect due to the differences present as between the compensation schemes in the various Member States. 57In relation to whether access to compensation should be reduced or denied based on prior criminal conduct, the Green Paper stated that such restrictions have the potential to 'lead to difficulties and unfair results' where a victim of crime has 'renounced' their former way of life.In this regard, the Green Paper suggested that restrictions of this nature, or restrictions which seek to deny access based on references to ideals of justice or public policy, should not be vague or unclear and ought not to grant individual decision-makers too much discretion in particular claims for compensation. 58 the correct balance between ensuring fairness and imposing legitimate restrictions is unclear.In addition to setting out possible standards in relation to the level and type of compensatory relief available, the Green Paper also discussed a number of models to facilitate cross-border victims of crime in accessing compensation.For the purposes of this article, focus will be placed on the discussion of minimum standards and not the facilitation of cross-border victims.

The 2002 Commission Proposal and Subsequent Discussions at the Council
Recognising the 'need to seize this opportunity to make further progress' in relation to this issue, 59 the Commission soon published its agreed legislative proposals based on the consultation launched as a result of the Green Paper. 60In examining the draft text for a Directive included in the Commission's Proposal, it is important to note that this text is significantly different from the final text of the adopted Compensation Directive.The draft Directive, if it had been adopted without amendment, would have set more comprehensive obligations on Member States to provide increased access to state compensation for victims in their respective jurisdictions.The text of the draft Directive contained two sections.Section 1 would have set down minimum standards for national schemes, whilst section 2 provided for rules in relation to the facilitation of claims from cross-border crime victims.Again, this article will focus on the minimum standards only.
Select provisions from section 1 include the following.Article 2 provided for a general and board definition of what constitutes a victimising event and the type of injuries, both physical and nonphysical, which warrant compensation.Crucially, Article 2 stated that the injuries must have been inflicted by an act or omission that violated the criminal law of the individual Member State. 61rticle 4(2)(a) stated that compensation cannot 'deviate significantly' from what the victim would be entitled to recover from the offender.Article 4(3) stated that upward limits on awards cannot be set at a level below €60,000.Article 7 stated that compensation can be 'reduced or refused' by virtue of the applicant's behaviour but only if this behaviour is in 'direct relation to the event that caused the injury or death.' 62 Whilst Article 11 would have allowed Member States to require victims to report the crime to the appropriate authorities as a condition for receiving compensation, Article 12 provided that the payment of compensation cannot be made dependent on the successful apprehension and prosecution of the offender.Further to this, Article 13(1) stated that time limits for submitting applications cannot be 'less than two years from the end of the police investigation or the end of the criminal proceedings instituted as a result of the crime, whichever comes latest.'If investigations or proceedings have not started, then the two year period 'shall run from the date of commission of the crime.'Article 13(2) then stated that exceptions to the time limit, where victims 'could not have been reasonably expected to submit the application within the prescribed period', should be provided for. 63Section 2 of the draft Directive then sets down the requirements in relation to the facilitation of cross-border victims of crime.As stated above, the text of the Commission's draft Directive differed significantly from the final text of the Compensation Directive.This is despite the fact that both the Parliament and the European Economic and Social Committee endorsed the draft text, albeit with some minor amendments. 64The questions that arise, therefore, are how does the text differ and for what reasons was it altered during the legislative process?The final text will be examined in the next section.For now, however, the reasons for the alternations will be set out.Overall, objections to the Commission's draft text emanated from the Council which required unanimity of Member States in order to adopt the text under the legal basis proposed by the Commission.At the Council, certain Member States called for a reconsideration of the draft directive due to the 'budgetary consequences' on Member States involved if adopted in its draft form. 65There was a particular concern in relation to the impact of the minimum standards set out in section 1 of the draft Directive. 66As a result of these concerns, in acknowledgement of the need to adopt a Directive on this issue, 67 and in recognition of the requirement of unanimity, the Presidency of the Council proposed a compromise in order to seek agreement.This compromise would retain section 2 only of the draft Directive in relation to crossborder situations and section 1 on minimum standards would not be retained.However, a provision would be included which would require Member States to at least establish a compensation scheme so that 'access to compensation in cross-border cases [could] operate effectively'. 68The compromise made no mention of minimum standards in relation to national schemes. 69In this regard, the compromise included a provision requiring that the adopted Directive be reviewed after three years so that the need, or otherwise, for the inclusion of minimum standards in the future could be determined. 70e Provisions of Directive 2004/80/EC As stated above, only section 2 of the Commission's draft Directive, in relation to the facilitation of cross-border victims, was retained in the adopted text of the Compensation Directive.There was also a provision included which required Member States to establish a compensation scheme in their respective jurisdictions.Whilst the provisions in relation to the facilitation of cross-border victims of crime constitute most of the text of the Compensation Directive, and obligate Member States to take steps to ensure that their respective schemes facilitate claims from victims criminally injured in their respective jurisdictions but residing elsewhere, this section will focus on the particular provision requiring Member States to establish a compensation scheme.Whilst the compromise referred to in the previous section stipulated that such a provision should be included in the Compensation Directive, the finalised text of the provision went further than the compromise itself.In this regard, Article 12(1) stipulates that '[t]he rules on access to compensation in cross-border situations drawn up by this Directive shall operate on the basis of Member States' schemes on compensation to victims of violent intentional crime committed in their respective territories.'Further to this, Article 12(2) states that '[a]ll Member States shall ensure that their national rules provide for the existence of a scheme on compensation to victims of violent intentional crimes committed in their respective territories, which guarantees fair and appropriate compensation to victims.'It is important to emphasise that the compromise agreed at the Council made no mention of including this minimum standard of 'fair and appropriate compensation'.Rather, the agreed text in the compromise ended after the words 'in their respective territories'.The questions that arise, therefore, include why was this minimum standard included and what exactly does the term 'fair and appropriate compensation' mean?
The former question will be examined in detail below in the context of CJEU proceedings as to the meaning of this term.For the purposes of this section, the question of why this minimum standard was included will be examined.In order to answer this question, the discussions which took place at the Council meeting of 30 March 2004 will be considered.Here, the finalised text of the Compensation Directive was agreed with the term 'fair and appropriate compensation' included in Article 12 (2).The compromise itself, where the term had not been included, had been agreed on the 26 March 2004 by the Council and the compromise stated that it was up to the Council's Committee on Civil Matters to decide where the provision was to be included in the re-drafted Directive. 71Essentially, between the compromise being agreed and the finalised text being adopted, the term was added to the provision.According to the respondent in BV, the term was added and agreed to at the Council meeting of 30 March 2004 so that some minimum standard at least was included in the finalised text.Interestingly, the Opinion of the Advocate General in the BV proceedings seemed to agree with this contention. 72Overall, therefore, whilst the compromise itself removed the broad and comprehensive minimum standards proposed, the unanimous agreement of the Council to include the term 'fair and appropriate compensation' is vital in the context of examining the impact of EU law to date and the impact it might have in the future in relation to the level of compensation afforded to victims under national compensation schemes.This is because the inclusion of the term by the Council must have practical meaning for victims of crime in their pursuit of state compensation.This particular issue will now be examined in the context of the relevant CJEU caselaw.

The Court of Justice and the Right to State Compensation
Despite the fact that Member States had over 18 months to transpose the Compensation Directive into their national legal systems, a number of Member States failed to take any action at all.In this regard, the Commission brought infringements proceedings against both Italy, 73 and Greece, 74  by not even taking steps to establish a national scheme. 75In addition to these infringement proceedings, the CJEU has also provided some guidance on the scope of the Compensation Directive, particularly Article 12(2) in relation to the 'fair and appropriate compensation' requirement.The CJEU initially interpreted Article 12(2) in a narrow sense, restricting its scope to victims in cross-border situations.Subsequently, the CJEU's interpretation developed to include all victims of violent crime.The development of the CJEU's jurisprudence, in this regard, will now be examined.

Initial Interpretation of Article 12(2): Cross-border Victims Only
On 28 June 2007, in Dell'Orto, the CJEU was tasked with interpreting the term 'victim' under Article 1 of the 2001 Framework Decision.These particular proceedings arose in the context of criminal proceedings taken in Italy against an individual named Dell'Orto on charges of false accounting, aggravated embezzlement and unlawful financing of political parties. 76The victims in this instance were not natural persons and the CJEU held that the term 'victim' under Article 1 of the 2001 Framework Decision does not include such legal persons. 77Whilst the CJEU's judgment primarily concerned the correct interpretation of the 2001 Framework Decision, the CJEU also held that the particular charges in the case do not engage the Compensation Directive as this 'provides for compensation only where a violent intentional crime has been committed in a Member State other than that in which the victim is habitually resident'. 78In other words, the CJEU stated that the provisions of the Compensation Directive only apply to cross-border victims of violent intentional crime.Whilst this significantly limits the scope of the provisions, it is important to emphasise that the judgment in Dell'Orto primarily concerned the correct interpretation of the 2001 Framework Decision.
Whilst this might limit the value of the CJEU's holding in relation to the Compensation Directive, subsequent interpretations by the CJEU have re-iterated the Dell'Orto position.On 30 January 2014, in Paola C v Presidenza del Consiglio dei Ministri, the CJEU was asked by the referring national court in Italy to decide whether Article 12 of the Compensation Directive obligates Member States to set up a state compensation scheme for all victims of violent intentional crime. 79In this case, Ms C resided in Italy and was a victim of a violent intentional crime in Italy.The CJEU reiterated its holding from Dell'Orto that the provisions of the Compensation Directive apply only to cross-border victims of violent intentional crime.As a result, the CJEU declined to answer the referring court's question. 80Purely internal matters, therefore, where the victim of crime is a resident in the Member State where the crime takes place clearly do not fall within the scope of the Compensation Directive, according to the CJEU jurisprudence outlined so far.Interestingly, the CJEU in Paula C referenced Recitals 7 and 11 of the Compensation Directive in support of their conclusion, both of which state that the legislation intends to establish a system to facilitate crossborder victims accessing state compensation.The importance of the Compensation Directive's Recitals becomes clear when examined in their entirety in the context of the BV judgment below.Before examining the BV judgment, however, the CJEU offered further guidance on the issue in their judgment in Commission v Italy, handed down on 11 October 2016, which arose as a result of further infringement proceedings taken by the Commission against Italy for non-compliance with the Compensation Directive. 81In these proceedings, the Commission alleged that Italy had not correctly transposed the requirements of the Compensation Directive by virtue of the fact that their national scheme only offered compensation to victims who were subject to only certain categories of violent crimes.The Commission maintained that Member States did not have discretion under the Compensation Directive to exclude certain types of offences.In the context of Italy, victims of sexual offences could not apply for compensation under the national scheme. 82The CJEU proceedings in Paula C also raised this question but the CJEU declined to provide guidance as the victim in these proceedings was a resident of Italy where the crime itself took place.As stated above, because the matter was purely internal, the CJEU dismissed the proceedings in Paula C. 83 However, the CJEU could not ignore Italy's flawed transposition of the Directive in the context of these infringement proceedings.It was held, therefore, that Italy was in breach of the Compensation Directive by not providing a national compensation scheme applicable to residents of other Member States who are victims of any violent intentional crime in Italy, as defined under national law. 84For the avoidance of doubt, this means that national schemes, set up for cross-border victims, cannot exclude certain categories of violent intentional offences.Importantly, the CJEU repeated its reasoning from Dell'Orto and Paola C that 'purely internal situation[s] [do] not fall within the scope of [the] [D]irective'. 85In support of this conclusion, the CJEU relied on its previous rulings in Dell'Orto and Paola C, 86 but also referenced Recital 1 which states that in passing the Compensation Directive, the EU intended to further remove 'obstacles to the free movement of persons.' 87 Overall, according to the CJEU, restrictions which exclude access to state compensation for victims based on the type of violent offence are not permissible, but restrictions which exclude access based on whether a person becomes a victim when exercising their free movement rights are permissible.Whilst the CJEU came to this conclusion based on these particular reasons, the CJEU also referenced Recital 6 in support of its conclusion, which states that victims of crime … should be entitled to fair and appropriate compensation … regardless of where in the [EU] the crime was committed.' 88Contrary to the CJEU's characterisation of this Recital, it is argued that it in fact would suggest that the provisions should also apply to victims in purely internal situations and, therefore, an interpretation different to that of the CJEU is possible.Deciding to whom provisions of the Compensation Directive apply, particularly the 'fair and appropriate compensation' requirement under Article 12 (2), is difficult to definitively determine.In BV, the CJEU favoured the alternative interpretation to the already decided caselaw but struggled to put forward adequate reasons for this change in direction.This judgment will now be examined and the crux of this article's argument will become clear; namely that the Compensation Directive, and Article 12(2) especially, is unclear and future EU legislative action in this area ought to clarify the position in order to better protect victims of crime.

The BV Judgment: Developing a Right to State Compensation
The decision of the CJEU, handed down on the 16 July 2020, in BV arose as a result of a request for a preliminary ruling from the Italian courts in relation to the correct interpretation of the Compensation Directive.There were two questions to be determined by the CJEU.First, there was a question in relation to whether the Compensation Directive applied to victims of violent intentional crimes not in a cross-border situation under the general EU principles of equal treatment and non-discrimination?There was then a question of whether a compensation decision made under the applicable Italian system amounted to 'fair and appropriate compensation to victims' within the meaning of Article 12(2) of the Compensation Directive?
In relation to the first question, the CJEU held that the provision of 'fair and appropriate compensation' to victims of crime applies to all victims in a given Member State regardless of whether there exists a cross-border element. 89Whilst acknowledging the contents of Recital 1 of the Compensation Directive, which refers to the EU's objective of abolishing barriers to the free movement of persons, 90 the CJEU relied on the contents of a number of further Recitals in support of their decision.First, Recital 3 refers to the European Council decision at their meeting in Tampere in 1999 which called for the drawing up of minimum standards in the area of crime victim compensation. 91Secondly, there is Recital 6 which states that crime victims are entitled to fair and appropriate compensation for injuries sustained regardless of where in the EU the crime itself takes place. 92There is then Recital 7 which stipulates that a mechanism for compensation should be in place in all Member States. 93Furthermore, there is Recital 10 which states that the Compensation Directive was partly put in place as a result of the difficulties crime victims face in securing compensation from the offender.According to the CJEU, these difficulties are relevant regardless of whether there is a cross-border element. 94Finally, and perhaps most importantly in terms of the CJEU's reasoning in relation to the first question, the CJEU examined the provision of Article 12(2) itself and pointed out that the chapter in which it is located in the Compensation Directive is entitled 'national schemes on compensation', whilst the chapter referring to Member States obligations in cross-border situations has the term 'cross-border situations' in its title. 95Based on this reasoning, the CJEU held that for the purposes of Article 12(2) at least, the provision of 'fair and appropriate compensation' to victims of crime applies to all victims in a given Member State regardless of whether there exists a cross-border element. 96n relation to the second question, the CJEU held that fixed rates of compensation which do not take into account the seriousness of the consequences of the crime on the victim are not permissible under Article 12(2). 97In this regard, the CJEU held that compensatory relief must not be 'purely both Paula C and Commission v Italy left the question open as to whether Article 12(2) was limited to cross-border victims of violent crime as these proceedings were not directly dealing with this specific issue but concerned the issue of restrictions based on the type of violent offence. 112Whilst it is correct that the previous caselaw's comments in relation to this issue were secondary to the primary issues facing the CJEU, it cannot be ignored that this previous caselaw's comments in relation to Article 12(2) were coherent and consistent with each other.In other words, before BV, it was consistently stated that Article 12(2) applied only to cross-border victims.In addition to this issue with the Advocate General's reasoning, the CJEU's reasoning in BV is flawed.Whilst the Irish Law Reform Commission stated that '...the clear holding [in BV] that [Article 12 (2)] gives rise to a right to compensation has very significant implications …', 113 it is argued that the judgment's reasoning is far from clear in relation to the application of Article 12(2) to purely internal situations.First, whilst the CJEU broadly followed the Advocate General's Opinion, there is no mention of the Advocate General's discussion in relation to the EU Charter.Therefore, whilst the Advocate General's reasoning in relation to the purely internal situation question is logical and clear, in that his use of the EU Charter is justified, the CJEU made little effort to justify its conclusions along similar lines.Furthermore, the CJEU did not adequately address the fact that its holding in BV contradicted its previous caselaw.Whilst the Advocate General incorrectly, in my view, relied on the fact that the previous caselaw did not specifically concern the issue, the CJEU's reasoning provided little further justification for the change in approach. 114verall, this conclusion in relation to the CJEU's reasoning on Article 12(2) and purely internal situations overshadows the other elements of the BV judgment; namely that compensatory relief must not be 'purely symbolic or manifestly insufficient having regard to the gravity of the consequences' of the crime on the victim. 115Whilst the text of the CJEU's judgment offers limited guidance on how this conclusion was reached, apart from stating that the requirement of 'fair and appropriate compensation' must mean something, 116 such a holding does have the potential to positively impact the provision of state compensation in the Member States in a significant way. 117he specific manner in which it might do so is beyond the scope of this article.Instead, focus will now shift to situating this newly developed CJEU approach to the Compensation Directive with broader developments in victims' rights law and policy at the EU level.In the context of a complicated legislative history and contradictory interpretation at the CJEU, the question that arises is what steps are the EU taking in ensuring that victims' access to compensation and other supports is clear and certain?Whilst the CJEU did not comment specifically on the Advocate General's reasoning in relation to the EU Charter, the Advocate General's reference to 'the detriment of the individuals' and the rights set out in the EU Charter points to an important development in victims' rights discourse at the EU.That is a discourse which is shifting to a genuine consideration of what rights crime victims should possess.This discourse will now be examined in detail.

The Lisbon Treaty and the Strengthening of Victims' Rights
The coming into force of the Lisbon Treaty in 2009 is a significant moment for the protection of victims' rights in the EU.The problems associated with the legal bases used to underpin the 2001 Framework Decision and the Compensation Directive were referenced above.It will be recalled that Framework Decisions do not have direct effect in Member States and Member States cannot be subject to infringement proceedings at the CJEU for incorrect transposition.In relation to the Compensation Directive, it will be recalled that the adoption of the Directive at the Council required unanimity and this led to a significant reduction in the scope of the finalised Directive.Unanimity was also required in relation to Framework Decisions.According to Piris, the unanimity requirement resulted in a 'difficult and lengthy' law-making process at the Council and 'diminished the level of ambition' present amongst Member States to make meaningful progress in relation to AFSJ issues. 118 further problem in relation to the Compensation Directive was the use of Article 352 TFEU (ex-Article 308 TEU) as the legal basis.This provision of the EU Treaties is known as the 'flexibility clause' and has been a part of the EU Treaties since the adoption of the Rome Treaty in 1957 which established the EU.The flexibility clause operates to permit the EU to take legislative action to achieve the objectives set out in the EU Treaties but where a power to act has not been specifically granted.119 The use of this legal basis also required unanimity and its use was continuously called into question in the course of infringement proceedings taken by the Commission against Member States.In this regard, Member States argued that the Compensation Directive should be invalidated if the CJEU held that the Directive applied to purely internal situations.120 Whilst the CJEU continuously dismissed such arguments, 121 and in fact held that the Directive does not apply to these situations, the fact that the legal basis for such an important and long-awaited Directive could be called into question in this way highlighted the need for specific legislative powers for the Council and the Parliament to adopt legislation in relation to victims' rights.
It was clear that there was a need for increased competencies and more flexible voting arrangements in the actual law-making process.To this end, the 2009 Lisbon Treaty revised the applicable provisions and a new specific victims' rights competency was set out in Article 82(2)(c) TFEU.This provides that '[t]o the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, the European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules …[which] … shall concern … the rights of victims of crime'.Importantly, legislative action could now be taken by the EU under the new ordinary legislative procedure where both the Council and the Parliament were involved in the law-making process.Crucially, qualified majority voting was to be used at the Council meaning the requirement for unanimity was abolished.As these are the only provisions in the Victims' Rights Directive which concern state compensation, focus will now shift to examining the reasons as to why reform of the Compensation Directive was not considered in the context of post-Lisbon Treaty reform.In this regard, the 2009 Evaluation Report will now be examined.

The 2009 Commission Evaluation Report
In relation to the implementation of Article 12(2), the Commission noted that 'it appears that Member States provide fair and appropriate compensation for victims of violent intentional crimes … [and] … there seems to be a substantial degree of compliance across Member States' in relation to this requirement. 127The Commission's conclusions are based on statements as to the current type and level of compensation available throughout the Member States.For example, the Evaluation Report states that '[t]here is … a consensus that … mental injury should be included within schemes.' Unfortunately, there is no definition provided of what such a consensus is.A further example of such a statement is where it is stated that '[a]ll but two [Member States] reported that they impose a time limit for the completion and submission of a claim for compensation.'Relying on such a statement ignores the fact that some Member States have an extremely restrictive time limit, whilst others have a very long time limit.A final example of such a statement is that '[t]he vast majority of schemes provide compensation for financial loss arising from the injury'.Such a statement ignores the fact that there are different forms of financial loss and a Member State's exclusion of a particular form can have significant consequences for the level of compensation provided to victims. 128verall, the 2009 Evaluation Report did 'not propose amendments to the [Compensation] Directive but consider[ed] that the implementation [could] be improved on the basis of the current provisions.'According to the Commission, this was due to the 'short period and consequent limited practical experience on the application of the Directive' in Member States. 129In this light, the Commission's 2011 Proposal sought to replace and strengthen the 2001 Framework Decision only, 130 and the Victims' Rights Directive was subsequently adopted.It is interesting to note again the only mention of state compensation in the Victims' Rights Directive was references to victims' rights to information about national schemes.This is because the 2009 Evaluation Report concluded that communication in relation to how to access and apply to national schemes was one of the biggest barriers facing victims of crime. 131n their Opinion on the Commission's 2011 Proposal, the European Economic and Social Committee welcomed the contents of the draft directive on victims' rights.However, the Committee 'urge [d] the Commission to go ahead with [a further] review of the directive on compensation for victims and make wide-ranging and necessary improvements in this area …'. 132The Commission did not conclude this further review of the Compensation Directive until 2019 with the adoption of the Milquet Report, 133 and the publication of a related series of reports on victims' rights from the European Union Agency for Fundamental Rights (FRA). 134These documents will now be examined in the context of future policy directions at the EU level concerning victims' rights to compensation.
The Future and Potential for a Rights-Based Conception of Victimisation Developing a Genuine Rights Discourse for Victims of Crime: Milquet and the FRA The Milquet Report provides a practical evaluation of victims' rights in the context of the AFSJ in that the problems victims face in accessing state and offender compensation are comprehensively examined and priorities for future EU and Member State action in relation to the issue are set out. 135 The Milquet Report is premised on a right-based conception of victimisation which ensures the operation of an assumption that victims of crime have a right to justice and the overall justice system should work to 'right' the wrongs inflicted on victims.According to the FRA, the language of rights 'changes profoundly the relationship between the victim and the state.'Instead of crime victims exercising their right of access to national schemes and 'pleading for help' on the basis of their 'vulnerability, pressing needs and deservingness', a rights-based approach sees the state as the 'duty-bearer' who is responsible for safeguarding victims of crime as 'rights holders' in their own right. 136ccording to the Milquet Report, national compensation schemes must go beyond a 'solidaritybased vision' of state compensation where compensation is offered to victims merely out of a moral duty and as a means of society demonstrating sympathy and empathy to innocent victims of crime. 137The Milquet Report recommends that the language should shift from 'compensation' to 'reparation' where the '[p]rovision to the victim of a full reparation is not only about compensating for the unjust harm suffered, it is also a mechanism of giving the victims the opportunities to return to the circumstances that are the closest … to that of the victim before the crime.' 138Additionally, the Milquet Report argues that reparation should also include 'multidisciplinary [and] free victims support services … in the short and long term.' 139 According to the Milquet Report, the traditional approach has resulted in significant problems for crime victims in their pursuit of state compensation.These problems include low amounts of compensation, 140 restrictive eligibility criteria, 141 the absence of interim payments, 142 and delays in awards being paid out due to limited budgets. 143Additionally, there are several procedural obstacles including the absence of legal aid and restrictive time limits. 144The Milquet Report states that these problems are amplified in the context of gender-based violence where reporting rates are low, 'victims are vulnerable to re-victimisation' and there is 'the prevalence of victim-blaming attitudes in society'. 145 to these problems as Member States have implemented the Directive in differing ways resulting 'in inequalities in victims' access to compensation' across the EU. 146n order to tackle these various problems, the Milquet Report makes a number of recommendations for change.First, each Member State should establish a national victims' rights commissioner or co-ordinator in order to monitor the actions or inactions of national governments on this issue. 147Additionally, the Milquet Report sets out a number of steps needed to improve access to compensation in cross-border cases. 148Furthermore, actions to improve the provision of information to victims were set out, 149 and a number of recommendations were made for legislative change at the EU level to improve the provision of state compensation at the national level.In this regard, it was recommended that officials administering national schemes should be better trained to work with crime victims and prevent re-victimisation. 150It was recommended that EU legislation 'should clearly forbid [a] minimum income requirement and other criteria of discriminatory exclusion'.In this regard, it was stated that the 'only condition that may be accepted is to legitimately ask the victim to report the crime and to accept to "initiate" a compensation procedure against the offender'. 151Furthermore, the Milquet Report recommended that 'there is a need to adopt common criteria on the assessment of the harm suffered [and] common evidentiary requirements for major types of damages leading to victim compensation.' 152In addition to other minor recommendations, including in relation to the simplification of the application procedure, 153 along with a right of review of individual decisions, 154 the Milquet Report also recommended that guidelines be agreed at the EU level in relation to the funding of national schemes including that there should be 'strict rules governing funding allocations' to ensure that funds are spent appropriately. 155s a means to conclude discussions on the Milquet Report, whilst the Report is broadly comprehensive, it does not provide specific guidance on the key restrictions present under national schemes; namely, the proper scope of eligibility criteria.Whilst 'criteria of discriminatory exclusion' should not be permitted, the Milquet Report does not specify what this is to include. 156For example, to what extent should a victim's prior criminal conduct be taken into account?Interestingly, the Commission's 2002 Proposal did include some guidance on this issue in section 1 of the draft Directive, which was removed at the Council stage of the discussions on the Compensation Directive.Here, it was stated that the prior conduct would have to be directly related to the victimising event. 157It is unfortunate that the Milquet Report did not provide the same level of discussion and detail.In this regard, the draft Directive is a good starting point for discussion on the appropriate limitations of national schemes.Article 7 stated that compensation could be 'reduced or refused' by virtue of the applicant's behaviour but only if this behaviour is in 'direct relation to the event that caused the injury or death.' 158 In addition to including this type of language within national schemes, I contend that if an applicant with previous criminal convictions has paid their debt to society and moved on from previous criminal behaviour, their previous criminal convictions should have no impact on their claim for state-funded compensation.

Next Steps Toward Reform
Despite this, the Commission's Victims' Rights Strategy for 2020 -2025 (Strategy) develops the Milquet Report's discussion further and commits the Commission to '[m]onitor and assess EU legislation on compensation … and if necessary propose measures to complement this framework …'. 159The Strategy also encourages Member States to 'eliminate existing procedural hurdles', ensure that fair and appropriate state compensation … is reflected in the national budget', take steps to prevent secondary victimisation when a victim applies for compensation and improve the provision of information to victims about their rights.On foot of the key priorities for action set out in the Strategy, the Commission launched a further review of the Victims' Rights Directive in 2020 along with a related public consultation process. 160The provisions of the Compensation Directive are included in this review.As the European Council recommended in their 2009 Stockholm Programme, perhaps both regimes can now be brought together into one comprehensive piece of legislation. 161Additionally, it is recommended that any consolidated legislative proposal include minimum standards which national compensation schemes must abide by, similar to those proposed when the Compensation Directive was first proposed. 162

Conclusion
As outlined throughout this article, the victims' rights landscape at the EU level has changed considerably since the 1980's when legislation in relation to the issue was first proposed.The EU was first reluctant to take harmonisation measures because of an absence of law-making authority at the EU level and due to the parallel development of the Compensation Convention at the Council of Europe.In due course, with the adoption of the Amsterdam Treaty in 1997, criminal justice and victims' rights issues became an increasingly important area within the EU and even after the adoption of the Compensation Directive in 2004, victims' rights law and policy has undergone further significant change throughout the course of the last 20 years with the adoption of the Lisbon Treaty in 2009 and the Victims' Rights Directive in 2012.Alongside these gradual developments at a legislative and policy level, the CJEU has developed its jurisprudence in relation to Member States' obligations under the Compensation Directive and the meaning of 'fair and appropriate' compensation.
Overall, it is clear that all victims of violent crime possess a right to state compensation in line with the judgment of the CJEU in BV.The development of the CJEU's jurisprudence, culminating in BV, was convoluted and the jurisprudential value of BV itself is questionable in light of the flawed reasoning of the CJEU.Despite this, developments outside the CJEU have altered the victims' rights landscape in the EU, which leads to the conclusion that legal and policy developments today cannot be assessed solely with reference to the context of the time when the Compensation Directive was first proposed.In this light, and considering the Lisbon Treaty, the Milquet Report and the BV judgment, it is hoped that the EU as a whole, including Member States, will be more ambitious when proposing reform of the Compensation Directive in the future.In this regard, it is argued that a significant increase in resources at a national level will be needed and with this, it is necessary for the political will to exist so that all victims of violent crime have their rights adequately protected.
with the adoption of the 2001 Council Framework Decision on the Standing of Victims in Criminal Proceedings (2001 Framework Decision). 50The 2001 Framework Decision provided for a number of rights for victims of crime before, during and after the criminal trial including rights concerning information, participation and support.The legal bases used were Articles 82 and 83 TFEU (ex-Article 31) and ex-Article 34(2)(b) (now repealed) of 43.Lupária & Della Torre (n 16 and both were convicted in the CJEU of breaching their requirements under the Compensation Directive 71.ibid.72.Opinion of Advocate General Bobek (n 69) para [83].73.Commission v Italy (n 3).74.C-26/07 Commission v Greece EU:C:2007:461.
Directive 2012/29/EU, Victims' Rights and the Exclusion of Compensation With the adoption of the Lisbon Treaty, the issue of strengthening the rights of crime victims both in relation to criminal proceedings and compensation became a firm political priority for the EU as a whole.Under the 2009 Stockholm Programme, which set out priorities for action in the context of AFSJ issues, the European Council called on the Commission and the Member States to 'examine the opportunity of making one comprehensive legal instrument on the protection of victims, by joining together the Directive on compensation to victims and the [2001] Framework Decision on victims.' 123 Despite the European Council's request to join the two legal frameworks together into one comprehensive piece of legislation, the Commission only acknowledged the problems associated with the 2001 Framework Decision.In relation to the problems associated with the Compensation Directive, the Commission concluded that 'further research [was] required to establish to what extent implementation by Member States [of the Compensation Directive] has been effective.' 124In this regard, the Commission relied on its 2009 Evaluation Report of the Compensation Directive to support its conclusions. 125It then progressed reform of the 2001 Framework Decision and the Victims' Rights Directive was enacted. 126This legislation set out a wide range of rights for victims including in relation to information, support and participatory rights in the context of the criminal trial.Article 4(1)(e) and Article 9(1)(a) specifically grant victims a right to receive information in relation to how to access national compensation schemes.
19inz Narjes, who was present in the Parliament at its adoption, stated that a draft Directive would only be forthcoming if the Council of Europe's measures failed to bring about the required harmonisation.According to the European Commission, this was to prevent a 'duplication of work' between the separate entities.19Additionally,whilst advocates for the 1981 Resolution referenced the social security competencies in the EU Treaties as a possible basis for legal action under Article 153 of the Treaty on the Functioning of the European Union (TFEU) (ex-Article 118 of the Rome Treaty), along with Article 161 TFEU (ex-Article 122 of the Rome Treaty), 17e 1981 European Parliament Resolution and the Council of Europe In 1981, the Council of Europe was in the process of drafting the Compensation Convention.Recognising these developments at the Council of Europe, the European Parliament (Parliament) passed its own Resolution in 1981 (1981 Resolution) calling on the European Commission (Commission) to draft a Directive which would 'create a minimum [EU] criteria for financial awards from public funds to victims … based on those already agreed by … the Council of Europe … [and which would] … require the Member States to make awards … regardless of the victim's Member State of origin.'17According to the 1981 Resolution, it was necessary for the then European Community to take action in relation to this matter due to the 'close connection between social protection and freedom of movement', due to 'the responsibility of every community to provide assistance for victims of criminal acts of violence' and also due to the 'disparities' present in the level of compensation available to victims in different EU Member States.18Whilst the 1981 Resolution was approved by the European Parliament, the European Commissioner for Parliamentary Relations and Competition, Karl- 36.ibid para[2].37. Single European Act OJ L 169, 29.06.1987,p. 1 <https://op.europa.eu/en/publication-detail/-/publication/aac78d32-1627-41de-a347-ba4dc8415e57/language-en/format-HTML/source-search>accessed 25 November 2021.38.European Parliament Debates (n 33) p. 18. 39.European Parliament, Written Questions with Answer OJ C 185, 07.07.1993, p. 18 <https://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=OJ:C:1993:185:FULL&qid=1637861541294&from=EN> accessed 25 November 2021.40.Maastricht Treaty OJ C 191, 29.07.1992,p. 61 <https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX: 11992M/TXT&from=EN> accessed 26 November 2021.
). 44.Amsterdam Treaty OJ C 340, 10.11.1997, p. 8 <https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX: 11997D/TXT&from=EN> accessed 26 November 2021.45. ibid p. 16. 46.European Commission & European Council, Action Plan of the Council and the Commission on how Best to Implement the Provisions of the Treaty of Amsterdam on an Area of Freedom, Security and Justice 1999/C 19/01 OJ C 19, 23.1.1999,p 15 <https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:31999Y0123(01)&from=EN> accessed 13 October 2021.47.European Council, Conclusions of the Tampere European Council of 15 & 16 October 1999 para [B(V)(32)] <https:// www.europarl.europa.eu/summits/tam_en.htm>accessed 13 October 2021.48.European Commission, Communication from the Commission to the Council, the European Parliament and the Economic and Social Committee of 14 July 1999 -Crime victims in the European Union -Reflexions on Standards and Action COM(1999) 349 <https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=LEGISSUM:l33091> accessed 26 November 2021.49.Lupária & Della Torre (n 16) 312 -313.50.Council Framework Decision of 15 March 2001 On the Standing of Victims in Criminal Proceedings 2001/220/JHA OJ No L 82, 22.3.2001,p 1. the Treaty on the European Union.Despite the seemingly promising nature of the rights set out in the 2001 Framework Decision, Lupária and Della Torre state that Member States did not correctly transpose the 2001 Framework Decision.Furthermore, they assert that the legal bases on which the legislation had been passed did not allow the Commission to bring infringement proceedings against Member States in the CJEU for incorrect transposition.In this light, Lupária and Della Torre point to the adoption of the Lisbon Treaty in 2009 as a significant juncture in that focus shifted from the Framework Decision model to a Directive model which 'greatly increased the power … [of the EU] … to penetrate domestic legal systems.' 51 This is because Framework Decisions do not have direct effect in Member States whilst Directives do.
Whether the proposal in the Green Paper strikes 51.Lupária & Della Torre (n 16) 313 -314.52.ibid 313; see also European Commission, Report from the Commission: On the basis of Article 18 of the Council 123.Council of the European Union, The Stockholm Programme: An Open and Secure Europe Serving and Protecting Citizens 2010/C 115/01 para [2.3.4]<https://db.eurocrim.org/db/en/doc/1341.pdf> accessed 31 October 2021.124.European Commission, Commission Staff Working Paper: Impact Assessment Accompanying the Document Proposal for a Directive of the European Parliament and of the Council Establishing Minimum Standards on the Rights, Support Report from the Commission to the Council, the European Parliament and the European Economic and Social Committee on the Application of Council Directive 2004/80/EC Relating to Compensation to In the context of the Compensation Directive, the Milquet Report states that the Directive has not resulted in solutions