EUROPEAN COMMISSION Brussels, 19.12.2022 SWD(2022) 425 final COMMISSION STAFF WORKING DOCUMENT



IMPACT ASSESSMENT REPORT

Accompanying the document Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

amending Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims {COM(2022) 732 final} - {SEC(2022) 445 final} - {SWD(2022) 426 final} - {SWD(2022) 427 final} - {SWD(2022) 428 final}



Table of contents 1.Introduction: Political and legal context 2.What is the problem and why is it a problem? 2.1.Problem overview 2.2.Horizontal problem 1: Trafficking in human beings continues to thrive in the EU 2.2.1. Driver: there are practical obstacles in the detection of cases of trafficking in human beings and in the early identification of victims 2.2.2. Driver: preventive and awareness-raising initiatives do not adequately target individuals and specific groups at higher risk of becoming victims of trafficking 2.2.3. Driver: the data collection exercises and the monitoring of trends do not reflect the full scale of trafficking in human beings across the EU 2.3.Specific problem 2: The numbers of investigations, prosecutions and convictions of traffickers are low, leading to a culture of impunity 2.3.1. Driver: there has been a rise in the forms of exploitation other than those explicitly mentioned in the definition of trafficking in human beings provided in the Directive are often not criminalised in the Member States 2.3.2. Driver: trafficking in human beings increasingly moved online, creating additional challenges for law enforcement and judicial authorities 2.3.3. Driver: There are challenges in proving offences of trafficking in human beings in front of national courts 2.3.4. Driver: legal persons are not (sufficiently) held accountable for trafficking offences 2.4.Specific problem 3: victims of trafficking do not always receive an adequate level of assistance, support and protection, which is adapted to their specific needs 2.4.1. Driver: existing national and transnational referral mechanisms are not fully effective 2.4.2. Driver: the services providing assistance and support to victims of trafficking often have limited capacity and resources or are not sufficiently tailored to specific needs 2.4.3. Driver: the principles of non-prosecution and non-punishment of victims forced to commit criminal offences as a result of being trafficked, are not consistently implemented 2.4.4. Driver: victims rarely have access to compensation 2.4.5. Driver: measures to protect victims who participate in the criminal proceedings are not consistently applied

2.5.Specific problem 4: the demand that fosters trafficking in human beings remains high 2.5.1. Driver: the criminalisation of the use of services exacted from victims of trafficking is not consistent across the Member States 2.5.2. Demand-reduction approaches are not widely implemented 3.why should the EU act? 3.1.Legal basis 3.2.Subsidiarity and proportionality 4.What should be achieved? 4.1.General objectives 4.2.Horizontal and specific objectives 4.2.1. Ensuring adequate prevention, detection and improving the monitoring of trafficking in human beings at the EU level (horizontal) 4.2.2. Reinforcing the criminal justice response to the crime, including in the cross-border context (specific) 4.2.3. Ensuring that victims of trafficking in human beings receive adequate assistance, support and protection across the Member States (specific) 4.2.4. Reducing the demand for the exploited services of victims that fosters trafficking for all forms of exploitation (specific) 4.3.How do objectives relate to the sustainable development goals and the Charter of Fundamental Rights of the EU? 5.What are the various options to achieve the objectives? 5.1.What is the baseline from which options are assessed? 5.2.Description of the policy options 5.2.1. Policy option 1: Non-legislative action at EU level or national level 5.2.2. Policy option 2: Legislative action at EU level 5.2.3. Policy option 3: Legislative action at EU level in combination with non-legislative measures

5.3.Options (legislative measures) discarded at an early stage 5.3.1. Equality model 5.3.2. Other legislative changes discarded at an early stage related to assistance of victims and confiscation 6.What are the impacts of the different policy options and who will be affected? 6.1.Security impact 6.2.Social impact 6.3.Economic 6.4.Fundamental rights 7.How do the options compare? 7.1.Effectiveness 7.1.1. Ensuring adequate prevention, detection and monitoring of trafficking in human beings 7.1.2. Reinforcing the criminal justice response to the crime, including in the cross-border context 7.1.3. Ensuring that victims of trafficking receive adequate assistance, support and protection across the Member States 7.1.4. Reducing the demand for the exploited services of victims of trafficking in human beings 7.2 Efficiency 7.3 Coherence 7.4 Necessity 7.5 Subsidiarity and proportionality 8.Preferred option 8.1Policy option 3 – Legislative measures combined with non-legislative measures

8.2REFIT (simplification and improved efficiency) 8.3Application of the ‘one in, one out’ approach 9.How will actual impacts be monitored and evaluated? Annex 1: Procedural information Annex 2: Stakeholder consultation (Synopsis report) Annex 3: Who is affected and how? Annex 4: Analytical methods Annex 5: Statistics Annex 6: Transposition of the Anti-Trafficking Directive Glossary Term or acronym Meaning or definition AMIF Asylum, Migration and Integration Fund CEPOL European Union Agency for Law Enforcement Training EU Anti-Trafficking Coordinator (EU ATC) The EU ATC helps ensuring coordination and coherence among EU institutions, EU agencies, Member States and international actors, contributing to the development of existing or new EU policies and strategies relevant to the fight against trafficking in human beings and reporting to the EU institutions. The EU ATC contributes to reporting carried out by the Commission every two years on the progress made in the fight against trafficking in human beings. EMPACT European multi-disciplinary platform against criminal threats: security initiative driven by EU Member States to identify, prioritise and address threats posed by organised and serious international crime. EUAA European Union Agency for Asylum ELA European Labour Authority EUROJUST European Union Agency for Criminal Justice Cooperation EUROPOL European Union Agency for Law Enforcement Cooperation GRETA Council of Europe’s Group of Experts on Action against Trafficking in Human Beings FRONTEX European Border and Coast Guard Agency ISF Internal Security Fund Judicial winding-up Proceedings relating to the winding-up or liquidation of legal persons LGBTIQ Lesbian, gay, bisexual, trans, non-binary, intersex and queer National Rapporteurs and Equivalent Mechanisms (NREM) National rapporteurs and equivalent mechanisms are described in Directive 2011/36/EU as national monitoring systems. Member States have an obligation to establish such mechanisms, as required by Article 19 of Directive 2011/36/EU, in order to carry out assessments of trends in trafficking in human beings, measure results of anti-trafficking actions, including gathering statistics in close cooperation with relevant civil society organisations active in this field, and to report. An EU Network of National rapporteurs or equivalent mechanisms was established by the Council Conclusions on 4 June 2009. The EU Anti-trafficking Coordinator co-chairs the regular meetings of the Network, together with the incumbent Presidency of the Council of the EU. National Referral Mechanism (NRM) Mechanism aimed at identifying, protecting and assisting victims of trafficking in human beings, through referral, and involving relevant public authorities and civil society. Pimping Act of providing or procuring someone to a customer as a prostitute. SOCTA Serious and Organised Crime Threat Assessment SDG Sustainable Development Goals Strategy EU Strategy on Combatting Trafficking in Human Beings 2021-2025 TFEU Treaty on the Functioning of the EU THB Trafficking in human beings Transnational Referral Mechanism (TRM) A TRM is a mechanism, which aims at linking national referral mechanisms to better identify, refer, protect and assist victims, when more than one Member State is affected with a trafficking case, or a Member State and a non-EU country.



1.1. Introduction: Political and legal context Directive 2011/36/EU on preventing and combating trafficking in human beings, protecting its victims (hereinafter “the Directive”) is the primary legislative instrument to combat trafficking in human beings (THB) in the European Union. It provides for an overarching EU legal framework “to prevent and combat trafficking in human beings by establishing minimum rules concerning the definition of criminal offences and sanctions in the area of trafficking in human beings and by introducing provisions, taking into account the gender perspective, to strengthen the prevention of this crime and the protection of the victims.” The Directive entered into force on 5 April 2011 and Member States were required to transpose it by 6 April 2013. According to the 2021 EU Serious and Organised Crime Threat Assessment (herein after 2021 EU SOCTA) published by Europol, trafficking in human beings is a core activity of serious and organised crime in the EU and is set to remain a threat for the foreseeable future. During the COVID-19 pandemic, criminals have seized opportunities to generate significant profits and intensify criminal activities. They have adapted their modus operandi and are increasingly using online platforms and services to identify victims, organise their exploitation, especially for sexual purposes, and advertise their services. At the same time, the threat of trafficking in human beings in relation to Russia’s war of aggression against Ukraine remains high, in particular in the longer-term. The war further increased opportunities for traffickers to exploit the vulnerable situation of people fleeing Ukraine for their financial gain. Therefore, a Common Anti-Trafficking Plan was developed by the EU Anti-trafficking Coordinator (EU ATC) and endorsed by the Solidarity Platform on 4 May 2022 to address the risks of trafficking in human beings and support potential victims among those fleeing the war in Ukraine. Trafficking in human beings was identified as a crime priority in the EU Security Union Strategy and in the Council conclusions of 26 May 2021 setting the 2022-2025 EU priorities for the fight against serious and organised crime through the European multi-disciplinary platform against criminal threats (EMPACT). The conclusions set as a priority “to disrupt criminal networks engaged in trafficking in human beings for all forms of exploitation, including labour and sexual exploitation, and with a special focus on those who exploit minors for forced criminality; those who use or threaten with violence against victims and their families, or mislead victims by simulating to officialise the exploitation; those who recruit and advertise victims online, and are serviced by brokers providing digital services”. The Impact Assessment relates to one of the key actions of the EU Strategy on Combatting Trafficking in Human Beings 2021-2025, presented by the Commission on 14 April 2021 (hereinafter “the Strategy”) together with the EU Strategy to tackle Organised Crime, which sets out the actions to be taken to disrupt the business models and structures of criminal organisations across borders, both online and offline. The EU Strategy on Combatting Trafficking in Human Beings indicated that the Commission would evaluate the Anti-trafficking Directive, and based on the outcome of the evaluation, consider reviewing it. The Commission carried out an evaluation (“Evaluation Staff Working Document”) on the basis of which it concluded to revise the Anti-trafficking Directive. The evaluation feeds into the Impact Assessment for a revision of the Directive. The evaluation and the Impact Assessment also respond to the call of the European Parliament to the Commission to assess the implementation of the legal instrument and to come forward with proposals to revise the Directive. The Impact Assessment is relevant to three Sustainable Development Goals (SDG), i.e. SDG 5.2 on eliminating all forms of violence against all women and girls in the public and private spheres, including trafficking and sexual and other types of exploitation; SDG 8.7 on taking immediate and effective measures to eradicate forced labour, end modern slavery and human trafficking and secure the prohibition and elimination of the worst forms of child labour, including recruitment and use of child soldiers, and by 2025 end child labour in all its forms; and SDG 16 on ending abuse, exploitation, trafficking and all forms of violence against and torture of children. The fight against trafficking in human beings is a cross-cutting policy area and, therefore, is linked to many other initiatives. It is notably addressed in a number of recently adopted proposals for legislative instruments. The Commission’s proposal for a Directive on corporate sustainability due diligence is complementary to Directive 2011/36/EU. It sets out a horizontal framework to foster the contribution of businesses operating in the single market to the respect of human rights and environment through their own operations and through their value chains, by identifying, preventing, mitigating and accounting for their adverse human rights and environmental impacts, including trafficking in human beings. The proposal for a Directive on combating violence against women and domestic violence acknowledges that the offence of trafficking in human beings for the purpose of sexual exploitation is a form of violence against women specifically covered under Directive 2011/36/EU. The specific prevention, protection and support measures envisaged in the Directive on combating violence against women and domestic violence complement the measures laid down in Directive 2011/36/EU.

The Directive addresses the specific needs of the particular categories of victims of trafficking in human beings. Victims of trafficking are nevertheless entitled to the measures provided under the Victims’ Rights Directive that is a horizontal instrument, applicable to all victims of crime. On 28 June 2022, the Commission adopted its evaluation of the Victims’ Rights Directive that identified shortcomings related to victims’ access to information, justice, support and protection . The Commission is currently preparing an impact assessment of the Victims’ Rights Directive and plans to propose a revision of the Directive in 2023. The Digital Services Act adopted on 19 October 2022 will be a relevant tool in detecting, monitoring and removing online content related to trafficking in human beings, as it introduces a due diligence obligation for providers of intermediary services, such as online platforms, with the aim to reduce illegal and harmful content online. The new rules proposed by the Commission to address online child sexual abuse are also relevant in cases where the child victim of sexual abuse or sexual exploitation is also a victim of trafficking in human beings, as they require providers and hosting services to make risks assessments, detect and report online child sexual abuse, and remove related material. The Commission’s proposal for a new Directive on asset recovery and confiscation contributes to the fight against trafficking in human beings by providing a new set of rules that addresses asset recovery from tracing and identification, through freezing and management, to confiscation and final disposal of assets. On 14 September 2022 the Commission presented a proposal prohibiting products made with forced labour on the Union market. The proposal will include products produced by forced labour from victims of human trafficking and will cover both domestic and imported products. Building on international standards and complementing existing horizontal and sectoral EU initiatives, in particular the due diligence and transparency obligations, the Regulation will combine a prohibition with a robust, risk-based enforcement framework. The coherence with other EU legislative instruments relevant for the area of trafficking in human beings was assessed for the purpose of the evaluation. The evaluation concluded that the Anti-trafficking Directive was overall coherent with those instruments, although the consistency with the Employers Sanctions Directive (2009/52/EC) could be further improved. This is addressed in Section 7.3 of the Impact Assessment. 2.2. What is the problem and why is it a problem? 2.1.2.1. Problem overview Based on the trends observed over the period 2013-2020, trafficking in human beings has not decreased. The annual number of registered victims did not vary significantly over the evaluation period, although the actual number of victims is likely to be significantly higher than the statistics suggest. The lowest number was recorded in 2015 (6 071 victims) and the highest in 2019 (7 777). While the scale and trends vary across the EU, all Member States are affected. During the period 2013-2020, the five Member States with the largest number of registered victims, in absolute numbers, were the Netherlands (8 967), France (8 652), Italy (6 927), Romania (5 742) and Germany (4 842). However, considering the proportion of victims as compared to the total population of the registering country , the top five Member States were Cyprus (100), the Netherlands (66), Romania (36) and Austria (36) and Malta (35). Three quarters (75%) of all victims registered in the EU were women and girls. Only two Member States (Belgium and Portugal) registered a majority of male victims (men and boys) during the reporting period. Children represented nearly a quarter (21%) of all victims in the EU. Trafficking for the purpose of sexual exploitation has consistently remains the main form of exploitation within the EU (65% of all registered victims over the reporting period). The Member States with the highest share of victims of trafficking for sexual exploitation were Slovenia (87%), Bulgaria (82%), France (72%), Estonia and Denmark (70% each). Victims of trafficking for sexual exploitation registered in the EU are overwhelmingly female (93%). Trafficking for labour exploitation is the second main form in the EU (21%). It was the most prevalent form of exploitation in Malta (74%), Portugal (66%), Belgium (57%) and Poland (53%). Labour exploitation affects mostly male victims (70%), although female victims are increasingly exploited in particular sectors (e.g., domestic work, care activities or cleaning services). Other forms of exploitation accounted for 14% of all the victims of trafficking in human beings. Statistics highlight the cross-border and transnational dimension of the crime. 56% of the victims identified in the EU are EU citizens, including 21% who are citizens of another EU Member States than the one where they were registered. The Member States who registered the highest percentage of EU victims who are citizens of another Member States for the reporting period were Czech Republic (65%), Germany (48%), Ireland (41%), Slovenia (39%) and Austria (37%). Non-EU citizens accounted for 44% of victims registered within the EU. The Member States with the highest percentages of victims of non-EU citizenship are Sweden (96%), Malta (90%), Finland (86%), Denmark (87%), Belgium and Italy (both 75%). This data indicates that the countries of origin, transit and destination of trafficking victims identified in the EU are both EU Member States and non-EU countries. The nationality of the traffickers also confirms the cross-border dimension. While EU citizens accounted for more than two thirds of all suspects with known country of citizenship during the 2015-2020 period, the proportion of non-EU citizens among suspects increased steadily during the reporting period, reaching 41% in 2020. EU citizens also represented over two thirds of all prosecuted individuals. Around 25% of those prosecuted were non-EU citizens. Among convicted individuals, the share of EU citizens (51%) and non-EU citizens (49%) is nearly even. The number of prosecutions and convictions has remained consistently low , especially if compared to the number of registered victims and of suspects. Between 2013 and 2020, 40 028 suspects were recorded for an offence of trafficking in human beings was. During the same period, 21 824 individuals were prosecuted and 11 319 were convicted. The evaluation showed that the limitations of available data hindered the accuracy of these statistics, as Member States have different approaches to reporting data on individuals and cases in their police, prosecution and court systems. Trafficking in human beings continues to be a low risk, high profit crime, which generates an estimated amount of EUR 29.4 billion per year. The annual revenues produced for trafficking for sexual exploitation are estimated at around EUR 14 billion . Since the adoption of the Directive, several major developments have affected the socio-economic situation, with significant implications on the trafficking in human beings landscape. Technological developments and the expansion of online social media created new opportunities for traffickers, allowing them to recruit victims online and to reach a much broader audience via online streaming and widespread sharing of exploitative materials. The demand for using the services exploited from trafficking victims is also likely to increase. According to the 2021 EU SOCTA report “the sustained demand for sexual services will continue to drive the sexual exploitation of victims”, and “the persistent demand for low-wage workers employed in manual jobs, both seasonable and throughout the year, will ensure opportunities for labour exploitation”. In 2020, Europol warned that an economic recession in the wake of the COVID-19 pandemic would increase the risks of trafficking in human beings, as criminals have access to a wider pool of individuals in enhanced vulnerability situations or economic distress. At the same time, an increased demand for cheap labour may work as a pull factor, provoking a potential rise in trafficking within the EU . Furthermore, the vulnerability of people who fled Ukraine into the EU following Russia’s unjustified military aggression is expected to increase in the mid- and long-terms. Criminal networks, but also employers, may try to take advantage of the situation of refugees, who may be inclined to accept jobs with poor working conditions or which are undeclared and in turn be more at risk of labour exploitation. The evaluation found that the Directive contributed to the creation of an EU common framework for the (i) criminalisation, investigation and prosecution of trafficking in human beings offences, including related definition and sanctions; (ii) assistance, support and protection of victims of trafficking in human beings; (iii) prevention of trafficking in human beings related offences. Despite the improvements brought by the Directive, the current legal framework is not fully adapted to the emerging trends and recent challenges posed by trafficking in human beings. Indeed, the evaluation found room for improvement, in particular in making the Directive more effective in dealing with new forms of exploitation and modus operandi of the traffickers, as well as in the area of investigations and prosecutions. Moreover, divergences in the way the Directive has been implemented in the Member States is causing inconsistencies, for instance in the interpretation of trafficking in human beings offences and in the criminalisation of the use of services exacted from victims of trafficking. Shortcomings with regard to the assistance, support and protection of victims mainly stem from gaps in the implementation of the Directive, which can be addressed through further support to the Member States.

One horizontal and three specific problems were identified as part of the evaluation (see Table 1 – Problem tree). Table 1 - Problem tree General problem The current legal framework is not fully adapted to the way trafficking in human beings has evolved since the adoption of the Directive Horizontal problem 1 – Trafficking in human beings continues to thrive in the EU Drivers 1.1.There are practical obstacles in the detection of cases of trafficking in human beings and in the early identification of victims 1.2.Preventive and awareness-raising initiatives at EU and national level do not adequately target individuals and specific groups at higher risk of becoming victims of trafficking 1.3.The data collection exercises and the monitoring of trends do not reflect the full scale of trafficking in human beings across the EU Specific core problems 2 – Investigations, prosecutions and convictions numbers are low, leading to the impunity of traffickers 3 – Victims of trafficking in human beings do not always receive an adequate level of assistance, support and protection, adapted to their specific needs 4 – The demand that fosters trafficking in human beings remains high Drivers 2.1. There has been a rise in the forms of exploitation not explicitly covered in the THB definition provided by the Directive 2.2. THB increasingly moved online, creating additional challenges for law enforcement and judicial authorities 2.3. hallenges in proving trafficking offences in front of national courts 2.4. Legal persons are not (sufficiently) held accountable for trafficking offences 3.1. Existing national and transnational referral mechanisms are not fully effective 3.2. Assistance and support services often have limited capacity or are not sufficiently tailored to the specific needs of individual victims 3.3. The principles of non-prosecution and non-punishment of the victims for criminal activities they were forced to commit as a direct result of being trafficked, are not consistently implemented 3.4. Victims rarely have access to compensation 3.5. Measures to protect victims who participate in the criminal proceedings are not consistently applied in the Member States 4.1. The criminalisation of the use of services exacted from victims of THB is not consistent across the EU 4.2. Demand-reduction approaches are not widely implemented 2.2.2.2. Horizontal problem 1: Trafficking in human beings continues to thrive in the EU 2.2.1.2.2.1. Driver: there are practical obstacles in the detection of cases of trafficking in human beings and in the early identification of victims Several stakeholders highlighted that shortcomings in the detection of the crime form a significant obstacle to the early identification of victims and their access to the rights they are entitled to under the Directive. The systems for, and authorities involved in, the detection and identification of victims of trafficking in human beings are different across the Member States. While many authorities can be competent to detect possible situations of trafficking in human beings, the formal identification of the victims is usually entrusted with a more limited number of entities. Identification is carried out by law enforcement authorities in the majority of the Member States, which are sometimes the only entities competent to formally identify the victims. Victim identification is often closely related to the detection of trafficking cases and the initiation of criminal proceedings. However, victims may be unwilling to come forward and report a crime to the law enforcement authorities, as they might fear secondary victimisation and further trauma or to disclose their situation when they are illegally staying in the territory of a Member State. In addition, victims are often emotionally or economically dependent on the trafficker or fear for their lives and for the life of their family. Although all Member States have specific measures in place, the detection and identification is often hindered by the lack of resources for training and capacity-building, as relevant stakeholders both at national and local level may not have the necessary skills and abilities to determine whether a person could be a victim, in particular when it comes to specific phenomenon, such as online trafficking in human beings. Moreover, Member States reported that a significant obstacle to identification of victims is the “lack of an overarching identification status, standard criteria or indicators to identify victims, which results in competent authorities with too much discretion in identifying presumed (potential) victims of trafficking”. The deficiencies in detecting potential victims lead to fragmented detection, identification procedures and case management, both within the Member States and in cross-border cases. The evaluation underlined that there is room for improving the awareness, capacity and training of key professionals who are likely to come into contact with victims to recognise the signs of trafficking in human beings. 2.2.2.2.2.2. Driver: preventive and awareness-raising initiatives do not adequately target individuals and specific groups at higher risk of becoming victims of trafficking The evaluation found that prevention strategies and awareness-raising initiatives at both the national and EU level do not sufficiently address societal issues linked to trafficking in human beings, such as gender discrimination, economic inequality, low levels of education, poverty and restrictive migration policies. Awareness-raising initiatives do not always reach their target audience, especially high-risk groups and people in high-risk sectors. 2.2.3.2.2.3. Driver: the data collection exercises and the monitoring of trends do not reflect the full scale of trafficking in human beings across the EU Persistent gaps in the data collection prevent capturing the full scale of trafficking in human beings in the EU and adequately monitoring the phenomenon. Despite significant progress, statistics are still not systematically collected by all Member States. While all Member States reported data on victims for the latest reporting period (2019-2020), criminal justice data (investigations, prosecutions, convictions or penalties imposed by national courts for trafficking offences) was still missing in eight Member States. Statistics on specific indicators are not always available in some Member States. Other Member States only record statistics on persons who have been prosecuted or convicted, but not on suspects, or collect data on the number of proceedings rather than the number of prosecuted persons. More generally, gaps in the availability and quality of data can result from issues in the functioning of national registration systems and coordination between registering authorities and National Statistical Authorities, which report the data to EUROSTAT. Furthermore, the data collection is affected by widespread underreporting, which also hinders the detection of the crime as described above. Without a complete overview at EU level, it is impossible to adequately estimate the scale of human trafficking across the EU as well as current trends. In addition, no data is available on the number of seizures, freezing and confiscation of instrumentalities and proceeds from human trafficking, as well as prosecutions and convictions against legal persons. The absence of data collection on the number of victims who receive assistance and support, or who are awarded compensation do not allow to monitor or evaluate the extent to which these rights are enforced in practice. Moreover, statistics collected by the Commission only includes victims who have been registered with the authorities or other organisations of the Member States. The actual number of victims is likely to be significantly higher than the reported data suggests, as these statistics only capture victims that become known to one of the registering entities and many victims remain undetected. 2.3.2.3. Specific problem 2: The numbers of investigations, prosecutions and convictions of traffickers are low, leading to a culture of impunity 2.3.1.2.3.1. Driver: there has been a rise in the forms of exploitation other than those explicitly mentioned in the definition of trafficking in human beings provided in the Directive are often not criminalised in the Member States Article 2(3) has been transposed by all Member States, although not all the national legislations include explicit references to certain forms of exploitation, which are explicitly mentioned. However, this lack of compliance with the Directive does not necessarily mean that such conducts are not prosecuted and sanctioned in practice. In fact, the evaluation found that inconsistent criminalisation of conducts qualifying as trafficking offences across the Member States particularly concerns forms of exploitation that are not explicitly mentioned in Article 2(3). The share of forms of exploitations other than sexual and labour increased from 8% in 2013 to 20% in 2018. Cases with a form exploitation reported by Member States as “other”, which can include forced marriage and illegal adoption, among others, accounted for 11% of all registered cases during the reporting period 2013-2020. Forced marriage is already listed in the recitals of the Directive as another purpose that can be covered by the definition of trafficking in human beings insofar as it fulfils the constitutive elements (conduct, means and objective) of the offence. Some Member States introduced it as a form of exploitation into the national legislation transposing the Directive. The 2021 EU SOCTA report and the Commission’s progress reports have highlighted a rise in the number of cases of trafficking for forced marriage, which particularly affects women and children, and is often combined with other forms of exploitation, such as sexual exploitation and/or labour exploitation. Illegal adoption is also listed in the recitals of the Directive as an exploitative purpose, which can be covered by trafficking in human beings, insofar as it fulfils the constitutive elements of the offence. The 2021 EU SOCTA report underlines that children are trafficked and sold through illegal adoption schemes. Mothers in vulnerable circumstances can be forced to give their children for adoption outside the legal adoption system for the financial profit of the trafficker.

There are certain emerging trends with regard to the forms of exploitation, which were not as evident at the time of the adoption of the Directive but gained importance since then. Such case is typically the trafficking of women for the purpose of illegal surrogacy programmes by coercing women into a pregnancy and selling new-born children. The 2021 EU SOCTA, Eurojust and the Commission’s Third progress report have pointed out the threats of illegal surrogacy in the context of trafficking in human beings. As part of the evaluation, Eurojust reported that some Member States encounter difficulties in judicial cooperation and prosecution in cases involving the selling of new-born children, in particular when vulnerable surrogate mothers are exploited by intermediaries and there is a risk of exploitation of the children. Social benefit fraud, which is not explicitly covered by the Directive, was also referred to as an emerging form of exploitation in the 2021 EU SOCTA. Eurojust also reported on cases where traffickers take advantage of vulnerable individuals in difficult financial conditions to commit social benefit fraud for their profit. Because of the lack of legislation on social benefit fraud as an exploitative purpose of trafficking in human beings, the exploited individuals are often regarded as suspects of fraud rather than victims of trafficking. 2.3.2.2.3.2. Driver: trafficking in human beings increasingly moved online, creating additional challenges for law enforcement and judicial authorities The modus operandi and business model of traffickers have evolved to move the offence, or some elements of it, online, in particular as a consequence of the COVID-19 pandemic. This has created new challenges for law enforcement and judicial authorities, making trafficking cases more difficult to detect and investigate. Technology enables traffickers to remain anonymous via common encrypted communication solutions, thus reducing the risks of being detected. It further allows criminals to reach a higher number of potential victims to recruit without any physical interaction. Traffickers use the digital space for every phase of the trafficking offence, e.g. for the recruitment and exploitation of the victims, the organisation of their transport and accommodation, their advertising and to reach out to potential clients, to control the victims, to communicate, as well as to hide criminal proceeds. The internet and other information technology means often only concern one or few elements of the trafficking chain, for example the recruitment or the advertisement of the victim, whereas the rest of the offence (e.g. the actual exploitation) may take place offline. In other cases, information technology means may be used to exert control over the victims (for example tracing them or booking accommodation). The very exploitation may also happen online and be shared through the internet or social media, while the recruitment takes place offline. This wide variety of examples shows that all elements of the offences hardly ever take place completely online or offline. While gathering data at the EU level is difficult, Member States have provided some examples, which highlight the online dimension of the crime. In Germany, 11% of the victims identified were contacted or recruited through the internet, including through the use of social media platforms or advertising portals. French authorities reported that the internet was used by 65% of identified victims of sexual exploitation in 2019, which represented a 16% increase as compared to the previous year. The growing use of encrypted technology by traffickers makes it more difficult for law enforcement authorities to access and recover data during the investigation, including on communication between the perpetrators and between the perpetrators and the victims, identity of the traffickers and the victims, as well as on the means used to coerce and traffic the victims. Law enforcement and judicial authorities also face obstacles in handling large amounts of electronic data, which may also be linked to lack of capacity, technical equipment, training and technical knowledge. Differences across the Member States in legislation concerning data retention and investigation tools and practices related to offences facilitated by the use of technology can also pose significant challenges in fighting against trafficking in human beings. 2.3.3.2.3.3. Driver: There are challenges in proving offences of trafficking in human beings in front of national courts The low level of prosecutions and convictions of trafficking offences, especially compared to the number of victims and of suspects, can be partly explained by the challenges in building effective cases against traffickers. One of these is gathering sufficient and admissible evidence to prove all the elements of the offence, i.e. the intent, the conduct, the means and the purpose of the offence, which is the exploitation of the person. As a consequence, investigations, prosecutions and convictions are often heavily dependent on the victim’s testimony. Yet, gathering other evidence, such as financial transactions, surveillance information and digital or physical evidence, would increase the chances of successful prosecution and, at the same time, would reduce any further potential harm suffered by the victims as a result of their participation in criminal proceedings. Due to insufficient evidence, trafficking in human beings is sometimes re-qualified as other offences, which are easier to prove in national courts, such as pimping, aggravated prostitution, smuggling of migrants, deprivation of liberty, or violation of labour or social security laws. The exploitation element of trafficking in human beings is the most difficult to prove in court, and prosecutors have to produce admissible and sufficient evidence in court to obtain a conviction for trafficking offences. There is no EU definition or indicators of exploitation. Member States have different definitions of exploitation or rely on different indicators to prove it. For instance, some Member States consider that very low wages constitute labour exploitation, whereas others will investigate and prosecute the offence under another qualification (e.g. exploitation of immigrant work). This may hinder cross-border cooperation, in cases where one Member State considers that a certain conduct amounts to exploitation, while another one does not. In this context, the evaluation found that Member States do not sufficiently use the support and capacity of coordination of the EU Agencies, in particular Europol and Eurojust, which could help them in overcoming challenges they encounter when investigating or prosecuting human trafficking cases. 2.3.4.2.3.4. Driver: legal persons are not (sufficiently) held accountable for trafficking offences Criminal networks involved in labour exploitation operate in cash-intensive businesses where low-waged, low-skilled, intensive and seasonal work is needed, such as forestry, food processing, assembly lines, hospitality, retail, carwashes, beauty and cleaning services, transportation, housekeeping and domestic work. Organised crime groups specialised in trafficking increasingly establish complex legal structures to hide their exploitative operations. The Directive provides for the liability of, and sanctions for, legal persons that commit trafficking offences. Although the Commission guidelines on the biannual data collection sent to the National Statistical Authorities of the Member States include the provision of data on the number of legal persons that are subject to prosecution and court judgements, no such data has been reported by the Member States. Consulted stakeholders further reported that prosecutions and convictions of legal persons are extremely rare . This shows that the Directive has not ensured greater accountability of legal persons. 2.4.2.4. Specific problem 3: victims of trafficking do not always receive an adequate level of assistance, support and protection, which is adapted to their specific needs 2.4.1.2.4.1. Driver: existing national and transnational referral mechanisms are not fully effective All but one Member State have put in place a formal or informal National Referral Mechanism (NRM). While all coordination mechanisms include identification processes and short-term support and protection measures for victims, their scopes differ across the Member States. The evaluation found insufficient coordination and links between professionals who are involved in the identification of victims of trafficking and organisations providing specialised assistance and support services. The evaluation also noted the limited capacity of shelters for children, and insufficient cooperation between anti-trafficking and asylum services or child protection systems. This negatively affects the victims’ willingness or ability to seek help and report cases and fosters re-victimisation (i.e. the victim will be exploited again by traffickers). Moreover, the absence of harmonised procedures at the EU level hampers the effectiveness of the cross-border identification and referral of victims. 2.4.2.2.4.2. Driver: the services providing assistance and support to victims of trafficking often have limited capacity and resources or are not sufficiently tailored to specific needs The evaluation found that Member States pay limited attention to, or have limited understanding of, the needs of victims of trafficking with disabilities or other special needs. It also found that often not sufficient national resources are allocated to externalised services, in particular civil society organisations, for the assistance and support to victims. Moreover, female victims and others in vulnerable situation, such as children, in particular vulnerable children (e.g. migrant children) and children with disabilities, members of the Roma community or of the LGBTIQ community, as well as persons with disabilities, do not always have access to available information on available support services and their rights. 2.4.3.2.4.3. Driver: the principles of non-prosecution and non-punishment of victims forced to commit criminal offences as a result of being trafficked, are not consistently implemented Article 8 of the Directive requires the non-prosecution and non-punishment of victims of trafficking who were compelled to commit criminal activities as a direct consequence of being trafficked. While the vast majority of Member States have transposed this provision into their national legislation , its application is limited in practice . This particularly affects certain categories, such as victims trafficked for forced criminal activities; victims who do not cooperate with the authorities in criminal proceedings; as well as children .

2.4.4.2.4.4. Driver: victims rarely have access to compensation Pursuant to Article 17 of the Directive, Member States are required to ensure that victims of trafficking have access to existing schemes of compensation available for victims of violent crimes of intent. Access to compensation by victims of trafficking in human beings also falls within the scope of the Victims’ Rights Directive (Directive 2012/29/EU) and the Compensation Directive (Directive 2004/80/EC). The evaluation established that the Directive contributed to increasing access to compensation, as Member States have adopted legislative and policy measures in this area. However, in practice, victims face difficulties in receiving compensation due to administrative obstacles, no access to legal aid, as well as the duration of the criminal proceedings, since compensation is often awarded upon their conclusion. Access to compensation may further be hindered if the victim has returned to his or her country of origin or is an undocumented migrant. 2.4.5.2.4.5. Driver: measures to protect victims who participate in the criminal proceedings are not consistently applied While Member States ensure access to witness programmes, these are also not used systematically for victims of human trafficking and some of their features are not adapted to the situation of the specific vulnerability of the victims. For instance, victims often experience secondary victimisation during criminal proceedings, as a result of the repeated recounting of their experiences and of being questioned in order to produce or verify evidence. This is particularly problematic considering that the victim’s testimony is often central to successful investigations and prosecutions. 2.5.2.5. Specific problem 4: the demand that fosters trafficking in human beings remains high 2.5.1.2.5.1. Driver: the criminalisation of the use of services exacted from victims of trafficking is not consistent across the Member States Article 18(4) of the Directive requires Member States to consider criminalising the use of services which are the objects of exploitation, with the knowledge that the person is a victim of trafficking. In 2016, the Commission noted that a diverse legal landscape across the EU fails to effectively discourage demand, and that liability linked to direct knowledge that the person is a victim creates a high threshold in prosecutions. Accordingly, the level of knowledge of the user of exploited services requires a close examination. The use of exploited services concerns the demand for goods or services resulting from the exploitation of victims of trafficking in human beings. In exploitation of the prostitution of others and other forms of sexual exploitation, the users of exploited services are those who engage in sexual activity with trafficked victims. In forced labour, the users of exploited services are those who purchase, or otherwise acquire, goods resulting from labour exploitation. In case of removal of organs, the users are those who obtain the organs of the exploited victim. However, not all forms of exploitation included in the Directive necessarily result in the use of exploited services by a third party. In case of forced begging, the users of the exploited services are the traffickers themselves. Seven Member States did not use the option provided for by Article 18(4) and therefore have no rules on the use of exploited services. Five Member States criminalised the knowing use of exploited services only related to sexual exploitation. One Member State criminalised the knowing use of exploited services related to sexual exploitation and labour exploitation. Eight Member States criminalised the knowing use of exploited services related to all forms of exploitation. Two Member States criminalised the use of services related only to sexual exploitation when the users had knowledge that the services were exacted from trafficked victims or they should have known based on a reasonable assessment of the circumstances or had cause to suspect it. One Member State criminalised the use of exploited services in relation to sexual exploitation without a knowledge requirement, as well as the knowing use of services for all other forms of exploitation. Two Member States do not have specific rules on the criminalisation of the use of exploited services but both adhere to the “equality model”, which criminalises any use of sexual services without any knowledge requirement, regardless of whether the person is a victim of trafficking. Therefore, exploited services are implicitly included, although there is no specific rule concerning these in those Member States. Consulted stakeholders have considerably diverging views regarding the effectiveness of the criminalisation of the use of exploited services as a means to reduce the demand that fosters trafficking. There are concerns that criminalising the use of services exacted from victims of trafficking might risk further increasing the dependence of victims on their traffickers or pushing victims of sexual and labour exploitation to places where they are less likely to be identified and provided with adequate protection and support. At the same time, the lack of harmonisation across the Member States means that users will face different consequences depending on where they use the exploited services of victims. 2.5.2.2.5.2. Demand-reduction approaches are not widely implemented A particular area where more efforts are needed relates to the growing demand in the society for cheap products and services, especially in times of economic recession, which can foster cheap labour and lead to labour exploitation. Stakeholders consulted reported that there could be a considerable scope for greater responsibility of businesses and corporations in relation to influence consumer and end-user awareness of forced labour, in particular in high-risk sectors, such as agriculture, garments and hospitality. Moreover, awareness-raising approaches are rarely targeted to the demand-side, for example to potential users of the services exacted from victims of trafficking in human beings, in particular for the purpose of sexual exploitation. 3.3. why should the EU act? 3.1.3.1. Legal basis The legal basis for the EU action in the field of trafficking in human beings are Articles 82(2) and, more particularly, 83(1) of the Treaty on the Functioning of the EU (TFEU). The latter provides that “the European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules on the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis”. Trafficking in human beings is one of the areas which fall within the scope of Article 83(1). 3.2.3.2. Subsidiarity and proportionality Under Article 4(2)(j) of the TFEU, the area of freedom, security and justice is described as a shared competence between the EU and the Member States. Article 67(3) TFEU empowers the EU to “ensure a high level of security through measures to prevent and combat crime […] and through measures for coordination and cooperation between police and judicial authorities and other competent authorities”. The fight against trafficking in human beings since 2002 governed by EU law, first by Council Framework Decision 2002/629/JHA on combating trafficking in human beings and subsequently by Directive 2011/36/EU on preventing and combating trafficking in human beings, protecting its victims. The cross-border dimension of trafficking in human beings is twofold, with an intra-EU cross-border dimension, and an external dimension involving the crossing of EU external borders (section 2.1). Consultations with stakeholders demonstrated the necessity of EU action in the area of trafficking in human beings. Eurojust also reported that all 405 cases referred to the EU Agency between January 2017 and June 2019 were transnational and allegedly committed by organised crime groups. Most of the cases (84) selected for analysis involved EU citizens from Romania, Bulgaria, Slovakia, Hungary and Lithuania, while eight cases involved victims from non-EU countries (Nigeria, Ukraine, Belarus and Moldova). Cross-border law enforcement and judicial cooperation is increasingly based on common EU rules across the Member States, which requires a higher harmonisation of relevant national legislation and systematic exchange of good practices . The cross-border dimension does not only concern the nationality of victims but also the modi operandi of the criminal networks perpetrating the crime, which often have ties with other countries than the one of citizenship. Therefore, different elements of the trafficking offence can take place in different Member States and/or non-EU countries. The cross-border dimension of trafficking in human beings brings specific challenges, which require action and coordination at the EU level. These include, but are not limited to, the sharing of information between law enforcement and judicial authorities from different Member States and non-EU countries, identifying whether parallel criminal proceedings are taking place in other countries, acting jointly and quickly in order to make sure that the perpetrators with ties to several countries do not escape justice, gathering evidence that can be admitted in court, taking into account the different national legal systems, conflicts of jurisdiction, as well as identifying and referring victims of trafficking in human beings to assistance and support in the cross-border context. While the transnational nature of trafficking in human beings justified EU action in the first place, the increased relevance of the online dimension of the crime warrants for new EU action in the field. Access to the internet and online platforms gives traffickers the opportunity to recruit, control, transport and exploit the victims, as well as move profits and reach out to users everywhere within the EU and outside without crossing any border. It also provides a shield against the identification of traffickers and victims by the law enforcement authorities. A stronger harmonisation of the EU rules and coordination at the EU-level, in cooperation with the EU Agencies, to fight the crime when it is facilitated by technology would enhance the capacity of national authorities to investigate and prosecute such offences, including in collecting digital evidence, carrying out financial investigations, sharing and exchanging information with other Member States when relevant. The establishment of the position of the EU Anti-Trafficking Coordinator in the Directive, first proposed by the Stockholm programme, shows the recognition of the added value of stronger coordination at the EU level. EU action proved essential in adopting and implementing anti-trafficking policies across the Member States. The EU Anti-Trafficking Coordinator contributes to improving the knowledge on trafficking at the EU level by providing input to the reporting carried out by the Commission every two years on the progress made in the fight against trafficking in human beings and on the data collection. Moreover, the EU-level response has proven an effective tool in specific situations, such as in reducing the risks of, and vulnerability to, trafficking among people fleeing the war in Ukraine. The Common Anti-trafficking Plan, developed under the lead of the EU Anti-Trafficking Coordinator in close cooperation with the National Rapporteurs and Equivalent Mechanisms (NREM), the EU Agencies and the EU Civil Society Platform against trafficking in human beings, highlighted the necessity of EU action in preventing and fighting the crime and resulted in a coordinated approach from prevention and awareness raising measures to the law enforcement and judicial responses.

In light of what is described above, the initiative would contribute to the fight trafficking in human beings, which is a serious form of organised crime with a cross-border dimension, in compliance with Article 83(1) TFEU and Article 82(1) and therefore, does not exceed what is necessary to achieve the objectives of the Treaties. This initiative proposes both non-legislative and legislative measures, which respond to the priorities and key actions of the EU Strategy on Combatting Trafficking in Human Beings and remain within the scope of the current Anti-trafficking Directive. It addresses the main issues that were raised in the context of the evaluation (see section 2.1 of the Impact Assessment). The proportionality of the policy options is further described in section 7.5. 4.4. What should be achieved? 4.1.4.1. General objectives The general objective of the proposal is to strengthen the EU legal framework against trafficking in human beings to ensure that it adequately addresses the challenges identified above. 4.2.4.2. Horizontal and specific objectives The horizontal and specific objectives described below aim at responding to the problems identified in Section 2. 4.2.1.4.2.1. Ensuring adequate prevention, detection and improving the monitoring of trafficking in human beings at the EU level (horizontal) Strengthening the capacity of all relevant stakeholders to prevent and detect trafficking in human beings through training, exchange of best practices, including on cross-border cooperation between law enforcement and judicial bodies, and reinforcing multi-agency cooperation and coordination at national and transnational level will contribute to improving the fight against the crime. In addition, improving the monitoring and understanding of trafficking in human beings through a better and more systematic collection of data will contribute to having more effective prevention and detection measures, as it will make it possible to adequately assess the full scale of the phenomenon across the EU as well as current trends. This is particularly important for ensuring that policies developed at the national and EU level are tailored to addressing existing challenges and emerging trends in the area of trafficking in human beings. 4.2.2.4.2.2. Reinforcing the criminal justice response to the crime, including in the cross-border context (specific) Reinforcing the criminal justice response to the crime will improve the capacity of law enforcement and judicial authorities to fight the crime and adapt to the new modi operandi and business model of traffickers, including in the digital environment. It will further harmonise the EU legal framework with a view to facilitating cross-border cooperation in trafficking cases, with the support of the EU Agencies, and address emerging threats, which have changed the security landscape within the past few years. 4.2.3.4.2.3. Ensuring that victims of trafficking in human beings receive adequate assistance, support and protection across the Member States (specific) Improving the overall situation of victims and their access to rights will have an impact on success of investigations, hence on the level of security in the EU. Detection and early identification are crucial to ensure that victims are referred to adequate assistance, support and protection services, which are adapted to their needs. The policy intervention intends to improve cross-border cooperation among EU Member States and with non-EU countries for the referral of victims of trafficking, for instance when they return to their country of origin or are identified in a country other than where the exploitation took place. 4.2.4.4.2.4. Reducing the demand for the exploited services of victims that fosters trafficking for all forms of exploitation (specific) The use of the exploited services of victims generates high profits for the traffickers and results in long-term physical and psychological harm for the victims. In this context, demand should be addressed in a comprehensive way, from strengthening the criminal response to the use of exploited services to enhancing awareness-raising activities, education and training. The intervention also aims at developing prevention and awareness-raising activities on the safe use of the internet and social media, especially for children, as well as targeting those who may use of the services exploited in order to mitigate the risks of trafficking in human beings online. 4.3.4.3. How do objectives relate to the sustainable development goals and the Charter of Fundamental Rights of the EU? The objectives relate to the SDGs and relevant targets mentioned in section 1, which set as specific goals to eliminate trafficking in human beings. The general and specific objectives are also consistent with Article 5(3) of the Charter of Fundamental Rights of the EU (the “Charter”), which explicitly prohibits trafficking in human beings. 5.5. What are the various options to achieve the objectives? 5.1.5.1. What is the baseline from which options are assessed? Section 2.1, as well as Annex 5, provide quantitative and qualitative evidence collected as part of the evaluation, which assess the likelihood that trafficking, as a security threat, a serious form of organised crime and a grave violation of fundamental rights, will persist or even worsen within the coming years in the absence of further EU action. As mentioned above, the scale of trafficking in human beings did not reduce since the date of transposition of the Directive. The trends related to the forms of exploitation, sex and age of the victims have remained consistent over the reporting period. Trafficking for labour exploitation has increased. The number of registered victims for this purpose reached 1 914 in 2019 and 1 833 in 2020, whereas the annual average between 2013 and 2018 was 945. At the same time, the number of legal persons, which are the object of investigations, prosecutions or convictions for trafficking offences committed for their benefits is not known. The number of recorded suspects nearly tripled over the reporting period (from 2 942 in 2013 to 7 924 in 2019 and 7 290 in 2020). The number of prosecuted individuals also increased, although to a much lesser extent (from 1 892 in 2013 to 3 055 in 2020). However, the number of registered convicted individuals overall decreased from 1 455 in 2013 to 1 295 in 2020, despite some peaks in 2017 (1 734) and 2019 (1 724). It also dropped to 693 in 2018. These statistics highlight that a culture of impunity persists within the EU, which allows traffickers to remain undetected and escape justice.

The evaluation found that the Directive was a major milestone in the fight against trafficking in human beings, which provides for an overarching EU legal framework and contributed to creating a common ground at the EU level. Without further actions, the anti-trafficking legal and policy framework currently in place would continue to apply. The minimum rules on the definition of trafficking offences, the penalties, as well as the prevention and protection of the victims established in the Directive would remain in place. The current framework would possibly be strengthened and complemented by ongoing and recent legislative initiatives in related policy areas, such as on victims’ rights, child sexual abuse and exploitation, due diligence, violence against women (see Section 1). The Commission would continue to focus on the implementation of the Strategy in order to improve the situation, including by further supporting Member States in implementing the Directive, including through dedicated funding and monitoring via the biannual progress reports adopted in line with Article 20, as well as meetings with the EU Network of National Rapporteurs and Equivalent Mechanisms and the EU Civil Society Platform. It would also ensure the effective enforcement of the Directive in the Member States, including through infringements as appropriate. Member States have fully or partially transposed most of the mandatory provisions of the Directive into their national legal systems. The assessment of the transposition of the Directive carried out in the context of the evaluation showed that Member States have taken additional steps to transpose it, as a follow-up to the Commission’s 2016 “Transposition” report. Many of the legal, policy and operational initiatives announced in the EU Strategy have already been implemented or have significantly advanced. The Commission put forward two legislative initiatives, as well as guidance which address the responsibility of companies and businesses in reducing demand for, and detecting potential cases of trafficking in human beings in their activities and supply chains. The Commission also proposed actions to strengthen the effectiveness of the Employers’ Sanctions Directive, which prohibits the employment of irregularly staying third-country nationals, including victims of trafficking in human beings. Actions and tools developed as part of the Common Anti-Trafficking Plan in relation to Russia’s aggression against Ukraine would continue to apply in the broader context of the fight against trafficking in human beings, notably the list of dedicated emergency anti-trafficking helplines to help potential victims, which was compiled and published online. Cooperation with the European Labour Authority and its European Platform tackling Undeclared Work, which started in order to tackle undeclared work, labour exploitation and trafficking in human beings among displaced persons and refugees from Ukraine, would continue. The advancement of EU policies against criminal groups as set out in the EU Strategy to tackle Organised Crime, including a stronger response to criminal finances upon the adoption of the proposed Directive on asset recovery and confiscation , will limit the capacity to operate of criminal groups involved in human trafficking. The operational response to the crime at the EU level would continue to take place within existing frameworks, such as the European Multidisciplinary Platform Against Criminal Threats (EMPACT) and its Operational Action Plans (OAP) tackling Trafficking in Human Beings and in cooperation with the EU Agencies. However, this would mean that no new legal measure is taken in order to reduce the scale of the crime whereas the trends show that the phenomenon is still prevalent in the EU. The level of identification of victims would continue to evolve in a similar way, with many of them likely to remain undetected. Traffickers would continue to make great profits from the exploitation of vulnerable people. Moreover, the rate of prosecutions or convictions, including of legal persons, would probably remain low. The challenges identified would largely be insufficiently addressed, including in terms of prevention measures and early identification and referral of victims. The baseline scenario would not change the legislative approach in force for addressing the demand that fosters trafficking. The current text of Article 18(4) gives Member States the choice to introduce, or not, rules addressing the use of exploited services. Member States would continue to be able to adopt a “nuanced approach” (e.g. criminalising the use of exploited services obtained only from some forms of exploitation) or stricter approaches (e.g. criminalising the use of exploited services when the user knew or had reasons to know that they were obtained from a victim, or even without any knowledge element). The lack of harmonisation of the EU rules on the criminalisation of the use of services exacted from victims of trafficking may hamper cross-border cooperation, for instance if the conduct is criminalised in the Member State of citizenship of the user but not in the Member State where the services of the victims were used. 5.2.5.2. Description of the policy options The Impact Assessment identified three policy options. The first policy option entails non-legislative measures. The second policy option focuses on legislative measures, i.e. amendments to the Directive. The third policy option is a mix of legislative and non-legislative measures. Stakeholders were consulted on the different measures that are part of the three policy options as part of seven targeted interviews with EU Agencies, EU civil society organisations and one international organisations, as well as case studies interviews with five Member States (France, Hungary, Italy, Netherlands and Romania), which involved national authorities working in the area of trafficking in human beings, law enforcement and judicial authorities and social services or civil society organisations working with victims. Table 2 – Summary of the problems, objectives and policy options 5.2.1.5.2.1. Policy option 1: Non-legislative action at EU level or national level Policy option 1 (P.O.1) consists of a package of non-legislative measures, which would provide support to the Member States in implementing the Directive and generally contribute to strengthening the EU legal and policy framework against trafficking in human beings. P.O.1 builds on the EU Strategy on Combatting Trafficking in Human Beings, which set out a number of policy measures to improve the EU anti-trafficking action, following a thorough examination of the current trends and challenges and extensive consultations with stakeholders. Although some of the measures presented below are mentioned in the EU Strategy, P.O.1 goes beyond the baseline scenario as it focuses on actions that are not yet in force nor were clearly defined in the Strategy. It also takes into account the findings of the evaluation, which highlighted that some of the main challenges in preventing and fighting against trafficking in human beings, as well as protecting the victims, stem from gaps in the implementation of the Directive.

Table 3 – Policy Option 1 (non-legislative measures) Objectives Non-legislative and legislative measures Reinforcing the criminal justice response to the crime, including in the cross-border context ØNon-legislative measure 2 – Setting-up of a Focus Group of specialised prosecutors against trafficking in human beings ØNon-legislative measure 3 – Close cooperation with the technology companies including online platforms Ensuring that victims of trafficking receive adequate assistance, support and protection across the Member States ØNon-legislative measure 1 and 1(ii) – Establishing a Knowledge and Expertise Hub and developing guidelines on National Referral Mechanisms and setting-up of a European Referral Mechanism Reducing the demand for the exploited services of victims that fosters trafficking for all forms of exploitation ØNon-legislative measure 1 – Establishing a Knowledge and Expertise Hub ØNon-legislative measure 3 – Close cooperation with the technology companies including online platforms ØNon-legislative measure 4 – Organising an EU-wide awareness raising campaign Ensuring adequate detection and monitoring of trafficking in human beings (horizontal) ØNon-legislative measure 1 and 1(i) - Establishing a Knowledge and Expertise Hub and developing guidelines on data collection on trafficking in human beings in the EU ØNon-legislative measure 3 – Close cooperation with the technology companies including online platforms ØNon-legislative measure 4 – Organising an EU-wide awareness raising campaign 5.2.1.1.5.2.1.1. Establishing a Knowledge and Expertise Hub on Combatting Trafficking in Human Beings This measure builds upon the Strategy, which sets out that the Commission would fund and coordinate a set of actions to further improve the policy and operational work to combat trafficking in human beings. This set of actions would de facto serve as a knowledge and expertise hub for Member States and other stakeholders. Such actions are aimed at enhancing the exchange of best practices, including on cross-border cooperation between law enforcement and judicial bodies; facilitating advisory services by practitioners to reinforce multi-agency cooperation and coordination at national and transnational level; helping further enhance support to victims and their referral in Europe and beyond; and promoting awareness-raising, research and data analysis by supporting cooperation between relevant national bodies, for example data institutes and observatories. The Knowledge and Expertise Hub would act as an umbrella platform for developing policy measures, exchanging best practices and reinforcing cooperation among a community of experts and practitioners in the field of trafficking in human beings. It would focus on the shortcomings identified in the evaluation, especially concerning the collection of reliable and comparable data; early identification of, and referral to assistance and support services for victims, targeted to their specific needs; difficulties for victims to access compensation; insufficient funds for capacity building and training of relevant practitioners, and use of available EU funds by Member States; or the role of the private sectors, including companies, employers and internet and technology companies in preventive and awareness-raising measures. The Hub would operate via an online platform linked to the Commission’s Anti-trafficking website and existing electronic platforms of the EU Network of NREM and the EU Civil Society Platform, as well as meetings and workshops dedicated to specific topics. The activities of the Hub would allow Member States, civil society organisations and EU Agencies to share best practices, and provide them with tools to strengthen their capacity to monitor, detect and combat the crime. It would also support the work of the EU Network NREM and the EU Civil Society Platform against trafficking in human beings, which are key actors in the monitoring of the transposition and implementation of the Directive. The actions described below would be developed within the framework of the Hub, among others. The establishment of a Knowledge and Expertise Hub was widely supported by all consulted stakeholders. One public authority, notably, considered that it would be highly relevant in centralising available information on trafficking in human beings at the EU level. (i) Developing guidelines on data collection on trafficking in human beings within the EU Horizontal problem 1 (driver 3) highlights that the data collection exercises and the monitoring of trends do not reflect the full scale of trafficking in human beings across the EU. The Knowledge and Expertise Hub would develop guidelines on data collection on trafficking in human beings in the EU, in close cooperation with Eurostat, the EU Network of NREM and the National Statistical Authorities. This would contribute to ensuring harmonised data collection across the Member States. As part of the work of the Knowledge and Expertise Hub on improving data collection and reporting across the Member States, required statistics could be expanded as to include additional indicators, such as the number of persons accessing protection and support; the number of victims accessing compensation; the number and entity of asset confiscations; and the number of financial investigations. The guidelines would also aim at improving the collection of data by the Member States on legal persons. This measure would improve the knowledge about the crime within the EU and help in ensuring reliable and comparable information to inform evidence-based policies, in line with the Strategy. (ii) Development of guidelines on National Referral Mechanisms and setting-up of a European Referral Mechanism This measure addresses the challenges identified as part of specific problem 3, in particular with regards to the fact that existing formal or informal national referral mechanisms are not fully effective and that victims’ support is often not adapted to their specific needs. The Strategy highlights that the Commission would promote activities such as developing guidelines, toolkits and exchanging best practices among practitioners to improve national structures and cooperation for the identification, assistance and support of victims, including national referral mechanisms. It also sets out that the Commission would contribute towards the establishment of a European referral cooperation mechanism, with the support of relevant EU Agencies. The European Referral Mechanism would consist of single points of contacts designated by each Member States, which would serve as a single point of reference in case of cross-border victim identification, support and referral. These single points of contact would facilitate and accelerate the communication between Member States authorities in individual cases, ensure a proper follow-up of the victims and provide information about national laws and procedures. They would operate based on guidelines for Member States developed by the Knowledge and Expertise Hub based upon the lessons learnt and best practices of existing Transnational Referral Mechanisms. The guidelines would be developed in close cooperation with the NREM and the civil society organisations in order to identify the minimum standards required for national referral mechanisms. This measure would contribute to ensuring that victims of trafficking in human beings receive adequate assistance, support and protection across the Member States (specific objective 3). Consulted stakeholders agreed on the importance to develop minimum standards across Member States on victims’ referral, in order to improve cross-border cooperation. 5.2.1.2.5.2.1.2. Setting-up of a Focus Group of specialised prosecutors against trafficking in human beings The Focus Group of specialised prosecutors against trafficking is one of the key actions of the Strategy. The objective of the group is to build specialised expertise and intensify judicial cooperation for a more robust criminal justice response to trafficking in human beings. It would provide a forum for practitioners to exchange knowledge, expertise and best practices. It would increase cross-border judicial cooperation and result in more successful investigations, prosecutions and convictions for trafficking offences. The Focus Group would also help in increasing Member States’ use of the support and capacity of coordination of the EU Agencies, in particular Eurojust. The EU Anti-trafficking Coordinator organised, together with Eurojust, a first meeting of the Focus Group . However, the format and activities, location and source of funding, as well as the frequency of the meetings of the group still need to be determined. This measure intends to respond to specific problem 2, which highlights that the low levels of prosecutions and convictions contribute to a culture of impunity in the EU. Prosecutors and judges participating in the Focus Group could discuss the main challenges they face in combatting trafficking in human beings, notably those that were identified in the evaluation. These include the important reliance on victims’ testimony in criminal proceedings, differences in the interpretation of certain legal concepts or in the legislation of Member States regarding the definition of the trafficking offences and levels of penalties, as well as capacity to conduct financial investigations, seize and confiscate criminal assets and detecting and fighting against trafficking facilitated by the use of technology. As an outcome of these meetings, analytical papers, reports and recommendations could be developed in order to guide and support the work of relevant practitioners.

The Focus Group would generally participate in strengthening the criminal justice response against trafficking in human beings, including in the cross-border context (specific objective 2). Stakeholders consulted on the policy options considered that this measure was necessary. Several judicial authorities highlighted the importance of cooperation within the framework of EMPACT where specialised prosecutors already participate. 5.2.1.3.5.2.1.3. Close cooperation with the technology companies including online platforms through the inclusion of trafficking in human beings among the areas of work of the EU Internet Forum The evaluation found that the online dimension of trafficking in human beings was an important and growing threat. Victims are often recruited online and social media is increasingly used as a means to commit the offence. Nevertheless, technology companies, including online platforms, are not sufficiently involved in the prevention and fight against this crime. Under this non-legislative measure, the Commission would step-up its action to raise awareness with technology companies on the risks of trafficking online and encourage them to monitor, detect, limit the spread or remove trafficking in human beings related content. These activities would take place within the EU Internet Forum, which recently introduced trafficking in human beings as one its areas of work. This measure would mainly address specific problem 2, driver 2 through the following activities: -research of new technical solutions to support companies and national authorities in the detection of tech-facilitated trafficking (e.g. end-to-end encrypted electronic communications); -prevention and awareness-raising activities on the safe use of internet and social media, which should include reviewing of platforms internal policies; -partnerships with global online fora and initiatives dedicated to addressing and preventing the dissemination of tech-facilitated trafficking in human beings; -cooperation with law enforcement: report suspicious cases to law enforcement authorities and to Europol, notably in order to identify new phenomena and emerging trends. This measure would contribute to specific objective 2 by addressing the responsibility of technology companies in reinforcing the criminal justice response to the crime, as well as to specific objective 4, which highlights the need to develop prevention and awareness raising activities on the safe use of the internet and social media, as well as targeting the users of services that are advertised online as a way to reduce demand. While some consulted stakeholders highlighted that some technology companies might be reluctant in participating in such cooperation, they all agreed to the importance of this measure in order to improve knowledge of the online dimension and further engage the private sector in the fight against trafficking. 5.2.1.4.5.2.1.4. Organising an EU-wide awareness raising campaign Articles 18 of the Directive requires Member States to take appropriate preventive actions, such as information and awareness raising campaigns, research and education programmes, in order to discourage and reduce the demand that fosters all forms of exploitation (paragraph 1) and raising awareness and reducing the risks of people, especially children, becoming victims of trafficking (paragraph 2). Therefore, this measure, which addresses both horizontal problem 1 (driver 2) and specific problem 4 (driver 2), would also contribute to improving the implementation of the Directive. Under this non-legislative measure, the Commission would organise an EU-wide awareness-raising campaign on the risks of trafficking, with a specific focus on high-risk sectors and high-risk environments, mainly for sexual and labour exploitation. This campaign would be carried out in close cooperation with Member States and civil society organisations and would aim at raising awareness on trafficking within the general public, employers and potential users of services exploited from victims, in line with the Strategy. It would both contribute to ensuring adequate prevention and detection of the crime at the EU level (horizontal objective 1) and to reducing the demand for the exploited services of trafficking victims (specific objective 4). While consulted stakeholders considered that this measure would effectively contribute to preventing trafficking and reducing demand that fosters the crime, some suggested that such campaign should be tailored to the specific needs of, and situations in the Member States. 5.2.2.5.2.2. Policy option 2: Legislative action at EU level While the evaluation showed that the Directive has made an important contribution to improving the situation on trafficking in human beings in the EU, a revision of the Directive would strengthen the fight against the crime and significantly contribute to addressing some of the shortcomings, which cannot only be addressed through better implementation. The evaluation found that the Directive insufficiently addressed certain aspects, which notably emerged and/or became more relevant since its adoption. Policy Option (P.O) 2 presents several possible legislative changes that would contribute to modernising the Directive in order to better address those challenges. It would aim at improving the level of harmonisation of the legislation across the Member States, for instance when it comes to the forms of exploitation to be criminalised, as well as strengthening the sanctions against legal persons and the legal framework related to the criminalisation of the use of exploited services. Table 4 provides an overview of P.O 2, including different sub-options for some of the legislative measures. Table 4 – Policy Option 2 (Legislative measures) Objectives Legislative measures Possible sub-options as part of the legislative measure Reinforcing the criminal justice response to the crime, including in the cross-border context Legislative measure 1 – Explicitly addressing the digital dimension of trafficking in human beings in the Directive i. Introducing the online dimension as part of the definition of trafficking in human beings ii. Qualifying the online recruitment, advertisement or exploitation of victims of trafficking as an aggravating circumstance Legislative measure 2 – Including new forms of exploitation into the definition of trafficking in human beings i. Including forced marriage and illegal adoption in the list of the forms of exploitation ii. Including more forms of exploitation (e.g. forced marriage, illegal adoption, illegal surrogacy, social fraud benefit). Legislative measure 3 – Ensuring that legal persons may be subject to one or more sanctions listed in the Directive, which are currently optional for Member States to transpose in case of conviction i. Ensuring that legal persons may be subject to some of the sanctions, which are currently optional in the Directive, for the standard offence and to the other (currently optional) sanctions when the offence is aggravated by one of the circumstances included in the Directive ii. Ensuring that legal persons may be subject to all the (currently optional) sanctions for the standard offence of THB iii. Keeping the sanctions to legal persons optional for Member States to transpose for the standard offence, and mandatory to transpose when the offence is aggravated by one of the circumstances included in the Directive Ensuring that victims of trafficking receive adequate assistance, support and protection across the Member States Legislative measure 4 – Making it mandatory for Member States to set up formal National Referral Mechanisms and create national focal points for victims’ referrals N/A Reducing the demand for the exploited services of trafficked victims Legislative measure 5 – Mandatory criminalisation of the use of exploited services related to trafficking in human beings, with different available options i. Mandatory criminalisation of the knowing use of exploited services only related to sexual exploitation ii. Mandatory criminalisation of the knowing use of exploited services related to all forms of exploitation iii. Criminalisation of the knowing use of exploited services or if the use of exploited services is committed with serious negligence iv. Criminalisation of the use of exploited services without knowledge requirement v. Different knowledge element depending on the form of exploitation Ensuring adequate detection and monitoring of trafficking in human beings (horizontal) Legislative measure 6 – Introducing an obligation for Member States to collect and report data on trafficking in human beings to the Commission every year, including by specifying the indicators for such data collection. N/A

5.2.2.1.5.2.2.1. Explicitly addressing the digital dimension of trafficking in human beings in the Directive (legislative measure 1) Currently, the Directive does not explicitly address the digital dimension of trafficking in human beings. The internet is only referred to in a provision on prevention (Article 18(2)), as a means to raise awareness and reduce the risk of people, especially children, becoming victims of trafficking in human beings. This measure would aim at improving the relevance of the Directive, as the evaluation found that the online dimension could be better covered in the EU legislation. Introducing the online dimension of trafficking into the Directive would allow to better address specific problem 2, which highlights that trafficking in human beings increasingly moved online, creating additional challenges for law enforcement and judicial authorities. At the same time, these challenges foster the development of new and innovative methods to fight against this phenomenon, through the monitoring of websites, the use of social media and websites to investigate and collect information that could be used as evidence, or the tracing of the digital footprint of criminals, such as financial transactions. Therefore, this legislative measure would encourage policy makers and national authorities to further focus on addressing the online dimension, to develop technological methods and tools, as well as to enhance the capacity of law enforcement and judiciary to fight the crime in the digital space, including through training or by setting-up specialised units. More broadly, it would contribute to achieving specific objective 2 to reinforce the criminal justice response to the crime, including in the cross-border context. 74% of the stakeholders who participated in the public consultation were in favour of the introduction of explicit provisions on the online dimension of trafficking in human beings. Nearly all the public authorities (16 out of 19), as well as the majority of civil society organisations (35 out of 58) that responded supported this measure. The impact assessment identified two possible sub-options in this respect. (I)Introducing the online dimension as part of the definition of the offence of trafficking in human beings This legislative option takes into account the growing threat of the use of online technology for trafficking in human beings and the worrying evolution of the phenomenon. This policy option could be twofold: (a)Adding a paragraph under Article 2, which defines the offence of trafficking in human beings, to specifically refer to the online dimension of the crime, including for example the recruitment or advertisement of the victims on dedicated websites or in social media or control over the victim with tracing applications; (b)Creating a standalone offence for the use of technology and the internet in the recruitment, advertisement and exploitation of a person for the purpose of exploitation. The level of the penalties would remain the same as for the standard offence of trafficking in human beings. While the online dimension is de facto covered in the definition of trafficking offences, the explicit inclusion would reinforce the criminal response to one of the most serious changes in the trafficking in human beings landscape since the adoption of the legal instrument. In addition to strengthening the criminal justice response to this phenomenon, it would contribute to raising awareness, including of online platforms and technology companies, on the prevalence of online content related to trafficking in human beings. This option would be complementary to, and aligned with, recent legislative initiatives, including the Commission’s proposal for a Directive on violence against women and domestic violence (which introduces the offences of cyber harassment, cyber stalking and cyber incitement to violence and hatred), as well as with the Digital Services Act and the Commission’s proposal for a regulation on preventing and combatting child sexual abuse (which introduce obligations for online platforms and services to monitor, detect and remove illegal online content and child sexual abuse material). In particular, the Digital Services Act would cover the detection, monitoring and removal of online content related to trafficking in human beings by introducing a due diligence obligation for providers of intermediary services, such as online platforms, with the aim to reduce illegal and harmful content online. This sub-option was supported by stakeholders consulted as part of the case studies and targeted interviews who underlined the importance to make it clear in the Directive that the crime can be perpetrated both offline and online. (II)Qualifying the online recruitment, advertisement or exploitation of victims of trafficking in human beings as an aggravating circumstance Under this option, Member States would be required to introduce more severe penalties when a trafficking offence is committed in the circumstances laid down in Articles 4(1) and (2) of the Directive. Online technology has facilitated all the steps of the trafficking chain and makes it more difficult to identify traffickers. This resulted in a multiplication of trafficking activities online and the commercialisation and exploitation of victims on a massive scale, due to widespread advertisement, live-streaming in different online platforms, as well as the continued availability and the multiple viewings of online content/material related to the exploitation in the digital space. For these reasons, the use of online technology in the recruitment, advertisement and exploitation of the victim could qualify as an aggravating circumstance. This would lead to more severe penalties as envisaged in Article 4(2). Stakeholders consulted in the context of the case studies were more divided concerning this sub-option. One public authority, for example, highlighted that higher penalties for when the offence is committed through the use of technology would not necessarily lead to a decrease in the number of cases. Two public authorities mentioned that there was a risk that making it an aggravating circumstance would lead to different interpretations across the Member States. Several stakeholders (one law enforcement authority and two civil society organisations) highlighted that this measure would establishing more severe penalties when the crime is committed online than when it takes place offline. 5.2.2.2.5.2.2.2. Including new forms of exploitation into the definition of trafficking in human beings (legislative measure 2) Article 2(3) of the Directive includes a non-exhaustive list of forms of exploitation, which allows Member States to address additional forms of exploitation in their national laws. The minimum forms included in the Directive are prostitution of others or other forms of sexual exploitation; forced labour or services, including begging, slavery or practices similar to slavery, servitude; exploitation for criminal activities; and removal of organs. The transposition assessment carried out in the context of the evaluation of the Directive showed that some Member States transposed the forms of exploitation listed in Article 2(3) as an exhaustive list and chose not to criminalise additional forms. The public consultation indicated that over half (58%) of stakeholders were in favour of including new forms of exploitation in the definition of trafficking in human beings. More specifically, the majority of public authorities (10 out of 19) and non-governmental organisations (32 out of 58) expressed support for this measure. This legislative measure addresses one of the key findings of the evaluation according to which Member States often transposed into their national legislation only the forms of exploitation explicitly mentioned in the Directive, although the list in Article 2(3) is non-exhaustive (problem 2, driver 1). It would generally contribute to reinforcing the criminal justice response to the crime, including in the cross-border context (specific objective 2).

Under this option, Member States would have an obligation to expand the list of forms of exploitation within their national law in order to address additional purposes of trafficking, which have evolved since the adoption of the Directive. It would further contribute to harmonising the offence of trafficking in human beings across the Member States, as some Member States already criminalise some of these, while others do not. Consulted stakeholders were generally in favour of expanding the list of the forms of exploitation that should be included in the Directive. However, some of them pointed to the fact that it would be important to clearly define the conducts that qualify as trafficking offences, even when such conducts relate to forms of exploitation, which are not explicitly covered by the Directive. (I)Include forced marriage and illegal adoption in the list of the forms of exploitation, which are criminalised under Article 2(3) Forced marriage and illegal adoption are already included in recital (11) of the Directive, as forms of exploitation that can be covered within the definition of trafficking in human beings, in so far as they fulfil the constitutive elements of the crime. This shows that there was broad consensus among Member States already at the time of the adoption of the Directive. Furthermore, these two purposes of trafficking have consistently been mentioned by stakeholders as forms of exploitation that should be criminalised under the Directive. Although ESTAT only collect data on these forms as part of a larger category of “other” forms, the evaluation found that trafficking for forced marriage and illegal adoption have become more prevalent since 2011 and can no longer be considered as “emerging” trends. Finally, 69% of the respondents to the online survey indicated that the revision of the Directive should crimina