EN    EN EN 
EN    EN  COMMISSION OF THE E UROPEAN COMMUNITIES 
Brussels, 25.3.2009 
SEC(2009) 356 
  
COMMISSION STAFF WORKING PAPER 
 
Accompanying document to the  
Proposal for a 
 
COUNCIL FRAMEWORK DECISION 
 
on combating the sexual abuse, sexual expl oitation of children and child pornography, 
repealing Framework Decision 2004/68/JHA  
  
 
SUMMARY OF THE IMPACT ASSESSMENT  
 
 
 
{COM(2009) 135} 
{SEC(2009) 355} 
EN 2   EN SUMMARY OF THE IMPACT ASSESSMENT  
1. WHAT IS THE PROBLEM ? 
Sexual abuse and sexual exploitatio n of children are pa rticularly serious forms of crime as 
they are directed against children, who have th e right to special prot ection and care. They 
produce long-term physical, psychological and so cial harm to victims and its persistence 
undermines the core values of a modern society relating to special prot ection of children and 
trust in relevant State institutions. Despite a la ck of accurate and reliable statistics, studies 
suggest that a significant minority of children in Europe may be sexually assaulted during 
their childhood, and resear ch also suggests that this phenomenon is not decreasing over time, 
rather that certain forms of sexual violence are on the rise. 
On the side of the child  victims, the main cause of this phenomenon is vulnerability resulting 
from a variety of factors. Insufficient response by law enforcement mechanisms contributes to 
the prevalence of these phenomena, and the di fficulties are exacerbated because certain forms 
of offences transcend national borders. Victims are reluctant to report ab use for shame or fear 
of the consequences; variations  in national criminal law and procedure may give rise to 
differences in investigation and prosecution in  various countries; convicted offenders may 
continue to be dangerous after serving th eir sentences. Developments in information 
technology have made these problems more acute by making it easier to produce and 
distribute child sexual abuse images while o ffering offenders anonymity. At the same time 
national legal systems need to deal with hi gh number of actors involved, with different 
degrees of responsibility and operating in differe nt jurisdictions. Ease of travel and income 
differences fuel so-called child sex tourism, resulting often in child sex offenders committing offences abroad with impunity. Beyond the diff iculties of prosecution, organised crime can 
make considerable profits with little risk. 
2. W
HAT IS THE RATIONALE FOR EU ACTION ? 
National legislation covers some  of these problems to varying degrees. However, it is not 
strong or consistent enough to provide a vi gorous social response to this disturbing 
phenomenon. At EU level, Council Fram ework Decision 2004/68/JHA, introduces a 
minimum of approximation of Member States’ legislation to criminalise the most serious forms of child sexual abuse and exploitation, to extend domesti c jurisdiction, a nd to provide 
for a minimum of assistance to victims. Alt hough the requirements have generally been put 
into implementation, the Framework Decision has a number of shortcomings. It approximates 
legislation only on a limited number of offenc es, does not address new forms of abuse and 
exploitation using information technology, does not remove obstacl es to prosecuting offences 
outside national territory, does not meet all th e specific needs of child victims and does not 
contain adequate measures to prevent offences. 
Ongoing initiatives in police and judicial cooperation may have so me effect in tackling such 
crime. Furthermore, a Council of Europe C onvention CETS No. 201 against child sexual 
exploitation and sexual abuse was adopted in 2007 and is arguably the highest international 
standard for protecting children against sexual abuse and exploi tation to date. If all Member 
States implemented the Convention CETS No 201 this would also lead to significant 
improvements. However, there is no guarantee  that all Member States will ratify the 
Convention in the near future due to lengthy na tional procedures and the lack of a timescale 
EN 3   EN for ratification. Nor can the Convention prov ide for a vigorous monitoring mechanism to 
ensure appropriate implementation. 
For these reasons, stakeholders argue forcefully for more effective, specific measures. 
3. WHAT ARE THE OBJECTIVES ? 
The general policy objective of the Union in this field, under Ar ticle 29 of the Treaty on the 
European Union, is to prevent and combat offe nces against children, which includes child 
sexual abuse and child sexual exploitation. 
This general objective could be served by action aimed at achieving the following specific 
and operational objectives:  
A. Specific objective: to ef fectively prosecute the crime  
Operational objectives:  
A.1 To impose effective, proportionat e and dissuasive criminal penalties  on offenders 
who commit child sexual abuse or exploitation 
A.2 To facilitate the investigation of offe nces and the initiation of criminal 
proceedings  
A.3 To effectively prosecute abuse or exploitation committed abroad  
A.4 To remove obstacles to in ternational cooperation  and to foster the use of 
investigative tools which are effective in organised crime and transnational cases 
B. Specific objective: to  protect victims’ rights  
Operational objectives:  
B.1 To facilitate access by victims  to legal remedies and appr opriate specialist protection 
measures. 
B.2 To ensure that victims of child sexual abuse and exploitation suffer no harm  from 
participating in criminal i nvestigations and proceedings. 
C Specific objective: to prevent ch ild sexual exploitation and abuse  
Operational objectives:  
C.1 To promote access to intervention programmes and measures  as a means to prevent 
repeated and first-time offences against children. 
C.2 To ensure that appropriate security measures  are taken with regard to child sex 
offenders who continue to be dangerous after their release, and that they are effectively 
implemented  throughout the EU. 
C.3 To technically prevent or make it more difficult to access and disseminate child 
pornography, especially on the internet.  
EN 4   EN D. Specific objective: to estab lish effective monitoring systems  
Operational objective:  
D.1 To create harmonised national mechanisms to measure the extent of such crime  and 
to monitor the effectiveness of policy  to fight child sexual abuse and exploitation. 
4. WHAT ARE THE POLICY OPTIONS ? 
Various policy options are examined as a means to achieve the objective. 
• Policy option (1): No new EU action  
The EU would take no new acti on (legislation, non-policy instrume nts, financial support) to 
combat child sexual abuse and exploitation, while Member States may continue the process of 
signature and ratificatio n of Council of Europe Convention CETS No 201. 
• Policy option (2): Complement existing le gislation with non-legislative measures  
Existing EU legislation, in particular Fr amework Decision 68/2004/JHA, would not be 
amended. Instead, non-legislative measures coul d be put in place to support coordinated 
implementation of national legislation. This  would include exchanging information and 
experience in prosecution, protection or prev ention, awareness raising, cooperation with 
private sector and encouragement of self-regula tion, or the setting up of mechanisms for data 
collection.  
• Policy option (3): New legisl ation on prosecuting offenders , protecting victims, and 
preventing offences  
A new Framework Decision would be adopte d, incorporating the existing Framework 
Decision, certain provisions of the Convention CETS No 201, and additional elements not 
contained in either of them. It  would cover, for instance, crim inalisation of serious forms of 
child sexual abuse and exploita tion that are currently not included, such as new criminal 
offences in the IT environment. Provisions woul d be introduced to assist with investigating 
offences and bringing charges, as well as rule s to extend national juri sdiction, provisions to 
protect and support victims in criminal proceedi ngs, and measures to prevent recidivism and 
to disrupt access to  child pornography. 
• Policy option (4): New comprehensive legisl ation to enhance pros ecution of offenders, 
protection of victims and prev ention of offences (as in op tion 3) plus non-legislative 
measures (as in option 2)  
The existing provisions of Framework Deci sion 68/2004/JHA would be supplemented by EU 
action to amend substantive criminal law and pro cedure, protect victims,  and prevent offences 
as in option 3, plus the non-legislative m easures identified under option 2 to improve 
implementation of national legislation in crim inal matters resulting from the amendments, and 
to provide tools for investigation, prosecution, protection and preventi on beyond criminal law. 
EN 5   EN 5. HOW DO THE POLICY OPTIONS COMPARE ? 
Option 1 (status quo) may provide substantial imp rovement if Member States sign, ratify and 
implement Convention CETS No 201, as they seem willing to do. However, the lengthy national ratification procedures in  the absence of a legally bind ing EU framework and the lack 
of a vigorous monitoring mechanism mean that it is uncertain when and to what extent the 
benefits of that Convention would be put into practice. Option 2 would make for more 
effective implementation of the existing legal framework, but it would be insufficient to 
improve prosecution in a number of areas where a specific legal basis is required. 
Option 3 would improve matters in comparison to  the current situation.  It would strengthen 
legislation in areas currently covered by EU legislation on th e prosecution of offenders and 
protection of child victims. It would also a ddress preventive measur es, thus improving the 
protection of children in general.  The financial cost is expected to be outweighed by the social 
and economic benefit of more efficient acti on against this crime. Fundamental rights 
improvements would also outweigh the risks of in terference that come with certain measures. 
Option 4 would multiply the effectiveness of th e measures in option 2 and 3 by combining 
them and encouraging Member States to coope rate on setting up tools and acting to improve 
the implementation of the more comprehens ive legal framework been put in place. 
Following analysis of the economic impact, so cial impacts, and impacts on fundamental 
rights, options 3 and 4 represent the best appro ach to the problems and achieve the objectives 
of the proposal. The preferred option would be option 4, followed by option 3.