EUROPEAN COMMISSION Brussels, 19.12.2022 SWD(2022) 427 final COMMISSION STAFF WORKING DOCUMENT



EVALUATION

of the 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) 425 final} - {SWD(2022) 426 final} - {SWD(2022) 428 final}



Table of Contents 1.Introduction……. 2.The expected outcome of the Anti-trafficking Directive 2.1 The Anti-trafficking instruments prior to the Anti-trafficking Directive………………. 2.2 The Anti-trafficking Directive and its objectives………………...…………………….. 3. The developments during the evaluation period……………… 3.1. The Anti-trafficking Directive…………………...………………………….…………. 3.2. The transposition of the Anti-trafficking Directive by Member States……………...…6 3.3. Monitoring carried out by the Commission…………...…………………………….…. 3.4. New challenges since the adoption of the Directive……………………...……….…… 3.5. Statistics and trends for the evaluation period (2013-2020)……………………...…….9 4.Evaluation findings (analytical part) 4.1 To what extent was the intervention successful and why?............................................. 4.1.1 Effectiveness……………...……………..…………………………………….….. 4.1.2 Efficiency……………………….………..………………………...……….…......35 4.1.3 Coherence…………………………………………………………………….…... 4.2 How did the Anti-trafficking Directive make a difference?............................................ 4.3 Is the Anti-Trafficking Directive still relevant…………….……...……………...…….

5. Lessons learned and conclusions……………………………..….… ANNEX I: PROCEDURAL INFORMATION…………………………………..….…54 ANNEX II. METHODOLOGY AND ANALYTICAL MODELS USED………..….…56 ANNEX III. OVERVIEW OF BENEFITS AND COSTS AND TABLE ON SIMPLIFICATION AND BURDEN REDUCTION………………………..……..71 ANNEX IV. STAKEHOLDER CONSULTATION (SYNOPSIS REPORT)……..…....81 ANNEX V. STATISTICS…………………………………………………………..…...92 ANNEX VI. TRANSPOSITION OF THE ANTI-TRAFFICKING DIRECTIVE…......130 ANNEX VII. INTERVENTION LOGIC…………………………………….………....181



Glossary Term or acronym Meaning or definition AMIF Asylum, Migration and Integration Fund EU ATC EU Anti-trafficking Coordinator CEPOL European Union Agency for Law Enforcement Training CSO Civil Society Organisations EUAA European Asylum Support Office EIGE European Institute for Gender Equality EMCDDA European Monitoring Centre for Drugs and Drug Addiction EMPACT European Multidisciplinary Platform Against Criminal Threats EUROSTAT Statistical Office of the European Union FRA Fundamental Rights Agency GRETA Group of Experts on Action against Trafficking in Human Beings (at the Council of Europe) ICMPD International centre for Migration Policy Development ILO International Labour Organization IOM International Organisation for Migration ISF International Security Fund JAD Joint Action Day JIT Joint Investigation Team LGBTIQ Lesbian, gay, bisexual, transgender, intersex, non-binary and queer NREM National Rapporteurs or equivalent mechanisms NRM National Referral Mechanism OSCE Organization for Security and Cooperation in Europe SOCTA Serious and Organised Crime Threat Assessment TFEU Treaty on the Functioning of the European Union THB Trafficking in Human Beings UN ICAT The Inter-Agency Coordination Group against Trafficking in Human Beings 1. Introduction Trafficking in human beings is explicitly prohibited under Article 5 of the Charter of Fundamental Rights of the EU. Trafficking in human beings is also among the “areas of particularly serious crime with a cross border dimension” for which Article 83(1) TFEU empowers the EU to establish “minimum rules concerning the definition of criminal offences and sanctions”. The main legislative instrument to combat trafficking in human beings in the EU is Directive 2011/36/EU on preventing and combating trafficking in human beings, protecting its victims (hereinafter “the Directive” or “Anti-trafficking Directive”). It provides an overarching EU 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 the deadline for Member States to transpose it was 6 April 2013. The Directive does not contain any specific provisions concerning its evaluation. On 10 February 2021, the European Parliament adopted a Resolution calling upon the Commission to assess the implementation of the Directive and to come forward with proposals to revise it. Furthermore, in the EU Strategy on Combatting Trafficking in Human Beings 2021-2025 , presented on 14 April 2021 (hereinafter “the Strategy”), the Commission acknowledged that the Directive may no longer be fit for purpose. Accordingly, the Strategy identified as a key action the evaluation of the implementation of the Directive and, if necessary, its possible revision. The Strategy also set out that the Commission would assess the possibility of having minimum EU rules that criminalise the use of services exacted from victims of trafficking in human beings. This report constitutes the first comprehensive evaluation of the Directive. The evaluation examines whether the tools to combat trafficking in human beings and support the victims provided for by the Directive correspond to the current needs, considering the social and economic changes since its transposition date. In compliance with the Better Regulation Guidelines, the evaluation assesses the effectiveness, efficiency, coherence, relevance, and EU added value of the Directive. It aims at identifying possible gaps and shortcomings, supporting the development of recommendations for possible future measures, including legislative options, to address such gaps. This evaluation is carried out “back-to-back” with an impact assessment. The scope of the evaluation covers the period between the date of transposition on 6 April 2013 and the end of the public consultation on 22 March 2022. Its geographical scope covers 27 EU Member States. The evaluation is based upon extensive desk research (see Annex 2) as well as a study carried out by an external contractor (EY/RAND) to support the evaluation of the Directive and an impact assessment for a legislative proposal on the topic. It uses data collected by EUROSTAT from the date of the transposition of the Directive until 2020. The evaluation also includes a transposition assessment, which updates the Commission’s 2016 Transposition report assessing the extent to which Member States have taken the necessary measures in order to comply with Directive 2011/36/EU.

The evaluation takes into account the outcome of the extensive stakeholders consultations carried out by the external contractor and the Commission’s public consultation (see Annex 4). The Commission also organised consultations in the context of the EU Network of National Rapporteurs and Equivalent Mechanisms and of the EU Civil Society Platform against trafficking in human beings. Separate consultations took place with the EU Agencies, which signed a Joint Statement of commitment to work together against trafficking. Moreover, the EU Anti-trafficking Coordinator held bilateral discussions with national authorities, civil society organisations and international organisations, such as UNODC, IOM, UNHCR, the OSCE, the Council of Europe, and ICMPD. The evaluation has limitations related to the nature of the crime and the weaknesses of the data collection. The threat picture and the quantitative assessments are undermined by the difficulties in detection and the low number of reports from victims, who are often emotionally or economically dependent on the trafficker. With low numbers of victim reports and, especially without victims’ testimonies, it is challenging to formally charge and convict the perpetrators. This is also reflected in the low number of prosecutions and convictions within the EU. Moreover, despite the significant progress in the data collection in the last years, data is still not systematically collected in certain Member States or the gathering process may lead to double counting. Limited data is available also on the support and compensation received by victims. The gaps in the data collection make it difficult to measure the effectiveness of prevention measures (awareness raising campaigns, research, information) and the impact of the criminalisation of the use of exploited services on demand. The evaluation 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 intervention logic of the Directive is described in Annex 7 to this Staff Working Document. 2. The expected outcome of the Anti-trafficking Directive 2.1 The Anti-trafficking instruments prior to the Anti-trafficking Directive Prior to the adoption of the Directive, the response to trafficking in human beings was regulated by several EU and international legal instruments. The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the UN Convention against Transnational Organized Crime, adopted in 2000 and entered into force in 2003, was the first comprehensive international instrument dealing with trafficking in human beings. The European Union signed and approved the Protocol. The Council of Europe Convention on Action against Trafficking in Human Beings, adopted in 2005, also provided a comprehensive and coherent framework covering prevention, cooperation between different actors, protection of and assistance to victims, and an obligation to criminalise trafficking in human beings. The EU is not a party to the Council of Europe Convention. At the EU level, on 19 July 2002, the Council adopted Council Framework Decision 2002/629/JHA on combating trafficking in human beings (hereafter “the Framework Decision”) and the EU Plan on best practices, standards and procedures for combating and preventing trafficking in human beings . Member States made good progress towards transposing the Framework Decision into their national legislation and complying with its essential requirements . However, the 2006 Commission’s report and the 2008 Working document stated that “implementation of comprehensive anti-trafficking policy in [Member States] is still unsatisfactory.” This was partly because Member States were not required to implement several of its provisions, as these allowed for exceptions and reservations. Identified gaps in the anti-trafficking policy at Member States level concerned the effective detection and prosecution of the offences, protection of and assistance to victims, and the monitoring of trafficking trends and anti-trafficking efforts. 2.2 The Anti-trafficking Directive and its objectives At the time of the 2010 Commission Proposal, trafficking in human beings was already considered as a gross violation of human rights, a serious crime and an extremely profitable business for organised crime. The available figures at the time showed that an estimate of several thousands of people were trafficked into the EU or within the EU every year. The majority of victims were women and girls, trafficked mostly for sexual exploitation, while the majority of men victims were trafficked for the purpose of labour exploitation. Children were found to be mainly trafficked to be exploited in criminal activities, including begging, and for sexual exploitation. The identified drivers of the crime were the high profits generated, the socio-economic vulnerabilities of the victims and the demand for sexual services and cheap labour. The institutional and policy response within the Member States was considered inadequate, not contributing much to the identification of, and support to, victims, and discouraging their participation in criminal proceedings. This led to very low numbers of prosecutions and convictions, in the absence of accurate sources of evidence, which could have enhanced the investigative response. Cross-border cooperation was also considered insufficient and limiting the effectiveness of investigations in transnational cases. Effective tools, such as joint investigation teams or other means typical of organised crime cases (financial investigations, phone tapping or electronic surveillance) were rarely used. At the time of the intervention, the gaps in the available data did not allow a precise estimation of how trafficking in human beings would have evolved in the absence of EU action. Nevertheless, the Impact Assessment to the Directive concluded that trafficking in human beings was expected to remain stable or even grow if no effective deterrents were put in place in the near future, due the large scale of the crime, the high profits generated for criminal networks and the links with other forms of serious crime (such as document fraud, money-laundering, drug trafficking and migrant smuggling). Due to the physical and psychological health consequences of the crime, the importance of victims’ testimonies to successful investigations and protection and the low number of victims’ being assisted, the Commission considered that the protection of the rights of the victims had to be at the core of any proposals aimed at strengthening the EU action against trafficking. The adoption of the Directive aimed at responding to two general objectives, namely (1) to combat crime, organised or otherwise, in particular trafficking in persons and offences against children, by building a more coherent framework for the fight against trafficking and (2) to increase the effectiveness of the framework. In addition the Directive was set to respond to five specific objectives: 1. Introducing substantive criminal law provisions, by aligning the definition with international instruments and imposing an effective, proportionate and dissuasive level of penalties. 2. Prosecuting trafficking-related offences, by removing obstacles to cross-border and international cooperation and facilitating prosecution of traffickers when the offence is committed outside the jurisdiction of a Member State. 3. Protecting victims’ rights by requiring the non-prosecution and non-punishment of victims for crimes committed as a direct consequence of being trafficked, by providing the presumed victims with unconditional individualised assistance before, during and after the criminal proceedings, by requiring individualised risk assessments, by increasing the protection of victims from secondary victimisation, by ensuring effective compensation and by establishing specific measures for children, including unaccompanied minors. 4. Preventing trafficking, by reducing vulnerability factors in countries of origin, by improving the resources and expertise of law enforcement and other public authorities likely to come into contact with potential victims and by sanctioning employers who knowingly employ trafficked persons, and clients who knowingly use sexual services from trafficked persons. 5. Establishing effective monitoring systems, by appointing National Rapporteurs or Equivalent Mechanisms, by establishing close cooperation between them and by requiring the Commission to report every two years on the progress made in the fight against trafficking in human beings.

3. The developments during the evaluation period 3.1. The Anti-trafficking Directive The Directive contributed to creating an EU common minimum ground for the three dimensions of the fight against human trafficking covering the above mentioned objectives : (i) criminalisation, investigation and prosecution of trafficking in human beings, including the definition of offences, penalties and sanctions; (ii) assistance and support to, and protection of, victims of trafficking in human beings; (iii) prevention of trafficking in human beings. The Directive includes a common minimum set of offences, which expands the minimum list of forms of exploitation covered by previous EU legislation. Article 1(1) of the Framework Decision was limited to “forced or compulsory labour or services, slavery or practices similar to slavery or servitude, or for the purpose of the exploitation of the prostitution of others or other forms of sexual exploitation”. The Directive includes further advancements in comparison to the Framework Decision: ·Establishing minimum penalties for all trafficking offences (Article 4), while Council Framework Decision 2002/629/JHA included minimum penalties only for aggravating circumstances. The Directive further raised the minimum penalties for aggravating circumstances from 8 to 10 years (Article 4(2)). ·Expanding the scope of aggravating circumstances by (i) adding the circumstance in which the offence is committed by public officials in the performance of their duties (Article 4(3)); and (ii) expanding the definition of vulnerable victims (Article 4(2)(a)). While Council Framework Decision 2002/629/JHA limited the concept of vulnerability to victims of sexual exploitation under the age of sexual majority, the Directive includes a wider range of vulnerable victims, by indicating child victims as a minimum. ·Expanding the scope of investigation and prosecution for trafficking in human beings (Article 9) by covering also seizure and confiscation (Article 7). ·Expanding the assistance, support and protection measures for victims (Articles 11 and 12), including the principle of non-prosecution and non-punishment of victims (Article 8), as well as specific assistance, support and protection measures for child victims (Articles 13-16) and addressing access to compensation (Article 17). ·Expanding the scope of prevention measures (Article 18), including by requiring Member States to consider criminalising the knowing use of exploited services (Article 18(4)). ·Introducing and defining the role of the National Rapporteurs and Equivalent Mechanisms on trafficking in human beings (Article 19). ·Introducing the obligation for Member States to periodically report to the EU Anti-trafficking Coordinator (hereinafter EU ATC), on the basis of which the EU ATC contributes to the reporting carried out by the Commission every two years on the progress made in the fight against trafficking in human beings (Article 20). The tasks of the EU ATC also include improving coordination and coherence between EU institutions and agencies as well as between Member States and international actors, avoiding duplication of efforts and contributing to developing existing or new EU policies and strategies relevant to the fight against trafficking in human beings. The main categories of stakeholders responsible for the implementation of the Directive are 26 Member States, the Commission, the EU Anti-trafficking Coordinator, the EU Agencies and civil society organisations. The Directive encourages Member States to work closely with civil society organisations, in particular in policy-making initiatives, information and awareness-raising campaigns, research and education programmes, training, as well as in monitoring and evaluating the impact of anti-trafficking measures. 3.2. The transposition of the Anti-trafficking Directive by Member States The main responsibility for combating trafficking in human beings lies with Member States, which are required to adopt legislation, regulations and administrative provisions necessary to comply with the Directive by 6 April 2013. In May 2013, the Commission sent 13 letters of formal notice in order to initiate infringement proceedings against Member States that had not communicated the transposition measures. In four instances, the Commission addressed reasoned opinions to the Member States concerned. Following this, all the Member States bound by the Directive communicated their transposition measures. Considering the wide-ranging scope of the Directive, most Member States chose to transpose its provisions in different types of legal instruments, mainly: criminal codes; specific acts concerning the fight against trafficking; legislation safeguarding victims of crimes; acts setting measures for the protection of children; legislation regulating the entry and residence of third country nationals. In 2016, the Commission adopted a report on the transposition of the Directive. The results of the report showed that, five years after its adoption, the Member States had made substantial efforts to transpose the Directive but significant room for improvement remained in particular as regards specific child protection measures; the presumption of childhood and the age assessment; protection before and during criminal proceedings; access to unconditional assistance; compensation; non-punishment principle; assistance and support to family members of child victims; and prevention. The transposition assessment carried out in the context of this evaluation shows that Member States have fully or partially transposed most of the mandatory provisions of the Directive into their national legal systems. The correct and complete transposition of the Directive and its full implementation remained a priority for the Commission throughout the evaluation period. These are crucial to ensure that traffickers do not benefit from diverse approaches within the EU and that victims receive adequate protection and support irrespective of where they are. The Commission continued the engagement with the Member States after the adoption of the transposition report, and committed to use the powers conferred to it by the Treaties to ensure full transposition and implementation, including by infringement procedures, if appropriate . In the evaluation period, the Commission did not launch any infringement procedure. The Commission supported Member States with substantial funding to facilitate and accelerate the implementation of the Directive, in particular the provisions on preventing and combatting trafficking and on protecting, supporting and assisting the victims. During the 2014-2020 programming period, the total EU allocation for projects aimed at preventing and combatting trafficking in human beings amounted to EUR 13 026 286 under shared management and to EUR 22 707 722 under direct management. In addition, the anti-trafficking action is fully integrated in the EMPACT grants that support national actions against the ten crime priorities identified by the Council in the context of the EU Policy Cycle, as trafficking in human beings is one of them. EMPACT grants have contributed to countering the impunity of perpetrators by strengthening the capacity of Member States’ law enforcement to investigate and prosecute trafficking offences. Member States have also adopted non-legislative instruments, which supported the implementation of the Directive, such as new or renewed National Action Plans to prevent and combat trafficking in human beings, as well as sets of guidelines , protocols and procedures aimed at supporting the relevant stakeholders in detecting, identifying and protecting victims, as well as coordinating the efforts in the fight against human trafficking . 3.3. Monitoring carried out by the Commission

Pursuant to Article 20 of the Directive, the Commission reports every two years on the progress made in the fight against trafficking in human beings. The Progress Reports include statistical data on trends observed in trafficking in human beings, as well as analysis on the results of anti-trafficking actions. Moreover, the Commission has published a number of reports and studies on different aspects of trafficking in human beings, including in cooperation with the EU Agencies. Following the entry into force of the Directive, the Commission adopted three policy instruments. The first policy document presented after the adoption of the Directive was the EU Strategy towards the Eradication of Trafficking in Human Beings 2012-2016, which identified five priorities: 1) identifying, protecting and assisting victims; 2) stepping up prevention; 3) increasing prosecutions; 4) enhancing coordination and cooperation among key actors and ensuring policy coherence; 5) increasing knowledge of, and effective response to, emerging concerns relating to all forms of trafficking. In 2017, the Commission adopted a Communication reporting on the follow-up to the EU Strategy and identifying further concrete actions. In April 2021, the Commission adopted the EU Strategy on Combatting Trafficking in Human Beings 2021-2025, which provides a comprehensive response to combatting trafficking in human beings, from prevention through to protection of victims, to prosecution and conviction of traffickers. The Strategy identifies four key priorities: 1) reducing the demand that fosters trafficking; 2) breaking the criminal model of traffickers to halt the exploitation of victims; 3) protecting, supporting and empowering the victims, especially women and children; 4) the international dimension. 3.4. New challenges since the adoption of the Directive 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. In addition, over 100 million people were forcibly displaced worldwide in 2022, as a result of conflicts, violence and human rights violations, among others, thus increasing the risks of trafficking due to their vulnerability and economic situation. Climate change is also expected to foster trafficking in the long term, due to the socio-economic consequences of draughts and famines on vulnerable categories. The 2021 Serious and Organised Crime Assessment of Europol highlighted that trafficking in human beings is a central activity for organised crime groups operating in the EU and that the demand for sexual and labour exploitation will continue to persist . The risks of trafficking have considerably increased since the beginning of the war in Ukraine in February 2022, as persons fleeing to the EU might be targeted by human traffickers along their journey . Women and children, especially unaccompanied minors, are particularly vulnerable to trafficking, including for the purposes of sexual or labour exploitation. In 2020, Europol warned that trafficking in human beings, particularly for the purpose of labour and sexual exploitation, is likely to increase, as the economic downturn in the wake of the COVID-19 pandemic could increase demand for cheap labour . Also as a consequence of COVID-19 prostitution has moved from brothels and the streets into hotels and apartments, which makes potential victims of trafficking nearly inaccessible for law enforcement and social services. 3.5. Statistics and trends for the evaluation period (2013-2020) The statistics and trends outlined below are based on the data provided by EUROSTAT covering the 2013-2020 reporting period in the EU27. For the detailed statistical report for 2013-2020, see Annex 5. 3.5.1 Number and demographic characteristics of the of victims The total number of victims of trafficking in human beings registered in the EU27 during the 2013-2020 period was 55 314, with an average of 16 registered victims per million inhabitants. The annual numbers of registered victims of trafficking showed very little variation across the reporting period. The annual numbers are comparable, if generally slightly lower, to the number recorded in the EU27 in 2011 (n=7,440) and notably lower than the 2012 number (n= 8,853). However, the actual number of victims of trafficking within the EU is likely much higher than the data suggests. The statistics above include only victims identified by registering entities and are unable to encompass the estimated high numbers of undetected victims . The number of victims is considered underestimated due to the widespread underreporting of trafficking offences, which is the consequence of numerous reasons, including the economic or emotional dependency between the victim and the trafficker; intimidation of extortion by the traffickers; the fear of reprisals from the traffickers; language or cultural barriers; distrust in, the competent authorities; the societal attitude towards victims of trafficking, especially for sexual exploitation; insufficient awareness on their rights and opportunities, as well as the fear to lose their income, especially for victims trafficked for labour exploitation; for illegally staying third country nationals, the fear of deportation. There are attempts for calculating regional estimates. The US 2022 Report on Trafficking in Persons (TIP) estimates the identified and registered number of victims of trafficking in Europe (including Turkey, Russia and Western-Balkans) as 17 383 in 2019 and 18 173 in 2020. According to the ILO’s newly released Global estimates of modern slavery, 6.4 million people are subjected to forced labour, sexual exploitation and forced marriage in Europe and Central Asia. It can be noted that these two reports (released few weeks one from the other) include widely different figures for similar geographical regions. This shows how difficult it is to make precise estimations of the real number of victims. Existing estimates rely on different concepts, which do not necessarily amount to trafficking in human beings (e.g. forced labour or forced marriage) or are not defined under international and EU law (e.g. modern slavery), refer to different geographical scopes or do not have a clearly outlined methodology. While there have been few attempts at producing estimates at Member State level, their methodology was criticised for its strong dependence on quality of input data and the assumptions behind the data analysis, which may result in a large margin of error when estimating the hidden population. 79% of victims registered in the EU27 were adults . Child victims constituted around one fifth of all registered victims whose age was known (21%) in the EU27. The percentage of child victims increased over time, growing from 18% in 2013 to 24% in 2020 continuing the trend of 2011-2012, when the share of child victims was 17%. Over the reporting period, children accounted for approximately one quarter of sexual exploitation victims where the age group was reported. This is slightly higher than the share of child victims across all types of exploitation. There was little change in the value of this indicator over time, decreasing somewhat from 27% in 2015 to 24% in 2020. It does, however, represent a notable increase from 2010-2012 when only 14% of registered victims of sexual exploitation were under 18 years old. During the 2013-2020 evaluation period, 56% of the registered victims with known citizenship were EU citizens and 44% were non-EU citizens. The ratio of EU and non-EU victims in 2010-2012 was similar to that of 2013 (69% EU victims and 31% non-EU victims). The share of EU victims gradually decreased between 2013 and 2018 and then increased in 2020. In 2016 and 2018 the number of registered non-EU victims overtook that of EU citizens. During the overall evaluation period, the main countries of citizenship of non-EU victims in the EU were Nigeria (6,513), China (1,417), Morocco (824), Ukraine (743), and Philippines (605), while the main countries of citizenship of EU victims were Romania (9,392), Hungary (3,565), Bulgaria (3,424), France (3,136), and the Netherlands (2,558). Across the EU27, approximately one third (36%) of all registered victims of THB were citizens of the country in which they were registered . Citizens of other EU Member States accounted for approximately one fifth (21%) of all registered victims. In 2013-2020, women and girls represented three quarters of trafficking victims whose sex was reported (75%) in the EU27 likewise as during 2010-2012. . The percentage in individual Member States ranged from 42% in Portugal to 92% in Bulgaria . The percentage of female victims decreased from 81% in 2013 to 67% in 2020. During the evaluation period, men and boys were the majority of victims recorded in two Member States (BE, PT). 3.5.2 Purposes of trafficking in human beings Sexual exploitation has constantly been the most prevalent purpose of trafficking in human beings across the reporting period, although its share decreased from 76% in 2014 to less than 60% in 2019-2020 . Victims of sexual exploitation are overwhelmingly women and girls (93%). Trafficking for purposes other than sexual exploitation has increased during the reporting period. Labour exploitation has consistently been the second most prevalent purpose of trafficking in human beings. It accounts for 20% of all registrations during 2013-2020, as the percentage was initially low but later increased to reach approximately one third of victims in 2020. Labour exploitation affects mostly male victims (70%), though female victims are increasingly exploited in particular sectors (e.g., domestic work, care activities or cleaning services). The proportion of “other purposes” increased over time to approximately one fifth of all cases in 2018 and decreased thereafter to slightly more than 10% of all registrations. These trends represent a continuity of the developments in 2010-2012 when 69 % of registered victims were trafficked for the purpose of sexual exploitation, 19 % for labour exploitation and 12 % for other forms of exploitation such as the removal of organs, criminal activities, or selling of children.

4. Evaluation findings (analytical part) 4.1 To what extent was the intervention successful and why? In order to measure the success of the Directive, the evaluation assesses to what extent the objectives of the Directive were met (effectiveness) and whether this was commensurate with the efforts, time and funding invested (efficiency). Furthermore, it is examined whether the objectives of the Directive have been attained and fit in the broader political framework, and are in coherence with other EU, national and international instruments in the field of prevention of the trafficking of human beings (coherence). 4.1.1 Effectiveness Overall, the Directive has proven effective in achieving its general objectives as it facilitated the creation of an overarching legal and institutional framework at European and national level, with regard, however, its specific objectives concerning, prevention, prosecution, assistance of victims and monitoring the Directive has not reached its full potential. As highlighted by several survey respondents, the establishment of common minimum rules contributed to higher harmonisation of national criminal laws, which would have been difficult to achieve by Member States acting alone. In this regard significant progress has been done to achieve the specific objective of the Directive. Harmonised rules resulted in higher EU capacity to fight against this crime. Nevertheless, Member States have transposed and implemented the Directive to different extents and its effectiveness remains limited by the gaps in the practical implementation of its provisions. 4.1.1.1 Definition of trafficking in human beings and the forms of exploitation Key evaluation findings: ·The Directive adopted the same definition of key international instruments (Palermo Protocol and the Council of Europe Convention). ·Member States interpret certain key terms of the definition (e.g. abuse of power, position of vulnerability and exploitation) differently. ·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. Areas for improvement identified in relation to the definition are: oFurther clarification in the interpretation of the key concepts of the definition. oThe inclusion of further forms of exploitation within the definition, provided that the other constitutive elements of the trafficking offence (conduct and means) are fulfilled. a. Definition of trafficking in human beings Article 2 of the Directive provides a common definition of trafficking in human beings and requires Member States to ensure that trafficking offences committed with intent be punishable. The definition of the Directive is in line with the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the UN Convention against Transnational Organized Crime (the Palermo Protocol) and with the Council of Europe Convention on Action against Trafficking in Human Beings. However, minor divergences in the transposition and interpretation of Article 2, may slightly reduce the effectiveness of the Directive at Member States’ level. Areas hindering the full effectiveness of the Directive in relation to the definition The differences in how some key concepts of the definition of trafficking are enshrined in national law may hinder EU law enforcement and judicial cooperation in cases where the activities are considered to be trafficking in one Member State but not in others. ·Article 2(1): The term ‘abuse of power’ refers to the means used to commit human trafficking offences. The Directive does not specify what kind of power and how it may be abused. It is not known how this concept is interpreted in practice, for example if a parental or educational relationship may qualify as an abuse of power. ·Article 2(2): The term ‘position of vulnerability’, defined as ‘no real or acceptable alternative but to submit to the abuse involved’ refers to the means used to commit trafficking offences. Member States define the position of vulnerability in different ways. ·Article 2(3): There is no EU definition or indicators of exploitation. As reported by Eurojust, prosecutors face a high evidentiary burden in courts to prove the exploitation element. Moreover, this element is not clearly and unanimously understood (particularly with reference to trafficking for labour exploitation, modern slavery or servitude, international surrogacy arrangements leading to the selling of newborns and exploitative (sham) marriages). For example, in some Member States, proving exploitation is dependent on evidence of coercion. b. Forms of exploitation Article 2(3) provides a minimum list of forms exploitation, which includes 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. As the list is non-exclusive, it allows Member States to criminalise additional forms of exploitation. The Directive does not define the forms of exploitation explicitly mentioned therein. This has led Member States to adopt different interpretations of some forms of exploitation, such as forced begging, which is addressed indifferent ways across Member States . The risk of diverging interpretations is even higher for the forms of exploitation that are not explicitly mentioned in the Directive. Areas hindering the full effectiveness of the Directive in relation to the forms of exploitation

Consulted stakeholders considered that greater clarity is required around the concept of “forced labour”, as it is currently interpreted in differing ways. Recital 11 of the Directive states that forced labour is defined in line with the ILO Forced Labour Convention, 1930 (No. A 29). However, the concept of forced labour is not explicitly defined in many Member States. It must be noted that ILO’s Committee of Experts on the Application of Conventions and Recommendations in their comments and observations provides ample guidance to enable Member States to ensure that their definition of “forced labour” aligns fully with the ILO standards. Eurojust stressed that some Member States experienced difficulties in defining “practices similar to slavery or servitude”. In addition consulted stakeholders frequently referred to the evolving nature of the crime of trafficking in human beings and considered that other forms of exploitation could be included in Article 2(3) . ·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 of the offence. 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 a purpose of trafficking, which can be covered by trafficking in human beings, insofar as it fulfils the constitutive elements of trafficking in human beings. 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. ·Illegal surrogacy: the trafficking of women for the purpose of illegal surrogacy programmes, which involve selling newborn children has also been identified as an emerging trend in the 2021 EU SOCTA report and in the Commission’s Third progress report. As part of the evaluation, Eurojust reported that some Member States encounter difficulties in prosecution and judicial cooperation in cases involving the selling of newborn children, in particular when vulnerable surrogate mothers are exploited by intermediaries and there is a risk of exploitation of the children . ·Social benefit fraud was referred to as a form of exploitation in the 2021 EU SOCTA report. Eurojust also reported on cases where traffickers abuse vulnerable individuals coming from difficult financial conditions to commit social benefit fraud for their sole profits . 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 . 4.1.1.2 Prevention and training Key evaluation findings: ·The Directive significantly contributed to increasing the number of prevention initiatives in Member States, for example awareness raising campaigns, education and training programmes for officials, such as law enforcement authorities, prosecutors, judges, as well as other professionals likely to enter in contact with victims of trafficking in human beings, such as healthcare professionals, social assistance services and labour inspectors. Prior to the implementation of the Directive in 2011, there were significantly fewer prevention efforts than there are today. ·CEPOL and FRONTEX delivered numerous specific trainings on trafficking in human beings. Areas for improvement identified in relation to prevention are: oTargeting specifically vulnerable categories of people in the Member States and non-EU countries, as well as in high risk sectors. oAddressing the societal causes of trafficking in prevention strategies. Areas for improvement identified in relation to training are: oIncluding more law enforcement and judicial professionals in specific training programmes on trafficking in human beings and to embed THB training within the basic curriculum of law enforcement and the judiciary. oIncluding other key professionals (from public and private sector) into training programs likely to enter into contact with victims in training programmes on trafficking. The Directive is widely considered to have improved prevention efforts. The majority of survey respondents considered that the Directive contributed to reducing the number of victims. Respondents also considered that measures targeting child victims have been relatively effective, though less than those targeting adults. Measures targeting potential offenders were considered relatively less effective than those above.  Prevention measures Article 18 of the Directive requires the Member States to take appropriate measures to prevent trafficking in human beings, including education and training aimed at reducing the demand that fosters trafficking (Article 18(1)), as well as information and awareness raising campaigns, research and education programmes aimed at reducing the risks of victimisation (Article 18(2)). All Member States but one have transposed these two provisions in their national laws. The Commission has collated information on the many examples of prevention activities conducted in Member States, including projects, awareness raising campaigns, education and training programmes implemented at national and transnational level. Examples of transnational projects include TRACE , SafeShore and RAVOT-EUR . There are also examples of cooperation between child protection systems and education systems aimed at strengthening prevention measures targeting children . Areas hindering the full effectiveness of the Directive in relation to prevention The evaluation identified several areas of improvement with regards to prevention. These include defining concrete objectives to better target prevention measures towards specific groups or sectors. For example, it may be beneficial to conduct awareness campaigns in the main (EU and non-EU) countries of origin of victims identified in the EU and in high-risk environments (such as sectors of the economy that attract low-wage labour). Prevention strategies should address the root causes of trafficking in human beings, such as gender discrimination, economic inequalities and restrictive migration policies . Lack of education and work opportunities, as well as of regular migration routes towards the EU, are among the societal issues that foster trafficking .  Training Article 18(3) requires Member States to promote regular training for officials likely to come into contact with victims or potential victims, including front-line police officers, in order to enable them to identify and deal with victims and potential victims. Recital 25 provides that this training obligation should be promoted for “police officers, border guards, immigration officials, public prosecutors, lawyers, members of the judiciary and court officials, labour inspectors, social, child and health care personnel and consular staff, but could, depending on local circumstances, also involve other groups of public officials who are likely to encounter trafficking victims in their work”. All Member States have implemented training activities envisaged in Article 18(3). The evaluation found that Member States have offered training programmes to officials involved in investigations and prosecution of trafficking offences, such as prosecutors, law enforcement and judicial authorities. Some Member States have also offered training to healthcare professionals, staff from social assistance services and labour inspectors. The Directive is considered to have contributed to increasing the offer of specialised training on trafficking available at the national level . EU Agencies, international organisations and the Member States produce guidance and training documents and offer training on trafficking in human beings, reaching a wide range of professionals in Member States and non-EU countries. During the 2013-2021 period, CEPOL developed a complex training portfolio and trained a total of 5,173 officers. Frontex prepared a training manual, a ‘train the trainer tool’ and is currently developing a handbook on Risk Profiles on Trafficking in Human Beings. FRA will develop a capacity building tool to train labour inspectors tasked with identifying illegal work. Areas hindering the full effectiveness of the Directive in relation to training

The evaluation identified several areas for improvement in relation to training. Although the number of capacity-building activities has grown, many law enforcement and judicial professionals are not receiving training that would better equip them to investigate and prosecute trafficking offences. This results in limited knowledge, for example about child trafficking, the procedures in place in the different (police or judicial) institutions, or on discerning persons forced into criminal activities as a result of being trafficked. As victims may be scared of reporting to law enforcement authorities, it is crucial that all relevant stakeholders receive adequate training. Training programmes should involve other professionals likely to come into contact with victims, such as staff from social assistance services, healthcare professionals, labour inspectors and airline staff in direct contact with passengers. 4.1.1.3 Reduction of the demand that fosters trafficking and criminalisation of the use of exploited services Key evaluation findings: ·The Directive provides a limited coverage to demand reduction, mainly focusing on non-legislative measures, such as information and awareness raising, and education. ·Demand persists, especially for cheap labour and sexual services, fosters trafficking. ·Not all Member States have transposed the optional provision criminalising the knowing use of exploited services (Article 18(4)). The approaches of Member States that transposed it, vary to a great extent. ·Even where available, legislation criminalising the use of exploited services is not extensively applied in practice. ·It is difficult to prove in court that the user knew that the victim was trafficked. ·Some Member States and stakeholders raised the concern that criminalisation of the use of services could result in increased marginalisation and vulnerability of victims, which would hamper detection and early identification of victims. Areas for improvement identified in relation to addressing the demand that fosters trafficking: oMember States could address demand with enhanced legislative and non-legislative measures. oMember States could improve awareness raising, guidance and education programmes targeting potential users, including of sexual services. oMember States could improve the collection of evidence (including electronic evidence) to prove that users are aware of the exploitation. The Directive adopts a comprehensive approach to demand reduction, which includes both legislative and non-legislative measures, although legislative measures remain in the Directive optional. Article 18(1) requires Member States to take appropriate measures, such as education and training, to discourage and reduce the demand that fosters all forms of exploitation. Article 18(4) 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. This is an optional provision, on which Member States and stakeholders have widely differing views. The analysis of national legislation carried out as part of this evaluation indicates that eight Member States have legislation criminalising the knowing use of services exacted from victims of all forms of exploitation. Eleven Member States have legislation that criminalises directly or indirectly the knowing use of services exacted from victims of sexual exploitation (including some Member States requiring a lower, or no, knowledge requirement). Seven Member States have no legislation addressing the use of services exacted from victims of trafficking. However, some of these have legislation which does not transpose the Directive but imposes criminal liability for users of exploited services. Some Member States (FR, IE, SE and, partially, FI) address demand for sexual services with the so-called “Equality Model”, which criminalises the purchase of sexual services regardless of whether the person is a victim of trafficking. This approach concerns the reduction of demand in the field of sexual services and addresses the situation of victims of trafficking indirectly, as part of the individuals in prostitution. EUROSTAT has collected data relating to the criminal offences of the use of exploited services since 2015. EUROSTAT reported that during the 2015-2020 period, 331 persons were reported as suspects, 343 were prosecuted and 202 were convicted of such offences. As shown by Figure 1 below, it is not possible to discern any clear trend. It is, however, important to acknowledge that there are serious gaps in the data collection, as only 11 Member States reported on the three categories (suspects, prosecutions, convictions). Figure 1: Criminal justice statistics on the offence of the use of services which are the objects of exploitation of victims of trafficking in human beings (2015-2020) In February 2021, a European Parliament Resolution called on the Commission to amend the Directive with a view to ensuring that all Member States criminalise the knowing use of exploited services. UNODC called on the Commission to “recall the legal obligation Member States have to address demand, including by legislative measures addressing the use of services of victims. It also corresponds to the recommendations of the Council of Europe’s Group of Expert on Action against Trafficking in Human Beings (GRETA), which all include the knowing use without differentiating between the forms of exploitation. Furthermore, this approach is also supported by 61% of respondents to the public consultation. The EU Strategy stipulates that the Commission would carry out an assessment of the possibility of having minimum EU rules that criminalise the use of exploited services of trafficking victims as part of the evaluation of the Directive. Areas hindering the full effectiveness of the Directive in relation to the use of exploited services from victims of trafficking (i) Even where available, legislation criminalising the use of exploited services is not extensively applied in practice Legislation criminalising the knowing use of exploited services is applied in practice to different extents. Several Member States (BG, EE, LU, MT) reported no cases in 2020. On the other hand, in the 2017-2020 period, LT reported 113 convictions and HU 41. (ii) Difficulties in proving the “knowing” use in court Numerous consulted stakeholders (national rapporteurs, prosecutors and civil society organisations) link the limited application of provisions criminalising the knowing use of exploited services with the difficulty of proving knowledge in court with adequate and sufficient evidence. To address this challenge, a minority of stakeholders advocated for the removal of the knowledge requirement and called for criminalising the use of exploited services regardless of whether the user knows that the person is a victim of trafficking. Only one Member State (CY) has this strict liability standard for the use of services from victims of sexual exploitation. Two Member States (DE and FI) require knowledge or a standard similar to serious negligence. However, the data from these Member States that adopt stricter approaches does not show higher numbers of prosecution or convictions, in comparison to Member States that adopt the knowing use approach. OSCE indicated that limited capacity building among law enforcement officials may also contribute to the limited use of these provisions. (iii) Concerns that criminalising the use of exploited services could hinder detection and early identification of victims There are differing views among Member States and consulted stakeholders on whether criminalising the use of services is an effective strategy to reduce the demand that fosters trafficking. This was reflected in the public consultation, with respondents split almost evenly on whether this would (and would not) be an effective measure to reduce demand.

Several Member States and stakeholders are concerned that the criminalisation of the use of exploited services could hinder detection of the crime by pushing sexual and labour exploitation further underground, thereby hampering detection and prosecution, as well as early identification, support and access to justice especially for vulnerable victims. In consideration of the potential risks of criminalisation, stakeholders advocate focusing on improving access to information, on setting up effective complaints mechanisms and on ensuring safe reporting through structural reforms. OSCE considers criminalisation as only part of the broader approach to reduce demand. 4.1.1.4 Investigations, prosecutions, penalties and confiscation Key evaluation findings: ·The numbers of prosecutions and convictism has remained low, especially in comparison to the number of registered victims; this is also linked to the inherent nature of the crime, namely in many cases victims do not come forward. ·Criminal proceedings often mainly rely on victim testimony despite the requirement of the Directive to use also other evidence in case the testimony is not available. ·When the evidence is insufficient to convict for trafficking-related offences, traffickers are often convicted for offences that are easier to prove in court. ·Member States adopted different standards of penalties for trafficking offences since the Directive only sets minimum standards. ·The optional sanctions against legal persons in the Directive are not widely transposed and there is a lack of data regarding the application of these sanctions in practice. Prosecutions of legal persons are in general rare and the Directive has not resulted in greater action against legal persons. ·Although Member States have legislation allowing them to seize and confiscate proceeds of trafficking offences, seizures and confiscations are rare. Areas for improvement identified in relation to investigations, prosecutions and convictions: oData collection could be improved to better assess the effectiveness of the Directive in relation to investigations, prosecutions and convictions. oA wider variety of tools (including financial investigations and digital investigation tools) could be employed by law enforcement to ensure the collection of evidence other than victim testimony. oFinancial investigations should be strengthened to ensure better intelligence, evidence and tracing of the proceeds of the crime. oCooperation between Member States could be strengthened with a view to improving the collection of evidence other than victim testimony in cross-border cases, as well as for sharing good practices in case-building. oMember States could rely more of the support of Europol and Eurojust. Areas for improvement in relation to penalties: oData collection could improve to have a better understanding of what penalties are handed out in practice. oAll criminal sanctions provided in the Directive against legal persons could be transposed by Member States. oLaw enforcement and judicial authorities could receive targeted capacity building specialising on investigations and prosecutions of legal persons in relation to trafficking in human beings. Areas for improvement in relation to seizure and confiscation: oSeizing and confiscation could be resorted to more systematically, thus contributing to enhanced deterrence.  Investigations, prosecutions and convictions Article 9 of the Directive requires Member States to ensure that investigations into, or prosecutions of, trafficking offences are not dependent on reporting or accusations by a victim and that criminal proceedings may continue even if the victim has withdrawn his or her statement. As shown in Figure 2, the number of suspect increased from approximately 3 000 in 2013 to just under 8 000 in 2019. However, this is also a result of progressive improvements in the data collection. For instance, Italy did not report data on these indicators before 2017, and Italy alone recorded approximately 2 000 suspects in 2017 and 2018. Figure 2: Trends in headline criminal justice indicators related to THB cases (2013-2020) In the 2013-2020 period, the numbers of prosecutions and convictions have remained constantly low, especially in comparison with the number of victims, and consulted stakeholders expressed concerns of the culture of impunity for traffickers. The gaps in the available data seriously limit the evaluation of the effectiveness of the Directive. In addition, data reliability and comparability is hindered by the different approaches taken by the Member States in data reporting on criminal justice indicators. For example, one reported prosecution or conviction could either mean that one single individual has been prosecuted or convicted, or that there was one case (but it may have involved more than one individual). Areas hindering the full effectiveness of the Directive in relation to investigations, prosecutions and convictions (i) Law enforcement authorities and prosecutors require specific skills to build effective cases against traffickers Law enforcement authorities and prosecutors face difficulties in building successful cases on trafficking offences within the time limits and available resources. Investigations of trafficking offences are often lengthy and require specialised capacity and resources. The testimony provided by victims often constitutes the central piece of evidence and, if not supported with additional evidence, it may lead to an acquittal or a conviction for other offences. Further challenges concern the movement of victims, who may be no longer present in the territory of the state where the proceedings have been initiated. Trafficking cases often involve criminal organisations that rapidly move across borders together with the victims. Cross-border cases may face delays related to law enforcement and judicial cooperation between different Member States or with non-EU countries. The insufficient understanding or specialisation on trafficking may also lead to unsuccessful investigations or prosecutions. Therefore, the EU Strategy called on Member States to establish law enforcement and prosecution units specialised in trafficking. Moreover, the Commission is facilitating, together with Eurojust, the creation of a Focus Group of specialised prosecutors against trafficking in human beings. (ii) Further resources and knowledge are required to conduct financial investigations The EU legal and policy framework sets out a follow the money approach, including by conducting proactive financial investigations, including asset-tracing. Article 9(4) of the Directive requires Member States to take the necessary measures to ensure that effective investigative tools, such as those used in organised crime or other serious crime cases, are available for investigations and prosecutions of cases involving trafficking offences. Financial investigations are one of the most important tools in this regard. Tracing the financial flows allows to investigate the entire trafficking chain and gather evidence that could be produced in court and may help disrupting the actions of criminal networks. Most Member States conduct financial investigations in parallel or as part of trafficking cases. However, despite the importance of financial investigations in trafficking cases, the relevant authorities may lack capacity or expertise to conduct them. (iii) The collection of evidence (other than victim testimony) is currently insufficient Law enforcement authorities and prosecutors could better rely on sources of evidence other than victim testimony, such as financial investigations, surveillance and digital evidence. Labour inspectors could have a greater role in gathering evidence, as they are often mandated and trained to contribute to criminal investigations. (iv) Member States could rely more on the support of Europol and Eurojust Recital 5 of the Directive refers to the enhanced cooperation between Member States and Europol and Eurojust, which should facilitate coordinated cross-border investigations and prosecutions. It is advisable to involve Europol at the very beginning of THB investigations, especially in cases with suspects and victims are originating from outside the EU (e.g. Latin America and Western Balkans). Another significant aspect of cross border cooperation is also proven by the high dynamics of Europol supported operations resulting in an increasing number of action days with deployed Europol staff for support and the growing interest for collaboration under the Operational Task Force umbrella as the highest form of collaboration in the international investigations. Furthermore, the number of trafficking cases registered at Eurojust has increased, with 107 cases in 2013 and 163 in 2020, for an increase of over 30%. However, the number of investigations coordinated by Eurojust and of Joint Investigation Teams remains low in comparison with the statistics on registered victims and cases at the EU level. The number decreased from 183 in 2019, to 163 in 2020 to 140 in 2021. It is important to note that many trafficking cases involve only two Member States, while the threshold to involve Eurojust is three countries. Nevertheless, there is scope for Member States to rely more on the support of Eurojust, including on Joint Actions, Joint Investigation Teams and other cooperation tools.

 Seizure and confiscation of instrumentalities and proceeds from trafficking offences Article 7 of the Directive requires Member States to take necessary measures to ensure that their competent authorities are entitled to seize and confiscate instrumentalities of, and proceeds from, trafficking offences. Five Member States have specific provisions on seizure and confiscation of proceeds related to trafficking offences. In the other Member States, national criminal laws on seizure and confiscation apply to all crimes, including trafficking offences. Areas hindering the full effectiveness of the Directive in relation to seizure and confiscation There is no available data on the number of seizures and confiscations for the 2013-2020 period. In 2021, the European Parliament called on Member States to strengthen their mechanisms for seizing and confiscating assets and proceeds of trafficking offences. While in 2020, the Commission reported that Member States increased efforts to seize proceeds and instrumentalities, it also underlined that there is scope to increase the use of confiscation measures in light of the estimated continuous rise of profits from trafficking offences. The survey to the study also confirmed this, as 51% of respondents underlined that the Directive contributed only to a small extent, or not at all, to an increased number of confiscations.  Penalties According to Article 4(1), the Member States are required to set a maximum penalty of at least five years of imprisonment, which can be raised to at least 10 years under certain aggravating circumstances, such as when the offence was committed against a victim who was particularly vulnerable, which includes at least child victims or when it was committed within the framework of a criminal organisation within the meaning of Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime. Harmonising penalties across Member States ensures that the consequences for trafficking offences are equal or similar all over the EU. Article 4 has been largely transposed, although some Member States have not included all aggravating circumstances in their national law. Survey respondents considered that the penalties included therein are dissuasive, effective and proportionate. The Directive has resulted in changes in the national laws on penalties for trafficking offences. For example, the implementation of the Directive led Austria, Hungary and Spain to increase their penalties, and Belgium, Croatia, France, Latvia, Portugal and Slovenia have included more conducts into the trafficking offences. Areas hindering the full effectiveness of the Directive in relation to penalties (i) There is little available data on what penalties are handed out in practice Data on the numbers of penalties for trafficking offences is not systematically reported in the Member States. Figure 3: Examples of sentences imposed for trafficking in Member States ·In Cyprus, five defendants were prosecuted for trafficking for labour exploitation between 2015 and 2018, received penalties ranging from 12 months to 5 years. ·In Italy, three individuals were sentenced in 2019 to terms of 20 years, 17 years and 8 months, and 10 years. ·In Portugal, three sets of convictions are reported: in the first, 14 individuals were sentenced to prison terms ranging from 5 to 16 years; in the second, 22 persons were sentenced to prison terms ranging from 5 to 10 years; and in the third, 2 individuals were sentenced to 14 years in prison and another to 13 years. (ii) The low number of convictions prevents to assess the effectiveness of penalties The low number of convictions is due to several factors, including that traffickers may be convicted for crimes that are easier to prove in court, e.g. labour law offences, aggravated pimping, smuggling of migrants, infringements of social security requirements. This does not allow to properly assess the effectiveness of penalties. In practice, it also means that the high penalties for trafficking offences fail to express their full deterring potential, as traffickers are more likely to be convicted for offences carrying lower penalties. In view of this analysis, rather than increasing the severity of penalties, more emphasis could be placed on increasing the detection, prosecution and conviction rates. Further, from Eurojust’s experience, penalties applied in some Member States are sometimes lowered substantially by the mitigating circumstance of the lack of criminal record of the convicted person. Consideration could be given to address this situation, especially when the convicted person is part of an organised criminal group that committed the trafficking offence, making the criminal conduct particularly serious.  Sanctions against legal persons Member States are required by Article 5 of the Directive to ensure that legal persons be liable for trafficking offences. Article 6 requires Member States to implement effective, proportionate and dissuasive sanctions against legal persons, which shall include criminal or non-criminal fines. Article 6 also includes five optional sanctions which Member States can consider implementing, but are not required to: (a) exclusion from entitlement to public benefits or aid; (b) temporary or permanent disqualification from the practice of commercial activities; (c) placing under judicial supervision; (d) judicial winding-up; (e) temporary or permanent closure of establishments which have been used for committing the offence. Article 5 has been fully transposed to the extent the transposition is mandatory and the legislation of all Member States provides for at least administrative fines or criminal sanctions for legal persons involved in trafficking offences, in accordance with the minimum requirements of the Directive. Most Member States have transposed at least one of the optional sanctions included in Article 6 . Respondents to the public consultation were divided whether the Directive contributed for holding legal persons liable for THB. While the majority from public authorities found that the Directive contributed to it at least to moderate extent, civil society organisations assessed the contribution little and the trade union respondent as non-existent. Areas hindering the full effectiveness of the Directive in relation to sanctions on legal persons (i) No data is available on prosecutions and convictions of legal persons

There is no available data on prosecutions and convictions of legal persons for trafficking offences. Although the Commission guidelines on the biannual data collection include the provision of data on investigations, prosecutions and convictions of legal persons, no such data has been reported by Member States. (ii) The Directive has not resulted in greater action against legal persons Labour exploitation is the second most prevalent purpose of trafficking, and affects 20% of victims registered in the EU. It mainly concerns male victims, but female victims are increasingly affected. Labour exploitation often takes place in businesses requiring low-wage, intensive and seasonal work, such as forestry, food processing, hospitality, retail, carwash, beauty and cleaning services, transportation, housekeeping, domestic work. Consulted stakeholders consider that trafficking in high-risk sectors is problematic to a large or very large extent in the EU. This requires adequate action against legal persons that are used to commit trafficking offences. Although no official data is available on the number of prosecutions and convictions of legal persons, consulted stakeholders reported that these are extremely rare and 60% of survey respondents thought that the Directive has contributed to a moderate or small extent to holding legal persons liable. The non- or partial transposition of the optional sanctions of the Directive against legal persons hinder the effective criminal accountability of legal persons. 4.1.1.5 Protection, assistance and support to victims Key evaluation findings: ·The Directive has made a significant contribution to increasing the availability of protection, assistance and support measures for victims and to taking into account the gender specific dimension of the crime. ·Most Member States have identification procedures in place, which are applied by law enforcement authorities or with a multi-stakeholder approach. ·The EU Agencies have stepped up the activities to support identification. ·Not all Member States have a National Referral Mechanism and their structure varies across Member States. ·The Directive is considered to have contributed to improvements in protection and support to child victims. ·Some Member States do not explicitly include in their legislation the provision of assistance for victims with special needs. Areas for improvement in relation to the provision of assistance and support to victims are: oThe early identification of victims by Member States could be improved, as many victims remain undetected. oThe functioning of national referral mechanisms (formal and informal) could be enhanced. oIncreased consistency between National Referral Mechanisms and harmonisation at the EU of referral mechanisms as well as the facilitation of intra-EU referrals could be considered. oData on the number of victims benefitting from assistance and support could be more consistently recorded and reported by Member States. Areas for improvement in relation to the assistance, support and protection of child victims and victims with special needs: oMember States could improve the detection and early identification of child victims. oMember States could improve the number and quality of shelters for children. oMember States could enhance the integration of children into the whole national protection systems. oMember States could pay more attention to victims with special needs and Roma as well as LGBTIQ victims.  Early identification Article 11 of the Directive includes a range of measures to ensure assistance and support to victims. Recitals 17 to 22 provide further detail on the assistance and support that Member States should provide to victims of trafficking. Most Member States have transposed the provisions included in Article 11 and have national measures to provide assistance and support. The Directive has contributed to increase the range of services available in Member States for victims of trafficking. The Commission’s Transposition report (2016) highlighted that Member States have taken measures for the early identification, assistance, support and protection of victims of trafficking. Consulted stakeholders also considered that the Directive contributed towards enhancing access to support and protection, especially for women and girls victims of trafficking. However, the survey highlighted that the contribution of the Directive to the protection of victims of trafficking for the purpose of labour exploitation had been more limited, as compared to other groups of victims. Member States have put in place services for victims, including access to shelter, provision of medical care and psychological assistance, as well as setting-up of helplines providing relevant information to victims. Procedures for the identification of victims are in place in most Member States, and are applied by law enforcement authorities or in a multi-stakeholder approach. Having multiple authorities responsible for the early identification of presumed victims may hinder coordination, but it also reduces the chances that victim remains unnoticed. EU Agencies have taken steps to support the early identification of victims. CEPOL, EUAA and Frontex have developed training and handbooks to guide professionals from the Member State to better identify victims. Frontex officers are themselves trained to identify victims. Areas hindering the full effectiveness of the Directive in relation to early identification of, and support to, victims of trafficking (i) Early identification of victims is insufficient Early identification of victims is considered as a priority issue, as it triggers the provision of assistance and support services. In this sense, insufficient or late identification hinders the effective implementation of the Directive. Member States face challenges in the identification of potential victims, mainly because: ·Victims may be unwilling to report trafficking offences to law enforcement authorities, as they may fear that it may lead to disclose irregularities and put them at risk of prosecution or return . ·Only certain authorities are competent for the formal identification of victims. GRETA notes that there is a series of stakeholders who can identify victims of trafficking, not only the specialised investigation units dealing with THB offences but also migration and asylum officials, labour inspectors, social workers, health-care staff and NGOs.” ·The lack of harmonised indicators for the identification of (presumed) victims may lead to fragmented detection procedures and case management. (ii) Not all Member States have a National Referral Mechanism, and the structure of National Referral Mechanisms varies across Member States National Referral Mechanism are cooperative frameworks, involving relevant authorities and civil society organisations, aimed at identifying, assisting and supporting victims of trafficking. The Directive does not require Member States to create referral mechanisms. Article 11(4) requires Member States to “take the necessary measures to establish appropriate mechanisms aimed at the early identification of, assistance to and support for victims, in cooperation with relevant support organisations.” All Member States except Germany have developed such cooperation mechanisms. However, structures, procedures and other arrangement vary widely across the Member States. In some Member States, mechanisms for the identification of, and support to, victims are not regulated and remain informal. In most Member States, a central authority holds the responsibility for identification and may take the form of a specialised body (Bulgaria, Italy) or a of specialised law enforcement unit (Cyprus, Luxembourg). Numerous consulted stakeholders consider that Member States should establish easily accessible National Referral Mechanisms. Moreover, the recent increase in the percentage of registered victim citizens of non-EU countries shows how relevant cross-border and international cooperation are, as slow or insufficient coordination may cause difficulties for the receiving organisation. The lack of coordination can cause difficulties for the receiving organisations to prepare properly to support a victim.

(iii) Lack of a European Referral Mechanism The absence of harmonised procedures at European level hampers the effectiveness of cross-border identification and referral of victims. Although Member States engage in bilateral and multilateral forms of cooperation, clearer cooperation between the national authorities of Member States would facilitate assistance to victims and their reintegration in society. The EU Strategy 2021-2025 sets out as a key action that the Commission will enhance cooperation towards a European referral mechanism. (iv) The services provided in Member States may have limited scope, capacity or be insufficiently targeted to the needs of victims Although Member States have transposed Article 11 almost fully, gaps remain in the availability of services. Member States implement assistance and protection measures rather differently, for example in decisions (i) on whether to provide assistance to victims; (ii) on the period during which assistance has to be provided; and (iii) on the groups to whom assistance has to be provided. Furthermore, not all Member States provide sufficient access to specialist accommodation or psychological counselling. Factors affecting victims’ willingness to seek help include the provision of services in a language they understand, their fear of reprisals from traffickers and the availability of services for their family members. Respondents to the online survey highlighted that it is necessary to enhance Member States’ capacity to provide protection measures tailored to the specific needs of vulnerable groups (women, especially when pregnant; children; people with disabilities or addictions, etc.). In addition, there is a need to improve services for long-term recovery and rehabilitation. 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 evaluation is one of the Commission’s key actions set out in the EU Strategy on Victims’ Rights (2020 – 2025). The Commission continues to work on strengthening victims’ rights. It is currently preparing an impact assessment of the Victims’ Rights Directive and plans to propose a revision of the Directive in 2023. (v) Data concerning the number of persons provided with assistance support is not consistently reported Member States are not required to report on the number of victims receiving assistance. Some Member States report to the Commission these figures for the purposes of the progress reports but data is not collected systematically therefore data provided by Member States is not comparable.  Gender-sensitive approach to assistance and support Considering that 75% of the victims of trafficking identified in the EU are women and girls, EU strategic documents have taken the gender dimension into particular account. The Directive recognises the gender-specific phenomenon of trafficking and that female and male victims are often trafficked for different purposes. It also requires Member States to provide gender-specific assistance and support measures, where appropriate. Member States have introduced specific measures that provide tailored gender-sensitive support, including increased awareness-raising of healthcare staff to identify and support women and girl victims of trafficking for sexual exploitation; training and guidance on gender-based violence for immigration authorities; and assistance procedures especially addressing women and children in the hotspots. Member States have introduced gender-sensitive legislation and policy, notably as a result of the implementation of the Directive.  Child victims’ access to protection, assistance and support The scale of child trafficking remains “an overwhelming concern”. In 2013-2020, child victims constituted over a fifth of all registered victims of trafficking in the EU27 (21%). The Directive includes specific measures focusing specifically on ensuring child victims’ access to assistance, support, and protection. These include general protection measures (Articles 13 and 14), protection measures during criminal investigations and proceedings (Article 15), and measures for unaccompanied minors (Article 16). Although Member States have transposed and implemented the provisions related to child protection to different extents, the stakeholders consider that the Directive has contributed to enhancing child victims’ access to assistance and support. Areas hindering the full effectiveness of the Directive in relation to child victims’ rights to assistance, support and protection (i) Insufficient identification of child victims hinders the provision of assistance While Member States have made progress, there is scope to improve practical support to child victims on the ground. All European Commission Progress Reports raise concerns about child-specific measures for prevention, identification, and assistance, although they reported new actions on identification, guardianship and accommodation taken in some Member States . Concerns include: oThe disappearance of child victims, from shelters and care/foster homes . oThe lack of access to psychologists for children are sometimes placed in child protection institutions. oThe non-application of the presumption of childhood set out in Article 13(2).

oGuardianship, which according to Article 14(2) should start “from the moment the child is identified by the authorities”, is sometimes only appointed after the child victim has requested asylum. (ii) Limited number and capacity of shelters for children Another identified area for improvement concerns specialised shelters for child victims of trafficking. Shelters should have specialised trained staff, a confidential address and security measures, both physical and in terms of access to internet. Separation between trafficked women and their children into different assistance facilities should be avoided, in order to avoid further traumatisation . The Commission Communication on the protection of children in migration calls for improved specialised services for refugee girls, some of whom may be victims of trafficking. Placing children in institutions instead of foster families may increase the risk of being re-trafficked.  Assistance, support and protection of victims with special needs Article 11(7) of the Directive requires that Member States “attend to victims with special needs, where those needs derive, in particular from […] their health, a disability, a mental or psychological disorder they have, or a serious form of psychological, physical or sexual violence they have suffered’. The other provisions in Article 11 encompass necessary assistance and support for victims of trafficking. The Directive, however, does not require explicitly Member States to ensure the accessibility (i.e. including braille, sign languages and easy-to-read) of prevention material or the physical accessibility of shelters.The available data shows that the number of trafficked victims with disabilities is rising. Trends include trafficking of persons with physical or visual impairments for the purpose of forced begging, as visible disabilities have a stronger impact on public sympathy. Since the adoption of the Directive, there have been important improvements in creating national measures providing assistance to victims with special needs related to sexual or domestic violence. It remains, however, a challenge to provide suitable care for victims, who are also suffering in some sort of addiction (alcohol or drugs), which is often the case. Areas hindering the full effectiveness of the Directive in relation to assistance, support and protection of victims with special needs (i) Limited attention to, or understanding of, the needs of victims with disabilities While the Directive increased attention on assistance, support and protection of victims with special needs, there are still gaps in the tailored attention to their specific needs. In 2021, the European Parliament reported that the needs of victims with disabilities are often overlooked, calling on Member States to provide them with appropriate support . There are currently important gaps in the data collection on the number of victims with disabilities. This does not allow to gather information disaggregated by gender, age and disability, which would be important to allow Member States and other stakeholders to adopt age- and disability-appropriate protection and support measures.  Other vulnerable groups, including LGBTIQ and Roma victims of trafficking LGBTIQ people are a particularly vulnerable to trafficking. Research suggests that they are particularly at risk when they work in the sector of prostitution, where they may find themselves in precarious and dangerous contexts. However, there is no official data on the number of LGBTIQ victims of trafficking in the EU. The Commission Progress Reports highlighted that Roma people are at particular risk of becoming victims of trafficking . Their vulnerability is due to structural ethnic and gender discrimination, poverty, social exclusion, lack of access to education and employment and domestic violence . Despite the lack of official data about trafficking of Roma people, one study from 2011 conducted in Bulgaria, Czech Republic, Hungary, Romania and Slovakia indicates that trafficking in persons affects Roma disproportionately. A 2016 Europol report identified the particular vulnerability of Roma communities, especially in related to trafficking for forced criminality or sham marriages. The Directive strengthened the awareness of the specific needs of these groups leading to targeted prevention activities, in particular education and awareness raising programs in certain Member States. Areas hindering the effectiveness of the Directive in relation assistance, support and protection to vulnerable groups, including LGBTIQ and Roma people There have been calls, including by the European Parliament , for increased EU-level action to address the particular needs and situations of vulnerable categories of people, including LGBTIQ and Roma people. The third European Commission progress report suggests there have been limited efforts to address the particular vulnerabilities of Roma victims . The European Parliament also called for increasing the provision of specific tailored services (which was included in the EU Strategy on Combatting Trafficking in Human Beings 2021-2025). Similarly, interviewees stated that more could be done to support victims whose experiences do not correspond to the common perceptions of trafficking victims . 4.1.1.6 Protection, assistance and support to victims involved in the criminal justice system Key evaluation findings: ·While all Member States provide access to witness protection programmes, they appear to be used infrequently for victims of trafficking and may be unsuitable for vulnerable victims. Areas for improvement in relation to victims involved in the criminal justice procedures: oMember States could improve criminal procedures in order to avoid secondary victimisation of the victim. The assessment of the individual needs of the victim could be more consistently applied. oMember States could increase awareness of the available victim protection measures. Protection of victims of trafficking in human beings in criminal investigation and proceedings Article 12 of the Directive obliges Member States to protect victims in criminal proceedings. Under Article 12(3), victims receive the appropriate protection on the basis of an individual risk assessment, which includes access to witness protection programmes or other similar measures. Article 12(4) of the Directive also requires Member States to protect victims of trafficking from secondary victimisation and further trauma during the criminal investigations and proceedings. Member States are active in training of professionals and building specialist facilities (such as interrogation rooms), and that it is common for the statements of victims of trafficking to be recorded in advance (and later played in court) to avoid personal attendance at court. Some Member States have adopted the holistic “Barnahus” model for supporting child victims.

Areas hindering the effectiveness of the Directive with regard to the protection of victims of trafficking in human beings in criminal investigation and proceedings (i)Witness protection programmes appear to be used infrequently for victims of trafficking While all Member States have transposed Article 12(3), witness protection does not appear to be widely used for trafficking victims, although there is very limited information available. Witness protection programmes may not always be recommended for trafficking victims, as they often disconnect victims from dependents and support systems . (ii) Inconsistent application of measures to prevent contact with the defendant and unnecessary questioning Secondary victimisation was raised as a major concern by several stakeholders . Desk research showed that protocols and guidelines to prevent victims repeating their experiences were ‘not consistently found’ across the Member States . This is also true of protection for child victims . Examples of violations of Article 12(4) of the Directive were reported to GRETA, including cases of victims experiencing “visual contact with the accused, testimonies in open court and unnecessary questioning into [...] private life” . 4.1.1.7 Victim compensation and non-prosecution Key evaluation findings: ·The Directive has contributed to legislative and policy developments enabling victims to access and exercise their rights to assistance, including compensation, in Member States. ·However, the award of compensation is rare and often hindered by administrative obstacles, lack of legal aid and the duration of criminal trials ·While all Member States have adopted measures for the non-prosecution and non-punishment of victims of trafficking for their involvement in criminal activities which they were compelled to commit as a direct consequence of being trafficked, restrictive interpretations tend to prevail among national authorities. Areas for improvement identified in relation to compensation and the non-prosecution of victims: oMember States could take further efforts in order to improve access to compensation and the application of non-prosecution. Access to compensation Article 17 of the Directive requires Member States to ensure that victims of THB have access to existing schemes of compensation to victims of violent crimes of intent. All but two Member States have fully transposed Article 17 of the Directive. Such measures include compensation for non-material damages, such as physical and psychological suffering dual system of compensation, fund for victims of violent crimes or other special compensation measures. The Directive has made an important contribution to increasing access to compensation with almost 80% of survey respondents reporting that the Directive had contributed to increased access to compensation. This is supported by the Commission second progress report which found that, as a result of the Directive (in combination with the Residence Permits, Victims’ Rights and Compensation Directive), significant legislative and policy developments enabling victims to access and exercise their rights to assistance, including compensation, had been enacted . Areas hindering the effectiveness of the Directive with regard to the access to compensation by the victim (i) The award of compensation is rare and often hindered by administrative obstacles, lack of legal aid and the duration of criminal trials While no data is available on the number of claims that were made or that were successful, or the amount of compensation awarded to victims, stakeholders underlined that in practice, compensation is rare. Most stakeholders reported that compensation schemes in their Member States had been effective to a ‘small’ or ‘moderate’ extent. While some Member States reported an increase in funding for state compensation (e.g. IT), GRETA stated that the majority of Member States needed to improve existing legislation on both state compensation and compensation from perpetrators. Compensation is often awarded at the end of the criminal proceedings, which can last for years. The COVID-19 pandemic has worsened the situation, with delayed court hearings, longer police investigations, etc. . The awarding of compensation can also be linked to victims’ capacity to prove their status as victim of trafficking, which can prove particularly difficult when there is no court case against the trafficker . Moreover, victims often face administrative obstacles and are not always provided with free legal aid in order to make their claim, which makes the process more challenging . (ii) Victims may have returned to their country of origin, or may have irregular migration status It is particularly difficult for victims who have returned to their country of origin before a decision is taken on their compensation claim, or for undocumented migrants to receive compensation.  Non-prosecution of victims for their involvement in criminal activities

Article 8 of the Directive requires Member States to ensure that competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking for their involvement in criminal activities which they have been compelled to commit as a result of being trafficked. All Member States but one have transposed Article 8 into national law. Around half of Member States explicitly refer to non-prosecution of THB victims in their national law, while others refer to the non-prosecution of a person who was compelled, threatened or coerced to commit a criminal act. Victims can be forced by their traffickers to engage in illegal conducts such as forced prostitution, in drug production or trafficking, petty crime, possession or the use of fraudulent documents or entering another country in a manner that does not comply with its immigration laws. The language of the Directive allows for a certain degree of discretion, as it only requires national authorities to be entitled not to prosecute or impose penalties on a person who was compelled to engage in criminal activities. Areas hindering the effectiveness of the Directive with regard to the non-prosecution of victims Even though national authorities are entitled not to prosecute and punish victims for their engagement in forced criminal activities, this is not consistently applied in practice, and approaches differ across Member States. The Commission’s progress reports highlighted that Member States did not provide sufficient information on the application of the non-prosecution and non-punishment principles and that victims of trafficking for sexual exploitation and forced criminal activities were at high risk of being punished. This was also underlined as a particular issue in