Proposal for a Council Framework Decision on combating trafficking in human beings
Date: 2000-12-21
Institutions: European Commission
Subjects: administrative sanction, living conditions, prostitution, trafficking in human beings, working conditions

C 62 E/324

EN

Official Journal of the European Communities

27.2.2001

Proposal for a Council Framework Decision on combating trafficking in human beings

(2001/C 62 E/24)

COM(2000) 854 final/2 (cid:17) 2001/0024(CNS)

(Submitted by the Commission on 22 January 2001)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in
particular Articles 29, 31(e) and 34(2)(b) thereof,

Having regard to the proposal of the Commission,

Having regard to the opinion of the European Parliament,

Whereas:

(1) The Action Plan of the Council and the Commission on
how to best implement the provisions of the Treaty of
Amsterdam on an area of freedom, security and justice (1),
the Tampere European Council on 15-16 October 1999,
the Santa Maria da Feira European Council on 19-20
June 2000, the Commission in the Scoreboard (2) and the
European Parliament in its Resolution of 19 May 2000 (3)
indicate or call for legislative action against trafficking in
human beings,
incrimi-
nations and sanctions.

including common definitions,

(2) The Joint Action of 24 February 1997 concerning action to
combat trafficking in human beings and the sexual exploi-
tation of children (4) needs to be followed by further legis-
lative action addressing the divergence of legal approaches
in the Member States and contributing to the development
of an efficient judicial and law enforcement cooperation
against trafficking in human beings.

(3) Trafficking in human beings constitute serious violations of
fundamental human rights and human dignity and involves
ruthless practices such as the abuse and deception of
vulnerable persons, as well as the use of violence, threats,
debt bondage and coercion.

(5) It is necessary that the serious criminal offence trafficking
in human beings be addressed by a comprehensive
law
approach in which constituent elements of criminal
common to all Member
effective,
proportionate and dissuasive sanctions, form an integral
part together with the widest possible judicial cooperation;
subsidiarity and
in accordance with the principles of
proportionality this Framework Decision confines itself to
the minimum required in order to achieve those objectives
at European level and does not go beyond what
is
necessary for that purpose.

including

States,

(6) It

is necessary to introduce sanctions on perpetrators
trafficking in human
sufficiently severe to allow for
beings to be included within the scope of
instruments
already adopted for the purpose of combating organised
crime such as the 98/699/JHA Joint Action (5) on money
laundering, the identification, tracing, freezing, seizing and
confiscation of the instrumentalities and the proceeds from
crime and the 98/733/JHA Joint Action (6) on making it a
criminal offence to participate in a criminal organisation.

(7) This Framework Decision should contribute to the fight
against and prevention of trafficking in human beings by
complementing the instruments adopted by the Council
such as the 96/700/JHA Joint Action (7) establishing an
incentive and exchange programme for combating trade
in human beings and sexual exploitation of children
the 96/748/JHA Joint Action (8) extending the
(STOP),
mandate given to the Europol Drugs Unit, the Decision
Parliament
of
293/2000/EC (9) on the Daphne programme on preventive
measures to fight violence against children, young persons
the Joint Action 98/428/JHA (10) on the
and women,
creation of a European Judicial Network, the Joint Action
96/277/JHA (11), concerning a framework for the exchange
of
to improve judicial cooperation
between the Member States of the European Union and
the Joint Action 98/427/JHA (12) on good practice in
mutual legal assistance in criminal matters,

liaison magistrates

European

Council

and

the

the

(4) The important work performed by international organi-
sations, in particular the UN, must be complemented by
that of the European Union.

(1) OJ C 19, 23.1.1999.
(2) COM(2000) 167 final, p. 2.4, Management of migration flows and

p. 4.3 Fight against certain forms of crime.

(3) A5-0127/2000.
(4) OJ L 63, 4.3.1997.

(5) OJ L 333, 9.12.1998, p. 1.
(6) OJ L 351, 29.12.1998, p. 1.
(7) OJ L 322, 12.12.1996.
(8) OJ L 342, 31.12.1996.
(9) OJ L 34, 9.2.2000.
(10) OJ L 191, 7.7.1998, p. 4.
(11) OJ L 105, 27.4.1996.
(12) OJ L 191, 7.7.1998.

27.2.2001

EN

Official Journal of the European Communities

C 62 E/325

HAS ADOPTED THIS FRAMEWORK DECISION:

including by terms of imprisonment with a maximum penalty
that is not less than six years.

Article 1

Offences concerning trafficking in human beings for the
purpose of labour exploitation

Each Member State shall take the necessary measures to ensure
that the recruitment, transportation or transfer of a person,
reception and the
including harbouring and subsequent
exchange of control over him or her is punishable, where
the
that person have been and
continue to be suppressed for the purpose of exploiting him
or her in the production of goods or provision of services in
governing working
labour
infringement
conditions, salaries and health and safety, and:

fundamental

rights of

standards

of

(a) use is made of coercion,

force or

threats,

including

abduction, or

(b) use is made of deceit or fraud, or

(c) there is a misuse of authority, influence or pressure, or

(d) there is another form of abuse.

Article 2

Offences concerning trafficking in human beings for the
purpose of sexual exploitation

Each Member State shall take the necessary measures to ensure
that the recruitment, transportation or transfer of a person,
including harbouring and subsequent
reception and the
exchange of control over him or her is punishable, where
the purpose is to exploit him or her in prostitution or in
pornographic performances or in production of pornographic
material, and:

(a) use is made of coercion,

force or

threats,

including

abduction, or

(b) use is made of deceit or fraud, or

(c) there is a misuse of authority, influence or pressure, or

(d) there is another form of abuse.

Article 3

Instigation, aiding, abetting, and attempt

Each Member State shall take the necessary measures to ensure
that the instigation of, aiding, abetting or attempt to commit
an offence referred to in Articles 1 and 2 is punishable.

Article 4

Penalties and aggravating circumstances

1.
Each Member State shall take the necessary measures to
ensure that an offence referred to in Articles 1, 2, and 3 is
punishable by effective, proportionate and dissuasive penalties,

each Member State

2. Without prejudice to additional definitions in national
the necessary
legislation,
measures to ensure that an offence referred to in Articles 1,
2, and 3 is punishable by terms of
imprisonment with a
maximum penalty that is not less than ten years when:

shall

take

@ it involves particular ruthlessness, or

@ it generates substantial proceeds, or

@ it is committed within the framework of a criminal organi-

sation.

Article 5

Liability of legal persons

1.
Each Member State shall take the necessary measures to
ensure that legal persons can be held liable for an offence
referred to in Article 1, 2 and 3, committed for their benefit
by any person, acting either individually or as part of an organ
of the legal person, who has a leading position within the legal
person, based on:

(a) a power of representation of the legal person, or

(b) an authority to take decisions on behalf of the legal person,

or

(c) an authority to exercise control within the legal person.

2.
Apart from the cases already provided for in paragraph 1,
each Member State shall take the necessary measures to ensure
that legal persons can be held liable where the lack of super-
vision or control by a person referred to in paragraph 1 have
rendered possible the commission of an offence referred to in
Articles 1, 2, and 3 for the benefit of that legal person by a
person under its authority.

Liability of legal persons under paragraphs 1 and 2 shall
3.
not exclude criminal proceedings against natural persons who
are perpetrators,
in an offence
instigators or accessories
referred to in Articles 1, 2, and 3.

4.
For the purpose of this Framework Decision legal person
shall mean any entity having such status under the applicable
law, except for States or other public bodies in the exercise of
State authority and for public international organisations.

Article 6

Sanctions on legal persons

Each Member State shall take the necessary measures to ensure
that a legal person held liable pursuant
to Article 5 is
punishable by effective, proportionate and dissuasive sanctions,
which shall
include criminal or non-criminal fines and may
include other sanctions, such as:

C 62 E/326

EN

Official Journal of the European Communities

27.2.2001

(a) exclusion from entitlement to public benefits or aid, or

Article 9

(b) temporary or permanent disqualification from the practice

of commercial activities, or

(c) placing under judicial supervision, or

(d) a judicial winding-up order, or

(e) temporary or permanent closure of establishments which

have been used for committing the offence.

Article 7

Jurisdiction and prosecution

1.
Each Member State shall take the necessary measures to
establish its jurisdiction over an offence referred to in Articles
1, 2, and 3 where:

(a) the offence is committed in whole or in part within its

territory, or

(b) the offender is one of its nationals, or

(c) the offence is committed for the benefit of a legal person

established in the territory of that Member State.

2.
A Member State may decide that it will not apply or that
it will apply only in specific cases or circumstances, the juris-
diction rules set out in paragraphs 1(b) and 1(c) as far as the
offence is committed outside its territory.

A Member State which, under its laws, does not extradite
3.
its own nationals shall take the necessary measures to establish
its jurisdiction over and to prosecute, where appropriate, an
offence referred to in Articles 1, 2, and 3 when it is committed
by its own nationals outside its territory.

4. Member States shall inform the General Secretariat of the
Council and the Commission accordingly where they decide to
apply paragraph 2, where appropriate with an indication of the
specific cases or circumstances in which the decision applies.

Article 8

Victims

Each Member State shall ensure that a victim of an offence
provided for in this Framework Decision is given adequate
In
legal protection and standing in judicial proceedings.
particular Member States shall ensure that criminal
investi-
gations and judicial proceedings do not cause any additional
damage for a victim.

Cooperation between Member States

1.
In accordance with the applicable conventions, multi-
lateral or bilateral agreements or arrangements, Member
States shall afford each other mutual assistance to the widest
extent possible in respect of judicial proceedings relating to the
offences provided for in this Framework Decision.

2. Where several Member States have jurisdiction over the
offences envisaged by this Framework Decision, those States
shall consult one another with a view to coordinating their
action in order to prosecute effectively. Appropriate use shall
be made of existing cooperation mechanisms, such as the
liaison magistrates and the European Judicial Network.

3.
For the purpose of exchange of information relating to
the offences referred to in Articles 1, 2, and 3, Member States
shall establish operational points of contact or make use of
In particular, Member
existing cooperation mechanisms.
States shall ensure that Europol, within the limits of
its
mandate, is fully involved.

Each Member State shall inform the General Secretariat of
4.
the Council and the Commission of its appointed point of
contact for the purpose of exchanging information pertaining
to trafficking in human beings. The General Secretariat shall
inform all other Member States about the appointed points of
contact.

Article 10

Implementation

1. Member States shall
take the necessary measures to
comply with this Framework Decision on 31 December 2002
at the latest.

2.
By the same date, the Member States shall transmit to the
General Secretariat of the Council and to the Commission the
text of the provisions transposing into their national law the
obligations imposed on them under this Framework Decision.
The Council will, by 30 June 2004 at the latest, on the basis of
a report established on the basis of this information and a
written report
transmitted by the Commission, assess the
extent
to which Member States have taken the necessary
measures in order to comply with this Framework Decision.

Article 11

Repeal of the 97/154/JHA Joint Action

The Joint Action of 24 February adopted by the Council on the
basis of Article K.3 of
the Treaty on European Union
concerning action to combat trafficking in human beings and
sexual exploitation of children 1997 is
repealed by this
Framework Decision.

Article 12

Entry into force

This Framework Decision shall enter into force on the day of
its publication in the Official
the European
Communities.

Journal

of