Communication from the Commission to the Council and the European Parliament - Combating trafficking in human beings and combating the sexual exploitation of children and child pornography
Date: 2000-12-21
Institutions: European Commission
Subjects: child, child protection, pornography, prostitution, trafficking in human beings

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 22.1.2001
COM(2000) 854 final /2

2001/0024 (CNS)
2001/0025 (CNS)

CORRIGENDUM:
- ajout de références interinstitutionnelles;

concerne uniquement les versions linguistiques
FR- DE et EN;

-annule et remplace les pages 1,14 et 29 du

document COM(2000)854 final du 21.12.2000.

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE
EUROPEAN PARLIAMENT

Combating trafficking in human beings and combating the sexual exploitation of
children and child pornography

Proposal for a

COUNCIL FRAMEWORK DECISION

on combating trafficking in human beings

Proposal for a

COUNCIL FRAMEWORK DECISION

on combating the sexual exploitation of children and child pornography

(presented by the Commission)

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE
EUROPEAN PARLIAMENT

Combating trafficking in human beings and combating the sexual exploitation of
children and child pornography;
two proposals for framework decisions

1.

INTRODUCTION

including child
Trafficking in human beings and the sexual exploitation of children,
pornography are abhorrent and increasingly worrying phenomena. Trafficking in human
beings is not only an episodic phenomenon, affecting a few individuals, but of structural
nature with extensive implications on the social, economic and organisational fabric of our
societies. The phenomenon is facilitated by globalisation and by modern technologies.
Globally, tens of thousands of human beings, especially women and children, are trafficked
for exploitative purposes each year. Numerous cases of sexual exploitation of children and
child pornography are reported. The Member States of the European Union and the candidate
countries are much affected by these scourges to society. A variety of measures, including
emphatic legal protection to all individuals, and preventive measures, as well as measures to
ensure adequate protection of and assistance to the victims, are required. Measures should
address the whole trafficking chain of recruiters, transporters, exploiters and clients. The
underlying root causes of trafficking in human beings, such as poverty, including feminisation
of poverty, discrimination against women, unemployment and lack of education and access to
resources must be addressed in order to establish and maintain a comprehensive policy. In
particular, women and children are vulnerable to become victims of trafficking due to inter
alia lack of education and professional opportunities. A comprehensive policy therefore needs
to include a clear gender perspective.

Against this background, the European Union has been actively engaged since 1996 in
developing a comprehensive and multidisciplinary approach towards the prevention of and
the fight against trafficking in human beings and the sexual exploitation of children. It should
for instance be recalled that the Council, with the active involvement of the Commission and
the European Parliament, has set up the STOP1 incentive and exchange programme and the
DAPHNE Programme2
to combat violence against women and children. The STOP
Programme has in particular developed a multidisciplinary approach in which all relevant
actors are involved; in addition to the emphasis on law enforcement co-operation, special
importance is attached to non-governmental organisations and their crucial role in a
comprehensive and successful approach against trafficking and the sexual exploitation of
children. The importance of non-governmental organisations is also underlined by the
DAPHNE Programme which is specifically designed to support an approach focusing on the
non-governmental organisations and their work to protect and assist women and children who
are the victims of violence.

1

2

OJ L 322, 12.12.1996
Decision N° 293/2000/EC of the European Parliament and of the Council of 24.1.2000; OJ L34/1,
9.2.2000

2

Furthermore, in February 1997, the Council adopted a Joint Action3 concerning action to
combat trafficking in human beings and the sexual exploitation of children in which Member
States agreed to review their relevant criminal law so as to ensure the criminalisation of
certain behaviours and to encourage judicial co-operation. The European Union´s initiatives
have also contributed substantially to the raising awareness of these phenomena and to action
at world wide level as illustrated by the recent, successful, conclusion of the United Nations-
protocol on trafficking in human beings supplementing the Convention on Transnational
Organised Crime.

At European level further impetus was given by Article 29 of the Amsterdam Treaty, which
contains an explicit reference to trafficking in human beings and offences against children.
The “Vienna Action Plan”4 on the implementation of the Treaty´s provisions on an area of
freedom, security and justice, consequently also addresses these matters. Furthermore,
concrete initiatives in these fields were requested in the conclusions of the Tampere European
Council on 15-16 October 1999 (points 23 and 48). The European Council expressed, in
its determination on two aspects. First by combating those who engage in
particular,
trafficking in human beings and economic exploitation of migrants. The Council was invited
to adopt by the end of 2000 legislation foreseeing severe sanctions against these serious
crimes. Secondly by considering that efforts to agree on common definitions, incriminations
and sanctions should, in the first instance, be focused on, inter alia, trafficking in human
beings, sexual exploitation of children and high tech crime. Hereafter, the Santa Maria da
Feira European Council on 19-20 June 2000 called on the incoming French Presidency and
the Commission to take forward urgently the Tampere conclusions in this area.

The Commission, for its part, indicated in the Scoreboard5 to review progress on the creation
of an area of freedom, security and justice in the European Union, its intention to table
proposals by the end of 2000, with a view to the adoption of measures establishing, in
particular, common rules relating to the constituent elements of criminal law linked with
trafficking in human beings and the sexual exploitation of children, with particular reference
to child pornography on the Internet. Such action was also called for by the European
Parliament in several resolutions6.

Apart from legislative initiatives, the Commission intends to continue a range of actions in the
fight against trafficking in human beings and the sexual exploitation of children. The STOP
and DAPHNE programmes are central to this policy and, the Commission has recently put
forward a proposal for a Council Decision to extend the STOP Programme for a period of two
years. This would allow for focused effort involving the candidate countries as well as co-
operation with third countries and international organisations to prevent and combat
trafficking in human beings and the sexual exploitation of children. In line with previous
policy papers7, budget lines targeting the candidate countries and third countries will also be
used to support actions such as information campaigns to prevent trafficking in human beings
and to address the underlying root causes of trafficking. One concrete example of this is the
to non-
European initiative for Democracy and Human Rights which provides support

3

4

5

6

7

OJ L 063, 4.3.1997
OJ C 19, 23.1.1999
COM (2000) 167 final, 24.3.2000
E.g. Resolution of 19 May 2000 on the Communication « For further actions in the fight against
trafficking in women » (A5-0127/2000) and Legislative Resolution of 11 April 2000 on the initiative of
the Republic of Austria with a view to the adoption of a Council Decision to combat child pornography
on the Internet (A5-0090/2000)
COM (96) 567 final of 20.11.1996 and COM (98) 726 final of 9.12.1998

3

governmental and international organisations working to promote the human rights of women,
children and other vulnerable groups in third countries. In the field of child pornography the
Action Plan against illegal and harmful content on the Internet8 will be applied. In accordance
with the Council Recommendation 98/560/EC of 24 September 19989 on the development of
the competitiveness of the European audio-visual and information services industry by
promoting national frameworks aimed at achieving a comparable and effective level of
protection of minors and human dignity, the Commission also examines the measures taken
by the Member States, in particular in the area of self regulation to promote the establishment
of an environment of confidence in the fight against the distribution of illegal contents as
regards human dignity in audio-visual and on-line services.

2.

THE PROPOSALS BY THE COMMISSION

Since the issues of trafficking in human beings and the sexual exploitation of children have
been high on the political agenda of the European union, progress has been noted in Member
States´ policies and legislation. However, despite these positive developments the existing
discrepancies and divergences make it difficult, in practice, to develop an efficient judicial
and law enforcement co-operation in these areas. In preparing the present proposals, the
Commission has considered that the main reason why the implementation of the Joint Action
of February 1997 failed to achieve its objectives is to be found in the absence of commonly
adopted definitions, incriminations and sanctions in the Member States´ penal legislation. The
aim of the Commission´s present proposals on combating trafficking in human beings and the
sexual exploitation of children is to remedy this unsatisfactory situation.

As far as the proposal for a Framework Decision on combating trafficking in human beings is
concerned, the Commission wishes to underline that the objective is to cover not only
offences concerning trafficking in human beings for the purpose of sexual exploitation, but
also offences concerning trafficking in human beings for the purpose of labour exploitation.
Since it is crucial to address different forms of criminal movements of people that are
the
operated by international criminal organisations,
Commission´s proposal on trafficking in human beings for exploitative purposes is to be seen
initiatives presented by the French Presidency10 on
as to complement
facilitation of illegal entry, stay and residence.

it should also be underlined that

the important

As regards the Commission´s present proposal for a Framework Decision on combating
sexual exploitation of children and child pornography, the objective is, in particular, to
improve the provisions of the Joint Action of February 1997 by ensuring that there are no safe
havens for child sex offenders suspected of having committed an offence in a country other
than their own.

Furthermore, the proposal is intended to address, as a matter of urgency, the worrying issue of
child pornography on the Internet so as to illustrate the European Union´s determination to
implement common penal provisions in this field and contribute to provide Internet-users with
a safe and crimeless environment.

Finally, the Commission wishes to highlight the fact that, where appropriate, its proposals
have taken onboard the work reflected at international level by the United Nations-protocol

8

9

10

OJ L 33 6.2.1999
OJ L 270, 7.10.1998
OJ C 253, 4.9.2000, proposals not yet adopted

4

on trafficking in human beings and by the future Cyber Crime Convention developed within
the Council of Europe. The Commission considers that it is important that the European
Union should, through swift adoption of the present proposals by the Council, demonstrate
clearly its will to take on the fight against these unacceptable violations of human rights and
human dignity by providing a common approach on criminal law and a further developed law
enforcement and judicial co-operation.

Attached to this Communication are:

•

•

one proposal for a Framework Decision on combating trafficking in human beings,

one proposal for a Framework Decision on combating sexual exploitation of children and
child pornography.

5

Proposal for a

COUNCIL FRAMEWORK DECISION

on combating trafficking in human beings

6

EXPLANATORY MEMORANDUM

1.

INTRODUCTION

On 24 February 1997 the Council adopted a Joint Action concerning action to combat
trafficking in human beings and the sexual exploitation of children1. The Joint Action covers
a wide range of topics such as definitions (without prejudice to more specific definitions in
the Member States´ legislation), jurisdiction, criminal procedure, assistance to victims and
police and judicial co-operation. Through the Joint Action, the Member States undertook to
review their existing laws with a view to providing that trafficking in human beings and the
sexual exploitation of children were criminal offences.

Since the adoption of the Joint Action in 1997, actions and initiatives against trafficking in
human beings have developed considerably in number and in substance at the level of the
European Union as well as at local, regional and international level in a wider context. That
said,
legal approaches in the Member States clearly
demonstrates the need for further action against the menace of trafficking.

the continuing divergence of

Furthermore, Article 29 of the Amsterdam Treaty provides an explicit reference to trafficking
in human beings. The Vienna Action Plan2 and the Tampere European Council made a clear
call for further legislative action against trafficking. Legislative action is also indicated in the
Commission´s Scoreboard3. At the wider international level, one of the most significant
developments has been the United Nations Convention on Transnational Organised Crime
with its two supplementing protocols targeting smuggling of migrants and trafficking in
persons. The Commission has participated actively in the elaboration of these instruments and
important elements of the protocol on trafficking are reflected in this proposal, albeit taken
further.

The specific character of an area of freedom, security and justice to be created within the
European Union should enable the Member States to develop a Framework Decision in which
certain aspects of criminal law and judicial co-operation are taken further than has been
possible through instruments available before the entry into force of the Amsterdam Treaty
and instruments developed at a wider international level. A Framework Decision should, for
instance, address more precisely, issues such as criminalisation, penalties and other sanctions,
aggravating circumstances, jurisdiction and extradition.

In conclusion, the Commission believes that a further response to the issue of trafficking is
required at the level of the European Union. Use of a Framework Decision, an instrument
introduced by the Amsterdam Treaty, will reinforce a common approach of the European
Union in this area and fill gaps in existing legislation. The need for a clear common approach
on trafficking should also be viewed against the background of the future enlargement of the
European Union. The Commission has therefore, as announced in the Scoreboard, decided to
put forward a proposal for a Framework Decision on the approximation of the criminal laws
of the Member States, including penalties, concerning trafficking in human beings.

1

2

3

OJ L 063, 4.3.1997
OJ C 19, 23.1.1999
COM (2000) 167 final, 24.3.2000

7

The proposal also includes provisions on horizontal judicial issues such as jurisdiction and co-
operation between Member States. The proposal covers trafficking in human beings for the
purposes of labour and sexual exploitation, not including sexual exploitation of children and
child pornography which will be covered by a separate proposal. The separation into two
Framework Decisions will allow the Council to focus on trafficking in human beings for the
purposes of labour as well as sexual exploitation.

2.

TRAFFICKING AND SMUGGLING

The Commission is of the view that
the division into one United Nations-protocol on
trafficking in human beings and one United Nations-protocol on smuggling of migrants
highlights the complexity of different forms of criminal movements of people that are
operated by international criminal organisations. While smuggling of migrants could be said
to constitute a crime against the state and often involves a mutual interest between the
smuggler and the smuggled, trafficking in human beings constitute a crime against a person
and involves an exploitative purpose.

The Commission is therefore of the view that the French initiatives4 on facilitation of
unauthorised entry, movement and residence are related to smuggling of migrants. This
proposal, on the other hand, relates to trafficking in persons with its characteristics. The
Commission´s conclusion is that the French initiative on facilitation and this proposal on
trafficking complement each other and that they both contribute to a European-wide fight
against severe types of criminal activities by international criminal organisations.

3.

LEGAL BASIS

This proposal for a Framework Decision concerns approximation of the laws and regulations
of the Member States in the area of police and judicial co-operation in criminal matters. It
also to a substantial part concerns “minimum rules relating to the constituent elements of
criminal acts and to penalties in the field of organised crime”. The legal basis indicated in the
preamble of the proposal is therefore Articles 29 with an explicit reference to trafficking in
human beings, 31(e) and 34(2)(b) of the Treaty on European Union. The proposal will not
entail financial implications for the budget of the European Communities.

4.

THE FRAMEWORK DECISION: ARTICLES

Article 1 (Trafficking in human beings for the purpose of labour exploitation)

Article 1 puts on the Member States an obligation to ensure that trafficking in human beings
for the purpose of labour exploitation is punishable.

Trafficking is defined in the Article to include the recruitment, transportation, or transfer of a
person, including harbouring and subsequent reception of and the exchange of control over
him or her for the purpose of exploiting him or her in the production of goods or provision of
services. This definition reflects the key elements of one of the parts constituting the
definition of trafficking in the United Nations-protocol on trafficking in human beings.

4

OJ C 253, 4.9.2000, proposals not yet adopted

8

Labour exploitation is defined in the Article to be an infringement of labour standards
governing working conditions, salaries and health and safety. The reference to labour market
regulations is in no way intended to affect the labour market regulations of the Member
States. It is intended to establish a benchmark on the basis of existing regulations for what is
an acceptable standard on the labour market. It should be underlined that this definition must
be viewed upon in conjunction with the definition of trafficking and qualifying elements such
as coercion. In addition the offence includes a requirement that the fundamental rights of the
person have been and continue to be suppressed, for instance the rights of the Charter of
Fundamental Rights proclaimed by the Nice European Council. This requirement includes
also the perspective of the victim´s fundamental rights and not only the conduct of the
perpetrator as in the qualifying elements mentioned below. It also expresses a requirement for
a continuing suppression of the fundamental rights of a person.

As regards the elements qualifying trafficking a person for the purpose of labour exploitation
as a criminal offence, points (a) and (b) corresponds to the UN-protocol on trafficking. Points
(c) and (d), which partly corresponds to the United Nations-protocol, cover forms of taking
advantage or exercising pressure when a person is trafficked. The objective is to ensure a
comprehensive coverage of criminal conduct. This includes practices such as debt bondage in
which a person has no choice but to submit to the pressure. It also includes the abuse of the
vulnerability of persons, for instance of persons being mentally or physically disabled or of
persons illegally remaining on the territory of a Member State who are often in a situation in
which they have no choice or perceive to have no choice, but to submit to the exploitation.
These latter elements ensures also that the offence take the specific situation of the victim into
account and not only the conduct performed by the trafficker.

i.e.

The criminal offence described does not include an explicit requirement for the victim to
cross a border. The reasoning here is following the Europol Convention and the United
Nations-protocol on trafficking,
the context of trafficking in human beings refers
generally to international organised crime, but it is not necessary for the victim itself to cross
a border. Moreover, the key elements of the offence of trafficking should focus on the
exploitative purpose, rather than on the “movement” across a border. If the requirement of a
cross-border element would be maintained, there would be a paradox in that a European
citizen forced into prostitution and trafficked within its own country, would be less protected
to include a cross-border
than citizens from third countries would. The approach not
requirement also means that
the proposal cover “re-trafficking” within the country of
destination, which in many cases form an integral part of the trafficking chain/operation.

Article 2 (Trafficking in human beings for the purpose of sexual exploitation)

Article 2 puts on the Member States an obligation to ensure that trafficking in human beings
for the purpose of sexual exploitation is punishable. The Article corresponds to the structure
and content of Article 1.

Sexual exploitation includes the purposes to exploit a person in prostitution, in pornographic
performances or in the production of pornographic material.

Article 3 (Instigation, aiding, abetting and attempt)

Article 3 puts an obligation on Member States to ensure that instigation of, aiding, abetting
and attempt to commit trafficking for the purpose of labour exploitation and trafficking for the
purpose of sexual exploitation is punishable.

9

Article 4 (Penalties and aggravating circumstances)

Article 4 concerns penalties and aggravated circumstances. Paragraph 1 indicates that the
offences referred to in Articles 1, 2, and 3 shall be punishable by effective, proportionate and
dissuasive penalties, including by terms of imprisonment with a maximum penalty that is not
less than six years. These penalties are sufficient to include trafficking in human beings
within the scope of other instruments already adopted for the purposes of enhancing police
and judicial co-operation in the European Union against organised crime such as the
98/699/JHA Joint Action5 on money laundering, the identification, tracing, freezing, seizing
and confiscation of the instrumentalities and the proceeds from crime and the 98/733/JHA
Joint Action6 on making it a criminal offence to participate in a criminal organisation.

As trafficking in human beings involves very serious criminal conduct, paragraph 2 sets out
that Member States shall ensure that when aggravating circumstances apply the offences shall
be punishable by terms of imprisonment with a maximum penalty that is not less than ten
years. The Commission´s proposal to have ten years as a minimum maximum penalty when
aggravating circumstances are involved builds on the view that possible penalties for
trafficking should reflect the seriousness of the crime and have a strong deterrent effect.

Three circumstances that typically should qualify the trafficking offence as aggravated are
listed. These circumstances represent a minimum list, but are without prejudice to additional
definitions in the legislation of the Member States. A further explanation of what is meant by
these circumstances for the purposes of this Framework Decision is:

–

–

–

«generates substantial proceeds» could, where applicable, be construed in analogy
with aggravated «pimping» offences and should at least include the enrichment of
the perpetrator of the criminal activities;

«is committed within the framework of a criminal organisation» should be construed
in accordance with Article 1 of the 98/733/JHA Joint Action on making it a criminal
offence to participate in a criminal organisation in the Member States of the
European Union7;

«involves particular ruthlessness» is aimed at targeting the level of force or pressure
exercised by the trafficker and the level of disregard of the health and integrity of the
victim, physical as well as mental; the more serious force, pressure or disregard, the
more severe the offence.

Article 5 (Liability of legal persons)

It
is necessary also to cover the situation in which legal persons are involved in the
trafficking. Article 5 therefore provides provisions for holding a legal person liable for the
offences envisaged by Articles 1, 2, and 3, committed for their benefit by any person, acting
either individually or as a part of the organ of the legal person. The term liability should be
construed so as to include either criminal or civil liability (see also Article 6 on sanctions).

5

6

7

OJ L 333/1, 9.12.1998
OJ L 351/1, 29.12.1998
OJ L 351/1 29.12.1998

10

In addition, paragraph 2 provides that a legal person can also be held liable when the lack of
supervision or control by a person in a position to exercise control, has rendered possible the
commission of the offence for its benefit. Paragraph 3 indicates that legal proceedings against
a legal person do not preclude parallel
legal proceedings against a natural person and
paragraph 4 definesa legal person for the purpose of this Framework Decision.

Article 6 (Sanctions on legal persons)

Article 6 sets out a requirement for sanctions on legal persons. It requires effective,
proportionate and dissuasive sanctions, where the minimum obligation is to impose criminal
or non-criminal fines. Other sanctions that typically could apply to legal persons are also
indicated.

Article 7 (Jurisdiction and prosecution)

The international nature of the trafficking offence implies that an efficient legal response
requires procedural provisions on jurisdiction and on extradition which are as clear and as far
reaching as national legal systems will allow in order to guard against persons evading
prosecution.

Paragraph 1 establishes a series of criteria conferring jurisdiction on national enforcement and
judicial authorities to prosecute and examine cases involving the offences referred to in this
Framework Decision. A Member State shall establish its jurisdiction in three situations:

where the offence is committed in whole or in part on its territory, irrespective of the

(a)
status or the nationality of the person involved (territoriality principle), or

where the offender is a national (active personality principle). The criterion of the
(b)
status as a national means that jurisdiction can be established regardless of the lex locus
delicti. It is up to Member States to prosecute for offences committed abroad. This is
particularly important for Member States which do not extradite their own nationals, or

where the offence is committed for the benefit of a legal person established in the

(c)
territory of that Member State.

However, as not all Member States’ legal traditions recognise extraterritorial jurisdiction for
all types of criminal offences, Member States may, subject to the obligation under paragraph
1, limit their jurisdiction to the first of these three situations. In addition, if they do not do so,
they can still make provisions the applicability of paragraphs 1(b) and 1(c) to cases where the
offence has been committed outside the territory of that Member State.

Paragraph 3 takes account of the fact that some Member States do not extradite their nationals
and seeks to ensure that persons suspected of having committed trafficking offences do not
evade prosecution because extradition is refused in principle on the grounds that they are
nationals of that state. A Member State which does not extradite its own nationals must, in
accordance with paragraph 3, take the necessary measures to establish its jurisdiction over and
to prosecute, where appropriate, the offences concerned when committed by its own nationals
outside its territory. Paragraph 4 says that Member States shall inform the General Secretariat
and the Commission where they decide to apply paragraph 2.

Article 8 (Victims)

11

In the European Union´s approach against trafficking in human beings, special importance
has been attached to assistance to the victims. In many cases, victims of trafficking have been
severely abused by the trafficker. The Commission is therefore of the view that an Article on
victims should be included in this Framework Decision. Social assistance for children in order
to help them overcome the consequences of such events and enable them to reintegrate, inter
alia, into the labour market, forms part of the overall policy.

Article 9 (Co-operation between Member States)

The purpose of Article 9 is to take advantage of instruments on international judicial co-
operation to which Member States are parties and which should apply to the matters covered
in this Framework Decision. For instance, arrangements on mutual legal assistance and
extradition are contained in a number of bilateral and multilateral agreements as well as
conventions of the European Union. An additional purpose with this Article is to facilitate the
exchange of information.

Paragraph 1 requires Member States to afford each other mutual assistance to the widest
extent possible in judicial proceedings on trafficking in human beings. For the situation where
a positive conflict of jurisdiction occurs, paragraph 2 establishes that Member States shall
consult one another with a view to co-ordinating their action to prosecute effectively. The
paragraph also indicates that appropriate use shall be made of existing co-operation
mechanisms such as the liaison magistrates8 and the European Judicial Network9. Paragraph 3
stresses the importance of having appointed points of contact for the purpose of exchanging
information. It explicitly indicates that Europol shall be properly involved. Paragraph 4
provides for the circulation of information on which points of contacts have been appointed
for the purpose of exchanging information pertaining to trafficking in human beings.

Article 10 (Implementation)

Article 10 concerns the implementation and follow-up of this Framework Decision. It
establishes that the Member States shall take the necessary measures to comply with this
Framework Decision not later than 31 December 2002. It also establishes that the Member
States shall, by the same date, transmit to the General Secretariat of the Council and to the
Commission the provisions transposing into their national legislation the obligations imposed
on them under this Framework Decision. On the basis of a report established on the basis of
this information and on a written report from the Commission, the Council will by 30 June
2004 assess the extent to which Member States have taken the necessary measures to comply
with this Framework Decision.

Article 11 (Repeal of the Joint Action of February 1997)

Article 11 repeals the Joint Action of February 1997. The Joint Action was to be implemented
by 31 December 1999 and on this date the Member States were also to report to Secretariat
General of the Council on the proposals they have made with a view for their adoption to
fulfil their obligations under the Joint Action. This Framework Decision together with the
Framework Decision on sexual exploitation of children and child pornography cover to a
large extent the same issues. Although it might follow from general principles of law that the
Joint Action is obsolete and no longer have any legal consequences, the Commission is of the
view that it is important to clarify that this Framework Decision repeals the Joint Action.

8

9

OJ L 105, 27.4.1996
OJ L 191/4, 7.7.1998

12

Article 12 (Entry into force)

Article 12 indicates that this Framework Decision will enter into force on the day of its
publication in the Official Journal of the European Communities.

13

2001/0024 (CNS)

Proposal for a

COUNCIL FRAMEWORK DECISION

on combating trafficking in human beings

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)

(2)

(3)

(4)

(5)

1

2

3

4

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 justice1,
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 Scoreboard2 and the
European Parliament in its Resolution of 19 May 20003 indicate or call for legislative
action against
including common definitions,
incriminations and sanctions;

trafficking in human beings,

The Joint Action of 24 February 1997 concerning action to combat trafficking in
human beings and the sexual exploitation of children 4 needs to be followed by further
legislative action addressing the divergence of legal approaches in the Member States
and contributing to the development of an efficient judicial and law enforcement co-
operation against trafficking in human beings;

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;

The important work performed by international organisations, in particular the UN,
must be complemented by that of the European Union;

It is necessary that
the serious criminal offence trafficking in human beings be
addressed by a comprehensive approach in which constituent elements of criminal law
including effective, proportionate and dissuasive
common to all Member States,

OJ C 19, 23.1.1999
COM (2000) 167 final, p. 2.4 Management of migration flows and p. 4.3 Fight against certain forms of
crime
A5-0127/2000
OJ L 063, 4.3.1997

14

(6)

(7)

sanctions, form an integral part together with the widest possible judicial co-operation;
in accordance with the principles of subsidiarity and 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;

It is necessary to introduce sanctions on perpetrators sufficiently severe to allow for
trafficking in human 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
Action5 on money laundering,
freezing, seizing and
the identification,
confiscation of the instrumentalities and the proceeds from crime and the 98/733/JHA
Joint Action6 on making it a criminal offence to participate in a criminal organisation;

tracing,

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 Action7 establishing an incentive and exchange
programme for combating trade in human beings and sexual exploitation of children
(STOP), the 96/748/JHA Joint Action8 extending the mandate given to the Europol
Drugs Unit, the Decision of the Council and the European Parliament 293/2000/EC9
on the Daphne programme on preventive measures to fight violence against children,
young persons and women, the Joint Action 98/428/JHA10 on the creation of a
European Judicial Network, the Joint Action 96/277/JHA11, concerning a framework
for the exchange of liaison magistrates to improve judicial co-operation between the
Member States of the European Union and the Joint Action 98/427/JHA12 on good
practice in mutual legal assistance in criminal matters;

HAS ADOPTED THIS FRAMEWORK DECISION:

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, including harbouring and subsequent reception and
the exchange of control over him or her is punishable, where the fundamental rights of
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 infringement of labour standards
governing working conditions, salaries and health and safety, and:

(a) use is made of coercion, force or threats, including abduction, or

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

5

6

7

8

9

10

11

12

OJ L 333/1, 9.12.1998
OJ L 351/1, 29.12.1998
OJ L 322, 12.12.1996
OJ L 342 31.12.1996
OJ L 34 9.2 2000
OJ L 191/4 7.7.1998
OJ L 105, 27.4.1996
OJ L 191, 7.7.1998

15

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

Without prejudice to additional definitions in national legislation, each Member State
2.
shall take the necessary 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:

- it involves particular ruthlessness, or

- it generates substantial proceeds, or

- it is committed within the framework of a criminal organisation.

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:

16

(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
supervision 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.

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

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

(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 jurisdiction rules set out in paragraphs 1 (b) and 1 (c) as far as
the offence is committed outside its territory.

17

3. A Member State which, under its laws, does not extradite 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 legal protection and standing in judicial proceedings. In particular
Member States´ shall ensure that criminal investigations and judicial proceedings do not cause
any additional damage for a victim.

Article 9
Co-operation between Member States

1.

In accordance with the applicable conventions, multilateral 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 co-ordinating
their action in order to prosecute effectively. Appropriate use shall be made of existing co-
operation 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
existing co-operation mechanisms. In particular, Member States shall ensure that Europol,
within the limits of its mandate, is fully involved.

4. Each Member State shall

inform the General Secretariat of 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.

18

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
Journal of the European Communities.

Done at Brussels,

For the Council
The President

19

Proposal for a

COUNCIL FRAMEWORK DECISION

on combating the sexual exploitation of children and child pornography

20

EXPLANATORY MEMORANDUM

1.

INTRODUCTION

On 24 February 1997 the Council adopted a Joint Action concerning action to combat
trafficking in human beings and the sexual exploitation of children1. The Joint Action covers
a wide range of topics such as definitions (without prejudice to more specific definitions in
the Member States´ legislation), jurisdiction, criminal procedure, assistance to victims and
police and judicial co-operation. Through the Joint Action, the Member States undertook to
review their existing laws with a view to providing that trafficking in human beings and the
sexual exploitation of children were criminal offences.

Since the adoption of the Joint Action in 1997, actions and initiatives against sexual
exploitation of children and child pornography have developed considerably in number and in
level and
substance at
international level in a wider context. Sexual exploitation of children and child pornography
has given rise to increased concern and the need to address diverging legal approaches in the
Member States by further action is clearly demonstrated.

the level of the European Union as well as at

local, regional

Furthermore, Article 29 of the Amsterdam Treaty provides an explicit reference to offences
against children. The Vienna Action Plan2 and the Tampere European Council made a clear
call for further legislative action against sexual exploitation of children. Legislative action is
also indicated in the Commission´s Scoreboard3. On 29 May 2000, the Council adopted a
decision4 to combat child pornography on the Internet.

Two examples of the development at the wider international level are the United Nations
Optional Protocol to the Convention of the Rights of the Child on the sale of children, child
prostitution and child pornography and the future Cyber Crime Convention developed within
the Council of Europe addressing, inter alia, child pornography in the context of computer
systems. The Commission has participated actively in the elaboration of the latter instrument
and important elements of the future Convention on child pornography in computer systems
are reflected in this proposal, albeit this proposal also covers forms of child pornography
other than those in connection with computer systems.

Furthermore, the specific character of an area of freedom, security and justice to be created
within the European Union should enable the Member States to develop a Framework
Decision in which certain aspects of criminal law and judicial co-operation are taken further
than has been possible through instruments available before the entry into force of the
Amsterdam Treaty and instruments developed at a wider international level. A Framework
Decision should, for instance, address more precisely issues such as criminalisation, penalties
including provisions on
and other sanctions, aggravating circumstances,
extraterritorial jurisdiction, and extradition.

jurisdiction,

In conclusion,
the Commission believes that a further response to the issue of sexual
exploitation of children and child pornography is required at the level of the European Union.
Use of a Framework Decision, an instrument introduced by the Amsterdam Treaty, will

1

2

3

4

OJ L 063, 4.3.1997
OJ C 19, 23.1.1999
COM (2000) 167 final, 24.3.2000
OJ L 138/1, 9.6.2000

21

reinforce a common approach of the European Union in these areas and fill gaps in existing
legislation. The need for a clear common approach on sexual exploitation of children and
child pornography should also be viewed against the background of the future enlargement of
the European Union.

The Commission has therefore, as announced in the Scoreboard, decided to put forward a
proposal for a Framework Decision on the approximation of the criminal laws of the Member
States, including penalties, concerning sexual exploitation of children and child pornography.
The proposal also includes provisions on horizontal judicial issues such as jurisdiction and co-
operation between Member States. The proposal covers sexual exploitation of children and
child pornography. It does not include trafficking in human beings for exploitative purposes
that will be covered by a separate proposal. The separation into two Framework Decisions
will allow the Council to focus on sexual exploitation of children and child pornography.

2.

LEGAL BASIS

This proposal for a Framework Decision concerns approximation of the laws and regulations
of the Member States in the area of police and judicial co-operation in criminal matters. It
also concerns “minimum rules relating to the constituent elements of criminal acts and to
penalties in the field of organised crime”. The legal basis indicated in the preamble of the
proposal is therefore Articles 29 with an explicit reference to offences against children, 31(e)
and 34(2)(b) of the Treaty on European Union. The proposal will not entail financial
implications for the budget of the European Communities.

3. THE FRAMEWORK DECISION: ARTICLES

Article 1 (Definitions)

Article 1 contains definitions of terms used in the Framework Decision. Points (a), (b), and (c)
contain core definitions for the purposes of the Framework Decision. Point (a) defines
«child », point (b) defines «child pornography » and point (c) « computer system ».

The definition of « child » regards any person below the age of eighteen years as being a child
for the purposes of this Framework Decision. As far as this age is concerned with child
pornography, the Commission is of the view that depictions of persons under the age of
eighteen involved in sexually explicit conduct constitute sexual exploitation of children. Even
though children under the age of eighteen have reached the maturity to take an informed
decision about involving themselves in sexual activities, this should therefore not include
depictions of such activities. The age of eighteen is also in conformity with the Convention of
the Rights of the Child.

Point (b) covers pornographic material depicting a child engaged in sexually explicit conduct.
The term visual depiction should be construed so as to include undeveloped film and
videotape, and data stored on computer disk or by electronic means that are capable of
conversion into a visual image. As specifically regards sexually explicit conduct involving a
child, it should be understood to include at least:

a) sexual

intercourse,

including genital-genital, oral-genital, anal-genital or oral-anal

intercourse;

b) bestiality;

22

c) masturbation;
d) sadistic or masochistic abuse; or
e)

lascivious exhibition of the genitals or the pubic area.

Point (d) defines « legal person ». The definition of legal person is taken from the second
to the Convention on the protection of the European Communities' financial
Protocol
interests5.

Article 2 (Offences concerning sexual exploitation of children)

Article 2 puts an obligation on the Member States to ensure that sexual exploitation of
children is punishable. Point (a) indicates that various forms of exploiting a child in
prostitution are punishable. Point (b) indicates that the engagement of a child in sexual
conduct is punishable when qualified by the circumstances indicated in points (i) to (iii).
Sexual conduct shall for the purposes of this Framework decision be construed to include the
conduct referred to under Article 1 on sexually explicit conduct as regards child pornography.

Article 3 (Offences concerning child pornography)

Article 3 puts an obligation on the Member States to ensure that various forms of intentional
acts concerned with child pornography is punishable. Paragraph 1(a) covers the production of
child pornography, paragraph 1(b) the distribution, dissemination and transmission of child
pornography, paragraph 1(c) the offering or otherwise the making available of child
pornography, and paragraph 1(d), finally, acquisition or possession of child pornography.

The « action verbs » in points (a) to (d) correspond not only to the future Cyber Crime
Convention, but also to elements found in the criminal laws of the Member States. The
Commission´s intention has been, as fully as possible, to cover the behaviours typically
constituting the criminal offence child pornography.

Paragraph 1 of the Article includes that Member States shall ensure that the offences listed
shall be punishable also when the conduct, in part or in whole, includes the use of a computer
system.

Paragraph 2 covers two specific types of child pornographic material that visually represents a
child involved in sexually explicit conduct. First, where a person appears to be a child, and,
secondly, images that include depictions that are altered or even generated entirely by for
instance a computer, i.e. simulated or fabricated. Paragraph 2 thus covers pornographic
material where there is no « actual » sexual exploitation behind the depiction. The interest to
protect is therefore different from the child pornography referred to in paragraph 1; while
paragraph 1 seeks to protect children from sexual abuse, paragraph 2 seeks to protect children
from being used as sexual objects and to prevent pseudo child pornographic depictions to
become more widespread with a potential to underpin sexual exploitation of children.

Paragraph 2 requires Member States to take the measures necessary to ensure that acts
concerned with pornographic material that visually represents a child involved in sexually
explicit conduct is punishable. These measures shall be without prejudice to the definitions
otherwise provided for in this Framework Decision. However, as specifically regards the

5

OJ C 221, 19.7.1997

23

situation where the representation involves a person appearing to be a child,
i.e. not a
fabricated depiction, but a depiction of a real person, Member States shall exempt from the
scope of criminalisation the cases where it can be established that the image is in fact of a
person aged 18 or over. This ensures that, as a minimum in all Member States, where a court
is convinced that an image appears to be of a child, but the actual age is unknown, this
remains criminalised.

Article 4 (Instigation, aiding, abetting and attempt)

Article 4 (1) put an obligation on Member States to ensure that instigation of, aiding or
abetting the sexual exploitation of children and child pornography are punishable.

Paragraph 2 of Article 4 specifically concerns attempt. It puts an obligation on Member States
to ensure that attempt to commit sexual exploitation of children, production, distribution,
dissemination, transmission, offering or otherwise making available child pornography are
intentional acquisition and
punishable. Paragraph 2 does not include attempt to commit
possession of child pornographic material.

Article 5 (Penalties and aggravating circumstances)

Article 5 concern penalties and aggravating circumstances. Paragraph 1 indicates that the
offences referred to in Articles 2, 3, and 4 shall be punishable by effective, proportionate and
dissuasive penalties including by terms of imprisonment that is not less than four years. As
regards intentional acquisition and possession it is specifically indicated that the maximum
penalty shall not be less than one year. These penalties are sufficient to include sexual
exploitation of children and child pornography within the scope of other instruments already
adopted for the purposes of enhancing police and judicial co-operation in the European Union
such as the 98/699/JHA Joint Action6 on money laundering,
tracing,
freezing, seizing and confiscation of the instrumentalities and the proceeds from crime and the
98/733/JHA Joint Action7 on making it a criminal offence to participate in a criminal
organisation.

the identification,

As sexual exploitation of children and child pornography are very serious criminal offences,
paragraph 2 to 4 sets out
that Member States shall ensure that when aggravating
circumstances apply, the offences shall be punishable by terms of imprisonment with a
maximum penalty of not less than eight years. The Commission´s proposal to have eight years
as a minimum maximum penalty builds on the view that possible penalties for sexual
exploitation of children and child pornography should reflect the seriousness of the crime and
have a strong deterrent effect.

Aggravating circumstances that typically should qualify child prostitution, sexual exploitation
of children and child pornography as aggravated offences are listed. These circumstances
represent a minimum list, but are without prejudice to additional definition in the legislation
of the Member States. A further explanation of what is meant by these circumstances for the
purpose of this Framework Decision is:

6

7

OJ L 333/1, 9.12.1998
OJ L 351/1, 29.12.1998

24

-

-

-

-

-

“involves a child below the age of ten years” or in the case of child pornography
“…depictions of a child below the age of ten years” should provide emphatic legal
protection for very young children and emphasise the seriousness of sexual
exploitation of very young children in terms of possible penalties;

“involves particular ruthlessness” is aimed at targeting the level of force or pressure
exercised and the level of disregard of the health and integrity of the victim, physical
as well as mental; the more serious force, pressure or disregard, the more severe the
offence;

“generates substantial proceeds” could, where applicable, be construed in analogy
with aggravated “pimping” offences and should at least include the enrichment of the
perpetrator of the criminal activities;

“is committed in the framework of a criminal organisation should be construed in
accordance with Article 1 of the 98/733/JHA Joint Action om making it a criminal
offence to participate in a criminal organisation in the Member States of the European
Union8.

“involves depictions of a child being exposed to violence or force” is aimed at
targeting depictions involving elements of violence or force that indicates that the
child is being hurt or expressing a strong anxiety; the more serious violence or force,
the more serious the offence.

Paragraph 5 of Article 5 requires Member States to consider prohibiting natural persons from
exercising, temporarily or permanently, activities involving supervision of children when they
have been convicted for one of the criminal offences provided for in this Framework
Decision.

Article 6 (Liability of legal persons)

It is necessary also to cover the situation in which legal persons are involved in sexual
exploitation of children and child pornography. Article 6 therefore provides provisions for
holding a legal person liable for the offences envisaged by Articles 2, 3, and 4, committed for
their benefit by any person, acting either individually or as a part of the organ of the legal
person. The term liability should be construed so as to include either criminal or civil liability
(see also Article 7 on sanctions).

In addition, paragraph 2 provides that a legal person can also be held liable when the lack of
supervision or control by a person in a position to exercise control, has rendered possible the
commission of the offences for its benefit. Paragraph 3 indicates that legal proceedings
against a legal person do not preclude parallel legal proceedings against a natural person.

As specifically regards the criminal offence child pornography by means of a computer
system, Article 6 is important in connection with liability of information society service
providers. Article 6 does not affect the provisions of Directive 2000/31/EC on certain legal

8

OJ L 351/1 29.12.1998

25

aspects of information society services, in particular electronic commerce, in the Internal
Market (Directive on electronic commerce)9, which deal with the liability of intermediary
service providers. Articles 12 to 14 of this Directive define the conditions under which
intermediary service providers are not be held liable for mere conduit, caching and hosting
activities and Article 15 specifies that Member States shall not impose on such intermediary
service providers a general obligation to monitor the information which they transmit or store,
nor a general obligation actively to seek facts or circumstances indicating illegal activity.

The purpose of this Framework Decision is to ensure that service providers are liable when
they commit child pornography offences for the benefit of the service provider. Similarly,
liability applies where lack of supervision has rendered possible the commission of child
pornography offences by a person under the authority of the service provider and where the
offence was committed for the benefit of the service provider.

Article 7 (Sanctions on legal persons)

Article 7 sets out a requirement for sanctions on legal persons. It requires effective,
proportionate and dissuasive sanctions, where the minimum obligation is to impose criminal
or non-criminal fines. Other sanctions that typically could apply to legal persons are also
indicated.

Article 8 (Jurisdiction and prosecution)

The international nature of the criminal offences sexual exploitation of children and child
pornography implies that an efficient
legal response requires procedural provisions on
jurisdiction and on extradition which are as clear and as far reaching as national legal systems
will allow in order to guard against persons evading prosecution.

Paragraph 1 establishes a series of criteria conferring jurisdiction on national enforcement and
judicial authorities to prosecute and examine cases involving the offences referred to in this
Framework Decision. A Member State shall establish its jurisdiction in three situations:

(a) where the offence is committed in whole or in part on its territory, irrespective of the

status or the nationality of the person involved (territoriality principle), or

(b) where the offender is a national (active personality principle). The criteria of the status as
a national means that jurisdiction can be established regardless of the lex locus delicti. It is
up to Member States to prosecute for offences committed abroad. This is particularly
important for Member States which do not extradite their own nationals, or

(c) where the offence is committed for the benefit of a legal person established in the territory

of that Member State.

However, as not all Member States’ legal traditions recognise extraterritorial jurisdiction for
all types of criminal offences, Member States may, subject to the obligation under paragraph
1, limit their jurisdiction to the first of these three situations. In addition, if they do not do so,
they can still make provisions to limit the applicability of paragraphs 1(b) and 1 (c) to cases
where the offence has been committed outside the territory of that Member State.

9

OJ L 178, 17.7.2000, p. 1

26

Paragraph 3 takes account of the fact that some Member States do not extradite their nationals
and seeks to ensure that persons suspected of having committed sexual exploitation of
children or child pornography offences do not evade prosecution because extradition is
refused in principle on the grounds that they are nationals of that state.

A Member State which does not extradite its own nationals must,
in accordance with
paragraph 3, take the necessary measures to establish its jurisdiction over and to prosecute,
where appropriate, the offences concerned when committed by its own nationals outside its
territory. Paragraph 4 says that Member States shall inform the General Secretariat and the
Commission where they decide to apply paragraph 2.

Article 8(5) is intended to ensure that Member States have jurisdiction over offences
committed by accessing a computer system in a third country from their own Member State,
e.g. storing or making available child pornography on/from a server in a third country.

Article 9 (Victims)

In the European Union´s approach against sexual exploitation of children and child
pornography, special importance has been attached to the protection of and the assistance to
the victims. The Commission is therefore of the view that an Article on victims should be
included in the proposal for this Framework Decision. Social assistance for victims in order to
help them overcome the consequences of such events and enable them to reintegrate into their
normal course of life, forms part of the overall policy.

Article 10 (Co-operation between Member States)

The purpose of Article 10 is to take advantage of instruments on international judicial co-
operation to which Member States are parties and which should apply to this Framework
Decision. For instance, arrangements on mutual legal assistance and extradition are contained
in a number of bilateral and multilateral agreements as well as conventions of the European
Union. An additional purpose with this Article is to facilitate the exchange of information.

Paragraph 1 requires Member States to afford each other mutual assistance to the widest
extent possible in judicial proceedings on sexual exploitation of children and child
pornography. For the situation where a positive conflict of jurisdiction occurs, paragraph 2
establishes that Member States shall consult one another with a view to co-ordinate their
action to prosecute effectively. The paragraph also indicates that appropriate use shall be
made of existing co-operation mechanisms such as the liaison magistrates10 and the European
Judicial Network11. Paragraph 3 stresses the importance of having appointed points of contact
for the purpose of exchanging information. It explicitly indicates that Europol and the
communicated points of contact under the Council Decision to combat child pornography12
should be properly involved. Paragraph 4 provides for the circulation of information on which
points of contacts have been appointed for the purpose of exchanging information pertaining
to sexual exploitation of children and child pornography.

Article 11 (Implementation)

10

11

12

OJ L 105, 27.4.1996
OJ L 191/4, 7.7.1998
OJ L 138/1, 9.6.2000

27

Article 11 concerns the implementation and follow-up of this Framework Decision. It
establishes that the Member States shall take the necessary measures to comply with this
Framework Decision not later than 31 December 2002. It also establishes that the Member
States shall, by the same date, transmit to the Secretariat General of the Council and to the
Commission the provisions transposing into their national law the obligations imposed on
them under this Framework Decision. On the basis of a report established on the basis of this
information and a written report from the Commission, the Council will by 30 June 2004
assess the extent to which the Member States have taken the necessary measures to comply
with this Framework Decision.

Article 12 (Entry into force)

Article 12 indicates that this Framework Decision will enter into force on the day of its
publication in the Official Journal of the European Communities.

28

2001/0025 (CNS)

Proposal for a

COUNCIL FRAMEWORK DECISION

on combating the sexual exploitation of children and child pornography

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)

(2)

(3)

1

2

3

4

5

6

7

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 justice1,
the conclusions from the Tampere European Council,
the Commission in the
Scoreboard2, the European Parliament in its Legislative Resolution of 11 April 20003,
include or call for legislative action against sexual exploitation of children and child
pornography, including common definitions, incriminations and sanctions;

The Joint Action of 24 February 1997 concerning action to combat trafficking in
human beings and the sexual exploitation of children 4and the Council Decision to
combat child pornography on the Internet5 need to be followed by further legislative
action addressing the divergence of legal approaches in the Member States and
contributing to a further development of an efficient judicial and law enforcement co-
operation against sexual exploitation of children and child pornography;

The European Parliament in its resolution of 30 March 20006 on the Commission
Communication on the implementation of measures to combat child sex tourism7
reiterates that child sex tourism is a criminal act closely linked to those of sexual
exploitation of children and of child pornography, requiring the Commission to submit
to the Council a proposal for a framework decision establishing minimum rules
relating to the constituent elements of these criminal acts;

OJ C 19, 23.1.1999
COM (2000) 167 final, p. 4.3 Fight against certain forms of crime
A5-0090/2000
OJ L 063, 4.3.1997
OJ L 138/1, 9.6.2000
A5-0052/2000
COM (99) 262

29

(4)

(5)

(6)

(7)

(8)

(9)

(10)

Sexual exploitation of children and child pornography constitute serious violations of
human rights and of the fundamental right of a child to a harmonious upbringing and
development;

Child pornography, a particularly serious form of sexual exploitation of children, is
increasing and spreading through the use of new technologies and the Internet;

The important work performed by international organisations must be complemented
by that of the European Union;

It is necessary that the serious criminal offences sexual exploitation of children and
child pornography be addressed by a comprehensive approach in which constituent
including effective,
law, common to all Member States,
elements of criminal
proportionate and dissuasive sanctions, form an integral part together with the widest
possible judicial co-operation; in accordance with the principles of subsidiarity and
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;

It is necessary to introduce sanctions on perpetrators sufficiently severe to allow for
sexual exploitation of children and child pornography to be included within the scope
of instruments already adopted for the purpose of combating organised crime such as
the 98/699/JHA Joint Action8 on money laundering,
tracing,
freezing, seizing and confiscation of the instrumentalities and the proceeds from crime
and the 98/733/JHA Joint Action9 on making it a criminal offence to participate in a
criminal organisation;

the identification,

This Framework Decision is without prejudice to the powers of the European
Community;

This Framework Decision should contribute to the fight against sexual exploitation of
children and child pornography by complementing the instruments adopted by the
Council, such as the 96/700/JHA Joint Action10 establishing an incentive and
exchange programme for combating trade in human beings and sexual exploitation of
children (STOP), the 96/748/JHA Joint Action11 extending the mandate given to the
Europol Drugs Unit,
the Decision of the Council and the European Parliament
293/2000/EC12 on the Daphne programme on preventive measures to fight violence
against children, young persons and women, the Joint Action 98/428/JHA13 on the
creation of a European Judicial Network, the Action Plan against illegal and harmful
content on the Internet14; the Joint Action 96/277/JHA15, concerning a framework for
the exchange of liaison magistrates to improve judicial co-operation between the

8

9

10

11

12

13

14

15

OJ L 333/1, 9.12.1998
OJ L 351/1, 29.12.1998
OJ L 322, 12.12.1996
OJ L 342, 31.12.1996
OJ L 34, 9.2.2000
OJ L 191/4, 7.7.1998
OJ L 33, 6.2.1999
OJ L 105, 27.4.1996

30

Member States of the European Union and the Joint Action 98/427/JHA16 on good
practice in mutual legal assistance in criminal matters;

HAS ADOPTED THIS FRAMEWORK DECISION:

Article 1
Definitions

For the purposes of this Framework Decision:

(a) "Child" shall mean any person below the age of eighteen years;

(b) "Child pornography" shall mean pornographic material that visually depicts a child

engaged in sexually explicit conduct;

(c) “Computer system” shall mean any device or group of inter-connected or related devices,
one or more of which, pursuant to a program, performs automatic processing of data;

(d) “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 2
Offences concerning sexual exploitation of children

Each Member State shall take the necessary measures to ensure that the following conduct is
punishable:

(a) coercing, exploiting, inducing, profiting from or otherwise facilitating the prostitution of a

child;

(b) engaging a child in sexual conduct, where:

(i)

(ii)

use is made of inducement or coercion, violence or threats, or

money, other items of economic value or other forms of remuneration, is given
to a child in exchange for sexual services, or

(iii)

use is made of authority or influence over the child´s vulnerability.

Article 3
Offences concerning child pornography

1. Each Member State shall take the necessary measures to ensure that the following
intentional conduct, whether undertaken by means of a computer system or not,
is
punishable:

(a) production of child pornography, or

(b) distribution, dissemination, or transmission of child pornography, or

(c) offering or otherwise making child pornography available, or

(d) acquisition and possession of child pornography.

16

OJ L 191, 7.7.1998

31

2. Each Member State shall also take the necessary measures to ensure, without prejudice to
definitions otherwise provided for in this Framework Decision, that the conduct referred
to in paragraph 1 is punishable when involving pornographic material that visually
represents a child engaged in sexually explicit conduct, unless it is established that the
person representing a child was over the age of eighteen years at the time of the
depiction.

Article 4
Instigation, aiding, abetting and attempt

1. Each Member State shall take the necessary measures to ensure that the instigation of,

aiding or abetting an offence referred to in Articles 2 and 3 is punishable.

2. Each Member State shall take the necessary measures to ensure that attempt to commit the

conduct referred to in Articles 2 and 3(1)(a) to (c) are punishable.

Article 5
Penalties and aggravating circumstances

1. Each Member State shall take the necessary measures to ensure that an offence referred to
in Articles 2, 3(1)(a) to (c) and Article 4 is punishable by effective, proportionate and
dissuasive penalties, including by terms of imprisonment with a maximum penalty that is
not less than four years and, as regards an offence referred to in Article 3(1)(d) not less
than one year.

2. Without prejudice to additional definitions in the Member States´ legislation, each Member
State shall take the necessary measures to ensure that an offence referred to in Articles 2(a)
and 4 in that respect is punishable by terms of imprisonment with a maximum penalty that
is not less than eight years when:

- it involves a child below the age of ten years, or

- it involves particular ruthlessness, or

- it generates substantial proceeds, or

- it is committed within the framework of a criminal organisation.

3. Without prejudice to additional definitions in the Member States´ legislation, each Member
State shall take the necessary measures to ensure that an offence referred to in Articles 2(b)
and 4 in that respect is punishable by terms of imprisonment with a maximum penalty that
is not less than eight years when:

- it involves a child below the age of ten years, or

- it involves particular ruthlessness.

4. Without prejudice to additional definitions in the Member States´ legislation, each Member
State shall take the necessary measures to ensure that an offence referred to in Articles
3(1)(a) to (c) and 4 in that respect is punishable by terms of imprisonment with a maximum
penalty that is not less than eight years when:

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- it involves depictions of a child below the age of ten years, or

- it involves depictions of a child being exposed to violence or force, or

- it generates substantial proceeds, or

- it is committed within the framework of a criminal organisation.

5. Each Member State shall also consider prohibiting natural persons from exercising,
temporarily or permanently, activities related to the supervision of children where they
have been convicted of an offence referred to in Articles 2, 3, or 4.

Article 6
Liability of legal persons

1. Each Member State shall take the necessary measures to ensure that legal persons can be
held liable for an offences referred to in Articles 2, 3, and 4 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
supervision or control by a person referred to in paragraph 1 have rendered possible the
commission of an offence referred to in Articles 2, 3, and 4 for the benefit of that legal
person by a person under its authority.

3. Liability of legal persons under paragraphs 1 and 2 shall not exclude criminal proceedings
against natural persons who are perpetrators, instigators or accessories in offences referred
to in Articles 2, 3, and 4.

Article 7
Sanctions on legal persons

Each Member State shall take the necessary measures to ensure that a legal person held liable
pursuant to Article 6 is punishable by effective, proportionate and dissuasive sanctions, which
shall include criminal or non-criminal fines and may include other sanctions such as:

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

(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.

33

Article 8
Jurisdiction and prosecution

1. Each Member State shall take the necessary measures to establish its jurisdiction over the

offences referred to in Articles 2, 3, and 4 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 jurisdiction rules set out in paragraphs 1 (b) and 1 (c) as far as
the offence is committed outside its territory.

3. A Member State which, under its laws, does not extradite its own nationals shall take the
necessary measures to establish its jurisdiction over and to prosecute, where appropriate,
an offence referred to in Articles 2, 3, and 4 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.

5. For the purpose of establishing jurisdiction over an offence referred to in Article 3, the
offence shall be considered to be committed in whole or in part within its territory where
the offence is committed by means of a computer system accessed from its territory,
whether or not the computer system itself is on its territory.

Article 9
Victims

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

Article 10
Co-operation between Member States

1.

In accordance with the applicable conventions, multilateral 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 of the offences envisaged by this
Framework Decision, those States shall consult one another with a view to co-ordinating
their action in order to prosecute effectively. Appropriate use shall be made of existing co-
operation mechanisms, such as the liaison magistrates and the European Judicial Network.

34

3. For the purpose of exchange of information relating to the offences referred to in Articles
2, 3, and 4, and in accordance with data protection rules, Member States shall establish
operational points of contact or make use of existing co-operation mechanisms. In
particular, Member States shall ensure that Europol, within the limits of its mandate, and
the communicated points of contact under the Council Decision to combat child
pornography are fully involved.

4. Each Member State shall

inform the General Secretariat of the Council and the
Commission of its appointed point of contact for the purpose of exchanging information
relating sexual exploitation of children and child pornography. The General Secretariat
shall inform all other Member States about the appointed points of contact.

Article 11
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
legislation, 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 12
Entry into force

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

Done at Brussels,

For the Council
The President

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