Proposal for a Council Framework Decision on combating the sexual exploitation of children and child pornography
Date: 2000-12-21
Institutions: European Commission
Subjects: administrative sanction, child, child protection, pornography, prostitution, trafficking in human beings

27.2.2001

EN

Official Journal of the European Communities

C 62 E/327

Proposal for a Council Framework Decision on combating the sexual exploitation of children and
child pornography

(2001/C 62 E/25)

COM(2000) 854 final/2 (cid:17) 2001/0025(CNS)

(Submitted by the Commission on 22 January 2001)

THE COUNCIL OF THE EUROPEAN UNION,

framework decision establishing minimum rules relating
to the constituent elements of these criminal acts.

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 conclusions from the Tampere European Council, the
Commission
European
in its Legislative Resolution of 11 April
Parliament
2000 (3),
for legislative action against
sexual exploitation of children and child pornography,
including
and
definitions,
sanctions.

include or call

Scoreboard (2),

incriminations

common

the

the

in

(2) The Joint Action of 24 February 1997 concerning action
to combat trafficking in human beings and the sexual
exploitation of children (4) and the Council Decision to
combat child pornography on the Internet (5) need to be
legislative action addressing the
followed by further
legal approaches in the Member States
divergence of
and contributing to a
an
cooperation
judicial
efficient
child
sexual
against
pornography.

further development of

law enforcement

exploitation of

children and

and

(3) The European Parliament in its resolution of 30 March
2000 (6) on the Commission Communication on the
implementation of measures
child sex
tourism (7) reiterates that child sex tourism is a criminal
act closely linked to those of sexual exploitation of
children and of
the
Commission to submit to the Council a proposal for a

child pornography,

to combat

requiring

(4) 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.

(5) Child pornography, a particularly serious form of sexual
increasing and spreading

exploitation of children,
is
through the use of new technologies and the Internet.

(6) The important work performed by international organi-
sations must be complemented by that of the European
Union.

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

(8) It

scope of

instruments

is necessary to introduce sanctions on perpetrators
sufficiently severe to allow for sexual exploitation of
children and child pornography to be included within
the
already adopted for
the
the
purpose of combating organised crime such as
98/699/JHA Joint Action (8) 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 (9) on making it a
criminal offence to participate in a criminal organisation.

(1) OJ C 19, 23.1.1999.
(2) COM(2000) 167 final, p. 4.3 (Fight against certain forms of crime).
(3) A5-0090/2000.
(4) OJ L 63, 4.3.1997.
(5) OJ L 138, 9.6.2000, p. 1.
(6) A5-0052/2000.
(7) COM(1999) 262.

(9) This Framework Decision is without prejudice to the

powers of the European Community.

(8) OJ L 333, 9.12.1998, p. 1.
(9) OJ L 351, 29.12.1998, p. 1.

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27.2.2001

sexual

children and

(10) This Framework Decision should contribute to the fight
against
child
exploitation of
pornography by complementing the instruments adopted
by the Council, such as the 96/700/JHA Joint Action (1)
establishing an incentive and exchange programme for
combating trade in human beings and sexual exploitation
the 96/748/JHA Joint Action (2)
of children (STOP),
extending the mandate given to the Europol Drugs Unit,
the Decision of the Council and the European Parliament
293/2000/EC (3)
on
preventive measures to fight violence against children,
young
Joint Action
98/428/JHA (4) on the creation of a European Judicial
illegal and harmful
Network,
content
Joint Action
the
96/277/JHA (6),
the
for
exchange of liaison magistrates to improve judicial coop-
eration between the Member States of
the European
Union and the Joint Action 98/427/JHA (7) on good
practice in mutual legal assistance in criminal matters,

the Action Plan against
on

Internet (5);
a

and women,

the Daphne

programme

concerning

framework

persons

the

the

on

(a) coercing, exploiting, inducing, profiting from or otherwise

facilitating the prostitution of a child;

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

(i) use is made of inducement or coercion, violence or

threats, or

(ii) 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

HAS ADOPTED THIS FRAMEWORK DECISION:

Offences concerning child pornography

Article 1

Definitions

For the purposes of this Framework Decision:

(a) @childA shall mean any person below the age of eighteen

years;

(b) @child pornographyA shall mean pornographic material that
visually depicts a child engaged in sexually explicit conduct;

(c) @computer systemA 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 personA shall mean any entity having such status
for States or other
under
public bodies in the exercise of State authority and for
public international organisations

the applicable law, except

Article 2

Offences concerning sexual exploitation of children

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

(1) OJ L 322, 12.12.1996.
(2) OJ L 342, 31.12.1996.
(3) OJ L 34, 9.2.2000.
(4) OJ L 191, 7.7.1998, p. 1.
(5) OJ L 33, 6.2.1999.
(6) OJ L 105, 27.4.1996.
(7) OJ L 191, 7.7.1998.

Each Member State shall take the necessary measures to
conduct, whether
is
system or not,

1.
ensure
following intentional
undertaken by means of a computer
punishable:

that

the

(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.

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 repre-
senting 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.

Each Member State shall take the necessary measures to
the conduct referred to in

2.
ensure that attempt
Articles 2 and 3(1)(a) to (c) are punishable.

to commit

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Article 5

Article 6

Penalties and aggravating circumstances

Liability of legal persons

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
State’s 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:

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

C it involves particular ruthlessness, or

C it generates substantial proceeds, or

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

sation.

3. Without prejudice to additional definitions in the Member
State’s 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:

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

C it involves particular ruthlessness.

1.
Each Member State shall take the necessary measures to
ensure that legal persons can be held liable for 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.

Apart from the cases already provided for in paragraph 1,
2.
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 2, 3, and 4 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, instigators or accessories in offences referred
to in Articles 2, 3, and 4.

Article 7

Sanctions on legal persons

4. Without prejudice to additional definitions in the Member
State’s 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:

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:

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

or

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

C it involves depictions of a child being exposed to violence

or force, or

(b) temporary or permanent disqualification from the practice

of commercial activities, or

C it generates substantial proceeds, or

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

sation.

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.

(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.

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Article 8

Article 10

Jurisdiction and prosecution

Cooperation between Member States

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 juris-
diction 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.

For

5.
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
in this Framework Decision is given the
provided for
adequate
standing in judicial
proceedings.
In particular Member State’s shall ensure that
criminal investigations and judicial proceedings do not cause
any additional damage for a victim.

legal protection and the

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 of
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 2, 3, and 4, and in
accordance with data protection rules, 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, 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
inform all other Member States
about the appointed points of contact.

shall

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,
this Framework
imposed on them under
the obligations
Decision. The Council will, by 30 June 2004 at the latest, on
this
the basis of a report established on the basis of
information and
the
transmitted by
a written report
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
the European
Communities.

Journal

of