Council framework Decision 2004/68/JHA of 22 December 2003 on combating the sexual exploitation of children and child pornography
Date: 2003-12-22
Institutions: Council of the European Union
Subjects: child pornography, child protection, children's rights, fight against crime, paedophilia, sexual violence

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(Acts adopted pursuant to Title VI of the Treaty on European Union)

COUNCIL FRAMEWORK DECISION 2004/68/JHA

of 22 December 2003

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 par-
ticular Article 29, Article 31(1)(e) and Article 34(2)(b) thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the European Parliament (2),

Whereas:

(1)

(2)

(3)

(4)

The Action Plan of the Council and the Commission on
how best to implement the provisions of the Treaty of
security and
freedom,
Amsterdam on an area of
justice (3),
the Tampere European
the conclusions of
Council and the Resolution of the European Parliament
of 11 April 2000 include or call for legislative action
against sexual exploitation of children and child porno-
graphy,
including common definitions, charges and
penalties.

Council Joint Action 97/154/JHA of 24 February 1997
concerning action to combat trafficking in human beings
and sexual exploitation of children (4) and Council Deci-
sion 2000/375/JHA of 29 May 2000 to combat child
pornography on the Internet (5) need to be followed by
further legislative action addressing the divergence of
legal approaches in the Member States and contributing
to the development of efficient judicial and law enforce-
ment cooperation against sexual exploitation of children
and child pornography.

The European Parliament, in its Resolution of 30 March
2000 on the Commission Communication on the imple-
mentation of measures to combat child sex tourism,
reiterates that child sex tourism is a criminal act closely
linked to those of sexual exploitation of children and of
child pornography, and requests the Commission to
submit to the Council a proposal for a framework Deci-
sion establishing minimum rules relating to the consti-
tuent elements of these criminal acts.

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.

(1) OJ C 62 E, 27.2.2001, p. 327.
(2) OJ C 53 E, 28.2.2002, p. 108.
(3) OJ C 19, 23.1.1999, p. 1.
(4) OJ L 63, 4.3.1997, p. 2.
(5) OJ L 138, 9.6.2000, p. 1.

(5)

(6)

(7)

(8)

(9)

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 organi-
sations must be complemented by that of the European
Union.

It is necessary that serious criminal offences such as the
sexual exploitation of children and child pornography be
addressed by a comprehensive approach in which the
law common to all
constituent elements of criminal
Member States,
including effective, proportionate and
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.

Penalties must be introduced against the perpetrators of
such offences which are sufficiently stringent to bring
sexual exploitation of children and child pornography
within the scope of instruments already adopted for the
purpose of combating organised crime, such as Council
Joint Action 98/699/JHA of 3 December 1998 on
money laundering, the identification, tracing, freezing,
seizing and confiscation of the instrumentalities and the
proceeds from crime (6) and Council Joint Action 98/
733/JHA of 21 December 1998 on making it a criminal
offence to participate in a criminal organisation in the
Member States of the European Union (7).

(10)

The specific characteristics of the combat against the
sexual exploitation of children must lead Member States
to lay down effective, proportionate and dissuasive sanc-
law. Such sanctions should also be
tions in national
adjusted in line with the activity carried on by legal
persons.

(6) OJ L 333, 9.12.1998, p. 1. Joint Action as amended by framework

Decision 2001/500/JHA (OJ L 182, 5.7.2001, p. 1).

(7) OJ L 351, 29.12.1998, p. 1.

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children should be questioned
Victims who are
according to their age and stage of development for the
purpose of
investigation and prosecution of offences
falling under this framework Decision.

(ii) a real person appearing to be a child involved or

engaged in the conduct mentioned in (i); or

(iii) realistic images of a non-existent child involved or

engaged in the conduct mentioned in (i);

(11)

(12)

(13)

This framework Decision is without prejudice to the
powers of the Community.

This framework Decision should contribute to the fight
against sexual exploitation of children and child porno-
graphy by complementing the instruments adopted by
the Council, such as Joint Action 96/700/JHA of 29
November 1996 establishing an incentive and exchange
programme for persons responsible for combating trade
in human beings and sexual exploitation of children (1),
Joint Action 96/748/JHA of 16 December 1996
extending the mandate given to the Europol Drugs
Unit (2), Joint Action 98/428/JHA of 29 June 1998 on
the creation of a European Judicial Network (3),
Joint
Action 96/277/JHA of 22 April 1996 concerning a
framework for the exchange of liaison magistrates to
improve judicial cooperation between the Member States
of the European Union (4), and Joint Action 98/427/JHA
of 29 June 1998 on good practice in mutual legal assis-
tance in criminal matters (5), as well as acts adopted by
the European Council and the Council, such as Decision
No 276/1999/EC of the European Parliament and of the
Council of 25 January 1999 adopting a multiannual
Community action plan on promoting safer use of the
Internet by combating illegal and harmful content on
global networks (6), and Decision No 293/2000/EC of
the European Parliament and of
the Council of 24
January 2000 adopting a programme of Community
action (the Daphne programme)
(2000 to 2003) on
preventive measures to fight violence against children,
young persons and women (7),

(c) ‘computer system’ shall mean any device or group of inter-
connected or
related devices, one or more of which,
pursuant to a programme, perform 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 intentional conduct is punishable:

(a) coercing a child into prostitution or into participating in
pornographic performances, or profiting from or otherwise
exploiting a child for such purposes;

(b) recruiting a child into prostitution or into participating in

pornographic performances;

(c) engaging in sexual activities with a child, where

(i) use is made of coercion, force or threats;

(ii) money or other forms of remuneration or considera-
tion is given as payment in exchange for the child
engaging in sexual activities; or

(iii) abuse is made of a recognised position of

trust,

authority or influence over the child.

HAS ADOPTED THIS FRAMEWORK DECISION:

Article 1

Definitions

Article 3

For the purposes of this framework Decision:

Offences concerning child pornography

(a) ‘child’ shall mean any person below the age of 18 years;

(b) ‘child pornography’ shall mean pornographic material that

visually depicts or represents:

(i) a real child involved or engaged in sexually explicit
conduct, including lascivious exhibition of the genitals
or the pubic area of a child; or

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

1.
Each Member State shall take the necessary measures to
ensure that the following intentional conduct whether under-
taken by means of a computer system or not, when committed
without right is punishable:

(a) production of child pornography;

(b) distribution, dissemination or transmission of child porno-

graphy;

(c) supplying or making available child pornography;

(d) acquisition or possession of child pornography.

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A Member State may exclude from criminal

2.
conduct relating to child pornography:

liability

(a) referred to in Article 1(b)(ii) where a real person appearing
to be a child was in fact 18 years of age or older at the
time of the depiction;

(b) referred to in Article 1(b)(i) and (ii) where, in the case of
production and possession,
images of children having
reached the age of sexual consent are produced and
possessed with their consent and solely for their own
private use. Even where the existence of consent has been
established, it shall not be considered valid, if for example
superior age, maturity, position, status, experience or the
victim's dependency on the perpetrator has been abused in
achieving the consent;

(c) referred to in Article 1(b)(iii), where it is established that
is produced and possessed by
the pornographic material
the producer solely for his or her own private use, as far as
no pornographic material as referred to in Article 1(b)(i)
and (ii) has been used for the purpose of its production,
and provided that the act involves no risk for the dissemi-
nation of the material.

Article 4

Instigation, aiding, abetting and attempt

1.
Each Member State shall take the necessary measures to
ensure that the instigation of, or aiding or abetting in the
commission of an offence referred to in Articles 2 and 3 is
punishable.

(b) the offences referred to in Article 2(a), consisting in ‘prof-
iting from or otherwise exploiting a child for
such
purposes’, and the offences referred to in Article 2(b), in
both cases as far as they refer to prostitution, where at least
one of the following circumstances may apply:

— the victim is a child below the age of sexual consent

under national law,

— the offender has deliberately or by recklessness endan-

gered the life of the child,

— the offences involve serious violence or caused serious

harm to the child,

— the offences are committed within the framework of a
Joint
the

criminal organisation within the meaning of
Action 98/733/JHA,
penalty referred to in that Joint Action;

irrespective of

the level of

(c) the offences referred to in Article 2(a), consisting in ‘prof-
iting from or otherwise exploiting a child for
such
purposes’, and the offences referred to in Article 2(b), in
both cases as far as they refer to pornographic perfor-
mances, Article 2(c)(ii) and (iii), Article 3(1)(a), (b) and (c),
where the victim is a child below the age of sexual consent
under national law and at least one of the circumstances
referred to under the second, third and fourth indent under
point (b) of this paragraph may apply.

3.
Each Member State shall take the necessary measures to
ensure that a natural person, who has been convicted of one of
the offences referred to in Articles 2, 3 or 4, may, if appro-
priate, be temporarily or permanently prevented from exer-
cising professional activities related to the supervision of chil-
dren.

2.
Each Member State shall take the necessary measures to
ensure that attempts to commit the conduct referred to in
Article 2 and Article 3(1)(a) and (b), are punishable.

Each Member State may provide for other sanctions,
4.
including non-criminal
sanctions or measures, concerning
conduct relating to child pornography referred to in Article
1(b)(iii).

Article 5

Penalties and aggravating circumstances

Article 6

Subject to paragraph 4, each Member State shall take the
1.
necessary measures to ensure that the offences referred to in
Articles 2, 3 and 4 are punishable by criminal penalties of a
maximum of at least between one and three years of imprison-
ment.

2.
Subject to paragraph 4, each Member State shall take the
necessary measures to ensure that the following offences are
punishable with criminal penalties of a maximum of at least
between five and ten years of imprisonment:

(a) the offences referred to in Article 2(a), consisting in ‘coer-
cing a child into prostitution or into participating in porno-
graphic performances’, and the offences referred to in
Article 2(c)(i);

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 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;

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

or

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

2.
Apart from the cases 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 an offence referred
to in Articles 2, 3 and 4.

Article 7

Sanctions on legal persons

1.
Each Member State shall take the necessary measures to
ensure that a legal person held liable pursuant to Article 6(1) 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;

(b) temporary or permanent disqualification from the practice

of commercial activities;

(c) placing under judicial supervision;

(d) a judicial winding-up order; or

(e) temporary or permanent closure of establishments which

have been used for committing the offence.

2.
Each Member State shall take the necessary measures to
ensure that a legal person held liable pursuant to Article 6(2) is
punishable by effective, proportionate and dissuasive sanctions
or measures.

Article 8

Jurisdiction and prosecution

Each Member State shall take the necessary measures to
1.
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;

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

A Member State may decide that it will not apply, or that
2.
it will apply only in specific cases or circumstances, the juris-
diction rules set out in paragraphs 1(b) and 1(c) where 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 one of 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.

Each Member State shall ensure that

5.
its jurisdiction
includes situations where an offence under Article 3 and,
insofar as it is relevant, under Article 4, is committed by means
of a computer system accessed from its territory, whether or
not the computer system is on its territory.

6.
Each Member State shall take the necessary measures to
enable the prosecution, in accordance with national law, of at
least the most serious of the offences referred to in Article 2
after the victim has reached the age of majority.

Article 9

Protection of and assistance to victims

1. Member States shall establish that investigations into or
prosecution of offences covered by this framework Decision
shall not be dependent on the report or accusation made by a
person subjected to the offence, at least in cases where Article
8(1)(a) applies.

2.
Victims of an offence referred to in Article 2 should be
considered as particularly vulnerable victims pursuant to Article
2(2), Article 8(4) and Article 14(1) of Council framework Deci-
sion 2001/220/JHA of 15 March 2001 on the standing of
victims in criminal proceedings (1).

3.
Each Member State shall take all measures possible to
ensure appropriate assistance for the victim's family. In particu-
lar, each Member State shall, where appropriate and possible,
apply Article 4 of
framework Decision to the family
referred therein.

that

Article 10

Territorial scope

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

established in the territory of that Member State.

(1) OJ L 82, 22.3.2001, p. 1.

This framework Decision shall apply to Gibraltar.

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Article 11

Repeal of Joint Action 97/154/JHA

Commission, the Council shall assess the extent to which the
Member States have complied with the provisions of
this
framework Decision.

Joint Action 97/154/JHA is hereby repealed.

Article 12

Implementation

1. Member States shall
take the necessary measures to
comply with this framework Decision by 20 January 2006 at
the latest.

2.
By 20 January 2006 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 legisla-
tion the obligations imposed on them under this framework
Decision. By 20 January 2008 on the basis of a report estab-
lished using this information and a written report from the

Article 13

Entry into force

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

Done at Brussels, 22 December 2003.

For the Council

The President

A. MATTEOLI