Report from the Commission to the Council and the European Parliament based on Article 10 of the Council Framework Decision of 19 July 2002 on combating trafficking in human beings {SEC(2006) 525}
Date: 2006-05-02
Institutions: European Commission
Subjects: EU police cooperation, application of EU law, approximation of laws, criminal law, report, trafficking in human beings

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 02.05.2006 
COM(2006) 187 final 

REPORT FROM THE COMMISSION  
TO THE COUNCIL AND THE EUROPEAN PARLIAMENT 

Based on Article 10 of the Council Framework Decision of 19 July 2002 on combating 
trafficking in human beings 

{SEC(2006) 525} 

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TABLE OF CONTENTS 

1. 

INTRODUCTION........................................................................................................ 3 

1.1. 

Background .................................................................................................................. 3 

2. 

2.1. 

2.2. 

2.3. 

3. 

4. 

METHOD AND CRITERIA FOR THE EVALUATION OF THIS FRAMEWORK 
DECISION ................................................................................................................... 4 

Framework-Decisions according to Article 34, paragraph (2), point b) of the Treaty 
on European Union ...................................................................................................... 4 

Evaluation criteria ........................................................................................................ 4 

Context of evaluation ................................................................................................... 5 

ASSESSMENT ............................................................................................................ 5 

CONCLUSION ............................................................................................................ 8 

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1. 

INTRODUCTION 

1.1. 

Background 

Under  Article  10  (2)  of  the  Council  Framework  Decision  of  19  July  2002  on  combating 
trafficking  in  human  beings  (hereafter  “the  Framework  Decision”)  the  Commission  has  to 
provide  a  written  report  on  the  measures  taken  by  the  Member  States  to  comply  with  the 
Framework Decision 1. 

Paragraph  (1)  of  that  Article  obliges  the  Member  States  to  take  the  necessary  measures  to 
comply  with  the  provisions  of  the  Framework  Decision  by  1  August  2004.  According  to 
paragraph (2), Member States should forward to the General Secretariat of the Council and to 
the Commission by the same day the text of the provisions transposing into their national law 
the obligations arising from the Framework Decision. On the basis of this information, and a 
written report by the Commission, the Council should, by the 1 August 2005, have assessed 
the  extent  to  which  Member  States  have  taken  the  necessary  measures  to  comply  with  the 
Framework Decision.  

The  value  and  punctuality  of  this  report  therefore  largely  depends  upon  the  quality  and 
punctuality  of  the  information  received  by  the  Commission  from  the  Member  States.  The 
Commission reminded Member States of their obligation to provide the relevant information 
by means of a letter sent on 29 July 2004. 

By 1 August 2004, however, only four Member States (France, Finland, Cyprus and Austria) 
had  notified  the  Commission  of  the  measures  taken  to  implement  the  Framework  Decision. 
By February 2005, fifteen Member States (the aforementioned plus Germany, Estonia, Czech 
Republic,  Malta,  Spain,  Greece,  Latvia,  Hungary,  Slovak  Republic,  Sweden  and  the  United 
Kingdom) had provided the Commission with the relevant information. Italy, the Netherlands 
and Slovenia replied before May 2005, Denmark on 13 July 2005 and Belgium provided the 
final  reply  on  29  September  2005.  Although  Poland  provided  the  information  on  4  January 
2006,  the  Report  contains  only  limited  information  on  Polish  implementation  of  the 
Framework Decision.  

Finally, by the end of 2005, the Commission had received no or only preliminary information 
regarding the implementation of the Framework Decision from four Member States: Portugal, 
Luxembourg,  Ireland  and  Lithuania.  As  a  result,  when  analysing  implementation  measures, 
the Report will not refer to these Member States. 

Therefore,  although  the  deadline  for  forwarding  the  text  of  implementing  provisions  was  1 
August 2004, information provided until the end of January 2006 has been taken into account 
in the Report as far as is possible. 

This Report thus takes stock of the national transposing legislation that has been forwarded to 
the Commission by the end of January 2006. A Commission staff working paper attached to 
this Report contains a detailed analysis of the national measures taken by Member States in 
order to comply with the Framework Decision. 

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OJ L 203 – 1 August 2002 

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2. 

2.1. 

METHOD  AND  CRITERIA  FOR  THE  EVALUATION  OF  THIS 
FRAMEWORK DECISION  

Framework-Decisions  according  to  Article  34,  paragraph  (2),  point  b)  of  the 
Treaty on European Union 

This  Framework  Decision  is  based  on  the  Treaty  of  the  European  Union  (TEU),  and  in 
particular Article 29, Article 31 (e) and Article 34(2) (b) thereof. 

Framework  decisions  can  best  be  compared  with  the  legal  instrument  of  a  Directive2.  Both 
instruments are binding upon Member States as to the result to be achieved, but leave to the 
national authorities the choice of form and method for implementation. Framework decisions 
do not have direct effect however. The Commission has no legal action before the Court of 
Justice  -  at  least  in  the  current  state  of  development  of  European  Law  -  to  enforce  the 
transposition  at  Member  States  level  of  a  Framework  Decision.  Nonetheless,  the  Court  of 
Justice  can  rule  on  any  dispute  between  Member  States  regarding  the  interpretation  or  the 
application (including the transposition) of the Framework Decision. The possible exercise of 
this right requires a solid factual basis, which the Commission's Report can help to establish. 

2.2. 

Evaluation criteria 

In order to be able to evaluate on an objective basis whether a framework decision has been 
fully  implemented  by  a  Member  State,  some  general  criteria  have  been  developed  with 
respect to Directives which should be applied mutatis mutandis to Framework Decisions: 

1. 

2. 

3. 

The form and methods of implementation of the result to be achieved must be 
chosen in a manner which ensures that the Directive functions effectively with 
account being taken of its aims3; 

Each  Member  State  is  obliged  to  implement  Directives  in  a  manner  which 
satisfies  the  requirements  of  clarity  and  legal  certainty,  and  thus  to  transpose 
the  provisions  of  the  Directive  into  national  provisions  which  have  binding 
force4 , 

Transposition  need  not  necessarily  require  enactment  in  precisely  the  same 
words  used  in  a  Directive.  Thus,  for  example,  appropriate  and  pre-existing 
national  measures  may  be  sufficient,  as  long  as  the  full  application  of  the 
Directive is assured in a sufficiently clear and precise manner5; 

4.  Directives must be implemented within the period prescribed therein.6  

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Article 249 EC Treaty. 
See relevant case law on the implementation of directives: Case 48/75 Royer [1976 ECR 497 at 518 
See relevant case law on the implementation of directives: Case 239/85 Commission v. Belgium [1986] 
ECR 3645 at 3659. See also Case 300/81 Commission v. Italy [1983] ECR 449 at 456.  
See  relevant  case  law  on  the  implementation  of  directives  for  instance  Case  29/84  Commission  v. 
Germany [1985] ECR 1661 at 1673.  
See substantial case law on the implementation of directives, for example : Case 52/75 Commission v. 
Italy  [1976]  ECR  277  at  284,  See,  generally,  the  Commission  annual  reports  on  monitoring  the 
application of Community law, for instance COM (2001) 309 final. 

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Both types of instruments are binding 'as to the results to be achieved'. That may be defined as 
a  legal  or  factual  situation  which  does  justice  to  the  envisaged  result  that  the  Treaty 
instrument in question was intended to ensure7 . 

The  general  assessment  provided  of  the  extent  to  which  the  Member  States  have  complied 
with the Framework Decision is -where possible- based on the criteria outlined above. 

2.3. 

Context of evaluation 

A preliminary observation concerns the legal context and follow up of the evaluation report. 
As  already  mentioned,  within  the  first  pillar,  the  Commission  has  the  ability  to  start 
infringement  procedures  against  Member  States.  Since  this  possibility  does  not  exist  within 
the TEU, the nature and purpose of this report differs from a report on the implementation of 
a first pillar Directive by Member States. Nevertheless, as the Commission fully participates 
in  third  pillar  matters8,  it  is  coherent  to  confer  on  it  the  task  of  carrying  out  a  factual 
evaluation of the implementation measures. This, in turn, will enable the Council to assess the 
extent to which Member States have taken the necessary measures in order to comply with the 
Framework Decision. 

A  second  preliminary  observation  concerns  the  specific  nature  of  the  field  being  regulated. 
The Framework Decision is aimed at combating trafficking in human beings, and introducing 
a minimum harmonisation of penalties. 

Since  the  1997  adoption  of  a  joint  action  by  the  Council  concerning  measures  to  combat 
trafficking in human beings and the sexual exploitation of children9, the number of initiatives 
has increased considerably at both national and regional levels. Both the Vienna Action Plan10 
and  the  Tampere  European  Council11  called  for  additional  provisions  in  order  to  further 
regulate certain aspects of criminal law and criminal procedure. 

This  Framework  Decision  was  intended  to  complement  the  existing  instruments  used  to 
combat trafficking in human beings. 

Though  the  evaluation  can  and  will  refer  to  each  Article,  these  cannot  necessarily  be 
contemplated  in  isolation  from  one  another.  Partial  or  non-implementation  of  an  Article  or 
part of an Article will also reflect on linked provisions, which considered independently might 
seem to comply with the requirements of the Framework Decision - it will affect the system 
as  a  whole.  The  evaluation  shall  take  account,  as  far  as  appropriate,  of  the  general  criminal 
legal background of the Member States. 

3. 

ASSESSMENT 

The objective of the Framework Decision is to approximate the laws of the Member States in 
the  area  of  police  and  judicial  cooperation  in  criminal  matters  relating  to  the  fight  against 
trafficking in human beings. Furthermore, it introduces a common framework of provisions at 

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See PJG Kapteyn and P. Verloren van Themaat 'Introduction to the Law of the European Communities', 
third edition, 1998, p. 328. 
Article 36 (2) Treaty on European Union. 
OJ L 63,4.3.1997, p. 2. 
OJ C 19, 23.1.1999, p. 1. 
http://europa.eu.int/council/off/conclu/oct99/oct99_en.htm 

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European level in order to address certain issues such as criminalisation, penalties and other 
sanctions,  aggravating  circumstances,  jurisdiction,  prosecution  as  well  as  protection  of  and 
assistance to victims.  

In  this  respect,  not  all  Member  States  have  sent  the  Commission  all  relevant  texts  of  their 
implementing  provisions.  The  factual  assessment  and  subsequent  conclusions  are  therefore 
sometimes  based  on  incomplete  information.  The  Commission,  for  example,  received  no 
information  pertaining  to  the  implementation  of  the  Framework  Decision  from  Ireland, 
Luxembourg, Portugal and Lithuania. 

It  should  likewise  be  noted  that  Member  State  legal  systems  can  vary  greatly,  and  that  in 
many cases legal concepts and expressions cannot always be easily compared to one another. 
Furthermore, the existence of legislation does not always guarantee full implementation – this 
is  also  a  matter  of  the  degree  to  which  national  courts  and/or  administrations  enforce  such 
legislation, and in what spirit. Given the nature of the information submitted, the Commission 
does not necessarily have the information to evaluate such enforcement. 

Article 1  

Article  1  defines  trafficking  in  human  beings  as  being  for  the  purpose  of  labour  or  sexual 
exploitation.  The  Member  States  must  incriminate  any  form  of  recruitment,  transportation, 
transfer or harbouring and any other treatment of a person covered by this definition. Thus, in 
particular all criminal conduct which abuses the physical or mental vulnerability of a person 
should be punishable.  

On this point the legislation of almost all Member States appear to reflect the provisions of 
the  Framework  Decision.  As  such,  a  large  majority  of  the  Member  States  seem  to  comply 
with  Article  1  –  and  so  satisfy  the  Framework’s  Decision  requirements  in  this  respect.  All 
Member States have established offences specifically related to trafficking in human beings, 
albeit  with  some  differences  due  to  different  methodological  traditions.  Furthermore,  the 
consent  of  the  victim  to  the  exploitation12  shall  be  irrelevant  when  means  such  as  coercion, 
deceit, etc. have been used. Some Member States have provisions that comply explicitly with 
article 1(2) (Germany, Belgium, Italy, Latvia, Sweden, Slovakia, Austria, Malta, France and 
The Netherlands).  

In  the  document  forwarded  to  the  Commission,  however,  no  specific  offences  as  defined  in 
the Framework Decision could be found in Polish and Estonian legislation.  

Article 2 

According to the information provided to the Commission, most Member States have simply 
referred  to  the  pre-existing  general  rules  on  complicity  and  inchoate  offences  under  their 
respective  criminal  systems.  Some  Member  States  did  not  provide  detailed  information 
concerning the provisions on abetting. They mention in their forwarded documents what their 
provisions  were  in  relation  to  those  who  abetted  offences  (Denmark,  Latvia,  Slovakia  and 
Estonia).  Cyprus  and  Finland  did  not  provide  the  Commission  of  information  regarding 
instigation. Greece and Slovenia did not supply the Commission with information regarding 
Article  2  of  the  Framework  Decision.  In  conclusion  this  requirement  of  the  Framework 
Decision  appears  to  be  satisfied  in  almost  all  cases,  though  only  some  Member  States  have 

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Article 1(2) of the Council Framework Decision 2002/629/JHA 

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specific  provisions  on  the  issue.  More  commonly,  Member  States  generally  have  general 
provisions  concerning  instigation,  aiding,  abetting  and  attempt  that  also  apply  to  offences 
concerning trafficking in human beings.  

Article 3 

Human trafficking is a serious crime, often committed against particularly vulnerable persons, 
and  must  be  punishable  with  effective,  proportional  and  dissuasive  penalties.  It  must  be 
addressed  not  only  through  individual  national  action,  but  by  a  comprehensive  approach  in 
which a common definition of the constituent elements of the offence is established within all 
Member States. Special attention must be paid to penalties for offences that are committed in 
aggravating  circumstances,  for  example  when  the  life  of  the  victim  has  been  endangered  or 
where  serious  violence  was  used  against  the  victim.  The  question  as  to  whether  or  not 
criminal  penalties  which  can  be  imposed  by  Member  States  are  sufficiently  effective  and 
dissuasive can be answered in the affirmative. In most cases Member States have provided for 
severe  maximum  penalties  for  offences  pertaining  to  human  trafficking;  in  particular  for 
offences  committed  in  aggravating  circumstances,  with  life  imprisonment  being  the 
punishment in some cases. According to Article 3 (2) (b) of the Framework Decision Member 
States have different penalties depending of the age of the victim for offences committed for 
the  purpose  of  sexual  exploitation.  However,  the  question  may  be  raised  if  all  trafficking 
offences  against  children  (i.e.  including  trafficking  for  labour  exploitation  and  covering  all 
persons below the age of eighteen years and not only below the age of sexual consent) should 
be  considered  as  committed  under  aggravating  circumstances.  Such  a  comprehensive 
approach  seems  to  ensure  more  adequate  protection  for  children  and  to  be  more  consistent 
with  the  Convention  on  the  Rights  of  the  Child  of  1989  (CRC)i  as  the  most  important 
international child rights instrument, which also includes provisions on child traffickingii and 
applies to every child under the age of 18 years.  

Article 4 and 5 

The Framework Decision introduces the concept of liability of legal persons in parallel with 
that  of  natural  persons.  Legal  persons  will  be  held  liable  for  offences  committed  for  their 
benefit by any person acting either individually or as part of the organ of the legal person, or, 
for example who exercises a power of decision. Sanctions on legal persons will be "effective, 
proportionate  and  dissuasive";  they  shall  include  criminal  or  non-criminal  fines  and  may 
include  specific  sanctions  such  as  a  temporary  or  definitive  ban  on  commercial  activities,  a 
judicial dissolution measure or exclusion from public benefits or advantages. The legislation 
of  most  of  the  Member  States  provides  for  the  possibility  of  sanctioning  legal  persons  by 
means  of  criminal  or  administrative  measures.  It  is  only  under  the  legislation  of  the  Czech 
Republic, Latvia and the Slovak Republic that legal persons cannot be held liable for criminal 
offences. Article 5 of the Framework Decision states that the minimum obligations as far as 
sanctions on legal persons are concerned is the imposition of criminal or non criminal fines. 
As such, Articles 4 and 5 appear to have largely been implemented. 

Article 6 

All  Member  States  will  presumably  be  able  to  comply  with  this  Article  as  regards  the 
application  of  the  territoriality  principle  as  set  out  in  Article  6(1)(a).  As  regards  extra-
territorial jurisdiction, a majority of Member States have or will have rules which to different 
extents  cover  the  principles  of  active  and  passive  personality,  as  required  in  Article  6(1)(b) 
and  (c).  It  seems  that  the  vast  majority  of  the  Member  States  establish  jurisdiction  over 

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offences that are committed abroad by their own nationals according by article 6(1)(b). This is 
particularly  important  as  trafficking  in  human  beings  often  has  a  trans-national  dimension. 
The  general  situation  with  regard  to  Article  6(1)(c)  of  the  Council  Framework  Decision 
concerning jurisdiction over offences committed for the benefit of a legal person established 
in  the  territory  of  the  Member  State,  is  less  clear.  Some  Member  States,  for  example  the 
United Kingdom, implemented the provision. Others, for example Denmark, decided that they 
will not apply this jurisdiction rule as far as the offence is committed outside its territory and 
informed  the  Commission  in  accordance  with  Article  6(2)  and  (4).  Also  Hungary  does  not 
establish its jurisdiction according to Article 6(1)(c) even if the liability of the legal persons is 
generally regulated by Hungarian law. 

Article 7 

Article 7 regulates two different issues; firstly, it provides that trafficking offences shall not 
be dependent upon a report or accusation made by the victim. In general Member States seem 
to comply with this obligation. Secondly Article 7 obliges the Member States to provide for 
specific protection of and assistance to victims, in particular children. This mainly concerns 
the application of Council Framework Decision 2001/220/JHA of 15 March 2001 on victims 
in  criminal  proceedings.  However,  only  a  few  Member  States  sent  relevant  information 
regarding implementation of Article 7 to the Commission. As such, it is difficult to evaluate 
this aspect of implementation.  

Article 8 

The Commission has not received specific information on transposition in Gibraltar. 

4. 

CONCLUSION 

It should be noted that not all Member States have transmitted to the Commission all relevant 
texts of their implementing provisions in a timely fashion. The assessments and conclusions 
of the Report are therefore sometimes based on incomplete information. 

On the basis of the information provided, the requirements set out in the Council Framework 
Decision appear to have been largely met by Member States – either as a result of pre-existing 
domestic  laws,  or  through  the  implementation  of  new  and  specific  legislation.  Where  it 
appears that the Council Framework Decision has not been given effect in national provisions, 
the  Commission  invites  the  relevant  Member  States  to  correct  this  situation  as  soon  as 
possible through the introduction of implementing legislation. 

Nonetheless,  as  a  result  of  the  Council  Framework  Decision  Member  States  generally  now 
dispose of specific criminal law provisions incriminating trafficking in human beings for the 
purpose  of  sexual  and  labour  exploitation,  and  providing  for  effective  proportionate  and 
dissuasive  penalties.  Moreover  particularly  severe  penalties  are  foreseen  for  offences 
committed  in  aggravating  circumstances.  On  the  other  hand,  the  levels  of  penalties  in  the 
Member States vary considerably and the Commission may have to examine the possibility of 
further  harmonisation  in  that  regard.  In  general,  there  was  no  need  for  Member  States  to 
amend their domestic legislation in order to comply with Article 6 of the Council Framework 
Decision, as pre-existing measures were already in place. Generally speaking, Member States 
comply  with  Article  7(1)  of  the  Framework  Decision;  however  protection  and  assistance 

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regimes  may  be  subject  to  further  examination  as  the  Commission  received  only  limited 
information concerning the implementation of Article 7(2) and (3).  

As  regards  particularly  vulnerable  victims,  the  Commission  again  only  received  limited 
information, and thus cannot provide an exhaustive evaluation in this respect. In accordance 
with  the  Action  Plan  adopted  by  the  Council  on  1-2  December  2005,  the  Commission  will 
further develop legislation in respect of vulnerable victims involved in criminal proceedings. 
In order to do so, the Commission will need further specific information on relevant Member 
State legislation. Furthermore the Commission may have to gather information reflecting the 
views  of  victim  support  authorities  or  organizations  in  order  to  fully,  and  as  objectively  as 
possible, asses the impact of the Framework Decision on the practice of victim support and 
assistance.  Finally,  it  should  be  noted  that  once  a  report  has  been  submitted  on  the  Council 
Framework  Decision  on  combating  sexual  exploitation  and  child  pornography  of  22 
December  200313,  for  which  the  implementation  deadline  was  20  January  2006,  the 
Commission  will  be  able  to  present  a  fuller  picture  on  the  implementation  of  human 
trafficking  relevant  legislation  in  the  Member  States.  This picture  will  be  further  completed 
by  the  report  on  the  application  of  Council  Framework  Decision  2002/946/JAI  on  the 
strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit 
and  evidence,  of  Directive  2004/81/EC  on  the  residence  permit  issued  to  third-country 
nationals who are victims of trafficking in human beings or who have been the subject of an 
action to facilitate illegal immigration, who cooperate with the competent authorities, that the 
Commission is due to present by 6 August 2008 (Article 16 of the Directive). 

i Hereinafter referred to as CRC. More detailed information concerning contents and status of ratification on the 
websites of UNHCHR (http://www.unhchr.ch/html/menu2/6/crc/treaties/crc.htm) or UNICEF 
(http://www.unicef.org/crc/crc.htm). 
ii According to the CRC children are not only (real or potential) victims in need of protection but they also have 
rights that are clearly set out in the CRC: the promotion of the best interests of the child (Art. 3), the non-
discrimination principle (Art. 2), the right to participate (Art. 12), the right to survival and development (Art. 6). 
The views of the child must be given due weight in accordance with his/her age and maturity in consistence with 
Article 12 of the CRC. The CRC contains specific provisions (Articles 32, 33, 34, 35, 36) dealing with 
exploitation, abuse and trafficking. With regard to the definition of “exploitation” the CRC states the right of the 
child to be protected from “economic exploitation and from performing any work that is likely to be hazardous 
or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, 
moral or social development” as well as from all forms of sexual exploitation and sexual abuse, in particular the 
exploitation of children in prostitution or pornography. Other relevant articles include the right to protection of 
children deprived of their family (Art. 20) and the non use of detention (Art. 37). 

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