Report from the Commission Based on Article 12 of the Council Framework Decision of 22 December 2003 on combating the sexual exploitation of children and child pornography
Date: 2007-11-16
Institutions: European Commission
Subjects: application of EU law, child pornography, child protection, fight against crime, paedophilia, report, sexual violence

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 16.11.2007 
COM(2007) 716 final 

REPORT FROM THE COMMISSION 

Based on Article 12 of the Council Framework Decision of 22 December 2003 on 
combating the sexual exploitation of children and child pornography 

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TABLE OF CONTENTS 

1. 

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

1.1. 

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

2. 

2.1. 

METHOD AND CRITERIA FOR THE EVALUATION ........................................... 3 

Framework Decisions according to Article 34, paragraph (2), point b) of the Treaty 
on European Union ...................................................................................................... 3 

2.2. 

Evaluation criteria ........................................................................................................ 3 

3. 

4. 

ASSESSMENT ............................................................................................................ 4 

Conclusions .................................................................................................................. 8 

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1. 

INTRODUCTION 

1.1. 

Background 

Under Article 12 (2) of the Council Framework Decision 2004/68/JHA of 22 December 2003 
on  combating  the  sexual  exploitation  of  children  and  child  pornography  (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  20  January  2006.  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 20 January 2008, have assessed 
the  extent  to  which  Member  States  have  complied  with  the  provisions  of  this  Framework 
Decision. 

The value of this report therefore depends to a large extent on the information received by the 
Commission  from  the  Member  States.  By  January  2006  only  two  Member  States  (Belgium 
and Austria) had notified the Commission of the measures taken to implement the Framework 
Decision.  The  Commission  reminded  Member  States  of  their  obligation  to  provide  the 
relevant information by means of a letter sent on 8 June 2006. By the end of April 2007, the 
Commission  had  received  no  contributions  from  three  Member  States,  namely,  Greece, 
Portugal and Malta. 

2. 

2.1. 

METHOD AND CRITERIA FOR THE EVALUATION  

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) . 
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,  and  the  Commission  cannot  take  legal  action  before  the 
Court of Justice to enforce the transposition 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 evaluate objectively 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 
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OJ L 13/44 – 20 January 2004. 
Article 249 EC Treaty. 

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1. 

2. 

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; 

3. 

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  

This report – where possible – based on the criteria outlined above. 

3. 

ASSESSMENT 

Sexual exploitation of children and child pornography constitute serious violation of human 
rights.  This  Framework  Decision  was  intended  to  complement  the  existing  instruments 
already  adopted  by  the  Council  to  combat  against  sexual  exploitation  of  children  and  child 
pornography.7  

The Framework Decision approximates the laws of the Member States in the area of the fight 
against  sexual  exploitation  of  children  and  child  pornography.  Therefore,  the  Framework 
Decision introduces a common framework of provisions at European level in order to address 
criminalisation,  penalties  and  other  sanctions,  aggravating  circumstances,  jurisdiction, 
prosecution as well as protection of and assistance to victims. Member States' legal systems 
can vary greatly, and in many cases legal concepts and expressions cannot always be easily 
compared to one another. 

Though  the  evaluation  can  and  will  refer  to  each  Article  of  the  Framework  Decision  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. The evaluation shall take account, as far as appropriate, of the general criminal legal 
background of the Member States. 

The information the Commission has received varies considerably, especially in terms of its 
completeness.  Not  all  Member  States  have  sent  the  Commission  all  relevant  texts  of  their 
implementing provisions. The Commission received no information from Greece, Malta, and 

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7 

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. 
OJ L 322, 12.12.1996, p. 7; OJ L 342, 31.12.1996, p. 4.; OJ L 191, 7.7.1998, p. 4. OJ L 105, 27.4.1996, 
p. 1;OJ L 191, 7.7.1998, p. 1; OJ L 33, 6.2.1999, p. 1; OJ L 34, 9.2.2000, p. 1. 

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Portugal. Gibraltar has not transposed the measures contained in the Framework Decision, but 
is in the process of introducing legislation to enable it to do so. 

Article 1: Definition 

Article  1  (a),  contains  the  definitions  and  meaning  of  several  terms  dealt  with  in  the 
Framework Decision. One major item concerns the definition of the "child", which means any 
person  below  the  age  of  18.  The  age  of  eighteen  is  also  in  conformity  with  the  UN 
Convention  on  the  Rights  of  the  Child  of  20  November  1989.  In  fact,  one  of  the  main 
objectives  of  the  Framework  Decision  is  to  approximate  the  level  of  protection  of  children 
from sexual exploitation and child pornography in the Member States' legislation. 

A different topic is the age for sexual consent, that varies in Member States' legislation from 
the age of 13 in Spain to 17 in Ireland (Austria 14, Belgium 16, Czech Republic 15, Denmark 
15, Estonia 14, Finland 16, France 15, Germany 16, Hungary 14, Ireland 17, Italy 14, Latvia 
16, Lithuania 14, Luxembourg 16, The Netherlands 16, Poland 15, Slovakia 15, Slovenia 15, 
Spain 13, Sweden 15, UK 16). 

The age of sexual consent is relevant to the obligation to criminalize child pornography which 
is defined in Article 1 (b). 

The depiction of children engaged in sexually explicit conduct is normally not allowed when 
the child is under 18. However, Article 3 allows only in certain specific cases exclusion from 
criminal liability for child pornography involving children who have reached the age of sexual 
consent. Therefore the Framework Decision ensures a strong protection of any child below 18 
from exploitation in child pornography, and only allows limited exceptions between the age 
of sexual consent and the age of 18. 

In practice the level of protection varies in every Member State according to the different age 
of sexual consent. However, harmonization of the age of sexual consent, which is connected 
with other issues like the age for marriage, has not been identified as an objective for the time 
being. 

Article  1  (b)  defines  child  pornography  as  pornographic  material  that  visually  depicts  or 
represents  a  real  child  engaged  in  sexually  explicit  conduct,  or  a  person  appearing  to  be  a 
child,  or  realistic  images  of  a  non-existing  child.  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  which  can  be  converted  into  a  visual  image.  Many  Member  States 
have  adopted  legislation  which  is  consistent  with  the  definition  of  child  pornography  in 
Article  1(b)  of  the  Framework  Decision.  Czech  Republic,  Estonia,  Latvia,  Lithuania, 
Luxembourg,  Poland,  Spain  and  Sweden  do  not  have  a  detailed  definition  of  child 
pornography. 

Regarding paragraph (c) (definition of a computer system) the Czech Republic, Lithuania and 
Poland  have  not  forwarded  the  relevant  documentation  to  evaluate  their  implementation 
properly. 

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

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Article 2: Offences concerning sexual exploitation of children 

The Council, when it adopted this Framework Decision, was aware of the need to deal with 
serious criminal offences, such as the sexual exploitation of children and child pornography, 
by  a  comprehensive  approach  in  which  substantive  criminal  law  including  effective, 
proportionate and dissuasive sanctions, form an integral part together with the widest possible 
judicial cooperation. 

In  this  regard  the  Member  States  forwarded  to  the  Commission  a  wide  range  of  legal 
measures  applicable  to  the  offender.  Legislation  in  force  in  Hungary,  Finland,  Czech 
Republic,  France,  Latvia  and  Slovakia  covers  all  the  points  listed  in  Article  2  of  the 
Framework Decision but further details would be useful. As already stated, the Commission 
works mainly through translated documents, and therefore misunderstandings are possible. 

In  addition,  the  Member  States'  legal  systems  can  vary  widely.  This  is  why  legal  concepts 
cannot always be compared. 

However,  a  general  overview  of  national  legislation  shows  that  the  provisions  applicable  in 
Member States mostly comply with the requirements of the Framework Decision with respect 
to  the  obligation  to  criminalise  the  coercing  or  recruiting  a  child  into  prostitution  or  into 
participating in pornographic performances, and the engaging in sexual activities with a child 
when  a  remuneration  is  paid,  or  use  is  made  of  coercion,  or  abuse  is  made  of  a  recognised 
position of authority or influence over a child. 

Article 3: Offences concerning child pornography 

This  Article  provides  for  approximation  of  offences  related  to  child  pornography  which 
include production, distribution, dissemination or transmission, acquisition or possession, the 
supplying or making available of child pornography. 

Article 3(2) provides for limited exceptions to the obligation to criminalise, when the person 
appearing a child is in fact 18 years of age, when child pornography involves realistic images 
of  a  non-existing  child  and  it  is  produced  and  possessed  for  private  use.  In  these  cases  the 
rational of the exemption from criminal liability is that no child is involved in the production 
of pornographic materials. 

A further exemption, which has been mentioned above, concerns the cases of production and 
possession  of  images  of  children  that  have  reached  the  age  of  sexual  consent,  when 
pornographic images are produced or possessed whit the consent of the child and solely for 
private  use.  However,  in  this  case  the  consent  shall  not  be  considered  valid  if  for  example 
superior  age,  maturity,  position,  status,  experience  or  the  victim's  dependency  has  been 
abused  in  achieving  the  consent.  This  provision  implies  a  restriction  of  the  scope  of 
criminalisation  of  child  pornography  between  the  age  of  sexual  consent  and  the  age  of 
18 years,  when  the  child  genuinely  consented  to  the  production  and  private  use  of 
pornographic materials. 

Whilst national legislation seems to comply with the minimum requirement of criminalisation 
of child pornography, there is a general lack of information concerning the exceptions under 
Article 3(2). The Commission only received complete information from Hungary, Lithuania, 
Italy, Denmark, Germany and Cyprus. Therefore it is not possible to evaluate the real level of 
protection of children above the age of sexual consent, which is a sensitive issue especially in 
countries where the age of sexual consent is below 16. 

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Article 4: Instigation, aiding, abetting and attempt 

In  the  information  provided  to  the  Commission  most  Member  States  referred  to  the  general 
rules  on  complicity  and  inchoate  offences  under  their  criminal  system.  The  general  rules 
would also be applicable to the crime committed toward minors, namely sexual exploitation 
and crime related to child pornography. 

Article 5: Penalties and aggravating circumstances 

This  Article  is  one  of  the  key  provisions  of  the  Framework  Decision.  Paragraph  1  mainly 
implies that offences contained in Articles 2, 3 and 4 of the Framework Decision should in all 
cases be sanctioned with imprisonment of a maximum of at least between one and three years. 
This  provision  is  intended  to  ensure  a  minimum  harmonisation  in  relation  to  the  penalties 
applicable to the offenders. All Member States seem to comply with the requirements of the 
Framework  Decision.  The  documentation  forwarded  to  the  Commission  by  Spain,  Slovenia 
Estonia and Luxemburg has not allowed the Commission to establish a clear picture about the 
legal system implementing the requirements of Article 5(3) of the Framework decision. 

Article 6 and 7: Liability and sanctions on legal persons 

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 by a person who exercises a power of decision. It is not a requirement that the 
liability of the legal persons be exclusively criminal. Sanctions against legal persons must be 
"effective, proportionate and dissuasive". In any case, as regards the information on national 
systems submitted to the Commission, the legislation of most Member States provides for the 
possibility  of  applying  sanctions  against  legal  persons,  at  least  by  means  of  administrative 
measures. Article 7 (1) of the Framework Decision states that the minimum obligation, as far 
as sanctions on legal persons are concerned, is the imposition of a criminal or non-criminal 
fine. As far as administrative or criminal measures are concerned, Articles 6 and 7 appear to 
have largely been implemented. 

Article 8: Jurisdiction and Prosecution 

Article 8 of the Framework Decision sets out the cases in which Member States are obliged to 
establish jurisdiction over the offences referred to in Articles 2, 3 and 4. The main rule is the 
territoriality principle, according to which each Member State must establish its jurisdiction 
over offences committed in whole or in part in its territory. Article 8(3) has been replaced by 
the  Decision  on  the  European  Arrest  Warrant.8  Member  States  are  in  compliance  with  the 
requirement of the Article 8(1)(a) Framework Decision of the territoriality principle. 

Article 8(1)(b) establishes the rule of extra-territorial jurisdiction when the offender is one of 
the  national  of  the  country  concerned.  This  provision  is  particularly  important  to  ensure 
effective  prosecution  of  the  so  called  sex  tourism,  which  occurs  when  any  act  of  sexual 
exploitation  of  children  is  committed  abroad.  In  principle,  the  Member  States  should 
guarantee the same level of protection of children regardless whether they are resident in one 
or another country. Taking into account different legal systems' requirements, Article 8(1)(b) 

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Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the 
surrender procedures between Member States. OJ L 190, 18.7.2002. 

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allows  the  Member  States  to  not  apply  or  apply  only  in  specific  cases  or  circumstances  the 
jurisdiction  rules  when  the  offence  is  committed  outside  the  territory.  Concerning  extra-
territorial  jurisdiction,  however,  Member  States  did  not  offer  sufficient  information  to 
evaluate how far they have gone in the implementation of such a rule. 

Article 9: Protection of and assistance to victims 

Article  9  regulates  three  different  issues.  The  first  paragraph  states  that  investigation  or 
prosecution  of  offences  covered  by  the  Framework  Decision  shall  not  be  dependent  on  the 
report  or  accusation  made  by  the  victim  when  territorial  jurisdiction  rule  applies.  Generally 
speaking Member States legislation complies with this obligation. 

Paragraph  2  of  Article  9  refers  to  child  victims  of  sexual  exploitation,  who  are  considered 
particularly vulnerable victims for the purpose of the Framework Decision 2001/220/JHA of 
15  March  2001  on  the  standing  of  victims  in  criminal  proceedings.9  Member  States' 
submissions  to  the  Commission  are  fragmental  and  incomplete,  and  do  not  facilitate  an 
overall  analysis.  Sweden,  Denmark,  the  Netherlands,  Italy,  Germany,  Slovakia  and  the  UK 
satisfactorily responded to the Framework Decision requirements. New legislation passed in 
Cyprus in 2007 contains a comprehensive framework for the recognition, referral to services 
and  protection  of  victims  which  fully  complies  with  the  requirements  of  Article  13  of  the 
Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal 
proceedings with respect to sexually exploited children. 

The third paragraph of Article 9 obliges the Member States to provide for specific protection 
of  and  assistance  to  the  victim's  family,  taking  into  account  Article  4  of  the  Council 
Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal 
proceedings.  Germany,  Latvia,  Sweden,  UK,  Austria  and  Estonia  have  provided  the 
Commission  with  information  showing  that  they  are  in  line  with  the  Framework  Decision. 
Other Member States have not provided any information on this item. 

4. 

CONCLUSIONS  

Not all Member States have transmitted all relevant texts of their implementing provisions to 
the Commission on time. The assessments and conclusions of the Report may thus sometimes 
be based on incomplete information. 

On the basis of the information provided, the requirements set out in the Council Framework 
Decision have been met by almost all of the Member States, either as a result of pre-existing 
domestic  laws,  or  through  the  implementation  of  new  and  specific  legislation.  Generally 
speaking, Member States legislation ensures a high level of protection of children from sexual 
exploitation  and  abuse,  and  provides  for  an  appropriate  level  of  penalties.  Concerning  child 
pornography,  the  requirement  concerning  criminalization  of  production  of  pornographic 
materials involving children is generally met, although it is not possible to provide a precise 
assessment  of  the  range  of  exemption  from  criminal  liability  concerning  child  pornography 
involving children between the age of sexual consent and 18 years. 

Where 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 

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Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal 
proceedings; OJ L 82, 22.3.2001 

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provisions  incriminating  the  sexual  exploitation  of  children  and  child  pornography,  and 
provide for effective, proportionate and dissuasive penalties. 

As also stated in  the  report on the implementation of the Framework  Decision 2002/629  on 
combating  trafficking  in  human  beings  adopted  by  the  Commission  on  2  May  2006,  it  is 
difficult to provide an exhaustive evaluation in respect of legislation concerning particularly 
vulnerable  victims,  due  to  the  limited  information  received  by  Member  States.  A  victim-
friendly  approach  in  criminal  proceedings,  as  well  as  a  good  level  of  social  assistance  of 
victims  during  and  after  criminal  proceedings  is  crucial  in  order  to  avoid  secondary 
victimisation, and ensure effective prosecution of crimes. Therefore the Commission invites 
Member States to reconsider carefully their own legislation with a view to strengthening the 
social protection and ensuring full respect of the rights of child victims. 

Taking  into  account  recent  developments,  in  particular  in  the  field  of  electronic 
communication technologies, new issues have been raised, for example regarding fraudulent 
solicitation of children for illicit purposes through the Internet ("grooming"). Simultaneously, 
new methods aimed at effectively detecting such crimes and identifying child victims through 
specialised  law  enforcement  units  are  being  developed.  In  the  light  of the  outcome  of  these 
discussions,  the  Commission  may  consider  the  need  to  update  and  further  strengthen  the 
present  Framework  Decision  regarding  child  exploitation  and  related  offences,  in  particular 
offences committed through electronic communication networks and information systems. 

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