Proposal for a Council Framework Decision on preventing and combating trafficking in human beings, and protecting victims, repealing Framework Decision 2002/629/JHA {SEC(2009) 358} {SEC(2009) 359}
Date: 2009-03-25
Institutions: European Commission
Subjects: EU policy, cooperation policy, exchange of information, help for victims, human rights, judicial cooperation, police cooperation, trafficking in human beings

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 25.3.2009 
COM(2009) 136 final 

2009/0050 (CNS) 

Proposal for a 

COUNCIL FRAMEWORK DECISION 

on preventing and combating trafficking in human beings, and protecting victims,  

repealing Framework Decision 2002/629/JHA  

{SEC(2009) 358} 
{SEC(2009) 359} 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

1.1. 

Grounds for and objectives of the proposal 

Trafficking in human beings is considered one of the most serious crimes worldwide, a gross 
violation of human rights, a modern form of slavery, and an extremely profitable business for 
organised crime. It consists of the recruitment, transfer or receipt of persons, carried out with 
coercive,  deceptive  or  abusive  means,  for  the  purpose  of  exploitation  including  sexual  or 
labour exploitation, forced labour, domestic servitude or other forms of exploitation including 
the removal of organs.  

Therefore the response to trafficking must be robust, and aimed at preventing and prosecuting 
the crime, and protecting its victims.  

1.2. 

General context  

Several EU Member States are major countries of destination for trafficking in human beings 
flows coming from third countries. In addition, there is evidence of flows of trafficking within 
the EU. It is reasonable to estimate from the available figures that several hundred thousand 
people are trafficked into the EU area or within the EU area every year. 

Social  vulnerability  is  arguably  the  principal  root  cause  of  trafficking  in  human  beings. 
Vulnerability  derives  from  economic  and  social  factors  such  as  poverty,  gender 
discrimination,  armed  conflicts,  domestic  violence,  dysfunctional  families,  and  personal 
circumstances  such  as  age  or  health  conditions or  disabilities.  Such  vulnerability  is  used  by 
international  organised  crime  networks  to  facilitate  migration  and  subsequently  severely 
exploit  people  by  use  of  force,  threat,  coercion,  or  various  forms  of  abuse  such  as  debt 
bondage. In fact the high level of profits generated is a major underlying driver. The demand 
for sexual services and cheap labour is a concurrent driver.  

1.3. 

Existing provisions in the area of the proposal 

The  UN  Convention  on  the  Rights  of  the  Child,  adopted  in  1989  seeks  to  protect  children 
from  all  forms  of  sexual  exploitation  and  sexual  abuse.  This  obligation  extends  to  sexual 
exploitation  and  abuse  perpetrated  against  children  in  the  context  of  trafficking  in  human 
beings.  

In 2000, the UN adopted a Protocol to Prevent, Suppress and Punish Trafficking in Persons, 
especially  Women  and  Children,  supplementing  the  UN  Convention  against  Transnational 
Organized Crime. The Protocol was the first comprehensive international instrument dealing 
with trafficking in human beings. As of March 2009, the Protocol has been ratified by 23 EU 
Member  States,  and  the  remaining  4  have  signed  it.  The  European  Community  signed  and 
approved the Protocol.  

The Council of Europe Convention on Action against Trafficking in Human Beings provides 
a comprehensive and coherent framework covering prevention, cooperation between different 
actors, protection of and assistance to victims, and an obligation to criminalise trafficking in 
human  beings.  Implementing  such  measures  would  lead  to  significant  improvements.  The 

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Convention  has  been  ratified  by  12  EU  Member  States.  Another  13  have  signed  it  and  are 
going through the ratification process.  

The Framework Decision (FD) on combating trafficking in human beings was adopted on 19 
July 2002 as a response to a generally perceived need to address the serious criminal offence 
of  trafficking  in  human  beings  at  EU  level.  A  report  on  the  implementation  of  the  FD  was 
adopted by the Commission in May 2006.  

Directive 2004/81/EC provides for assistance and residence status for victims who are third-
country  nationals.  The  Commission  will  report  on  the  implementation  of  Directive 
2004/81/EC in autumn  2009  and will  consider appropriate measures to further reinforce the 
protection offered to victims by Member States. 

1.4. 

Consistency with the other policies and objectives of the Union 

The  fight  against  all  forms  of  gender-based  violence  including  trafficking  in  human  beings 
forms integral part of the commitment taken by the Commission in the Roadmap on Gender 
equality.1 The fight against child trafficking is also included in the strategy on the rights of the 
child.2  The  objective  of  fighting  trafficking  in  human  beings  and  assisting  victims  is 
consistent  with  the  regulation  contained  in  Council  Framework  Decision  2001/220/JHA  on 
the  standing  of  victims  in  criminal  proceedings,3  and  Council  Directive  2004/81/EC  on 
residence  permit,4  which  deals  with  immigration  issues  and  only  applies  to  third  country 
nationals. All the provisions included in this Framework Decision apply in so far as the issue 
is not covered by the above mentioned Directive. The objective of fighting against trafficking 
in  human  beings  is  also  consistent  with  Council  Directive  2004/80/EC  relating  to 
compensation  for  crime  victims  which  aims  at  facilitating  access  to  compensation  in  cross-
border situations,5 and with Council Framework Decision 2008/841/JHA on the fight against 
organised crime.6 Trafficking in human beings is included in the list of crimes which give rise 
to  surrender  pursuant  a  European  arrest  warrant  in  accordance  with  Council  Framework 
Decision 2002/584/JHA on the European arrest warrant.7 The objectives stated above are fully 
consistent with these instruments, as well as with the Council of Europe Convention on action 
against Trafficking in Human beings and with the mandates of Europol and Eurojust.  

Any  action  of  the  Union  in  this  field  must  respect  fundamental  rights  and  observe  the 
principles  recognised  in  particular  by  the  Charter  of  Fundamental  Rights  of  the  European 
Union (EU Charter) and the Convention for the Protection of Human Rights and Fundamental 

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7 

Communication  from  the  Commission  to  the  Council,  the  European  Parliament,  the  European 
Economic and Social Committee and the Committee of the Regions, A roadmap for equality between 
women and men 2006-2010, {SEC(2006)275}, COM(2006)92 final.  
Communication  from  the  Commission  Towards  an  EU  Strategy  on  the  Rights  of  the  Child 
{SEC(2006)888}, {SEC(2006) 889}, COM(2006) 367 final. 
Council  Framework  Decision  of  15  March  2001  on  the  standing  of  victims  in  criminal  proceedings 
(2001/220/JHA), OJ L 82, 22.3.2001, p.1. 
Council  Directive  2004/81/EC  of  29  April  2004  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 competent authorities, OJ L 261, 6.8.2004, p. 85 
Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims, OJ L 261, 
6.8.2004, p. 15. 
OJ L 300, 11.11.2008, p. 42. 
Council  Framework  Decision  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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Freedoms (ECHR). Member States, when implementing Union law, must do so in accordance 
with these rights and principles. 

This proposal was made subject to an in-depth scrutiny to make sure that its provisions are in 
full compatibility with  fundamental  rights and notably human dignity, prohibition  of torture 
and inhuman or degrading treatment or punishment, prohibition of slavery and forced labour, 
the  rights  of  the  child,  right  to  liberty  and  security,  freedom  of  expression  and  information, 
protection  of  personal  data,  the  right  to  an  effective  remedy  and  to  a  fair  trial  and  the 
principles of legality and proportionality of criminal offences and penalties. 

Particular  attention  was  paid  to  Article  5(3)  of  the  EU  Charter  which  explicitly  prohibits 
trafficking  in  human  beings.  In  addition,  Article  24  of  the  EU  Charter  was  of  importance, 
since  many  of  the  victims  of  trafficking  in  human  beings  are  children.  Provisions  on 
protection and assistance to victims have a positive impact on fundamental rights. The right to 
be  protected  from  slavery,  forced  labour  and  servitude  has  been  acknowledged  by  the 
European Court of Human Rights. The right of the victim to accurate, impartial, effective, and 
quick investigation is also involved, and would be made effective by an increased recognition 
of the role of the victim in the criminal procedure.  

A  possible  negative  impact  deriving  from  the  increased  role  of  the  victim  in  criminal 
proceedings  could  accrue,  if  this  strengthened  role  would  be  such  as  to  endanger  the 
defendant's procedural rights, in particular the right to a fair trial (Article 47 EU Charter) and 
the  right  of  defence  (Article  48  of  EU  Charter)  However,  the  European  Court  of  Human 
Rights has established clear principles to reconcile the respective rights of the defendant and 
the  victim.  Therefore  full  compatibility  with  defence  rights  has  been  ensured  by  a  careful 
drafting of the legislative text, which is the basis for appropriate implementation by Member 
States.  

2. 

CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

2.1. 

Consultation of interested parties 

2.1.1.  Consultation methods, main sectors targeted and general profile of consulted parties 

Following  the  request  from  the  Council  for  an  evaluation  of  the  implementation  of  the  EU 
Plan,  a  questionnaire  was  circulated  by  the  Commission  in  December  2007  among  the 
Member  States  (MS).  23  MS,  plus  Norway,  replied.  The  results  fed  into  the  Commission 
Working Document adopted on 17 October 2008.  

Three  consultative  meetings  were  held  with  a  view  to  drafting  the  impact  assessment.  The 
Group of Experts on Trafficking in Human Beings  met  on  2  and  3  October  2008,  and  after 
extensive  discussion  issued  a  written  opinion.  A  consultative  meeting  with  experts  from 
different backgrounds including governments, law enforcement agencies, NGOs, international 
organisations  and  universities  was  held  on  7  October  2008.  The  participants  were 
subsequently invited to transmit written comments, and several experts did so. A meeting with 
Member States' representatives was held on 17 October 2008.  

2.1.2. 

Summary of views and how they have been taken into account 

–  The  European  Commission's  Group  of  Experts  on  Trafficking  in  Human  Beings,  in  its 
written opinion, underlined as guiding principles the need for an adequate legal framework 

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in  each  country,  the  need  to  make  human  rights  a  paramount  issue,  to  take  a  holistic, 
coordinated and integrated approach to link government policies  on trafficking  in human 
beings  to  migration  policies,  to  respect  children's  rights,  to  promote  research  about 
trafficking in human beings and to monitor the impact of anti-trafficking policies.  

–  Many  stakeholders  agreed  on  the  need  for  specific  provisions  aimed  at  strengthening 
investigation  and  prosecution.  The  crucial  role  of  assistance  measures  was  generally 
emphasised.  

–  The  issue  of  introducing  a  specific  obligation  to  criminalise  clients  who  knowingly  use 
sexual  services  from  a  trafficked  person  was  controversial  among  stakeholders.  Several 
MS pointed out that in any case such a provision should not be binding.  

2.2. 

Collection and use of expertise 

There was no need for external expertise.  

2.3. 

Impact assessment 

Various  policy  options  have  been  examined  as  a  means  to  achieve  the  objectives  of 
preventing and combating trafficking in human beings more effectively, and better protecting 
victims. 

•  Policy option (1): No new EU action 

The  EU  would  take  no  action  to  combat  trafficking  in  human  beings,  while  Member  States 
may continue the process of signature and ratification of the Council of Europe Convention 
on Action against Trafficking in Human Beings.  

•  Policy Option (2): Non legislative measures 

FD 2004/629/JHA would not be amended. Non-legislative measures could be put in place in 
the  areas  of  victim  support  schemes,  monitoring,  prevention  measures  in  countries  of 
destination,  prevention  measures  in  countries  of  origin,  training,  and  law  enforcement 
cooperation.  

•  Policy  option  (3):  New  legislation  on  prosecution,  victim  support,  prevention  and 

monitoring 

A  new  FD  would  be  adopted,  incorporating  the  provision  of  the  existing  FD,  along  with 
certain provisions of the CoE Convention and additional elements. In particular, the new FD 
would  contain  provisions  in  the  areas  of  substantive  criminal  law,  jurisdiction  and 
prosecution,  victims'  rights  in  criminal  proceedings,  victim  assistance,  special  protective 
measures for children, prevention, and monitoring.  

•  Policy option (4): New legislation (as in option 3) + non legislative measures (as in option 

2)  

–  A new FD would be adopted, incorporating the existing FD and including new provisions. 
The new FD would be supplemented by non-legislative measures, and in particular those 
identified in option 2. 

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–  Following the analysis of economic impacts, social impacts, and impacts on fundamental 
rights, options 3 and 4 present the best approach to the problem and should fully achieve 
the identified objectives. The preferred option would be option 4.  

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

3.1. 

Summary of the proposed action 

The new FD, in addition to provisions in the current FD, would include the following 
new elements: 

A 

Substantive criminal law provisions 

–  Definition; 

–  Aggravating circumstances and penalties;  

–  Non application of sanctions to the victim. 

B 

Jurisdiction and prosecution 

–  Broader and more binding extraterritorial jurisdiction rule;  

–  Coordination of prosecution; such a provision may be superseded once the Proposal for a 

Framework Decision on conflicts of jurisdiction in criminal proceedings is adopted.8 

–  Investigative tools.  

C 

Victims' rights in criminal proceedings 

–  Special treatment aimed at preventing secondary victimisation;  

–  Protection on the basis of a risk assessment;  

–  Compensation, including access to existing funds.  

D 

Victim support 

–  Establishment of mechanisms for early identification and assistance of victims;  

–  Standard  of  assistance  including  access  to  necessary  medical  treatment,  counselling,  and 

psychological assistance; 

–  Special measures for children. 

E 

Prevention 

–  Action aimed at discouraging the demand for sexual services and cheap labour; 

8 

Proposal for a Council Framework Decision on prevention and settlement of conflicts of jurisdiction in 
criminal  proceedings,  tabled  on  20  January  2009  by  the  Czech  Republic,  Poland,  Slovenia,  Slovakia, 
and Sweden. Council Document No 5208/09. 

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–  Training; 

–  Criminalisation  of  users  of  services  exacted  from  a  person,  with  the  knowledge  that  the 

person has been trafficked. 

F  Monitoring 

–  Establishment of National Rapporteurs or equivalent mechanisms.  

3.2. 

Added value of the proposal, compared to the 2005 CoE Convention on action 
against trafficking in human beings 

The proposal builds upon the CoE Convention and adopts the same holistic approach 
including prevention, prosecution, protection of victims, and monitoring. Moreover, 
the proposal shows the following main elements of added value:  

–  New  provisions  envisaging  specific  treatments  for  vulnerable  victims  in  criminal 

proceedings, aimed at preventing secondary victimisation (Article 9). 

–  Broader  scope  of  the  provision  on  non  application  of  sanctions  to  victims  for  their 
involvement  in  unlawful  activities,  whatever  illicit  means  have  been  used  by  traffickers 
(Article 6). 

–  Higher standard of assistance to victims, especially concerning medical treatment (Article 

10).  

–  Broader  and  more  binding  extraterritorial  jurisdiction  rule,  obliging  Member  States  to 
prosecute  nationals  and  habitual  residents  who  have  committed  the  crime  of  trafficking 
outside the territory of the Member State (Article 8).  

–  Precise level of penalties adapted to the severity of the offences (Article 3). 

–  In  addition,  the  integration  of  provisions  which  have  similar  content  into  the  EU  acquis 
shows the advantages related to the stronger bond created by the EU legal order, namely 
the immediate entering into force, and the monitoring of implementation.  

3.3. 

Legal basis 

Articles 29, 31(1)(e), 34(2)(b) TEU. 

4. 

SUBSIDIARITY PRINCIPLE 

The objectives  of  the proposal  cannot be sufficiently  achieved by the  Member  States alone, 
for the following reasons. 

The fight against trafficking in human beings requires coordinated efforts by Member States, 
as  well  as  cooperation  at  an  international  level  in  order  to  achieve  the  aims.  Differences  in 
legal  treatment  in  the  different  Member  States  hinder  coordinated  efforts  and  hamper 
international law enforcement and judicial cooperation.  

Action  by  the  European  Union  will  better  achieve  the  objectives  of  the  proposal  for  the 
following reason. 

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The  proposal  will  approximate  Member  States'  substantive  criminal  law  and  rules  on 
procedure  in  a  more  extensive  way  than  the  current  Framework  Decision.  This  will  have  a 
positive impact on international law enforcement and judicial cooperation, and protection and 
assistance given to victims. The proposal therefore complies with the subsidiarity principle. 

5. 

PROPORTIONALITY PRINCIPLE 

The proposal complies with the proportionality principle in that it is confined to the minimum 
required in order to achieve the stated objectives at European level and does not go beyond 
what is necessary for that purpose. 

6. 

CHOICE OF INSTRUMENTS 

Proposed instrument: Framework Decision. 

Other means would not be adequate. In the fight against trafficking in human beings only a 
Framework  Decision  permits  approximation  of  national  legislation,  and  is  necessary  to 
improve international law enforcement and judicial cooperation.  

7. 

BUDGETARY IMPLICATION 

The proposal has no implication for the Community budget. 

8. 

ADDITIONAL INFORMATION 

Repeal of existing legislation 

Adoption of the proposal will lead to the repeal of existing legislation. 

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2009/0050 (CNS) 

Proposal for a 

COUNCIL FRAMEWORK DECISION 

on preventing and combating trafficking in human beings, and protecting victims,  

repealing Framework Decision 2002/629/JHA  

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty on European Union, and in particular Article 29, Article 31(1)(e) 
and Article 34(2)(b) thereof, 

Having regard to the proposal from the Commission, 

Having regard to the opinion of the European Parliament,9 

Whereas: 

(1) 

(2) 

(3) 

Trafficking in human beings is a serious crime, often committed in the framework of 
organised crime, and a gross violation of human rights.  

The European Union is committed to the prevention of and fight against trafficking in 
human  beings,  and  to  the  protection  of  the  rights  of  trafficked  persons.  For  this 
purpose, Council  Framework Decision 2002/629/JHA of 19  July  2002  on combating 
trafficking  in  human  beings,10  and  an  EU  Plan  on  best  practices,  standards  and 
procedures  for  combating  and  preventing  trafficking  in  human  beings  (2005/C 
311/01)11 were adopted.  

This  Framework  Decision  adopts  an  integrated  and  holistic  approach  to  the  fight 
against  trafficking  in  human  beings.  More  rigorous  prevention  and  prosecution,  and 
protection  of  victims'  rights,  are  major  objectives  of  this  Framework  Decision. 
Children  are  more  vulnerable  and  therefore  at  greater  risk  of  falling  victim  to 
trafficking in human beings. All the provisions of this Framework Decision should be 
applied  in  the  light  of  the  best  interests  of  the  child,  in  accordance  with  the  1989 
United Nations Convention on the Rights of the Child.12  

(4) 

The  2000  United  Nations  Protocol  to  Prevent,  Suppress  and  Punish  Trafficking  in 
Persons,  especially  Women  and  Children  supplementing  the  United  Nations 

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OJ C , , p. . 
OJ L 203, 1.8.2002, p. 1. 
OJ C 311, 9.12.2005, p. 1. 
United  Nations  Convention on  the  Rights of  the  Child,  adopted  and opened  for signature, ratification 
and accession by General Assembly resolution 44/25 of 20 November 1989.  

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Convention against Transnational Organised Crime13 and the 2005 Council of Europe 
Convention on Action against Trafficking in Human Beings14 are crucial steps in the 
process of enhancing international cooperation against trafficking in human beings. In 
order to enhance the process of approximation of legislation, this Framework Decision 
adopts the broad definition of the crime included in the above mentioned UN and CoE 
instruments. The definition also covers trafficking in human beings for the purpose of 
the  removal  of  organs,  which  can  be  linked  with  organ  trafficking  and  constitutes  a 
serious violation of human dignity and physical integrity. 

(5) 

(6) 

Penalties should be effective, dissuasive, and proportionate to the gravity of the crime, 
also  with  a  view  to  making  investigation  and  prosecution  more  effective,  and 
improving  international  law  enforcement  and  judicial  cooperation.  Aggravating 
circumstances  should  take  into  account  the  need  to  protect  particularly  vulnerable 
victims including all child victims and adults who are vulnerable because of personal 
circumstances, or physical or psychological consequences of the crime.  

Victims should be protected from prosecution and punishment, following a decision of 
the competent authority, for unlawful activities they have been involved in as a direct 
consequence of being subjected to any of the illicit means used by traffickers, such as 
violations of  immigration  laws, the use of  false  documents  or  offences  envisaged  by 
prostitution laws. An additional aim of such protection is to encourage them to act as 
witnesses in criminal proceedings.  

(7)  While the Council Framework Decision of 15 March 2001 on the standing of victims 
in  criminal  proceedings  (2001/220/JHA)15  establishes  a  set  of  victims'  rights  in 
criminal  proceedings  including  the  right  to  protection  and  compensation,  victims  of 
trafficking  in  human  beings  are  vulnerable  and  therefore  specific  measures  are 
necessary  with  regard  to  them.  Such  victims,  who  bear  the  consequences  of  the 
criminal  activities  related  to  trafficking  in  human  beings  including  the  removal  of 
organs, should be protected from intimidation and from secondary victimisation, that 
is to say further victimisation or trauma deriving from the way the criminal procedure 
is  carried  out.  Moreover,  specific  means  to  ensure  effective  protection  and 
compensation should be established.  

(8) 

Victims  need  to  be  able  to  exercise  their  rights  effectively.  Therefore  appropriate 
assistance should be available to victims before, during and after criminal proceedings. 
This  Framework  Decision  establishes  an  obligation  upon  Member  States  to  provide 
any victim with assistance, which should be sufficient to enable them to recover.  

(9)  While Directive 2004/81/EC provides for the issue of a resident permit to victims of 
trafficking in human beings who are third country nationals, and Directive 2004/38/EC 
regulates the exercise of the right to move and reside freely in the territory of Member 
States by citizens of the Union and their families, including protection from expulsion, 
this  Framework  Decision  establishes  specific  protective  measures  for  any  victim  of 

13 

14 

15 

United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and 
Children, supplementing the United Nations Convention against Transnational Organised Crime, made 
in Palermo, 2000. 
Council  of  Europe  Convention  on  Action  against  Trafficking  in  Human  Beings,  made  in  Warsaw, 
16.V.2005, Council of Europe Treaty Series N. 197. 
OJ L 82, 22.3.2001, p. 1. 

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trafficking in human beings, and does not deal with the conditions of their residence in 
the  territory  of  Member  States  or  any  other  issue  falling  within  the  Community 
competence. 

(10) 

In  addition  to  measures  available  to  adults,  each  Member  State  should  ensure  that 
specific protective measures are available to child victims.  

(11)  Each Member State should establish and/or strengthen policies to prevent trafficking 
in human beings including measures to discourage the demand that fosters all forms of 
exploitation  by  means  of  research,  information,  awareness  raising,  and  education.  In 
such  initiatives  each  Member  State  should  adopt  a  gender  perspective  and  a  child-
rights approach. 

(12) 

[Directive 2009/.../EC of the European Parliament and of the Council of … providing 
for  minimum  standards  on  sanctions  against  employers  of  illegally  staying  third-
country  nationals]  provides  for  penalties  for  employers  of  illegally  staying  third-
country nationals who, while not having been charged with or convicted of trafficking 
in human beings, use work or services exacted from a person with the knowledge that 
she/he is a victim of such trafficking. In addition to that, Member States should take 
into  consideration  the  possibility  of  imposing  sanctions  on  the  users  of  any  service 
exacted from a victim, with the knowledge that she/he has been trafficked. This further 
criminalisation could include employers of legally staying third-country nationals and 
EU  nationals,  as  well  as  buyers  of  sexual  services  from  any  trafficked  person, 
irrespective of their nationality.  

(13)  National monitoring systems such as National Rapporteurs or equivalent mechanisms 
should be established in order to collect data and carry out assessments on trafficking 
in human beings trends, measure the results of anti-trafficking policy, and give advice 
to  governments  and  parliaments  on  the  development  of  action  against  trafficking  in 
human  beings.  Such  mechanisms  and  measures  are  essential  in  order  to  establish 
effective anti-trafficking policy.  

(14)  Since the objective of this Framework Decision, namely to fight against trafficking in 
human  beings,  cannot  be  sufficiently  achieved  by  the  Member  States  alone  and  can 
therefore,  by  reasons  of  the  scale  and  effects  be  better  achieved  at  Union  level,  the 
Union may adopt measures, in accordance with the principle of subsidiarity as referred 
to Article 2 of the Treaty on European Union and as set out in Article 5 of the Treaty 
establishing 
the  principle  of 
proportionality, as set out in the latter  Article,  this  Framework  Decision  does  not  go 
beyond what is necessary to achieve that objective. 

the  European  Community.  In  accordance  with 

(15)  This  Framework  Decision  respects  fundamental  rights  and  observes  the  principles 
recognised in particular by the Charter of Fundamental Rights of the European Union 
and  notably  human  dignity,  prohibition  of  slavery,  forced  labour  and  trafficking  in 
human  beings,  prohibition  of  torture  and  inhuman  or  degrading  treatment  or 
punishment,  the  rights  of  the  child,  the  right  to  liberty  and  security,  freedom  of 
expression  and  information,  protection  of  personal  data,  the  right  to  an  effective 
remedy and to a fair trial and the principles of legality and proportionality of criminal 
offences  and  penalties.  In  particular,  this  Framework  Decision  seeks  to  ensure  full 
respect for these rights and principles. 

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HAS ADOPTED THIS FRAMEWORK DECISION:  

Article 1 

Offences concerning trafficking in human beings 

1. 

Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  the  following 
acts are punishable: 

The  recruitment,  transportation,  transfer,  harbouring  or  receipt  of  persons,  by  means  of  the 
threat or use of force or other forms of coercion, of abduction, of fraud, of deception, 
of the abuse of power or of a position of vulnerability or of the giving or receiving of 
payments or benefits to achieve the consent of a person having control over another 
person, for the purpose of exploitation. 

2. 

3. 

4. 

5. 

6. 

A  position  of  vulnerability  occurs  when  the  person  has  no  real  or  acceptable 
alternative but to submit to the abuse involved. 

Exploitation  shall  include,  as  a  minimum,  the  exploitation  of  the  prostitution  of 
others  or  other  forms  of  sexual  exploitation,  forced  labour  or  services,  slavery  or 
practices  similar  to  slavery,  servitude,  exploitation  of  activities  associated  with 
begging or of unlawful activities, or the removal of organs.  

The consent of a victim of trafficking in human beings to the exploitation, intended 
or  actual,  shall  be  irrelevant  where  any  of  the  means  set  forth  in  paragraph  1  have 
been used.  

When the conduct referred to in paragraph 1 involves a child, it shall be a punishable 
trafficking in human beings offence even if none of the means set forth in paragraph 
1 have been used  

For the purpose of this Framework Decision, "child" shall mean any person below 18 
years of age.  

Article 2  

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 Article 1 is punishable.  

Article 3 

Penalties and aggravating circumstances 

1. 

Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  an  offence 
referred to in Articles 1 and 2 is punishable by a maximum term of imprisonment of 
at least six years.  

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2. 

(a) 

(b) 

(d) 

3. 

(a) 

(b) 

1. 

2. 

3. 

4. 

Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  an  offence 
referred  to  in  Article  1  is  punishable  by  terms  of  imprisonment  with  a  maximum 
penalty  of  not  less  than  ten  years  where  it  has  been  committed  in  any  of  the 
following circumstances:  

the offence was committed by an official in the performance of her/his duties; 

the offence was committed against a victim who was particularly vulnerable.  

the  offence  was  committed  within  the  framework  of  a  criminal  organisation  within 
the meaning of Framework Decision 2008/841/JHA.16  

Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  an  offence 
referred  to  in  Article  1  is  punishable  by  terms  of  imprisonment  with  a  maximum 
penalty  of  not  less  than  twelve  years  where  it  has  been  committed  in  any  of  the 
following circumstances: 

the offence endangered the life of the victims;  

the  offence  was  committed  by  use  of  serious  violence  or  has  caused  particularly 
serious harm to the victim. 

Article 4 

Liability of legal persons 

Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  legal  persons 
can be held liable for an offence referred to in Articles 1 and 2 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. 

Member States shall also ensure that a legal person may be held liable where the lack 
of supervision or control, by a person referred to in paragraph 1, has made possible 
the commission of the criminal offences referred to in Articles 1 and 2 for the benefit 
of that legal person by a person under its authority. 

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

For  the  purpose  of  this  Framework  Decision  'legal  person'  shall  mean  any  entity 
having legal personality under the applicable law, except for States or public bodies 
in the exercise of State authority and for public international organisations.  

16 

OJ L 300, 11.11.2008, p. 42. 

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Article 5 

Sanctions on legal persons 

1. 

Each Member State shall take the necessary measures to ensure that a legal person 
held  liable  pursuant  to  Article  4(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) judicial winding-up; 

(e)  temporary  or  permanent  closure  of  establishments  which  have  been  used  for 

committing the offence.  

Article 6 

Non application of sanctions to the victim 

Each Member State shall provide for the possibility of not prosecuting or imposing penalties 
on  victims  of  trafficking  in  human  beings  for  their  involvement  in  unlawful  activities  as  a 
direct consequence of being subjected to any of the illicit means referred to in Articles 1 and 
2. 

Article 7 

Investigation and prosecution 

1. 

2. 

3. 

4. 

Each  Member  State  shall  ensure  that  investigation  into  or  prosecution  of  offences 
referred to in Articles 1 and 2 is not be dependent on the report or accusation made 
by  a  victim  and  that  criminal  proceedings  may  continue  even  if  the  victim  has 
withdrawn his or her statement.  

Each Member State shall take the necessary measures to enable the prosecution of an 
offence referred to in Articles 1 and 2 for a sufficient period of time after the victim 
has  reached  the  age  of  majority  to  an  extent  commensurate  with  the  gravity  of  the 
crime concerned. 

Each Member State shall take the necessary measures to ensure that persons, units or 
services responsible for investigating or prosecuting offences referred to in Articles 1 
and 2 are trained accordingly.  

Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  investigative 
tools  which  are  used  in  organised  crime  cases  such  as  phone  tapping,  electronic 

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1. 

(a) 

(b) 

(c) 

(d) 

2. 

3. 

4. 

surveillance,  and  financial  investigation  are  available  to  persons,  units  or  services 
responsible for investigating or prosecuting offences referred to in Articles 1 and 2.  

Article 8 

Jurisdiction and coordination of prosecution 

Each  Member  State  shall  take  the  necessary  measures  to  establish  its  jurisdiction 
over an offence referred to in Articles 1 and 2 where:  

the offence is committed in whole or in part within its territory; or  

the offender is one of its nationals or has his or her habitual residence in its territory; 
or  

the offence is committed against one of its nationals or a person who has his or her 
habitual residence in its territory; or 

the offence is committed for the benefit of a legal person established in the territory 
of that Member State. 

For the prosecution of an offence referred to in Articles 1 and 2 committed outside 
the territory of the Member State concerned, as regards paragraph 1(b), each Member 
State  shall  take  the  necessary  measures  to  ensure  that  the  establishment  of  its 
jurisdiction is not subordinated to the condition that the acts are a criminal offence at 
the place where they were performed.  

For the prosecution of an offence referred to in Articles 1 and 2 committed outside 
the territory of the Member State concerned, as regards paragraph 1(b), each Member 
State  shall  take  the  necessary  measures  to  ensure  that  its  jurisdiction  is  not 
subordinated to the condition that the prosecution can  only  be  initiated following a 
report  made  by  the  victim  in  the  place  where  the  offence  was  committed,  or  a 
denunciation from the State of the place where the offence was committed.  

When  an  offence  falls  within  the  jurisdiction  of  more  than  one  Member  State  and 
when  any  of  the  States  concerned  can  validly  prosecute  on  the  basis  of  the  same 
facts, the Member States concerned shall cooperate in order to decide which of them 
will prosecute the offenders with the aim, if possible, of centralising proceedings in a 
single Member State. To this end, the Member States may have recourse to Eurojust 
or  any  body  or  mechanism  established  within  the  European  Union  in  order  to 
facilitate cooperation between their judicial authorities and the coordination of their 
action. In deciding which Member State will prosecute the offender, special account 
shall be taken of the following factors:  

–  the Member State is that in the territory of which the acts were committed,  

–  the Member State is that of which the perpetrator is a national or resident,  

–  the Member State is the Member State of origin of the victim, 

–  the Member State is that in the territory of which the perpetrator was found. 

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Protection of vulnerable victims of trafficking in human beings in criminal proceedings 

Article 9 

1. 

2. 

3. 

4. 

5. 

6. 

Children  who  are  victims  of  an  offence  referred  to  in  Articles  1  and  2  shall  be 
considered  as  particularly  vulnerable  victims  pursuant  to  Article  2(2),  Article  8(4) 
and Article 14(1) of Framework Decision 2001/220/JHA.  

Any adult person who is a victim of an offence referred to in Articles 1 and 2 shall be 
considered  as  a  particularly  vulnerable  victim  pursuant  to  Article  2(2),  Article  8(4) 
and  Article  14(1)  of  Council  Framework  Decision  2001/220/JHA,  according  to  an 
individual  assessment  by  the  competent  authorities,  which  shall  take  into  account 
their age, maturity, health, pregnancy, disability, other personal or social conditions, 
and the physical or psychological consequences of the criminal activity to which they 
have been subjected. 

Without prejudice to the rights of the defence, each Member State shall ensure that 
particularly  vulnerable  victims,  in  addition  to  the  rights  set  forth  in  Framework 
Decision  2001/220,  shall  be  entitled  to  specific  treatment  aimed  at  preventing 
secondary  victimisation  by  avoiding,  as  far  as  possible  and  in  accordance  with  the 
grounds defined by national legislation:  

(a) 

visual  contact  between  victims  and  offenders  including  during  the  giving  of 
evidence  such  as  interviews  and  cross-examination,  by  appropriate  means 
including the use of audio-video facilities; 

(b)  questioning concerning private life which is not absolutely necessary to prove 

the facts which are at the core of the indictment; 

(c) 

the giving of evidence in open court;  

(d)  unnecessary repetition of interviews during investigation, prosecution and trial.  

Each Member State shall allow, where appropriate, that the identity of a particularly 
vulnerable victim acting as a witness is not disclosed. 

Each Member State shall ensure that victims of trafficking in human beings receive 
suitable protection on the basis of an individual risk assessment, and have access to 
witness  protection  programmes  if  appropriate,  in  accordance  with  the  grounds 
defined by national legislation. 

Each  Member  State  shall  ensure  that  particularly  vulnerable  victims  have  in  the 
course  of  criminal  proceedings  access  to  free  legal  counselling,  and  to  legal 
representation  on  the  same  grounds  envisaged  by  national  legislation  for  the 
defendant, including for the purpose of claiming compensation. This paragraph shall 
be without prejudice to the application of Article 11 when the victim is a minor.  

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Article 10 

Assistance to victims 

1. 

2. 

3. 

4. 

Each Member State shall ensure that assistance is provided to victims before, during 
and after criminal proceedings in order to enable them to exercise the rights set forth 
in Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims 
in criminal proceedings, and in this Framework Decision.  

A  person  shall  be  treated  as  a  victim  as  soon  as  the  competent  authorities  have  an 
indication that she/he might have been subjected to an offence referred to in Articles 
1 and 2.  

Each  Member  State  shall  take  the  necessary  measures  to  establish  at  national  and 
local  level  appropriate  mechanisms  aimed  at  early  identification  and  support  to 
victims, in cooperation with relevant support organisations.  

Victims shall be granted the necessary assistance and support by Member States in 
the  framework  of  criminal  proceedings,  to enable them to recover and escape from 
the  influence  of  the  perpetrators,  including  by  providing  them  with  secure 
accommodation  and  material  assistance,  necessary  medical  treatment  including 
psychological  assistance,  counselling  and  information,  assistance  to  enable  their 
rights  and  interests  to  be  presented  and  considered  in  criminal  proceedings,  and 
translation and interpretation services where appropriate. Member States shall attend 
to the special needs of the most vulnerable. 

Article 11 

Special protective measures for children 

Each Member State shall apply Articles 14 and 15 of Framework Decision on combating the 
sexual  abuse,  sexual  exploitation  of  children  and  child  pornography,  repealing  Framework 
Decision 2004/68/JHA. 

Article 12 

Prevention 

1. 

2. 

3. 

Each  Member  State  shall  seek  to  discourage  the  demand  that  fosters  all  forms  of 
exploitation.  

Each  Member  State  shall  promote  regular  training  for  officials  likely  to  come  into 
contact with victims and potential victims, including front-line police officers, aimed 
at enabling them to identify victims and potential victims, and deal with particularly 
vulnerable victims referred to in Article 9(1) and 9(2) of this Framework Decision.  

Without  prejudice  to  Community  law,  each  Member  State  shall  consider  taking 
measures to establish as a criminal offence the use of services which are the object of 
exploitation as referred to in Articles 1 and 2 with the knowledge that the person is a 
victim of an offence referred to in Articles 1 and 2. 

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Article 13 

Monitoring 

Member States shall take the necessary measures to establish National Rapporteurs or other 
equivalent  mechanisms.  The  tasks  of  such  mechanisms  shall  include,  at  a  minimum, 
monitoring of the implementation of the measures envisaged in this Framework Decision.  

Article 14 

Territorial scope 

This Framework Decision shall apply to Gibraltar. 

Article 15 

Repeal of Framework Decision 2002/629/JHA 

Framework Decision 2002/629/JHA on combating trafficking in human beings is repealed.  

Article 16 

Implementation 

1. 

2. 

Member  States  shall  take  the  necessary  measures  to  comply  with  this  Framework 
Decision by [two years from adoption]. 

By  [two  years  from  adoption],  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 [four years from adoption] at the latest, 
on the basis of a report reflecting 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 17  

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,  

EN 

For the Council 
The President 

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