Proposal for a Council Framework Decision on combating the sexual abuse, sexual exploitation of children and child pornography, repealing Framework Decision 2004/68/JHA {SEC(2009) 355} {SEC(2009) 356}
Date: 2009-03-25
Institutions: European Commission
Subjects: European social policy, child protection, paedophilia, sexual offence

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 3.4.2009 
COM(2009)135 final/2 

2009/0049 (CNS) 

CORRIGENDUM 
Annule et remplace le document COM(2009)135 final du 25.3.2009 
Concerne uniquement la version EN 

Proposal for a 

COUNCIL FRAMEWORK DECISION 

on combating the sexual abuse, sexual exploitation of children and child pornography, 
repealing Framework Decision 2004/68/JHA  

{SEC(2009) 355} 
{SEC(2009) 356} 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

•  Grounds for and objectives of the proposal 

Sexual  abuse  and  sexual  exploitation  of  children  are  particularly  serious  forms  of  crime  as 
they  are  directed  against  children,  who  have  the  right  to  special  protection  and  care.  They 
produce  long-term  physical,  psychological  and  social  harm  to  victims  and  its  persistence 
undermines the core values of a modern society relating to the special protection of children 
and trust in relevant State institutions. Despite a lack of accurate and reliable statistics, studies 
suggest  that  a  significant  minority  of  children  in  Europe  may  be  sexually  assaulted  during 
their childhood, and research also suggests that this phenomenon is not decreasing over time, 
rather that certain forms of sexual violence are on the rise. 

The general policy objective of the Union in this field, under Article 29 of the Treaty on the 
European  Union,  is  to  prevent  and  combat  offences  against  children,  which  includes  child 
sexual abuse and child sexual exploitation. This should be done by building a more coherent 
framework  for  combating  these  crimes  under  the  third  pillar  and  by  increasing  its 
effectiveness.  Specific  objectives  would  be  to  effectively  prosecute  the  crime;  to  protect 
victims’  rights;  to  prevent  child  sexual  exploitation  and  abuse;  and  to  establish  effective 
monitoring systems. 

•  General context 

With  regard  to  child  victims,  the  main  cause  of  this  phenomenon  is  vulnerability  resulting 
from a variety of factors. Insufficient response by law enforcement mechanisms contributes to 
the prevalence of these phenomena, and the difficulties are exacerbated because certain forms 
of  offences  transcend  national  borders.  Victims  are  reluctant  to  report  abuse,  variations  in 
national  criminal  law  and  procedure  may  give  rise  to  differences  in  investigation  and 
prosecution,  and  convicted  offenders  may  continue  to  be  dangerous  after  serving  their 
sentences. Developments in information technology have made these problems more acute by 
making it easier to produce and distribute child sexual abuse images while offering offenders 
anonymity  and  spreading  responsibility  across  jurisdictions.  Ease  of  travel  and  income 
differences fuel so-called child sex tourism, resulting often in child sex offenders committing 
offences abroad with impunity. Beyond difficulties of prosecution, organised crime can make 
considerable profits with little risk. 

National  legislation  covers  some  of  these  problems,  to  varying  degrees.  However,  it  is  not 
strong  or  consistent  enough  to  provide  a  vigorous  social  response  to  this  disturbing 
phenomenon. 

The  recent  Council  of  Europe  Convention  CETS  No.  201  against  child  sexual  exploitation 
and  sexual  abuse  ("the  COE  Convention")  arguably  constitutes  the  highest  international 
standard  for  protecting  children  against  sexual  abuse  and  exploitation  to  date.  On  a  global 
scale, the main international standard is the Optional Protocol to the Convention on the Rights 
of  the  Child  on  the  sale  of  children,  child  prostitution  and  child  pornography  of  2000. 
However, not all Member States have yet acceded to this Convention. 

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•  Existing provisions in the area of the proposal 

At  EU  level,  Council  Framework  Decision  2004/68/JHA,  introduces  a  minimum  of 
approximation  of  Member  States’  legislation  to  criminalise  the  most  serious  forms  of  child 
sexual abuse and exploitation, to extend domestic jurisdiction, and to provide for a minimum 
of  assistance  to  victims.  Although  the  requirements  have  generally  been  put  into 
implementation,  the  Framework  Decision  has  a  number  of  shortcomings.  It  approximates 
legislation  only  on  a  limited  number  of  offences,  does  not  address  new  forms  of  abuse  and 
exploitation using information technology, does not remove obstacles to prosecuting offences 
outside national territory, does not meet all the specific needs of child victims, and does not 
contain adequate measures to prevent offences. 

Other EU initiatives in force or on the way partially address some problems which also affect 
child  sexual  offences.  They  include  Council  Decision  2000/375/JHA  of  29  May  2000  to 
combat child pornography on the internet, Council Framework Decision 2002/584/JHA of 13 
June  2002  on  the  European  arrest  warrant  and  the  surrender  procedures  between  Member 
States,  Council  Framework  Decision  2005/222/JHA  of  24  February  2005  on  attacks  against 
information  systems,  Decision  No  854/2005/EC  of  the  European  Parliament  and  of  the 
Council  of  11  May  2005  establishing  a  multiannual  Community  Programme  on  promoting 
safer  use  of  the  internet  and  new  online  technologies,  and  Council  Framework  Decision 
2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition 
of  judgments  and  probation  decisions  with  a  view  to  the  supervision  of  probation  measures 
and alternative sanctions. 

•  Consistency with the other policies and objectives of the Union 

The objectives are fully consistent with the EU policy of promotion, protection and fulfilment 
of  children’s  rights  in  the  internal  and  external  policies  of  the  EU.  The  EU  explicitly 
recognised  protection  of  children’s  rights  in  the  European  Charter  of  Fundamental  Rights, 
specifically in Article 24. Furthermore, in its communication Towards an EU Strategy on the 
Rights  of  the  Child,  the  Commission  set  itself  the  objective  of  maximising  the  use  of  its 
existing policies and instruments partly with a view to protecting children from violence and 
sexual  exploitation  inside  and  outside  the  EU.  The  objectives  are  also  consistent  with  the 
Safer  Internet  Programme  set  up  to  promote  safer  use  of  the  internet  and  new  online 
technologies, particularly for children, and to fight against illegal content. 

This  proposal  was  subject  to  in-depth  scrutiny  to  ensure  that  its  provisions  were  fully 
compatible with fundamental rights and notably human dignity, the 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. 

Particular  attention  was  paid  to  Article  24  of  the  EU  Charter,  which  lays  down  a  positive 
obligation to act with the aim of ensuring the necessary protection of children. It states that 
children  have  the  right  to  such  protection  and  care  as  is  necessary  for  their  wellbeing.  In 
addition, it requires that in all actions relating to children, whether taken by public authorities 
or private institutions, the child’s best interests must be a primary consideration, which is also 
enshrined in the UN Convention on the Rights of the Child. 

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The provisions on criminalising new forms of internet abuse, recognising special investigative 
techniques,  prohibition  from  certain  activities  and  the  exchange  of  information  to  ensure 
implementation  throughout  the  EU  were  specially  scrutinised  with  regard  to  the  right  to 
respect  for  private  and  family  life  and  the  protection  of  personal  data  (Article  8  ECHR, 
Articles  7  and  8  of  the  EU  Charter).  Provisions  to  increase  law  enforcement  against 
publishing  and  disseminating  child  abuse  material,  advertising  child  pornography  or 
encouraging  child  sexual  abuse,  and  on  mechanisms  to  block  access  to  internet  pages 
containing child pornography were checked in particular with regard to freedom of expression 
(Article 10 ECHR, Article 11 of the EU Charter). 

2. 

CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

•  Consultation of interested parties 

2Consultation methods, main sectors targeted and general profile of respondents 

A broad range of experts in the field were consulted in three different meetings dealing both 
with child sexual abuse, sexual exploitation, and trafficking in human beings. This included, 
in  particular,  Representatives  of  Member  States’  Governments,  Members  of 
the 
Commission’s Group of Experts on Trafficking in Human Beings, international organisations, 
notably the Council of Europe and UNICEF, NGOs, academia and research centres, and other 
public  institutions.  A  number  of  experts  and  organisations  have  subsequently  sent  in 
submissions and provided information. 

Summary of responses and how they have been taken into account 

Key messages resulting from the consultation are: 

–  the need to incorporate improvements of the COE Convention; 

–  the  need  to  criminalise  forms  of  abuse  not  included  in  the  current  FD,  in  particular  new 

forms of offences using IT; 

–  the need to eliminate obstacles to investigation and prosecution in cross-border cases; 

–  the need to ensure comprehensive protection of victims, in particular in investigation and 

criminal proceedings; 

–  the need to prevent offences through intervention programmes and treatment; 

–  the need to ensure that convictions and security measures that are imposed on dangerous 

offenders in one country are effective in all Member States. 

The  input  received  during  the  consultation  has  been  taken  into  account  in  the  Impact 
Assessment.  Some  of  the  suggestions  made  by  different  stakeholders  in  the  consultation 
process have not been included in the proposal, for different reasons explained in the Impact 
Assessment. 

•  Collection and use of expertise 

There was no need for external expertise. 

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•  Impact assessment 

Various policy options have been examined as a means to achieve the objective. 

•  Policy option (1): No new EU action 

The EU would take no new action (legislation, non-policy instruments, financial support) to 
combat child sexual abuse and exploitation, while Member States could continue the process 
of signature and ratification of the COE Convention. 

•  Policy option (2): Complement existing legislation with non-legislative measures 

Existing  EU  legislation,  in  particular  Framework  Decision  68/2004/JHA,  would  not  be 
amended.  Instead,  non-legislative  measures  could  be  put  in  place  to  support  coordinated 
implementation  of  national  legislation.  This  would  include  exchanging  information  and 
experience  in  prosecution,  protection  or  prevention,  awareness  raising,  cooperation  with 
private sector and encouragement of self regulation, or the setting up of mechanisms for data 
collection. 

•  Policy  option  (3):  New  legislation  on  prosecuting  offenders,  protecting  victims,  and 

preventing offences 

A  new  Framework  Decision  would  be  adopted,  incorporating  the  existing  Framework 
Decision, certain provisions of the COE Convention, and additional elements not contained in 
either  of  these.  It  would  cover  prosecution  of  offenders,  protection  of  the  victims,  and 
prevention of the phenomenon. 

•  Policy  option  (4):  New  comprehensive  legislation  to  enhance  prosecution  of  offenders, 
protection  of  victims  and  prevention  of  offences  (as  in  option  3)  plus  non-legislative 
measures (as in option 2) 

The existing provisions of Framework Decision 68/2004/JHA would be supplemented by EU 
action to amend substantive criminal law and procedure, protect victims, and prevent offences 
as under option 3, plus the non-legislative measures identified under option 2 to improve the 
implementation of national legislation. 

Following the analysis of the economic impact, social impacts, and impacts on fundamental 
rights, options 3 and 4 represent the best approach to the problems and achieve the objectives 
of the proposal. The preferred option would be option 4, followed by option 3. 

The Commission carried out an impact assessment listed in the Work Programme, the report 
on which is accessible at: 

http://ec.europa.eu/governance/impact/cia_2009_en.htm 

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3. 

LEGAL ELEMENTS OF THE PROPOSAL 

•  Summary of the proposed action 

The Framework Decision will both repeal and incorporate Framework Decision 2004/68/JHA 
to include the following new elements: 

–  On substantive criminal law in general 

Serious forms of child sexual abuse and exploitation currently not covered by EU legislation 
would  be  criminalised.  This  includes,  for  instance,  the  organisation  of  travel  arrangements 
with  the  purpose  of  committing  sexual  abuse,  something  particularly  relevant,  but  not 
exclusively,  in  the  context  of  child  sex  tourism.  The  definition  of  child  pornography  is 
amended  to  approximate  it  to  the  COE  Convention  and  the  Optional  Protocol.  Special 
consideration is given to offences against children in a particularly vulnerable situation, such 
as unaccompanied children. 

–  On new criminal offences in the IT environment 

New  forms  of  sexual  abuse  and  exploitation  facilitated  by  the  use  of  IT  would  be 
criminalised. This includes knowingly obtaining access to child pornography, to cover cases 
where viewing child pornography from websites without downloading or storing the images 
does not amount to "possession of" or "procuring" child pornography. Also the new offence 
of "grooming" is incorporated closely following the wording agreed in the COE Convention. 

–  On criminal investigation and initiation of criminal proceedings 

A  number  of  provisions  would  be  introduced  to  assist  with  investigating  offences  and 
bringing charges. A mechanism to coordinate prosecution in cases of multiple jurisdictions is 
included, but may be superseded once the Proposal for a Framework Decision on conflict of 
jurisdiction in criminal proceedings is adopted1. 

–  On prosecution of offences committed abroad 

Rules on jurisdiction would be amended to ensure that child sexual abusers or exploiters from 
the  EU  face  prosecution  even  if  they  commit  their  crimes  outside  the  EU,  via  so-called  sex 
tourism. 

–  On protection of victims 

New provisions will be included to ensure that victims have easy access to legal remedies and 
do not suffer from participating in criminal proceedings. 

–  On prevention of offences 

Amendments  would  be  introduced  to  help  prevent  child  sexual  abuse  and  exploitation 
offences,  through  a  number  of  actions  concentrating  on  previous  offenders  to  prevent 

1 

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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recidivism, and to restrict access to child pornography on the internet. The aim of restricting 
such access  is  to  reduce the  circulation of child  pornography  by  making  it  more  difficult  to 
use the publicly-accessible Web. It is not a substitute for action to remove the content at the 
source or to prosecute offenders. 

As a result, the proposal would also provide added value to the standard of protection set by 
the COE Convention in a number of ways. From the point of view of substance the proposal 
includes  elements  not  contained  in  the  COE  Convention,  such  as  ensuring  implementation 
across  the  EU  of  prohibitions  from  activities  with  children  imposed  on  offenders,  blocking 
access  to  child  pornography  on  the  internet,  criminalising  coercing  a  child  into  sexual 
relations with a third party, child sexual abuse online, and a non-punishment clause for child 
victims.  It  also  goes  beyond  the  obligations imposed  by  the  COE  Convention  regarding  the 
level  of  penalties,  free  legal  counselling  for  child  victims  and  repression  of  activities 
encouraging  abuse  and  child  sex  tourism.  From  a  formal  point  of  view,  incorporating 
provisions  from  the  Convention  into  EU  law  will  facilitate  faster  adoption  of  national 
measures  compared  to  national  procedures  for  ratification,  and  ensure  better  monitoring  of 
implementation. 

•  Legal basis 

Article 29, Article 31(1)(e), Article 34(2)(b) of the Treaty on the European Union 

•  Subsidiarity principle 

The subsidiarity principle applies to the actions of the European Union. 

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

Child sexual exploitation and sexual abuse has a considerable cross-border dimension, which 
is  most  evident  in  child  pornography  and  child  sex  tourism,  but  also  appears  in  the  need  to 
ensure  that  children  in  all  Member  States  should  be  protected  from  offenders  from  all 
Member  States,  who  can  travel  easily.  This  requires  EU  action,  notably  to  follow  up  on 
Council  Framework  Decision  2004/68/JHA  and  Council  Decision  2000/375/JHA,2  as  the 
objective of effectively protecting children cannot be sufficiently achieved by Member States 
alone. 

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

The  proposal  will  further  approximate  the  substantive  criminal  law  of  Member  States  and 
rules on procedure, which will have positive impact on the fight against these crimes. Firstly, 
it  is  a  way  of  avoiding  a  criminal  preference  for  committing  acts  in  Member  States  which 
have less severe rules; secondly, shared definitions make it possible to promote the exchange 
of  useful  common  data  and  experience  and  to  promote  comparability  of  data;  and  thirdly, 
international cooperation is made easier. The proposal would also improve the protection of 
child  victims.  This  is  a  humanitarian  imperative  and  also  a  condition  for  victims  to  provide 

2 

Council  Decision of  29  May  2000  to  combat  child  pornography  on  the Internet  (OJ  L  138, 9.6.2000, 
p. 1). 

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evidence necessary to prosecute offences. The effectiveness of prevention measures across the 
EU will be enhanced as well. 

The proposal therefore complies with the subsidiarity principle. 

•  Proportionality principle 

The proposal complies with the proportionality principle for the following reason(s). 

This Framework Decision confines itself to the minimum required in order to achieve those 
objectives at European level and does not go beyond what is necessary for that purpose 

•  Choice of instruments 

Proposed instruments: Framework Decision. 

Other means would not be adequate for the following reason(s). 

In the field of police and judicial cooperation in the fight against crimes such as child sexual 
abuse  and  sexual  exploitation,  only  a  Framework  Decision  permits  to  approximate  national 
legislation. 

Other means would not be adequate for the following reason(s). 

Non-legislative  measures  and  self  regulation  would  improve  the  situation  in  certain  areas 
where implementation is crucial. However, in other areas where new legislation is essential, 
the benefits would be modest. This applies to criminal prosecution and conviction for conduct 
involving  various  forms  of  child  abuse  and  exploitation  that  would  have  to  be  explicitly 
covered by law (nulla poena sine lege, Article 7 of the ECHR, Article 49 of the EU Charter), 
and  certain  measures  involving  interference  in  fundamental  rights,  which  also  need  to  be 
taken ‘in accordance with the law’ (Articles 8 and 10 of the ECHR, and Article 52(1) of the 
EU Charter). 

4. 

BUDGETARY IMPLICATION 

The proposal has no implication for the Community budget. 

5. 

ADDITIONAL INFORMATION 

•  Repeal of existing legislation 

The adoption of the proposal will lead to the repeal of existing legislation. 

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2009/xxxx (CNS) 

Proposal for a 

COUNCIL FRAMEWORK DECISION 

on combating the sexual abuse, sexual exploitation of children and child pornography, 
repealing Framework Decision 2004/68/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 Parliament3, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

Sexual  abuse  and  sexual  exploitation  of  children,  including  child  pornography 
constitute serious violations of human rights and of the fundamental right of a child to 
a harmonious upbringing and development.  

Child pornography, which consists of images of child sex abuse, and other particularly 
serious  forms  of  sexual  abuse  and  sexual  exploitation  of  children  are  increasing  and 
spreading through the use of new technologies and the internet. 

Council  Framework  Decision  2004/68/JHA  on  combating  the  sexual  exploitation  of 
children  and  child  pornography4  approximates  Member  States’  legislation  to 
criminalise  the  most  serious  forms  of  child  sexual  abuse  and  sexual  exploitation,  to 
extend  domestic  jurisdiction,  and  to  provide  for  a  minimum  level  of  assistance  for 
victims. 

The UN Optional Protocol to the Convention on the Rights of the Child on the Sale of 
Children, Child Prostitution and Child Pornography and, in particular, the Council of 
Europe  Convention  on  the  Protection  of  Children  against  Sexual  Exploitation  and 
Sexual Abuse are crucial steps in the process of enhancing international cooperation in 
this field. 

Serious  criminal  offences  such  as  the  sexual  exploitation  of  children  and  child 
pornography require a comprehensive approach covering the prosecution of offenders, 
the  protection  of  child  victims,  and  prevention  of  the  phenomenon.  Any  measure  to 
combat these offences should be carried out in the best interests of and respecting the 

3 
4 

OJ C , , p. . 
OJ L 13, 20.1.2004, p. 14. 

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rights of the child. Framework Decision 2004/68/JHA needs to be replaced by a new 
instrument providing such comprehensive legal framework to achieve that purpose. 

Serious  forms  of  child  sexual  abuse  and  sexual  exploitation  should  be  subject  to 
effective,  proportionate  and  dissuasive  sanctions.  This  includes,  in  particular,  new 
forms  of  sexual  abuse  and  sexual  exploitation  facilitated  by  the  use  of  information 
technologies. The definition of child pornography should also be clarified and brought 
closer to that contained in international instruments. 

Investigating  offences  and  bringing  charges  in  criminal  proceedings  should  be 
facilitated,  to  take  into  account  the  difficulty  for  child  victims  of  denouncing  abuse 
and the anonymity of offenders in cyberspace. 

Rules  on  jurisdiction  should  be  amended  to  ensure  that  child  sexual  abusers  or 
exploiters from the European Union face prosecution even if they commit their crimes 
outside the European Union, in particular via so-called sex tourism. 

Child  victims  should  have  easy  access  to  legal  remedies  and  should  not  suffer  for 
participating in criminal proceedings. 

(6) 

(7) 

(8) 

(9) 

(10)  To prevent and minimise recidivism, offenders should be subject to an assessment of 
the  danger  posed  by  the  offenders  and  the  possible  risks  of  repetition  of  sexual 
offences  against  children,  and  should  have  access 
intervention 
programmes or measures on a voluntary basis. 

to  effective 

(11)  Where  the  danger  posed  by  the  offenders  and  the  possible  risks  of  repetition  of  the 
offences  make  it  appropriate,  convicted  offenders  should  be  temporarily  or 
permanently  prevented  from  exercising  activities  involving  regular  contacts  with 
children,  where  appropriate.  Implementation  of  such  prohibitions  throughout  the  EU 
should be facilitated. 

(12)  To combat child pornography, especially where the original materials are not located 
within the EU, mechanisms should be put in place to block access from the Union’s 
territory to internet pages identified as containing or disseminating child pornography. 

(13) 

In accordance with the principles of subsidiarity and proportionality, this Framework 
Decision confines itself to the minimum required in order to achieve those objectives 
at European level and does not go beyond what is necessary for that purpose. 

(14)  This  Framework  Decision  respects  fundamental  rights  and  observes  the  principles 
recognised by the Charter of Fundamental Rights of the European Union and notably 
human  dignity,  the  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  those  rights.  This  Framework  Decision  does  not  intend  to  govern 
consensual sexual activities between minors. 

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HAS ADOPTED THIS FRAMEWORK DECISION: 

Article 1 

Definitions 

For the purposes of this Framework Decision: 

(a) 

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

(b) 

‘child pornography’ shall mean 

(i) 

(ii) 

any material that visually depicts a child, or any person appearing to be a 
child,  or  realistic  images  of  a  non-existent  child,  engaged  in  real  or 
simulated sexually explicit conduct; or 

any  depiction  for  primarily  sexual  purposes  of  the  sexual  organs  of  a 
child, or of any person appearing to be a child, or of realistic images of a 
non-existent child; 

(c) 

‘child  prostitution’  shall  mean  the  use  of  a  child  for  sexual  activities  where 
money or any other form of remuneration or consideration is given or promised 
as payment in exchange for the child engaging in sexual activities, regardless 
of whether this payment, promise or consideration is made to the child or to a 
third person;  

(d) 

‘pornographic  performance’  shall  mean  the  exhibition  in  front  of  a  live 
audience: 

(i) 

of a child engaged in real or simulated sexually explicit conduct; or 

(ii)  of the sexual organs of a child for primarily sexual purposes; 

(e) 

‘information  system’  shall  mean  any  device  or  group  of  inter-connected  or 
related  devices,  one  or  more  of  which,  pursuant  to  a  programme,  perform 
automatic processing of data. 

Article 2 

Offences concerning sexual abuse 

1. 

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

(a) 

engaging in sexual activities with a child who has not reached the age of sexual 
consent under national law;  

(b) 

engaging in sexual activities with a child, where: 

(i) 

use is made of coercion, force or threats; or  

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(ii) 

abuse  is  made  of  a  recognised  position  of  trust,  authority  or  influence 
over the child; or 

(iii)  abuse is made of a particularly vulnerable situation of the child, notably 

because of a mental or physical disability or a situation of dependence; 

(c) 

coercing a child into sexual activities with a third party; 

(d) 

(e) 

intentionally causing, for sexual purposes, a child who has not reached the age 
of  sexual  consent  under  national  law  to  witness  sexual  abuse  or  sexual 
activities, even without having to participate; 

intentionally  causing,  for  sexual  purposes,  a  child  to  engage  in  real  or 
simulated  sexually  explicit  conduct  or  exhibition  of  sexual  organs,  including 
through information and communication technologies. 

2. 

The  provisions  of  paragraph  1(a)  and  1(e)  are  not  intended  to  govern  consensual 
sexual activities between children. 

Article 3 

Offences concerning sexual exploitation 

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

(a) 

(b) 

recruiting  a  child  into  child  prostitution  or  into  participating  in  pornographic 
performances; 

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

(c) 

engaging  in  sexual  activities  with  a  child,  where  recourse  is  made  to  child 
prostitution; 

(d)  knowingly attending pornographic performances involving the participation of 

children. 

Article 4 
Offences concerning child pornography  

Each Member State shall take the necessary measures to ensure that the following intentional 
conduct  whether  undertaken  by  means  of  an  information  system  or  not,  when  committed 
without right is punishable:  

(a) 

production of child pornography; 

(b)  distribution, dissemination or transmission of child pornography; 

(c) 

offering, supplying or making available child pornography; 

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(d) 

acquisition or possession of child pornography; 

(e) 

knowingly  obtaining  access,  by  means  of  an  information  system  ,  to  child 
pornography.  

Article 5 

Solicitation of children for sexual purposes 

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

The  proposal,  by  means  of  an  information  system,  by  an  adult  to  meet  a  child  who  has  not 
reached the age of sexual consent under national law according to the relevant provisions of 
national law, for the purpose of committing any of the offences referred to in Articles 2(a) and 
4(a), where this proposal has been followed by material acts leading to such a meeting. 

1. 

2. 

3. 

1. 

2. 

Article 6 

Instigation, aiding and abetting , attempt and preparatory offences 

Each Member State shall take the necessary measures to ensure that the instigation 
of, aiding and abetting to commit any of the offences referred to in Articles 2 to 5 is 
punishable. 

Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  attempts  to 
commit any of the offences referred to in Articles 2 to 4 is punishable. 

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

(a) 

(b) 

the dissemination of materials advertising the opportunity to commit any of the 
offences referred to in Articles 2 to 5; 

the organisation of travel arrangements with the purpose of committing any of 
the offences referred to in Articles 2 to 5. 

Article 7 

Penalties and aggravating circumstances 

Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  the  offences 
referred to in Articles 2 to 6 are punishable by a maximum term of imprisonment of 
at least six years. 

Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  the  offences 
referred to in Articles 2 to 6 are punishable by a maximum term of imprisonment of 
at least ten years where at least one of the following circumstances applies, in so far 
as they do not already form part of the constituent elements of the offence: 

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(a) 

the child has not reached the age of sexual consent under national law; 

(b) 

(c) 

the offence was committed against a child in a particularly vulnerable situation, 
notably because of a mental or physical disability or a situation of dependence; 

the  offence  was  committed  by  a  member  of  the  family,  a  person  cohabiting 
with the child or a person having abused their authority; 

(d) 

the offence was committed by several people acting together; 

(e) 

the  offences  are  committed  within  the  framework  of  a  criminal  organisation 
within the meaning of Framework Decision 2008/841/JHA5; 

(f) 

the perpetrator has previously been convicted of offences of the same nature. 

Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  the  offences 
referred to in Articles 2 to 6 are punishable by a maximum term of imprisonment of 
at least twelve years where at least one of the following circumstances applies: 

(a) 

the offence endangered the life of the child; 

(b) 

the offence involved serious violence or caused serious harm to the child. 

With a view to preventing and minimising the risks of repeated offences referred to 
under Article 2 to 6, each Member State may, where appropriate taking into account 
the  personal  circumstances  of  the  offender  and  in  particular  the  risk  assessment 
referred to in Article 16, provide for the criminal penalties referred to in paragraphs 
1,  2  and  3,  to  be  accompanied  by  other  sanctions  or  measures  under  national  law, 
which  shall  include  specific  intervention  programmes  or  measures  as  referred  to  in 
Article 17. 

Article 8 

Disqualification arising from convictions 

Where, in accordance with the assessment referred to in Article 16 it is established 
that  the  person  presents  a  danger  and  there  is  a  possible  risk  of  repetition  of  the 
offences,  each  Member  State  shall  take  the  necessary  measures  to  ensure  that  a 
natural person, who has been convicted of any of the offences referred to in Articles 
2  to  6,  may  be  temporarily  or  permanently  prevented  from  exercising  activities 
involving regular contacts with children. 

Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  the  measure 
consisting in temporarily or permanently preventing the person convicted of any of 
the offences referred to in Articles 2 to 6 from exercising activities involving regular 
contacts  with  children  is  entered  in  the  criminal  record  of  the  convicting  Member 
State. 

3. 

4. 

1. 

2. 

5 

OJ L 300, 11.11.2008, p. 42. 

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3. 

4. 

1. 

2. 

3. 

By  way  of  derogation  from  Articles  7(2)  and  9(2)  of  the  Council  Framework 
Decision  on  the  organisation  and  content  of  the  exchange  of  information  extracted 
from  criminal  records  between  Member  States6,  each  Member  State  shall  take  the 
necessary  measures  to  ensure  that,  for  the  purpose  of  effectively  implementing  the 
measure  consisting  in  temporarily  or  permanently  preventing  the  person  from 
exercising activities involving regular contacts with children, in particular insofar as 
the  requesting  Member  State  subjects  access  to  certain  activities  to  conditions  to 
ensure that candidates have not been convicted of any of the offences referred to in 
the 
Articles  2 
disqualification arising from conviction of any of the offences referred to in Articles 
2 to 6 of this Framework Decision is transmitted when requested under Article 6 of 
that  Framework  Decision  from  the  central  authority  of  the  Member  State  of  the 
person's nationality, and that personal data concerning such disqualification provided 
under Article 7(2) and (4) of that Framework Decision may in all cases be used for 
such purpose. 

this  Framework  Decision, 

information  concerning 

to  6  of 

Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  the  measure 
consisting in temporarily or permanently preventing the person convicted of any of 
the offences referred to in Articles 2 to 6 from exercising activities involving regular 
contacts  with  children,  imposed  in  another  Member  State,  is  recognised  and 
enforced. 

Article 9 

Liability of legal persons 

Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  legal  persons 
may be held liable for any of the offences referred to in Articles 2 to 6 committed for 
their  benefit  by  any  person,  acting  either  individually  or  as  part  of  an  organ  of  the 
legal person, and having a leading position within the legal person, based on one of 
the following: 

(a) 

a power of representation of the legal person; 

(b) 

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

(c) 

an authority to exercise control within the legal person. 

Member  States  shall  also  take  the  necessary  measures  to  ensure  that  legal  persons 
may be held liable where the lack of supervision or control by a person referred to in 
paragraph  1  has  made  possible  the  commission,  by  a  person  under  its  authority,  of 
any of the offences referred to in Articles 2 to 6 for the benefit of that legal person. 

Liability  of  legal  persons  under  paragraphs  1  and  2  shall  be  without  prejudice  to 
criminal proceedings against natural persons who are perpetrators of, or accessories 
to, any of the offences referred to in Articles 2 to 6. 

6 

Adopted at the JHA Council of 26-27 February 2009. Final reference pending publication. 

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4. 

1. 

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. 

Article 10 

Sanctions on legal persons 

Each Member State shall take the necessary measures to ensure that a legal person 
held  liable  pursuant  to  Article  9(1)  is  punishable  by  effective,  proportionate  and 
dissuasive  penalties,  which  shall  include  criminal  or  non-criminal  fines  and  may 
include other penalties, for example: 

(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. 

2. 

Each Member State shall take the necessary measures to ensure that a legal person 
held liable pursuant to Article 9(2) is punishable by penalties or measures which are 
effective, proportionate and dissuasive. 

Article 11 

Non application of sanctions to the victim 

Each Member State shall provide for the possibility of not prosecuting or imposing penalties 
on  child  victims  of  the  offences  referred  to  in  Articles  3  and  4(a)  for  their  involvement  in 
unlawful activities as a direct consequence of being subjected to those offences. 

Article 12 

Investigation and prosecution 

1. 

2. 

Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  investigations 
into or the prosecution of the offences referred to in Articles 2 to 6 are not dependent 
on a report or accusation being made by the victim, and that the criminal proceedings 
may continue even if the victim has withdrawn their statements. 

Each  Member  State  shall  take  the  necessary  measures  to  enable  the  prosecution  of 
any of the offences referred to in Articles 2 to 6 for a sufficient period of time after 

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3. 

4. 

5. 

6. 

the  victim  has  reached  the  age  of  majority  and  which  is  commensurate  with  the 
gravity of the offence concerned. 

Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  the 
confidentiality rules imposed by national law on certain professionals called upon to 
work  in  contact  with  children  do  not  constitute  an  obstacle  to  the  possibility,  for 
those professionals, of their reporting to the services responsible for child protection 
any  situation  where  they  have  reasonable  grounds  for  believing  that  a  child  is  the 
victim of offences referred to in Articles 2 to 6. 

Each Member State shall take the necessary measures to encourage any person who 
knows  about  or  suspects,  in  good  faith,  offences  referred  to  in  Articles  2  to  6  to 
report these facts to the competent services. 

Each  Member  State  shall  take  the  necessary  measures  to  ensure  effective 
investigation and prosecution of the offences referred to in Articles 2 to 6, allowing 
the  possibility  of  covert  operations  at  least  in  those  cases  where  the  use  of  an 
information system is involved. 

Each Member State shall take the necessary measures to enable investigative units or 
services  to  identify  the  victims  of  the  offences  referred  to  in  Articles  2  to  6,  in 
particular  by  analysing  child  pornography  material,  such  as  photographs  and 
audiovisual  recordings  transmitted  or  made  available  by  means  of  an  information 
system. 

Article 13 

Jurisdiction and coordination of prosecution 

1. 

Each  Member  State  shall  take  the  necessary  measures  to  establish  its  jurisdiction 
over the offences referred to in Articles 2 to 6 where: 

(a) 

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

(b) 

(c) 

(d) 

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

the offence is committed against one of its nationals or a person who has their 
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. 

Each  Member  State  shall  ensure  that  its  jurisdiction  includes  situations  where  an 
offence referred to in Articles 4 and 5, and insofar as is relevant, in Articles 2 and 6, 
is committed by means of an information system accessed from its territory, whether 
or not the information system is on its territory. 

For  the  prosecution  of  any  of  the  offences  referred  to  in  Articles  2  to  6  committed 
outside the territory of the State concerned, as regards paragraph 1(b), each Member 
State  shall  take  the  necessary  measures  to  ensure  that  its  jurisdiction  is  not 

2. 

3. 

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4. 

5. 

1. 

2. 

3. 

subordinated to the condition that the acts are a criminal offence at the place where 
they were performed. 

For  the  prosecution  of  any  of  the  offences  referred  to  in  Articles  2  to  6  committed 
outside the territory of the 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  referred  to  in  Articles  2  to  6  falls  within  the  jurisdiction  of  more 
than  one  Member  State  and  when  any  one  of  the  Member  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, 
Member  States  may  have  recourse  to  Eurojust  or  any  other  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 offenders, special account shall 
be taken of the following factors: 

(a) 

the Member State in the territory of which the acts were committed; 

(b) 

the Member State of which the perpetrator is a national or resident; 

(c) 

the Member State of origin of the victims; 

(d) 

the Member State in the territory of which the perpetrator was found. 

Article 14 

Protection of and assistance to victims 

Each  Member  State  shall  ensure  that,  where  the  age  of  a  person  subject  to  the 
offences  referred  to  in  Articles  2  to  6  is  uncertain  and  there  are  reasons  to  believe 
that  the  person  is  a  child,  the  person  is  presumed  to  be  a  child  and  receives 
immediate access to protection and assistance in accordance with this Article. 

Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  judicial 
authorities appoint a special representative for the victim where, by national law, the 
holders  of  parental  responsibility  are  precluded  from  representing  the  child  in 
criminal proceedings as a result of a conflict of interest between them and the victim, 
or where the child is unaccompanied. 

Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  the  specific 
actions  taken  to  protect  and  to  assist  victims,  in  the  short  and  long  term,  in  their 
physical and psycho-social recovery, are adopted following a specific assessment of 
the special circumstances of each particular child victim, taking due account of the 
child’s views, needs and concerns. 

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4. 

5. 

6. 

7. 

Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  where 
appropriate victims of the offences referred to in Articles 2 to 6 have access to free 
legal  counselling  and  free  legal  representation  in  criminal  proceedings  relating  to 
those offences. 

Victims  of  any  of  the  offences  referred  to  in  Articles  2  to  6  shall  be  considered  as 
particularly  vulnerable  victims  pursuant  to  Article  2(2),  Article  8(4)  and  Article 
14(1)  of  Council  Framework  Decision  2001/220/JHA  of  15  March  2001  on  the 
standing of victims in criminal proceedings7. 

Each Member State shall take all measures possible to ensure appropriate assistance 
for the victim’s family. In particular, each Member State shall, where appropriate and 
possible,  apply  Article  4  of  Council  Framework  Decision  2001/220/JHA  to  the 
family. 

The protection and assistance measures referred to in this Framework Decision shall 
apply in addition to the provisions Council Framework Decision on preventing and 
combating trafficking in human beings, and protecting victims, repealing Framework 
Decision 2002/629/JHA. 

Article 15 

Participation of child victims in criminal investigations and proceedings 

1. 

Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  in  criminal 
investigations of any of the offences referred to in Articles 2 to 6: 

(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

interviews with the child victim take place without  unjustified delay  after the 
facts have been reported to the competent authorities; 

interviews  with  the  child  victim  take  place,  where  necessary,  in  premises 
designed or adapted for this purpose; 

interviews with the child victim are carried out by professionals trained for this 
purpose; 

the  same  persons,  if  possible  and  where  appropriate,  conduct  all  interviews 
with the child victim; 

the  number  of  interviews  is  as  limited  as  possible  and  interviews  are  only 
carried out where strictly necessary for the purpose of criminal proceedings; 

the  child  victim  may  be  accompanied  by  his  or  her  legal  representative  or, 
where appropriate, an adult of his or her choice, unless a reasoned decision has 
been made to the contrary in respect of that person. 

2. 

Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  in  criminal 
investigations of any of the offences referred to in Articles 2 to 6 all interviews with 

7 

OJ L 82, 22.3.2001, p. 1. 

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the child victim or, where appropriate, with a child witness, may be videotaped and 
that  these  videotaped  interviews  may  be  used  as  evidence  in  criminal  court 
proceedings, according to the rules under its national law. 

3. 

Each  Member  State  shall  take  the  necessary  measures  to  ensure,  in  criminal  court 
proceedings relating to any of the offences referred to in Articles 2 to 6, that: 

(a) 

(b) 

the  judge  may  order  the  hearing  to  take  place  without  the  presence  of  the 
public; 

the child victim may be heard in the courtroom without being present, notably 
through the use of appropriate communication technologies. 

Article 16 

Risk assessment 

1. 

2. 

1. 

Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  persons 
convicted of offences referred to in Articles 2 to 6 are subject to an assessment of the 
danger presented by the person and possible risks of repetition of any of the offences 
referred to in Articles 2 to 6, with the aim of: 

(a) 

identifying appropriate intervention programmes or measures; and 

(b)  determining  the  need  for  the  offender  to  be  temporarily  or  permanently 

prevented from exercising activities involving regular contacts with children. 

The  assessment  referred  to  in  paragraph  1  shall  be  periodically  reviewed  to  take 
account of changes in circumstances that have an impact on the danger and possible 
risks. 

Article 17 

Intervention programmes or measures 

Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  effective 
intervention programmes or measures are made available with a view to preventing 
and  minimising  the  risks  of  repeated  offences  of  a  sexual  nature  against  children. 
These  programmes  or  measures  shall  be  accessible  at  any  time  during  the  criminal 
proceedings,  inside  and  outside  prison,  according  to  the  conditions  laid  down  in 
national law. 

Such  intervention  programmes  or  measures  shall  be  adapted  to  meet  the  specific 
developmental  needs  for  children  who  sexually  offend,  including  those  who  are 
below the age of criminal responsibility.  

2. 

Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  persons 
convicted  of  offences  referred  to  in  Articles  2  to  6  where  appropriate  subject  to 
possible risks of repetition: 

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(a)  may  have  access  or  be  offered  access  to  the  programmes  or  measures 

mentioned in paragraphs 1 and 2; 

(b) 

(c) 

(d) 

are  offered  access  to  specific  programmes  or  measures  appropriate  to  the 
danger  and  possible  risks  of  repetition  of  any  of  the  offences  referred  to  in 
Articles 2 to 6; 

are  fully  informed  of  the  reasons  for  the  proposal  to  have  access  to  the 
programmes or measures; 

consent  to  participation  in  the  specific  programme  or  measure  in  full 
knowledge of the facts; 

(e)  may refuse and are made aware of the potential consequences of refusal . 

3. 

4. 

Each Member State shall take the necessary measures to ensure that persons subject 
to  criminal  proceedings  for  any  of  the  offences  referred  to  in  Articles  2  to  6  may 
have access to the programmes or measures referred to in paragraphs 1 and 2, under 
conditions which are neither detrimental nor contrary to the rights of the defence and 
to the requirements of a fair and impartial trial, and particularly with due respect for 
the rules governing the principle of the presumption of innocence. 

Each Member State shall take the necessary measures to ensure that persons who fear 
that they might commit any of the offences established in accordance with Articles 2 
to  6  may  have  access,  where  appropriate,  to  effective  intervention  programmes  or 
measures designed to evaluate and prevent the risk of offences being committed. 

Article 18 

Blocking access to websites containing child pornography 

Each  Member  State  shall  take  the  necessary  measures  to  enable  the  competent  judicial  or 
police  authorities  to  order  or  similarly  obtain  the  blocking  of  access  by  internet  users  to 
internet pages containing or disseminating child pornography, subject to adequate safeguards, 
in particular to ensure that the blocking is limited to what is necessary, that users are informed 
of  the  reason  for  the  blocking  and  that  content  providers  are  informed  of  the  possibility  of 
challenging it.. 

Article 19 

Territorial scope 

This Framework Decision shall apply to Gibraltar. 

Article 20 

Repeal of Framework Decision 2004/68/JHA 

Framework Decision 2004/68/JHA is hereby repealed. 

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Article 21 

Implementation 

1. 

2. 

Member  States  shall  take  the  necessary  measures  to  comply  with  this  Framework 
Decision by [TWO YEARS FROM ADOPTION] at the latest. 

By  [TWO  YEARS  FROM  ADOPTION]  the  Member  States  shall  transmit  to  the 
General Secretariat of the Council and to the Commission the text of the provisions 
transposing into their national legislation the obligations imposed on them under this 
Framework  Decision.  By  [FOUR  YEARS  FROM  ADOPTION]  on  the  basis  of  a 
report  reflecting  this  information  and  a  written  report  from  the  Commission,  the 
Council shall assess the extent to which the Member States have complied with this 
Framework Decision, and shall consider the need for amendments. 

Article 22 

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,  

For the Council 
The President 

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