Commission staff working paper - Accompanying document to the proposal for a Council Framework Decision on combating the sexual abuse, sexual exploitation of children and child pornography, repealing Framework Decision 2004/68/JHA  - Summary of the impact assessment {COM(2009) 135} {SEC(2009) 355}
Date: 2009-03-25
Institutions: European Commission
Subjects: child pornography, child protection, paedophilia, public safety, trafficking in human beings

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 25.3.2009 
SEC(2009) 356 

COMMISSION STAFF WORKING PAPER 

Accompanying document to the 

Proposal for a 

COUNCIL FRAMEWORK DECISION 

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

SUMMARY OF THE IMPACT ASSESSMENT 

{COM(2009) 135} 
{SEC(2009) 355} 

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SUMMARY OF THE IMPACT ASSESSMENT  

1. 

WHAT IS THE PROBLEM? 

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 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. 

On the side of the 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 for shame or fear 
of  the  consequences;  variations  in  national  criminal  law  and  procedure  may  give  rise  to 
differences  in  investigation  and  prosecution  in  various  countries;  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.  At  the  same  time 
national  legal  systems  need  to  deal  with  high  number  of  actors  involved,  with  different 
degrees  of  responsibility  and  operating  in  different  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  the  difficulties  of  prosecution,  organised  crime  can 
make considerable profits with little risk. 

2. 

WHAT IS THE RATIONALE FOR EU ACTION? 

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.  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. 

Ongoing initiatives in police and judicial cooperation may have some effect in tackling such 
crime.  Furthermore,  a  Council  of  Europe  Convention  CETS  No.  201  against  child  sexual 
exploitation and sexual abuse was adopted in 2007 and is arguably the highest international 
standard for protecting children against sexual abuse and exploitation to date. If all Member 
States  implemented  the  Convention  CETS  No  201  this  would  also  lead  to  significant 
improvements.  However,  there  is  no  guarantee  that  all  Member  States  will  ratify  the 
Convention in the near future due to lengthy national procedures and the lack of a timescale 

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for  ratification.  Nor  can  the  Convention  provide  for  a  vigorous  monitoring  mechanism  to 
ensure appropriate implementation. 

For these reasons, stakeholders argue forcefully for more effective, specific measures. 

3. 

WHAT ARE THE OBJECTIVES? 

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  general  objective  could  be  served  by  action  aimed  at  achieving  the  following  specific 
and operational objectives: 

A. 

Specific objective: to effectively prosecute the crime 

Operational objectives: 

A.1  To impose effective, proportionate and dissuasive criminal penalties on offenders 
who commit child sexual abuse or exploitation 

A.2  To  facilitate  the  investigation  of  offences  and  the  initiation  of  criminal 
proceedings 

A.3 

To effectively prosecute abuse or exploitation committed abroad 

To  remove  obstacles  to  international  cooperation  and  to  foster  the  use  of 

A.4 
investigative tools which are effective in organised crime and transnational cases 

B. 

Specific objective: to protect victims’ rights 

Operational objectives: 

To facilitate access by victims to legal remedies and appropriate specialist protection 

B.1 
measures. 

To  ensure  that  victims  of  child  sexual  abuse  and  exploitation  suffer  no  harm  from 

B.2 
participating in criminal investigations and proceedings. 

C 

Specific objective: to prevent child sexual exploitation and abuse 

Operational objectives: 

To promote access to intervention programmes and measures as a means to prevent 

C.1 
repeated and first-time offences against children. 

To  ensure  that  appropriate  security  measures  are  taken  with  regard  to  child  sex 
C.2 
offenders  who  continue  to  be  dangerous  after  their  release,  and  that  they  are  effectively 
implemented throughout the EU. 

To  technically  prevent  or  make  it  more  difficult  to  access  and  disseminate  child 

C.3 
pornography, especially on the internet. 

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D. 

Specific objective: to establish effective monitoring systems 

Operational objective: 

To create harmonised national mechanisms to measure the extent of such crime and 

D.1 
to monitor the effectiveness of policy to fight child sexual abuse and exploitation. 

4. 

WHAT ARE THE POLICY OPTIONS? 

Various policy options are 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 may continue the process of 
signature and ratification of Council of Europe Convention CETS No 201. 

•  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  Convention  CETS  No  201,  and  additional  elements  not 
contained in either of them. It would cover, for instance, criminalisation of serious forms of 
child  sexual  abuse  and  exploitation  that  are  currently  not  included,  such  as  new  criminal 
offences  in  the  IT  environment.  Provisions  would  be  introduced  to  assist  with  investigating 
offences and bringing charges, as well as rules to extend national jurisdiction,  provisions to 
protect and support victims in criminal proceedings, and measures to prevent recidivism and 
to disrupt access to child pornography. 

•  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  in  option  3,  plus  the  non-legislative  measures  identified  under  option  2  to  improve 
implementation of national legislation in criminal matters resulting from the amendments, and 
to provide tools for investigation, prosecution, protection and prevention beyond criminal law. 

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5. 

HOW DO THE POLICY OPTIONS COMPARE? 

Option 1 (status quo) may provide substantial improvement if Member States sign, ratify and 
implement  Convention  CETS  No  201,  as  they  seem  willing  to  do.  However,  the  lengthy 
national ratification procedures in the absence of a legally binding EU framework and the lack 
of  a  vigorous  monitoring  mechanism  mean  that  it  is  uncertain  when  and  to  what  extent  the 
benefits  of  that  Convention  would  be  put  into  practice.  Option  2  would  make  for  more 
effective  implementation  of  the  existing  legal  framework,  but  it  would  be  insufficient  to 
improve prosecution in a number of areas where a specific legal basis is required. 

Option 3 would improve matters in comparison to the current situation. It would strengthen 
legislation  in  areas  currently covered  by  EU  legislation  on  the  prosecution  of  offenders  and 
protection  of  child  victims.  It  would  also  address  preventive  measures,  thus  improving  the 
protection of children in general. The financial cost is expected to be outweighed by the social 
and  economic  benefit  of  more  efficient  action  against  this  crime.  Fundamental  rights 
improvements would also outweigh the risks of interference that come with certain measures. 

Option  4  would  multiply  the  effectiveness  of  the  measures  in  option  2  and  3  by  combining 
them and encouraging Member States to cooperate on setting up tools and acting to improve 
the implementation of the more comprehensive legal framework been put in place. 

Following  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. 

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