Proposal for a Directive of the European Parliament and of the Council on combating the sexual abuse, sexual exploitation of children and child pornography, repealing Framework Decision 2004/68/JHA
Date: 2010-03-29
Institutions: European Commission
Subjects: child pornography, child protection, criminal law, fight against crime, offence, paedophilia, sexual violence

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EUROPEAN COMMISSION 

Brussels, 29.3.2010 
COM(2010)94 final 

2010/0064 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL  

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

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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 67 of the Treaty on the 
Functioning of the European Union, is to ensure a high level of security through measures to 
prevent and combat crime, which includes child sexual abuse and child sexual exploitation. In 
accordance  with  Article  83  of  the  Treaty  on  the  Functioning  of  the  European  Union,  this 
should be done primarily by establishing minimum rules concerning the definition of criminal 
offences  and  sanctions  in  the  area  of  sexual  exploitation  of  children.  Specific  objectives 
would  be  to  effectively  prosecute  the  crime;  to  protect  victims’  rights;  and  to  prevent  child 
sexual exploitation and abuse. 

•  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  on  the  Protection  of  Children 
against 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  Charter  of  Fundamental  Rights  of  the 
European  Union,  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. The Safer Internet 
Programme  contributes  to  preventing  child  sexual  abuse  through  an  array  of  measures 
including the empowerment and protection of minors, awareness raising and education, self-
regulation and safety tools. 

They  are  fully  consistent  with  the  Commission  proposal  for  a  Directive  on  preventing  and 
combating trafficking in human beings and protecting victims. 

The  objectives  are  also  consistent  with  the  new  EU  Youth  Strategy  (Council  Resolution  27 
November  2009),  which  targets  children  and  young  people  within  the  age  range  13-20,  and 
anchors  European  youth  policy  cooperation  firmly  in  the  international  system  of  human 
rights. The EU Youth Strategy highlights that the  life and future  prospects of young people 
are  significantly  determined  by  the  opportunities,  support  and  protection  received  during 
childhood and calls upon stakeholders at local level to detect an help young people at risk and 
to signpost them to other services where needed and facilitate young people's access to health 
facilities. 

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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  Charter  of  Fundamental  Rights  of  the 
European  Union,  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. 

The  provisions  on  criminalising  new  forms  of  abuse  using  the  Internet,  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  Charter  of  Fundamental  Rights  of  the  European  Union). 
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 Charter 
of Fundamental Rights of the European Union). 

Where necessary, appropriate use may be made of funding possibilities available at the level 
of the European Union to support Member States' efforts to comply with the requirements of 
this directive. 

2. 

CONSULTATION  OF 
ASSESSMENT 

•  Consultation of interested parties 

INTERESTED 

PARTIES  AND 

IMPACT 

Consultation 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. 

Discussions  in  the  Council  on  the  Commission  proposal  for  a  Framework  Decision  on  this 
subject  have  provided  information  on  Member  States'  legislation  and  current  practice.  This 
has  to  a  large  extent  confirmed  the  need  for  a  new  EU  framework  approximating  national 
legislation. 

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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. 

•  Impact assessment SEC(2009) 355 and Impact assessment summary SEC(2009) 356 

Various  policy  options  have  been  examined  in  the  context  of  the  previous  proposal  for  a 
Framework Decision 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  2004/68/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 

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A  new  legislative  act  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 2004/68/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 to accompany the previous proposal for a 
Framework Decision of 25 March 2009 on combating the sexual abuse, sexual exploitation of 
children and child pornography, which is valid mutatis mutandis for the present proposal for a 
Directive. The report on the impact assessment is accessible at: 

http://ec.europa.eu/governance/impact/ia_carried_out/cia_2009_en.htm#jls 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

•  Summary of the proposed action 

The Directive 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  to  the 
Convention  on  the  Rights  of  the  Child.  Special  consideration  is  given  to  offences  against 
children in a particularly vulnerable situation. 

In particular, the level of criminal penalties should be increased so that they are proportionate, 
effective  and  dissuasive.  To  determine  the  degree  of  seriousness  and  attach  penalties 
proportionate  to  it,  consideration  is  given  to  different  factors  which  may  intervene  in  very 
different sorts of offences, like the degree of harm to the victim, the level of culpability of the 
offender and the level of risk posed to society. 

Accordingly,  a  number  of  relations  between  offences  can  be  established.  In  general  terms, 
activities involving sexual contact are more serious than those which do not; the presence of 
exploitation  makes  the  offence  more  serious  than  its  absence;  coercion,  force  or  threats  are 
more  serious  than  abuse  of  a  position  of  power  of  the  offender  or  weakness  of  the  victim, 

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which  in  turn  is  more  serious  than  free  consent  of  the  victim.  Prostitution,  which  involves 
sexual activities and money, is more serious than pornographic performances, which may or 
may not include them; recruiting to prostitution or similar is more serious than mere causing, 
as it involves active seeking of children as commodities. On child pornography, production, 
usually  involving  recruiting  and  sexual  contact  with  the  child,  is  more  serious  than  other 
offences  like  distribution  or  offering,  which  in  turn  are  more  serious  than  possession  or 
access. 

As  a  result  of  combining  these  different  criteria,  distinction  is  thus  made  between  five 
different groups of offences, depending on their degree of seriousness, leading to accordingly 
different levels of penalties for the basic crimes. 

–  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  on-line  pornographic  performances,  or  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. 

–  On prosecution of offences committed abroad 

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

–  On protection of victims 

New  provisions  dealing  with  protection  of  victims  (in  a  broad  sense)  will  be  included  to 
ensure that victims have easy access to legal remedies and do not suffer from participating in 
criminal proceedings. They cover assistance and support to victims, and protection of victims 
specifically in criminal investigations and 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 
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 

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access  to  child  pornography  on  the  internet,  criminalising  coercing  a  child  into  sexual 
relations with a third party, child sexual abuse through pornographic performances 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 

Articles 82 (2) and 83 (1) of the Treaty on the Functioning of 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,1  as  the 
objective of effectively protecting children cannot be sufficiently achieved by Member States, 
either at central level or at regional or local level. 

Action  by  the  European  Union  can  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 
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). 

1 

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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This Directive 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, taking into account 
the need for accuracy of criminal legislation. 

•  Choice of instruments 

Proposed instruments: Directive. 

In the fight against sexual exploitation of children the approximation of the criminal laws and 
regulations of the Member States is necessary to improve cooperation in criminal matters. To 
this end the TFEU specifically envisages the adoption of directives only. 

4. 

BUDGETARY IMPLICATION 

The proposal has no implication for the EU budget. 

5. 

ADDITIONAL INFORMATION 

•  Repeal of existing legislation 

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

•  Territorial scope 

The adoption of the proposal will be addressed to the Member States. The application of the 
resulting  Directive  to  the  United  Kingdom,  Ireland  and  Denmark  will  be  determined  in 
accordance with the provisions of Protocols (No 21) and (No 22) annexed to the Treaty on the 
functioning of the European Union. 

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2010/0064 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL  

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

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 82(2) and 83(1) thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national Parliaments, 

Having regard to the opinion of the European Economic and Social Committee2, 

Having regard to the opinion of the Committee of the Regions3, 

Acting in accordance with the ordinary legislative procedure4, 

Whereas: 

(1) 

(2) 

(3) 

Sexual  abuse  and  sexual  exploitation  of  children,  including  child  pornography 
constitute serious violations of fundamental rights, in particular the rights of the child 
to protection and care as is necessary for his or her well-being as stipulated by the UN 
Convention on the Rights of the Child and the Charter of Fundamental Rights of the 
European Union. 

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  pornography5  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.  Council  Framework  Decision  2001/220/JHA  on  the  standing  of  victims  in 
criminal  proceedings6  establishes  a  set  of  victims'  rights  in  criminal  proceedings, 

2 
3 
4 
5 
6 

OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 
OJ L 13, 20.1.2004, p. 14. 
OJ L 82, 22.3.2001, p. 1. 

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(4) 

(5) 

(6) 

(7) 

(8) 

including  the  right  to  protection  and  compensation.  Moreover,  the  coordination  of 
prosecution  of  cases  of  sexual  abuse,  sexual  exploitation  of  children  and  child 
pornography  will  be  facilitated  by  the  adoption  of  Council  Framework  Decision 
2009/948/JHA  on  prevention  and  settlement  of  conflict  of  jurisdiction  in  criminal 
proceedings7. 

According  to  Article  34  of  the  UN  Convention  on  the  Rights  of  the  Child,  States 
Parties undertake to protect the child from all forms of sexual abuse. 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 
Abuse8 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.  The  child's  best 
interests must be a primary consideration when carrying out any measures to combat 
these offences in accordance with the Charter of Fundamental Rights of the European 
Union  and  the  UN  Convention  on  the  Rights  of  the  Child.  Framework  Decision 
2004/68/JHA should 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, various 
forms of sexual abuse and sexual exploitation facilitated by the use of information and 
communication  technology.  The  definition  of  child  pornography  should  also  be 
clarified and brought closer to that contained in international instruments. 

This  Directive  does  not  govern  Member  States'  policies  with  regard  to  consensual 
sexual activities in which children may be involved and which can be regarded as the 
normal discovery of sexuality in the course of human development, taking account of 
the  different  cultural  and  legal  traditions  and  of  new  forms  of  establishing  and 
maintaining relations among children and adolescents, including through information 
and communication technologies. 

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. To ensure successful investigations and 
prosecutions of the offences referred to in this Directive, effective investigation tools 
should be made available to those responsible for the investigation and prosecutions of 
interception  of 
such  offences.  These 
communications,  covert  surveillance  including  electronic  surveillance,  monitoring  of 
bank accounts or other financial investigations. 

include  covert  operations, 

tools  may 

7 
8 

OJ L 328, 15.12.2009, p. 42. 
Council  of  Europe  Convention  on  the  Protection  of  Children  against  Sexual  Exploitation  and  Sexual 
Abuse, made in Lanzarote, 25.10.2007, Council of Europe Treaty Series No. 201. 

EN 

11 

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(9) 

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. 

(10)  Measures to protect child victims should be adopted in their best interest, taking into 
account an assessment of their needs. Child victims should have easy access to legal 
remedies, including free legal counselling and representation and measures to address 
conflicts of interest where abuse occurs in the family. Moreover, child victims should 
be protected from sanctions, for example under national legislation on immigration or 
prostitution,  if  they  bring  their  case  to  the  attention  of  competent  authorities. 
Furthermore,  participation in criminal proceedings by child victims should not  cause 
additional trauma as a result of interviews or visual contact with offenders. 

(11)  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 
intervention 
offences  against  children,  and  should  have  access 
programmes or measures on a voluntary basis. 

to  effective 

(12)  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. 

(13)  Child pornography, which constitutes sex abuse images, is a specific type of content 
which  cannot  be  construed  as  the  expression  of  an  opinion.  To  combat  it,  it  is 
necessary to reduce the circulation of child abuse material by making it more difficult 
for  offenders  to  upload  such  content  onto  the  publicly  accessible  Web.  Action  is 
therefore  necessary  to  remove  the  content  at  source  and  apprehend  those  guilty  of 
making distributing or downloading child abuse images. The EU, in particular through 
increased cooperation with third countries and international organisations, should seek 
to  facilitate  the  effective  removal  by  third  country  authorities  of  websites  containing 
child  pornography,  which  are  hosted  in  their  territory.  However  as,  despite  such 
efforts,  the  removal  of  child  pornography  content  at  its  source  proves  to  be  difficult 
where the original materials are not located within the EU, mechanisms should also be 
put in place to block access from the Union’s territory to internet pages identified as 
containing  or  disseminating  child  pornography.  For 
that  purpose,  different 
mechanisms can be used as appropriate, including facilitating the competent judicial or 
police  authorities  to  order  such  blocking,  or  supporting  and  stimulating  Internet 
Service Providers on a voluntary basis to develop codes of conduct and guidelines for 
blocking  access  to  such  Internet  pages.  Both  with  a  view  to  the  removal  and  the 
blocking  of  child  abuse  content,  cooperation  between  public  authorities  should  be 
established and strengthened, particularly in the interest of ensuring that national lists 
of websites containing child pornography material are as complete as possible and of 
avoiding duplication of work. Any such developments must take account of the rights 
of the end users, adhere to existing legal and judicial procedures and comply with the 
European Convention on Human Rights and the Charter of Fundamental Rights of the 
European  Union.  The  Safer  Internet  Programme  has  set  up  a  network  of  hotlines 
whose goal is to collect information and to ensure coverage and exchange of reports 
on the major types of illegal content online. 

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12 

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(14)  Since  the  objective  of  this  Directive,  namely  to  combat  sexual  abuse,  sexual 
exploitation of children and child pornography, 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 
principles  of  subsidiarity  as  referred  to  in  Article  3  and  Article  5  of  the  Treaty  on 
European Union. In accordance with the principle of proportionality, as set out in the 
latter  Article,  this  Directive  does  not  go  beyond  what  is  necessary  to  achieve  that 
objective. 

(15)  This  Directive  respects  fundamental  rights  and  observes  the  principles  recognised  in 
particular  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  Directive  seeks  to  ensure  full  respect  for 
those rights and has to be implemented accordingly. 

(16) 

[In  accordance  with  Articles  1,  2,  3  and  4  of  Protocol  on  the  position  of  United 
Kingdom and Ireland in respect of the area of freedom, security and justice, annexed 
to  the  Treaty  on  the  Functioning  of  the  European  Union,  the  United  Kingdom  and 
Ireland  have  notified  their  wish  to  participate  in  the  adoption  and  application  of  this 
Directive] OR [Without prejudice to Article 4 of Protocol on the position of the United 
Kingdom and Ireland in respect of the area of freedom, security and justice, the United 
Kingdom and Ireland will not participate in the adoption of this Directive and will not 
be bound by or be subject to its application]9. In accordance with Articles 1 and 2 of 
Protocol on the position of Denmark annexed to the Treaty on the Functioning of the 
European  Union,  Denmark  is  not  taking  part in  the  adoption  of  this  Directive  and  is 
therefore not bound by it or subject to its application 

HAVE ADOPTED THIS DIRECTIVE: 

Article 1 
Subject matter  

This Directive aims to establish minimum rules concerning the definition of criminal offences 
and sanctions in the area of sexual exploitation of children. It also aims to introduce common 
provisions to strengthen the prevention of the crime and the protection of its victims.  

9 

The final wording of this recital in the Directive will depend on the actual position of the UK and IRL, 
taken in accordance with the provisions of protocol (No 21). 

EN 

13 

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Article 2 
Definitions 

For the purposes of this Directive: 

(a) 

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

(b) 

‘child pornography’ shall mean 

(i) 

any  material  that  visually  depicts  a  child  engaged  in  real  or  simulated 
sexually explicit conduct; or 

(ii) 

any  depiction  of  the  sexual  organs  of  a  child  for  primarily  sexual 
purposes; or 

(iii)  any  material  that  visually  depicts  any  person  appearing  to  be  a  child 
engaged in real or simulated sexually explicit conduct or any depiction of 
the  sexual  organs  of  any  person  appearing  to  be  a  child,  for  primarily 
sexual purposes; or 

(iv)  realistic  images  of  a  child  engaged  in  sexually  explicit  conduct  or 
realistic  images  of  the  sexual  organs  of  a  child,  regardless  of  the  actual 
existence of such child, for primarily sexual purposes.; 

(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 live exhibition, including by means 
of information and communication technology: 

(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) 

‘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 3 
Offences concerning sexual abuse 

1. 

2. 

Member  States  shall  take  the  necessary  measures  to  ensure  that  the  intentional 
conduct referred to in paragraphs 2 to 5 is punishable. 

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 

EN 

14 

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to  participate,  shall  be  punishable  by  a  maximum  term  of  imprisonment  of  at  least 
two years. 

3. 

Engaging  in  sexual  activities  with  a  child  who  has  not  reached  the  age  of  sexual 
consent under national law shall be punishable by a maximum term of imprisonment 
of at least five years. 

4. 

Engaging in sexual activities with a child, where: 

(i) 

(ii) 

abuse  is  made  of  a  recognised  position  of  trust,  authority  or  influence 
over the child shall be punishable by a maximum term of imprisonment 
of at least eight years; or  

abuse is made of a particularly vulnerable situation of the child, notably 
because  of  a  mental  or  physical  disability  or  a  situation  of  dependence 
shall be punishable by a maximum term of imprisonment of at least eight 
years; or 

(iii)  use  is  made  of  coercion,  force  or  threats  shall  be  punishable  by  a 

maximum term of imprisonment of at least ten years. 

5. 

Coercing  a  child  into  sexual  activities  with  a  third  party  shall  be  punishable  by  a 
maximum term of imprisonment of at least ten years. 

Article 4 
Offences concerning sexual exploitation 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

Member  States  shall  take  the  necessary  measures  to  ensure  that  the  intentional 
conduct referred to in paragraphs 2 to 11 is punishable. 

Causing a child to participate in pornographic performances shall be punishable by a 
maximum term of imprisonment of at least two years.  

Profiting  from  or  otherwise  exploiting  a  child  participating  in  pornographic 
performances  shall  be  punishable  by  a  maximum  term  of  imprisonment  of  at  least 
two years. 

Knowingly  attending  pornographic  performances  involving  the  participation  of 
children  shall  be  punishable  by  a  maximum  term  of  imprisonment  of  at  least  two 
years. 

Recruiting a child to participate in pornographic performances shall be punishable by 
a maximum term of imprisonment of at least five years. 

Causing a child to participate in child prostitution shall be punishable by a maximum 
term of imprisonment of at least five years. 

Profiting from or otherwise exploiting a child participating in child prostitution shall 
be punishable by a maximum term of imprisonment of at least five years 

EN 

15 

   EN 

 
8. 

9. 

10. 

11. 

1. 

2. 

3. 

4. 

5. 

6. 

Engaging  in  sexual  activities  with  a  child,  where  recourse  is  made  to  child 
prostitution shall be punishable by a maximum term of imprisonment of at least five 
years. 

Coercing a child to participate in pornographic performances shall be punishable by 
a maximum term of imprisonment of at least eight years. 

Recruiting  a  child  to  participate  in  child  prostitution  shall  be  punishable  by  a 
maximum term of imprisonment of at least eight years. 

Coercing  a  child  into  child  prostitution  shall  be  punishable  by  a  maximum  term  of 
imprisonment of at least ten years. 

Article 5 
Offences concerning child pornography  

Member  States  shall  take  the  necessary  measures  to  ensure  that  the  intentional 
conduct referred to in paragraphs 2 to 6 is punishable. 

Acquisition  or  possession  of  child  pornography  shall  be  punishable  by  a  maximum 
term of imprisonment of at least one year. 

Knowingly  obtaining  access,  by  means  of  information  and  communication 
technology,  to  child  pornography  shall  be  punishable  by  a  maximum  term  of 
imprisonment of at least one year. 

Distribution, dissemination or transmission of child pornography shall be punishable 
by a maximum term of imprisonment of at least two years. 

Offering, supplying or making available child pornography shall be punishable by a 
maximum term of imprisonment of at least two years. 

Production  of  child  pornography  shall  be  punishable  by  a  maximum  term  of 
imprisonment of at least five years. 

Article 6 
Solicitation of children for sexual purposes 

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

The proposal, by means of information and communication technology, by an adult to meet a 
child  who  has  not  reached  the  age  of  sexual  consent  under  national  law,  for  the  purpose  of 
committing  any  of  the  offences  referred  to  in  Articles  3  (3)  and  Article  5  (6),  where  this 
proposal has been followed by material acts leading to such a meeting, shall be punishable by 
a maximum term of imprisonment of at least two years. 

EN 

16 

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1. 

2. 

3. 

Article 7 
Instigation, aiding and abetting, attempt and preparatory offences 

Member  States  shall  take  the  necessary  measures  to  ensure  that  the  instigation  of, 
aiding  and  abetting  to  commit  any  of  the  offences  referred  to  in  Articles  3  to  6  is 
punishable. 

Member States shall take the necessary measures to ensure that attempts to commit 
any  of  the  offences  referred  to  in  Article  3  (3)  to  (5),  and  (2)  with  regard  to 
witnessing sexual abuse; Article 4 (2) to (3) and (5) to (11); and Article 5 (2) and (4) 
to (6) is punishable. 

Member  States  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 3 to 6; 

the organisation of travel arrangements with the purpose of committing any of 
the offences referred to in Articles 3 to 6. 

Article 8 
Consensual sexual activities between peers 

The provisions of Article 3 (2), with regard to witnessing sexual activities, and (3); Article 4 
(2)  and  (4)  and  Article  5  do  not  govern  consensual  sexual  activities  between  children  or 
involving persons who are close in age and degree of psychological and physical development 
or maturity, insofar as the acts did not involve any abuse. 

Article 9 
Aggravating circumstances 

1. 

In so far as the following circumstances do not already form part of the constituent 
elements  of  the  offences  referred  to  in  Articles  3  to  7,  they  shall  be  considered  as 
aggravating circumstances for the purposes of this Directive: 

(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; 

EN 

17 

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2. 

1. 

2. 

3. 

(e) 

the  offences  are  committed  within  the  framework  of  a  criminal  organisation 
within the meaning of Framework Decision 2008/841/JHA10; 

(f) 

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

(g) 

the offence endangered the life of the child; 

(h) 

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

Where  at  least  one  of  the  aggravating  circumstances  referred  to  in  paragraph  1  are 
present, Member States shall take the necessary measures to ensure that the offences 
referred to in Articles 3 to 6 are punishable by effective, proportionate and dissuasive 
penalties which are more severe penalties than those foreseen in Articles 3 to 6 for 
the basic offence. 

Article 10 
Disqualification arising from convictions 

In  order  to  avoid  the  risk  of  repetition  of  offences,  Member  States  shall  take  the 
necessary measures to ensure that a natural person who has been convicted of any of 
the  offences  referred  to  in  Articles  3  to  7  may  be  temporarily  or  permanently 
prevented from exercising activities involving regular contacts with children. 

Member States shall take the necessary measures to ensure that the measure referred 
to in paragraph 1 is entered in the criminal record of the convicting Member State. 

By  way  of  derogation  from  Articles  7  (2)  and  9  (2)  of  the  Council  Framework 
Decision  2009/315/JHA  on  the  organisation  and  content  of  the  exchange  of 
information  extracted  from  criminal  records  between  Member  States11,  Member 
States 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  Articles  3  to  7  of  this  Directive,  information  concerning  the 
disqualification arising from conviction of any of the offences referred to in Articles 
3  to  7  of  this  Directive  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. 

4. 

Member States shall take the necessary measures to ensure that the measure referred 
to in paragraph 1 imposed in another Member State, is recognised and enforced. 

10 
11 

OJ L 300, 11.11.2008, p. 42. 
OJ L 93, 7.4.2009, p. 23. 

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18 

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1. 

2. 

3. 

1. 

Article 11 
Liability of legal persons 

Member States shall take the necessary measures to ensure that legal persons may be 
held liable for any of the offences referred to in Articles 3 to 7 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 of this Article has made possible the commission, by a person under its 
authority, of any of the offences referred to in Articles 3 to 7 for the benefit of that 
legal person. 

Liability  of  legal  persons  under  paragraphs  1  and  2  of  this  Article  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 3 to 7. 

Article 12 
Sanctions on legal persons 

Member States shall take the necessary measures to ensure that a legal person held 
liable  pursuant  to  Article  11  (1)  is  punishable  by  effective,  proportionate  and 
dissuasive  sanctions,  which  shall  include  criminal  or  non-criminal  fines  and  may 
include other sanctions, 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. 

Member States shall take the necessary measures to ensure that a legal person held 
liable  pursuant  to  Article  11  (2)  is  punishable  by  penalties  or  measures  which  are 
effective, proportionate and dissuasive. 

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19 

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Article 13 
Non prosecution or non-application of penalties to the victim 

Member  States  shall  provide  for  the  possibility  of  not  prosecuting  or  imposing  penalties  on 
child  victims  of  the  offences  referred  to  in  Articles  4  and  Article  5  (4)  to  (6)  for  their 
involvement  in  unlawful  activities  as  a  direct  consequence  of  being  subjected  to  those 
offences. 

1. 

2. 

3. 

4. 

1. 

2. 

Article 14 
Investigation and prosecution 

Member States shall take the necessary measures to ensure that investigations into or 
the prosecution of the offences referred to in Articles 3 to 7 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. 

Member States shall take the necessary measures to enable the prosecution of any of 
the offences referred to in Articles 3, Article 4 (2) to (3) and (5) to (11), and Article 5 
(6) for a sufficient period of time after the victim has reached the age of majority and 
which is commensurate with the gravity of the offence concerned. 

Member  States  shall  take  the  necessary  measures  to  ensure  that  effective 
investigative  tools  are  available  to  persons,  units  or  services  responsible  for 
investigating  or  prosecuting  offences  referred  to  in  Articles  3  to  7,  allowing  the 
possibility of covert operations at least in those cases where the use of information 
and communication technology is involved. 

Member  States  shall  take  the  necessary  measures  to  enable  investigative  units  or 
services to attempt to identify the victims of the offences referred to in Articles 3 to 
7,  in  particular  by  analysing  child  pornography  material,  such  as  photographs  and 
audiovisual  recordings  transmitted  or  made  available  by  means  of  information  and 
communication technology. 

Article 15 
Reporting suspicion of sexual exploitation or sexual abuse 

Member  States  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 3 to 7. 

Member  States  shall  take  the  necessary  measures  to  encourage  any  person  who 
knows  about  or  suspects,  in  good  faith,  offences  referred  to  in  Articles  3  to  7  to 
report these facts to the competent services. 

EN 

20 

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Article 16 
Jurisdiction and coordination of prosecution 

1. 

Member States shall take the necessary measures to establish its jurisdiction over the 
offences referred to in Articles 3 to 7 where: 

(a) 

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

(b) 

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

(c) 

(d) 

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

Member States shall ensure that its jurisdiction includes situations where an offence 
referred  to  in  Articles  5  and  6,  and  insofar  as  is  relevant,  in  Articles  3  and  7,  is 
committed  by  means  of  information  and  communication  technology  accessed  from 
its territory, whether or not it is based on its territory. 

A Member State may decide that it will not apply or that it will apply only in specific 
cases or circumstances the jurisdiction rules set out in paragraph 1 (c) and (d) as far 
as the offence is committed outside its territory. 

For  the  prosecution  of  any  of  the  offences  referred  to  in  Articles  3  to  7  committed 
outside the territory of the State concerned, as regards paragraph 1 (b) of this Article, 
Member States shall take the necessary measures to ensure that its jurisdiction is not 
subordinated to the condition: 

(a) 

that the acts are a criminal offence at the place where they were performed; or 

(b) 

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. 

Article 17 
General provisions on assistance, support and protection measures for victims 

Victims  of  the  offences  referred  to  in  Articles  3  to  7  shall  be  provided  assistance, 
support and protection, taking into account the best interests of the child. 

Member  States  shall  ensure  that,  where  the  age  of  a  person  subject  to  the  offences 
referred  to  in  Articles  3  to  7  is  uncertain  and  there  are  reasons  to  believe  that  the 
person is a child, the person is presumed to be a child in order to receive immediate 
access  to  assistance,  support  and  protection  in  accordance  with  Article  18  and  19, 
pending verification of the age. 

2. 

3 

4. 

1. 

2. 

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21 

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1. 

2. 

3. 

4. 

1. 

2. 

3. 

Article 18 
Assistance and support to victims 

Member  States  shall  take  the  necessary  measures  to  ensure  that  assistance  and 
support  are  provided  to  victims  before,  during  and  for  an  appropriate  time  after 
criminal  proceedings  in  order  to  enable  them  to  exercise  the  rights  set  forth  in 
Council Framework Decision 2001/220/JHA12 on the standing of victims in criminal 
proceedings, and in this Directive. 

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

Victims  of  any  of  the  offences  referred  to  in  Articles  3  to  7  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. 

Member  States  shall  take  measures,  where  appropriate  and  possible,  to  provide 
assistance  and  support  to  the  victim’s  family.  In  particular,  Member  States  shall, 
where  appropriate  and  possible,  apply  Article  4  of  Council  Framework  Decision 
2001/220/JHA to the family. 

Article 19 
Protection of child victims in criminal investigations and proceedings 

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

Member  States  shall  ensure  that  child  victims  have  immediate  access  to  free  legal 
counselling  and  to  free  legal  representation,  including  for  the  purpose  of  claiming 
compensation 

Without  prejudice  to  the  rights  of  the  defence,  Member  States  shall  take  the 
necessary  measures  to  ensure  that  in  criminal  investigations  of  any  of  the  offences 
referred to in Articles 3 to 7: 

(a) 

(b) 

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; 

12 

OJ L 82, 22.3.2001, p. 1. 

EN 

22 

   EN 

 
                                                 
(c) 

(d) 

(e) 

(f) 

interviews  with  the  child  victim  are  carried  out  by  or  through  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. 

Member  States  shall  take  the  necessary  measures  to  ensure  that  in  criminal 
investigations of any of the offences referred to in Articles 3 to 7 all interviews with 
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. 

Member  States  shall  take  the  necessary  measures  to  ensure,  in  criminal  court 
proceedings relating to any of the offences referred to in Articles 3 to 7, that it may 
be ordered that: 

(a) 

the hearing shall take place without the presence of the public; 

(b) 

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

Article 20 
Intervention programmes or measures 

Member States shall take the necessary measures to ensure that persons convicted of 
offences  referred  to  in  Articles  3  to  7  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  3  to  7,  with  the  aim  of  identifying  appropriate  intervention 
programmes or measures. 

Member States 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.  

4. 

5. 

1. 

2. 

3. 

Member States shall take the necessary measures to ensure that persons convicted of 
offences referred to in Articles 3 to 7, where appropriate considering the assessment 
referred to in paragraph 1: 

EN 

23 

   EN 

 
(a)  may  have  access  to  the  programmes  or  measures  referred  to  in  paragraphs  1 

and 2; 

(b) 

are offered access to the specific programmes or measures; 

(c) 

(d) 

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

consent  to  participation  in  the  specific  programmes  or  measures  in  full 
knowledge of the facts; 

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

Member  States  shall  take  the  necessary  measures  to  ensure  that  persons  subject  to 
criminal proceedings for any of the offences referred to in Articles 3 to 7 may have 
access  to  the  programmes  or  measures  referred  to  in  paragraphs  1  and  2  of  this 
Article, 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. 

Member States shall take the necessary measures to ensure that persons who fear that 
they might commit any of the offences referred to in Articles 3 to 7 may have access, 
where  appropriate,  to  effective  intervention  programmes  or  measures  designed  to 
evaluate and prevent the risk of offences being committed. 

Article 21 
Blocking access to websites containing child pornography 

Member States shall take the necessary measures to obtain the blocking of access by 
Internet  users  in  their  territory  to  Internet  pages  containing  or  disseminating  child 
pornography.  The  blocking  of  access  shall  be  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, as far as possible, 
are informed of the possibility of challenging it. 

4. 

5. 

1. 

2. 

Without prejudice to the above, Member States shall take the necessary measures to 
obtain the removal of internet pages containing or disseminating child pornography. 

Article 22 
Repeal of Framework Decision 2004/68/JHA 

Framework Decision 2004/68/JHA is hereby repealed, without prejudice to the obligations of 
the Member States relating to the time limits for transposition into national law. 

References  to  the  repealed  Framework  Decision  shall  be  construed  as  references  to  this 
Directive. 

EN 

24 

   EN 

 
Article 23 
Transposition 

1. 

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative 
provisions  necessary  to  comply  with  this  Directive  by  [TWO  YEARS  FROM 
ADOPTION] at the latest. They shall forthwith communicate to the Commission the 
text  of  those  provisions  and  a  correlation  table  between  those  provisions  and  this 
Directive. 

When  Member  States  adopt  those  provisions,  they  shall  contain  a  reference  to  this 
Directive  or  be  accompanied  by  such  a  reference  on  the  occasion  of  their  official 
publication. Member States shall determine how such reference is to be made. 

2. 

Member States shall communicate to the Commission the text of the main provisions 
of national law which they adopt in the field covered by this Directive. 

Article 24 
Reporting 

1. 

2. 

By  [FOUR  YEARS  FROM  ADOPTION]  and  every  three  years  thereafter,  the 
Commission  shall  submit  a  report  to  the  European  Parliament  and  the  Council 
including any necessary proposal.  

Member States shall send to the Commission all the information that is appropriate 
for drawing up the report referred to in paragraph 1. The information shall include a 
detailed  description  of  legislative  and  non-legislative  measures  adopted  pursuant  to 
this Directive. 

Article 25 
Entry into force 

This Directive shall enter into  force  on the 20th day following its publication in the Official 
Journal of the European Union. 

Article 26 
Addressees 

This Directive is addressed to the Member States in accordance with the Treaties. 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

EN 

25 

   EN