Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims
Date: 2022-12-19
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: criminal law, criminal proceedings, fight against crime, help for victims, human rights, organised crime, penalty, trafficking in human beings

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   EUROPEAN COMMISSION  Brussels, 19.12.2022  COM(2022) 732 final 2022/0426 (COD)  Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims {SEC(2022) 445 final} - {SWD(2022) 425 final} - {SWD(2022) 426 final} - {SWD(2022) 427 final} - {SWD(2022) 428 final}  
 
EXPLANATORY MEMORANDUM 

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• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

This proposal sets out a series of measures to better prevent and combat trafficking in human 
beings  and  to  protect  its  victims  under  the  legal  framework  in  place  in  the  Union,  namely 
Directive  2011/36/EU1  (“the  Anti-trafficking  Directive”).  The  Anti-trafficking  Directive 
provides an overarching EU framework to prevent and combat trafficking in human beings by 
establishing  minimum  rules  concerning  the  definition  of  criminal  offences  and  sanctions  in 
the  area  of  trafficking  in  human  beings,  and  by  introducing  provisions  to  strengthen  the 
prevention  of  this  crime  and  the  protection  of  the  victims,  while  taking  into  account  the 
gender  perspective2.  The  Directive  provides  EU  common  rules  on:  (i)  criminalisation, 
investigation  and  prosecution  of  trafficking  in  human  beings,  including  the  definition  of 
offences, penalties and sanctions; (ii) assistance and support to, and protection of, victims of 
trafficking in human beings; and (iii) prevention of trafficking in human beings3. 

The adoption of the Anti-trafficking Directive in April 2011 was a key development towards 
enhancing  EU  efforts  to  prevent  and  combat  trafficking  in  human  beings,  and  to  protect  its 
victims. It was a crucial step towards harmonisation of the relevant rules across the Member 
States. However, a number of challenges have arisen or gained importance since 2011. These 
are addressed through this targeted revision of the Directive.  

The correct and complete transposition of the Directive and its full implementation remains a 
priority  for  the  Commission.  Following  the  adoption  of  the  transposition  report4  the 
Commission  continued  the  engagement  with  the  Member  States  and  committed  to  use  the 
powers conferred to  it by  the Treaties to  ensure  full transposition and implementation of its 
provisions.  By  taking  a  multi-disciplinary  and  comprehensive  approach,  the  Commission 
adopted  the  EU  Strategy  on  combatting  trafficking  in  human  beings  2021-20255  setting  out 
detailed  actions  aimed  at  improving  the  implementation  of  the  relevant  provisions  of 
Directive  2011/36/EU.  It  provides  a  robust  policy  response  to  combatting  trafficking  in 
human  beings,  from  prevention  through  to  protection  of  victims,  to  prosecution  and 
conviction of traffickers.  

The  forms  of  exploitation  have  evolved  since  2011.  Sexual  and  labour  exploitation  have 
consistently  been  the  main  purposes  of  trafficking  in  human  beings.  Trafficking  for  sexual 
exploitation  has  continuously  been  the  most  prevalent  form  of  exploitation  in  the  EU 

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Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and 
combating  trafficking  in  human  beings  and  protecting  its  victims,  and  replacing  Council  Framework 
Decision 2002/629/JHA, OJ L 101, 15.4.2011, p. 1–11. 
European  Commission,  Combined  Evaluation  Roadmap/Inception 
Ares(2021)4984017 – 05/08/2021. Available at: link.  
Survey:  Q  38,  2  national  competent  authorities  (FR,  LU),  2  National  Rapporteurs  (EL,  RO),  2  law 
enforcement  authorities  (EL,  IE),  4  others  (BG,  2  from  ES,  MT),  2  civil  society  organisations  (BE, 
MT). 
European Commission, Report assessing the extent to which Member States have taken the necessary 
measures  in  order  to  comply  with  Directive  2011/36/EU  on  preventing  and  combating  trafficking  in 
human beings and protecting its victims in accordance with Article 23 (1), COM(2016) 722 final 
Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European 
Economic and Social Committee and the Committee of the Regions on the EU Strategy on Combatting 
Trafficking in Human Beings 2021–2025, COM(2021) 171 final, 14.4.2021. 

Impact  Assessment.  Ref. 

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accounting  for  over  a  half  of  all  victims  and  affecting  predominantly  women  and  girls6. 
Trafficking for the purpose of labour exploitation has been the second most frequent form of 
trafficking in the EU, with  the number of victims rapidly increasing  and  nearly doubling in 
the last five years7. However, trafficking for other purposes has gained more prominence over 
time both as regards forms of exploitation already included in the Anti-trafficking Directive 
(begging, exploitation of criminal activities and the removal of organs) as well as forms not 
explicitly  mentioned  therein  (including  forced  marriage  and  illegal  adoption).  The  overall 
percentage  of  other  purposes  of  exploitation  represents  more  than  10%  of  all  victims.  This 
proposal seeks to expand the non-exhaustive list of forms of exploitation explicitly mentioned 
in  the  Directive  as  to  include  forced  marriage  and  illegal  adoption,  in  order  to  ensure  that 
national legal systems cover an increasing number of trafficking purposes. 

The  modi  operandi  of  traffickers,  who  often  operate  in  the  framework  of  organised  crime, 
have also evolved resulting in an increased threat of trafficking in human beings. Advances in 
technology allow traffickers to recruit, advertise and exploit victims remotely, and to widely 
share  exploitative  materials online. The same technological  means make  it more difficult  to 
detect the crime, identify the perpetrators, and track down the money used to commit offences 
and the profits generated by the crime. This proposal seeks to address the challenges posed by 
the increasing  digitalisation  of trafficking in  human beings  and to  enhance  the criminal  law 
response to technology-facilitated offences. Especially in recent years, relevant stakeholders, 
including  EU  Agencies,  law  enforcement  and  judicial  authorities,  international  and  civil 
society  organisations,  have  highlighted  the  concern  of  the  growing  number  of  trafficking 
offences committed or facilitated by means of information and communication technologies. 

The optional regime of sanctions on legal persons currently in force, as well as the extent to 
which it is transposed and applied in  Member States, does not sufficiently meet the aims of 
the Anti-trafficking Directive. While still ensuring that sanctions are effective, proportionate 
and  dissuasive,  this  proposal  seeks  to  enhance  the  criminal  justice  response  to  trafficking 
offences  committed  for  the  benefit  of  legal  persons  by  replacing  the  optional  regime  of 
sanctions with two different mandatory regimes that apply in case of standard offences and of 
aggravated offences.  

The adoption of the Anti-trafficking Directive in 2011 pre-dates the EU legal framework on 
freezing  and  confiscation.  Therefore,  the  Commission  proposes  to  update  the  reference  to 
tracing,  freezing,  management  and  confiscation  of  proceeds  by  making  explicit  reference  to 
the EU rules on these matters. 

Substantial room for improvement remains in the early identification and referral practices of 
Member  States,  both  at  the  national  and  cross-border  levels.  In  particular,  not  all  Member 
States have a national referral mechanism in place and the structure and functioning of such 
mechanisms varies considerably across Member States. This proposal seeks to ensure that all 
Member  States  establish  by  laws,  regulations  or  administrative  provisions  national  referral 
mechanism, with a view to streamlining the functioning of relevant national institutions and to 
bringing  further  harmonisation  in  their  structures  and  practices  on  referral  to  victims  to 
appropriate assistance and support systems. This will also constitute the first step towards the 

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51% of all victims in the EU in 2019-2020 were trafficked for the purpose of sexual exploitation. The 
vast majority are female (88%), of which 73% women and 27% girls. European Commission, Report on 
the progress made in the progress made in the fight against trafficking in human beings (Fourth Report), 
[Reference to be added, once adopted]. 
28%  of  victims  in  the  EU  in  2019-2020  were  trafficked  for  the  purpose  of  labour  exploitation 
representing a significant increase compared to 2017-2018 (15%). Ibid. 

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establishment of a European Referral Mechanism. 

The  information  gathered  from  recent  studies  and  consultations  with  relevant  stakeholders 
show that the demand that fosters trafficking has not decreased despite the wealth of relevant 
education, training and awareness raising activities, and the transposition of Article 18(4) of 
the  Anti-trafficking  Directive  in  a  number  of  Member  States.  Despite  all  multi-stakeholder 
efforts, the demand for sexual services, cheap labour and products persists. This, in turn, fuels 
trafficking  for  the  purpose  of  sexual  and  labour  exploitation.  This  proposal  aims  to  bring 
further harmonisation across Member States’ with a view to reducing demand. The proposal 
also recognises that criminal law is only part of the demand reduction response, and it should 
continue  to  be  accompanied  by  education,  training  and  awareness  raising  activities,  in  line 
with the Anti-trafficking Directive. 

Trafficking  in  human  beings  is  a  complex  crime.  In  order  to  address  it  appropriately,  it  is 
crucial to rely on coherent and reliable data. Similarly to other crime areas, it is estimated that 
an important part of trafficking cases is not reported. This is one of the factors hampering full 
understanding of the scope of trafficking in  human beings within the EU.  In addition,  there 
are  important  gaps  in  the  data  collection  on  reported  cases,  and  statistics  gathered  by  the 
Commission are made public with substantial delay after the reporting period. This proposal 
aims to require Member States to collect and report to the Commission data on trafficking in 
human beings every year, and to further harmonise data collection, with a view to enhancing 
its quality and accelerating the publication of data reports. 

• 

Consistency with existing policy provisions in the policy area 

The  Anti-trafficking  Directive  was  adopted  on  15  April  2011.  It  has  not  been  amended  or 
revised  since  then.  The  Security  Union  Strategy8  of  July  2020  recognises  the  challenges  in 
identifying,  prosecuting  and  convicting  trafficking  in  human  beings  and  announced  a  new 
comprehensive approach to combat this crime. The EU Strategy on Combatting Trafficking in 
Human Beings 2021-2025 highlighted that the complete transposition and full implementation 
of the Anti-trafficking Directive remain a Commission priority. It called for an evaluation of 
the implementation of the Directive and, if necessary, based on the outcome of the evaluation, 
for its revision.  

The legislative measures included in this proposal, and the non-legislative measures that will 
accompany it, are fully in line with the priorities of the Strategy: reducing demand that fosters 
trafficking;  breaking  the  criminal  model  to  halt  victims’  exploitation;  protecting,  supporting 
and empowering the victims, especially women and children; and addressing the international 
dimension  of  the  crime.  The  proposed  amendments  concern  selected  issues.  They  aim  to 
enhance the efficiency of the framework on preventing and  combating trafficking in  human 
beings and on protecting the victims of this crime, and were drafted coherently to supplement 
it.  

This proposal lays down rules that build on the experience of Member States in transposing 
and implementing the Anti-trafficking Directive. It addresses the developments occurred since 
2011 and the newest  trends observed in  the area of anti-trafficking in  human beings, taking 
into  consideration  proposals  for  improvements  formulated  by  a  wide  range  of  stakeholders. 
As such, this proposal provides a framework that should allow the national legal systems of 
Member States to be up to date and better equipped to face the current challenges. 

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COM (2020) 605 final. 

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The  proposal  takes  stock  of  the  findings  presented  by  the  Commission  through  its  biannual 
reporting on the progress  made in  the fight  against  trafficking in  human beings,  pursuant  to 
Articles 19 and 20 of the Anti-trafficking Directive. It is informed by the meetings of the EU 
Network of National Rapporteurs and Equivalent Mechanisms on trafficking in human beings 
and of the EU Civil Society Platform against trafficking in human beings, meetings with the 
EU Agencies, the evaluation9 and Impact Assessment10 of the Anti-trafficking Directive, and 
numerous  conferences,  meetings  and  exchanges  with  relevant  stakeholders.  The  proposed 
amendments also take into account relevant existing studies and reports published by regional 
and international organisations. 

This proposal reflects the Commission’s commitment to closely monitor the correct and full 
transposition of the Anti-trafficking Directive and the effectiveness of the national legislation 
transposing it. The Commission will build on the information transmitted by Member States 
upon transposition. With regards to the new rules on the  knowing use of exploited services, 
the Commission will monitor the transposition and the impact of national legislation. Within 
[five  years  after  the  transposition  deadline],  the  Commission  will  submit  a  report  to  the 
European Parliament and the Council assessing the extent to which the Member States have 
taken the necessary measures in order to comply with the new rules as well as the impact of 
such measures. 

This proposal is fully in line with the 2000 United Nations Protocol to Prevent, Suppress and 
Punish  Trafficking  in  Persons,  Especially  Women  and  Children,  supplementing  the  United 
Nations  Convention  against  Transnational  Organised  Crime,  to  which  the  European  Union 
and all its Member States are parties. 

• 

Consistency with other Union policies 

The  evaluation  of  the  Anti-trafficking  Directive  found  that  the  legal  instrument  is  coherent 
with relevant EU legislative instruments. The proposed amendments are also in line with the 
policy aims pursued by the Union, and in particular with: 

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the  framework  regulating  the  standards  on  the  rights,  support  and  protection  of 
victims of crime, in particular Directive 2012/29/EU11; 

the  framework  concerning  sanctions  and  measures  against  employers  of  illegally 
staying third-country nationals, in particular Directive 2009/52/EC12; 

the  framework  regulating  the  issuance  of  a  residence  permit  to  third-country 
nationals  who  are  victims  of  trafficking  in  human  beings  or  who  have  been  the 
subject  of  an  action  to  facilitate  illegal  immigration,  who  cooperate  with  the 
competent authorities, in particular Council Directive 2004/81/EC13; 

SWD (2022) 427. 
SWD (2022) 425. 
Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing 
minimum  standards  on  the  rights,  support  and  protection  of  victims  of  crime,  and  replacing  Council 
Framework Decision 2001/220/JHA, OJ L 315, 14.11.2012, p. 57-73. 
Directive  2009/52/EC  of  the  European  Parliament  and  of  the  Council  of  18  June  2009  providing  for 
minimum  standards  on  sanctions  and  measures  against  employers  of  illegally  staying  third-country 
nationals, OJ L 168, 30.6.2009, p. 24–32. 
Council  Directive  2004/81/EC  of  29  April  2004  on  the  residence  permit  issued  to  third-country 
nationals who are victims of trafficking in human beings or who have been the subject of an action to 
facilitate illegal immigration, who cooperate with the competent authorities, OJ L 261, 6.8.2004, p. 19-
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the criminal  law framework on combating the sexual  abuse and  sexual  exploitation 
of children and child pornography, in  particular Directive 2011/93/EU14, as well as 
the  framework  on  combating  child  sexual  abuse  envisaged  in  Regulation  (EU) 
XXXX/YYY  [proposal  for  a  Regulation  laying  down  rules  to  prevent  and  combat 
child sexual abuse]15; 

the framework on asset recovery and confiscation, in particular Directive EU/XX/YY 
of  the  European  Parliament  and  of  the  Council  [Proposed  Directive  on  asset 
recovery and confiscation]16. 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

This  proposal  amends  the  Anti-trafficking  Directive.  It  is  therefore  based  on  Articles  82(2) 
and 83(1) TFEU, which are the legal bases of the amended act. 

• 

Subsidiarity  

In accordance with the principles of subsidiarity and proportionality as set out in Article 5 of 
the  Treaty  on  the  European  Union,  the  objectives  of  the  proposal  cannot  be  sufficiently 
achieved by Member States and can thus be better achieved at the Union level.  In line with 
Article  83(1)  TFEU  and  the  existing  rules  in  the  Anti-trafficking  Directive,  Member  States 
have the right to adopt or retain measures that are more stringent than those set out in Union 
law. 

The existing legal framework on preventing and combating trafficking in human  beings and 
protecting  its  victims  was  set  up  at  Union  level,  firstly  with  Council  Framework  Decision 
2002/629/JHA17  and subsequently by  the Anti-trafficking Directive. An improvement of the 
current  framework  cannot  be  achieved  by  Member  States  acting  autonomously.  A  thorough 
check of subsidiarity was performed in the context of the Impact Assessment of this proposal. 
The cross-border dimension of trafficking in human beings concerns the nationality of victims 
and  the  modi  operandi  of  the  criminal  networks  perpetrating  the  crime.  The  data  collection 
carried  out  in  the  context  of  the  evaluation  shows  that  43%  of  the  victims  in  the  EU  was a 
citizen of a non-EU country, who are often trafficked by third country nationals. The cross-
border  dimension  is  also  reflected  in  the  increasing  number  of  operations  and  Action  Days 
supported  by  Europol  and  an  increase  of  over  50%  since  2015  in  the  number  of  trafficking 
cases  registered  at  Eurojust.  Different  elements  of  trafficking  offences  can  take  place  in 
different  Member  States  and/or  non-EU  countries.  In  order  to  improve  the  response  to 
criminal  activities,  cross-border 
judicial  cooperation  require 
harmonisation  of  relevant  national  legislation  and  systematic  exchange  of  good  practices. 
Accordingly, transnational cooperation is increasingly based on common EU rules in different 
crime areas, which should continue to include trafficking in human beings. 

law  enforcement  and 

The increased relevance  of the online dimension  of the  crime  also  warrants  EU action. The 
internet, social media and online platforms give traffickers the opportunity to recruit, control, 

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Directive  2011/93/EU  of  the  European  Parliament  and  of  the  Council  of  13 December  2011  on 
combating  the  sexual  abuse  and  sexual  exploitation  of  children  and  child  pornography,  and  replacing 
Council Framework Decision 2004/68/JHA, OJ L 335, 17.12.2011, p. 1-14. 
COM (2022) 209. 
COM (2022) 245. 
Council  Framework  Decision  of  19  July  2002  on  combating  trafficking  in  human  beings, 
2002/629/JHA, OJ L 203, 1.8.2002, p. 1–4. 

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transport  and  exploit  victims,  to  moving  profits  and  reach  out  to  users  everywhere  without 
crossing  any  border  and  being  shielded  behind  a  screen.  Union-level  action  allows  the  law 
enforcement authorities of Member States to investigate and prosecute technology-facilitated 
offences more effectively, by exchanging information and sharing best practices, including on 
the collection of digital evidence and on financial investigations. 

• 

Proportionality 

The proposed amendments are limited to what is necessary for reinforcing the EU framework 
on preventing and combating trafficking in human beings and to protect its victims. They do 
not  go  beyond  what  is  necessary  to  achieve  those  objectives.  The  proposal  builds  on  rules 
already  in  force,  which  are  in  line  with  the  principle  of  proportionality.  The  detailed 
description of alternative measures that could have taken place to attain the objectives of this 
proposal is given in the accompanying Impact Assessment.  

In order to address forms of exploitation which are currently not explicitly mentioned in the 
Anti-trafficking  Directive,  it  is  proposed  to  explicitly  add  forced  marriage  and  illegal 
adoption. The proposed addition of these forms of exploitation, which are already mentioned 
in  the recitals  of the Directive, is  deemed as a proportionate  response to  the increase in  the 
percentage of trafficking cases for purposes other than sexual and labour exploitation. 

The online dimension of the crime  is implicitly  already covered in the current provisions of 
the Anti-trafficking Directive, which do not differentiate between offences committed online 
or offline. It is proposed to explicitly mention that the intentional acts, means and purpose of 
information  and 
trafficking  offences  should 
communication technologies. This modification aims to reinforce the criminal response to one 
of the most serious changes in the threat landscape of this crime area since the adoption of the 
Directive. The level of penalties will remain the same as for the standard offences, although 
Member States are not prevented from adopting a stricter regime. 

include  acts  committed  by  means  of 

With regards to the sanctions on legal persons, it is proposed to establish a mandatory regime 
of sanctions for the standard offences to the exclusion from entitlement to public benefits, aid 
or subsidies; and the temporary or permanent closure of establishments which have been used 
for  committing  the  offences.  These  sanctions  are  among  the  optional  regime  in  the  current 
Anti-trafficking  Directive. A further  mandatory  regime of sanctions was  set  up for offences 
aggravated  by  the  circumstances  in  Article  4(2),  which  includes  temporary  or  permanent 
disqualification from the practice of commercial activities; placing under judicial supervision; 
and judicial winding up. These sanctions were also part of the optional regime of sanctions for 
legal persons in the current Anti-trafficking Directive. These measures allow to strengthen the 
judicial  response  to  trafficking  offences  committed  by  legal  persons,  while  adopting  a 
proportionate  approach  to  sanctions,  which  is  based  on  the  mandatory  transposition  of  all 
measures but entails that aggravated offences are addressed with stricter sanctions than those 
envisaged for standard offences. 

The  formal  establishment  of  a  National  Referral  Mechanism  through  national  laws, 
regulations  or  administrative  provisions  is  considered  a  minimum  measure  to  enhance  the 
referral of identified victims, as it builds upon the pre-existing obligation under Article 11(4) 
of  the  Anti-trafficking  Directive,  which  requires  Member  States  to  establish  appropriate 
mechanisms  aimed  at  the  early  identification  of,  assistance  to  and  support  for  victims,  in 
cooperation with relevant support organisations. The formalisation of the referral mechanisms 
aims to enhance early identification and prompt referral to assistance and support services. In 
order to enhance the effectiveness of this measure, the Member States are required to appoint 

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national  focal  points  in  charge  of  identifying  competent  services  and  of  coordinating  the 
referral of victims at the national and EU level.   

The amendment that establishes as a criminal offence the use of services which are the object 
of exploitation with the knowledge that the person is a victim of a trafficking offence (i.e. the 
knowing use of exploited services) is a proportionate legislative measure aimed at preventing 
and combating trafficking in human beings more effectively by discouraging demand, in line 
with the objectives of the Anti-trafficking Directive. The Member States remain free to adopt 
stricter approaches on the use of exploited services, while considering that demand reduction 
measures are not limited to the criminal law response but include non-legislative measures in 
line  with  the  Anti-trafficking  Directive,  i.e.  education,  training,  information  and  awareness-
raising campaigns, research and education programmes.  

The  requirement  of  an  annual  data  collection  is  a  minimum  measure  aimed  to  improve  the 
gathering  of  information  and  statistics  at  the  national  and  Union  level.  This  measure  would 
shorten the reporting periods from two years to one year and ensure an up-to-date monitoring 
that  is  not  hindered  by  the  time  lapse  between  the  end  of  the  reporting  period  of  the  data 
collection and the publication of the report (currently two years). The minimum categories of 
data collection included in the amendment correspond with those currently collected on a two-
year basis by the Commission. 

• 

Choice of the instrument 

This proposal is an amendment of the Anti-trafficking Directive and, thus, it is a directive.  

No  alternative  means,  legislative  or  operational,  can  be  used  to  attain  the  objectives  of  this 
proposal,  which  is  to  improve  the  existing  framework  that  enables  to  prevent  and  combat 
trafficking in human beings and to protect the victims of this crime. 

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RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

The Commission carried out an evaluation of the Anti-trafficking Directive, which was one of 
the  key  actions  envisaged  in  the  EU  Strategy  on  Combatting  Trafficking  in  Human  Beings 
2021-202518.  The  evaluation  was  based  on  the  data  collection  for  the  2013-2020  period 
carried out  by Eurostat,  a report on the transposition of the Anti-trafficking Directive at  the 
national  level  and  their  implementation  in  Member  States,  the  Open  Public  Consultation, 
exchanges  with  the  EU  Agencies,  the  Member  States  and  other  stakeholders,  reports  and 
documents published or submitted by International and Regional Organisations.  

The evaluation found that the Anti-trafficking Directive has been effective in the prevention 
of, and fight against, trafficking in human beings, and in enhancing protection for the victims 
of this crime. The Directive was also found to be efficient, in terms of the benefits it brought 
as  compared  to  the  costs  entailed  by  its  adoption,  transposition  and  implementation.  It  was 
considered  coherent  with  all  the  relevant  EU  and  international  activities.  The  evaluation 
highlighted the EU added value in improving cross-border cooperation, including with the EU 
Agencies.  The  objectives  of  the  Directive  remain  relevant.  Nevertheless,  a  number  of 

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Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European 
Economic and Social Committee and the Committee of the Regions on the EU Strategy on Combatting 
Trafficking in Human Beings 2021–2025, COM(2021) 171 final, 14.4.2021. 

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challenges and developments need to be further addressed. 

The  evaluation  noted  that  several  developments  that  occurred  since  the  adoption  of  the 
Directive  have  had  significant  implications  on  the  trafficking  in  human  beings  landscape. 
Technological advancements and the expansion of social media created new opportunities for 
traffickers  to  recruit  victims  online,  exercise  remote  control  over  them  and  reach  a  broad 
audience  of  users  through  widespread  sharing  of  exploitative  material.  The  economic 
downturn caused by the COVID-19 pandemic and the energy crisis could increase the demand 
for  cheap  labour  and  sexual  services,  which  fuel  labour  and  sexual  exploitation.  Wars, 
particularly  Russia’s  military  aggression  against  Ukraine,  increase  opportunities  for 
traffickers  to  take  advantage  of  the  vulnerable  situation  of  people,  especially  women  and 
children fleeing their country. 

Because  of  the  new  developments,  areas  for  improvement  of  the  legal  framework  were 
identified  in  the  evaluation.  These  include  addressing  forms  of  exploitation  not  explicitly 
mentioned  in  the  Anti-trafficking  Directive,  addressing  the  online  dimension  of  the  crime, 
increasing  the  criminal  justice  response  to  offences  committed  by  legal  persons,  improving 
demand reduction, early identification of victims, and the data collection. 

• 

Stakeholder consultations 

The  combined  evaluation  roadmap  and  inception  impact  assessment  for  the  initiative  was 
published by DG Migration and Home Affairs (DG HOME) on the Commission’s ‘Have your 
say’  webpage19  on  5  August  2021  until  16  September  2021.  The  Commission  received 
feedback from 36 stakeholders. 

The  Commission  has  aimed  to  ensure  a  wide  participation  of  stakeholders  throughout  the 
policy  cycle  of  this  initiative,  through  a  series  of  targeted  consultations  (bilateral  contacts, 
meetings  with  stakeholders,  written  consultations).  Consultations  were  held  with  Member 
States  and  representatives  of  their  public  authorities,  including  in  the  context  of  the  EU 
Network  of  National  Rapporteurs  and  Equivalent  Mechanisms  on  Trafficking  in  Human 
Beings;  representatives  of  the  European  Parliament;  the  EU  Agencies,  particularly  the 
European  Union  Agency  for  Law  Enforcement  Cooperation  (Europol),  the  European  Union 
Agency  for  Criminal  Justice  Cooperation  (Eurojust),  the  European  Union  Agency  for  Law 
Enforcement Training (CEPOL), the Fundamental Rights Agency (FRA), the European Union 
Asylum  Agency  (EUAA),  the  European  Border  and  Coast  Guard  Agency  (FRONTEX),  the  
European  Institute  for  Gender  Equality  (EIGE)  and  the  European  Labour  Authority  (ELA); 
representatives of relevant regional and international organisations active in the area of anti-
trafficking in human beings; representatives of civil society organisations active in the area of 
anti-trafficking  in  human  beings,  including  in  the  context  of  the  EU  Civil  Society  Platform 
against Trafficking in Human Beings. 

The  Commission  also  carried  out  a  Public  Consultation  with  the  aim  of  collecting 
information, evidence and views on questions related to the implementation and evaluation of 
the  Anti-trafficking  Directive.  The  data  was  gathered  through  a  questionnaire  covering  the 
evaluation  of the  Anti-trafficking  Directive and  the possible revision thereof.  124 responses 
were received, in addition to 75 stand-alone contributions. 

• 

Collection and use of expertise 

This proposal builds upon evidence gathered as part of the evaluation and Impact Assessment, 

19 

Fighting human trafficking – review of EU rules (europa.eu). 

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including consultations with Member States’ competent authorities and experts on trafficking 
in human beings. The consultations involved national rapporteurs and equivalent mechanisms, 
law enforcement and judicial  authorities, national  authorities responsible for social services, 
EU Agencies, International Organisations, civil society organisations, employer associations, 
and experts, including from the academia.  

The proposal takes into consideration relevant exchanges and the findings of studies carried 
out  by Regional and  International  Organisations, as well as  non-governmental organisations 
active in the area of anti-trafficking, as referred to throughout the explanatory memorandum20. 

• 

Impact assessment 

The Impact Assessment accompanying this proposal draws on the findings of the evaluation 
conducted by the Commission. It considered the following options: 

– 

– 

A package of non-legislative measures, which would  provide further support to  the 
Member  States  in  implementing  the  Anti-Trafficking  Directive  and  contribute  to 
strengthening  the  EU  legal  and  policy  framework  against  trafficking  in  human 
beings.  Building  on  the  EU  Strategy  on  Combatting  Trafficking  in  Human  Beings 
2021-2025,  it  would  include  the  setting-up  of  a  Knowledge  and  Expertise  Hub; 
actions  aimed  at  reinforcing  cooperation  with  technology  companies,  including 
social media platforms; the setting-up of a Focus Group of prosecutors specialised in 
trafficking  in  human  beings;  and  organising  an  EU-wide  awareness  raising 
campaign.  

A package of legislative changes that would modernise the Anti-trafficking Directive 
in order to better address challenges that have gained importance since its adoption. 
It would include addressing the online dimension of the crime; including new forms 
of  exploitation  to  the  definition;  strengthening  the  sanctions  regime  against  legal 
persons and the legal framework related to the criminalisation of the use of exploited 
services;  establishing  formal  national  referral  mechanisms  by  laws,  regulations  or 
administrative provisions and appointing national focal points for referral; requiring 
Member States to introduce an offence concerning the use of services exacted from 
victims of trafficking in  human beings; and requiring Member States to  collect and 
report data on trafficking in human beings indicators every year.  

– 

A package combining the non-legislative and legislative measures outlined above. 

The  Impact  Assessment  found  that  the  third  option,  a  combination  of  legislative  and  non-
legislative  measures  would  be  more  effective  in  enhancing  the  current  framework  than 
measures of only one typology.  

In order to reinforce the criminal justice response to trafficking in human beings, including in 
the  cross-border  context,  three  legislative  measures  have  been  identified:  (i)  addressing  the 
online  dimension  explicitly  in  the  Directive;  (ii)  explicitly  referring  to  forced  marriage  and 
illegal  adoption  within  the  list  of  forms  of  exploitations;  (iii)  introducing  two  mandatory 
regimes of sanctions on legal persons, one to sanction standard offences and one to sanction 
aggravated offences. Non-legislative measures were also identified: (i) fostering cooperation 
between the Commission and internet companies in the context of the EU Internet Forum; and 

20 

The  Commission  also  commissioned  a  study  to  support  the  evaluation  of  the  Directive  on  preventing 
and combating trafficking in  human beings and protecting  its victims and an impact assessment  for a 
legislative proposal on the topic. The study was carried out by external consultants between 27 October 
2021 and 21 July 2022. 

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(ii) creating a focus group of specialised prosecutors against trafficking in human beings.  

In respect of ensuring that victims of trafficking in human beings receive adequate assistance, 
support and protection, the identified legislative measure concerns requiring Member States to 
formalise  the  establishment  of  National  Referral  Mechanisms  and  to  create  national  focal 
points  for  the  referral  of  victims  to  appropriate  assistance,  support  and  protection  services. 
This is accompanied by a non-legislative measure, which is the development of guidelines on 
minimum requirements for National Referral Mechanisms.   

In order to reduce the demand for services that foster all forms of exploitation, the identified 
legislative measure is the establishment as a criminal offence the use of services which are the 
objects of exploitation with the knowledge that the person is a victim of a trafficking offence. 
In line with a comprehensive approach to demand reduction, this will be complemented by a 
non-legislative measure,  an EU-wide awareness  raising campaign aimed at  discouraging the 
demand that fosters trafficking. 

With regards to  the horizontal objective of ensuring adequate prevention  and detection, and 
improving the monitoring of trafficking in  human beings in  the  EU, the  legislative measure 
identified is requiring an annual collection of data on trafficking. This is accompanied by two 
non-legislative measures: (i) developing guidelines on data collection on trafficking in human 
beings  in  the  EU;  and  (ii)  establishing  a  Knowledge  and  Expertise  Hub  on  Combatting 
Trafficking in Human Beings.  

The  preferred  option  presented  above  aims  at  improving  the  capacity  of  Member  States  to 
combat  trafficking  in  human  beings  more  efficiently,  notably  in  relation  to  the  threats  and 
trends that have emerged or evolved since the adoption of the Anti-trafficking Directive. The 
common  and  harmonised  rules  included  in  this  amendment  are  expected  to  enhance  cross-
border cooperation in investigations, prosecutions, and in assistance and support to victims of 
trafficking offences. The non-legislative measures accompanying the legislative modifications 
aim to further support Member States in implementing the Directive and the EU Strategy on 
Combatting Trafficking in Human Beings 2021-2025. 

• 

Regulatory fitness and simplification 

In  compliance  with  the  Commission’s  Regulatory  Fitness  and  Performance  Programme 
(REFIT), all initiatives aimed at revising existing EU legislation should seek to simplify and 
deliver stated policy objectives more efficiently (i.e. by reducing unnecessary regulatory costs 
and the administrative burden on Member States). The Impact Assessment has concluded that 
the measures set out in the proposed Directive would have a limited burden, which would be 
outweighed by the positive impact of the proposed measures.   

The  proposed  targeted  amendments  to  the  Directive  aim  at  improving  the  Member  States’ 
capability to fight trafficking in human beings more efficiently, notably in relation to threats 
and trends that have emerged and evolved since the adoption of the Directive. The initiative 
will further harmonise the legal landscape addressing trafficking in human beings across the 
Member States. The new rules are expected to enhance cross-border cooperation, in terms of 
investigations and prosecutions, as well as victims’ assistance and support.  

• 

Fundamental rights 

Article  6(1)  of  the  Treaty  on  European  Union  states  that  the  Union  recognises  the  rights, 
freedoms and principles set out in the Charter of Fundamental Rights. Article 5 of the Charter 
explicitly prohibits slavery, forced labour and trafficking in human beings. 

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The proposed measures include legal provisions to adequately respond to the risks relating to 
this crime and to assist support and protect the victims. The explicit inclusion of further forms 
of exploitation, the provisions relating to the international dimension of the crime, the regime 
of sanctions on legal persons and the criminalisation of the knowing use of exploited services 
aim  to  tackle  trafficking  in  human  beings  more  effectively.  These  provisions,  and  the 
formalisation  of  national  referral  mechanisms,  is  to  broaden  the  protection  to  victims  of 
trafficking  in  human  beings.  The  protection  of  victims  has  an  impact  on  other  fundamental 
rights,  such  as  the  protection  of  human  dignity,  the  right  to  the  integrity  of  the  person,  the 
prohibition  of  torture  and  inhuman  or  degrading  treatment  or  punishment,  and  the  right  to 
liberty and security. 

The legislative measures were duly  analysed and assessed positively also in  the light  of the 
rights of the child, the prohibition of child labour, the rights of persons with disabilities, the 
right to asylum, the protection against removal, expulsion or extradition, the principle of non-
discrimination, and the equality between women and men.  

The provisions introducing new offences or sanctions, or amending the definition of the crime 
were thoroughly analysed in the light of the right to an effective remedy and to a fair trial, the 
presumption  of  innocence  and  the  right  of  defence,  the  principles  of  legality  and 
proportionality  of  criminal  offences  and  penalties,  and  the  right  not  to  be  tried  or  punished 
twice in criminal proceedings for the same criminal offence. 

4. 

BUDGETARY IMPLICATIONS 

The proposal does not have a budgetary impact for the Union budget. 

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

In accordance with Article 2 of this proposal, Member States are required to bring into force 
the laws, regulations and administrative provisions necessary to comply with it by [two years 
after the entry into force of the Directive] at the latest and to communicate to the Commission 
the text of those provisions.  

The Commission will monitor and evaluate the impact of this proposal through mechanisms 
already  operative  pursuant  to  the  current  Directive.  The  tasks  of  National  Rapporteurs  and 
Equivalent Mechanisms would remain the same under Article 19 of the Directive: measuring 
of results of anti-trafficking actions, including the gathering of statistics in close cooperation 
with  relevant  civil  society  organisations  active  in  this  field,  and  reporting  to  the  EU  Anti-
Trafficking Coordinator in the context of the reporting carried out by the Commission every 
two years on the progress made in the fight against trafficking in human beings. This would 
include monitoring and evaluating the impacts of this initiative.   

The  Commission  will  continue  to  hold  the two-yearly  meetings  of  the  Network  of  National 
Rapporteurs and of the EU Civil Society Platform against trafficking in human beings, as well 
as  meetings  with  EU  Agencies  working  against  trafficking.  These  exchanges  will  also 
contribute to the monitoring and evaluation.   

This proposal introduces new “offences concerning the use of services which are the object of 
exploitation with knowledge that the person is a victim of an offence concerning trafficking in 
human beings”. Pursuant to the proposed Article 23(3), the Commission is required to submit 

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a  report  to  the  European  Parliament  and  the  Council,  assessing  the  extent  to  which  the 
Member  States  have  taken  the  necessary  measures  to  comply  with  the  new  rules  and  the 
impact of such measures. 

• 

Explanatory documents 

To ensure the proper implementation of this Directive, the explanatory document, e.g. in the 
form of correlation tables, would be necessary, as required by the judgement of the Court of 
Justice  in  case  C-543/17.  The  legislation  transposing  the  Anti-trafficking  Directive  is  rarely 
limited to one single legal text, as the provisions are often incorporated in different national 
instruments.  For  this  reason,  it  is  necessary  that  the  Member  States  provide  an  explanatory 
document communicating to the Commission the text of the provisions adopted in transposing 
this Directive, how such provisions interact with the provisions adopted to transpose Directive 
2011/36/EU  and  with  provisions  covered  by  other  relevant  Union  policies,  as  referred  to  in 
Section 1 of this legislative memorandum. 

• 

Detailed explanation of the specific provisions of the proposal 

The amendments to the Anti-trafficking Directive target the following items: 

(a) 

Include forced marriage as a particular form of violence against women and girls and 
illegal adoption within the list of minimum forms of exploitation 

Currently, Article 2(3) sets out a non-exhaustive list of forms of exploitation, which includes 
the  exploitation  of  the  prostitution  of  others  or  other  forms  of  sexual  exploitation,  forced 
labour or services, including begging, slavery or practices similar to slavery, servitude, or the 
exploitation of criminal activities, or the removal of organs. 

The collected data shows that trafficking offences committed for purposes other than sexual 
and labour exploitation has steadily evolved since the adoption of the Directive, representing 
11% of all victims in the EU in 2020. Moreover, even though the list in Article 2(3) is non-
exhaustive  as  it  includes  the  “minimum”  forms  of  exploitation,  and  despite  the  fact  that 
Recital 11 clarifies that the definition covers trafficking in human beings for other behaviour 
such  as  illegal  adoption  or  forced  marriage,  Member  States  have  tended  to  restrict  the 
transposition  of  this  provision  by  only  mentioning  the  forms  of  exploitation  explicitly 
included in Article 2(3).  

Taking into account the data collected on purposes of trafficking other than sexual and labour 
exploitation,  the  Commission  proposes  to  include  forced  marriage  and  illegal  adoption 
explicitly  within  the  non-exhaustive  list  of  forms  of  exploitation  in  Article  2(3).  This  will 
better equip the legal systems of Member States, as well as its law enforcement and judicial 
authorities  to  effectively  combat  trafficking  in  human  beings  for  the  purpose  of  these  two 
forms of exploitation. 

(b) 

Explicitly refer to the online dimension within the Directive 

The elements of the trafficking offences defined in the Directive comprise the intentional acts 
and the means in Article 2(1), as well as the forms of exploitation in Article 2(3). The current 
provisions do not make any reference as to whether such elements are to be carried out online 
or offline in order to be criminalised and punished.  

All stakeholders, including law enforcement authorities, international organisations and civil 
society organisations are deeply concerned on the increasing number of offences committed 
or  facilitated  by  means  of  information  and  communication  technologies.  They  provide  a 

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platform  to  carry  out  the  intentional  acts  (recruitment,  organising  or  conducting  the 
transportation, transfer, harbouring or reception of persons, including the exchange of transfer 
or  control  over  victims),  at  least  some  of  the  means  (coercion,  fraud,  deception,  abuse  of 
power or of a position of vulnerability or of the giving or receiving of payments or benefits to 
achieve the consent of a person having control over another person) or some of the forms of 
exploitation (in particular sexual exploitation). 

In this regard, the Commission proposes to add a new Article 2a, which explicitly mentions 
that  the  intentional  acts  and  means  referred  to  in  Article  2(1),  as  well  as  exploitation  as 
defined  in  Article  2(3)  shall  include  acts  committed  by  means  of  information  and 
communication technologies. This will ensure that the online dimension of the crime is taken 
into account for every element of trafficking offences. 

(c) 

Introduce  a  mandatory  regime  of  sanctions  on  legal  persons  differentiated  for 
standard offence and for aggravated offences 

Currently, Article 6 provides that Member States shall take the necessary measures to ensure 
that a legal person held liable for trafficking offences is subject to effective, proportionate and 
dissuasive  sanctions,  which  shall  include  criminal  or  non-criminal  fines.  Article  6  adds  that 
such sanctions may include five measures that are optional  for Member States to  transpose: 
(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. 

The assessment of the transposition of this Article shows that while all Member States have in 
place criminal or non-criminal fines (in compliance with the mandatory part of the provision), 
only a minority of Member States have transposed all the optional  measures, most Member 
States have transposed only some, and several Member States have not transposed any. The 
Commission considers that it is crucial to enhance action against legal persons in the interest 
of which trafficking offences are committed. The adoption of a mandatory regime strengthens 
the  criminal  justice  aspect  of  the  response.  At  the  same  time,  it  is  necessary  to  adopt  a 
proportionate approach, in line with current Article 6. 

The Commission therefore proposes to amend Article 6 by establishing that, instead of the list 
of optional sanctions, the effective, proportionate and dissuasive sanction shall, if appropriate, 
include the exclusion from entitlement to public benefits, aid or subsidies; and the temporary 
or  permanent  closure  of  establishments  which  have  been  used  for  committing  the  offence. 
This  is  the  regime  that  applies  when  legal  persons  are  held  liable  for  a  standard  trafficking 
offence.  The  addition  of  subsidies  complements  and  expands  the  current  optional  list  of 
sanctions,  with  a  view  to  preventing  that  legal  persons  convicted  for  trafficking  offences 
receive such forms of public assistance. 

Paragraph 2 is added for cases in which legal persons are held liable for an offence aggravated 
by  any  of  the  circumstances  set  forth  in  Article  4(2).  In  such  cases,  the  sanctions  on  legal 
persons, if appropriate, include: temporary or permanent disqualification from the practice of 
commercial activities, placing under judicial supervision, judicial winding-up. 

With  this  approach,  the  Commission  seeks  to  make  the  regimes  of  sanctions  against  legal 
persons  mandatory,  with  a  view  to  strengthening  the  criminal  justice  response  against  legal 
persons involved in trafficking offences. It utilises the same measures, which are optional in 
the  current  Article  7.  This  approach  ensures  proportionality,  as  it  envisages  two  strict 

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sanctions  for  standard  offences  and  three  harsher  sanctions  for  aggravated  offences.  The 
addition of “if appropriate” before the two sanctions regime ensures respect of the principle of 
proportionality and the discretion of the judicial authorities of the Member States.  

(d) 

Referring to the legal framework on freezing and confiscation 

The current text of Article 7 requires Member States to ensure that their competent authorities 
are entitled to seize and confiscate instrumentalities and proceeds from the offences referred 
to  in  Articles  2  and  3.  The  adoption  of  the  Anti-trafficking  Directive,  and  hence  of  this 
Article, pre-dates the EU legal framework on freezing and confiscation.  

Accordingly, the Commission proposes to make explicit reference to the EU rules on tracing, 
freezing, management and confiscation, particularly to Directive EU/XX/YY of the European 
Parliament and of the Council [Proposed Directive on asset recovery and confiscation]21. In 
accordance  with  the  proposed  article,  Member  States  will  be  required  to  ensure  that  their 
competent authorities are entitled to trace, freeze, manage and confiscate, in accordance with 
Directive EU/XX/YY of the European Parliament and of the Council [Proposed Directive on 
asset  recovery  and  confiscation]22,  proceeds  derived  from,  and  instrumentalities  used  or 
intended  to  be  used  for  the  commission,  or  contribution  to  the  commission,  of  the  offences 
referred to  in  the Directive as  amended. This  will allow the Directive provision on freezing 
and  confiscation  to  be  updated  as  to  reflect  the  recent  changes  in  EU  legislation  on  these 
matters. 

(e) 

Formal establishment of National Referral Mechanisms and of National Focal Points 
for the referral of victims 

Currently, Article 11(4)  requires Member States  to  take the necessary measures to  establish 
appropriate  mechanisms  aimed  at  the  early  identification  of,  assistance  to,  and  support  for 
victims,  in  cooperation  with  relevant  support  organisations.  These  are  also  called  referral 
mechanisms. 

In 2020, the Commission reported that almost all Member States had established such formal 
or  informal  mechanisms23.  These  take  very  different  forms  at  the  national  level.  The 
differences  in  structure  and  practices  may  hamper  or  slow  down  the  referral  of  victims  to 
adequate protection, assistance and support services, especially in cross-border context, when 
victims are identified in a country different than where they were exploited, or when they are 
exploited in more than one country. The Commission proposes that Member States formalise 
the  establishment  of  their  National  Referral  Mechanisms  through  laws,  regulations  or 
administrative  provisions  and  to  appoint  national  focal  points  for  the  referral  of  victims.  In 
order to do so, this requirement is included through a modification of Article 11(4). 

This proposal is expected to further streamline the practice of national referral mechanisms, 
with  a  view  to  improving  the  referral  of  victims  in  cross-border  cases.  This  will  be 
complemented  by  the  development  of  guidelines  on  minimum  requirements  for  National 
Referral Mechanisms, which will contribute to further harmonise their structure and practice. 
The  modification  of  Article  11(4)  is  also  the  first  step  towards  the  establishment  of  a 
European  Referral  Mechanism,  in  line  with  the  EU  Strategy  on  Combatting  Trafficking  in 
Human Beings 2021-2025. 

21 
22 
23 

COM (2022) 245. 
COM (2022) 245. 
Study  on  reviewing  the  functioning  of  Member  States’  National  and  Transnational  Referral 
Mechanisms, 16.10.2020, available at link. 

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(f) 

Establishment of new offences concerning the use of services which are the object of 
exploitation with knowledge that the person is a victim of trafficking 

Currently, Article 18(4) requires Member States to consider taking measures to establish as a 
criminal offence the use of services which are the objects of exploitation, with the knowledge 
that the person is victim of a trafficking offence. This is an optional provision that Member 
States were not obliged to transpose.  

Although this approach granted Member States flexibility, the transposition landscape of this 
provision  ranges  from  full  non-transposition  to  transposition  limited  to  some  forms  of 
exploitation, and from complete transposition to the adoption of stricter measures. Such non-
harmonisation may have an impact on cross-border cooperation between Member States that 
adopt different approaches. In addition, the Impact Assessment considered that action aimed 
at reducing demand may include a step forward in the criminal justice response. The focus on 
demand is expected to reduce the number of cases and of victims by addressing the areas that 
fuel  all  forms  of  exploitation.  The  evaluation  of  the  Directive  has  shown  that  19  Member 
States have adopted either legislation criminalising the knowing use of services exacted from 
victims of trafficking for all forms of exploitation24 or legislation that criminalises directly or 
indirectly the knowing use of services exacted from victims of sexual exploitation25.   

The Commission proposes to make it mandatory for Member States to establish as a criminal 
offence the use of services which are the objects of exploitation, with the knowledge that the 
person is victim of a trafficking offence. This is achieved by deleting Article 18(4) and adding 
a new Article 18(a) with the same text of the current Article 18(4), but without the option that 
allows Member States to “consider” criminalisation. 

It is expected that this legislative change will result in further harmonisation in the criminal 
justice response to demand reduction, including by requiring Member States to apply the new 
rules to all forms of exploitation, and will positively impact cooperation in cross-border cases. 

Paragraph  2  requires  Member  States  to  take  the  necessary  measures  to  ensure  that  offences 
relating  to  the  knowing  use  of  exploited  services  are  punishable  by  effective,  proportionate 
and dissuasive penalties and sanctions. 

(g) 

Introducing a reporting requirement for the new Article 18a 

The proposed Article 23(3) introduces a requirement for the Commission to submit a report to 
the  European  Parliament  and  the Council,  assessing  the  extent  to  which  the  Member  States 
have taken the necessary measures in order to comply with the new rules on the knowing use 
of exploited services, as well as on the impact of such measures. The report shall be submitted 
[by  five  years  after  transposition  deadline].  This  will  ensure  adequate  assessment  and 
reporting  on  the  measures  proposed  by  the  Commission  after  an  adequate  time  span  that 
allows the possibility to analyse the transposition and impact of the new rules. 

(h) 

Requirement  for  yearly  data  collection  and  reporting  on  indicators  in  the  area  of 
trafficking in human beings 

Currently,  Article  19  provides  that  National  Rapporteurs  and  Equivalent  Mechanisms  carry 
out  tasks  including  the  gathering  of  statistics  and  reporting  in  the  context  of  the  biannual 
reporting carried out by the European Commission on the progress made in the fight against 

24  BG; HR; HU; LT MT PT RO SI. In addition, EL legislation covers sexual and labour exploitation. 
25  DE, EE, FI, FR, IE, LV, LU, NL, SE, EL, CY. 

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trafficking in human beings. An EU-level data collection is carried out every two years as per 
Articles 19 and 20.  

The  evaluation  of  the  Directive,  however,  showed  that  there  are  still  important  gaps  in  the 
data collection, particularly on criminal justice indicators and on offences concerning the use 
of exploited services, and that the publication of relevant statistics often arrives substantially 
after the end of the reporting period (usually around two years). 

Therefore, the Commission proposes to introduce a requirement for Member States to collect 
and report data on trafficking in human beings to the Commission every year, through a new 
Article  19a,  which  specifies  the  indicators  for  such  data  collection.  Its  first  paragraph  sets 
forth  the  obligation  for  Member  States  to  collect  data  to  monitor  the  effectiveness  of  their 
systems to combat trafficking offences. Paragraph (2) specifies the minimum set of indicators 
that  should  be  part  of  it  (number  of  registered  victims;  number  of  persons  suspected, 
prosecuted  and  convicted  for  offences  referred  to  in  Article  2  and  in  the  proposed  Article 
18(a)) and the level of disaggregation.  

Paragraph (3) establishes that Member States shall transmit annually to the Commission by 1 
July each year, the statistical data referred to in paragraph 2 for the previous year in a standard 
format provided by the Commission. In order to accelerate the availability of statistics Article 
19a should become applicable on the date of the entry into force of the amending Directive. 

This measure is expected to improve the completeness, coherence and comparability of data 
across different reference periods and Member States. It will also improve the EU-level data 
collection. This will contribute to enhancing the understanding of the full scope of trafficking 
in human beings within the EU. The reduction of the recurrence of the data collection from 
two to one year will also ensure that publicly available data is more up to date and closer to 
the reference period at the time of publication. 

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2022/0426 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Directive 2011/36/EU on preventing and combating trafficking in human 
beings and protecting its victims 

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 Committee26,  
Having regard to the opinion of the Committee of the Regions27,]  

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

26 
27 
28 

29 

Trafficking in human beings is a serious crime, often committed within the framework 
of organised crime, a gross violation of fundamental rights and explicitly prohibited by 
the Charter of Fundamental Rights of the European Union. Preventing and combatting 
trafficking in human beings remains a priority for the Union and the Member States. 
Directive  2011/36/EU  of  the  European  Parliament  and  the  Council28  constitutes  the 
main Union legal instrument on preventing and combating trafficking in human beings 
and  protecting  the  victims  of  this  crime.  That  Directive  sets  out  a  comprehensive 
framework  to  address  trafficking  in  human  beings  by  establishing  minimum  rules 
concerning the definition of criminal offences and sanctions. It also includes common 
provisions to strengthen prevention and protection of victims, taking into account the 
gender perspective. 
The EU Strategy on Combatting Trafficking in Human Beings 2021-202529 sets out a 
policy  response  adopting  a  multi-disciplinary  and  comprehensive  approach  from 
prevention through protection of victims, to prosecution and conviction of traffickers. 
It included a series of actions to be implemented with the strong involvement of civil 
society organisations. In order to address evolving trends in the area of trafficking in 
human beings,  as  well as shortcomings identified by the Commission,  and to  further 
step  up  efforts  against  this  crime,  it  is  necessary,  nevertheless,  to  amend  Directive 

OJ C , , p. . 
OJ C , , p. . 
Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and 
combating  trafficking  in  human  beings  and  protecting  its  victims,  and  replacing  Council  Framework 
Decision 2002/629/JHA, OJ L 101, 15.4.2011, p. 1–11. 
Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European 
Economic and Social Committee and the Committee of the Regions on the EU Strategy on Combatting 
Trafficking in Human Beings 2021–2025, COM(2021) 171 final, 14.4.2021. 

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17 

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2011/36/EU.  Identified  threats  and  trends,  which  require  the  adoption  of  new  rules 
concern  in  particular  regarding  the  modi  operandi  of  traffickers,  including  the 
commission  or  facilitation  of  offences  concerning  trafficking  in  human  beings  by 
means of information and communication technologies. Identified shortcomings of the 
criminal law response requiring an adaptation of the legal framework relate to offences 
concerning trafficking in human beings committed in the interest of legal persons, to 
the data collection system, and to the national systems aimed at the early identification 
of, assistance to and support for victims of trafficking. 

In  order  to  tackle  the  steady  increase  of  the  number  and  relevance  of  offences 
concerning  trafficking  in  human  beings  committed  for  purposes  other  than  sexual  or 
labour exploitation, it is necessary to include forced marriage and illegal adoption in 
the  forms  of  exploitations  explicitly  listed  in  the  Directive  and  to  ensure  that  the 
Member States address within their national legal systems the widest range of forms of 
exploitation,  insofar  as  these  fulfil  the  constitutive  elements  of  trafficking  in  human 
beings.  

An  increasing  number  of  offences  concerning  trafficking  in  human  beings  is 
committed  or  facilitated  by  means  of  information  or  communication  technologies. 
Traffickers use the internet and social media inter alia to  recruit, advertise or exploit 
victims,  exercise  control  and  organise  transport.  Internet  and  social  media  are  also 
used to distribute exploitative materials.  Information technology also hampers timely 
detection of the crime and identification of the victims and perpetrators. It is therefore 
important  to  explicitly  include  the  online  dimension  of  the  crime  into  the  legal 
framework.  

In order to enhance the criminal justice response to offences concerning trafficking in 
human beings committed for the benefit of legal persons and to deter the commission 
of  those  offences,  it  is  necessary  to  strengthen  the  sanctions  regime  against  legal 
persons  with  a  proportionate  mandatory  approach.  Therefore,  the  optional  sanctions 
regime set out in Directive 2011/36/EU is replaced with a mandatory sanctions regime 
applicable when a legal person is held liable pursuant to Article 5(1) and (2).  

In  combatting  trafficking  in  human  beings,  full  use  is  to  be  made  of  existing 
instruments  on  the  freezing  and  confiscation  of  proceeds  and  instrumentalities  of 
crime,  such  as  Directive  EU/XX/YY  of  the  European  Parliament  and  of  the  Council 
[Proposed  Directive  on  asset  recovery  and  confiscation]30.  The  use  of  frozen  and 
confiscated  instrumentalities  and  proceeds  from  the  offences  referred  to  in  Directive 
2011/36/EU to support victims’ assistance and protection, including compensation of 
victims and Union trans-border law enforcement counter-trafficking activities, should 
be encouraged.  

In order to enhance the national capability to identify victims at an early stage, and to 
refer them to the appropriate protection, assistance and support services, it is necessary 
to  establish  by  laws,  regulations  or  administrative  provisions    National  Referral 
Mechanisms in the Member States. Establishing formal  national referral mechanisms 
and appointing national focal points for the referral of victims are essential measures 
to enhance cross-border cooperation. 

(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

In  order  to  further  reinforce  and  harmonise  the  criminal  justice  efforts  on  demand 
reduction across Member States, it is important criminalise the use of services which 
are  the  objects  of  exploitation  with  the  knowledge  that  the  person  is  a  victim  of  an 

30 

COM (2022) 245. 

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offence concerning trafficking in human beings. Establishing this as a criminal offence 
is  part  of  a  comprehensive  approach  to  demand  reduction,  which  aims  to  tackle  the 
high levels of demand that fosters all forms of exploitation.  

(10)  The  collection  of  accurate  and  coherent  data  and  the  timely  publication  of  collected 
data and statistics are fundamental to ensure full knowledge on the scope of trafficking 
in  human  beings  within  the  Union.  Introducing  a  requirement  for  Member  States  to 
collect  and  report  to  the  Commission  statistical  data  on  trafficking  in  human  beings 
every year in a harmonised way is expected to constitute a relevant step to enhance the 
general understanding of the phenomenon and to ensure the adoption of data-informed 
policies and strategies. Due to  the importance of having up-to-date statistical  data as 
soon as possible it is appropriate to determine the date of the application of the article 
on  data  collection  at  the  earliest  point  in  time,  which  is  the  entry  into  force  of  this 
Directive.  

(11)  Since the objectives of this Directive, namely preventing and combating trafficking in 
human beings and protecting the victims of this crime, cannot be sufficiently achieved 
by the Member States and can therefore, by reason of the scale and effect of the action, 
be better achieved at Union level, the Union may adopt measures in accordance with 
the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In 
accordance  with  the  principle  of  proportionality,  as  set  out  in  that  Article,  this 
Directive does not go beyond what is necessary to achieve that objective. 

(12)  The Directive respects the fundamental rights and observes the principles recognised 
by the Charter of Fundamental Rights of the European Union, in particular the respect 
and  protection  of  human  dignity,  the  prohibition  of  slavery,  forced  labour  and 
trafficking in human beings, the right to the integrity of the person, the prohibition of 
torture  and  inhuman  or  degrading  treatment  or  punishment,  the  right  to  liberty  and 
security,  the  protection  of  personal  data,  the  freedom  of  expression  and  information, 
the freedom to choose an occupation and right to engage in work, the equality between 
women and men, the rights of the child, the rights of persons with disabilities, and the 
prohibition  of  child  labour,  the  right  to  an  effective  remedy  and  to  a  fair  trial,  the 
principles  of  legality  and  proportionality  of  criminal  offences  and  penalties.  In 
particular,  this  Directive  seeks  to  ensure  full  respect  for  these  rights  and  principles, 
which are to be implemented accordingly. 

(13) 

In  accordance  with  Articles  1  and  2  and  Article  4a(1)  of  Protocol  No  21  on  the 
position of the United Kingdom and Ireland in respect of the area of freedom, security 
and  justice,  annexed  to  the  Treaty  on  European  Union  and  to  the  Treaty  on  the 
Functioning  of  the  European  Union,  and  without  prejudice  to  Article  4  of  that 
Protocol, Ireland is not taking part in the adoption of this Directive and is not bound 
by it or subject to its application. [Or] In accordance with Article 3 and Article 4a(1) 
of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the 
area of freedom, security and justice, annexed to the Treaty on European Union and to 
the Treaty on the Functioning of the European Union, Ireland has notified [, by letter 
of …,] its wish to take part in the adoption and application of this Directive. 

(14) 

In  accordance  with  Articles  1  and  2  of  the  Protocol  on  the  position  of  Denmark 
annexed to the Treaty on European Union and to the Treaty on the Functioning of the 
European  Union, Denmark is  not  taking part in  the adoption of this Directive and is 
not bound by it or subject to its application. 

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(15) 

In accordance with  the Joint Political  Declaration of 28 September 2011  of Member 
States  and  the  Commission  on  explanatory  documents31,  Member  States  have 
undertaken  to  accompany,  in  justified  cases,  the  notification  of  their  transposition 
measures  with  one  or  more  documents  explaining  the  relationship  between  the 
components  of  a  directive  and  the  corresponding  parts  of  national  transposition 
instruments. With regard to this Directive, the legislator considers the transmission of 
such documents to be justified. 

(16)  Directive 2011/36/EU should therefore be amended accordingly, 

HAVE ADOPTED THIS DIRECTIVE: 

Article 1 

Amendments to Directive 2011/36/EU 

Directive 2011/36/EU is amended as follows: 

(1) 

in Article 2, paragraph 3, “or forced marriage, or illegal adoption” is added at the end 
of the paragraph.  

(2) 

the following Article 2a is inserted: 

“Article 2a 

Offences concerning trafficking in human beings  

committed or facilitated by means of information or communication technologies 

Member States shall take the necessary measures to ensure that the intentional acts and means 
referred  to  in  Article  2(1),  and  exploitation  as  set  out  in  Article  2(3)  shall  include  acts 
committed by means of information and communication technologies.” 

(3) 

Article 6 and 7 are replaced by the following: 

“Article 6 
Sanctions on legal persons 

1. 
Member  States  shall  take  the  necessary  measures  to  ensure  that  a  legal  person  held 
liable  pursuant  to  Article 5(1)  or  (2)  is  subject  to  criminal  or  non-criminal  fines  and,  if 
appropriate, to the following sanctions: 

(a) 

(b) 

2. 

exclusion from entitlement to public benefits, aid or subsidies; 

temporary  or  permanent  closure  of  establishments  which  have  been  used  for 
committing the offence. 

Member States shall take the necessary measures to ensure that a legal person held 
liable  pursuant  to  Article  5(1)  or  (2)  for  an  offence  aggravated  by  any  of  the 
circumstances  set  forth  in  Article  4(2)  is  subject,  if  appropriate,  to  the  following 
sanctions: 

(a) 

temporary or permanent disqualification from the practice of commercial activities; 

31 

OJ C 369, 17.12.2011, p. 14. 

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(b) 

(c) 

3.  

placing under judicial supervision; 

judicial winding-up. 

Member  States  shall  ensure  that  sanctions  referred  to  in  paragraphs  1  and  2  are 
effective, proportionate and dissuasive.” 

Article 7 
Freezing and confiscation 

Member States shall take the necessary measures to ensure that their competent authorities are 
entitled to trace, freeze, manage and confiscate, in accordance with Directive EU/XX/YY of 
the  European  Parliament  and  of  the  Council  [Proposed  Directive  on  asset  recovery  and 
confiscation]32, the proceeds derived from, and instrumentalities used or intended to be used 
for  the  commission,  or  contribution  to  the  commission,  of  the  offences  referred  to  in  this 
Directive.” 

(4) 

in Article 11, paragraph 4 is replaced by the following:   

“4.  Member  States  shall  take  the  necessary  measures  to  establish  by  laws,  regulations  or 
administrative  provisions,  national  referral  mechanisms  aimed  at  the  early  identification  of, 
assistance to, and support for victims, in cooperation with relevant support organisations, and 
to appoint a national focal point for the referral of victims.” 

(5) 

(6) 

Article 18, paragraph 4 is deleted. 

the following Article 18a is inserted: 

“Article 18a 

Offences concerning the use of services which are the object of exploitation 

with knowledge that the person is a victim  

of an offence concerning trafficking in human beings 

1.  In  order  to  make  the  preventing  and  combating  of  trafficking  in  human  beings 
more  effective  by  discouraging  demand,  Member  States  shall  take  the  necessary 
measures to establish as a criminal offence the use of services which are the objects 
of  exploitation  as  referred  to  in  Article  2,  with  the  knowledge  that  the  person  is  a 
victim of an offence referred to in Article 2. 

2.  Member  States  shall  take  the  necessary  measures  to  ensure  that  an  offence  as 
established in accordance with paragraph 1 is punishable by effective, proportionate 
and dissuasive penalties and sanctions.” 

(7) 

the following Article 19a is inserted: 

32 

COM (2022) 245. 

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“Article 19a 

Data collection and statistics 

1. Member States shall collect statistical data to monitor the effectiveness of their systems to 
combat offences referred to in this Directive. 

2. The statistical data referred to in paragraph 1 shall include, at least, the following: 

(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

the  number  of  registered  victims  of  offences  referred  to  in  Article  2, 
disaggregated  by  registering  organisation,  sex,  age  groups  (child/adult), 
citizenship, and form of exploitation; 

the  number  of  suspects  of  offences  referred  to  in  Article  2,  disaggregated  by 
sex, age groups (child/adult), citizenship, and form of exploitation; 

the  number  of  persons  prosecuted  for  offences  referred  to  in  Article  2, 
disaggregated  by  sex,  age  groups  (child/adult),  citizenship,  form  of 
exploitation, nature of the final decision to prosecute; 

the number of prosecution decisions (charge for offences referred to in Article 
2, charge for other criminal offences, decision not to charge, other); 

the  number  of  persons  convicted  for  offences  referred  to  in  Article  2, 
disaggregated by sex, age groups (child/adult), citizenship; 

the  number  of  court  judgments  (acquittal,  convictions,  other)  for  offences 
referred  to  in  Article  2,  for  first  instance,  second  instance  and  final  court  (or 
high court) decisions; 

(g) 

the number of suspects, persons prosecuted and convicted for offences referred 
to in Article 18a, disaggregated by sex and age groups (child/adult). 

3.  Member  States  shall  transmit  annually  to  the  Commission,  by  1  July  each  year,  the 
statistical data referred to in paragraph 2 for the previous year. 

(8) 

In Article 23, the following paragraph 3 is inserted: 

“3. The Commission shall, [by five years after transposition deadline], submit a report to the 
European Parliament and the Council, assessing the extent to which the Member States have 
taken  the  necessary  measures  in  order  to  comply  with  Article  18a  and  the  impact  of  such 
measures.” 

Article 2 

1. 

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative 
provisions  necessary  to  comply  with  this  Directive  by  one  year  after  the  entry  into 
force at the latest. They shall forthwith communicate to the Commission the text of 
those provisions. 

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. 

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3. 

Point (7) of Article 1, which inserts Article 19a into Directive 2011/36/EU shall start 
to apply on the day referred to in Article 3. 

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

Article 3 

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

Done at Brussels, 

Article 4 

For the European Parliament 
The President 

For the Council 
The President 

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