COMMISSION STAFF WORKING DOCUMENT EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT REPORT Accompanying the document 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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  EN 

   EUROPEAN COMMISSION  Brussels, 19.12.2022  SWD(2022) 426 final  COMMISSION STAFF WORKING DOCUMENT  EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT REPORT  Accompanying the document 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 {COM(2022) 732 final} - {SEC(2022) 445 final} - {SWD(2022) 425 final} - {SWD(2022) 427 final} - {SWD(2022) 428 final}  
 
 
Executive Summary Sheet 

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

A. Need for action 

Why? What is the problem being addressed?  
Trafficking in human beings (THB) constitutes a core activity of serious and organised crime in the EU and is 
set  to  remain  a  threat  for  the  foreseeable  future.  While  the  Anti-trafficking  Directive  (Directive  2011/36/EU) 
contributed to the creation of an EU common ground for the prevention and fight against trafficking in human 
beings and the protection of the victims, a number of issues persist, notably: 

 

  Trafficking  in  human  beings  continues  to  thrive  within  the  EU  despite  the  efforts  in  preventing 
and detecting the crime, as well as identifying its victims at an early stage. Moreover, data collection 
and trend monitoring does not reflect the full scale of trafficking in human beings in the EU. 
Investigations,  prosecutions  and  convictions  numbers  are  low,  leading  to  the  impunity  of 
traffickers.  The  Directive  does  not  address  some  major  concerns,  which  have  emerged  and  risen 
since  its  adoption,  including  new  forms  of  exploitation  and  the  use  of  technology  to  facilitate  the 
crime. Interpretation of the trafficking offences and exploitation may differ across the Member States, 
which  results  in  challenges  in  cross-border  cooperation  and  proving  the  offence.  Moreover,  legal 
persons  are  not  sufficiently  held  accountable  for  committing  human  trafficking,  which  contributes  to 
the culture of impunity.  

  Victims  do  not  always  receive  an  adequate  level  of  assistance,  support  and  protection, 
adapted  to  their  specific  needs.  The  principles  of  non-prosecution  and  non-punishment  of  the 
victims  for  their  involvement  in  criminal  activities,  victims’  rights  to  compensation  and  victims’ 
protection  measures  are  not  consistently  implemented  in  Member  States.  Existing  national  and 
transnational referral mechanisms are not fully effective, which may hinder victims’ early identification 
and referral to assistance, support and protection.  

  The demand that fosters trafficking in human beings remains high in the EU, which may be due 
to the fact that the criminalisation of the use of services exacted from victims is not consistent across 
Member States and that demand-reduction approaches are not widely implemented.  

What is this initiative expected to achieve?  
This  initiative  aims  at  strengthening  the  EU  legal  framework  against  trafficking  in  human  beings.  In 
order to achieve this general objective, the initiative sets out four specific objectives:  
  Ensuring  adequate  prevention,  detection  and  improving  the  monitoring  of  trafficking  in  human 
beings at the EU level by strengthening the capacity of all stakeholders likely to come into contact with 
(potential)  victims  to  recognise  the  signs  of  the  crime,  as  well  as  increasing  the  knowledge  about  the 
phenomenon and its trends.   

  Reinforcing  the  criminal  justice  response  to  the  crime,  including  in  the  cross-border  context,  in 
order to improve the capacity of law enforcement and judicial authorities to fight the crime and adapt to 
the new modi operandi and business model of traffickers, and addressing emerging threats. 

  Ensuring  that  victims  of  THB  receive  adequate  assistance,  support  and  protection  across  the 
Member States, notably through improving early identification and referral mechanisms, including in the 
cross-border context.  

  Reducing  the  demand  for  the  exploited  services  of  victims  of  THB  that  fosters  trafficking  for  all 
forms  of  exploitation  from  strengthening  the  criminal  response  to  the  use  of  exploited  services  to 
enhancing awareness-raising activities, education and training.  

What is the value added of action at the EU level?  
Trafficking in human beings is a cross-border crime, which affects all Member States. It has both an intra-EU 
cross-border  dimension  and  an  internal  dimension  involving  the  crossing  of  EU  external  borders.  EU-wide 
cooperation is crucial to tackle the cross-border dimension when it comes to preventing and fighting against 
the  crime,  as  well  as  making  sure  that  victims  are  identified  and  receive  adequate  assistance,  support  and 
protection. The increased relevance of the online dimension of the crime further justifies new action at the EU 
level, as it gives traffickers further opportunities to recruit, control, transport and exploit the victims, as well as 
move  profits  and  reach  out  to  users  everywhere  within  the  EU  and  outside  without  crossing  any  border. 
National authorities and stakeholders widely recognise that the fight against trafficking  requires action at the 
EU level.   

B. Solutions 

What  legislative  and  non-legislative  policy  options  have  been  considered?  Is  there  a  preferred 

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choice or not? Why?  
Policy option 1 focuses on non-legislative measures. 
Policy  option  2  only  contains  legislative  measures,  which  would  entail  amendments  to  the  Directive.  For 
some of the legislative measures under policy option 2, several sub-options were assessed.  
Policy  option  3  is  a  mix  of  the  non-legislative  measures  presented  in  policy  option  1  and  some  of  the 
legislative measures proposed in policy option 2.  
Policy option 3 is the preferred option. It responds to the horizontal and specific objectives identified:  
  Horizontal objective 1: Ensuring adequate prevention, detection and improving the monitoring of 

trafficking in human beings at the EU level: 
o  Establishing  a  Knowledge  and  Expertise  Hub  on  Combatting  Trafficking  in  Human  Beings  that, 
among  others,  supports  the  development  of  guidelines  on  data  collection  on  trafficking  in  human 
beings  in  the  EU  and  the  promotion  of  awareness  raising  against  trafficking  (non-legislative 
measures).  
Introducing an obligation in the Directive for Member States to collect and report data on trafficking in 
human  beings  to  the  Commission  every  year,  including  by  specifying  the  indicators  for  such  data 
collection (legislative measure). 

o 

  Specific objective 2: Reinforcing the criminal justice response to the crime, including in the cross-

border context: 
o  Ensuring  that  the  online  dimension  is  taken  into  account  for  every  element  of  the  offence  in  the 

Directive (legislative measure).  

o  Enhancing  cooperation  between  the  Commission  and  internet  companies  within  the  EU  Internet 

o 

Forum (non-legislative measure). 
Including  forced  marriage  and  illegal  adoption  in  the  list  of  the  forms  of  exploitation  (legislative 
measure). 

o  Ensuring that legal persons can be subjected to some of the sanctions, which are currently optional 
for Member States to transpose, for the standard trafficking offences upon conviction by the court and 
to  the  other  sanctions  when  the  offence  is  committed  with  an  aggravating  circumstance  (legislative 
measure).  

o  Setting  up  the  Focus  Group  of  specialised  prosecutors  against  trafficking  in  human  beings  (non-

legislative measure).  

  Specific  objective  3:  Ensuring  that  victims  of  THB  receive  adequate  assistance,  support  and 

protection across the Member States: 
o  Requiring  Member  States  to  set  up  formal  National  Referral  Mechanisms  and  create  national  focal 

points for victims’ referrals (legislative measure). 

o  Developing of guidelines on minimum requirements and standards for National Referral Mechanisms 
and  setting-up  of  a  European  Referral  Mechanism  within  the  framework  of  the  Knowledge  and 
Expertise Hub (non-legislative measure).  

  Specific  objective  4:  Reducing  the  demand  for  the  exploited  services  of  victims  that  fosters 

trafficking for all forms of exploitation: 
o  Requiring  Member  States  to  criminalise  the  knowing  use  of  services  exacted  from  victims  of 

trafficking in human beings for all forms of exploitation (legislative measure). 

o  Organisation  of  an  EU-wide  awareness  raising  campaign,  aimed  at  discouraging  the  demand  that 
fosters  trafficking  within  the  framework  of  the  Knowledge  and  Expertise  Hub  (non-legislative 
measure).  

Who supports which option?  
In  its  resolution  of  10  February  2021,  the  European  Parliament  called  on  the  Commission  to  assess  the 
implementation of the  Anti-trafficking Directive and to come forward with proposals to revise it. The 
Commission  conducted  extensive  stakeholders’  consultations,  including  through  a  public  consultation  and 
meetings  of  the  EU  Network  of  National  rapporteurs  and  equivalent  mechanisms  and  the  EU  Civil  Society 
Platform against trafficking in human beings. The Commission also relied on the consultations carried out by 
an external contractor with a wide range of stakeholders, including national authorities in the Member States, 
EU  Agencies,  civil  society  organisations,  as  well  as  representatives  of  the  private  sector  and  International 
Organisations. The majority of consulted stakeholders supported the different measures proposed as part of 
the  preferred  option.  In  its  resolution,  the  European  Parliament  called  on  the  Commission  to  amend  the 
Directive  with  a  view  to  ensuring  that  all  Member  States  criminalise  the  knowing  use  of  services 
exacted  from  victims  of  trafficking.  Stakeholders  are  more  divided  regarding  this  legislative  change, 
although nearly two-third of respondents to the public consultation supported it. Moreover, most stakeholders 
consulted as part of case studies and targeted interviews on the policy options were in favour of it. This sub-
option is considered  the one  with the highest possibility of reaching consensus among all the  possible sub-
options related to the criminalisation of the use of services.   

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C. Impacts of the preferred option 

What are the benefits of the preferred option (if any, otherwise main ones)?                                 
The preferred option aims at improving Member States’ capacity to fight the crime efficiently, notably in 
relation to threats and trends that have emerged and evolved within the past years. New common and 
harmonised  rules  applicable  to  the  Member  States  are  expected  to  enhance  cross-border  cooperation, 
both in terms of investigations and prosecutions, as well as victims’ assistance and support. The non-
legislative  measures  will  provide  support  to  the  Member  States  in  adapting  their  legislation  and  further 
implementing  the  Directive,  in  line  with  the  EU  Strategy  on  Combatting  Trafficking  in  Human  Beings 
(2021-2025). 

What are the costs of the preferred option (if any, otherwise main ones)?                                  
The  preferred  option  has  a  limited  burden  on  Member  States,  which  is  offset  by  the  positive  impact  of  the 
measures on the prevention and fight against trafficking, and protection of the victims. The preferred option 
mostly consists in improving existing provisions rather than creating new obligations. The obligation to 
criminalise  the  knowing  use  of  services  which  are  exacted  from  victims  of  trafficking  would  mainly  create  a 
regulatory  burden  on  the  Member  States  who  have  not  yet  transposed  this  measure  or  others  measures 
which go further. The majority of Member States already have  corresponding legislation in place for at least 
sexual  exploitation.  The  requirement  to  set-up  National  Referral  Mechanisms  would  also  incur  some 
regulatory  and  administrative  burden  on  Member  States.  However,  it  is  not  entirely  a  new  obligation,  since 
under  the  current  Directive,  Member  States  already  had  to  establish  mechanisms  aimed  at  the  early 
identification, assistance and support of the victims and all but one Member States already have a formal or 
informal  referral  mechanism  in  place.  Therefore,  the  steps  needed  to  formalise  procedures  for  the 
identification and referral of the victims are expected to be minor.  

How will businesses, SMEs and micro-enterprises be affected?  
The preferred policy option does not impose any obligation on businesses and thus does not directly affect 
them, besides the fact that some non-legislative measures would require their voluntary engagement. Legal 
persons  could  be  subject  to  penalties  with  an  economic  impact,  such  as  the  temporary  closure  of  their 
establishment, only after a conviction for a trafficking offence committed for their benefit. This measure would 
contribute to ensuring a fairer economy where crime does not pay and companies  acting by the rules would 
benefit  from  a  reduction  in  the  disloyal  competence  from  businesses  using  forced  labour.  While  the 
Commission  would  foster  cooperation  with  the  technology  and  internet  industry,  any  related  regulatory 
obligation linked to the responsibility of online platforms and service providers to detect, monitor and remove 
THB-related content would be covered by other existing or about to be adopted legal instruments. 

Will there be significant impacts on national budgets and administrations?  
As  described  above,  the  preferred  option  would  have  a  limited  impact  on  national  administrations,  which 
would mostly have to adjust their legislation to the new or revised provisions of the Directive, when they have 
not already done so. Some of the legislative measures, which are part of the preferred option, in particular the 
ones  concerning  criminalisation,  are  also  expected  to  result  in  an  increased  number  of  investigations, 
prosecutions  and  convictions.  However,  a  higher  level  of  harmonisation  of  EU  rules  would  contribute  to 
improving the situation on trafficking in human beings in the EU and increasing law enforcement and judicial 
authorities’  capacity  to  prevent  and  fight  against  trafficking  in  human  beings,  to  protect  its  victims  and  to 
reduce the demand that fosters the crime. 

Will there be other significant impacts?  
The  preferred  option  will  strengthen  the  fight  against  trafficking  in  human  beings  through  disrupting  the 
criminal model of traffickers and will reduce the likeliness of people being exploited, thereby having a positive 
impact on the society, fundamental rights, the rule of law and security within the EU.  

D. Follow up 

When will the policy be reviewed?  
The evaluation of the revised Directive should be carried out, in principle not earlier than five years after the 
deadline  for  transposition  to  ensure  that  there  is  a  sufficiently  long  period  to  evaluate  the  effects  of  the 
initiative after it has been fully transposed across all Member States. In particular, the revised Directive would 
include a provision requiring the Commission to assess the impact of the rules criminalising the knowing use 
of exploited services by submitting a report to the European Parliament and the Council five-years after the 
transposition  deadline.  In  the  meantime,  the  Commission  will  continue  to  monitor  and  evaluate  the 
implementation  of  the  Directive  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. 

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