COMMISSION STAFF WORKING DOCUMENT Subsidiarity Grid Accompanying the document Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on combating the sexual abuse and sexual exploitation of children and child sexual abuse material, and replacing Council Framework Decision 2004/68/JHA (recast)
Date: 2024-02-06
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: child, child pornography, child protection, children's rights, fight against crime, help for victims, paedophilia, penalty, prostitution, sexual violence

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   EUROPEAN COMMISSION  Strasbourg, 6.2.2024  SWD(2024) 32 final  COMMISSION STAFF WORKING DOCUMENT Subsidiarity Grid Accompanying the document Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL  on combating the sexual abuse and sexual exploitation of children and child sexual abuse material, and replacing Council Framework Decision 2004/68/JHA (recast) {COM(2024) 60 final} - {SEC(2024) 57 final} - {SWD(2024) 33 final} - {SWD(2024) 34 final}  
 
 
Subsidiarity Grid 

1.  Can the Union act? What is the legal basis and competence of the Unions’ intended action? 

1.1 Which article(s) of the Treaty are used to support the legislative proposal or policy initiative? 

Art. 83(1) TFEU, which allows the EU to adopt minimum rules concerning the definition of criminal 
offences and sanctions in the areas of particularly serious crime with a cross-border dimension, 
including on sexual exploitation of children. 

1.2 Is the Union competence represented by this Treaty article exclusive, shared or supporting in 
nature? 

In the case of the prevention and combating of child sexual abuse and exploitation, the Union’s 
competence is shared. The EU can adopt rules to ensure minimum harmonisation, but Member 
States can go above and beyond and adopt further measures. In the area of prevention, the Union 
has a competence to promote and support Member States’ actions. 

Subsidiarity does not apply for policy areas where the Union has exclusive competence as defined in 
Article 3 TFEU1. It is the specific legal basis which determines whether the proposal falls under the 
subsidiarity control mechanism. Article 4 TFEU2 sets out the areas where competence is shared 
between the Union and the Member States. Article 6 TFEU3 sets out the areas for which the Unions 
has competence only to support the actions of the Member States. 

2.  Subsidiarity Principle: Why should the EU act? 

2.1 Does the proposal fulfil the procedural requirements of Protocol No. 24: 

-  Has there been a wide consultation before proposing the act? 
- 

Is there a detailed statement with qualitative and, where possible, quantitative indicators 
allowing an appraisal of whether the action can best be achieved at Union level? 

The Commission consulted widely before proposing the act; the public consultation is detailed in 
Annex 2 of the Impact Assessment (IA). Consultation included an internet-based public consultation 
in all 24 official EU languages, as well as online surveys, targeted interviews, virtual study visit 
interviews, an online questionnaire focused on the costs of identified policy options, case study 
interviews focused on the costs/impacts of identified policy options, and workshops. The 
consultation efforts included all stakeholders identified as relevant, including Member States’ 
governments, EU bodies and agencies, civil society and private sector stakeholders (please see also 
the table in Annex 2 of the IA). 

The Explanatory Memorandum to the Proposal and Chapter 3 of the IA each contain a section on the 
principle of subsidiarity; please also see the response to question 2.2 below. 

2.2 Does the explanatory memorandum (and any impact assessment) accompanying the 

Commission’s proposal contain an adequate justification regarding the conformity with the 
principle of subsidiarity? 

Yes.  The  proposal  and  the  IA  outline  that  the  cross-border  nature  of  child  sexual  abuse  and 

1 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12008E003&from=EN  
2 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12008E004&from=EN  
3 https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12008E006:EN:HTML  
4 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12016E/PRO/02&from=EN  

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exploitation offenses, which already justified the adoption of the original Directive, has become even 
more prominent in the latest decade, with the increased prevalence in the use of online technologies 
that enable, facilitate and amplify the impact of such offenses. To allow for effective prosecution of 
offenders  and  victims’  protection  everywhere  in  the  Union,  common  minimum  standards  on  the 
definition  of  offenses  and  levels  of  sanctions  are  needed,  and  that  can  only  be  achieved  by  Union 
action.  Analogously,  because  of  phenomena  such  as  travelling  sex  offenders  and  online  abuse, 
Member  States  would  not  be  able  to  effectively  (i)  prevent  the  commission  of  child  sexual  abuse 
offenses in their territory, (ii) investigate and prosecute child sexual abuse crimes with a cross-border 
dimensions, and (iii) identify and adequately provide assistance to victims, in the absence of common 
rules. Hence, the proposal fully respects the principle of subsidiarity as set out in Article 5(3) of the 
Treaty on European Union. 

2.3 Based on the answers to the questions below, can the objectives of the proposed action be 

achieved sufficiently by the Member States acting alone (necessity for EU action)? 

The objectives of the proposed action cannot be achieved sufficiently by the Member States acting 
alone, as the problem is pervasive across the EU and has an inherent cross-border component, 
especially when it comes to its online dimension, that cannot be tackled by Member States 
individually. 

(a)  Are there significant/appreciable transnational/cross-border aspects to the problems being 

tackled? Have these been quantified? 

While child sexual abuse still mostly takes place within the immediate environment of the child and is 
perpetrated by individuals from within the circle of trust of the child, phenomena such as travelling 
child  sex offenders,  who  cross  borders  to  regain  contact with  children,  as  well as  the  spreading  of 
online  child  sexual  abuse  material,  have  been  growing  for  decades.  In  addition,  online  solicitation 
and live distant sexual abuse of children has increased significantly during the COVID 19 pandemic. 
These phenomena are inherently cross-border in nature, with networks of offenders often spanning 
many  countries.  A  quantification  of  the  sharing  of  child  sexual  abuse  materials  online  is  provided, 
e.g.,  by the  reports  from the  National Center for Missing and Exploited Children5  which have  been 
used for the purposes of the IA and which show that persons in all EU Member States upload child 
sexual abuse materials for dissemination, totalling several million images and videos per year. 

(b)  Would national action or the absence of the EU level action conflict with core objectives of 

the Treaty6 or significantly damage the interests of other Member States? 

In the absence of EU action, Member States would have to keep adopting individual national laws to 
respond to current and emerging challenges, with the consequence of fragmentation and diverging 
laws likely to negatively affect the effective fight against child sexual abuse.  

(c)  To what extent do Member States have the ability or possibility to enact appropriate 

measures? 

Member States remain competent to enact measures to prevent and combat child sexual abuse at 
national  level,  to  the  extent  that  those  do  not  contradict  or  otherwise  negatively  impact  the 
harmonised  area of  law.  However,  the  divergence  between  different  national measures,  especially 
when it comes to criminalisation of offences, creates challenges for cross-border cooperation, which 
is  of  particular  importance  especially  in  relation  to  the  online  dimension  of  the  crime  and  to 
travelling child sex offenders. 

5 Available at https://www.missingkids.org/ourwork/impact#reduceexploitation. 
6 https://europa.eu/european-union/about-eu/eu-in-brief_en  

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(d)  How does the problem and its causes (e.g. negative externalities, spill-over effects) vary 

across the national, regional and local levels of the EU? 

The problem affects more or less all Member States of the EU. There is some variance when it comes 
to  hosting  of  child  sexual abuse  materials  online,  where  there  is  a  greater  prevalence  of materials 
detected in certain Member States that have a particularly well-developed digital infrastructure, such 
as the Netherlands. 

(e)  Is the problem widespread across the EU or limited to a few Member States? 

The problem is widespread across the EU.  

(f)  Are Member States overstretched in achieving the objectives of the planned measure? 

No, Member States do not appear to be overstretched. Rather, this has been recognised as a shared 
priority. 

(g)  How do the views/preferred courses of action of national, regional and local authorities 

differ across the EU? 

There were no significant differences in the preferences of national, regional and local authorities 
expressed during the consultation. While individual approaches especially in the area of prevention 
diverge, there is an overall shared objective. 

2.4 Based on the answer to the questions below, can the objectives of the proposed action be 

better achieved at Union level by reason of scale or effects of that action (EU added value)? 

While there are no significant economies of scale in criminal law harmonisation, there is still a clear 
added value in terms of a more effective application of the  legal framework across the Union and, 
more  importantly,  more  effective  prevention,  investigation  and  prosecution  of  child  sexual  abuse 
cases and support for victims.  

(a)  Are there clear benefits from EU level action?  

Yes.  The  evaluation  of  the  existing  EU  framework  which  this  proposal  aims  to  update  has  already 
shown the benefits of coordinated EU action in this area, while identifying a number of gaps that the 
present  proposal  seeks to address.  Given  the  ever-greater  importance  of  the  online  component of 
the  crimes,  which  is  often  cross-border  in  nature,  EU-level  action  can  help  provide  a  harmonised 
approach  to  criminalisation  and  investigation  of  child  sexual  abuse  that  cannot  be  provided  by 
Member States acting individually. 

(b)  Are there economies of scale? Can the objectives be met more efficiently at EU level (larger 

benefits per unit cost)? Will the functioning of the internal market be improved? 

There  are  no  significant  economies  of  scale  as  the  area  of  criminal  law  requires  each  individual 
Member  State  to  invest  its  resources;  however,  some  economies  may  result  from  more  efficient 
investigations based on harmonised criminal law frameworks and from a more coordinated approach 
to prevention measures, where Member States may build on successful initiatives developed in other 
Member States. 

(c)  What are the benefits in replacing different national policies and rules with a more 

homogenous policy approach? 

The benefits lie mostly in a more coherent and consistent approach to a significant public health and 

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societal  challenge  across  the  EU  Member  States,  and  in  more  efficient  and  effective  prevention, 
investigation and prosecution of child sexual abuse crimes and improved victim support. 

(d)  Do the benefits of EU-level action outweigh the loss of competence of the Member States 
and the local and regional authorities (beyond the costs and benefits of acting at national, 
regional and local levels)? 

Yes. The current proposal is a recast and does not further reduce the competence of Member States 
compared to the existing situation; rather, it sharpens and redefines obligations to ensure that the 
instrument is fit for the digital age and for challenges that have emerged more recently. 

(e)  Will there be improved legal clarity for those having to implement the legislation? 

Yes,  the  framework  for  specific  types  of  crimes  committed  mostly  online  should  be  clarified 
compared to the existing situation. 

3.  Proportionality: How the EU should act 

3.1  Does the explanatory memorandum (and any impact assessment) accompanying the 

Commission’s proposal contain an adequate justification regarding the proportionality of the 
proposal and a statement allowing appraisal of the compliance of the proposal with the 
principle of proportionality? 

The  explanatory  memorandum  and  impact  assessment  set  out  a  justification  that  should  allow  an 
appraisal  of  the  compliance  of  the  proposal  with  the  principle  of  proportionality.  In  summary,  the 
proposed  changes  to  the  Directive  are  limited  and  targeted  to  address  the  key  shortcomings 
identified  in  the  evaluation  of  the  Directive  and  to  cover  only  those  aspects  that  Member  States 
cannot achieve satisfactorily on their own. In particular, the necessary adaptations of the definitions 
of  offenses  can  only  achieve  their  objective  of  ensuring  that  inherently  cross-border  child  sexual 
abuse and exploitation offenses can be effectively tackled if adopted at EU level.  

3.2 Based on the answers to the questions below and information available from any impact 
assessment, the explanatory memorandum or other sources, is the proposed action an 
appropriate way to achieve the intended objectives? 

The  proposed  action  is  considered  an  appropriate  way  to  achieve  the  intended  objecties,  as  it  is 
strictly  limited  to  areas  where  Union  action  is  needed,  should  occasion  only  limited  costs  that  are 
proportionate  in  view  of  the  objective  to  be  achieved,  and  leaves  room  to  accommodate  national 
specificities. 

(a)  Is the initiative limited to those aspects that Member States cannot achieve satisfactorily on 

their own, and where the Union can do better? 

The initiative is limited to a targeted change in definitions on crimes committed mostly online, which 
are  inherently  cross-border  in  nature  and  therefore  require  a  coordinated  approach  that  Member 
States  cannot  achieve  by acting individually. It also includes  measures  to strengthen victims’ rights 
and prevention which are strictly limited to those areas where the Union is better placed to act. 

(b)  Is the form of Union action (choice of instrument) justified, as simple as possible, and 

coherent with the satisfactory achievement of, and ensuring compliance with the objectives 
pursued (e.g. choice between regulation, (framework) directive, recommendation, or 
alternative regulatory methods such as co-legislation, etc.)? 

The instrument of choice is defined in Art. 82(1) TFEU, and that rule has been respected (Directive). 

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(c)  Does the Union action leave as much scope for national decision as possible while achieving 
satisfactorily the objectives set? (e.g. is it possible to limit the European action to minimum 
standards or use a less stringent policy instrument og approach?) 

The Union action leaves as much room as possible for Member State action, e.g. when it comes to 
criminalising further action, as it restricts itself to minimum harmonisation in line with its legal base, 
Art.  82(1)  TFEU.  In  addition,  in  the  area  of  prevention,  the  Union  can  only  take  supporting  action, 
allowing  Member  States  to  build  on  the  harmonised  framework  with  measures  of  their  own 
choosing. 

(d)  Does the initiative create financial or administrative cost for the Union, national 

governments, regional or local authorities, economic operators or citizens? Are these costs 
commensurate with the objective to be achieved? 

The  initiative  creates  limited  costs  for  national  administrations  in  necessitating  a  change  of 
legislation. It may also occasion specific additional costs for national coordinating authorities on child 
sexual  abuse,  where  those  do  not  yet  exist.  These  costs  are  considered  commensurate  with  the 
important  objective  to  be  achieved,  which  is  a  more  effective  prevention,  investigation  and 
prosecution of child sexual abuse.  

(e)  While respecting the Union law, have special circumstances applying in individual Member 

States been taken into account? 

While  there  were  no  specific  special  national  circumstances  taken  into  account  in  preparing  this 
proposal,  the  form  of  the  instrument,  as  a  directive,  the  minimum  harmonisation  approach  and, 
where  applicable,  the  supporting  action  allows  Member  States  to  accommodate  any  special 
circumstances that may result from the national context. 

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