Considerations on COM(2022)732 - Amendment of Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims - Main contents
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| dossier | COM(2022)732 - Amendment of Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims. |
|---|---|
| document | COM(2022)732  |
| date | December 19, 2022 |
(2) Directive 2011/36/EU of the European Parliament and the Council 28 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.
(3) The EU Strategy on Combatting Trafficking in Human Beings 2021-2025 29 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 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.
(4) 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.
(5) 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.
(6) 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).
(7) 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.
(8) 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.
(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 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.
(15) In accordance with the Joint Political Declaration of 28 September 2011 of Member States and the Commission on explanatory documents 31 , 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.