EUROPEAN COMMISSION

Brussels, 19.12.2022

SWD(2022) 427 final

COMMISSION STAFF WORKING DOCUMENT

EVALUATION

of the

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) 426 final} - {SWD(2022) 428 final}

Table of Contents

1.Introduction…….

2.The expected outcome of the Anti-trafficking Directive

2.1 The Anti-trafficking instruments prior to the Anti-trafficking Directive……………….

2.2 The Anti-trafficking Directive and its objectives………………...……………………..

3. The developments during the evaluation period………………

3.1. The Anti-trafficking Directive…………………...………………………….………….

3.2. The transposition of the Anti-trafficking Directive by Member States……………...…6

3.3. Monitoring carried out by the Commission…………...…………………………….….

3.4. New challenges since the adoption of the Directive……………………...……….……

3.5. Statistics and trends for the evaluation period (2013-2020)……………………...…….9

4.Evaluation findings (analytical part)

4.1 To what extent was the intervention successful and why?.............................................

4.1.1 Effectiveness……………...……………..…………………………………….…..

4.1.2 Efficiency……………………….………..………………………...……….…......35

4.1.3 Coherence…………………………………………………………………….…...

4.2 How did the Anti-trafficking Directive make a difference?............................................

4.3 Is the Anti-Trafficking Directive still relevant…………….……...……………...…….

5. Lessons learned and conclusions……………………………..….…

ANNEX I: PROCEDURAL INFORMATION…………………………………..….…54

ANNEX II. METHODOLOGY AND ANALYTICAL MODELS USED………..….…56

ANNEX III. OVERVIEW OF BENEFITS AND COSTS AND TABLE ON SIMPLIFICATION AND BURDEN REDUCTION………………………..……..71

ANNEX IV. STAKEHOLDER CONSULTATION (SYNOPSIS REPORT)……..…....81

ANNEX V. STATISTICS…………………………………………………………..…...92

ANNEX VI. TRANSPOSITION OF THE ANTI-TRAFFICKING DIRECTIVE…......130

ANNEX VII. INTERVENTION LOGIC…………………………………….………....181

Glossary

1.    Introduction

Trafficking in human beings is explicitly prohibited under Article 5 of the Charter of Fundamental Rights of the EU. Trafficking in human beings is also among the “areas of particularly serious crime with a cross border dimension” for which Article 83(1) TFEU empowers the EU to establish “minimum rules concerning the definition of criminal offences and sanctions”. The main legislative instrument to combat trafficking in human beings in the EU is Directive 2011/36/EU on preventing and combating trafficking in human beings, protecting its victims 1  (hereinafter “the Directive” or “Anti-trafficking Directive”). It 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, taking into account the gender perspective, to strengthen the prevention of this crime and the protection of the victims” 2 . The Directive entered into force on 5 April 2011 and the deadline for Member States to transpose it was 6 April 2013.

The Directive does not contain any specific provisions concerning its evaluation. On 10 February 2021, the European Parliament adopted a Resolution 3 calling upon the Commission to assess the implementation of the Directive and to come forward with proposals to revise it. Furthermore, in the EU Strategy on Combatting Trafficking in Human Beings 2021-2025 4 , presented on 14 April 2021 (hereinafter “the Strategy”), the Commission acknowledged that the Directive may no longer be fit for purpose. Accordingly, the Strategy identified as a key action the evaluation of the implementation of the Directive and, if necessary, its possible revision. The Strategy also set out that the Commission would assess the possibility of having minimum EU rules that criminalise the use of services exacted from victims of trafficking in human beings.

This report constitutes the first comprehensive evaluation of the Directive. The evaluation examines whether the tools to combat trafficking in human beings and support the victims provided for by the Directive correspond to the current needs, considering the social and economic changes since its transposition date. In compliance with the Better Regulation Guidelines, the evaluation assesses the effectiveness, efficiency, coherence, relevance, and EU added value of the Directive. It aims at identifying possible gaps and shortcomings, supporting the development of recommendations for possible future measures, including legislative options, to address such gaps. This evaluation is carried out “back-to-back” with an impact assessment. 5

The scope of the evaluation covers the period between the date of transposition on 6 April 2013 and the end of the public consultation on 22 March 2022. Its geographical scope covers 27 EU Member States 6 .

The evaluation is based upon extensive desk research (see Annex 2) as well as a study carried out by an external contractor (EY/RAND) to support the evaluation of the Directive and an impact assessment for a legislative proposal on the topic. It uses data collected by EUROSTAT from the date of the transposition of the Directive until 2020. The evaluation also includes a transposition assessment, which updates the Commission’s 2016 Transposition report assessing the extent to which Member States have taken the necessary measures in order to comply with Directive 2011/36/EU 7 . 

The evaluation takes into account the outcome of the extensive stakeholders consultations carried out by the external contractor and the Commission’s public consultation (see Annex 4). The Commission also organised consultations in the context of the EU Network of National Rapporteurs and Equivalent Mechanisms and of the EU Civil Society Platform against trafficking in human beings. Separate consultations took place with the EU Agencies, which signed a Joint Statement of commitment to work together against trafficking 8 . Moreover, the EU Anti-trafficking Coordinator held bilateral discussions with national authorities, civil society organisations and international organisations, such as UNODC, IOM, UNHCR, the OSCE, the Council of Europe, and ICMPD.

The evaluation has limitations related to the nature of the crime and the weaknesses of the data collection. The threat picture and the quantitative assessments are undermined by the difficulties in detection and the low number of reports from victims, who are often emotionally or economically dependent on the trafficker. With low numbers of victim reports and, especially without victims’ testimonies, it is challenging to formally charge and convict the perpetrators. This is also reflected in the low number of prosecutions and convictions within the EU. Moreover, despite the significant progress in the data collection in the last years, data is still not systematically collected in certain Member States or the gathering process may lead to double counting. Limited data is available also on the support and compensation received by victims. The gaps in the data collection make it difficult to measure the effectiveness of prevention measures (awareness raising campaigns, research, information) and the impact of the criminalisation of the use of exploited services on demand.

The evaluation is relevant to three Sustainable Development Goals (SDG), i.e. SDG 5.2 on eliminating all forms of violence against all women and girls in the public and private spheres, including trafficking and sexual and other types of exploitation; SDG 8.7 on taking immediate and effective measures to eradicate forced labour, end modern slavery and human trafficking and secure the prohibition and elimination of the worst forms of child labour, including recruitment and use of child soldiers, and by 2025 end child labour in all its forms; and SDG 16 on ending abuse, exploitation, trafficking and all forms of violence against and torture of children.

The intervention logic of the Directive is described in Annex 7 to this Staff Working Document.

2.    The expected outcome of the Anti-trafficking Directive 

2.1     The Anti-trafficking instruments prior to the Anti-trafficking Directive

Prior to the adoption of the Directive, the response to trafficking in human beings was regulated by several EU and international legal instruments. The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the UN Convention against Transnational Organized Crime, adopted in 2000 and entered into force in 2003, was the first comprehensive international instrument dealing with trafficking in human beings. The European Union signed and approved the Protocol 9 . The Council of Europe Convention on Action against Trafficking in Human Beings, adopted in 2005, also provided a comprehensive and coherent framework covering prevention, cooperation between different actors, protection of and assistance to victims, and an obligation to criminalise trafficking in human beings 10 . The EU is not a party to the Council of Europe Convention.

At the EU level, on 19 July 2002, the Council adopted Council Framework Decision 2002/629/JHA on combating trafficking in human beings 11 (hereafter “the Framework Decision”) and the EU Plan on best practices, standards and procedures for combating and preventing trafficking in human beings 12 .  Member States made good progress towards transposing the Framework Decision into their national legislation and complying with its essential requirements 13 . However, the 2006 Commission’s report and the 2008 Working document stated that “implementation of comprehensive anti-trafficking policy in [Member States] is still unsatisfactory.” This was partly because Member States were not required to implement several of its provisions, as these allowed for exceptions and reservations. Identified gaps in the anti-trafficking policy at Member States level concerned the effective detection and prosecution of the offences, protection of and assistance to victims, and the monitoring of trafficking trends and anti-trafficking efforts.

2.2    The Anti-trafficking Directive and its objectives

At the time of the 2010 Commission Proposal 14 , trafficking in human beings was already considered as a gross violation of human rights, a serious crime and an extremely profitable business for organised crime. The available figures at the time showed that an estimate of several thousands of people were trafficked into the EU or within the EU every year 15 . The majority of victims were women and girls, trafficked mostly for sexual exploitation, while the majority of men victims were trafficked for the purpose of labour exploitation. Children were found to be mainly trafficked to be exploited in criminal activities, including begging, and for sexual exploitation.

The identified drivers of the crime were the high profits generated, the socio-economic vulnerabilities of the victims and the demand for sexual services and cheap labour 16 . The institutional and policy response within the Member States was considered inadequate, not contributing much to the identification of, and support to, victims, and discouraging their participation in criminal proceedings. This led to very low numbers of prosecutions and convictions, in the absence of accurate sources of evidence, which could have enhanced the investigative response.

Cross-border cooperation was also considered insufficient and limiting the effectiveness of investigations in transnational cases. Effective tools, such as joint investigation teams 17 or other means typical of organised crime cases (financial investigations, phone tapping or electronic surveillance) were rarely used.

At the time of the intervention, the gaps in the available data did not allow a precise estimation of how trafficking in human beings would have evolved in the absence of EU action. Nevertheless, the Impact Assessment to the Directive 18 concluded that trafficking in human beings was expected to remain stable or even grow if no effective deterrents were put in place in the near future, due the large scale of the crime, the high profits generated for criminal networks and the links with other forms of serious crime (such as document fraud, money-laundering, drug trafficking and migrant smuggling).

Due to the physical and psychological health consequences of the crime, the importance of victims’ testimonies to successful investigations and protection and the low number of victims’ being assisted, the Commission considered that the protection of the rights of the victims had to be at the core of any proposals aimed at strengthening the EU action against trafficking.

The adoption of the Directive aimed at responding to two general objectives, namely (1) to combat crime, organised or otherwise, in particular trafficking in persons and offences against children, by building a more coherent framework for the fight against trafficking and (2) to increase the effectiveness of the framework. In addition the Directive was set to respond to five specific objectives:

1.    Introducing substantive criminal law provisions, by aligning the definition with international instruments 19 and imposing an effective, proportionate and dissuasive level of penalties.

2.    Prosecuting trafficking-related offences, by removing obstacles to cross-border and international cooperation and facilitating prosecution of traffickers when the offence is committed outside the jurisdiction of a Member State.

3.    Protecting victims’ rights by requiring the non-prosecution and non-punishment of victims for crimes committed as a direct consequence of being trafficked, by providing the presumed victims with unconditional individualised assistance before, during and after the criminal proceedings, by requiring individualised risk assessments, by increasing the protection of victims from secondary victimisation, by ensuring effective compensation and by establishing specific measures for children, including unaccompanied minors.

4.    Preventing trafficking, by reducing vulnerability factors in countries of origin, by improving the resources and expertise of law enforcement and other public authorities likely to come into contact with potential victims and by sanctioning employers who knowingly employ trafficked persons, and clients who knowingly use sexual services from trafficked persons.

5.    Establishing effective monitoring systems, by appointing National Rapporteurs or Equivalent Mechanisms, by establishing close cooperation between them and by requiring the Commission to report every two years on the progress made in the fight against trafficking in human beings.

3.    The developments during the evaluation period

3.1.    The Anti-trafficking Directive

The Directive contributed to creating an EU common minimum ground for the three dimensions of the fight against human trafficking covering the above mentioned objectives 20 : (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; (iii) prevention of trafficking in human beings.

The Directive includes a common minimum set of offences, which expands the minimum list of forms of exploitation covered by previous EU legislation. Article 1(1) of the Framework Decision 21 was limited to “forced or compulsory labour or services, slavery or practices similar to slavery or servitude, or for the purpose of the exploitation of the prostitution of others or other forms of sexual exploitation”.

The Directive includes further advancements in comparison to the Framework Decision:

·Establishing minimum penalties for all trafficking offences (Article 4), while Council Framework Decision 2002/629/JHA included minimum penalties only for aggravating circumstances. The Directive further raised the minimum penalties for aggravating circumstances from 8 to 10 years (Article 4(2)).

·Expanding the scope of aggravating circumstances by (i) adding the circumstance in which the offence is committed by public officials in the performance of their duties (Article 4(3)); and (ii) expanding the definition of vulnerable victims (Article 4(2)(a)). While Council Framework Decision 2002/629/JHA limited the concept of vulnerability to victims of sexual exploitation under the age of sexual majority, the Directive includes a wider range of vulnerable victims, by indicating child victims as a minimum.

·Expanding the scope of investigation and prosecution for trafficking in human beings (Article 9) by covering also seizure and confiscation (Article 7).

·Expanding the assistance, support and protection measures for victims (Articles 11 and 12), including the principle of non-prosecution and non-punishment of victims (Article 8), as well as specific assistance, support and protection measures for child victims (Articles 13-16) and addressing access to compensation (Article 17).

·Expanding the scope of prevention measures (Article 18), including by requiring Member States to consider criminalising the knowing use of exploited services (Article 18(4)).

·Introducing and defining the role of the National Rapporteurs and Equivalent Mechanisms on trafficking in human beings (Article 19).

·Introducing the obligation for Member States to periodically report to the EU Anti-trafficking Coordinator (hereinafter EU ATC), on the basis of which the EU ATC contributes to the reporting carried out by the Commission every two years on the progress made in the fight against trafficking in human beings (Article 20). The tasks of the EU ATC also include improving coordination and coherence between EU institutions and agencies as well as between Member States and international actors, avoiding duplication of efforts and contributing to developing existing or new EU policies and strategies relevant to the fight against trafficking in human beings.

The main categories of stakeholders responsible for the implementation of the Directive are 26 Member States 22 , the Commission, the EU Anti-trafficking Coordinator, the EU Agencies and civil society organisations. The Directive encourages Member States to work closely with civil society organisations, in particular in policy-making initiatives, information and awareness-raising campaigns, research and education programmes, training, as well as in monitoring and evaluating the impact of anti-trafficking measures.

3.2.    The transposition of the Anti-trafficking Directive by Member States

The main responsibility for combating trafficking in human beings lies with Member States, which are required to adopt legislation, regulations and administrative provisions necessary to comply with the Directive by 6 April 2013 23 . In May 2013, the Commission sent 13 letters of formal notice in order to initiate infringement proceedings against Member States that had not communicated the transposition measures. In four instances, the Commission addressed reasoned opinions to the Member States concerned. Following this, all the Member States bound by the Directive communicated their transposition measures. Considering the wide-ranging scope of the Directive, most Member States chose to transpose its provisions in different types of legal instruments, mainly: criminal codes; specific acts concerning the fight against trafficking; legislation safeguarding victims of crimes; acts setting measures for the protection of children; legislation regulating the entry and residence of third country nationals.

In 2016, the Commission adopted a report on the transposition of the Directive 24 . The results of the report showed that, five years after its adoption, the Member States had made substantial efforts to transpose the Directive but significant room for improvement remained in particular as regards specific child protection measures; the presumption of childhood and the age assessment; protection before and during criminal proceedings; access to unconditional assistance; compensation; non-punishment principle; assistance and support to family members of child victims; and prevention.

The transposition assessment carried out in the context of this evaluation shows that Member States have fully or partially transposed most of the mandatory provisions of the Directive into their national legal systems 25 . 

The correct and complete transposition of the Directive and its full implementation remained a priority for the Commission throughout the evaluation period. These are crucial to ensure that traffickers do not benefit from diverse approaches within the EU and that victims receive adequate protection and support irrespective of where they are. The Commission continued the engagement with the Member States after the adoption of the transposition report, and committed to use the powers conferred to it by the Treaties to ensure full transposition and implementation, including by infringement procedures, if appropriate 26 . In the evaluation period, the Commission did not launch any infringement procedure. The Commission supported Member States with substantial funding to facilitate and accelerate the implementation of the Directive, in particular the provisions on preventing and combatting trafficking and on protecting, supporting and assisting the victims. During the 2014-2020 programming period, the total EU allocation for projects aimed at preventing and combatting trafficking in human beings amounted to EUR 13 026 286 under shared management and to EUR 22 707 722 under direct management. In addition, the anti-trafficking action is fully integrated in the EMPACT grants that support national actions against the ten crime priorities identified by the Council in the context of the EU Policy Cycle, as trafficking in human beings is one of them 27 . EMPACT grants have contributed to countering the impunity of perpetrators by strengthening the capacity of Member States’ law enforcement to investigate and prosecute trafficking offences.

Member States have also adopted non-legislative instruments, which supported the implementation of the Directive, such as new or renewed National Action Plans to prevent and combat trafficking in human beings 28 , as well as sets of guidelines 29 , protocols and procedures 30  aimed at supporting the relevant stakeholders in detecting, identifying and protecting victims, as well as coordinating the efforts in the fight against human trafficking 31 . 

3.3.    Monitoring carried out by the Commission 

Pursuant to Article 20 of the Directive, the Commission reports every two years on the progress made in the fight against trafficking in human beings. The Progress Reports include statistical data on trends observed in trafficking in human beings, as well as analysis on the results of anti-trafficking actions. Moreover, the Commission has published a number of reports and studies 32 on different aspects of trafficking in human beings, including in cooperation with the EU Agencies 33 .

Following the entry into force of the Directive, the Commission adopted three policy instruments. The first policy document presented after the adoption of the Directive was the EU Strategy towards the Eradication of Trafficking in Human Beings 2012-2016 34 , which identified five priorities: 1) identifying, protecting and assisting victims; 2) stepping up prevention; 3) increasing prosecutions; 4) enhancing coordination and cooperation among key actors and ensuring policy coherence; 5) increasing knowledge of, and effective response to, emerging concerns relating to all forms of trafficking.

In 2017, the Commission adopted a Communication reporting on the follow-up to the EU Strategy and identifying further concrete actions 35 . In April 2021, the Commission adopted the EU Strategy on Combatting Trafficking in Human Beings 2021-2025, which provides a comprehensive response to combatting trafficking in human beings, from prevention through to protection of victims, to prosecution and conviction of traffickers. The Strategy identifies four key priorities: 1) reducing the demand that fosters trafficking; 2) breaking the criminal model of traffickers to halt the exploitation of victims; 3) protecting, supporting and empowering the victims, especially women and children; 4) the international dimension.

3.4.    New challenges since the adoption of the Directive

Since the adoption of the Directive, several major developments have affected the socio-economic situation, with significant implications on the trafficking in human beings landscape. Technological developments and the expansion of online social media created new opportunities for traffickers, allowing them to recruit victims online and to reach a much broader audience via online streaming and widespread sharing of exploitative materials.

In addition, over 100 million people were forcibly displaced worldwide in 2022, as a result of conflicts, violence and human rights violations, among others 36 , thus increasing the risks of trafficking due to their vulnerability and economic situation. Climate change is also expected to foster trafficking in the long term, due to the socio-economic consequences of draughts and famines on vulnerable categories.

The 2021 Serious and Organised Crime Assessment of Europol highlighted that trafficking in human beings is a central activity for organised crime groups operating in the EU and that the demand for sexual and labour exploitation will continue to persist 37 . The risks of trafficking have considerably increased since the beginning of the war in Ukraine in February 2022, as persons fleeing to the EU might be targeted by human traffickers along their journey 38 . Women and children, especially unaccompanied minors, are particularly vulnerable to trafficking, including for the purposes of sexual or labour exploitation.

In 2020, Europol warned that trafficking in human beings, particularly for the purpose of labour and sexual exploitation, is likely to increase, as the economic downturn in the wake of the COVID-19 pandemic could increase demand for cheap labour 39 . Also as a consequence of COVID-19 prostitution has moved from brothels and the streets into hotels and apartments, which makes potential victims of trafficking nearly inaccessible for law enforcement and social services. 40

3.5.    Statistics and trends for the evaluation period (2013-2020)

The statistics and trends outlined below are based on the data provided by EUROSTAT covering the 2013-2020 reporting period in the EU27 41 . For the detailed statistical report for 2013-2020, see Annex 5.

3.5.1 Number and demographic characteristics of the of victims

The total number of victims of trafficking in human beings registered in the EU27 during the 2013-2020 period was 55 314, with an average of 16 registered victims per million inhabitants. The annual numbers of registered victims of trafficking showed very little variation across the reporting period. The annual numbers are comparable, if generally slightly lower, to the number recorded in the EU27 in 2011 (n=7,440) and notably lower than the 2012 number (n= 8,853). 42

However, the actual number of victims of trafficking within the EU is likely much higher than the data suggests. The statistics above include only victims identified by registering entities and are unable to encompass the estimated high numbers of undetected victims 43 . 

The number of victims is considered underestimated due to the widespread underreporting of trafficking offences, which is the consequence of numerous reasons, including the economic or emotional dependency between the victim and the trafficker; intimidation of extortion by the traffickers; the fear of reprisals from the traffickers; language or cultural barriers; distrust in, the competent authorities; the societal attitude towards victims of trafficking, especially for sexual exploitation; insufficient awareness on their rights and opportunities, as well as the fear to lose their income, especially for victims trafficked for labour exploitation; for illegally staying third country nationals, the fear of deportation. There are attempts for calculating regional estimates. The US 2022 Report on Trafficking in Persons (TIP) 44 estimates the identified and registered number of victims of trafficking in Europe (including Turkey, Russia and Western-Balkans) as 17 383 in 2019 and 18 173 in 2020. According to the ILO’s newly released Global estimates of modern slavery 45 , 6.4 million people are subjected to forced labour, sexual exploitation and forced marriage in Europe and Central Asia. It can be noted that these two reports (released few weeks one from the other) include widely different figures for similar geographical regions. This shows how difficult it is to make precise estimations of the real number of victims. Existing estimates rely on different concepts, which do not necessarily amount to trafficking in human beings (e.g. forced labour or forced marriage) or are not defined under international and EU law (e.g. modern slavery), refer to different geographical scopes or do not have a clearly outlined methodology. While there have been few attempts at producing estimates at Member State level, their methodology was criticised for its strong dependence on quality of input data and the assumptions behind the data analysis, which may result in a large margin of error when estimating the hidden population. 46

79% of victims registered in the EU27 were adults 47 . Child victims constituted around one fifth of all registered victims whose age was known (21%) in the EU27. The percentage of child victims increased over time, growing from 18% in 2013 to 24% in 2020 continuing the trend of 2011-2012, when the share of child victims was 17%. Over the reporting period, children accounted for approximately one quarter of sexual exploitation victims where the age group was reported. This is slightly higher than the share of child victims across all types of exploitation. There was little change in the value of this indicator over time, decreasing somewhat from 27% in 2015 to 24% in 2020. It does, however, represent a notable increase from 2010-2012 when only 14% of registered victims of sexual exploitation were under 18 years old. 48

During the 2013-2020 evaluation period, 56% of the registered victims with known citizenship were EU citizens and 44% were non-EU citizens.  The ratio of EU and non-EU victims in 2010-2012 was similar to that of 2013 (69% EU victims and 31% non-EU victims). The share of EU victims gradually decreased between 2013 and 2018 and then increased in 2020. In 2016 and 2018 the number of registered non-EU victims overtook that of EU citizens. During the overall evaluation period, the main countries of citizenship of non-EU victims in the EU were Nigeria (6,513), China (1,417), Morocco (824), Ukraine (743), and Philippines (605), while the main countries of citizenship of EU victims were Romania (9,392), Hungary (3,565), Bulgaria (3,424), France (3,136), and the Netherlands (2,558). 49  

Across the EU27, approximately one third (36%) of all registered victims of THB were citizens of the country in which they were registered 50 . Citizens of other EU Member States accounted for approximately one fifth (21%) of all registered victims.

In 2013-2020, women and girls represented three quarters of trafficking victims whose sex was reported (75%) in the EU27 likewise as during 2010-2012. 51 . The percentage in individual Member States ranged from 42% in Portugal to 92% in Bulgaria 52 . The percentage of female victims decreased from 81% in 2013 to 67% in 2020. During the evaluation period, men and boys were the majority of victims recorded in two Member States (BE, PT).

3.5.2 Purposes of trafficking in human beings

Sexual exploitation has constantly been the most prevalent purpose of trafficking in human beings across the reporting period, although its share decreased from 76% in 2014 to less than 60% in 2019-2020 53 . Victims of sexual exploitation are overwhelmingly women and girls (93%). Trafficking for purposes other than sexual exploitation has increased during the reporting period. Labour exploitation has consistently been the second most prevalent purpose of trafficking in human beings. It accounts for 20% of all registrations during 2013-2020, as the percentage was initially low but later increased to reach approximately one third of victims in 2020. Labour exploitation affects mostly male victims (70%), though female victims are increasingly exploited in particular sectors (e.g., domestic work, care activities or cleaning services). The proportion of “other purposes” increased over time to approximately one fifth of all cases in 2018 and decreased thereafter to slightly more than 10% of all registrations. These trends represent a continuity of the developments in 2010-2012 when 69 % of registered victims were trafficked for the purpose of sexual exploitation, 19 % for labour exploitation and 12 % for other forms of exploitation such as the removal of organs, criminal activities, or selling of children. 54

4.    Evaluation findings (analytical part)

4.1 To what extent was the intervention successful and why?

In order to measure the success of the Directive, the evaluation assesses to what extent the objectives of the Directive were met (effectiveness) and whether this was commensurate with the efforts, time and funding invested (efficiency). Furthermore, it is examined whether the objectives of the Directive have been attained and fit in the broader political framework, and are in coherence with other EU, national and international instruments in the field of prevention of the trafficking of human beings (coherence).

4.1.1 Effectiveness

Overall, the Directive has proven effective in achieving its general objectives as it facilitated the creation of an overarching legal and institutional framework at European and national level, with regard, however, its specific objectives concerning, prevention, prosecution, assistance of victims and monitoring the Directive has not reached its full potential.

As highlighted by several survey respondents 55 , the establishment of common minimum rules contributed to higher harmonisation of national criminal laws, which would have been difficult to achieve by Member States acting alone. In this regard significant progress has been done to achieve the specific objective of the Directive. Harmonised rules resulted in higher EU capacity to fight against this crime. Nevertheless, Member States have transposed and implemented the Directive to different extents and its effectiveness remains limited by the gaps in the practical implementation of its provisions.

4.1.1.1 Definition of trafficking in human beings and the forms of exploitation

a.    Definition of trafficking in human beings

Article 2 of the Directive provides a common definition of trafficking in human beings and requires Member States to ensure that trafficking offences committed with intent be punishable. The definition of the Directive is in line with the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the UN Convention against Transnational Organized Crime (the Palermo Protocol) and with the Council of Europe Convention on Action against Trafficking in Human Beings. However, minor divergences in the transposition and interpretation of Article 2, may slightly reduce the effectiveness of the Directive at Member States’ level.

Areas hindering the full effectiveness of the Directive in relation to the definition

The differences in how some key concepts of the definition of trafficking are enshrined in national law may hinder EU law enforcement and judicial cooperation in cases where the activities are considered to be trafficking in one Member State but not in others 56 .

·Article 2(1): The term ‘abuse of power’ refers to the means used to commit human trafficking offences. The Directive does not specify what kind of power and how it may be abused. It is not known how this concept is interpreted in practice, for example if a parental or educational relationship may qualify as an abuse of power.

·Article 2(2): The term ‘position of vulnerability’, defined as ‘no real or acceptable alternative but to submit to the abuse involved’ refers to the means used to commit trafficking offences. Member States define the position of vulnerability in different ways 57 .

·Article 2(3): There is no EU definition or indicators of exploitation. As reported by Eurojust, prosecutors face a high evidentiary burden in courts to prove the exploitation element. Moreover, this element is not clearly and unanimously understood (particularly with reference to trafficking for labour exploitation, modern slavery or servitude, international surrogacy arrangements leading to the selling of newborns and exploitative (sham) marriages). For example, in some Member States, proving exploitation is dependent on evidence of coercion 58 .

b.    Forms of exploitation

Article 2(3) provides a minimum list of forms exploitation, which includes prostitution of others or other forms of sexual exploitation; forced labour or services, including begging, slavery or practices similar to slavery, servitude; exploitation for criminal activities; and removal of organs. As the list is non-exclusive, it allows Member States to criminalise additional forms of exploitation. The Directive does not define the forms of exploitation explicitly mentioned therein. This has led Member States to adopt different interpretations of some forms of exploitation, such as forced begging, which is addressed indifferent ways across Member States 59 . The risk of diverging interpretations is even higher for the forms of exploitation that are not explicitly mentioned in the Directive.

Areas hindering the full effectiveness of the Directive in relation to the forms of exploitation

Consulted stakeholders considered that greater clarity is required around the concept of “forced labour” 60 , as it is currently interpreted in differing ways. Recital 11 of the Directive states that forced labour is defined in line with the ILO Forced Labour Convention, 1930 (No. A 29). However, the concept of forced labour is not explicitly defined in many Member States. 61  It must be noted that ILO’s Committee of Experts on the Application of Conventions and Recommendations in their comments and observations provides ample guidance to enable Member States to ensure that their definition of “forced labour” aligns fully with the ILO standards 62 . Eurojust stressed that some Member States experienced difficulties in defining “practices similar to slavery or servitude”. 

In addition consulted stakeholders frequently referred to the evolving nature of the crime of trafficking in human beings and considered that other forms of exploitation could be included in Article 2(3) 63 . 

·Forced marriage is already listed in the recitals of the Directive as another purpose that can be covered by the definition of trafficking in human beings insofar as it fulfils the constitutive elements of the offence. The 2021 EU SOCTA report and the Commission’s progress reports have highlighted a rise in the number of cases of trafficking for forced marriage, which particularly affects women and children, and is often combined with other forms of exploitation, such as sexual exploitation and/or labour exploitation.

·Illegal adoption is also listed in the recitals of the Directive as a purpose of trafficking, which can be covered by trafficking in human beings, insofar as it fulfils the constitutive elements of trafficking in human beings. The 2021 EU SOCTA report underlines that children are trafficked and sold through illegal adoption schemes. Mothers in vulnerable circumstances can be forced to give their children for adoption outside the legal adoption system for the financial profit of the trafficker.

·Illegal surrogacy: the trafficking of women for the purpose of illegal surrogacy programmes, which involve selling newborn children has also been identified as an emerging trend in the 2021 EU SOCTA report and in the Commission’s Third progress report. As part of the evaluation, Eurojust reported that some Member States encounter difficulties in prosecution and judicial cooperation in cases involving the selling of newborn children, in particular when vulnerable surrogate mothers are exploited by intermediaries and there is a risk of exploitation of the children 64 . 

·Social benefit fraud was referred to as a form of exploitation in the 2021 EU SOCTA report. Eurojust also reported on cases where traffickers abuse vulnerable individuals coming from difficult financial conditions to commit social benefit fraud for their sole profits 65 . Because of the lack of legislation on social benefit fraud as an exploitative purpose of trafficking in human beings, the exploited individuals are often regarded as suspects of fraud rather than victims of trafficking 66 . 

4.1.1.2 Prevention and training

The Directive is widely considered to have improved prevention efforts. The majority of survey respondents considered that the Directive contributed to reducing the number of victims 67 . Respondents also considered that measures targeting child victims have been relatively effective, though less than those targeting adults 68 . Measures targeting potential offenders were considered relatively less effective than those above 69 .  

    Prevention measures

Article 18 of the Directive requires the Member States to take appropriate measures to prevent trafficking in human beings, including education and training aimed at reducing the demand that fosters trafficking (Article 18(1)), as well as information and awareness raising campaigns, research and education programmes aimed at reducing the risks of victimisation (Article 18(2)).

All Member States but one have transposed these two provisions in their national laws 70 . The Commission has collated information on the many examples of prevention activities conducted in Member States 71 , including projects, awareness raising campaigns, education and training programmes implemented at national and transnational level. Examples of transnational projects include TRACE 72 , SafeShore 73 and RAVOT-EUR 74 . There are also examples of cooperation between child protection systems and education systems aimed at strengthening prevention measures targeting children 75 .

Areas hindering the full effectiveness of the Directive in relation to prevention

The evaluation identified several areas of improvement with regards to prevention. These include defining concrete objectives to better target prevention measures towards specific groups or sectors. For example, it may be beneficial to conduct awareness campaigns in the main (EU and non-EU) countries of origin of victims identified in the EU 76 and in high-risk environments (such as sectors of the economy that attract low-wage labour).

Prevention strategies should address the root causes of trafficking in human beings, such as gender discrimination, economic inequalities and restrictive migration policies 77 . Lack of education and work opportunities, as well as of regular migration routes towards the EU, are among the societal issues that foster trafficking 78 .

    Training 

Article 18(3) requires Member States to promote regular training for officials likely to come into contact with victims or potential victims, including front-line police officers, in order to enable them to identify and deal with victims and potential victims. Recital 25 provides that this training obligation should be promoted for “police officers, border guards, immigration officials, public prosecutors, lawyers, members of the judiciary and court officials, labour inspectors, social, child and health care personnel and consular staff, but could, depending on local circumstances, also involve other groups of public officials who are likely to encounter trafficking victims in their work”.

All Member States have implemented training activities envisaged in Article 18(3). The evaluation found that Member States have offered training programmes to officials involved in investigations and prosecution of trafficking offences, such as prosecutors, law enforcement and judicial authorities. Some Member States have also offered training to healthcare professionals, staff from social assistance services and labour inspectors. The Directive is considered to have contributed to increasing the offer of specialised training on trafficking available at the national level 79 .

EU Agencies, international organisations and the Member States produce guidance and training documents and offer training on trafficking in human beings, reaching a wide range of professionals in Member States and non-EU countries. During the 2013-2021 period, CEPOL developed a complex training portfolio and trained a total of 5,173 officers 80 . Frontex prepared a training manual 81 , a ‘train the trainer tool’ and is currently developing a handbook on Risk Profiles on Trafficking in Human Beings 82 . FRA will develop a capacity building tool to train labour inspectors tasked with identifying illegal work 83 .

Areas hindering the full effectiveness of the Directive in relation to training

The evaluation identified several areas for improvement in relation to training. Although the number of capacity-building activities has grown, many law enforcement and judicial professionals are not receiving training that would better equip them to investigate and prosecute trafficking offences. This results in limited knowledge, for example about child trafficking, the procedures in place in the different (police or judicial) institutions, or on discerning persons forced into criminal activities as a result of being trafficked 84 .

As victims may be scared of reporting to law enforcement authorities, it is crucial that all relevant stakeholders receive adequate training 85 . Training programmes should involve other professionals likely to come into contact with victims, such as staff from social assistance services, healthcare professionals, labour inspectors and airline staff in direct contact with passengers.

4.1.1.3 Reduction of the demand that fosters trafficking and criminalisation of the use of exploited services

The Directive adopts a comprehensive approach to demand reduction, which includes both legislative and non-legislative measures, although legislative measures remain in the Directive optional. Article 18(1) requires Member States to take appropriate measures, such as education and training, to discourage and reduce the demand that fosters all forms of exploitation. Article 18(4) requires Member States to “consider” criminalising the use of services which are the objects of exploitation, with the knowledge that the person is a victim of trafficking. This is an optional provision, on which Member States and stakeholders have widely differing views.

The analysis of national legislation carried out as part of this evaluation indicates that eight Member States have legislation criminalising the knowing use of services exacted from victims of all forms of exploitation 86 . Eleven Member States have legislation that criminalises directly or indirectly the knowing use of services exacted from victims of sexual exploitation 87 (including some Member States requiring a lower, or no, knowledge requirement) 88 . Seven Member States 89 have no legislation addressing the use of services exacted from victims of trafficking. However, some of these have legislation which does not transpose the Directive but imposes criminal liability for users of exploited services 90 .

Some Member States (FR, IE, SE and, partially, FI 91 ) address demand for sexual services with the so-called “Equality Model”, which criminalises the purchase of sexual services regardless of whether the person is a victim of trafficking 92 . This approach concerns the reduction of demand in the field of sexual services and addresses the situation of victims of trafficking indirectly, as part of the individuals in prostitution.

EUROSTAT has collected data relating to the criminal offences of the use of exploited services since 2015. EUROSTAT reported that during the 2015-2020 period, 331 persons were reported as suspects, 343 were prosecuted and 202 were convicted of such offences. As shown by Figure 1 below, it is not possible to discern any clear trend. It is, however, important to acknowledge that there are serious gaps in the data collection, as only 11 Member States reported on the three categories (suspects, prosecutions, convictions) 93 .

Figure 1: Criminal justice statistics on the offence of the use of services which are the objects of exploitation of victims of trafficking in human beings (2015-2020)

In February 2021, a European Parliament Resolution called on the Commission to amend the Directive with a view to ensuring that all Member States criminalise the knowing use of exploited services 94 . UNODC called on the Commission to “recall the legal obligation Member States have to address demand, including by legislative measures addressing the use of services of victims 95 . It also corresponds to the recommendations of the Council of Europe’s Group of Expert on Action against Trafficking in Human Beings (GRETA), which all include the knowing use without differentiating between the forms of exploitation. 96 Furthermore, this approach is also supported by 61% of respondents to the public consultation 97 . The EU Strategy stipulates that the Commission would carry out an assessment of the possibility of having minimum EU rules that criminalise the use of exploited services of trafficking victims as part of the evaluation of the Directive 98 .

Areas hindering the full effectiveness of the Directive in relation to the use of exploited services from victims of trafficking

(i) Even where available, legislation criminalising the use of exploited services is not extensively applied in practice

Legislation criminalising the knowing use of exploited services is applied in practice to different extents. Several Member States (BG, EE, LU, MT) reported no cases in 2020. On the other hand, in the 2017-2020 period, LT reported 113 convictions and HU 41 99 .

(ii) Difficulties in proving the “knowing” use in court

Numerous consulted stakeholders (national rapporteurs, prosecutors and civil society organisations) link the limited application of provisions criminalising the knowing use of exploited services with the difficulty of proving knowledge in court with adequate and sufficient evidence 100 . To address this challenge, a minority of stakeholders advocated for the removal of the knowledge requirement and called for criminalising the use of exploited services regardless of whether the user knows that the person is a victim of trafficking 101 .

Only one Member State (CY) has this strict liability standard for the use of services from victims of sexual exploitation. Two Member States (DE and FI) require knowledge or a standard similar to serious negligence. However, the data from these Member States that adopt stricter approaches does not show higher numbers of prosecution or convictions, in comparison to Member States that adopt the knowing use approach 102 . 

OSCE indicated that limited capacity building among law enforcement officials may also contribute to the limited use of these provisions 103 .

(iii) Concerns that criminalising the use of exploited services could hinder detection and early identification of victims

There are differing views among Member States and consulted stakeholders on whether criminalising the use of services is an effective strategy to reduce the demand that fosters trafficking. This was reflected in the public consultation, with respondents split almost evenly on whether this would (and would not) be an effective measure to reduce demand.

Several Member States and stakeholders are concerned that the criminalisation of the use of exploited services could hinder detection of the crime by pushing sexual and labour exploitation further underground, thereby hampering detection and prosecution, as well as early identification, support and access to justice especially for vulnerable victims 104 . 

In consideration of the potential risks of criminalisation, stakeholders advocate focusing on improving access to information, on setting up effective complaints mechanisms and on ensuring safe reporting through structural reforms 105 . OSCE considers criminalisation as only part of the broader approach to reduce demand 106 .

4.1.1.4 Investigations, prosecutions, penalties and confiscation

    Investigations, prosecutions and convictions

Article 9 of the Directive requires Member States to ensure that investigations into, or prosecutions of, trafficking offences are not dependent on reporting or accusations by a victim and that criminal proceedings may continue even if the victim has withdrawn his or her statement.

As shown in Figure 2, the number of suspect increased from approximately 3 000 in 2013 to just under 8 000 in 2019. However, this is also a result of progressive improvements in the data collection. For instance, Italy did not report data on these indicators before 2017, and Italy alone recorded approximately 2 000 suspects in 2017 and 2018. 107

Figure 2: Trends in headline criminal justice indicators related to THB cases (2013-2020)

In the 2013-2020 period, the numbers of prosecutions and convictions have remained constantly low, especially in comparison with the number of victims 108 , and consulted stakeholders expressed concerns of the culture of impunity for traffickers 109 . The gaps in the available data seriously limit the evaluation of the effectiveness of the Directive. In addition, data reliability and comparability is hindered by the different approaches taken by the Member States in data reporting on criminal justice indicators. For example, one reported prosecution or conviction could either mean that one single individual has been prosecuted or convicted, or that there was one case (but it may have involved more than one individual).

Areas hindering the full effectiveness of the Directive in relation to investigations, prosecutions and convictions

(i) Law enforcement authorities and prosecutors require specific skills to build effective cases against traffickers

Law enforcement authorities and prosecutors face difficulties in building successful cases on trafficking offences within the time limits and available resources 110 . Investigations of trafficking offences are often lengthy and require specialised capacity and resources. The testimony provided by victims often constitutes the central piece of evidence and, if not supported with additional evidence, it may lead to an acquittal or a conviction for other offences 111 . Further challenges concern the movement of victims, who may be no longer present in the territory of the state where the proceedings have been initiated.

Trafficking cases often involve criminal organisations that rapidly move across borders together with the victims. Cross-border cases may face delays related to law enforcement and judicial cooperation between different Member States or with non-EU countries. The insufficient understanding or specialisation on trafficking may also lead to unsuccessful investigations or prosecutions 112 . Therefore, the EU Strategy called on Member States to establish law enforcement and prosecution units specialised in trafficking. Moreover, the Commission is facilitating, together with Eurojust, the creation of a Focus Group of specialised prosecutors against trafficking in human beings.

(ii) Further resources and knowledge are required to conduct financial investigations

The EU legal and policy framework sets out a follow the money approach, including by conducting proactive financial investigations, including asset-tracing. Article 9(4) of the Directive requires Member States to take the necessary measures to ensure that effective investigative tools, such as those used in organised crime or other serious crime cases, are available for investigations and prosecutions of cases involving trafficking offences. Financial investigations are one of the most important tools in this regard. Tracing the financial flows allows to investigate the entire trafficking chain and gather evidence that could be produced in court and may help disrupting the actions of criminal networks. Most Member States conduct financial investigations in parallel or as part of trafficking cases. However, despite the importance of financial investigations in trafficking cases, the relevant authorities may lack capacity or expertise to conduct them.

(iii) The collection of evidence (other than victim testimony) is currently insufficient

Law enforcement authorities and prosecutors could better rely on sources of evidence other than victim testimony, such as financial investigations, surveillance and digital evidence. Labour inspectors could have a greater role in gathering evidence 113 , as they are often mandated and trained to contribute to criminal investigations 114 .

(iv) Member States could rely more on the support of Europol and Eurojust

Recital 5 of the Directive refers to the enhanced cooperation between Member States and Europol and Eurojust, which should facilitate coordinated cross-border investigations and prosecutions. It is advisable to involve Europol at the very beginning of THB investigations, especially in cases with suspects and victims are originating from outside the EU (e.g. Latin America and Western Balkans). Another significant aspect of cross border cooperation is also proven by the high dynamics of Europol supported operations resulting in an increasing number of action days with deployed Europol staff for support and the growing interest for collaboration under the Operational Task Force umbrella as the highest form of collaboration in the international investigations 115 . Furthermore, the number of trafficking cases registered at Eurojust has increased, with 107 cases in 2013 and 163 in 2020, for an increase of over 30% 116 . However, the number of investigations coordinated by Eurojust and of Joint Investigation Teams remains low in comparison with the statistics on registered victims and cases at the EU level. The number decreased from 183 in 2019, to 163 in 2020 to 140 in 2021 117 . It is important to note that many trafficking cases involve only two Member States, while the threshold to involve Eurojust is three countries 118 . Nevertheless, there is scope for Member States to rely more on the support of Eurojust, including on Joint Actions, Joint Investigation Teams and other cooperation tools 119 .

    Seizure and confiscation of instrumentalities and proceeds from trafficking offences

Article 7 of the Directive requires Member States to take necessary measures to ensure that their competent authorities are entitled to seize and confiscate instrumentalities of, and proceeds from, trafficking offences. Five Member States 120 have specific provisions on seizure and confiscation of proceeds related to trafficking offences. In the other Member States, national criminal laws on seizure and confiscation apply to all crimes, including trafficking offences.

Areas hindering the full effectiveness of the Directive in relation to seizure and confiscation

There is no available data on the number of seizures and confiscations for the 2013-2020 period. In 2021, the European Parliament called on Member States to strengthen their mechanisms for seizing and confiscating assets and proceeds of trafficking offences 121 . While in 2020, the Commission reported 122 that Member States increased efforts to seize proceeds and instrumentalities, it also underlined that there is scope to increase the use of confiscation measures in light of the estimated continuous rise of profits from trafficking offences 123 . The survey to the study also confirmed this, as 51% of respondents underlined that the Directive contributed only to a small extent, or not at all, to an increased number of confiscations 124 .

    Penalties

According to Article 4(1), the Member States are required to set a maximum penalty of at least five years of imprisonment, which can be raised to at least 10 years under certain aggravating circumstances, such as when the offence was committed against a victim who was particularly vulnerable, which includes at least child victims or when it was committed within the framework of a criminal organisation within the meaning of Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime 125 . Harmonising penalties across Member States ensures that the consequences for trafficking offences are equal or similar all over the EU 126 .

Article 4 has been largely transposed, although some Member States have not included all aggravating circumstances in their national law 127 . Survey respondents considered that the penalties included therein are dissuasive, effective and proportionate. The Directive has resulted in changes in the national laws on penalties for trafficking offences. For example, the implementation of the Directive led Austria, Hungary and Spain to increase their penalties, and Belgium, Croatia, France, Latvia, Portugal and Slovenia have included more conducts into the trafficking offences. 128

Areas hindering the full effectiveness of the Directive in relation to penalties

(i) There is little available data on what penalties are handed out in practice

Data on the numbers of penalties for trafficking offences is not systematically reported in the Member States.

Figure 3: Examples of sentences imposed for trafficking in Member States 129

(ii) The low number of convictions prevents to assess the effectiveness of penalties

The low number of convictions is due to several factors, including that traffickers may be convicted for crimes that are easier to prove in court, e.g. labour law offences, aggravated pimping, smuggling of migrants, infringements of social security requirements. This does not allow to properly assess the effectiveness of penalties. In practice, it also means that the high penalties for trafficking offences fail to express their full deterring potential, as traffickers are more likely to be convicted for offences carrying lower penalties. In view of this analysis, rather than increasing the severity of penalties, more emphasis could be placed on increasing the detection, prosecution and conviction rates 130 .

Further, from Eurojust’s experience, penalties applied in some Member States are sometimes lowered substantially by the mitigating circumstance of the lack of criminal record of the convicted person. Consideration could be given to address this situation, especially when the convicted person is part of an organised criminal group that committed the trafficking offence, making the criminal conduct particularly serious 131 .

    Sanctions against legal persons

Member States are required by Article 5 of the Directive to ensure that legal persons be liable for trafficking offences. Article 6 requires Member States to implement effective, proportionate and dissuasive sanctions against legal persons, which shall include criminal or non-criminal fines. Article 6 also includes five optional sanctions which Member States can consider implementing, but are not required to: (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.

Article 5 has been fully transposed to the extent the transposition is mandatory and the legislation of all Member States provides for at least administrative fines or criminal sanctions for legal persons involved in trafficking offences, in accordance with the minimum requirements of the Directive. Most Member States have transposed at least one of the optional sanctions included in Article 6 132 . Respondents to the public consultation were divided whether the Directive contributed for holding legal persons liable for THB. While the majority from public authorities found that the Directive contributed to it at least to moderate extent, civil society organisations assessed the contribution little and the trade union respondent as non-existent.

Areas hindering the full effectiveness of the Directive in relation to sanctions on legal persons

(i) No data is available on prosecutions and convictions of legal persons

There is no available data on prosecutions and convictions of legal persons for trafficking offences. Although the Commission guidelines on the biannual data collection include the provision of data on investigations 133 , prosecutions and convictions of legal persons, no such data has been reported by Member States.

(ii) The Directive has not resulted in greater action against legal persons

Labour exploitation is the second most prevalent purpose of trafficking, and affects 20% of victims registered in the EU. It mainly concerns male victims, but female victims are increasingly affected. Labour exploitation often takes place in businesses requiring low-wage, intensive and seasonal work, such as forestry, food processing, hospitality, retail, carwash, beauty and cleaning services, transportation, housekeeping, domestic work 134 . Consulted stakeholders consider that trafficking in high-risk sectors is problematic to a large or very large extent in the EU. This requires adequate action against legal persons that are used to commit trafficking offences. Although no official data is available on the number of prosecutions and convictions of legal persons, consulted stakeholders reported that these are extremely rare 135 and 60% of survey respondents thought that the Directive has contributed to a moderate or small extent to holding legal persons liable 136 . The non- or partial transposition of the optional sanctions of the Directive against legal persons hinder the effective criminal accountability of legal persons.

4.1.1.5 Protection, assistance and support to victims

    Early identification 

Article 11 of the Directive includes a range of measures to ensure assistance and support to victims. Recitals 17 to 22 provide further detail on the assistance and support that Member States should provide to victims of trafficking. Most Member States have transposed the provisions included in Article 11 and have national measures to provide assistance and support.

The Directive has contributed to increase the range of services available in Member States for victims of trafficking. The Commission’s Transposition report (2016) highlighted that Member States have taken measures for the early identification, assistance, support and protection of victims of trafficking. Consulted stakeholders also considered that the Directive contributed towards enhancing access to support and protection, especially for women and girls victims of trafficking 137 . However, the survey highlighted that the contribution of the Directive to the protection of victims of trafficking for the purpose of labour exploitation had been more limited, as compared to other groups of victims. Member States have put in place services for victims, including access to shelter, provision of medical care and psychological assistance, as well as setting-up of helplines providing relevant information to victims.

Procedures for the identification of victims are in place in most Member States, and are applied by law enforcement authorities or in a multi-stakeholder approach. Having multiple authorities responsible for the early identification of presumed victims may hinder coordination, but it also reduces the chances that victim remains unnoticed.

EU Agencies have taken steps to support the early identification of victims. CEPOL, EUAA and Frontex have developed training and handbooks to guide professionals from the Member State to better identify victims. Frontex officers are themselves trained to identify victims.

Areas hindering the full effectiveness of the Directive in relation to early identification of, and support to, victims of trafficking

(i) Early identification of victims is insufficient

138 139 Early identification of victims is considered as a priority issue, as it triggers the provision of assistance and support services. In this sense, insufficient or late identification hinders the effective implementation of the Directive. Member States face challenges in the identification of potential victims, mainly because:

·Victims may be unwilling to report trafficking offences to law enforcement authorities, as they may fear that it may lead to disclose irregularities and put them at risk of prosecution or return 140 . 

·Only certain authorities are competent for the formal identification of victims. GRETA notes that there is a series of stakeholders who can identify victims of trafficking, not only the specialised investigation units dealing with THB offences but also migration and asylum officials, labour inspectors, social workers, health-care staff and NGOs.” 141

·The lack of harmonised indicators for the identification of (presumed) victims may lead to fragmented detection procedures and case management.

(ii) Not all Member States have a National Referral Mechanism, and the structure of National Referral Mechanisms varies across Member States

National Referral Mechanism are cooperative frameworks, involving relevant authorities and civil society organisations, aimed at identifying, assisting and supporting victims of trafficking 142 . The Directive does not require Member States to create referral mechanisms. 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.” All Member States except Germany have developed such cooperation mechanisms 143 . However, structures, procedures and other arrangement vary widely across the Member States.

In some Member States, mechanisms for the identification of, and support to, victims are not regulated and remain informal 144 . In most Member States, a central authority holds the responsibility for identification and may take the form of a specialised body (Bulgaria, Italy) or a of specialised law enforcement unit (Cyprus, Luxembourg). Numerous consulted stakeholders consider that Member States should establish easily accessible National Referral Mechanisms 145 . 

Moreover, the recent increase in the percentage of registered victim citizens of non-EU countries shows how relevant cross-border and international cooperation are, as slow or insufficient coordination may cause difficulties for the receiving organisation 146 . The lack of coordination can cause difficulties for the receiving organisations to prepare properly to support a victim.

(iii) Lack of a European Referral Mechanism

The absence of harmonised procedures at European level hampers the effectiveness of cross-border identification and referral of victims. Although Member States engage in bilateral and multilateral forms of cooperation, clearer cooperation between the national authorities of Member States would facilitate assistance to victims and their reintegration in society. The EU Strategy 2021-2025 sets out as a key action that the Commission will enhance cooperation towards a European referral mechanism.

(iv) The services provided in Member States may have limited scope, capacity or be insufficiently targeted to the needs of victims

Although Member States have transposed Article 11 almost fully, gaps remain in the availability of services. Member States implement assistance and protection measures rather differently, for example in decisions (i) on whether to provide assistance to victims; (ii) on the period during which assistance has to be provided; and (iii) on the groups to whom assistance has to be provided 147 . Furthermore, not all Member States provide sufficient access to specialist accommodation or psychological counselling 148 . 

Factors affecting victims’ willingness to seek help include the provision of services in a language they understand, their fear of reprisals from traffickers and the availability of services for their family members 149 . Respondents to the online survey highlighted that it is necessary to enhance Member States’ capacity to provide protection measures tailored to the specific needs of vulnerable groups (women, especially when pregnant; children; people with disabilities or addictions, etc.) 150 . In addition, there is a need to improve services for long-term recovery and rehabilitation.

On 28 June 2022, the Commission adopted its evaluation of the Victims’ Rights Directive 151  that identified shortcomings, related to victims’ access to information, justice, support and protection. The evaluation is one of the Commission’s key actions set out in the EU Strategy on Victims’ Rights (2020 – 2025) 152 . The Commission continues to work on strengthening victims’ rights. It is currently preparing an impact assessment of the Victims’ Rights Directive and plans to propose a revision of the Directive in 2023.

(v) Data concerning the number of persons provided with assistance support is not consistently reported

Member States are not required to report on the number of victims receiving assistance. Some Member States report to the Commission these figures for the purposes of the progress reports but data is not collected systematically therefore data provided by Member States is not comparable.

    Gender-sensitive approach to assistance and support

Considering that 75% of the victims of trafficking identified in the EU are women and girls, EU strategic documents have taken the gender dimension into particular account. The Directive recognises the gender-specific phenomenon of trafficking and that female and male victims are often trafficked for different purposes. It also requires Member States to provide gender-specific assistance and support measures, where appropriate.

153 154 Member States have introduced specific measures that provide tailored gender-sensitive support, including increased awareness-raising of healthcare staff to identify and support women and girl victims of trafficking for sexual exploitation; training and guidance on gender-based violence for immigration authorities; and assistance procedures especially addressing women and children in the hotspots. Member States have introduced gender-sensitive legislation and policy, notably as a result of the implementation of the Directive. 

    Child victims’ access to protection, assistance and support 

The scale of child trafficking remains “an overwhelming concern” 155 . In 2013-2020, child victims constituted over a fifth of all registered victims of trafficking in the EU27 (21%).

The Directive includes specific measures focusing specifically on ensuring child victims’ access to assistance, support, and protection. These include general protection measures (Articles 13 and 14), protection measures during criminal investigations and proceedings (Article 15), and measures for unaccompanied minors (Article 16). Although Member States have transposed and implemented the provisions related to child protection to different extents, the stakeholders consider that the Directive has contributed to enhancing child victims’ access to assistance and support.

Areas hindering the full effectiveness of the Directive in relation to child victims’ rights to assistance, support and protection

(i) Insufficient identification of child victims hinders the provision of assistance

While Member States have made progress, there is scope to improve practical support to child victims on the ground. All European Commission Progress Reports raise concerns about child-specific measures for prevention, identification, and assistance, although they reported new actions on identification, guardianship and accommodation taken in some Member States 156 . Concerns include:

oThe disappearance of child victims, from shelters and care/foster homes 157 . 

oThe lack of access to psychologists for children are sometimes placed in child protection institutions.

oThe non-application of the presumption of childhood set out in Article 13(2).

oGuardianship, which according to Article 14(2) should start “from the moment the child is identified by the authorities”, is sometimes only appointed after the child victim has requested asylum.

(ii) Limited number and capacity of shelters for children

Another identified area for improvement concerns specialised shelters for child victims of trafficking 158 . Shelters should have specialised trained staff, a confidential address and security measures, both physical and in terms of access to internet 159 . Separation between trafficked women and their children into different assistance facilities should be avoided, in order to avoid further traumatisation 160 . The Commission Communication on the protection of children in migration calls for improved specialised services for refugee girls, some of whom may be victims of trafficking 161 . Placing children in institutions instead of foster families may increase the risk of being re-trafficked 162 .

    Assistance, support and protection of victims with special needs

Article 11(7) of the Directive requires that Member States “attend to victims with special needs, where those needs derive, in particular from […] their health, a disability, a mental or psychological disorder they have, or a serious form of psychological, physical or sexual violence they have suffered’. The other provisions in Article 11 encompass necessary assistance and support for victims of trafficking. The Directive, however, does not require explicitly Member States to ensure the accessibility (i.e. including braille, sign languages and easy-to-read) of prevention material or the physical accessibility of shelters. 163 The available data shows that the number of trafficked victims with disabilities is rising. Trends include trafficking of persons with physical or visual impairments for the purpose of forced begging, as visible disabilities have a stronger impact on public sympathy 164 . 

Since the adoption of the Directive, there have been important improvements in creating national measures providing assistance to victims with special needs related to sexual or domestic violence 165 . It remains, however, a challenge to provide suitable care for victims, who are also suffering in some sort of addiction (alcohol or drugs), which is often the case.

Areas hindering the full effectiveness of the Directive in relation to assistance, support and protection of victims with special needs

(i) Limited attention to, or understanding of, the needs of victims with disabilities

While the Directive increased attention on assistance, support and protection of victims with special needs, there are still gaps in the tailored attention to their specific needs. In 2021, the European Parliament reported that the needs of victims with disabilities are often overlooked, calling on Member States to provide them with appropriate support 166 . There are currently important gaps in the data collection on the number of victims with disabilities. This does not allow to gather information disaggregated by gender, age and disability, which would be important to allow Member States and other stakeholders to adopt age- and disability-appropriate protection and support measures 167 .

    Other vulnerable groups, including LGBTIQ and Roma victims of trafficking

LGBTIQ people are a particularly vulnerable to trafficking. Research suggests that they are particularly at risk when they work in the sector of prostitution, where they may find themselves in precarious and dangerous contexts 168 . However, there is no official data on the number of LGBTIQ victims of trafficking in the EU.

The Commission Progress Reports highlighted that Roma people are at particular risk of becoming victims of trafficking 169 . Their vulnerability is due to structural ethnic and gender discrimination, poverty, social exclusion, lack of access to education and employment and domestic violence 170 . Despite the lack of official data about trafficking of Roma people, one study from 2011 171 conducted in Bulgaria, Czech Republic, Hungary, Romania and Slovakia indicates that trafficking in persons affects Roma disproportionately. A 2016 Europol report identified the particular vulnerability of Roma communities, especially in related to trafficking for forced criminality or sham marriages. 172 The Directive strengthened the awareness of the specific needs of these groups leading to targeted prevention activities, in particular education and awareness raising programs in certain Member States 173 .

Areas hindering the effectiveness of the Directive in relation assistance, support and protection to vulnerable groups, including LGBTIQ and Roma people

There have been calls, including by the European Parliament 174 , for increased EU-level action to address the particular needs and situations of vulnerable categories of people, including LGBTIQ and Roma people. The third European Commission progress report suggests there have been limited efforts to address the particular vulnerabilities of Roma victims 175 . The European Parliament also called for increasing the provision of specific tailored services 176 (which was included in the EU Strategy on Combatting Trafficking in Human Beings 2021-2025). Similarly, interviewees stated that more could be done to support victims whose experiences do not correspond to the common perceptions of trafficking victims 177 .  

4.1.1.6     Protection, assistance and support to victims involved in the criminal justice system 

   Protection of victims of trafficking in human beings in criminal investigation and proceedings

Article 12 of the Directive obliges Member States to protect victims in criminal proceedings. Under Article 12(3), victims receive the appropriate protection on the basis of an individual risk assessment, which includes access to witness protection programmes or other similar measures. 

Article 12(4) of the Directive also requires Member States to protect victims of trafficking from secondary victimisation and further trauma during the criminal investigations and proceedings. Member States are active in training of professionals and building specialist facilities (such as interrogation rooms), and that it is common for the statements of victims of trafficking to be recorded in advance (and later played in court) to avoid personal attendance at court. Some Member States have adopted the holistic “Barnahus” model for supporting child victims 178 .

Areas hindering the effectiveness of the Directive with regard to the protection of victims of trafficking in human beings in criminal investigation and proceedings

(i)Witness protection programmes appear to be used infrequently for victims of trafficking

While all Member States have transposed Article 12(3), witness protection does not appear to be widely used for trafficking victims, although there is very limited information available. Witness protection programmes may not always be recommended for trafficking victims, as they often disconnect victims from dependents and support systems 179 . 

(ii) Inconsistent application of measures to prevent contact with the defendant and unnecessary questioning

Secondary victimisation was raised as a major concern by several stakeholders 180 . Desk research showed that protocols and guidelines to prevent victims repeating their experiences were ‘not consistently found’ across the Member States 181 . This is also true of protection for child victims 182 . Examples of violations of Article 12(4) of the Directive were reported to GRETA, including cases of victims experiencing “visual contact with the accused, testimonies in open court and unnecessary questioning into [...] private life” 183 . 

4.1.1.7 Victim compensation and non-prosecution

Access to compensation

Article 17 of the Directive requires Member States to ensure that victims of THB have access to existing schemes of compensation to victims of violent crimes of intent.

All but two Member States have fully transposed Article 17 of the Directive 184 . Such measures include compensation for non-material damages, such as physical and psychological suffering 185 dual system of compensation, 186 fund for victims of violent crimes 187 or other special compensation measures 188 .

The Directive has made an important contribution to increasing access to compensation with almost 80% of survey respondents reporting that the Directive had contributed to increased access to compensation. This is supported by the Commission second progress report which found that, as a result of the Directive (in combination with the Residence Permits, Victims’ Rights and Compensation Directive), significant legislative and policy developments enabling victims to access and exercise their rights to assistance, including compensation, had been enacted 189 . 

Areas hindering the effectiveness of the Directive with regard to the access to compensation by the victim

(i) The award of compensation is rare and often hindered by administrative obstacles, lack of legal aid and the duration of criminal trials

While no data is available on the number of claims that were made or that were successful, or the amount of compensation awarded to victims, stakeholders underlined that in practice, compensation is rare 190 . Most stakeholders reported that compensation schemes in their Member States had been effective to a ‘small’ or ‘moderate’ extent. While some Member States reported an increase in funding for state compensation (e.g. IT), GRETA stated that the majority of Member States needed to improve existing legislation on both state compensation and compensation from perpetrators 191 .

Compensation is often awarded at the end of the criminal proceedings, which can last for years. The COVID-19 pandemic has worsened the situation, with delayed court hearings, longer police investigations, etc. 192 . The awarding of compensation can also be linked to victims’ capacity to prove their status as victim of trafficking, which can prove particularly difficult when there is no court case against the trafficker 193 . Moreover, victims often face administrative obstacles 194   and are not always provided with free legal aid in order to make their claim, which makes the process more challenging 195 .

(ii) Victims may have returned to their country of origin, or may have irregular migration status

It is particularly difficult for victims who have returned to their country of origin before a decision is taken on their compensation claim, 196  or for undocumented migrants 197  to receive compensation.

    Non-prosecution of victims for their involvement in criminal activities

Article 8 of the Directive requires Member States to ensure that competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking for their involvement in criminal activities which they have been compelled to commit as a result of being trafficked.

All Member States but one have transposed Article 8 into national law 198 . Around half of Member States explicitly refer to non-prosecution of THB victims in their national law 199 , while others refer to the non-prosecution of a person who was compelled, threatened or coerced to commit a criminal act 200 . Victims can be forced by their traffickers to engage in illegal conducts such as forced prostitution, in drug production or trafficking, petty crime, possession or the use of fraudulent documents or entering another country in a manner that does not comply with its immigration laws 201 .

The language of the Directive allows for a certain degree of discretion, as it only requires national authorities to be entitled not to prosecute or impose penalties on a person who was compelled to engage in criminal activities.

Areas hindering the effectiveness of the Directive with regard to the non-prosecution of victims

Even though national authorities are entitled not to prosecute and punish victims for their engagement in forced criminal activities, this is not consistently applied in practice, and approaches differ across Member States.

The Commission’s progress reports highlighted that Member States did not provide sufficient information on the application of the non-prosecution and non-punishment principles and that victims of trafficking for sexual exploitation and forced criminal activities were at high risk of being punished. This was also underlined as a particular issue in many Member States by several consulted stakeholders 202 . GRETA notably reported on victims who have been arrested for their involvement in drug-related crimes 203 . 

Civil society organisations stressed that there is a lack of clarity about the interpretation of the provisions on the non-prosecution and non-punishment of victims by legal professionals. Judges and prosecutors are also not necessarily aware of the relevant legislation in force in the Member State. Moreover, such provisions often tend to be interpreted in a restrictive way (e.g. the principle of non-prosecution does not apply to serious offences or coercion is defined in a strict way, which focuses on the use and threat of force) 204 . GRETA expressed concerns regarding the punishment of child victims of trafficking in some Member States 205 . 

Some stakeholders have raised the fact that Article 8 of the Directive could be reinforced in order to provide for an obligation on Member States not to prosecute and punish victims of trafficking for their involvement in criminal activities as a result of being trafficked 206 . 

4.1.1.8 Conclusions on effectiveness of the Directive

Several reasons lead to conclude that the Directive fulfilled its general objectives 207 and it can be considered as overall effective. Firstly, it has significantly contributed to setting up an institutional and organisational framework at the EU and Member States level, which addresses trafficking in human beings not just as a serious crime, but as a complex socio-economic phenomenon. The comprehensive, multi-disciplinary and multi-agency approach enshrined in the Directive has led to the development of National Action Plans and Strategies with actions aimed at achieving the objectives of the Directive (preventing and combatting trafficking in human beings, as well as protecting, supporting and assisting the victims of this crime). In concrete terms, this enabled Member States to detect offences committed in the EU, to have a common approach on prevention (which is not solely based on criminal law) and to have an adequate framework ensuring that victims enjoy a wide set of rights and have access to appropriate services. Secondly, the Directive also effectively contributed to the harmonisation of minimum rules of criminal law, and of protection, assistance and support to victims. In concrete terms, this increased cooperation among Member States in cross-border cases, both in terms of law enforcement and judicial cooperation, and in terms of assistance of victims that were exploited in different Member States or that left the country in which they were exploited. The Directive provided an appropriate legal framework for the EU Agencies to coordinate such cooperation and for the competent authorities of the Member States to have a harmonised rules and practices. In addition, the Directive incorporates the definition and the key provisions of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children. This allows to have a common understanding and contributes to cooperation in cross-border cases with non-EU countries.

The evaluation has identified, however, a number of gaps either inherent in the provisions of the Directive or stemming from the transposition and implementation where improvements are necessary, which impede the attainment of the specific objectives, in particular gapes and inconsistencies were identified in applying the definition of trafficking and exploitation; the investigation and prosecution of the crime is hampered by lacking capacities of investigations and training; prevention cannot fully work due to the low criminal accountability of the private sector and the persisting demand for cheap labour and sexual services; and the assistance and support of the victims remain limited mainly due to the lack of sufficient infrastructure and expertise as well as the reduced access for the victims to compensation.

4.1.2 Efficiency

Overall, stakeholders confirmed the cost-effectiveness of the Directive, despite some variations between the categories of stakeholders. 17% of the civil society organisations consulted as part of the survey pointed to a substantial increase in costs, not always proportionate with the achieved benefits, whereas only 7% of National Rapporteurs and Equivalent Mechanisms were of the same opinion. Several National Rapporteurs and Equivalent Mechanisms 208  considered that implementation costs had not increased due to the fact that some of the measures provided for in the Directive were already in place before its adoption (e.g. establishment of a National Rapporteur or Equivalent Mechanism 209 , as well as assistance and protection services for THB victims 210 ).

69% of the respondents to the public consultation, regardless of their affiliation, stated that the implementation of the Directive had not caused any unnecessary administrative burden, thus confirming its cost-effectiveness. In addition, according to 27% of the online survey respondents the benefits brought by the Directive do not outweigh its costs, while 25% confirmed that benefits of the Directive are beyond its costs (44% did not express any opinion).

It should also be noted that the initial proposal for the Directive did not contain a financial statement as the Directive was deemed not to impact the Union’s budget.

4.1.2.1 Cost of trafficking in human beings

Trafficking in human beings generates very high proceeds. The estimated global annual profit of organised criminal groups for trafficking in human beings amounted to EUR 29.4 billion 211 . In the EU, in one single year criminal revenues of trafficking for sexual exploitation are estimated at about EUR 14 billion 212 . In addition, organised crime groups specialised in trafficking increasingly exploit legal businesses in their operations, such as hotels, nightclubs and massage parlours 213 . 

The Commission’s 2020 Study on the economic, social and human costs of trafficking in human beings 214 showed that, in 2016, the total cost of trafficking in human beings amounted to EUR 2,7 billion for the EU27 and EUR 337 462 per victim. The costs associated with THB are mainly linked to: (i) the use of assistance and support services by victims (42% of the total costs) (i.e. coordination and prevention activities; provision of specialised services, law enforcement activities, health services and social protection); (ii) the lost economic output (18%) due to the fact that the victims is not participating in the legal economy while in trafficking; and (iii) the lost quality of life for the victim (40%), who may have been subject to physical, sexual and metal injuries as part of the trafficking. For the whole EU, most of the costs related to the use of services relate to law enforcement (EUR 105 827), followed by health services and social protection (EUR 21 785), specialised services (EUR 11 355) and coordination and prevention (EUR 2 949).

The costs of trafficking in human beings can only be calculated on the basis of the number of victims officially registered in the EU. As part of the Commission’s study, the costs of THB have been computed per victim, and then multiplied by the total number of victims officially registered in the EU in a given year. However, the actual number of victims is likely to be significantly higher than the number officially reported. Accordingly, the overall costs of THB are likely to be underestimated. Moreover, the estimates include the victims registered in one year, but the costs associated to victims extends beyond that one year of registration.

The detection of the crime leads to the identification of the victims and then to their referral to protection, assistance and support services. The law enforcement and specialised services costs are related only to detected offences and identified victims. In this sense, underreporting does not cause additional costs, taken especially into account that traffickers are prosecuted for other offences, such as forced prostitution, migrant smuggling, social security or tax offences. In such cases, the related law enforcement and specialised services costs are considered under these crime areas, rather than under trafficking in human beings.

On the other hand, trafficking in human beings has a higher, though more indirect, societal cost, including the lost economic output and the lost quality of life of the victims. In this sense, the costs are underestimated. An adequate estimation of such costs would have to be based on the number of undetected crimes and unidentified victims, a factor that is difficult to calculate.

Sexual exploitation is associated with higher costs with respect to the other forms of exploitation. In 2016, the costs per victim were EUR 364 474 for sexual exploitation, EUR 232 932 for labour exploitation and EUR 325 405 for other forms of exploitation. This is driven by larger costs associated with sexual exploitation, which are linked to greater utilisation of health services and social protection, greater lost economic output and greater lost quality of life, notably due to the perpetration of sexual violence. Larger costs are associated to female victims of trafficking (EUR 353 027 per victim) than to male victims (EUR 286 769 per victim), as women and girls are disproportionately affected by sexual exploitation.

There are higher costs for child victims (EUR 460 391 per victim) as compared to adult victims (EUR 306 373 per victim), due to a larger use of specialised health and educational services.

Organised criminal groups involved in trafficking in human beings often infiltrate into the legal economy by using legal persons for labour exploitation purposes. In this context, labour exploitation is intertwined with various forms of tax and social benefit fraud or evasion, and traffickers use grey-area economic practices or violate labour and other administrative rules. In case of labour exploitation revenues are often covered by the use of intermediary companies or job agencies and long supply chains, in particular cascade subcontracting. Therefore, it is even more difficult to differentiate legal and illegal economies and provide a cost estimates of labour exploitation. 215

Labour exploitation has multiple severe impacts on the economy: (i) it generates limited investment in the human capital of a country as it is often associated with labour-intense production requiring low-skilled workers. An economy running on labour exploitation is expected to stagnate; (ii) companies that use labour exploitation save a lot of money on wages thus lowering their production costs; (iii) similarly, companies reduce their costs by failing to provide social contribution, severance pay, and other benefits often afforded to salaried workers; and (iv) governments are not able to collect tax revenues from the income that paid labour would receive. In addition, considering that labour exploitation is illegal, the corruption that goes hand in hand with it frequently incurs considerable costs to the state, for example through tax avoidance and corrupt public contracting. Hence, labour exploitation constitutes a barrier to competition, investment, and technological changes causing the economy to run at sub-optimal productivity levels. 216  In the EU there is no estimates of the economic loss as a consequence of labour exploitation. ILO, however, estimated in 2012 the annual profit of labour exploitation in the EU and developed economies to 20,5 billion USD 217 , which was not channelized back to the legal economy or to the state. The profit achieved on each victim may amount to 34 800 USD.

4.1.2.2 Costs related to the specific objectives of the Directive

a. Investigation and prosecution

No significant change was noted during the evaluation period with respect to the costs associated to law enforcement and judicial activities, following the adoption of the Directive. The highest increase in financial and human resources relates to the training of officials as a result of Article 9 of the Directive, which requires Member States to ensure that persons, units or services responsible for investigating or prosecuting trafficking offences are trained accordingly.

b. Assistance, support and protection of THB victims

Almost all Member States have adopted or reinforced existing assistance and protection programmes for victims of trafficking covering a wide range of measures (e.g. psychological, health, social assistance, etc.), in compliance with Article 11 of the Directive.

Figure 2 Examples of national expenditure for assistance and protection of VoT 218

Pursuant to Article 17, some Member States set up specific funds for the compensation of victims of trafficking 219 . The total amount of compensation granted to victims of THB varies across countries 220 . In addition, Member States’ approaches vary as regards the mechanisms that are in place at the national level to ensure the compensation of victims. For instance, in some Member States confiscated criminal assets are used to compensate victims 221 and fines imposed on traffickers contribute to the national compensation fund 222 . 

Although the Member States allocated national budget when it comes to the assistance and support to victims, most stakeholders highlighted that available resources have not substantially increased as a result of the adoption and subsequent implementation of the Directive.

With respect to protection measures, law enforcement authorities reported the highest increase in resources allocated to the protection of victims and underlined that most of these resources are needed to perform individual risk assessments, pursuant to Article 12(3) of the Directive. NREM reported slightly lower costs in relation to victim’s protection. Other categories (i.e. national competent authorities, judicial authorities and civil society organisations) reported the smallest increase in costs. 

c.    Prevention 

The largest reported increase over time in resources dedicated to the prevention of trafficking in human beings at the national level concerned training and awareness-raising campaigns. This increase may result from the obligations entailed by Article 18 of the Directive, which requires Member States to promote regular trainings for officials likely to come into contact with victims or potential victims of trafficking (Art. 18(3)), as well as to take other appropriate preventive actions, such as information and awareness-raising campaigns, research and education programmes (Art. 18(2)).

Member States allocated national budget for the implementation of awareness-raising activities aimed at reducing the risk of people becoming victims of trafficking.

Some Member States allocated national resources to actions against trafficking in human beings as part of national anti-trafficking strategies, beyond what required by the Directive, including for instance the establishment of hotlines 223 .

a.Communication and information sharing with the European Commission for monitoring

Costs related to information sharing and communication with the Commission did not increase noticeably because of the information exchange required by Art. 19-20 of the Directive between the national authorities and the Commission. National Rapporteurs indicated a slightly higher increase in the costs associated to both data analysis and collection and information sharing, and regular communication with the Commission, with respect to the other stakeholder categories.

 Areas for improvement in relation to the efficiency

Overall, all Member States have allocated public budget to external stakeholders concerned with the implementation of Directive at the national level. In most Member States, external stakeholders include local authorities, civil society organisations and private agencies. Besides assistance and support to THB victims, external actors are responsible for the implementation of prevention programmes, including education and awareness raising. Nevertheless, a general decrease in government funding dedicated to the fight against THB has been noted in many Member States by civil society organisations 224 .

As pointed out by several stakeholders consulted throughout the evaluation, the limited availability of financial resources contributed to hindering Member States’ capacity to effectively prevent and fight against THB 225 . The limited budget can reflect in a decrease in the number of investigations and prosecutions of THB crimes that in turn, can increase the offender rate of impunity 226 . As regards prevention of THB, insufficient funds undermine the development of capacity building initiatives and the provision of adequate trainings of professionals likely to come into contact with THB victims 227 . Vast majority of survey respondents agreed that funding made available by Member States is not sufficient for the criminalisation, assistance and support, and prevention of THB. Insufficient funding by Member States emerged as a constraint to the implementation of the Directive 228 hence to achieve its specific goal, in particular in the areas of prevention and assistance to the victims.

In this context the re-use of confiscated proceeds of crime could be better considered. The so called “social re-use” of the confiscated proceeds of crime is covered by Article 10(3) of Directive 2014/42/EU 229 . This is a non-binding provision, which requires Member States to consider reusing confiscated property for the public interest or social purposes. 19 Member States adopted specific legislation on the use of confiscated property for public interest or social purposes. Trafficking in human beings is covered in the crime areas within the scope of Directive 2014/42/EU, so Member States are entitled to reuse confiscated proceeds for victim compensation and general victim support.

4.1.3 Coherence

The evaluation found that the Directive is overall coherent with other relevant EU and international instruments. Due to the comprehensive approach of the Anti-trafficking Directive regulating not only the criminalisation of the offence but also the protection of victims numerous EU legislation and international instruments had to be considered for the coherence review.

4.1.3.1 Coherence with EU legislation

Overall, the evaluation has demonstrated that each legislation is complementary with the Anti-trafficking Directive with special consideration of its own subject matter Some margin for better alignment between the Anti-trafficking Directive and other relevant EU initiatives could be considered, in particular with the Employers Sanction Directive (2009/52/EC) in relation to the sanctions against legal persons.

a.    Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims

Article 17 of the Anti-Trafficking Directive, which provides for the right of victims of trafficking in human beings to access compensation schemes, proved to be coherent with Directive 2004/80/EC on facilitating access to compensation for victims of violent intentional crime committed in other Member States or in their Member State of residence. 

b.    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

Some stakeholders 239  are of the view that Directive 2004/81/EC 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, is not fully coherent with the integrated, holistic human rights-based approach to the fight against trafficking adopted by the Anti-trafficking Directive. Directive 2004/81/EC defines “the conditions for granting residence permits of limited duration, linked to the length of the relevant national proceedings, to third-country nationals who cooperate in the fight against trafficking in human beings or against action to facilitate illegal immigration” (Article 1).

In accordance with Article 11(3) of the Anti-trafficking Directive, Member States have an obligation to ensure that assistance and support for a victim are not made conditional on the victim’s willingness to cooperate in the criminal proceedings, without prejudice to Directive 2004/81/EC. Third-country national victims who are irregularly staying in the EU should be granted unconditional assistance at least during the reflection period 240 . After the expiry of the reflection period, Recital 18 of Directive 2011/36/EU leaves it up to the Member State to decide whether to grant assistance and support to a victim of THB who is not legally residing on its territory. However, Article 4 of Directive 2004/81/EC allows Member States to adopt or maintain more favourable provisions for the persons covered by the Directive.

It should be noted that, in practice, most Member States grant residence rights to third-country nationals that are not conditional to their cooperation with national authorities 241 . The Commission will assess the implementation of the Residence Permit Directive, as set out in the Renewed EU action plan against migrant smuggling (2021-2025) 242 . The European Migration Network will support this assessment through an ad-hoc query.

c.    Directive 2009/52/EC providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals

No particular issue was identified in terms of coherence between Directive 2009/52/EC and the Anti-trafficking Directive, which criminalise different offences.

However, the coherence could be improved with respect to two aspects. Directive 2009/52/EC establishes as a criminal offence the “use of work or services exacted from an illegally staying third-country national with the knowledge that he or she is a victim of trafficking in human beings.” The Anti-trafficking Directive leaves Member States with discretion as to the criminalisation of the use of services exacted from victims of trafficking in human beings, regardless of their nationality or status (Article 18(4)).The two Directives could be made more coherent with respect to the sanctions against legal persons. Directive 2009/EC/52 provides for a range of penalties and measures against employers, including legal entities, who employ illegally staying third country nationals. More particularly, Article 7 of the Employers Sanctions Directive requires Member States to take the necessary measures to ensure that employers shall also, if appropriate, be subject to the exclusion from entitlement to some or all public benefits, aid or subsidies; and temporary or permanent closure of the establishments that have been used to commit the infringement. These two measures are among the other sanctions under Article 6 of the Anti-trafficking Directive that Member States may include as part of the effective, proportionate and dissuasive sanctions against legal persons, which committed trafficking offences. This means that Member States do not have an obligation to transpose these sanctions in their national law under the Anti-trafficking Directive.

d.    Directive 2011/93/EU on combating the sexual abuse and sexual exploitation of children and child pornography 

Directive 2011/93/EU establishes minimum rules concerning the definition of criminal offences and sanctions in the area of sexual abuse and sexual exploitation of children, child pornography and solicitation of children for sexual purposes. It also introduces provisions to strengthen the prevention of those crimes and the protection of the victims thereof. The Anti-trafficking Directive states in its Recital (7) that it should be fully complementary with Directive 2011/36/EU, as some victims of human trafficking have also been child victims of sexual abuse or sexual exploitation.

The link between the fight against sexual abuse and trafficking in human beings has been further confirmed by the 2019 Council Conclusions on combating the sexual abuse of children 243 and the EU Strategy for a more effective fight against child sexual abuse 244 , adopted in 2020.

Article 2(3) of the Anti-trafficking Directive criminalises the act of trafficking in human beings when it is committed for the purpose of “the exploitation of the prostitution of others or other forms of sexual exploitation”. Directive 2011/93/EU provides for a list of punishable intentional conducts that constitute an offence of sexual exploitation. For each of such punishable conducts, Directive 2011/93/EU establishes specific levels of penalties. Moreover, Directive 2011/93/EU provides for different levels of penalties based on the age of the child victim, i.e. depending on whether the age of the victim is below or above the age of sexual consent. On the contrary, the Anti-trafficking Directive does not make a distinction based on the age of the child. 245  Based on the EU Strategy on a more effective fight against child sexual abuse, Directive 2011/93/EU is being evaluated and a legislative proposal will recast the Directive by 2024. New priority actions will be proposed to ensure that this legislation continues to reach the goals that it sets out to achieve, and that it will be harmonised to existing and proposed legislation, including the Anti-trafficking Directive. 

Some consulted stakeholders further highlighted that the definition of sexual exploitation under the Anti-trafficking Directive could be aligned to the one included in Directive 2011/93/EU. In addition, some stakeholders pointed to the fact that trafficking for sexual exploitation does not only cover prostitution but also other forms, such as child pornography.

e.    Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime

The Anti-trafficking Directive is coherent with Directive 2012/29/EU that is the horizontal instrument, applicable to all victims of crime. The Anti-trafficking Directive addresses the specific needs of the particular categories of victims of trafficking in human beings. Victims of trafficking are nevertheless entitled to the measures provided under Directive 2012/29/EU.

On 28 June 2022, the Commission adopted its evaluation of the Victims’ Rights Directive. The evaluation is one of the Commission’s key actions set out in the EU Strategy on Victims’ Rights (2020 – 2025) 246 .

f.    Directive 2014/42/EU on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union and Regulation (EU) 2018/1805 on the mutual recognition of freezing orders and confiscation orders

The Anti-trafficking Directive is coherent with both Directive 2014/42/EU and Regulation EU 2018/1805. The former is aimed at enabling Member States to ensure seizure and confiscation of instrumentalities and proceeds deriving from a series of crime, including trafficking in human beings. Consistently, Directive 2011/36/EU provides that “Member States shall take the necessary measures to ensure that their competent authorities are entitled to seize and confiscate instrumentalities and proceeds” from trafficking in human beings offences (Article 7). At the same time, Directive 2014/42/EU, which was adopted after the Anti-trafficking Directive, goes further in detailing the rules for competent authorities to freeze and subsequently confiscate and manage the proceeds and instrumentalities of crime. This framework is to be reinforced in the future, upon the adoption of the Commission proposal for a Directive on asset recovery and confiscation 247 , which provides for a single instrument regulating the tracing, freezing, management and confiscation of proceeds of crime..

g.    EU Asylum Acquis 248

No major inconsistencies have been identified between the assistance measures included in the Anti-trafficking Directive and under the EU Asylum acquis. However, it is not explicitly mentioned which legislation shall prevail in the case of the application of protection measures which are contained both in the EU Asylum acquis and the Anti-trafficking Directive to victims of trafficking in human beings who benefit from international protection. For example, it is not clear under which circumstances a victim of trafficking can be transferred to the Member States of his/her first application for international or subsidiary protection. The same applies for the return of irregularly staying third-country nationals, who are also victims of trafficking.

Some stakeholders pointed out that the links between the Anti-trafficking Directive and the EU Asylum acquis could be expressed more explicitly 249 .

The definitions of unaccompanied minor and vulnerable persons under the Anti-Trafficking Directive are consistent with the EU Asylum acquis.

Overall, the Anti-trafficking Directive provides access to more assistance and protection measures as a minimum than the legal instruments under the EU Asylum acquis, notably Directive 2013/33/EU (e.g. material assistance, translation and interpretation and legal counselling).

a.Proposal of the European Commission for a Directive on corporate sustainability due diligence

The Proposal for a Directive on corporate sustainable due diligence is coherent and complementary with the Anti-trafficking Directive and once adopted, it will create essential preventive measures for large companies against labour and sexual exploitation and forced labour. The objective of the Proposal is fostering companies’ sustainability transition with regard to human rights, including combatting trafficking in human beings, and environmental risks and impacts, by improving relevant corporate governance practices. The Proposal also clarifies that in case of human rights or environmental harm in a company’s value chain, the company can be held liable under specific conditions.

b.Proposal of the European Commission for a Regulation on prohibiting products made with forced labour on the Union market

The Proposal for a Regulation on prohibiting products made with forced labour will complement the Anti-trafficking Directive by banning products from the Union market that are produced by forced labour. It is a product-focused legislation and it will not impede the competent authorities, including law enforcement, from taking actions within their competence against natural or legal persons, with regard to the alleged or confirmed human trafficking offence related to forced labour and labour exploitation.

4.1.3.2    Coherence with relevant international instruments

Overall, the vast majority of stakeholders consulted considered that the Directive was to a large extent consistent with the relevant international legislation.

a.    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 (UN Trafficking in Persons Protocol) and the 2005 Council of Europe Convention on Action against Trafficking in Human Beings

These two Conventions are the primary international legal standards addressing trafficking in human beings. According to Recital (9) of the Anti-trafficking Directive, these instruments are crucial steps in the process of enhancing international cooperation against trafficking in human beings.

The definition of trafficking in human beings under the UN Trafficking in Persons Protocol and the Council of Europe Convention is consistent with Article 2 of the Directive. The Directive expands the definition by including the “exchange of transfer of control over those persons” within the act of “harbouring or reception of persons”. Moreover, the Directive extends the minimum list of the punishable forms of exploitation with “forced begging” as an example of forced labour or services, and with the exploitation of criminal activities.

The Directive goes further than the UN Trafficking in Persons Protocol and the Council of Europe Convention by setting the maximum minimum sanctions for the offence of trafficking in human beings. However, the Directive and Council of Europe Convention contain the same provisions on the liability of legal persons and mandatory sanctions.

The assistance, support and protection measures provided by the Directive are consistent with the UN Trafficking in Persons Protocol, although the Directive generally goes further than the Protocol, for instance when it comes to the obligation to appoint a guardian or legal representative for a child victims of trafficking in human beings (Article 14(2)) or measures aimed at protecting victims of trafficking in human beings during criminal proceedings (Articles 12 and 15).

With respect to the Council of Europe Convention, provisions on assistance, support and protection are also overall coherent.

Article 14 of the Council of Europe Convention provides for an obligation on State Parties to issue a residence permit under three options: (a) the competent authority considers the stay of the victims necessary due to the victim’s personal situation; (b) the competent authority considers that the stay is necessary for the purpose of the victims’ cooperation with the competent authorities in investigation or criminal proceedings; (c) both options. The Anti-trafficking Directive clearly states that it does not deal with the conditions of the residence of the victims of trafficking in human beings in the territory of the Member States (Recital (17)). For the evaluation of the coherence of the Anti-trafficking Directive with Directive 2004/81/EC, see Section 4.3.1.2 of the evaluation.

b.    International Labour Organization’s Forced Labour Convention, 1930 (No. 29) and its 2014 Protocol

The International Labour Organization Convention’s Forced Labour Convention 1930 (No. 29) defines forced or compulsory labour as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily” (Article 2). Article 3 of the 2014 Protocol to the ILO Forced Labour Convention requires State parties to “take effective measures for the identification, release, protection, recovery and rehabilitation of all victims of forced or compulsory labour, as well as the provision of other forms of assistance and support”. The Directive also provides for early identification, assistance, support and protection measures for all victims of trafficking, including those trafficked for the purpose of forced labour and services.

c.    Other relevant international instruments

No issues of incoherence were found in relation to the 1989 United Nations Convention on the Rights of the Child (UNCRC); the 2006 UN Convention on the rights of persons with disabilities; and the 1979 UN Convention on the Elimination of Discrimination against Women (CEDAW), which are all relevant in the fight against trafficking in human beings.

4.2    How did the Anti-trafficking Directive make a difference?

The added value brought by the Directive was confirmed by most of the responses received to the public consultation, as well as by survey respondents 250 and by stakeholders’ feedback on the Inception Impact Assessment and the roadmap of the Directive. 

4.2.1 EU common minimum rules and standards against THB

The main added value of the Directive was its contribution to the creation of an EU common minimum ground 251 for all the three relevant dimensions of the fight against THB: (i) criminalisation, investigation and prosecution of offences, including related definition and sanctions; (ii) assistance, support and protection of victims; (iii) prevention of related offences. 

In addition, the establishment of common minimum rules contributed towards a higher harmonisation of national criminal laws 252 , which would have been difficult to be achieved by Member States acting alone. In turn, harmonised rules boosted Member States to take action against THB, which reflected in higher EU capacity to fight against this crime.

4.2.2 Cross-border cooperation

Harmonisation of relevant national legislation contributed to enhancing cross-border cooperation to combat trafficking in human beings, since cross-border cases are managed based on common rules. This is crucial considering the increasing cross-border dimension of trafficking 253 that requires EU-wide cooperation to identify and protect victims, as well as investigate, prosecute and convict traffickers who move across borders 254 .  

Better intra-EU cooperation reflected in the setting up of Joint Investigation Teams (JITs) Joint Action Days (JADs) 255 focused on investigation of trafficking in human beings cases.

4.2.3 Assistance, support and protection of THB victims

As part of the implementation of the Directive, Member States strengthened their assistance, support and protection services for victims, albeit issues remain in terms capacity to ensuring equal access to assistance services across Member States. 256  

4.2.4 EU Anti-trafficking Coordinator

The establishment of the EU Anti-Trafficking Coordinator (ATC) made a difference in relation to internal and external coordination. The EU ATC was for the first time included in the Stockholm programme 257 and then introduced in the Directive 258 . The establishment of the EU ATC recognises the need to ensure coordination across different policy areas and stakeholders. The EU ATC is based in the Commission and is in charge of “improving coordination and coherence among EU institutions, EU agencies, Member States and international actors, and for developing existing, and new EU policies to address Trafficking in Human Beings” 259 . In 2022, under the lead of the EU ATC, a Common Plan 260 was developed by the Commission, with Member States and EU agencies to protect people fleeing the war in Ukraine.

4.2.5        EU Network the National Rapporteurs and Equivalent Mechanisms (NREM) and the EU Civil Society Platform against trafficking in human beings

According to Article 19, National Rapporteurs (Article 19) are in charge of, inter alia, assessing trends in trafficking in human beings, and measuring results of anti-trafficking actions, including the gathering of statistics. Such information must be then transmitted to the EU ATC (Article 20). They contribute to the biannual progress reports on the basis of the abovementioned data and statistics, as foreseen by Article 20 of the EU Anti-trafficking Directive 261 . 

The EU Civil Society Platform against trafficking in human beings was launched in 2013 as a key action of the EU Strategy towards the Eradication of Trafficking in Human Beings 2012–2016 262 . It is composed of around 100 civil society organisations from the EU Member States and some non-EU countries, and aims at being a forum for civil society to engage at the EU level and exchange experiences to enhance coordination and cooperation amongst key actors 263 . 

The EU Strategy on Combatting Trafficking in Human Beings acknowledged that the Commission’s with the NREM and CSP has supported the implementation of the Directive. The two networks have also actively contributed to the Common Anti-Trafficking Plan related to Ukraine in 2022.

4.2.6 Monitoring and data collection

In line with Articles 19 and 20 of the Directive, which require Member States to gather and report statistics, since 2013, EUROSTAT, in collaboration with the NREMs, the Commission and the relevant national statistical authorities, carry out EU-wide data collection on THB. The Commission’s most recent publications on data related to THB are 2018 “Study on Data collection on trafficking in human beings in the EU” 264  and 2020 ‘Study on Data collection on trafficking in human beings in the EU 265 .

Persistent gaps in the data collection prevent capturing the full scale of trafficking in human beings in the EU and adequately monitoring the phenomenon. Despite significant progress, statistics are still not systematically collected by all Member States 266 . While all Member States reported data on victims for the latest reporting period (2019-2020), criminal justice data (investigations, prosecutions, convictions and or penalties imposed by national courts for trafficking offences) was still missing in eight Member States 267 . There are several reasons for this. Certain statistics are simply not available in some Member States. Other Member States only record statistics on persons who have been prosecuted or convicted, but not on suspects, or collect data on the number of proceedings rather than the number of prosecuted persons. More generally, gaps in the availability and quality of data can result from issues in the functioning of national registration systems and coordination between registering authorities and National Statistical Authorities, which report the data to EUROSTAT. Furthermore, the data collection is affected by widespread underreporting, which also hinders the detection of the crime as described above. The establishment of monitoring mechanisms to oversee the implementation of the Directive and the creation of an EU-wide data collection on THB were also confirmed as an important added value of the Directive by some stakeholders 268  and at national level, the Directive has boosted a series of initiatives that strengthened monitoring mechanisms already in place. Due to the identified gaps, however, the specific objective of the Directive on establishing a monitoring system is only partially attained due to the reasons described above.

4.3    Is the Anti-Trafficking Directive still relevant?

While the relevance of the Directive is beyond doubt for the public authorities and the civil society organisations, it has, however, proven less relevant for the private sector, in particular for the employers in high risk sectors and the online platforms and technology companies.

4.3.1 The online dimension

Evidence from stakeholders and documentary sources strongly support that the online dimension of trafficking is a significant and growing threat. All stakeholders noted that online recruitment facilitates THB and social media has increasingly been used as a means for recruiting, advertising sexual services of, and exerting control over victims 269 . Technology allows traffickers increased anonymity via common encrypted communication solutions. This digitalisation of the trafficking process has notably accelerated during the COVID-19 pandemic 270 . 

The increasingly online nature of trafficking poses challenges for investigators, as illustrated below in Box 1 271 . 

Box 1: Examples of issues posed by the online dimension of THB 272

At the same time, the increasing move of traffickers to the online space fosters the development of new and innovative methods for fighting THB. These include technological methods for identifying victims of THB online 273 . For instance, the online advertising of the services of victims of trafficking across a number of countries can be used by investigators as an evidence of the magnitude of a case of trafficking. Moreover, law enforcement authorities can identify victims through the monitoring of websites where services are advertised 274 . The judiciary and police use social media and the internet themselves, as a method of investigation 275 . Criminals may leave a digital footprint which law enforcement can use, for instance financial transactions. Investigators are able to discover information on identities, roles, structures, locations and criminal assets from the online activity of suspects 276 .

Areas for improvement in the Directive in relation to the online dimension

The Directive does not explicitly address the digital dimension of trafficking in human beings. The internet is only referred to in a provision on prevention (Article 18(2)), as a means to raise awareness and reduce the risk of people, especially children, becoming victims of trafficking in human beings.

The vast majority of respondents to the survey said that the Directive did not sufficiently address the online dimension of trafficking. The digitalisation of the crime was the most commonly identified challenge for the next 5 to 10 years among respondents 277 . 74% of the stakeholders who participated in the public consultation were in favour of the introduction of explicit provisions on the online dimension of trafficking in human beings 278 . Moreover, 65% of respondents to the online survey said that EU intervention would be necessary to enhance cooperation with online private companies to fight against trafficking in human beings 279 . 

It should be noted that the newly adopted Digital Services Act 280  will also have an impact in relation to the fight against human trafficking online by providing for a clear due diligence obligation for the online platforms aiming to tackle the availability of online content. Furthermore, the Proposal for a Regulation laying down rules to prevent and combat child sexual abuse 281 online will oblige online platforms to prevent and detect child sexual abuse material.

Moreover, reacting to Russia’s unjustified military aggression against Ukraine, the EU Internet Forum has launched the discussion on the role of technology and internet companies in preventive and awareness raising measures, as well as in the detection of the crime to protect vulnerable people from exploitation.

4.3.2 Role of the private economy in fighting trafficking in human beings

The EU Strategy requires “…fostering the development of public-private initiatives with businesses in high risk sectors and high risk environments, also by involving the regional and local level”. Some Member State have started to develop public-private partnerships 282 and other forms of cooperation with private businesses and the financial sector. The European Labour Authority set up a specific subgroup on tackling undeclared work among displaced persons and refugees from Ukraine was a very good example of how to mobilise and raise awareness of national labour authorities and the private sector, as labour inspections for undeclared work can sometimes lead to detecting cases of trafficking in human beings. 

In addition, at global level there were numerous initiatives from the financial sector to screen financial transactions to detect trafficking in human beings by reinforcing anti-money laundering rules and the sanction regime, fostering innovation, reinforcing the cooperation with law enforcement, etc. 283  

Areas for improvement with regard the private businesses

(i)EU legislation does not require businesses to take measures to reduce the demand for cheap products and services in value chains

Labour exploitation is increasingly concentrated in the private economy and the need to keep costs low fosters the demand for cheap labour. Hence, demand-reduction measures can be taken within the value chain of businesses 284 .

The Commission proposed a Directive on Corporate Sustainability Due Diligence 285 , which is intended to “set out a horizontal framework to foster the contribution of businesses operating in the single market to the respect of the human rights and environment in their own operations and through their value chains, by identifying, preventing, mitigating and accounting for their adverse human rights, and environmental impacts, and having adequate governance, management systems and measures in place to this end”. Once adopted, the Directive will complement the Anti-trafficking Directive.

The liability of legal persons for trafficking in human beings, set out in Article 5 of the Anti-trafficking Directive, aims to ensure that businesses are investigated, prosecuted and convicted for trafficking offences. However, in practice, (despite the high risks of forced labour in value chains) there is no data available on the number of legal persons held prosecuted and convicted for trafficking offences.

See also in Section 4.1.1.3 on the reduction of the demand that fosters trafficking and criminalisation of the use of exploited services.

(ii) The efforts to change the behaviour of consumers and to sensitise them to labour exploitation are insufficient

The interest in acquiring low-cost products and services incentivises the public to neglect the issue of labour exploitation, even when visible 286 . The efforts to inform consumers about their choices and the risks of labour exploitation should increase, with a view to reducing demand for cheap goods or services which fosters trafficking for forced labour. Member States, civil society organisations as well as businesses may engage in awareness raising and information campaigns for the consumers and also should recognise the consumer responsibility alongside with other stakeholders. Experience has shown that certification or labelling systems confirming that certain products did not use forced or child labour or they were produced under decent working conditions can give strong incentive to consumers to make an informed and deliberate choice in favour of such products.

5.1    Conclusions

The Directive constitutes a major milestone in the fight against trafficking in human beings. The evaluations showed that the general objectives of the Directive, namely to combat crime, organised or otherwise, in particular trafficking in persons and offences against children, by building a more coherent framework for the fight against trafficking and (2) to increase the effectiveness of the framework are met.  However, the evaluation identified a number of shortcomings which impede the full attainment of its five specific objectives 287 . Therefore, the deficiencies can either be addressed through improving the implementation of the Directive or reinforcing and/or updating certain legal aspects.

More specifically, a number of shortcomings were identified with respect to investigations and prosecutions for trafficking offences. The level of investigations, prosecutions and convictions remain low, thus contributing to a culture of impunity in the EU. There is also a need to strengthen the capacity of law enforcement and judicial authorities to carry out financial investigations, address the challenges posed by the increasing digitalisation of trafficking and to seize and confiscate instrumentalities and proceeds from trafficking offences. There is a lack of data on the prosecutions and convictions against legal persons. More dissuasive actions against legal persons to prevent, detect and combat trafficking was also identified as a key area for improvement.

The evaluation found that issues related to assistance, support and protection of victims mainly stem from gaps in the implementation of the Directive in the Member States, for instance when it comes to the application of the principles of non-prosecution and non-punishment of victims; protection of victims in criminal proceedings; provision of assistance and support services targeted to the specific needs of particularly vulnerable victims, including children and vulnerable groups; or access to compensation. The Directive proved to be effective with respect to the establishment of mechanisms aimed at the early identification and referral of victims to assistance, support and protection. However, some gaps persist when it comes to the functioning of these mechanisms and their coordination at the national and cross-border level, which may hinder victims’ identification and referral to adequate services, which take into account their specific needs.

The effectiveness of the Directive is limited in relation to reducing the demand through legislation. The optional provision on the criminalisation of the knowing use of services exacted from victims of trafficking has not been transposed by all Member States and approaches among the Member States that have transposed it vary greatly. The evaluation found that it is often difficult to prove knowledge, although data does not allow to conclude that approaches, which remove the knowledge requirement do not show higher numbers of prosecution and conviction. Stakeholders were divided on the question of whether this measure would be an effective measure to reduce demand.

The Directive was found to be overall efficient, which means that the benefits it brought offset the costs its adoption, transposition and implementation entailed. The evaluation found that the costs related to the non-implementation of the Directive were considerable, as trafficking in human beings incurs high costs to the economy and the society, linked to anti-trafficking activities; the provision of assistance, support and protection services, as well as the lost economic output and lost quality of life for the victim. Despite the cost-effectiveness of the Directive, there is a lack of adequate funding to fight trafficking in human beings at the national level, which affects the prevention, effective investigation and prosecution of the crime, as well as the assistance and support to the victims.

The Directive was found to be coherent with all relevant EU and international initiatives that were considered. However, there is room to further improve consistency with Directive 2009/52/EC (Employers Sanctions Directive).

The evaluation highlighted the added value of the Directive to the fight against trafficking in human beings within the EU, which contributed to enhancing cross-border cooperation, including with the support of EU Agencies. The Directive also contributed to fostering institutional developments in the anti-trafficking field at the national and EU level, notably with the establishment of National Rapporteurs or Equivalent Mechanisms; introducing the function of the EU Anti-trafficking Coordinator; as well as the monitoring of the situation of trafficking in human beings through reporting and EU-wide data collection, despite the gaps mentioned above. Existing gaps in the data collection on trafficking in human beings, however, limit the added value of the Directive, as data may not be fully reliable and comparable. This also limit the understanding of the crime in terms its volume and impact not just on the victims but on the society as a whole.

Finally, the evaluation found that the both the general and the specific objectives of the Directive remain relevant, although a number of developments in the recent years need to be addressed. The use of technology for every phase of the trafficking offence is a major concern and growing threat. Stakeholders largely highlighted the need to address this aspect in the Directive and step up the capacity of relevant stakeholders to combat the crime online. The evaluation also underlined that the Directive had been less relevant for the private sector, in particular for employers and the technology companies. In this respect, there is a need to further intensify the dialogue with internet companies and employers in high-risk sectors in order to encourage them to raise awareness, detect and fight against trafficking in human beings.

5.2 Lessons learned

One of the main lessons learned from the evaluation is that the Directive provided an overarching framework, which contributed to creating a common ground at the EU level to combat trafficking in human beings. The evaluation found that some identified shortcomings are linked to the implementation of the Directive in the Member States rather than gaps in the EU legislation itself, for instance issues related to the gender dimension; investigations and prosecutions; assistance, support and protection of victims; training and awareness raising activities. These aspects could be addressed through increased support to the Member States, including through monitoring, funding, as well as policy and operational actions.

Major trends since the adoption of the Directive necessitate further reflections, whether the Directive is capable to address those phenomena and fulfil its general and specific objectives in its current forms. Most importantly the surge of online trafficking, namely that one or more elements of nearly each trafficking offence take place in the internet require an urgent and adequate response. Moreover, the prevention of gradual expansion of labour exploitation should be closer looked at and examine whether the existing optional provisions are sufficiently addressing the criminal accountability of legal persons. In addition, some Member States did not criminalise additional forms of exploitation than the ones that are included in the list of Article 2(3) of the Directive, despite the fact that this list is non-exhaustive. Moreover, the evaluation has shown that the demand for sexual exploitation and cheap products is increasing. Trafficking in human beings is a cross-border crime, therefore victim support must be equally available and adequate in cross-border cases. The most practical, feasible and meaningful way to increase the cross-border communication and information exchange amongst Member States should be further analysed, in particular the possible improvement of national and transnational referral mechanisms. Finally, the data gap should be reduced or closed and the monitoring of human trafficking in the EU should be strengthened.

The aforementioned deficiencies are not sufficiently covered by the existing wording of the Directive therefore it could be assessed if they necessitate legislative changes.

To conclude, it should be noted that the evaluation largely confirms the challenges and areas of action that were identified in the EU Strategy on Combatting Trafficking in Human Beings (2021-2025). Therefore, the key actions of the EU Strategy remain highly relevant in order to improve the implementation of the Directive in the Member States.

1. Lead DG, Decide Planning/CWP references

DG Migration and Home Affairs (DG HOME) is the lead DG. The agenda planning (Decide) reference assigned to the evaluation and impact assessment is PLAN/2021/11112. There is no reference to the evaluation and impact assessment in the Commission Work Programme 2022.

2. Organisation and timing

The Terms of Reference for carrying out an external 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 were launched on 9 July 2021 with a deadline on 6 August 2021. An evaluation committee consisting of staff from DG HOME selected an external contracor to conduct the study on 30 September 2021 288 . The kick-off meeting of the contract for the study took place on 27 October 2021. The contract ended on 21 July 2022 (following an extension of approximately one month, as the contract was initially planned to terminate on 16 June 2022).

The combined evaluation roadmap and inception impact assessment for the initiative was published by DG HOME on the Commission’s “Have your say” webpage 289 on 5 August 2021 until 16 September 2021. The Commission carried out a public consultation from 14 December 2021 to 22 March 2022, which was also published on “Have your say” webpage.

The Inter-Service Group (ISG) on Trafficking in Human Beings, which already existed, was composed of several Directorate-Generals within the Commission 290 . The meetings of the ISG were chaired by DG HOME. The steering group was regularly consulted over the course of the evaluation and impact assessment, in particular on the draft reports of the contractor responsible for carrying out the external study. The following list provides an overview of the work of the ISG:

·The ISG was consulted in June 2021 in order to provide feedback on the draft Terms of Reference for the external study.    

·On 27 October 2021, the ISG was invited to the kick-off meeting of the external study with the contractor.

·In November 2021, the ISG was consulted on the public consultation questionnaire.

·On 19 January 2022, the ISG was invited to participate in the meeting to discuss the interim report of the study, drafted by the contractor. The report was subsequently accepted after revisions were made to reflect the comments of the ISG.

·On 4 April 2022, DG HOME invited the ISG to discuss the contractor’s first final report of the study.

·The ISG, as well as DG HOME relevant units, were consulted in writing throughout the evaluation and impact assessment process and their comments to the external study were duly taken into account.

·A written informal consultation with the ISG on the Staff Working Documents on the Evaluation and Impact Assessment took place between 22 July 2022 and 2 August 2022 and ISG met on 29 August to discuss the changes.

On 24 July 2022, the final second report of the study was re-submitted by the contractor to DG HOME for revisions and subsequently accepted.    

3. Consultation of the RSB

The Regulatory Scrutiny Board examined the Staff Working Document on the Evaluation and Staff Working Document on the Impact Assessment in written procedures and delivered a positive opinion on 14 October 2022.

The Staff Working Document addresses the recommendations of the Regulatory Scrutiny Board as follows:

4. Evidence, sources and quality

The main sources for the evaluation and Impact Assessment are the Commission’s biannual reports on the fight against trafficking in human beings and Studies on data collection on THB in the EU, as well as other reports and studies published by the Commission, the European Parliament and EU Agencies. The Evaluation and Impact Assessment are also based on the stakeholder consultations (Annex 4). They rely on the feedback received from the consultation on the Evaluation Roadmap/Inception Impact Assessment, the public consultation, the organisation of two workshops, one with the EU Network of National Rapporteurs and Equivalent Mechanisms (NREM) on 6 December 2021 and the other with the EU Civil Society Platform against Trafficking in Human beings 30 November 2021, as well as the meetings and joint meeting of the NREM and EU Civil Society Platform on 16-18 May 2022.

The Evaluation and Impact Assessment also take into account the findings of the “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”, which was commissioned by DG HOME and developed by the contractor based on desk research and the following stakeholder consultation methods: scoping interviews, desk research, online survey, interviews and case studies.

1. Evaluation questions and methodology

1.1. Evaluation questions

In accordance with the Terms of Reference drawn up by the European Commission, RAND Europe in collaboration with Ernst & Young (EY) conducted 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 (request for service No 29 - HOME/2020/ISFP/FW/EVA2/0074).

The methodological approach derived from a careful analysis of the 37 evaluation questions presented in Table 1 and the production of evaluation grids separated by each of the five evaluation criteria as they are stipulated by the Better Regulation Guidelines (effectiveness, efficiency, relevance, coherence and EU Added Value). Building on the evaluation questions, the evaluation grids included:

a.Judgment criteria: statements that need to be confirmed or disconfirmed by the analysis.

b.Analytical approach: the type of analysis used to answer the evaluation question. The proposed analysis informed the type of information collected.

c.Indicators: quantitative and qualitative measures supporting the analysis and informing the judgement criteria.

d.Data sources: quantitative and qualitative sources of indicator variables used in the analysis.

The evaluation grids have been treated as a ‘live’ document throughout the research process. This means they have undergone revisions throughout the early research process to ensure that the questions were phrased in a manner that supports the aims of the evaluation in best way possible.

1.2    Evaluation framework

In this report, the evaluation criteria are addressed according to the order of the Better Regulation Guidelines. The evaluation questions are arranged into an evaluation framework providing for the analytical framework, indicators and sources.

2. IMPACT ASSESSMENT

Assessing the potential impact of policy options included the following stages:

1.Problem definition and assessment;

2.Analysis of the EU’s right to act;

3.Identification of policy objectives and detailed formulation of retained policy options;

4.Assessment of the impact of policy options;

5.Ranking and comparison of policy options.

3. DESCRIPTION OF DATA COLLECTION METHODS METHODOLOGY

3.1. Evaluation

The evaluation of the Directive was informed by the collection and analysis of qualitative and quantitative data obtained through the following methods:

-Mapping and analysis of transposition of the Directive into national law. By using a network of national correspondents, the external contractor conducted desk research regarding the transposition of the Directive into Member States land compared it to data shared by the European Commission on the state of transposition in 2016. The full analysis is presented in Annex 6.

-Analysis of quantitative data shared by EUROSTAT on trends in THB from 2013-2020 across the EU27.

-Documentary review of more than 100 sources. Key desk resources include (i) reports, studies and other publications addressing trafficking in human beings; and (ii) information shared by DG HOME on EU funding streams (i.e., AMIF, ISF). The complete list of sources reviews for the Staff Working Document on the evaluation is presented at the end of this Annex.

-Public consultation of EU citizens that ran from 14 December 2021 until 22 March 2022. A total of 124 contributions were received.

-Online survey that ran from 29 November 2021 to 15 January 2022. A total of 90 responses were received. Participants included Member State national competent authorities (16); National rapporteurs and equivalent mechanisms (NREM) (14), national LEAs (9), national judicial authorities (JAs) (12), other national authorities (5), CSOs (24) and other (10). At least one response from each Member State was received.

-Interviews with 29 stakeholders were performed. Five interviews (4 EU agencies, 1 CSO) were performed during the inception phase to inform the scope, framework and data collection tools of the study. A further 24 interviews were performed during the evaluation phase. One additional stakeholder chose to submit responses in writing. Stakeholders included representatives from EU agencies (6), EMPACT (1), European CSOs (5), international bodies (5), academics/experts (6), and business/employer associations (1).

-Two stakeholder workshops with the EU Civil Society Platform against THB (Workshop 1) and NREM (Workshop 2).

-Analysis of data on EU funding of THB projects from 2014-2020 under the Asylum, Migration, and Integration Fund (AMIF) and the Internal Security Fund (ISF). 

-Feedback on the Roadmap/Inception Impact Assessment. From 5 August 2021 to 16 September 2021, the EC sought feedback on the inception impact assessment underpinning this evaluation. 292 The 36 responses received from CSOs (24), EU citizens (4), public authorities (3), non-EU citizens (2) and other (3) were also analysed 293 .

Further details on the data collection activities can be found in the synopsis report in Annex 4.

3.2. Impact assessment

·Interviews with (4) EU agencies and (3) EU level civil society organisations were performed. One additional interview with a senior advisor at a National Rapporteur’s office was conducted. Interviews were aimed at collecting views on the nature and extent of the likely impacts and feasibility of the identified policy options for the stakeholder groups who might be affected.

·Case studies of five Member States (FR, IT, HU, NL, RO). A description of the case study selection methodology can be found in the synopsis report (Annex 2). The case studies included group interviews with national authorities from the selected Member States on possible impacts of the identified policy measures.