EUROPEAN COMMISSION

Brussels, 19.12.2022

SWD(2022) 425 final

COMMISSION STAFF WORKING DOCUMENT

IMPACT ASSESSMENT REPORT

Accompanying the document

Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

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

{COM(2022) 732 final} - {SEC(2022) 445 final} - {SWD(2022) 426 final} - {SWD(2022) 427 final} - {SWD(2022) 428 final}

Table of contents

1.Introduction: Political and legal context

2.What is the problem and why is it a problem?

2.1.Problem overview

2.2.Horizontal problem 1: Trafficking in human beings continues to thrive in the EU

2.2.1.    Driver: there are practical obstacles in the detection of cases of trafficking in human beings and in the early identification of victims    

2.2.2.    Driver: preventive and awareness-raising initiatives do not adequately target individuals and specific groups at higher risk of becoming victims of trafficking    

2.2.3.    Driver: the data collection exercises and the monitoring of trends do not reflect the full scale of trafficking in human beings across the EU    

2.3.Specific problem 2: The numbers of investigations, prosecutions and convictions of traffickers are low, leading to a culture of impunity

2.3.1.    Driver: there has been a rise in the forms of exploitation other than those explicitly mentioned in the definition of trafficking in human beings provided in the Directive are often not criminalised in the Member States    

2.3.2.    Driver: trafficking in human beings increasingly moved online, creating additional challenges for law enforcement and judicial authorities    

2.3.3.    Driver: There are challenges in proving offences of trafficking in human beings in front of national courts    

2.3.4.    Driver: legal persons are not (sufficiently) held accountable for trafficking offences    

2.4.Specific problem 3: victims of trafficking do not always receive an adequate level of assistance, support and protection, which is adapted to their specific needs

2.4.1.    Driver: existing national and transnational referral mechanisms are not fully effective    

2.4.2.    Driver: the services providing assistance and support to victims of trafficking often have limited capacity and resources or are not sufficiently tailored to specific needs    

2.4.3.    Driver: the principles of non-prosecution and non-punishment of victims forced to commit criminal offences as a result of being trafficked, are not consistently implemented    

2.4.4.    Driver: victims rarely have access to compensation    

2.4.5.    Driver: measures to protect victims who participate in the criminal proceedings are not consistently applied    

2.5.Specific problem 4: the demand that fosters trafficking in human beings remains high

2.5.1.    Driver: the criminalisation of the use of services exacted from victims of trafficking is not consistent across the Member States    

2.5.2.    Demand-reduction approaches are not widely implemented    

3.why should the EU act?

3.1.Legal basis

3.2.Subsidiarity and proportionality

4.What should be achieved?

4.1.General objectives

4.2.Horizontal and specific objectives

4.2.1.    Ensuring adequate prevention, detection and improving the monitoring of trafficking in human beings at the EU level (horizontal)    

4.2.2.    Reinforcing the criminal justice response to the crime, including in the cross-border context (specific)    

4.2.3.    Ensuring that victims of trafficking in human beings receive adequate assistance, support and protection across the Member States (specific)    

4.2.4.    Reducing the demand for the exploited services of victims that fosters trafficking for all forms of exploitation (specific)    

4.3.How do objectives relate to the sustainable development goals and the Charter of Fundamental Rights of the EU?

5.What are the various options to achieve the objectives?

5.1.What is the baseline from which options are assessed?

5.2.Description of the policy options

5.2.1.    Policy option 1: Non-legislative action at EU level or national level    

5.2.2.    Policy option 2: Legislative action at EU level    

5.2.3.    Policy option 3: Legislative action at EU level in combination with non-legislative measures    

5.3.Options (legislative measures) discarded at an early stage

5.3.1.    Equality model    

5.3.2.    Other legislative changes discarded at an early stage related to assistance of victims and confiscation    

6.What are the impacts of the different policy options and who will be affected?

6.1.Security impact

6.2.Social impact

6.3.Economic

6.4.Fundamental rights

7.How do the options compare?

7.1.Effectiveness

7.1.1.    Ensuring adequate prevention, detection and monitoring of trafficking in human beings    

7.1.2.    Reinforcing the criminal justice response to the crime, including in the cross-border context    

7.1.3.    Ensuring that victims of trafficking receive adequate assistance, support and protection across the Member States    

7.1.4.    Reducing the demand for the exploited services of victims of trafficking in human beings    

7.2    Efficiency    

7.3    Coherence    

7.4    Necessity    

7.5    Subsidiarity and proportionality    

8.Preferred option

8.1Policy option 3 – Legislative measures combined with non-legislative measures

8.2REFIT (simplification and improved efficiency)

8.3Application of the ‘one in, one out’ approach

9.How will actual impacts be monitored and evaluated?

Annex 1: Procedural information

Annex 2: Stakeholder consultation (Synopsis report)

Annex 3: Who is affected and how?

Annex 4: Analytical methods

Annex 5: Statistics

Annex 6: Transposition of the Anti-Trafficking Directive

Glossary

1.1.    Introduction: Political and legal context

Directive 2011/36/EU on preventing and combating trafficking in human beings, protecting its victims 6 (hereinafter “the Directive”) 7 is the primary legislative instrument to combat trafficking in human beings (THB) in the European Union. It provides for an overarching EU legal 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.” 8 The Directive entered into force on 5 April 2011 and Member States were required to transpose it by 6 April 2013. 

According to the 2021 EU Serious and Organised Crime Threat Assessment (herein after 2021 EU SOCTA) published by Europol, trafficking in human beings is a core activity of serious and organised crime in the EU and is set to remain a threat for the foreseeable future 9 . During the COVID-19 pandemic, criminals have seized opportunities to generate significant profits and intensify criminal activities. They have adapted their modus operandi and are increasingly using online platforms and services to identify victims, organise their exploitation, especially for sexual purposes, and advertise their services. At the same time, the threat of trafficking in human beings in relation to Russia’s war of aggression against Ukraine remains high, in particular in the longer-term. The war further increased opportunities for traffickers to exploit the vulnerable situation of people fleeing Ukraine for their financial gain. Therefore, a Common Anti-Trafficking Plan 10 was developed by the EU Anti-trafficking Coordinator (EU ATC) and endorsed by the Solidarity Platform on 4 May 2022 to address the risks of trafficking in human beings and support potential victims among those fleeing the war in Ukraine.

Trafficking in human beings was identified as a crime priority in the EU Security Union Strategy 11 and in the Council conclusions of 26 May 2021 setting the 2022-2025 EU priorities for the fight against serious and organised crime through the European multi-disciplinary platform against criminal threats (EMPACT). The conclusions set as a priority “to disrupt criminal networks engaged in trafficking in human beings for all forms of exploitation, including labour and sexual exploitation, and with a special focus on those who exploit minors for forced criminality; those who use or threaten with violence against victims and their families, or mislead victims by simulating to officialise the exploitation; those who recruit and advertise victims online, and are serviced by brokers providing digital services” 12 .

The Impact Assessment relates to one of the key actions of the EU Strategy on Combatting Trafficking in Human Beings 2021-2025, presented by the Commission on 14 April 2021 (hereinafter “the Strategy”) 13  together with the EU Strategy to tackle Organised Crime, which sets out the actions to be taken to disrupt the business models and structures of criminal organisations across borders, both online and offline. The EU Strategy on Combatting Trafficking in Human Beings indicated that the Commission would evaluate the Anti-trafficking Directive, and based on the outcome of the evaluation, consider reviewing it. The Commission carried out an evaluation (“Evaluation Staff Working Document” 14 ) on the basis of which it concluded to revise the Anti-trafficking Directive. The evaluation feeds into the Impact Assessment for a revision of the Directive. The evaluation and the Impact Assessment also respond to the call of the European Parliament to the Commission to assess the implementation of the legal instrument and to come forward with proposals to revise the Directive 15 .

The Impact Assessment 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 fight against trafficking in human beings is a cross-cutting policy area and, therefore, is linked to many other initiatives. It is notably addressed in a number of recently adopted proposals for legislative instruments. The Commission’s proposal for a Directive on corporate sustainability due diligence 16 is complementary to Directive 2011/36/EU. It sets out a horizontal framework to foster the contribution of businesses operating in the single market to the respect of human rights and environment through their own operations and through their value chains, by identifying, preventing, mitigating and accounting for their adverse human rights and environmental impacts, including trafficking in human beings.

The proposal for a Directive on combating violence against women and domestic violence 17 acknowledges that the offence of trafficking in human beings for the purpose of sexual exploitation is a form of violence against women specifically covered under Directive 2011/36/EU. The specific prevention, protection and support measures envisaged in the Directive on combating violence against women and domestic violence complement the measures laid down in Directive 2011/36/EU.

The 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 the Victims’ Rights Directive that is a horizontal instrument, applicable to all victims of crime. On 28 June 2022, the Commission adopted its evaluation of the Victims’ Rights Directive that identified shortcomings related to victims’ access to information, justice, support and protection 18 . The Commission is currently preparing an impact assessment of the Victims’ Rights Directive and plans to propose a revision of the Directive in 2023.

The Digital Services Act 19  adopted on 19 October 2022 will be a relevant tool in detecting, monitoring and removing online content related to trafficking in human beings, as it introduces a due diligence obligation for providers of intermediary services, such as online platforms, with the aim to reduce illegal and harmful content online.

The new rules proposed by the Commission to address online child sexual abuse 20 are also relevant in cases where the child victim of sexual abuse or sexual exploitation is also a victim of trafficking in human beings, as they require providers and hosting services to make risks assessments, detect and report online child sexual abuse, and remove related material.

The Commission’s proposal for a new Directive on asset recovery and confiscation 21 contributes to the fight against trafficking in human beings by providing a new set of rules that addresses asset recovery from tracing and identification, through freezing and management, to confiscation and final disposal of assets.

On 14 September 2022 the Commission presented a proposal prohibiting products made with forced labour on the Union market 22 . The proposal will include products produced by forced labour from victims of human trafficking and will cover both domestic and imported products. Building on international standards and complementing existing horizontal and sectoral EU initiatives, in particular the due diligence and transparency obligations, the Regulation will combine a prohibition with a robust, risk-based enforcement framework.

The coherence with other EU legislative instruments relevant for the area of trafficking in human beings was assessed for the purpose of the evaluation. The evaluation concluded that the Anti-trafficking Directive was overall coherent with those instruments, although the consistency with the Employers Sanctions Directive (2009/52/EC) could be further improved. This is addressed in Section 7.3 of the Impact Assessment.

2.2.    What is the problem and why is it a problem?

2.1.2.1.    Problem overview

Based on the trends observed over the period 2013-2020 23 , trafficking in human beings has not decreased. The annual number of registered victims did not vary significantly over the evaluation period 24 , although the actual number of victims is likely to be significantly higher than the statistics suggest 25 . The lowest number was recorded in 2015 (6 071 victims) and the highest in 2019 (7 777). While the scale and trends vary across the EU, all Member States are affected. During the period 2013-2020, the five Member States with the largest number of registered victims, in absolute numbers, were the Netherlands (8 967), France (8 652), Italy (6 927), Romania (5 742) and Germany (4 842). However, considering the proportion of victims as compared to the total population of the registering country 26 , the top five Member States were Cyprus (100), the Netherlands (66), Romania (36) and Austria (36) and Malta (35).

Three quarters (75%) of all victims registered in the EU were women and girls. Only two Member States (Belgium and Portugal) registered a majority of male victims (men and boys) during the reporting period. Children represented nearly a quarter (21%) of all victims in the EU.

Trafficking for the purpose of sexual exploitation has consistently remains the main form of exploitation within the EU (65% of all registered victims over the reporting period). The Member States with the highest share of victims of trafficking for sexual exploitation were Slovenia (87%), Bulgaria (82%), France (72%), Estonia and Denmark (70% each). Victims of trafficking for sexual exploitation registered in the EU are overwhelmingly female (93%).

Trafficking for labour exploitation is the second main form in the EU (21%). It was the most prevalent form of exploitation in Malta (74%), Portugal (66%), Belgium (57%) and Poland (53%). Labour exploitation affects mostly male victims (70%), although female victims are increasingly exploited in particular sectors (e.g., domestic work, care activities or cleaning services).

Other forms of exploitation 27 accounted for 14% of all the victims of trafficking in human beings.

Statistics highlight the cross-border and transnational dimension of the crime. 56% of the victims identified in the EU are EU citizens, including 21% who are citizens of another EU Member States than the one where they were registered. The Member States who registered the highest percentage of EU victims who are citizens of another Member States for the reporting period were Czech Republic (65%), Germany (48%), Ireland (41%), Slovenia (39%) and Austria (37%).

Non-EU citizens accounted for 44% of victims registered within the EU. The Member States with the highest percentages of victims of non-EU citizenship are Sweden (96%), Malta (90%), Finland (86%), Denmark (87%), Belgium and Italy (both 75%). This data indicates that the countries of origin, transit and destination of trafficking victims identified in the EU are both EU Member States and non-EU countries.

The nationality of the traffickers also confirms the cross-border dimension. While EU citizens accounted for more than two thirds of all suspects with known country of citizenship during the 2015-2020 period, the proportion of non-EU citizens among suspects increased steadily during the reporting period, reaching 41% in 2020. EU citizens also represented over two thirds of all prosecuted individuals. Around 25% of those prosecuted were non-EU citizens. Among convicted individuals, the share of EU citizens (51%) and non-EU citizens (49%) is nearly even.

The number of prosecutions and convictions has remained consistently low 28 , especially if compared to the number of registered victims and of suspects. Between 2013 and 2020, 40 028 suspects were recorded for an offence of trafficking in human beings was. During the same period, 21 824 individuals were prosecuted and 11 319 were convicted. The evaluation showed that the limitations of available data hindered the accuracy of these statistics, as Member States have different approaches to reporting data on individuals and cases in their police, prosecution and court systems.

Trafficking in human beings continues to be a low risk, high profit crime, which generates an estimated amount of EUR 29.4 billion 29 per year. The annual revenues produced for trafficking for sexual exploitation are estimated at around EUR 14 billion 30 . 

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. The demand for using the services exploited from trafficking victims is also likely to increase. According to the 2021 EU SOCTA report “the sustained demand for sexual services will continue to drive the sexual exploitation of victims”, and “the persistent demand for low-wage workers employed in manual jobs, both seasonable and throughout the year, will ensure opportunities for labour exploitation”. In 2020, Europol warned that an economic recession in the wake of the COVID-19 pandemic would increase the risks of trafficking in human beings, as criminals have access to a wider pool of individuals in enhanced vulnerability situations or economic distress. At the same time, an increased demand for cheap labour may work as a pull factor, provoking a potential rise in trafficking within the EU 31 . Furthermore, the vulnerability of people who fled Ukraine into the EU following Russia’s unjustified military aggression is expected to increase in the mid- and long-terms. Criminal networks, but also employers, may try to take advantage of the situation of refugees, who may be inclined to accept jobs with poor working conditions or which are undeclared and in turn be more at risk of labour exploitation.

The evaluation found that the Directive contributed to the creation of an EU common framework for the (i) criminalisation, investigation and prosecution of trafficking in human beings offences, including related definition and sanctions; (ii) assistance, support and protection of victims of trafficking in human beings; (iii) prevention of trafficking in human beings related offences. Despite the improvements brought by the Directive, the current legal framework is not fully adapted to the emerging trends and recent challenges posed by trafficking in human beings. Indeed, the evaluation found room for improvement, in particular in making the Directive more effective in dealing with new forms of exploitation and modus operandi of the traffickers, as well as in the area of investigations and prosecutions. Moreover, divergences in the way the Directive has been implemented in the Member States is causing inconsistencies, for instance in the interpretation of trafficking in human beings offences and in the criminalisation of the use of services exacted from victims of trafficking. Shortcomings with regard to the assistance, support and protection of victims mainly stem from gaps in the implementation of the Directive, which can be addressed through further support to the Member States.

One horizontal and three specific problems were identified as part of the evaluation (see Table 1 – Problem tree).

Table 1 - Problem tree

2.2.2.2.    Horizontal problem 1: Trafficking in human beings continues to thrive in the EU

2.2.1.2.2.1.    Driver: there are practical obstacles in the detection of cases of trafficking in human beings and in the early identification of victims

Several stakeholders highlighted that shortcomings in the detection of the crime form a significant obstacle to the early identification of victims and their access to the rights they are entitled to under the Directive 32 . The systems for, and authorities involved in, the detection and identification 33 of victims of trafficking in human beings are different across the Member States. While many authorities can be competent to detect possible situations of trafficking in human beings, the formal identification of the victims is usually entrusted with a more limited number of entities. Identification is carried out by law enforcement authorities in the majority of the Member States 34 , which are sometimes the only entities competent to formally identify the victims 35 . Victim identification is often closely related to the detection of trafficking cases and the initiation of criminal proceedings. However, victims may be unwilling to come forward and report a crime to the law enforcement authorities, as they might fear secondary victimisation and further trauma or to disclose their situation when they are illegally staying in the territory of a Member State 36 . In addition, victims are often emotionally or economically dependent on the trafficker or fear for their lives and for the life of their family.

Although all Member States have specific measures in place, the detection and identification is often hindered by the lack of resources for training and capacity-building, as relevant stakeholders both at national and local level may not have the necessary skills and abilities to determine whether a person could be a victim, in particular when it comes to specific phenomenon, such as online trafficking in human beings 37 . Moreover, Member States reported that a significant obstacle to identification of victims is the “lack of an overarching identification status, standard criteria or indicators to identify victims, which results in competent authorities with too much discretion in identifying presumed (potential) victims of trafficking” 38 .

The deficiencies in detecting potential victims lead to fragmented detection, identification procedures and case management, both within the Member States and in cross-border cases. The evaluation underlined that there is room for improving the awareness, capacity and training of key professionals who are likely to come into contact with victims to recognise the signs of trafficking in human beings.

2.2.2.2.2.2.    Driver: preventive and awareness-raising initiatives do not adequately target individuals and specific groups at higher risk of becoming victims of trafficking

The evaluation found that prevention strategies and awareness-raising initiatives at both the national and EU level do not sufficiently address societal issues linked to trafficking in human beings, such as gender discrimination, economic inequality, low levels of education, poverty and restrictive migration policies 39 . Awareness-raising initiatives do not always reach their target audience, especially high-risk groups and people in high-risk sectors.

2.2.3.2.2.3.    Driver: the data collection exercises and the monitoring of trends do not reflect the full scale of trafficking in human beings across the EU

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 40 . While all Member States reported data on victims for the latest reporting period (2019-2020), criminal justice data (investigations, prosecutions, convictions or penalties imposed by national courts for trafficking offences) was still missing in eight Member States 41 . Statistics on specific indicators are not always 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.

Without a complete overview at EU level, it is impossible to adequately estimate the scale of human trafficking across the EU as well as current trends. In addition, no data is available on the number of seizures, freezing and confiscation of instrumentalities and proceeds from human trafficking, as well as prosecutions and convictions against legal persons. The absence of data collection on the number of victims who receive assistance and support 42 , or who are awarded compensation do not allow to monitor or evaluate the extent to which these rights are enforced in practice. Moreover, statistics collected by the Commission only includes victims who have been registered with the authorities or other organisations 43 of the Member States. The actual number of victims is likely to be significantly higher than the reported data suggests, as these statistics only capture victims that become known to one of the registering entities and many victims remain undetected 44 .

2.3.2.3.    Specific problem 2: The numbers of investigations, prosecutions and convictions of traffickers are low, leading to a culture of impunity

2.3.1.2.3.1.    Driver: there has been a rise in the forms of exploitation other than those explicitly mentioned in the definition of trafficking in human beings provided in the Directive are often not criminalised in the Member States 

Article 2(3) has been transposed by all Member States, although not all the national legislations include explicit references to certain forms of exploitation, which are explicitly mentioned 45 . However, this lack of compliance with the Directive does not necessarily mean that such conducts are not prosecuted and sanctioned in practice. In fact, the evaluation found that inconsistent criminalisation of conducts qualifying as trafficking offences across the Member States particularly concerns forms of exploitation that are not explicitly mentioned in Article 2(3).

The share of forms of exploitations other than sexual and labour 46 increased from 8% in 2013 to 20% in 2018. Cases with a form exploitation reported by Member States as “other”, which can include forced marriage and illegal adoption, among others, accounted for 11% of all registered cases during the reporting period 2013-2020.

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 (conduct, means and objective) of the offence 47 . Some Member States introduced it as a form of exploitation into the national legislation transposing the Directive 48 . 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 an exploitative purpose, which can be covered by trafficking in human beings, insofar as it fulfils the constitutive elements of the offence. The 2021 EU SOCTA report underlines that children are trafficked and sold through illegal adoption schemes 49 . 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.

There are certain emerging trends with regard to the forms of exploitation, which were not as evident at the time of the adoption of the Directive but gained importance since then. Such case is typically the trafficking of women for the purpose of illegal surrogacy programmes by coercing women into a pregnancy and selling new-born children. The 2021 EU SOCTA, Eurojust and the Commission’s Third progress report 50 have pointed out the threats of illegal surrogacy in the context of trafficking in human beings. As part of the evaluation, Eurojust reported that some Member States encounter difficulties in judicial cooperation and prosecution in cases involving the selling of new-born children, in particular when vulnerable surrogate mothers are exploited by intermediaries and there is a risk of exploitation of the children.

Social benefit fraud, which is not explicitly covered by the Directive, was also referred to as an emerging form of exploitation in the 2021 EU SOCTA. Eurojust also reported on cases where traffickers take advantage of vulnerable individuals in difficult financial conditions to commit social benefit fraud for their profit 51 . 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 52 . 

2.3.2.2.3.2.    Driver: trafficking in human beings increasingly moved online, creating additional challenges for law enforcement and judicial authorities

The modus operandi and business model of traffickers have evolved to move the offence, or some elements of it, online, in particular as a consequence of the COVID-19 pandemic. This has created new challenges for law enforcement and judicial authorities, making trafficking cases more difficult to detect and investigate 53 . Technology enables traffickers to remain anonymous via common encrypted communication solutions, thus reducing the risks of being detected 54 . It further allows criminals to reach a higher number of potential victims to recruit without any physical interaction. Traffickers use the digital space for every phase of the trafficking offence, e.g. for the recruitment and exploitation of the victims, the organisation of their transport and accommodation, their advertising and to reach out to potential clients, to control the victims, to communicate, as well as to hide criminal proceeds.

The internet and other information technology means often only concern one or few elements of the trafficking chain, for example the recruitment or the advertisement of the victim, whereas the rest of the offence (e.g. the actual exploitation) may take place offline. In other cases, information technology means may be used to exert control over the victims (for example tracing them or booking accommodation). The very exploitation may also happen online and be shared through the internet or social media, while the recruitment takes place offline. This wide variety of examples shows that all elements of the offences hardly ever take place completely online or offline. While gathering data at the EU level is difficult, Member States have provided some examples, which highlight the online dimension of the crime. In Germany, 11% of the victims identified were contacted or recruited through the internet, including through the use of social media platforms or advertising portals 55 . French authorities reported that the internet was used by 65% of identified victims of sexual exploitation in 2019, which represented a 16% increase as compared to the previous year 56 .

The growing use of encrypted technology by traffickers makes it more difficult for law enforcement authorities to access and recover data during the investigation, including on communication between the perpetrators and between the perpetrators and the victims, identity of the traffickers and the victims, as well as on the means used to coerce and traffic the victims. Law enforcement and judicial authorities also face obstacles in handling large amounts of electronic data, which may also be linked to lack of capacity, technical equipment, training and technical knowledge. Differences across the Member States in legislation concerning data retention and investigation tools and practices related to offences facilitated by the use of technology can also pose significant challenges in fighting against trafficking in human beings 57 .

2.3.3.2.3.3.    Driver: There are challenges in proving offences of trafficking in human beings in front of national courts

The low level of prosecutions and convictions of trafficking offences, especially compared to the number of victims and of suspects 58 , can be partly explained by the challenges in building effective cases against traffickers. One of these is gathering sufficient and admissible evidence to prove all the elements of the offence, i.e. the intent, the conduct, the means and the purpose of the offence, which is the exploitation of the person. As a consequence, investigations, prosecutions and convictions are often heavily dependent on the victim’s testimony. Yet, gathering other evidence, such as financial transactions, surveillance information and digital or physical evidence, would increase the chances of successful prosecution and, at the same time, would reduce any further potential harm suffered by the victims as a result of their participation in criminal proceedings.

Due to insufficient evidence, trafficking in human beings is sometimes re-qualified as other offences, which are easier to prove in national courts, such as pimping, aggravated prostitution, smuggling of migrants, deprivation of liberty, or violation of labour or social security laws. The exploitation element of trafficking in human beings is the most difficult to prove in court, and prosecutors have to produce admissible and sufficient evidence in court to obtain a conviction for trafficking offences. There is no EU definition or indicators of exploitation. Member States have different definitions of exploitation or rely on different indicators to prove it. For instance, some Member States consider that very low wages constitute labour exploitation, whereas others will investigate and prosecute the offence under another qualification (e.g. exploitation of immigrant work) 59 . This may hinder cross-border cooperation, in cases where one Member State considers that a certain conduct amounts to exploitation, while another one does not.

In this context, the evaluation found that Member States do not sufficiently use the support and capacity of coordination of the EU Agencies, in particular Europol and Eurojust, which could help them in overcoming challenges they encounter when investigating or prosecuting human trafficking cases.

2.3.4.2.3.4.    Driver: legal persons are not (sufficiently) held accountable for trafficking offences

Criminal networks involved in labour exploitation operate in cash-intensive businesses where low-waged, low-skilled, intensive and seasonal work is needed, such as forestry, food processing, assembly lines, hospitality, retail, carwashes, beauty and cleaning services, transportation, housekeeping and domestic work. Organised crime groups specialised in trafficking increasingly establish complex legal structures to hide their exploitative operations 60 .

The Directive provides for the liability of, and sanctions for, legal persons that commit trafficking offences. Although the Commission guidelines on the biannual data collection sent to the National Statistical Authorities of the Member States include the provision of data on the number of legal persons that are subject to prosecution and court judgements, no such data has been reported by the Member States. Consulted stakeholders further reported that prosecutions and convictions of legal persons are extremely rare 61 . This shows that the Directive has not ensured greater accountability of legal persons.

2.4.2.4.    Specific problem 3: victims of trafficking do not always receive an adequate level of assistance, support and protection, which is adapted to their specific needs

2.4.1.2.4.1.    Driver: existing national and transnational referral mechanisms are not fully effective

All but one Member State have put in place a formal or informal National Referral Mechanism (NRM) 62 . While all coordination mechanisms include identification processes and short-term support and protection measures for victims, their scopes differ across the Member States 63 . The evaluation found insufficient coordination and links between professionals who are involved in the identification of victims of trafficking and organisations providing specialised assistance and support services. The evaluation also noted the limited capacity of shelters for children, and insufficient cooperation between anti-trafficking and asylum services or child protection systems. This negatively affects the victims’ willingness or ability to seek help and report cases and fosters re-victimisation (i.e. the victim will be exploited again by traffickers). Moreover, the absence of harmonised procedures at the EU level hampers the effectiveness of the cross-border identification and referral of victims.

2.4.2.2.4.2.    Driver: the services providing assistance and support to victims of trafficking often have limited capacity and resources or are not sufficiently tailored to specific needs

The evaluation 64  found that Member States pay limited attention to, or have limited understanding of, the needs of victims of trafficking with disabilities or other special needs. It also found that often not sufficient national resources are allocated to externalised services, in particular civil society organisations, for the assistance and support to victims. Moreover, female victims and others in vulnerable situation, such as children, in particular vulnerable children (e.g. migrant children) and children with disabilities, members of the Roma community or of the LGBTIQ community, as well as persons with disabilities 65 , do not always have access to available information on available support services and their rights.

2.4.3.2.4.3.    Driver: the principles of non-prosecution and non-punishment of victims forced to commit criminal offences as a result of being trafficked, are not consistently implemented

Article 8 of the Directive requires the non-prosecution and non-punishment of victims of trafficking who were compelled to commit criminal activities as a direct consequence of being trafficked. While the vast majority of Member States have transposed this provision into their national legislation 66 , its application is limited in practice 67 . This particularly affects certain categories, such as victims trafficked for forced criminal activities; victims who do not cooperate with the authorities in criminal proceedings; as well as children 68 .

2.4.4.2.4.4.    Driver: victims rarely have access to compensation

Pursuant to Article 17 of the Directive, Member States are required to ensure that victims of trafficking have access to existing schemes of compensation available for victims of violent crimes of intent. Access to compensation by victims of trafficking in human beings also falls within the scope of the Victims’ Rights Directive (Directive 2012/29/EU) 69 and the Compensation Directive (Directive 2004/80/EC) 70 . The evaluation established that the Directive contributed to increasing access to compensation, as Member States have adopted legislative and policy measures in this area. However, in practice, victims face difficulties in receiving compensation 71 due to administrative obstacles, no access to legal aid, as well as the duration of the criminal proceedings, since compensation is often awarded upon their conclusion. Access to compensation may further be hindered if the victim has returned to his or her country of origin or is an undocumented migrant.

2.4.5.2.4.5.    Driver: measures to protect victims who participate in the criminal proceedings are not consistently applied

While Member States ensure access to witness programmes, these are also not used systematically for victims of human trafficking and some of their features are not adapted to the situation of the specific vulnerability of the victims. For instance, victims often experience secondary victimisation during criminal proceedings, as a result of the repeated recounting of their experiences and of being questioned in order to produce or verify evidence. This is particularly problematic considering that the victim’s testimony is often central to successful investigations and prosecutions.

2.5.2.5.    Specific problem 4: the demand that fosters trafficking in human beings remains high

2.5.1.2.5.1.    Driver: the criminalisation of the use of services exacted from victims of trafficking is not consistent across the Member States

Article 18(4) of the Directive 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. In 2016, the Commission noted that a diverse legal landscape across the EU fails to effectively discourage demand, and that liability linked to direct knowledge that the person is a victim creates a high threshold in prosecutions. Accordingly, the level of knowledge of the user of exploited services requires a close examination 72 .

The use of exploited services concerns the demand for goods or services resulting from the exploitation of victims of trafficking in human beings. In exploitation of the prostitution of others and other forms of sexual exploitation, the users of exploited services are those who engage in sexual activity with trafficked victims. In forced labour, the users of exploited services are those who purchase, or otherwise acquire, goods resulting from labour exploitation. In case of removal of organs, the users are those who obtain the organs of the exploited victim. However, not all forms of exploitation included in the Directive necessarily result in the use of exploited services by a third party. In case of forced begging, the users of the exploited services are the traffickers themselves.

Seven Member States did not use the option provided for by Article 18(4) and therefore have no rules on the use of exploited services 73 . Five Member States criminalised the knowing use of exploited services only related to sexual exploitation 74 . One Member State criminalised the knowing use of exploited services related to sexual exploitation and labour exploitation 75 . Eight Member States criminalised the knowing use of exploited services related to all forms of exploitation 76 . Two Member States criminalised the use of services related only to sexual exploitation when the users had knowledge that the services were exacted from trafficked victims or they should have known based on a reasonable assessment of the circumstances 77 or had cause to suspect it 78 . One Member State criminalised the use of exploited services in relation to sexual exploitation without a knowledge requirement, as well as the knowing use of services for all other forms of exploitation 79 . Two Member States do not have specific rules on the criminalisation of the use of exploited services but both adhere to the “equality model”, which criminalises any use of sexual services without any knowledge requirement, regardless of whether the person is a victim of trafficking 80 . Therefore, exploited services are implicitly included, although there is no specific rule concerning these in those Member States.

Consulted stakeholders have considerably diverging views 81 regarding the effectiveness of the criminalisation of the use of exploited services as a means to reduce the demand that fosters trafficking. There are concerns that criminalising the use of services exacted from victims of trafficking might risk further increasing the dependence of victims on their traffickers or pushing victims of sexual and labour exploitation to places where they are less likely to be identified and provided with adequate protection and support. At the same time, the lack of harmonisation across the Member States means that users will face different consequences depending on where they use the exploited services of victims.

2.5.2.2.5.2.    Demand-reduction approaches are not widely implemented 

A particular area where more efforts are needed relates to the growing demand in the society for cheap products and services, especially in times of economic recession, which can foster cheap labour and lead to labour exploitation. Stakeholders consulted reported that there could be a considerable scope for greater responsibility of businesses and corporations 82 in relation to influence consumer and end-user awareness of forced labour, in particular in high-risk sectors, such as agriculture, garments and hospitality. Moreover, awareness-raising approaches are rarely targeted to the demand-side, for example to potential users of the services exacted from victims of trafficking in human beings, in particular for the purpose of sexual exploitation.

3.3.    why should the EU act?

3.1.3.1.    Legal basis

The legal basis for the EU action in the field of trafficking in human beings are Articles 82(2) and, more particularly, 83(1) of the Treaty on the Functioning of the EU (TFEU). The latter provides that “the European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules on the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis”. Trafficking in human beings is one of the areas which fall within the scope of Article 83(1).

3.2.3.2.    Subsidiarity and proportionality

Under Article 4(2)(j) of the TFEU, the area of freedom, security and justice is described as a shared competence between the EU and the Member States. Article 67(3) TFEU empowers the EU to “ensure a high level of security through measures to prevent and combat crime […] and through measures for coordination and cooperation between police and judicial authorities and other competent authorities”. The fight against trafficking in human beings since 2002 governed by EU law, first by Council Framework Decision 2002/629/JHA on combating trafficking in human beings 83 and subsequently by Directive 2011/36/EU on preventing and combating trafficking in human beings, protecting its victims.

The cross-border dimension of trafficking in human beings is twofold, with an intra-EU cross-border dimension, and an external dimension involving the crossing of EU external borders (section 2.1).  Consultations with stakeholders demonstrated the necessity of EU action in the area of trafficking in human beings 84 . Eurojust also reported that all 405 cases referred to the EU Agency between January 2017 and June 2019 were transnational and allegedly committed by organised crime groups 85 . Most of the cases (84) selected for analysis 86 involved EU citizens from Romania, Bulgaria, Slovakia, Hungary and Lithuania, while eight cases involved victims from non-EU countries (Nigeria, Ukraine, Belarus and Moldova). Cross-border law enforcement and judicial cooperation is increasingly based on common EU rules across the Member States, which requires a higher harmonisation of relevant national legislation and systematic exchange of good practices 87 . The cross-border dimension does not only concern the nationality of victims but also the modi operandi of the criminal networks perpetrating the crime, which often have ties with other countries than the one of citizenship. Therefore, different elements of the trafficking offence can take place in different Member States and/or non-EU countries. The cross-border dimension of trafficking in human beings brings specific challenges, which require action and coordination at the EU level. These include, but are not limited to, the sharing of information between law enforcement and judicial authorities from different Member States and non-EU countries, identifying whether parallel criminal proceedings are taking place in other countries, acting jointly and quickly in order to make sure that the perpetrators with ties to several countries do not escape justice, gathering evidence that can be admitted in court, taking into account the different national legal systems, conflicts of jurisdiction, as well as identifying and referring victims of trafficking in human beings to assistance and support in the cross-border context.  

While the transnational nature of trafficking in human beings justified EU action in the first place, the increased relevance of the online dimension of the crime warrants for new EU action in the field. Access to the internet and online platforms gives traffickers the opportunity to recruit, control, transport and exploit the victims, as well as move profits and reach out to users everywhere within the EU and outside without crossing any border. It also provides a shield against the identification of traffickers and victims by the law enforcement authorities. A stronger harmonisation of the EU rules and coordination at the EU-level, in cooperation with the EU Agencies, to fight the crime when it is facilitated by technology would enhance the capacity of national authorities to investigate and prosecute such offences, including in collecting digital evidence, carrying out financial investigations, sharing and exchanging information with other Member States when relevant.

The establishment of the position of the EU Anti-Trafficking Coordinator in the Directive, first proposed by the Stockholm programme 88 , shows the recognition of the added value of stronger coordination at the EU level. EU action proved essential in adopting and implementing anti-trafficking policies across the Member States. The EU Anti-Trafficking Coordinator contributes to improving the knowledge on trafficking at the EU level by providing input to the reporting carried out by the Commission every two years on the progress made in the fight against trafficking in human beings and on the data collection. Moreover, the EU-level response has proven an effective tool in specific situations, such as in reducing the risks of, and vulnerability to, trafficking among people fleeing the war in Ukraine. The Common Anti-trafficking Plan, developed under the lead of the EU Anti-Trafficking Coordinator in close cooperation with the National Rapporteurs and Equivalent Mechanisms (NREM), the EU Agencies and the EU Civil Society Platform against trafficking in human beings, highlighted the necessity of EU action in preventing and fighting the crime and resulted in a coordinated approach from prevention and awareness raising measures to the law enforcement and judicial responses.

In light of what is described above, the initiative would contribute to the fight trafficking in human beings, which is a serious form of organised crime with a cross-border dimension, in compliance with Article 83(1) TFEU and Article 82(1) and therefore, does not exceed what is necessary to achieve the objectives of the Treaties. This initiative proposes both non-legislative and legislative measures, which respond to the priorities and key actions of the EU Strategy on Combatting Trafficking in Human Beings and remain within the scope of the current Anti-trafficking Directive. It addresses the main issues that were raised in the context of the evaluation (see section 2.1 of the Impact Assessment). The proportionality of the policy options is further described in section 7.5.

4.4.    What should be achieved?

4.1.4.1.    General objectives

The general objective of the proposal is to strengthen the EU legal framework against trafficking in human beings to ensure that it adequately addresses the challenges identified above.

4.2.4.2.    Horizontal and specific objectives

The horizontal and specific objectives described below aim at responding to the problems identified in Section 2.

4.2.1.4.2.1.    Ensuring adequate prevention, detection and improving the monitoring of trafficking in human beings at the EU level (horizontal)

Strengthening the capacity of all relevant stakeholders to prevent and detect trafficking in human beings through training, exchange of best practices, including on cross-border cooperation between law enforcement and judicial bodies, and reinforcing multi-agency cooperation and coordination at national and transnational level will contribute to improving the fight against the crime. In addition, improving the monitoring and understanding of trafficking in human beings through a better and more systematic collection of data will contribute to having more effective prevention and detection measures, as it will make it possible to adequately assess the full scale of the phenomenon across the EU as well as current trends. This is particularly important for ensuring that policies developed at the national and EU level are tailored to addressing existing challenges and emerging trends in the area of trafficking in human beings.

4.2.2.4.2.2.    Reinforcing the criminal justice response to the crime, including in the cross-border context (specific)

Reinforcing the criminal justice response to the crime will improve the capacity of law enforcement and judicial authorities to fight the crime and adapt to the new modi operandi and business model of traffickers, including in the digital environment. It will further harmonise the EU legal framework with a view to facilitating cross-border cooperation in trafficking cases, with the support of the EU Agencies, and address emerging threats, which have changed the security landscape within the past few years.

4.2.3.4.2.3.    Ensuring that victims of trafficking in human beings receive adequate assistance, support and protection across the Member States (specific)

Improving the overall situation of victims and their access to rights will have an impact on success of investigations, hence on the level of security in the EU. Detection and early identification are crucial to ensure that victims are referred to adequate assistance, support and protection services, which are adapted to their needs. The policy intervention intends to improve cross-border cooperation among EU Member States and with non-EU countries for the referral of victims of trafficking, for instance when they return to their country of origin or are identified in a country other than where the exploitation took place.

4.2.4.4.2.4.    Reducing the demand for the exploited services of victims that fosters trafficking for all forms of exploitation (specific)

The use of the exploited services of victims generates high profits for the traffickers and results in long-term physical and psychological harm for the victims. In this context, demand should be addressed in a comprehensive way, from strengthening the criminal response to the use of exploited services to enhancing awareness-raising activities, education and training. The intervention also aims at developing prevention and awareness-raising activities on the safe use of the internet and social media, especially for children, as well as targeting those who may use of the services exploited in order to mitigate the risks of trafficking in human beings online.

4.3.4.3.    How do objectives relate to the sustainable development goals and the Charter of Fundamental Rights of the EU? 

The objectives relate to the SDGs and relevant targets mentioned in section 1, which set as specific goals to eliminate trafficking in human beings. The general and specific objectives are also consistent with Article 5(3) of the Charter of Fundamental Rights of the EU (the “Charter”), which explicitly prohibits trafficking in human beings.

5.5.    What are the various options to achieve the objectives?

5.1.5.1.    What is the baseline from which options are assessed?  

Section 2.1, as well as Annex 5, provide quantitative and qualitative evidence collected as part of the evaluation, which assess the likelihood that trafficking, as a security threat, a serious form of organised crime and a grave violation of fundamental rights, will persist or even worsen within the coming years in the absence of further EU action. As mentioned above, the scale of trafficking in human beings did not reduce since the date of transposition of the Directive. The trends related to the forms of exploitation, sex and age of the victims have remained consistent over the reporting period. Trafficking for labour exploitation has increased. The number of registered victims for this purpose reached 1 914 in 2019 and 1 833 in 2020, whereas the annual average between 2013 and 2018 was 945. At the same time, the number of legal persons, which are the object of investigations, prosecutions or convictions for trafficking offences committed for their benefits is not known.

The number of recorded suspects nearly tripled over the reporting period (from 2 942 in 2013 to 7 924 in 2019 and 7 290 in 2020). The number of prosecuted individuals also increased, although to a much lesser extent (from 1 892 in 2013 to 3 055 in 2020). However, the number of registered convicted individuals overall decreased from 1 455 in 2013 to 1 295 in 2020, despite some peaks in 2017 (1 734) and 2019 (1 724). It also dropped to 693 in 2018. These statistics highlight that a culture of impunity persists within the EU, which allows traffickers to remain undetected and escape justice.

The evaluation found that the Directive was a major milestone in the fight against trafficking in human beings, which provides for an overarching EU legal framework and contributed to creating a common ground at the EU level. Without further actions, the anti-trafficking legal and policy framework currently in place would continue to apply. The minimum rules on the definition of trafficking offences, the penalties, as well as the prevention and protection of the victims established in the Directive would remain in place. The current framework would possibly be strengthened and complemented by ongoing and recent legislative initiatives in related policy areas, such as on victims’ rights, child sexual abuse and exploitation, due diligence, violence against women (see Section 1).

The Commission would continue to focus on the implementation of the Strategy in order to improve the situation, including by further supporting Member States in implementing the Directive, including through dedicated funding 89 and monitoring via the biannual progress reports adopted in line with Article 20, as well as meetings with the EU Network of National Rapporteurs and Equivalent Mechanisms and the EU Civil Society Platform. It would also ensure the effective enforcement of the Directive in the Member States, including through infringements as appropriate. Member States have fully or partially transposed most of the mandatory provisions of the Directive into their national legal systems 90 . The assessment of the transposition of the Directive carried out in the context of the evaluation showed that Member States have taken additional steps to transpose it, as a follow-up to the Commission’s 2016 “Transposition” report 91 .

Many of the legal, policy and operational initiatives announced in the EU Strategy have already been implemented or have significantly advanced. The Commission put forward two legislative initiatives 92 , as well as guidance 93 which address the responsibility of companies and businesses in reducing demand for, and detecting potential cases of trafficking in human beings in their activities and supply chains. The Commission also proposed actions 94 to strengthen the effectiveness of the Employers’ Sanctions Directive 95 , which prohibits the employment of irregularly staying third-country nationals, including victims of trafficking in human beings.

Actions and tools developed as part of the Common Anti-Trafficking Plan in relation to Russia’s aggression against Ukraine would continue to apply in the broader context of the fight against trafficking in human beings, notably the list of dedicated emergency anti-trafficking helplines to help potential victims, which was compiled and published online 96 . Cooperation with the European Labour Authority and its European Platform tackling Undeclared Work, which started in order to tackle undeclared work, labour exploitation and trafficking in human beings among displaced persons and refugees from Ukraine, would continue.

The advancement of EU policies against criminal groups as set out in the EU Strategy to tackle Organised Crime, including a stronger response to criminal finances upon the adoption of the proposed Directive on asset recovery and confiscation 97 , will limit the capacity to operate of criminal groups involved in human trafficking. The operational response to the crime at the EU level would continue to take place within existing frameworks, such as the European Multidisciplinary Platform Against Criminal Threats (EMPACT) and its Operational Action Plans (OAP) tackling Trafficking in Human Beings and in cooperation with the EU Agencies.

However, this would mean that no new legal measure is taken in order to reduce the scale of the crime whereas the trends show that the phenomenon is still prevalent in the EU. The level of identification of victims would continue to evolve in a similar way, with many of them likely to remain undetected. Traffickers would continue to make great profits from the exploitation of vulnerable people. Moreover, the rate of prosecutions or convictions 98 , including of legal persons, would probably remain low.

The challenges identified would largely be insufficiently addressed, including in terms of prevention measures and early identification and referral of victims.

The baseline scenario would not change the legislative approach in force for addressing the demand that fosters trafficking. The current text of Article 18(4) gives Member States the choice to introduce, or not, rules addressing the use of exploited services. Member States would continue to be able to adopt a “nuanced approach” (e.g. criminalising the use of exploited services obtained only from some forms of exploitation) or stricter approaches (e.g. criminalising the use of exploited services when the user knew or had reasons to know that they were obtained from a victim, or even without any knowledge element). The lack of harmonisation of the EU rules on the criminalisation of the use of services exacted from victims of trafficking may hamper cross-border cooperation, for instance if the conduct is criminalised in the Member State of citizenship of the user but not in the Member State where the services of the victims were used.

5.2.5.2.    Description of the policy options

The Impact Assessment identified three policy options. The first policy option entails non-legislative measures. The second policy option focuses on legislative measures, i.e. amendments to the Directive. The third policy option is a mix of legislative and non-legislative measures.

Stakeholders were consulted on the different measures that are part of the three policy options as part of seven targeted interviews with EU Agencies, EU civil society organisations and one international organisations, as well as case studies interviews with five Member States (France, Hungary, Italy, Netherlands and Romania), which involved national authorities working in the area of trafficking in human beings, law enforcement and judicial authorities and social services or civil society organisations working with victims 99 .

Table 2 – Summary of the problems, objectives and policy options

5.2.1.5.2.1.    Policy option 1: Non-legislative action at EU level or national level

Policy option 1 (P.O.1) consists of a package of non-legislative measures, which would provide support to the Member States in implementing the Directive and generally contribute to strengthening the EU legal and policy framework against trafficking in human beings. P.O.1 builds on the EU Strategy on Combatting Trafficking in Human Beings, which set out a number of policy measures to improve the EU anti-trafficking action, following a thorough examination of the current trends and challenges and extensive consultations with stakeholders. Although some of the measures presented below are mentioned in the EU Strategy, P.O.1 goes beyond the baseline scenario as it focuses on actions that are not yet in force nor were clearly defined in the Strategy. It also takes into account the findings of the evaluation, which highlighted that some of the main challenges in preventing and fighting against trafficking in human beings, as well as protecting the victims, stem from gaps in the implementation of the Directive.

Table 3 – Policy Option 1 (non-legislative measures)

5.2.1.1.5.2.1.1.        Establishing a Knowledge and Expertise Hub on Combatting Trafficking in Human Beings

This measure builds upon the Strategy, which sets out that the Commission would fund and coordinate a set of actions to further improve the policy and operational work to combat trafficking in human beings. This set of actions would de facto serve as a knowledge and expertise hub for Member States and other stakeholders. Such actions are aimed at enhancing the exchange of best practices, including on cross-border cooperation between law enforcement and judicial bodies; facilitating advisory services by practitioners to reinforce multi-agency cooperation and coordination at national and transnational level; helping further enhance support to victims and their referral in Europe and beyond; and promoting awareness-raising, research and data analysis by supporting cooperation between relevant national bodies, for example data institutes and observatories.

The Knowledge and Expertise Hub would act as an umbrella platform for developing policy measures, exchanging best practices and reinforcing cooperation among a community of experts and practitioners in the field of trafficking in human beings. It would focus on the shortcomings identified in the evaluation, especially concerning the collection of reliable and comparable data; early identification of, and referral to assistance and support services for victims, targeted to their specific needs; difficulties for victims to access compensation; insufficient funds for capacity building and training of relevant practitioners, and use of available EU funds by Member States; or the role of the private sectors, including companies, employers and internet and technology companies in preventive and awareness-raising measures.

The Hub would operate via an online platform linked to the Commission’s Anti-trafficking website 100 and existing electronic platforms of the EU Network of NREM and the EU Civil Society Platform, as well as meetings and workshops dedicated to specific topics. The activities of the Hub would allow Member States, civil society organisations and EU Agencies to share best practices, and provide them with tools to strengthen their capacity to monitor, detect and combat the crime. It would also support the work of the EU Network NREM and the EU Civil Society Platform against trafficking in human beings, which are key actors in the monitoring of the transposition and implementation of the Directive.

The actions described below would be developed within the framework of the Hub, among others. The establishment of a Knowledge and Expertise Hub was widely supported by all consulted stakeholders. One public authority, notably, considered that it would be highly relevant in centralising available information on trafficking in human beings at the EU level.

(i) Developing guidelines on data collection on trafficking in human beings within the EU

Horizontal problem 1 (driver 3) highlights that the data collection exercises and the monitoring of trends do not reflect the full scale of trafficking in human beings across the EU. The Knowledge and Expertise Hub would develop guidelines on data collection on trafficking in human beings in the EU, in close cooperation with Eurostat, the EU Network of NREM and the National Statistical Authorities. This would contribute to ensuring harmonised data collection across the Member States. As part of the work of the Knowledge and Expertise Hub on improving data collection and reporting across the Member States, required statistics could be expanded as to include additional indicators, such as the number of persons accessing protection and support; the number of victims accessing compensation; the number and entity of asset confiscations; and the number of financial investigations. The guidelines would also aim at improving the collection of data by the Member States on legal persons.

This measure would improve the knowledge about the crime within the EU and help in ensuring reliable and comparable information to inform evidence-based policies, in line with the Strategy.

(ii) Development of guidelines on National Referral Mechanisms and setting-up of a European Referral Mechanism

This measure addresses the challenges identified as part of specific problem 3, in particular with regards to the fact that existing formal or informal national referral mechanisms are not fully effective and that victims’ support is often not adapted to their specific needs.

The Strategy highlights that the Commission would promote activities such as developing guidelines, toolkits and exchanging best practices among practitioners to improve national structures and cooperation for the identification, assistance and support of victims, including national referral mechanisms. It also sets out that the Commission would contribute towards the establishment of a European referral cooperation mechanism, with the support of relevant EU Agencies.

The European Referral Mechanism would consist of single points of contacts designated by each Member States, which would serve as a single point of reference in case of cross-border victim identification, support and referral. These single points of contact would facilitate and accelerate the communication between Member States authorities in individual cases, ensure a proper follow-up of the victims and provide information about national laws and procedures. They would operate based on guidelines for Member States developed by the Knowledge and Expertise Hub based upon the lessons learnt and best practices of existing Transnational Referral Mechanisms. The guidelines would be developed in close cooperation with the NREM and the civil society organisations in order to identify the minimum standards required for national referral mechanisms.

This measure would contribute to ensuring that victims of trafficking in human beings receive adequate assistance, support and protection across the Member States (specific objective 3). Consulted stakeholders agreed on the importance to develop minimum standards across Member States on victims’ referral, in order to improve cross-border cooperation.

5.2.1.2.5.2.1.2.         Setting-up of a Focus Group of specialised prosecutors against trafficking in human beings

The Focus Group of specialised prosecutors against trafficking is one of the key actions of the Strategy. The objective of the group is to build specialised expertise and intensify judicial cooperation for a more robust criminal justice response to trafficking in human beings. It would provide a forum for practitioners to exchange knowledge, expertise and best practices. It would increase cross-border judicial cooperation and result in more successful investigations, prosecutions and convictions for trafficking offences. The Focus Group would also help in increasing Member States’ use of the support and capacity of coordination of the EU Agencies, in particular Eurojust.

The EU Anti-trafficking Coordinator organised, together with Eurojust, a first meeting of the Focus Group 101 . However, the format and activities, location and source of funding, as well as the frequency of the meetings of the group still need to be determined. This measure intends to respond to specific problem 2, which highlights that the low levels of prosecutions and convictions contribute to a culture of impunity in the EU. Prosecutors and judges participating in the Focus Group could discuss the main challenges they face in combatting trafficking in human beings, notably those that were identified in the evaluation. These include the important reliance on victims’ testimony in criminal proceedings, differences in the interpretation of certain legal concepts or in the legislation of Member States regarding the definition of the trafficking offences 102 and levels of penalties 103 , as well as capacity to conduct financial investigations, seize and confiscate criminal assets and detecting and fighting against trafficking facilitated by the use of technology. As an outcome of these meetings, analytical papers, reports and recommendations could be developed in order to guide and support the work of relevant practitioners.

The Focus Group would generally participate in strengthening the criminal justice response against trafficking in human beings, including in the cross-border context (specific objective 2). Stakeholders consulted on the policy options considered that this measure was necessary. Several judicial authorities highlighted the importance of cooperation within the framework of EMPACT where specialised prosecutors already participate.

5.2.1.3.5.2.1.3.        Close cooperation with the technology companies including online platforms through the inclusion of trafficking in human beings among the areas of work of the EU Internet Forum

The evaluation found that the online dimension of trafficking in human beings was an important and growing threat. Victims are often recruited online and social media is increasingly used as a means to commit the offence. Nevertheless, technology companies, including online platforms, are not sufficiently involved in the prevention and fight against this crime. Under this non-legislative measure, the Commission would step-up its action to raise awareness with technology companies on the risks of trafficking online and encourage them to monitor, detect, limit the spread or remove trafficking in human beings related content. These activities would take place within the EU Internet Forum, which recently introduced trafficking in human beings as one its areas of work 104 . This measure would mainly address specific problem 2, driver 2 through the following activities:

-research of new technical solutions to support companies and national authorities in the detection of tech-facilitated trafficking (e.g. end-to-end encrypted electronic communications);

-prevention and awareness-raising activities on the safe use of internet and social media, which should include reviewing of platforms internal policies;

-partnerships with global online fora and initiatives dedicated to addressing and preventing the dissemination of tech-facilitated trafficking in human beings;

-cooperation with law enforcement: report suspicious cases to law enforcement authorities and to Europol, notably in order to identify new phenomena and emerging trends.

This measure would contribute to specific objective 2 by addressing the responsibility of technology companies in reinforcing the criminal justice response to the crime, as well as to specific objective 4, which highlights the need to develop prevention and awareness raising activities on the safe use of the internet and social media, as well as targeting the users of services that are advertised online as a way to reduce demand.

While some consulted stakeholders highlighted that some technology companies might be reluctant in participating in such cooperation, they all agreed to the importance of this measure in order to improve knowledge of the online dimension and further engage the private sector in the fight against trafficking 105 .

5.2.1.4.5.2.1.4.        Organising an EU-wide awareness raising campaign

Articles 18 of the Directive requires Member States to take appropriate preventive actions, such as information and awareness raising campaigns, research and education programmes, in order to discourage and reduce the demand that fosters all forms of exploitation (paragraph 1) and raising awareness and reducing the risks of people, especially children, becoming victims of trafficking (paragraph 2). Therefore, this measure, which addresses both horizontal problem 1 (driver 2) and specific problem 4 (driver 2), would also contribute to improving the implementation of the Directive.

Under this non-legislative measure, the Commission would organise an EU-wide awareness-raising campaign on the risks of trafficking, with a specific focus on high-risk sectors and high-risk environments, mainly for sexual 106 and labour 107 exploitation. This campaign would be carried out in close cooperation with Member States and civil society organisations and would aim at raising awareness on trafficking within the general public, employers and potential users of services exploited from victims, in line with the Strategy. It would both contribute to ensuring adequate prevention and detection of the crime at the EU level (horizontal objective 1) and to reducing the demand for the exploited services of trafficking victims (specific objective 4).

While consulted stakeholders considered that this measure would effectively contribute to preventing trafficking and reducing demand that fosters the crime, some suggested that such campaign should be tailored to the specific needs of, and situations in the Member States.

5.2.2.5.2.2.    Policy option 2: Legislative action at EU level

While the evaluation showed that the Directive has made an important contribution to improving the situation on trafficking in human beings in the EU, a revision of the Directive would strengthen the fight against the crime and significantly contribute to addressing some of the shortcomings, which cannot only be addressed through better implementation.

The evaluation found that the Directive insufficiently addressed certain aspects, which notably emerged and/or became more relevant since its adoption. Policy Option (P.O) 2 presents several possible legislative changes that would contribute to modernising the Directive in order to better address those challenges. It would aim at improving the level of harmonisation of the legislation across the Member States, for instance when it comes to the forms of exploitation to be criminalised, as well as strengthening the sanctions against legal persons and the legal framework related to the criminalisation of the use of exploited services.

Table 4 provides an overview of P.O 2, including different sub-options for some of the legislative measures.

Table 4 – Policy Option 2 (Legislative measures)

5.2.2.1.5.2.2.1.        Explicitly addressing the digital dimension of trafficking in human beings in the Directive (legislative measure 1)

Currently, 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. This measure would aim at improving the relevance of the Directive, as the evaluation found that the online dimension could be better covered in the EU legislation.

Introducing the online dimension of trafficking into the Directive would allow to better address specific problem 2, which highlights that trafficking in human beings increasingly moved online, creating additional challenges for law enforcement and judicial authorities. At the same time, these challenges foster the development of new and innovative methods to fight against this phenomenon, through the monitoring of websites, the use of social media and websites to investigate and collect information that could be used as evidence, or the tracing of the digital footprint of criminals, such as financial transactions. Therefore, this legislative measure would encourage policy makers and national authorities to further focus on addressing the online dimension, to develop technological methods and tools, as well as to enhance the capacity of law enforcement and judiciary to fight the crime in the digital space, including through training or by setting-up specialised units. More broadly, it would contribute to achieving specific objective 2 to reinforce the criminal justice response to the crime, including in the cross-border context.

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. Nearly all the public authorities (16 out of 19), as well as the majority of civil society organisations (35 out of 58) that responded supported this measure. The impact assessment identified two possible sub-options in this respect.

(I)Introducing the online dimension as part of the definition of the offence of trafficking in human beings

This legislative option takes into account the growing threat of the use of online technology for trafficking in human beings and the worrying evolution of the phenomenon. This policy option could be twofold:

(a)Adding a paragraph under Article 2, which defines the offence of trafficking in human beings, to specifically refer to the online dimension of the crime, including for example the recruitment or advertisement of the victims on dedicated websites or in social media or control over the victim with tracing applications;

(b)Creating a standalone offence for the use of technology and the internet in the recruitment, advertisement and exploitation of a person for the purpose of exploitation. The level of the penalties would remain the same as for the standard offence of trafficking in human beings. 

While the online dimension is de facto covered in the definition of trafficking offences, the explicit inclusion would reinforce the criminal response to one of the most serious changes in the trafficking in human beings landscape since the adoption of the legal instrument.

In addition to strengthening the criminal justice response to this phenomenon, it would contribute to raising awareness, including of online platforms and technology companies, on the prevalence of online content related to trafficking in human beings.

This option would be complementary to, and aligned with, recent legislative initiatives, including the Commission’s proposal for a Directive on violence against women and domestic violence (which introduces the offences of cyber harassment, cyber stalking and cyber incitement to violence and hatred), as well as with the Digital Services Act and the Commission’s proposal for a regulation on preventing and combatting child sexual abuse (which introduce obligations for online platforms and services to monitor, detect and remove illegal online content and child sexual abuse material).

In particular, the Digital Services Act would cover the detection, monitoring and removal of online content related to trafficking in human beings by introducing a due diligence obligation for providers of intermediary services, such as online platforms, with the aim to reduce illegal and harmful content online.

This sub-option was supported by stakeholders consulted as part of the case studies and targeted interviews who underlined the importance to make it clear in the Directive that the crime can be perpetrated both offline and online.

(II)Qualifying the online recruitment, advertisement or exploitation of victims of trafficking in human beings as an aggravating circumstance

Under this option, Member States would be required to introduce more severe penalties when a trafficking offence is committed in the circumstances laid down in Articles 4(1) and (2) of the Directive. Online technology has facilitated all the steps of the trafficking chain and makes it more difficult to identify traffickers. This resulted in a multiplication of trafficking activities online and the commercialisation and exploitation of victims on a massive scale 108 , due to widespread advertisement, live-streaming in different online platforms, as well as the continued availability and the multiple viewings of online content/material related to the exploitation in the digital space. For these reasons, the use of online technology in the recruitment, advertisement and exploitation of the victim could qualify as an aggravating circumstance. This would lead to more severe penalties as envisaged in Article 4(2).

Stakeholders consulted in the context of the case studies were more divided concerning this sub-option. One public authority, for example, highlighted that higher penalties for when the offence is committed through the use of technology would not necessarily lead to a decrease in the number of cases. Two public authorities mentioned that there was a risk that making it an aggravating circumstance would lead to different interpretations across the Member States. Several stakeholders (one law enforcement authority and two civil society organisations) highlighted that this measure would establishing more severe penalties when the crime is committed online than when it takes place offline.

5.2.2.2.5.2.2.2.        Including new forms of exploitation into the definition of trafficking in human beings (legislative measure 2)

Article 2(3) of the Directive includes a non-exhaustive list of forms of exploitation, which allows Member States to address additional forms of exploitation in their national laws. The minimum forms included in the Directive are 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. The transposition assessment carried out in the context of the evaluation of the Directive showed that some Member States transposed the forms of exploitation listed in Article 2(3) as an exhaustive list and chose not to criminalise additional forms. The public consultation indicated that over half (58%) of stakeholders were in favour of including new forms of exploitation in the definition of trafficking in human beings. More specifically, the majority of public authorities (10 out of 19) 109 and non-governmental organisations (32 out of 58) 110 expressed support for this measure.  

This legislative measure addresses one of the key findings of the evaluation according to which Member States often transposed into their national legislation only the forms of exploitation explicitly mentioned in the Directive, although the list in Article 2(3) is non-exhaustive (problem 2, driver 1). It would generally contribute to reinforcing the criminal justice response to the crime, including in the cross-border context (specific objective 2).

Under this option, Member States would have an obligation to expand the list of forms of exploitation within their national law in order to address additional purposes of trafficking, which have evolved since the adoption of the Directive. It would further contribute to harmonising the offence of trafficking in human beings across the Member States, as some Member States already criminalise some of these, while others do not.

Consulted stakeholders were generally in favour of expanding the list of the forms of exploitation that should be included in the Directive. However, some of them pointed to the fact that it would be important to clearly define the conducts that qualify as trafficking offences, even when such conducts relate to forms of exploitation, which are not explicitly covered by the Directive.

(I)Include forced marriage and illegal adoption in the list of the forms of exploitation, which are criminalised under Article 2(3)

Forced marriage and illegal adoption are already included in recital (11) of the Directive, as forms of exploitation that can be covered within the definition of trafficking in human beings, in so far as they fulfil the constitutive elements of the crime. This shows that there was broad consensus among Member States already at the time of the adoption of the Directive. Furthermore, these two purposes of trafficking have consistently been mentioned by stakeholders as forms of exploitation that should be criminalised under the Directive. Although ESTAT only collect data on these forms as part of a larger category of “other” forms, the evaluation found that trafficking for forced marriage and illegal adoption have become more prevalent since 2011 and can no longer be considered as “emerging” trends. Finally, 69% of the respondents to the online survey indicated that the revision of the Directive should criminalise forced marriage as an exploitative purpose of trafficking in human beings 111 . 58% of the respondents considered that illegal adoption should be added under Article 2(3) 112 , in so far as the other elements of the crime (i.e. conduct and means) are fulfilled.

(II)Include more forms of exploitation under Article 2(3)

Another option would be adding even more forms of exploitation within Article 2(3): forced marriage, illegal adoption, illegal surrogacy and social benefit fraud. All these forms of exploitation have been identified in reports adopted by the Commission and EU Agencies as emerging and/or evolving trends, which pose a security threat in the EU. Moreover, 52% of the respondents to the online survey indicated that the revision of the Directive should criminalise illegal surrogacy as an exploitative purpose of trafficking in human beings 113 .

5.2.2.3.5.2.2.3.         Ensuring that legal persons may be subjected to one or more sanctions, which are currently optional in the Directive, in case of conviction (legislative measure 3)

Member States are required by Article 5 of the Directive to ensure that legal persons are held liable for trafficking offences. Article 6 provides an obligation for Member States to implement effective, proportionate and dissuasive sanctions against legal persons, which shall include criminal or non-criminal fines and may include other sanctions. All the provisions of Article 5 have been transposed by the Member States and all Member States provide for the sanction of at least a criminal or administrative fine for legal persons involved in trafficking in human beings, in accordance with the minimum requirements of the Directive. Moreover, most Member States have transposed at least one of the optional sanctions provided for by Article 6 of the Directive 114 . Progress has been done since the Commission 2016 “Transposition” report 115 . For example, Belgium amended its legislation in order to make sure that persons and companies convicted for trafficking in human beings can be excluded from public benefits (Article 6(a)) and to clarify that the partial or complete closure of the establishments which have been used for committing the offence (Article 6(e)) can be pronounced by a judge for a duration from one to twenty years 116 . Nevertheless, the evaluation found that the optional sanctions against legal persons are not widely transposed and that there is a lack of data regarding the application of the sanctions in practice.

This legislative measure aims at addressing problem 2, which highlights that legal persons are not sufficiently held accountable for trafficking offences. 60% of the respondents to the public consultation considered that the Directive has so far contributed to a “small extent” or “not at all” to holding legal persons liable for trafficking in human beings 117 . Moreover, most stakeholders considered that the sanctions on legal persons provided by the Directive were effective (37%) 118 , proportionate (33%) 119 and dissuasive (33%) 120 to a small extent.

Two identified key areas for improvement of the Directive are greater action by legal persons in order to prevent trafficking and reduce demand for trafficked services, and greater action by the authorities in addressing trafficking offences committed by legal persons or as part of the value chain. The limited use of the provision of the Directive laying down other sanctions, which are optional for Member States to transpose (Article 6) hinders the deterrent effect of the liability of legal persons, thereby contributing to their widespread impunity. Requiring the Member States to ensure that legal persons will be subjected to more sanctions upon convictions would strengthen the criminal consequences of trafficking in human beings, increasing the liability of legal persons. This would more generally contribute to reinforcing the criminal justice response to the crime (specific objective 2) but also reducing demand that fosters trafficking in human beings (specific objective 4).

This measure would reinforce the effectiveness of the Commission’s proposal for a Directive on Corporate Sustainability Due Diligence by introducing mandatory criminal sanctions for trafficking offences committed by legal persons.

(I)Ensuring that legal persons may be subjected to some of the sanctions, which are currently optional in the Directive, for the standard offence and to the other (currently optional) sanctions when the offence is aggravated by one of the circumstances included in the Directive in case of a conviction

Other legal instruments address sanctions against legal persons. The Employers Sanctions Directive (2009/52/EC) 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 to the temporary or permanent closure of the establishments that have been used to commit the infringement.

These two measures are among the optional sanctions under Article 6 of the Anti-trafficking Directive 121 . Taking into account the particular gravity of the offence of trafficking in human beings and the limited scope of the Employers Sanctions Directive, which only applies to illegally staying third-country nationals while 56% of the victims of trafficking are EU nationals, the two above-mentioned measures could be made mandatory for Member States to transpose under the Anti-trafficking Directive. This would ensure better coherence between the two legislative instruments 122 .

In addition, Member States would have to ensure that legal persons will be subjected to the other sanctions, which are currently optional to transpose (the temporary or permanent disqualification from the practice of commercial activities 123 ; placing under judicial supervision 124 ; and judicial winding-up 125 ), when the offence is committed with one of the aggravating circumstances referred to in Article 4(2). 126 This concerns offences, which are committed in particularly grave circumstances, such as when the victim is a child or the life of the victim has been endangered.

(II)Ensuring that legal persons may be subjected to all the (currently optional) sanctions for the standard offence of trafficking

Under this option, Member States would have an obligation to ensure that legal persons can be subjected to all the sanctions listed in Article 6 for trafficking offences. This means that they would have to transpose all these sanctions in their national law as possible sanctions. This option is the strictest one among the three options proposed under this legislative measure, especially considering that no Member State has transposed all the optional sanctions under Article 6.

(III)Keeping the sanctions to legal persons optional for Member States to transpose for the standard offence, and mandatory to transpose when the offence is aggravated by one of the circumstances included in the Directive

While this option would contribute to strengthening the criminal consequences against legal persons, it would also give more flexibility to the Member States in implementing it, as it would only concern the gravest cases of trafficking. This option would go less far in terms of holding legal persons accountable for trafficking offences committed for their benefit than option (i).

5.2.2.4.5.2.2.4.         Making it mandatory for Member States to set up formal National Referral Mechanisms and create national focal points for victims’ referrals (legislative measure 4)

Article 11(4) of the Directive obliges Member States to take the necessary measures to establish appropriate mechanisms aimed at the early identification of, assistance and support to victims, in cooperation with relevant support organisations. The transposition assessment (Annex 6) shows that all Member States have different types of mechanisms in line with this Article. However, the broad wording of this provision leaves a lot of discretion to Member States to decide on the form, structure and functioning of these mechanisms. For instance, in Germany, the practical implementation of these measures lies within the remit of the different “Länder” 127 .

This legislative measure would aim at ensuring that victims of trafficking receive adequate assistance, support and protection across the Member States (specific objective 3). Under this option, Article 11(4) would be revised in order to introduce an obligation for Member States to set up formal National Referral Mechanisms. In addition, Member States would be required to create national focal points for the early identification and referral of victims, which would be in charge of identifying the competent services for cases of trafficking in human beings and of coordinating the referral of victims at the national and EU level.

77% of the stakeholders who participated in the public consultation, including the vast majority of public authorities (13 out of 19), of non-governmental organisations (41 out of 58) and of EU citizens (30 out of 32), considered that the Directive should require Member States to establish formal national referral mechanisms. Stakeholders consulted on the policy options as part of the case studies and targeted interviews supported this measure, which would contribute to improving the provision assistance and support to victims, as well as their access to the rights they are entitled to. Several public authorities from Member States suggested to allocate the role of national focal point to the existing NREM in Member States in order to avoid any duplication of efforts and fragmentation of competences.

5.2.2.5.5.2.2.5.        Mandatory criminalisation of the use of exploited services related to trafficking in human beings, with different available options (legislative measure 5)

As mentioned in relation to problem 4 (driver 1), the criminalisation of the use of services exacted from victims of trafficking is not consistent across the Member States. Legislative measure 5 aims at strengthening the criminal response to the use of exploited services through the harmonisation of EU rules as a means to reducing the demand that fosters trafficking (specific objective 4). This sections presents the different options available in order to criminalise the use of exploited services.

(I)Mandatory criminalisation of the knowing use of exploited services only related to sexual exploitation

This option consists in the most limited change in measures addressing the use of exploited services, as it would only concern sexual exploitation. During the consultations, some Member States and stakeholders expressed themselves in favour of this approach at the EU level, basing their opinion on the need to focus on the main form of exploitation. However, although sexual exploitation is the main purpose of trafficking in statistical terms, the figures of labour exploitation are also very high. The proposed criminalisation of the knowing use of services follows an evidence-based criminological assessment in the light of the principle of proportionality. Accordingly, it continues to adopt an equal approach to the demand that fosters all forms of exploitation, without including a distinction that would result in a different treatment of the demand for cheap labour (which fosters labour exploitation) and the demand for sexual services (which fosters sexual exploitation). 

128 129 A limited intervention making the knowledge element mandatory avoids any risks of over-criminalisation, as offenders require actual knowledge that the persons was a victim. On the other hand, knowledge remains difficult to prove in court. However, data from the Member States which adopt a negligence or strict liability approach do not lead to conclude that these result in higher numbers of prosecutions or convictions for offences concerning use of exploited services, in a general reduction of trafficking or of the demand fostering it.

(II)Mandatory criminalisation of the knowing use of exploited services related to all forms of exploitation

The Strategy highlights the need to thoroughly analyse the criminalisation of the knowing use of exploited services and products from victims, as part of the evaluation of the Directive. This option would make the optional provision in Article 18(4) mandatory.

130 131 132 Such a change is consistent with the Commission’s 2017 Communication reporting on the follow-up to the EU Strategy towards the Eradication of trafficking in human being, the European Parliament Resolution and GRETA recommendations, all of which include the knowledge element in relation to all forms of exploitation. This approach limits criminalisation to instances of actual knowledge, not differentiating between the forms of exploitation. It is also supported by 61% of the respondents to the public consultation. Among those respondents, 14 were public authorities, 26 were non-governmental organisations and 28 were EU citizens.

This option would represent an advancement in the criminal justice response, not entailing over-criminalisation or the de-prioritisation of the demand for cheap labour (which fosters labour exploitation) over demand for sexual services (which fosters sexual exploitation). It would harmonise the EU legal landscape, while allowing Member States to adopt more restrictive measures at the national level.

133 134 The new article could include a provision requiring the Commission to assess the impact of the rules criminalising the knowing use of exploited services by submitting a report to the Parliament and the Council five-years after the transposition deadline. The report requirement currently in Article 23(2) was three years after the transposition deadline and the report showed that the timeframe was insufficient to assess the impact of national law.

The provision would not include any minimum penalties, but provide that these shall be effective, dissuasive and proportionate. This would be in line with the rest of the Directive, as it only includes penalties for the main offences and not e.g. for the modes of liability in Article 3 (incitement, aiding and abetting, and attempt).

135 In consultations, one Member State and some civil society organisations have expressed doubts on the possibility of modifying Article 18(4), as they consider that rules criminalising the use of exploited services may result in increased marginalisation and vulnerability of victims, as they would have to conceal their activities.

136 Criminalising the knowing use of exploited services for all forms of exploitation is the most proportionate option. It is the one with the least far-reaching implications for Member States, while going beyond the status quo, since the large majority of Member States already have corresponding regulation in place for at least sexual exploitation. It should also be noted that the European Parliament in its 2021 Resolution expressed its views supporting this approach. Proving the knowledge requirement in court will nevertheless remain challenging.

(III)Criminalisation the knowing use of exploited services or when the use of exploited service committed with serious negligence

This legislative change would adopt a stricter approach to the knowledge requirement for the use of exploited services for all forms of exploitation. The difference with sub-option (ii) is the addition of serious negligence.

137 138 Two Member States adopt a similar standard only for sexual exploitation and one has an even stricter standard (strict liability), but for sexual exploitation only. Accordingly, all twenty-six Member States to which the Directive applies would have to introduce new rules.

Some Member States and stakeholders consider that lowering or eliminating the knowledge requirement may make it easier to prove the crime in court. However, the data from the Member States, which have adopted this approach does not allow to conclude this.

139 Serious negligence is currently an exception in EU legal instruments, where conducts are generally criminalised based on intent to commit the offence or of actual knowledge of specific circumstances. Only one EU legal instrument includes the “serious negligence” standard: the EU Directive on the protection of the environment through criminal law. 

The serious negligence standard may cause issues of legal certainty, especially in crimes committed by physical persons. Negligence would have to be based on indicators about the founded “reasons to know” the person was a victim and on the seriousness of their negligence. Including detailed indicators in the articles of a Directive is not practical. At the EU level, such a legislative change would have to be accompanied by guidance in the recitals of the Directive and/or guidelines to be adopted after the legislative modification. In absence of indicators, Member States would have to develop them in their legislation or jurisprudence, leading to differing interpretations of this standard and lack of harmonisation.

Identifying indicators is complicated for cases of sexual exploitation and may be even more in cases of labour exploitation, for example, if the buyers of very cheap clothes had founded reasons to know that they were obtained from victims trafficked for labour exploitation (if it is later proven that the supply chain of the brand included victims of trafficking.

(IV)Criminalisation of the use of exploited services without knowledge requirement

This legislative change would adopt the strictest approach to the use of exploited services. It would suffice that perpetrators use exploited services even if they did not know and did not have reasons to know that the person was a victim of trafficking. This legal standard corresponds to a requirement of strict liability.

140 141 All twenty-six Member States to which the Directive applies would have to introduce new rules with this approach. One Member State adopts this standard, but only for sexual exploitation. Three Member States adopt the “equality model”, which criminalises any use of sexual services, regardless of whether the person is a victim of trafficking. This model does not focus specifically on trafficking, but it indirectly includes the use of exploited services.

Strict liability is used only exceptionally in criminal law, mostly for minor offences that do not involve imprisonment. Strict liability was never used in an EU legal instrument.

142 Criminalisation provisions generally require intent, knowledge or, exceptionally at least a form of negligence, It is important to note that the only Member State that adopts a strict liability approach, although for sexual exploitation only, is one of the only two Member States who have a common law legal system.

In consultations, a number of Member States and stakeholders expressed their views not to go beyond the standard of knowledge, as it is not deemed appropriate for criminal law. Some Member States and stakeholders consider the rules on the criminalisation of the use of exploited services at odds with victims’ rights, as they may result in marginalisation, further vulnerability and increased dependence of victims on their traffickers. Although the victims’ activities are not criminalised per se, the users of these are breaching the law. Accordingly, victims would have to exercise their activities (e.g. forced prostitution, forced labour) in a concealed manner. This brings them closer to the traffickers, hampering the identification and the provision of protection, assistance and support services.

Some stakeholders and Member States consider that removing the knowledge element may make it easier to prove the crime in court. The data from the only Member State which removed the knowledge element does not allow to come to this conclusion.

(V)Requirement of different knowledge element depending on the form of exploitation

This approach would differentiate between different forms of exploitation either:

-Using recklessness (“had reasons to know”) for sexual exploitation and knowing use for other forms of exploitation 143 ; or

-Using strict liability (no knowledge requirement) for sexual exploitation and knowing use for other forms of exploitation.

These approaches would avoid the issues related to the use of services resulting from labour exploitation mentioned in sub-option (iii) by keeping the standard for these to knowing use.

On the other hand, as mentioned in sub-option 1, a different approach based on the forms of exploitation would result in a different treatment of the demand for cheap labour (which fosters labour exploitation) and the demand for sexual services (which fosters sexual exploitation). Moreover, the data collection does not support that standards stricter than knowledge (even only for sexual exploitation) be it under recklessness or strict liability, lead to higher numbers of prosecutions or convictions.

5.2.2.6.5.2.2.6.         Introducing in the Directive an obligation for Member States to collect and report data on trafficking in human beings to the Commission every year

Despite improvements, persisting gaps in the data collection prevent statistics from capturing the whole scale of trafficking in human beings within the EU. The evaluation found that there is a lack of data on the number of persons accessing protection and support; the number of victims accessing compensation; and the number of confiscated assets. Furthermore, considerable time lapse between the Commission’s biannual data collection and the date of publication of the report (usually two years) hinders an up-to-date monitoring of the evolution of the situation (horizontal problem 1, driver 4).

The recitals of the Directive mention that, in order to evaluate the results of anti-trafficking action, the EU should continue to develop its work on methodologies and data collection methods to produce comparable statistics. Article 19 of the Directive further includes gathering statistics among the tasks of NREM. However, the Directive does not include a formal obligation to collect data on a regular basis, or any indication on the type of data that should be collected.

Under this policy option, Member States would be formally required to collect data on trafficking in human beings and report those statistics to the Commission on an annual basis in order to have a more up-to-date overview and monitoring of the scale of the phenomenon, as well as of emerging trends. The amended provision would explicitly mention the categories of disaggregated data that Member States should collect as a minimum, such as the forms of exploitation, sex, age and citizenships of the victims and of the traffickers (suspects, prosecuted and convicted). This legislative measures would contribute to improving the monitoring of trafficking in human beings at the EU level (horizontal objective 1).

Stakeholders consulted on the policy options agreed to the effectiveness of this measure. As part of the case studies interviews, they highlighted the importance of having common indicators in order to ensure a systematic data collection. Two public authorities highlighted the need to avoid creating additional burden on Member States to collect data.

It should be underlined that all Member States already collect and transmit data to the Commission every two years. The Commission moved from a biannual to an annual data collection in 2021. Nearly all Member States 144 were able to provide data on all the main indicators by October 2022.

5.2.3.Policy option 3: Legislative action at EU level in combination with non-legislative measures

Policy Option 3 consists in the non-legislative measures of P.O.1 combined with the legislative measures and selected sub-options of P.O.2. This policy option would be in line with the EU comprehensive approach to combating trafficking in human beings through concrete legal, policy and operational initiatives, set out in the EU Strategy.

Table 5 – Policy Option 3 (non-legislative and legislative measures)

As for P.O.2, the legislative measures under P.O.3 specifically address the aspects of the Directive, which do not adequately respond to new or emerging trends (such as the online dimension or other forms of exploitation) and considerably hinder the achievement of the objectives of the Directive. These legislative measures also focus on those provisions of the Directive, which left too much discretion to Member States in their transposition, either because they were not sufficiently detailed or because they were left optional. As a result, those measures were transposed in an uneven way across the Member States, which contributed to legal uncertainty and difficulties in cross-border cooperation. The specific sub-options, which are part of P.O.3 are considered to target the legislative gaps found in the evaluation in the most effective way, taking into account potential trade-offs for Member States and the outcomes of the consultations with stakeholders.

The non-legislative measures described under P.O.1 would provide support to national authorities in transposing and implementing the amended provisions of the Directive. At the same time, these measures would contribute to improving the general transposition and implementation of the Directive, in particular the provisions that would not be modified.

The introduction of the online dimension in the Directive (legislative measure 1, sub-option (i)) was widely supported by stakeholders consulted on the policy options as part of case studies and targeted interviews who considered that it would be important to introduce an explicit reference to the online dimension in the Directive. This measure would be complemented by enhanced cooperation between the Commission and internet companies within the EU Internet Forum, in cooperation with the Member States and the EU Agencies. This would allow to have a comprehensive approach by:

-strengthening the legal framework when the crime if committed with the use of technology;

-enhancing the operational capacity of national authorities to break the digital business model of traffickers; and

-increasing awareness of online companies of the risks of trafficking in human beings on their platforms, with the aim to improving the detection and removal of trafficking in human beings related content.

It should be underlined that the online dimension is a relatively new phenomenon, which has become more important within the past years. Reinforcing the focus on this aspect through legislation as well as prevention and awareness raising measures, in cooperation with the technology companies and national authorities, would also contribute to increasing the knowledge of the phenomenon and how to better address it.

The forms of exploitation would be extended in the definition to include forced marriage and illegal adoption (legislative measure 2, sub-option (ii)) as the existing Directive already refers to these criminal conducts in its Recitals but they do not appear explicitly in the definition.

The sanctions against legal persons would be strengthened by requiring mandatory transposition of the measures, which are currently optional in Article 6 of the Directive, either for the commission of the “standard” trafficking offences, or when the offence is committed with an aggravated circumstance (legislative measure 3, sub-option (i)). While some stakeholders expressed doubts regarding the added value of such measure in practice, others, including public authorities, underlined its deterrent effect as legal persons would be less likely to resort to exploitative working conditions. This legislative measure would be complemented and reinforced by various non-legislative measures, such as work with Member States within the newly created European Platform Tackling Undeclared Work within the European Labour Authority or enhanced cooperation with companies from the high risk sectors.

The mandatory establishment of formal National Referral Mechanisms and creation of national focal points for victims’ referrals (legislative measure 4) would go hand in hand with the non-legislative measure to develop guidelines on minimum requirements and standards that National Referral Mechanisms would have to meet, and would contribute to harmonising referrals at the EU level. This would also facilitate the setting-up of a European Referral Mechanisms, which is one of the key actions of the Strategy.

The introduction of an obligation for Member States to collect and report data on trafficking in human beings to the Commission every year within the Directive (legislative measure 6) would be accompanied with the developing of guidelines in order to support Member States in harmonising their approach to collecting data and possible organisation of workshops within the framework of the Knowledge and Expertise Hub.

Finally, Member States would be required to criminalise the use of services which are the object of exploitation with the knowledge that the person is a victim of trafficking in human beings (legislative measure 5, sub-option (ii)). While the stakeholders consulted on the policy options highlighted the difficulties to prove knowledge, they also agreed on the importance to punish the behaviour of those knowingly using the services or goods exacted from victims of trafficking. Some stakeholders mentioned that, from a legal perspective, it was crucial to keep the requirement of “knowledge”. This legislative measure would be accompanied by other measures, including the EU-wide awareness-raising campaign, aimed at discouraging the demand that fosters trafficking.

The Focus Group of specialised prosecutors against trafficking in human beings as a major non-legislative measure would allow Member States to exchange approaches and practices in relation to different legislative measures, in addition to the activities mentioned under P.O.1.

5.3.Options (legislative measures) discarded at an early stage

5.3.1.5.3.1.    Equality model

Some stakeholders consider that the equality model 145 indirectly addresses the use of exploited services. It consists in the criminalisation of the purchase of sexual services regardless of whether the person is a victim of trafficking. It is in force in some Member States 146 , either as stand-alone approach to reducing demand for sexual (not necessarily exploited) services, or in combination with rules criminalising the use of exploited services. It is not considered among the possible legal modifications because it would entail legislating on a different conduct (the purchase of sexual services, prostitution) than trafficking. The higher rates of convictions under the equality model are due to the fact that the elements of trafficking do not need to be proven in court. It suffices that sexual services were purchased from any person, regardless of whether they were trafficking victims, and this is a far less complex conduct to prove in court.

The legal basis of the Directive is Article 83 TFUE, which includes trafficking and sexual exploitation. The purchase of sexual services is beyond trafficking and, hence, the scope of the Directive.

5.3.2.5.3.2.    Other legislative changes discarded at an early stage related to assistance of victims and confiscation

Some legislative changes were considered as part of the evaluation and impact assessment but discarded at an early stage, including modifications of the provisions referring to the gender-specific aspects of trafficking, the specific vulnerabilities of the victims, including disabilities, to the protection of victims participating in criminal proceedings, as well as to victims’ access to compensation. The evaluation found that these aspects are already appropriately addressed in the Directive since 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 increasing the range of services available in Member States for victims of trafficking. The shortcomings described in the evaluation are mainly linked to the weaknesses in the implementation of the Directive. Therefore, they should be addressed as part of the non-legislative measures proposed by this initiative and as part of the implementation of the Strategy.

Deficiencies in seizure and confiscation of the proceeds of trafficking in human being offences are addressed in new Commission proposal for a Directive on asset recovery and confiscation 147 .

6.6.    What are the impacts of the different policy options and who will be affected?

None of the policy options are expected to have an environmental impact, as already underlined in the Evaluation Roadmap/Inception Impact Assessment 148 . Therefore, this criteria is not addressed in the analysis below.

6.1.6.1.    Security impact

P.O.1 is expected to contribute to reinforcing the internal security within the EU. The measures proposed as part of this option are generally aimed at enhancing the implementation of the current Directive, which provides for a common framework at the EU level to fight against one of the most serious crime, often committed within the framework of organised crime. The non-legislative measures would increase the capacity of national authorities and involvement of the private sector, in particular technology companies, in order to better prevent and fight against trafficking in human beings. However, P.O.1 would not address the legislative gaps, which were found in the context of the evaluation and hinder the level of security provided by the Directive.

P.O.2 is expected to have a stronger impact on security than P.O.1 due to the fact that Member States would be legally bound by these measures. P.O.2 would ensure a higher level of harmonisation of the criminal law against trafficking in human beings in Member States and thus, a higher level of security for citizens. The legislative changes related to the criminalisation of trafficking offences when committed online (legislative measure 1), of additional forms of exploitation (legislative measure 2), sanctions against legal persons (legislative measure 3) and the criminalisation of the use of services exploited from victims (legislative measure 5) would be the legal basis of law enforcement and judicial response. In addition to fostering more investigations, prosecutions and convictions, those measures would also act as a deterrent and as a result reduce the incidence of the crime.

P.O.3 is considered to have the highest impact on security as it would combine the separate impacts on security of P.O.1 and P.O.2. While strengthening the criminal law response to trafficking in human beings is essential to reduce the crime, this needs to be accompanied by policy measures, which aim at enhancing cross-border cooperation among law enforcement and judicial authorities and with the private sector.

6.2.6.2.    Social impact

P.O.1 would have a positive impact on society, especially as it would aim at reducing the harm suffered by victims, including children. It would improve the functioning of the referral mechanisms within the Member States and ensure better national coordination among assistance and support services and cross-border cooperation. It would enhance the capacity of stakeholders likely to come into contact with victims of trafficking, to identify victims at an early stage and refer them to adequate services. This would be further reinforced by other activities that could take place within the framework of the Knowledge and Expertise Hub. Such activities would address the gaps in the implementation of the Directive in relation to victims’ rights, such as the fact that assistance and support services are not sufficiently tailored to the specific needs of victims, the non-prosecution and non-punishment of the victims, difficulties for victims to access compensation and protection of the victims in criminal proceedings.

Awareness raising campaigns at the EU level and on the safe use of the internet would also benefit to society as a whole. By promoting education and raising awareness of consumers and potential users of services and cheap labour exacted from victims of trafficking, these measures would eventually aimed at changing individuals’ behaviours, reducing demand that fosters trafficking, as well as the vulnerability of persons at higher risk of becoming victims.

P.O.2 would have a positive social impact, as it would contribute to ensuring a higher level of safety of citizens against crime and fight impunity of criminals. The obligation for Member States to establish National Referral Mechanisms (legislative measure 4) is the legislative measure with the highest potential in terms of impact on society since it would reinforce the current text of the Directive with a view to improve the assistance and support to victims of trafficking in human beings. However, it would not be sufficient in itself to harmonise practices across Member States. Criminalising the use of exploited services (legislative measure 6) would contribute to reducing and discouraging the demand for exploited services of victims of trafficking.

The impact of P.O.3 on society is expected to be significantly higher than P.O.1 and P.O2, mainly due to the combination of non-legislative and legislative measures. Developing guidelines, for example, would help national authorities in transposing and implementing the new obligation to establish National Referral Mechanisms. It would allow a higher level of harmonisation of practices across Member States and, therefore, a better protection of the victims, both at the national and transnational levels. Moreover, the social impact of the criminalisation of the knowing use of exploited services would be increased by non-legislative measures, which would aim at changing societal behaviours through education and awareness raising to reduce demand.

6.3.6.3.    Economic

Trafficking in human beings causes significant costs for the economy and the society. In 2016, the estimated total cost was over EUR 2.7 billion in the EU. This figure includes assistance and support services to victims, coordination and law enforcement activities as well as the lost economic output of the victims who do not participate in the legal economy and the lost quality of life for the victims 149 . Stepping up the fight against trafficking in human beings would generally result in reducing the scale of the crime and its costs on society and the economy.

Table 5 – Summary of costs and benefits for the policy options

The overall amount of P.O.1 is estimated to be up to EUR 2 290 000 a year to be financed through regular EU funding.

P.O.1 would have a limited economic impact on businesses and companies since some of the measures, such as the enhanced cooperation with the Commission within the framework of the EU Internet Forum and the EU-wide awareness raising campaigns would require voluntary engagement of the internet companies, businesses and employers.

Support to the Knowledge and Expertise Hub on Combatting Trafficking in Human Beings for improving the policy and operational work addressing the cross-border and transnational challenges related to trafficking in human beings is already planned through procurement contract the Internal Security Fund Thematic Facility work programme for 2021 and 2022, although no procurement contract has been launched yet. Its budget for the first two years is estimated to be up to EUR 4 million.

The work of the Focus Group of specialised prosecutors would mainly concern the organisation of one or two meetings per year and the development of guidelines and handbooks on the specific issues discussed during the meetings. This would require limited additional resources, which would be mainly sustained by the Commission and Eurojust. The cost of the meetings is estimated to be maximum EUR 40 000 per year, when these take place in person.

Cooperation with the internet companies, including in the context of the EU Internet Forum, is already ongoing and would not require additional budget. The EU-wide awareness raising campaign would also be financed through EU budget under the Internal Security Fund. The estimated cost for this campaign is EUR 250 000.

The economic impact of P.O.2 would mainly relate to administrative costs linked to the transposition and implementation of new legislative measures. The aggregation of the available estimated costs for Policy Option 2 would amount to an estimate of EUR 127 235 011 per year. However, it is not possible to have an overall estimate of the cost of all the individual legislative measures, especially when data is not available.

Legislative measures 1 and 2 are criminalisation measures, which respectively consist in the introduction of an explicit reference to the use of the internet for the commission of trafficking offences and the addition of further forms of exploitation in the definition of trafficking in human beings. The use of technology to commit trafficking offences already falls within the scope of the Directive. In addition, some Member States have already included some additional forms of exploitation within their legal systems (e.g. forced marriage and illegal adoption) and victims of trafficking for “other forms” of exploitation amount to 11% of the total number of victims registered in the EU. As such, these two criminalisation measures do not imply additional costs for the Member States. However, it is likely that the increased focus on the online dimension and on further forms of exploitation would result in a higher number of investigations, prosecutions and convictions. It is difficult to estimate in concrete terms the extent of such increase, if any, as the number of cases does not just depend on criminalisation measures, but also on the level of criminal activities and the effectiveness of the law enforcement response in Member States. Moreover, it is not possible to estimate how many victims are concerned by the online dimension of trafficking in human beings, including among those registered as the use of technology varies from case to case and often only concerns one or few elements of the trafficking chain. It is however estimated that every additional investigation on top of the current average would cost EUR 77 711, each additional prosecution would cost EUR 56 379 and each additional conviction would cost EUR 52 838 150 .

Statistics from the 2015-2020 reporting period indicate that the average number of victims of trafficking for “other forms” of exploitation, including forced marriage and illegal adoption, per year was 626. Based on this number, the costs of legislative measure 2, sub-option (i) can be roughly estimated at EUR 117 048 083 per year for national authorities. It should be underlined that this figure represents the maximum amount that this measure could cost, as disaggregation of the specific forms of exploitation covered by the “other forms” category is not available.

These costs would be outweighed by the benefits brought to society as a whole by identifying and protecting victims of trafficking, prosecuting and convicting traffickers and confiscating criminal instrumentalities and proceeds).

Legislative measure 3 concerns the mandatory transposition of some or all the sanctions on legal persons. This would generate procedural steps to put in place such measures and their enforcement. Three of the optional measures that would become mandatory (exclusion from entitlement to public benefits or aid; temporary or permanent disqualification from the practice of commercial activities; and temporary or permanent closure of establishments which have been used for committing the offence) would have negligible costs. Such costs would be by far outweighed by the benefits of reducing the possibilities to infiltrate the legal economy, and of ensuring a fairer economy where companies acting by the rules benefit from the reduction of competition from businesses which take advantage of forced labour. The other two sanctions (placing under judicial supervision and judicial winding up) would imply more resources for procedures and enforcement at the judicial level. This would be justified by the need to step up the criminal justice response to trafficking offences committed for the benefit of legal persons. It is difficult to estimate the costs of making some of the currently optional sanctions on legal persons in the Member States mandatory to transpose. This is mainly because Member States have never reported any data on investigations, prosecutions or convictions of legal persons for trafficking offences. In the absence of figures of conviction of legal persons (and let alone of the sanctions imposed on them), it is not possible to estimate the costs that this measure would entail. Under sub-option (i), Member States which have not yet transposed the optional sanctions of the exclusion from entitlement to some or all public benefit 151 and the temporary or permanent closure of the establishments that have been used to commit the infringement 152 would have to transpose them. All Member States would have to transpose the other optional sanctions in the context of aggravating circumstances, unless these sanctions are already available for standard trafficking offences. However, these sanctions would be applicable in a more limited number of cases. Additional transposition and implementation costs would by incurred by Member States for sub-option (ii), as they would have to transpose all the optional sanctions on legal persons. None of the Member States have transposed all of the optional sanctions. Finally, the cost related to the transposition of sub-option (iii) would be the same as for sub-option (iii), although these measures would only have to be applicable when the offence is committed with an aggravating circumstance.

Legislative measure 4 concerns the formalisation of National Referral Mechanisms and the appointment of National Focal Points for the referral of victims. All Member States but one have a formal or informal mechanism currently in place. The Member State that does not have a referral mechanism 153 would incur the costs of establishing one. There is no data to estimate the cost of establishing a mechanism. However, as the concerned Member State already carries out decentralised referral and assistance services, the costs incurred would be limited. Member States which have an informal referral mechanism would incur the costs of formalisation 154 . This would result in limited costs, which would be offset by the benefits of harmonised procedures at the EU level, especially in cross-border cases. Three Member States have either recently established (Portugal) or are currently in the process of establishing a formal national referral mechanism (France and Ireland, respectively). This formalisation consists the elaboration and implementation of protocols defining the procedures for the identification and referral of child victims 155 , an official document including indicators for the identification of victims and defining the roles of all relevant stakeholders 156 , or expanding the list of organisations competent for the identification and referral of victims and formally involving designated civil society organisations 157 . These measures are generally accompanied by a modification of the existing legislation (e.g. criminal code). While this does not indicate the cost of the formalisation of the national referral mechanism, Portugal allocates EUR 1 600 000 every year for victim support services, which contributes to the functioning of the national referral mechanism. In France, the National Referral Mechanism is based on based practices and consists in formalising existing cooperation among stakeholders involved in the identification and referral of victims. The appointment of a central focal point would have a limited economic impact on the Member State that does not have a national referral mechanism in place. Moreover, Member States already have designated National rapporteurs and/or equivalent mechanisms who could act as national focal points. These additional resources are by far outweighed by the benefits related to better coordination, which would lead to a more efficient and cost-effective provision of referral and assistance services, as well as facilitate the setting-up of a European Referral Mechanism.

Legislative measure 5 consists in the criminalisation of the use of services exacted from victims of trafficking. This measure would have an impact on law enforcement and judicial authorities only in the Member States that do not already have a provision on this matter or have one that covers only some forms of exploitation. It is estimated that the incurred cost would be about EUR 10.6 million per year in total 158 for the seven Member States that currently do not have any provision on the use of services 159 . These figures would be lower for countries that already criminalise the use of services limited to some forms of exploitation 160 . Since this measure aims at discouraging demand for exploitation, its effective implementation is expected to reduce the number of trafficking offences and consequently the costs related to the investigation, prosecution and convictions thereof. Demand reduction would also reduce the number of victims and hence the costs related to their support.

Legislative measure 6 consists introducing an obligation for Member States to collect and report data regarding trafficking in human beings on a yearly basis. The national statistical authorities of all Member States already gather statistics and, since 2021, transmit them every year to the Commission in the context of the EU-wide data collection on trafficking in human beings. Therefore, no significant additional costs are estimated. The EUROSTAT data collection is already budgeted by the Memorandum of Understanding between Directorate General Migration and Home Affairs and EUROSTAT for 2022. As of 2023, it will fall under the EUROSTAT budged for criminal statistics.

P.O.3 would amount to an aggregated estimate of EUR 129 275 011. P.O.3 would have a higher economic impact, as it would combine the estimated costs for P.O.1 and P.O.2. The cost related to the legislative measures, which are part of P.O.3 would be similar to the cost of P.O.2. Nevertheless, it is clear from the analysis of P.O.2 that legislative measure 2 sub-option (i) (addition of forced marriage and illegal adoption among the forms of exploitation criminalised in the Directive) would have a lesser cost than sub-option (ii), which would criminalise more forms of exploitation, thereby creating an obligation for national authorities to initiate investigations and criminal proceedings in a higher number of cases. At the same time, the combination of legislative and non-legislative measures would further improve the capacity of law enforcement and judicial authorities to deprive traffickers from the proceeds of their illegal activities and from infiltrating the legal economy. Moreover, improving the fight against trafficking would reduce the costs incurred by the crime for the society, since fewer number of victims would necessitate less interventions from specialised services as well as from law enforcement, health services and social protection 161 . 

The benefits of this initiative would mainly consist in reducing the societal cost by ensuring that victims of new forms of exploitation are identified, assistance and supported; enhancing demand reduction; and ensuring more focus on the online dimension and improving the referral of victims to appropriate services. Moreover, the initiative will contribute to ensuring a fairer economy where legal persons convicted for trafficking offences are deprived from the proceeds of their illegal activities and cannot participate in the EU market, for instance by being prevented from receiving public benefits. This report makes an attempt at quantifying the general benefits of this initiative. However, it not possible to give a disaggregated analysis of the benefits per policy option.

The cost of the lost economic output is estimated at EUR 59 537 per victim and EUR 479 973 675 in total in the EU per year 162 . These costs are linked to the fact that 100% of the potential economic output is lost to the victim and to economy and society when an adult person is in trafficking or when the victim is in specialised services or helping law enforcement. Some economic output potential is also lost for several years after trafficking, as the prevalence of being unemployed or unable to work due to sickness by the physical violence, sexual violence and threats suffered during the trafficking. Therefore, measures aimed at reducing the scale of trafficking would result in a higher amount of people being able to participate in the economy as a result of not becoming victims of trafficking. In addition, improving the early identification of, and the quality of assistance and support services provided to victims would probably increase the possibility of victims to access the labour market and stay in employment, thus also facilitating their re-integration into society.

Moreover, victims of trafficking are subject to physical violence, sexual violence and threats that reduce the length and quality of life. The cost of the loss of quality of life include physical injuries sustained by the victims and homicides committed during trafficking, fear, depression and anxiety during trafficking and mental health harms post-trafficking. It is estimated at EUR 80 063 per victim and EUR 642 669 538 in total per year in the EU.

Therefore, by reducing the number of victims of trafficking and increasing the number of persons who can participate in the legal economy, as well as by improving the quality of life of the victims, the benefits brought by this initiative would amount to an estimate of EUR 1 122 643 213. This estimate also include to a certain extent lost profits for traffickers, who would not benefit from the exploited labour and services of victims. As P.O.3 has an incremental character as compared to P.O.1 and P.O.2, its benefits would certainly be maximised as compared to the other policy options. As a result, the costs of P.O.3 for national authorities and the EU (EUR 129 275 011) would be outweighed by the quantified benefits.

6.4.6.4.    Fundamental rights

All policy options are expected to have a positive impact on fundamental rights, as they all contribute to preventing and fighting trafficking in human beings, and to protecting the victims of the crime, which is prohibited by the Charter. They also strengthen the protection of other fundamental rights enshrined in the Charter, including the right to human dignity (Article 1), the right to the integrity of the person (Article 3) and in particular the prohibition of making the human body and its parts a source of financial gain (Article 3(c)), the prohibition of inhuman or degrading treatment or punishment (Article 4), prohibition of slavery and forced labour (Article 5), the right to liberty and security (Article 6) and the rights of the child (Article 24). The gender-specific and child sensitive approach is integrated in, and streamlined throughout all the measures proposed in the policy options, which contributes to promoting the principle of equality (Title III of the EU Charter), in particular equality between women and men (Article 23).

Nevertheless, P.O.2 and P.O.3 would have a higher impact than P.O.1, due to the fact that they are legally binding and impose further obligations on the Member States in criminalising certain conducts, which are particularly harmful for the victims. Moreover, P.O.2 and P.O.3 would both keep the gender-specificity of the current text of the Directive and address forced marriage as a form of exploitation that affects mostly women and girls. P.O.2 and P.O.3 do not provide for provisions specifically targeting any specific group, such as persons with disabilities or asylum seekers. It is sufficient that groups are not adversely affected by, and that their position is taken into account as part of, the proposed legislative measures. 

It could be argued that stricter measures, e.g. to consider the use of technology to commit one of the elements of the offence as an aggravating circumstance (legislative measure 1, sub-option (ii)) or to criminalise as many forms of exploitation as possible (legislative measure 2, sub-option (ii)), would be more beneficial when it comes to the safeguarding of fundamental rights. However, as mentioned in relation to the analysis of the different options for the criminalisation of the use of exploited services, stricter criminal law approaches do not necessarily result in better protection of fundamental rights, as they are sometimes more difficult to apply in practice. Legislative measure 5, sub-option (ii) would increase the protection of victims as compared to the baseline. At the same time, it would not go beyond the threshold of “knowledge” therefore respecting the usual required level of participation under criminal law. Therefore, P.O.3 is consider to have the highest impact on fundamental rights.

7.7.    How do the options compare?

The assessment of each policy option includes numeric ratings of the magnitude of the expected effects vis-à-vis the baseline scenario in relation to each criterion and impact considered. Whereas the baseline scenario has been, by definition, rated with ‘0’ in relation to each criterion, the other three policy options have been scored on a scale from 1 to 3 where 1= Small extent / 2=Moderate extent / 3=High extent. A score of 0 means that the option would have the same effect as the baseline scenario. The ratings have been based on the triangulation of both qualitative and quantitative data collected throughout the evaluation and Impact Assessment by means of desk research, interviews, focus groups and an online survey with EU bodies and representatives from the Member States and civil society organisations, two technical workshops, and the Public Consultation.

Different weights have been allocated to different criteria and impacts based on their relative importance. More precisely, the effectiveness and efficiency criteria were prioritized based on the fact that it was deemed as highly important for the policy options to be effective towards the achievement of the specific objectives, as well as cost-effective (i.e. expected benefits overweight the costs). Similarly, security and fundamental rights impacts have been prioritised since social and economic impacts are consequences of the positive impacts on the overall security of EU citizens, businesses and public authorities. The security, social, economic and fundamental rights impacts of the policy options are described in Section 6.

In the table below, numbers in brackets depict the relative weight of each criterion and type of impact for the Multi-Criteria Analysis. The criteria used to assess the effects have been rated in relation to each specific objective whereas the types of impacts have been rated in relation to each policy option as a whole.

Table 6 – Comparison of policy options

7.1.7.1.    Effectiveness

The effectiveness of each policy option is assessed against each of the specific objectives of this initiative.

7.1.1.7.1.1.    Ensuring adequate prevention, detection and monitoring of trafficking in human beings

P.O.1 is expected to increase the capacity of national authorities to detect trafficking in human beings through measures, which are aimed at reinforcing cooperation among stakeholders, which are likely to come into contact with victims. However, P.O.1 would go to a smaller degree beyond the baseline scenario since it only contains non-legislative measures, which are linked to the implementation of the Strategy.

P.O.2 would be more effective than P.O.1 due to the legal obligations it would include. Notably, making the data collection on trafficking in human beings mandatory and clarifying some aspects of the data collection in the Directive (legislative measure 6) would increase the level of legal certainty among national authorities regarding the gathering of statistics. As a consequence, it would increase knowledge about trafficking in human beings.

P.O.3 would maximise the effectiveness of P.O.1 and P.O.2, as the non-legislative measures as part of the Knowledge and Expertise Hub would support national authorities in better transposing and implementing the legislative measures.

7.1.2.7.1.2.    Reinforcing the criminal justice response to the crime, including in the cross-border context

P.O.1 would reinforce the criminal justice response to trafficking in human beings, notably through the formal Focus Group of specialised prosecutors. The Focus Group would foster cooperation among judges and prosecutors from different Member States and non-EU countries through the sharing of expertise and best practices. Fostering cooperation with the internet industry in the context of the EU Internet Forum, in cooperation with Member States and EU Agencies, in particular Europol, would also increase the capacity of national authorities to fight the crime online.

The evaluation found that certain aspects of the criminal justice response to the crime are not sufficiently and/or adequately addressed in the Directive. P.O.2 would aim at addressing these gaps, in particular when it comes to explicitly addressing the digital dimension of the offence, currently only implicitly covered by the Directive (legislative measure 1, sub-option (i)). With respect to the criminalisation of additional forms of exploitation (legislative measure 2), both sub-options (i) and (ii) would contribute to a stronger response to the crime. However, the criminalisation of only forced marriages and illegal adoptions as exploitative purposes reflects the most pressing concerns and may be easier to achieve in practice since the recital already mentions that these forms could be covered by the definition of trafficking. The list of the forms of exploitation would remain non-exhaustive, which means that Member States would still have the option to include more purposes of trafficking than those explicitly mentioned in the Directive. Moreover, with a stricter approach to the sanctions against legal persons, P.O.2 would increase the criminal justice response for cases when trafficking offences are committed for the benefit of companies or businesses. Requiring Member States to ensure that legal persons will be subjected to the sanctions, which are already provided for in Directive 2009/52/EC (legislative measure 3 sub-option (i)) is deemed to be the most effective measure. Member States should already have adopted such sanctions in their legal system for cases of illegal employment of third-country nationals. They would only have to expand their application to trafficking offences. At the same time, sub-option (i) would go further than sub-option (iii) in holding legal persons accountable for trafficking offences, since the introduction of the remaining optional sanctions would become mandatory when the offence is committed with an aggravating circumstance.

P.O.3 would combine the effectiveness of P.O.1 and P.O.2, which is why it is considered to be more effective.

7.1.3.7.1.3.    Ensuring that victims of trafficking receive adequate assistance, support and protection across the Member States

P.O.1 would contribute to ensuring that victims have actual access to adequate assistance, support and protection services across the Member States. It includes concrete measures to improve the early identification and referral of victims, which would be developed and implementing in close cooperation with all relevant stakeholders, including national authorities and civil society organisations.

P.O.2 would formally establish mechanisms for the early identification and assistance, support and protection of victims, in cooperation with relevant support organisations (legislative measure 4). Yet, P.O.3 would be more effective in ensuring that victims of trafficking receive adequate assistance, support and protection across the Member States, as the harmonisation of practices and procedures for the identification and referral of the victims would be considerably limited if Member States do not have guidance at the EU level that would provide them with support in its application at the national level.

7.1.4.7.1.4.    Reducing the demand for the exploited services of victims of trafficking in human beings 

P.O.1 would contribute to reducing the demand for the exploited services of trafficked victims through the organisation of an EU-wide awareness raising campaign and through the enhanced dialogue with the online platforms and technology companies. However, the evaluation found that it is very difficult to assess the effectiveness of awareness-raising campaigns and other activities on reducing demand. Moreover, awareness-raising activities at the EU level, whether offline or online, may not sufficiently take into account the circumstances in Member States, for example in terms of vulnerability and high-risk sectors.

P.O.2 would provide a legal basis for a law enforcement and judicial response to the knowing use of services exacted from victims of trafficking for all forms of exploitation (legislative measure 5 sub-option (ii)). Its deterrent effect on potential users of exploited services is expected to effectively reduce the demand that fosters trafficking for all forms of exploitation. Article 18(4) of the Directive already considers that the criminalisation of the knowing use of services would reduce demand and therefore enhance prevention of trafficking. Requiring Member States to criminalise the knowing use of services related to all forms of exploitation would not prevent Member States who wish to go further to do so. The effectiveness of this legal option might be hampered by the difficulties to prove the knowledge that the person was a victim of trafficking. The evaluation and impact assessment have shown that this approach had different degrees of success in the eight Member States which have already adopted it, ranging from high numbers 163 of prosecutions and convictions in some Member States to zero prosecutions in others 164 . However, based on the evaluation and Impact Assessment, it is not possible to conclude that stricter rules (sub-options (iii), (iv) and partly (v)) led to higher numbers of prosecutions and convictions for such offences. The criminalisation of the use of services would contribute to holding users and buyers of services equally accountable all over the EU for their role the trafficking chain. In addition, it would cover the different purposes of trafficking in human beings, i.e. sexual exploitation and labour exploitation, as well as organ removal, as opposed to sub-option (i), which would only address sexual exploitation. Finally, this option would contribute to shifting the focus of investigations to high-risk sectors, environments and groups.

P.O. 3 is the most in line with the comprehensive approach to prevention and demand reduction envisaged in EU legal and policy instruments, as it includes both non-legislative measures such as awareness-raising, education and training, as well as criminal law measures targeting the users of exploited services.

For all the objectives of the Impact Assessment, P.O.3 is considered to be the most effective policy option, as it would combine the positive impact of P.O.1 and P.O.2.

7.2    Efficiency

All the non-legislative measures of P.O.1 are considered to be efficient as they would contribute to improving the implementation of the Directive. Moreover, as highlighted in section 6.3 on the economic impact, P.O.1 is not expected to create any costs or additional burden on Member States or businesses as the estimated amount of EUR 2 290 000 a year, including EUR 250 000 as a “one-off” cost for the EU-wide awareness raising campaign, would be covered under regular EU funding.

The Knowledge and Expertise Hub would cover other activities that fall under P.O.1, such as developing guidelines on National Referral Mechanisms and on data collection, as well as cooperation within the framework of a European Referral Mechanism and supporting awareness raising campaigns. Accordingly, no additional funding would be required. These measures would be developed in close cooperation with national authorities and other relevant stakeholders, such as civil society organisations, and would aim at facilitating their tasks in the national and cross-border contexts, therefore increasing their efficiency.

The EU-wide awareness raising campaign would be organised by the Commission and financed through the EU budget to fight against trafficking in human beings. Therefore, it would not incur any costs by national authorities, civil society organisations and the private sector. Moreover, the campaign would be fully in line with the objectives of the Directive to discourage and reduce the demand that fosters all forms of exploitation and to reduce the risks of people becoming victims of trafficking.

Some of the legislative amendments under P.O.2 are to a certain extent covered in national legal systems. The added value of EU standard setting would be ensuring harmonisation of the legal systems of all Member States and facilitating cross-border cooperation.

The majority of stakeholders consulted as part of the survey 165 and the public consultation 166 confirmed the cost-effectiveness of the current Directive 167 . The evaluation found that the costs associated to law enforcement and judicial activities did not create an unnecessary burden on the Member States.

A stronger criminal justice response through more harmonised rules at the EU level would overall contribute to increasing the effectiveness of law enforcement and judicial anti-trafficking activities and reduce related costs. The cost of new measures involving criminalisation is expected to be limited, although it is difficult to estimate in precise terms. However, the costs of criminalising harmful conducts (estimated at EUR 127 235 011 per year) are outweighed by the benefits this brings to the victims and society as a whole.

P.O.3 is generally expected to be more efficient than P.O.2. The transposition and implementation of the legislative measures would be supported by a set of non-legislative measures. For example, the efficiency of legislative measure 4 (obligation to establish a formal national referral mechanism and national focal points) and legislative measure 6 (formalisation of the data collection on trafficking in human beings) would be improved by the guidelines, which would be developed as part of the Knowledge and Expertise Hub. Moreover, the sub-options that were selected to be part of P.O.3 are the ones, which would incur the most limited administrative costs by the Member States, while also enhancing the effectiveness of the Directive.

The overall increase in efficiency connected with P.O.3 allows to consider it as a preferred option despite its higher costs due to the combination of P.O.1 and P.O.2 (approximately EUR 129 275 011 per year).

7.3    Coherence

The evaluation found that the Directive is overall coherent with other relevant EU legislative instruments. The three policy options are expected to maintain the coherence with other initiatives 168 .

The evaluation found that there was some margin for better alignment with the Employers Sanctions Directive (Directive 2009/52/EC). Both P.O.2 and P.O.3 would be in line with this Directive, as they would introduce the sanctions against legal persons included therein. In particular, making some of the optional sanctions under Article 6 of the Directive mandatory for Member States to transpose (legislative measure 3 sub-option (i)) would improve the coherence of the Directive with Article 7(1) (c) of Directive 2009/52/EC.

Requiring Member States to criminalise the knowing use of services exacted from victims of trafficking (legislative measure 5, sub-option (ii)) would increase the coherence with Article 9(1) (d) of Directive 2009/52/EC, which prohibits the use by an employer 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. This legislative change would fil the remaining gap, i.e. employers who knowingly use the work or services exacted from victims of trafficking who are not illegally staying third country nationals. These would be covered by this legislative option.

7.4    Necessity

The necessity of EU action in the area of fighting trafficking in human beings is demonstrated in Section 3.2 and in the evaluation. All the policy options aim at strengthening the fight against trafficking in human beings and protection of its victims across the EU, either through measures aimed at the implementation of the current Directive and/or through improving and modernising it with legislative amendments. The three policy options address the gaps identified in the evaluation.

7.5    Subsidiarity and proportionality

Section 3.2 explains how this initiative meets the principles of subsidiarity and proportionality. The three policy options would contribute to achieving the objectives of the Treaties, i.e. the fight against trafficking in human beings, which is a particularly serious crime with a cross-border dimension.

P.O.1 aims at reinforcing the implementation of the current EU legal and policy framework through non-binding measures, which would not affect the scope for national decision-making.

The legislative measures proposed as part of P.O.2 and P.O.3 fall within the scope of the existing legislation, since they consist in amendments to the Anti-trafficking Directive. Moreover, these measures target specifically the aspects of the Directive, which do not adequately respond to new or emerging trends (such as the online dimension or other forms of exploitation) and considerably hinder the achievement of the objectives of the Directive. It should be underlined that all Member States have transposed Article 2(1) and Article 2(3) in their national legislation, although some gaps persist with respect to the full transposition of the means, which are part of the definition, and the forms of exploitation. Moreover, these legislative measures focus on those provisions of the Directive, which left too much discretion to Member States in their transposition, either because they were not sufficiently detailed (such as Article 11(4) and Article 19) or because they were left optional (Article 6 and Article 18(4)).

Nevertheless, the level of proportionality of the measures proposed as part P.O.2 varies depending on the sub-options. Legislative measure 1, sub-option (i) would consist in updating the Directive in order to explicitly address a phenomenon which is already covered under the definition of the trafficking offences. Therefore, this sub-option is considered to be more proportionate than sub-option (ii), which would compel Member States to qualify the online recruitment, advertisement or exploitation of victims of trafficking as an aggravating circumstance. Legislative measure 2, sub-option (i), for example, would only oblige Member States to criminalise two additional forms of exploitation, which are already referred to in the recital of the Directive, instead of four (sub-option (ii)). Legislative measure 3 sub-options (i), (ii) and (iii) would require Member States to transpose all the sanctions on legal persons, which are currently optional, either for standard trafficking offences or when the offence is committed with an aggravating circumstance. Of all the sub-options proposed for legislative measure 5, sub-option (ii) is considered to be the most proportionate. It is the one with the least far-reaching implications for Member States, while going beyond the status quo, since the large majority of Member States already have corresponding regulation in place for at least sexual exploitation.

8.8.    Preferred option

8.1.8.1.    Policy option 3 – Legislative measures combined with non-legislative measures

The preferred option is P.O.3, which includes targeted amendments to the Directive as well as non-legislative measures in line with the Strategy.

Legislative measure 1, sub-option 1 will allow to explicitly address one of the main challenges in fighting trafficking in human beings, which is the digitalisation of the crime. It is preferred to sub-option (ii) as the online dimension of trafficking already (implicitly) falls within the scope of the definition of trafficking. It is considered to be a facilitator of the constitutive elements of the offence (i.e. the act, the means and the purpose, which is the exploitation of the person) rather than a particularly grave circumstance in which the crime took place. This was confirmed by the consultation with stakeholders on the policy options, who indicated their preference for sub-option (i).

While legislative measure 2, sub-option (ii) will increase the range of forms of exploitation that Member States are obliged to criminalise, sub-option (i) reflects the most pressing concerns of consulted stakeholders in terms of challenges that need to be addressed in the area of trafficking in human beings. Forced marriages and illegal adoption are already covered in the definition of trafficking under the recitals of the Directive, although Member States had no obligation so far to criminalise them as exploitative purposes. Moreover, this option acknowledges the increasing incidence of trafficking for these purposes in the EU. It will not preclude Member States to criminalise the other forms of exploitation identified in the evaluation and Impact Assessment, as the list in the Directive will remain non-exhaustive. It will also be more in line with the outcome of the consultations with stakeholders, who considered that it is important not to have a too extensive list of forms of exploitation in the Directive, in order to keep some flexibility with respect to what conducts and situations can qualify as exploitation.

With legislative 3, Member States will have an obligation to transpose the (currently optional) sanctions, which are also addressed in the Employers Sanctions Directive and will have some flexibility in transposing the other sanctions for standard trafficking offences (as opposed to sub-option (ii)). This option is preferred to sub-option (iii), as it will increase the range of effective, proportionate and dissuasive sanctions to which legal persons are subject to for committing standard trafficking offences, while ensuring that the other sanctions are available when the crime is committed under aggravating circumstances.

Legislative measure 4 will contribute to harmonising identification and referral procedures across the Member States and facilitate cross-border cooperation, notably within the framework of a European Referral Mechanism. Moreover, the guidelines on national referral mechanisms will support Member States in implementing this measure in a consistent way at the EU level.

Legislative measure 5, sub-option (ii) will allow to harmonise the EU rules on criminalising the knowing use of services exacted from victims of trafficking. It will go one step further than what is currently in the Directive and leave it up to the Member States to adopt stricter approaches, such as the ones presented in sub-options (iii), (iv) and (v) for sexual exploitation. This approach allows to avoid any risks of over-criminalisation as offenders require actual knowledge that the person is a victim.

Legislative measure 6 will further harmonise processes related to the data collection on trafficking in human beings in the EU. It will allow to clarify some aspects of the data collection in the Directive and will increase the level of legal certainty among national authorities regarding the gathering of statistics. As a consequence, it will increase knowledge about trafficking in human beings. This measure was widely supported by stakeholders consulted on the policy option and is already applied in practice in the Member States, at least to a certain extent.

8.2.8.2.    REFIT (simplification and improved efficiency)

In compliance with the Commission’s Regulatory Fitness and Performance Programme (REFIT), all initiatives aimed at revising existing EU legislation should seek to simplify and reduce administrative burden on Member States. The Impact Assessment concludes that the preferred option would have a limited burden, which would be offset by the positive impact of the measures on the prevention and fight against trafficking, and protection of the victims of this crime.

The legislative amendments to the Directive are aimed at improving Member States’ capacity to fight the crime efficiently, notably in relation to threats and trends that have emerged and evolved within the past years. The initiative will further harmonise the legal landscape addressing trafficking across the Member States. New common and harmonised rules applicable to the Member States are expected to enhance cross-border cooperation, both in terms of investigations and prosecutions, as well as victims’ assistance and support.

The regulatory burden related to the preferred option would be of limited scope, as it mostly consists in improving existing provisions rather than creating completely new obligations. Member States already investigate, prosecute and punish the offence when it is committed online and have put in place specialised cyber-units and/or experts. While the Commission would foster cooperation with the internet industry, the Member States and relevant EU Agencies with respect to the responsibility of online platforms and service providers to detect, monitor and remove trafficking in human beings related content, any related regulatory obligations, such as measures and protection against misuse of online platform services or notification of suspicion of criminal offences by providers of hosting services, would be covered by other legislative instruments, in particular the Digital Services Act 169 .

Most of the regulatory and administrative burden on Member States would stem from the obligation to criminalise the knowing use of services which are exacted from victims of trafficking and to set-up National Referral Mechanisms and appoint National Focal Points. Legislative measure 5, sub-option (ii) would mainly create a regulatory burden on the Member States who have not yet transposed this measure, or measures which go further, in their national law. Eight Member States would already be compliant with it and therefore would not have to undergo any change in their legislation. Eleven Member States would have to expand their rules to all forms of exploitation and nine Member States would have to transpose the new provision.

Legislative measure 4 is not an entirely new obligation, as under the current text of Article 11(4) Member States already had to establish mechanisms aimed at the early identification, assistance and support of the victims. In fact, all but one Member States already have a formal or informal referral mechanism in place. The legislative change would be accompanied by non-legislative measures, which would make it less burdensome for Member States to adjust their legislation and existing procedures and mechanisms already in place.

Although the current Directive only provides that the tasks of the NREM shall include the gathering of statistics, all Member States already collect data on trafficking in human beings and transmit it to the Commission every year for the purpose of the EU-wide data collection. Therefore, introducing a requirement for Member States to collect data on specific indicators and on a regular basis as part of the Directive (legislative measure 6) would not trigger significant additional burden. This legislative change is expected to simplify the work of the National Statistical Authorities and generally improve the quality and availability of the statistics. Moreover, the developing of guidelines, in close cooperation with relevant national authorities, would reduce the regulatory and administrative burden on national authorities.

8.3.8.3.    Application of the ‘one in, one out’ approach 

As explained in the above sections, this initiative will not entail neither administrative costs nor savings for the private sector. It will not incur any costs for citizens. However, this initiative will improve the level of security and protection of citizens in the EU, in particular those who are victims of trafficking in human beings or at risk of becoming victims, through better assistance and support measures and prevention. As to adjustment costs, it will mostly concern public authorities.

9.9.    How will actual impacts be monitored and evaluated?

The Commission will monitor and evaluate the actual impacts of this initiative through the existing mechanisms under the current Directive. The monitoring of the new legislative provisions will start two years after the entry into force of the Directive at the latest. In addition, the Commission will continue to monitor the transposition and implementation of the provisions of the Directive that will not be modified and will use its powers conferred by the Treaties, including infringements as appropriate. The tasks of NREM would remain the same under Article 19 of the Directive, including the national coordination of anti-trafficking actions. They would continue to report to the Anti-Trafficking Coordinator in the context of the reporting carried out by the Commission every two years on the progress made in the fight against trafficking in human beings. This would include a monitoring and evaluation of the impacts of this initiative, which should be carried out, in principle not earlier than five years after the deadline for transposition to ensure that there is a sufficiently long period to evaluate the effects of the initiative after it has been fully transposed across all Member States. The results of the monitoring and evaluation of the actual impacts of this initiative will be used by the Commission, Member States, in particular the NREM, civil society organisations, EU Agencies as well as other EU institutions, among other stakeholders.

This initiative aims at improving the collection and reporting of data by Member States, as well as the indicators on which such data is collected. The Commission will work closely with ESTAT, the NREM and National Statistical Authorities, in order to ensure available, reliable and comparable data.

The Knowledge and Expertise Hub would also be useful forum to evaluate the different measures related to these proposed policy option. The Commission will continue to organise the two-yearly meetings of NREM and the EU Civil Society Platform against trafficking in human beings, as well as with the EU Agencies working against trafficking, which will also contribute to the monitoring and evaluation.

As the criminalisation of the knowing use of services exacted from victims of trafficking in human beings is expected to have an impact in the Member States that have not yet adopted this measure, the revised article would include a provision requiring the Commission to assess the impact of the rules criminalising the knowing use of exploited services by submitting a report to the Parliament and the Council five-years after the transposition deadline.

The table below identifies an indicative and non-exhaustive list of operational objectives and corresponding monitoring indicators for the measures identified under the preferred option.

Table 7 – Operational objectives and corresponding monitoring indicators

Annex 1: Procedural information

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 170 . 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 171 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 172 . 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 open 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 through written procedure and provided a positive opinion with comments on 12 October 2022.

DG HOME addressed the RSB comments by including more information on the scale of the problem and the extent to which it varies between Member States, notably by including more data on the number of victims in the EU and across the Member States, the main forms of exploitation, as well as the sex, age and citizenship of the victims. Data was also added in order to better illustrate the cross-border and transnational dimension of trafficking in human beings. The challenges encountered by Member States in reporting and collecting data on trafficking in human beings were further elaborated.

Examples from the “Transposition” assessment were added to the main report in order to show where the problems identified in the evaluation stem from gaps in the transposition of the Directive or from the flexibility given to the Member States by the Directive in transposing some of its provisions. Moreover, the description of the problem linked to the digital dimension of trafficking in human beings was reinforced with more concrete examples of data on the use of technology to commit trafficking in human beings offences, as well as challenges faced by law enforcement authorities in order to address it.

The dynamic baseline was strengthened by adding some data on the scale of trafficking in human beings and how it has evolved over the reporting period, as well as ongoing and recently adopted initiatives related to the area of trafficking in human beings, including in the context of the implementation of the EU Strategy on Combatting Trafficking in Human Beings (2021-2025), and transposition of the Directive.

DG HOME added more information with respect to the views of different stakeholders regarding the policy options and introduced a visual intervention logic, which establishes the links between the problems, the objectives and the policy options. The incremental character of the policy options was improved. The report was revised in order to make it clear that Policy Option 1 goes beyond the baseline scenario as it focuses on actions that are not yet in force nor were clearly defined in the Strategy, and takes into account the findings of the evaluation, which highlighted that some of the main challenges stem from gaps in the implementation of the Directive. DG HOME introduced tables in order to present the proposed measures for each policy option and how they relate to the objectives of the initiative. The presentation of the non-legislative measures in Policy Option 1 was revised (e.g. the guidelines on National Referral Mechanisms and on data collection were moved under the Knowledge and Expertise Hub) and the description of some measures further elaborated. The report was further developed in order to clearly present which sub-options from Policy Option 2 are part of Policy Option 3 and explain why it is the preferred option.

The RSB considered that the cost benefit analysis should be further improved, especially as it did not provide overall estimates of costs and benefits for each options. The parts on the economic impact and benefits of the initiative were considerably revised. The costs estimates included in the section on the efficiency and the annex of the costs and benefits were moved to the section on the economic impact of the initiative. The overall estimated cost of each policy option was added in a table and in the text of the report. DG HOME also made additional efforts to quantify the estimated benefits brought by this initiative, based on the findings of the Commission’s Study on the economic, social and human costs of trafficking in human beings (2020). 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 2). 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.

Annex 2: Stakeholder consultation (Synopsis report)

This Annex presents the synopsis report of the consultation activities undertaken for the evaluation and impact assessment of the Anti-Trafficking Directive.

1.Consultation on the roadmap/inception impact assessment

The combined evaluation roadmap and inception impact assessment for the initiative was published by DG Migration and Home Affairs (DG HOME) on the Commission’s ‘Have your say’ webpage 173 on 5 August 2021 until 16 September 2021. The Commission received feedbacks from 36 stakeholders.

2.Meetings of the EU Network of National Rapporteurs and Equivalent Mechanisms and the EU Civil Society Platform

On 30 November 2021, the Commission organised a virtual meeting of the EU Civil Society Platform against trafficking in human beings in order to inform the evaluation and impact assessment of the Anti-trafficking Directive. On 6 December 2021, a virtual meeting was organised with the EU Network of National Rapporteurs and Equivalent Mechanisms (NREM). The meetings focused on the challenges that affect the implementation of the Anti-trafficking Directive and its possible amendments, in order to inform its evaluation and impact assessment.

The topics of the criminalisation of the use of exploited services and levels of penalties in the Directive were discussed during the meeting of the EU Network of NREM on 16 May. On 18 May, the EU Civil Society Platform discussed the topics of the criminalisation of the use of exploited services, as well as national and transnational referral mechanisms. The NREM and Civil Society Platform gathered on 17 May in a joint meeting, where the digital dimension of trafficking in human beings as well as trafficking for the purpose of labour exploitation were addressed. All these discussions informed the evaluation and impact assessment.

3.Consulation in the context of the evaluation

3.1. Consultation strategy

3.1.1. Public consultation

The Commission carried out an open public consultation targeting the general public with the aim of collecting information, evidence, and views on the issues at stake and to feed into the evaluation questions. The questionnaire was available in all official languages of the EU institutions 174 and remained open on the Commission’s public consultation website from 14 December 2021 to 22 March 2022. In total, 124 responses were received. In addition, 75 contributors submitted a standalone written response.

Of the 124 contributions received, 58 (47%) were submitted by non-governmental organisations (NGOs). Thirty-two (26%) were submitted by EU citizens. Public authorities were the third largest group, accounting for 19 (15%) of responses. This was followed by two academic/research institutions (n=2, 2%), one non-EU citizen, one environmental organisation and one trade union (Figure 1).

Figure 1: Public consultation responses by type of respondent

Source: European Commission, About this Consultation 175

Almost a quarter of responses came from Germany (23%, n=28). The second largest number of contributions came from Spain (15%, n=18), followed by Belgium (10%, n=13) and Austria (10%, n=12). This was followed by Italy (6%, n=8), France (5%, n=6), Finland (5%, n=6), the Netherlands (3%, n=4), and Malta (3%, n=4). 18 countries had three or fewer contributions (Figure 2). 176

Figure 2: Responses to public consultation by country

Source: European Commission, Have your Say 177

3.1.2. Online survey

Within the framework 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, the external contractor launched an online survey, which aimed at collecting both comprehensive and specific information on stakeholders’ views regarding the impact of the Anti-trafficking Directive and some of the remaining challenges in preventing and combatting trafficking in human beings. It allowed to collect information from a large number of stakeholders, and to gather specific contributions that would not be possible to obtain from interviews alone. Specifically, the online survey was targeted at the following categories of stakeholders:

·National competent authorities (16 responded);

·National Rapporteurs and Equivalent Mechanisms (14 responded);

·National law enforcement authorities concerned with THB-related crimes (9 responded);

·National judicial authorities concerned with THB-related crimes (12 responded);

·National authorities responsible for social services (1 responded);

·Relevant civil society organisations (24 responded);

·Other national authorities (4 responded).

In total, 90 replies to the online survey were received. The survey was launched on 29 November 2021 using the EY on-line survey tool Qualtrics, and remained open until 21 January 2022.

2.1.3. Stakeholder interviews

The contractor carried out interviews with 29 stakeholders from 41 organisations across six main stakeholder groups, as summarised in Table 1. Topic guides and the content of interviews were tailored to the expertise of the interviewee. Stakeholders were identified through suggestions from the Commission, a stakeholder mapping process, recommendations from the interviewees, and recommendations from members of the study’s expert panel. Key information was coded into an evidence grid, in relation to each evaluation question.

Table 1: Number of organisations consulted by stakeholder group

3.2. Results of the consultation activities

3.2.1. Public consultation

A summary of the key findings from the public consultation, grouped by evaluation criterion, is provided below. It should be noted that this summary is not exhaustive and rather presents some of the key results of the public consultation.

3.2.1.1. Effectiveness

Most respondents to the public consultation considered that the Directive contributed to a small or moderate extent to reducing demand. 180

61% of the respondents considered that the Directive should criminalise the knowing use of services exploited from victims of trafficking. However, respondents had more diverging views with respect to the extent to which existing national laws criminalising the knowing use of exploited services had contributed to reducing the demand for such services 181 .

Almost 60% of the respondents to the public consultation considered that the Directive had only contributed to holding legal persons liable for THB offences to a ‘moderate’ or a ‘small extent’. 182

The majority of the respondents (67%) replied that the Directive had contributed to allowing victims of trafficking to effectively report a case to a “small extent”. 183

3.2.1.2. Efficiency

Almost half of the replies highlighted the cost-effectiveness of the Anti-trafficking Directive (43%, n=53). The majority of the respondents considered that the implementation of the Directive had not caused unnecessary administrative burden (56%, n=69).

3.2.1.3. Relevance

70% (n=83) of the respondents to the public consultation agreed that the gender dimension, in particular the protection of women and girls, should be more prominently articulated in the Directive. Twenty-three per cent (n=29) of respondents disagreed. 184  

Almost two thirds of respondents (74%, n=92) agreed that he Directive should introduce specific provisions to address the online dimension of trafficking in human beings, including online recruitment, advertisement and exploitation of the victims. Almost 20% (19%, n=24) disagreed. 185

3.2.1.4. Coherence

Most of the respondents (69%, n=86) considered that the Anti-trafficking Directive was coherent with the Victims’ Rights Directive (2012/29/EU). Nearly half of the respondents said that the Anti-trafficking Directive was coherent also with the Employer Sanctions Directive (2009/52/EC) (43%, n=53) and the Child Sexual Abuse Directive (2011/93/EU) (39%, n=48). Almost half of the respondents (42%, n=52) were of the view that the Anti-trafficking Directive was not coherent with the Residence Permit Directive (2004/81/EC).

Respondents to the public consultation mostly found that the Anti-trafficking Directive was coherent with the UNTOC and its supplementing Protocol (69%, n=85), the ILO Forced Labour Convention, 1930 (No.29) (58%, n=72), the CEDAW (51%, n=63) and the UNCRC (43%, n=53).

3.2.1.5. Added value

The vast majority of the replies underlined the added value brought by the Anti-trafficking Directive. Ninety-eight percent (n=122) considered that EU-wide cooperation was necessary to effectively combat trafficking in human beings. Eighty-two percent (n=102) considered that the Anti-trafficking Directive continued to bring an added value in the Member States in combatting THB. 85% (n=105) replied that, without the Anti-trafficking Directive, it would be more difficult for Member States to tackle trafficking in human beings individually. Finally, 95% (n=118) agreed that the aim of preventing and combatting THB continued to require action at the EU level.

3.2.2. Online survey

3.2.2.1. Effectiveness

Respondents to the online survey considered that prevention measures targeting victims were effective either to a ‘moderate’ extent (30%, n=27) or to a ‘large’ extent (32% of respondents, n=29). Prevention measures targeting child victims were also considered relatively effective, but less so than for adults. Thirty per cent (n=27) of respondents claimed they were effective to a ‘moderate’ extent, 23% (n=21) stated they were to a ‘large’ extent, and 10% (n=9) to a ‘very large’ extent. However, 22% (n=20) of respondents said that preventive measures targeting child victims were effective to a small extent.

Some survey respondents considered that preventive measures targeting potential offenders were relatively less effective than measures targeting victims. 24% (n=22) of the respondents claimed that they were effective to a ‘small’ extent and 13% (n=12) claimed they were not effective at all.

22% (n=20) of the respondents answered that measures targeted at marginalised Roma people and LGBTIQ people were effective to a ‘large extent’ and 28% (n=25) to a ‘moderate extent’. 186  

Most online survey respondents reported that compensation schemes in their Member State had been effective to a ‘small’ or ‘moderate’ extent for victims of trafficking. 187

Stakeholders had different views when it comes the effectiveness of witness protection programmes in supporting victims of THB. 188 34% of the respondents said such programmes were effective either to ‘very large’ or a ‘large extent’, while 20% said to a ‘moderate extent’ or to a ‘small extent’.

More than half of respondents considered that the Directive contributed towards an increased number of convictions against THB for labour exploitation to a ‘moderate’ (30%, n=27) or to a ‘small extent’ (30%, n=27). 189 More than one third (37%, n=33) of respondents said that the Directive contributed towards increased numbers of convictions against THB for sexual exploitation to a ‘moderate extent’. 190 19% (n=17) said the Directive contributed to a ‘large extent’ and 17% (n=15) said to a ‘small extent’.

Nearly a quarter of respondents (23%, n=21) said that the Directive contributed towards an increased number of confiscations of THB-related proceeds to a ‘moderate extent’. 191  

3.2.2.2. Efficiency

The majority of survey respondents agreed on the cost-effectiveness of the Anti-trafficking Directive. 27% (n=24) of the respondents considered that the costs of implementing it did not outweigh its benefits at all, 17% (n=15) said that the costs outweigh benefits only from a ‘small’ to a ‘moderate’ extent and only 12% (n=11) replied that the costs outweigh benefits from a ‘large’ to a ‘very large’ extent. 192 The highest increases in resources, dedicated to the prevention and fight against THB at the national level, are associated with training and awareness-raising campaigns.

However, the survey found that available funding remained insufficient in relation to prevention measures, the fight against the crime, as well as the assistance and support to victims of trafficking. 193 The need to increase the allocation of national funding to externalised services was also highlighted.

Although survey respondents considered that the implementation of the Anti-trafficking Directive did not entail a significant burden, some of them suggested some ways to further simplify it, notably by increasing asset seizures and confiscation of assets from the proceeds of trafficking offences, which could be used to feed compensation schemes; improving inter-agency cooperation as well as focusing resources on prevention in order to address the root causes of trafficking.

3.2.2.3. Relevance

Overall, survey respondents considered that the Directive was still fit for purpose and addressed the main concerns related to trafficking in human beings, notably in relation to the prevention and criminalisation of the offence, as well as the protection of victims. in the EU. 194 39% of the respondents stated that the Directive is fit for purpose to a ‘large extent’. 33% per cent stated that it is fit for purpose to a ‘moderate extent’.

The vast majority of respondents 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. 195

65% of the respondents said that EU intervention would be necessary ‘to a very large extent’ (38%, n=35) or to a ‘large extent’ (27%, n=25) in order to enhance cooperation with online private companies to fight against trafficking. 196 No respondent said that the EU intervention would not be necessary for this purpose.

Trafficking in human beings in high-risk sectors was perceived as a significant issue that needs to be addressed. Most respondents considered that trafficking of people in high-risk sectors is a problem in the EU to a ‘large’ or ‘very large’ extent. None of them said that it was ‘not at all’ relevant.

3.2.2.4. Coherence

Respondents had diverging views regarding the coherence of the Anti-trafficking Directive with Directive 2004/81/EC (Residence Permits Directive). While 37% of them agreed that the two instruments were coherent from a ‘large’ to a ‘very large’ extent, 38% said that the two directives were ‘not at all’ coherent or coherent to a ‘moderate extent’.  197  

49%e percent (n=44) of the survey respondents considered that the Anti-trafficking Directive and Directive 2011/93/EU (Child Sexual Abuse Directive) were coherent to a ‘large’ or a ‘very large’ extent. 198

The Anti-trafficking Directive and the EU Asylum acquis were deemed to be coherent to a limited extent. 199

3.2.2.5. Added value

The survey underlined the added-value of the Anti-trafficking Directive, mainly in creating a common intra-EU playground, which encouraged Member States to take action against THB; discouraged traffickers to choose some Member States to others as countries of destination for the victims; and enhanced cross-border cooperation and the exchange of good practices between Member States.

3.2.3. Stakeholders interviews

3.2.3.1. Effectiveness

One interviewee from an international body 200 and one academic/expert were in favour of criminalising the knowing use of services exacted from victims of trafficking. 201

Three interviewees stressed that the Directive had contributed towards enhancing victims’ access to support and protection, especially for female victims. 202  Several interviewees underlined the need for increased attention and resources addressing the vulnerabilities of LGBIQ people, and that more could be done to ensure that victims whose experiences do not correspond to common perceptions of victims (e.g. female victims and victims of trafficking for sexual exploitation) receive adequate support. 203

Several interviewees considered that, although victims are in principle not obliged to cooperate with law enforcement authorities, cooperation is sometimes necessary in practice for victims to be recognised as victims and receive assistance, support and protection. 204

Interviewees highlighted that the risks of punishment of victims who are exploited for the purpose of criminal activities is an issue in several Member States. 205  Two interviewees mentioned that irregular migrants or persons who are under asylum procedures often fear to be forcibly returned. 206

Some interviewees mentioned that the concept of “forced labour” could be further clarified 207 , as its interpretation is often left to national law or courts, which can lead to different interpretations across the Member States 208 .

3.2.3.2. Efficiency

Interviewees pointed to the fact that the lack of funding can be a constraint to the implementation of the Anti-trafficking Directive. They highlighted that limited funding – both at the EU and national levels - hinders Member States’ capacity to deliver effective prevention measures, including awareness raising initiatives and training targeted at professionals likely to come into contact with THB victims.

3.2.3.3. Relevance

According to one interviewee from an international body, the gender-specific approach to the fight against trafficking is not always put into practice. Moreover, it often only concerns the assistance, support and protection of the victims, while failing to be taken into account in the context of prosecutions and investigations. 209

3.2.3.4. Coherence

Some interviewees underlined that it is not always clear, which of the assistance and support measures included in the Anti-trafficking Directive and those provided for by EU Asylum acquis should prevail when it comes to victims of trafficking who are international protection applicants or beneficiaries.

3.2.3.5. Added value

Interviewees highlighted the added value of the Anti-trafficking Directive in ensuring coordination at the EU level, as well as regarding its contribution to the creation of transnational referral mechanisms.

3. Consultation in the context of the impact assessment

The external contractor carried out individual interviews and case study group interviews in order to assess the potential impacts of the proposed policy options. The organisations and type of stakeholders consulted as part of this process is included in Table 2.

Table 2: Interviewees consulted on potential impacts of policy options

In addition to individual interviews, the external contractor carried out group interviews with national stakeholders in five selected Member States – France, Italy, Hungary, the Netherlands, and Romania. The criteria for selection were described in detail in the study’s inception report delivered to the European Commission and included:

·Number of registered victims of THB in the Member State;

·Geographical position (Central, Southern, Northern and Eastern Europe);

·Common types of exploitation found in the Member State;

·Whether the Member State is a typical country of origin or destination for victims of THB.

National stakeholders invited to participate in the case study group interviews included national competent authorities working on THB, national law enforcement authorities, national judicial authorities and social services working with victims of THB.

Prior to the interviews, stakeholders had been asked to fill in a written questionnaire, in which they were asked to provide:

-Quantitative scores on the social, security, economic and fundamental rights impacts of each policy measure;

-Quantitative scores on the necessity, effectiveness, coherence, subsidiarity, proportionality and EU added value of each policy measure;

-Quantitative estimation of the expected cost of implementing each measure.

Annex 3: Who is affected and how?

1.Practical implications of the initiative

The practical implications of the initiative for the Member States and the European Commission are summarised below:

National authorities:

·Revise their legislation in order to refer to the digital dimension of trafficking in human beings in the definition of the offence;

·Criminalise forced marriages and illegal adoptions as exploitative purposes of the trafficking offence;

·Ensure that legal persons upon conviction will be subjected under national law 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 trafficking offence, and to temporary or permanent disqualification from the practice of commercial activities, placing under judicial supervision; and judicial winding-up, when the offence has been committed with an aggravating circumstance.

·Criminalise the use of services which are the objects of exploitation, with the knowledge that the person is a victim of trafficking in human beings.

·Establish or adjust existing formal National Referral Mechanisms and create National Contact Points, on the basis of relevant guidelines.

·Formalise the data collection on trafficking in human beings at the national level to collect data every year on the indicators specified in the Directive, as a minimum.

·Participate in the activities of the Knowledge and Expertise Hub on Combatting Trafficking in Human Beings and the Focus Group of specialised prosecutors against trafficking in human beings.

Practical implications for the European Commission:

-Support Member States in, and monitor the transposition and implementation of the revised provisions of the Anti-trafficking Directive, in addition to continuing the monitoring of the implementation of the provisions, which remain unchanged.

-Establishing a Knowledge and Expertise Hub on Combatting Trafficking in Human Beings, which will be managed by an external contractor with an expertise in the field of anti-trafficking in human beings.

-Carrying out several activities as part of the Knowledge Hub, including setting-up a European Referral Mechanisms and developing guidelines on the establishment of National Referral Mechanisms; and organising workshops to improve the data collection on THB in the EU and developing guidelines.

-Organise, together with Eurojust, the meetings of the Focus Group of specialised prosecutors against trafficking in human beings.

-Organise meetings with the internet companies, in cooperation with the Member States and EU Agencies, within the EU Internet Forum.

-Organising an awareness-raising campaign targeting the demand for exploited services of victims, in particular in high-risk sectors and high-risk environments, in cooperation with Member States, civil society organisations and the private sector (e.g. employers and internet companies).

2.Summary of costs and benefits

Table 1: Overview of benefits for the preferred option

The costs associated with the preferred option are presented in Table 2.

No costs are identified for citizens/consumers and businesses since the costs associated with the policy measures are directly impacting administrations at national level. It should be noted that the initial proposal for the Anti-trafficking Directive did not contain a financial statement, as the Directive was not deemed to have an impact on EU budget. The evaluation showed the cost-effectiveness of the Anti-trafficking Directive, which did not entail substantial costs on Member States.

3.Table 2: Costs for the preferred option

4.Relevant sustainable development goals

Annex 4: Analytical methods

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.

In this report, the evaluation criteria are addressed according to the order of the Better Regulation Guidelines. The evaluation questions are arranged by criterion in Table , along with cross-references to the section of this report where each is addressed.

Table 1: Evaluation questions (EQ)

2.2. Impact assessment

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

5.Problem definition and assessment;

6.Analysis of the EU’s right to act;

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

8.Assessment of the impact of policy options;

9.Ranking and comparison of policy options.

2.3. Description of data collection methods methodology

1.3.1. 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. 220 The 36 responses received from CSOs (24), EU citizens (4), public authorities (3), non-EU citizens (2) and other (3) were also analysed 221 .

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

1.3.2. 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.

2.4. Limitations

The data collected for the evaluation and impact assessment has several limitations that should be borne in mind when interpreting the findings. These limitations are summarised below, along with the mitigation measures taken to address them where possible.

·Measuring effectiveness with limited available data: Given some of the data gaps (see evaluation and Annex 5), it was sometimes challenging to validate some of the expert judgements and stakeholder opinions, which made measuring the effectiveness challenging. For example, there was a lack of monitoring data on the effectiveness of prevention measures, such as awareness raising campaigns, research and information.

·Subjectivity of stakeholders’ views: Data collected from stakeholders, including through interviews, surveys, and workshops represents subjective views, rather than objective conclusions. To help mitigate this, the report relies on the triangulation of various data sources (as outlined in this Annex). In addition, stakeholders consulted as part of the evaluation and impact assessment for interviews, workshops, and the online survey included people with relevant expertise in the field of trafficking in human beings, who are used to giving evidence as part of their professional roles.

·Selection bias of stakeholders: There may be a certain degree of selection bias, especially regarding interviewees. Participants’ views might not be representative of all stakeholders affected by the Directive. To help mitigate this, stakeholders at all levels were selected for participation (in consultation with DG HOME), including at the EU, national, international and civil society level. Through the consultations, in particular the online survey, it was possible to gather perspectives from all Member States.

·Attributing outcomes to the Directive: attributing outcomes in the area of combatting trafficking in human beings to the existence of the Directive can be challenging. The evaluation and impact assessment assess the Directive’s contribution to preventing and combatting trafficking in human beings based on how the available evidence compares to the intervention logic (see Annex 7 to the evaluation).

·Assessing trends and statistics related to the phenomenon of THB: As outlined in more detail in the evaluation and Annex 5, there are a number of gaps in the available data on THB. In an effort to fill gaps as much as possible, this report relies on a variety of available data sets, including data gathered by ESTAT from 2013-2020 and inputs provided by Member States in response to request for data from the European Commission. The consultation of several available data sources helped map important gaps.

2.5. Methodology of the data collection on trafficking in human beings for 2013-2020

The data provided in this Impact Assessment has been collected by Eurostat from the EU Member States via the national statistical offices. The European Commission ensured a coordinated approach to the data collection at national level, by involving the national rapporteurs and/or equivalent mechanisms on trafficking in human beings together with relevant authorities and civil society organisations. Eurostat provided support for this study through data management and quantitative analysis of statistics, whereas the Directorate-General for Migration and Home Affairs provided the analysis.

Data in this Impact Assessment is drawn from administrative sources.

For traffickers and suspected traffickers, the sources of data include police, prosecutors, and courts. For victims, the sources of data include police, non-governmental organisations (NGOs), border guards, immigration officers, and labour inspectors, among others.

Registered victims are composed of two categories: presumed and identified. In line with earlier data collections, victims are referred to as ‘presumed’ when they meet the criteria of Directive 2011/36/EU but have not been formally identified by the relevant authority as victims of trafficking in human beings or who have declined to be formally or legally identified as trafficked. Victims are considered ‘identified’ for persons who have been formally identified as victims of trafficking in human beings by the relevant formal authority in Member States’, this is to say after a process that establishes that they are victims; often, but not always, involving the police. ‘Identified’ and ‘presumed’ victims are referred together as ‘registered victims’. The actual number of victims is likely to be significantly higher than the number registered and reported in data collections.

Data was requested for 2013-2020 from the EU Member States on the number of registered (presumed and identified) victims of trafficking in human beings and on the number of traffickers who were suspected, prosecuted or convicted, taking into account their sex, age, nationality and forms of exploitation. In addition, with regard to suspects, data on prosecutions and convictions for the use of services which are the object of exploitation of victims of trafficking in human beings, additional sex and age breakdown was requested.

Member States were also asked to provide metadata giving further information on the data that was supplied.

Data is publically available in the following documents:

·Eurostat (2013) Trafficking in human beings - 2013 edition. Link .

·Eurostat (2015) Trafficking in human beings – 2015 edition. Link . 

·Report on the progress made in the fight against trafficking in human beings (2016) as required under Article 20 of Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims {SWD(2016) 159 final} (COM(2016) 267 final). Links: here and here . 

·European Commission, Study on Data collection on trafficking in human in the EU (2018), Publications Office of the EU. Link

·European Commission, Study on Data collection on trafficking in human in the EU (2020), Publications Office of the EU. Link . 

2.6 Methodology for the calculation of the costs and benefits

The costs and benefits of the policy options were mainly calculated based on the European Commission’s Study on the economic, social and human costs of trafficking in human beings within the EU (2020) 222 . The estimation of the costs and benefits of the policy options was made by Directorate General Migration and Home Affairs solely for the purpose of the Impact Assessment and should not be considered as official data. 

The Commission’s study on the economic, social and human costs of trafficking in human beings aims at measuring the cost of trafficking in human beings in the EU. This sections summarises the methodology followed by the study 223 . 

Three main types of costs of trafficking in human beings were identified: use of services (coordination and prevention, specialised services, law enforcement, health services and social protection); lost economic output; and lost quality of life. Three phases are distinguished: in trafficking; in specialist services; and, post-trafficking.

The Study adopts and builds on the existing scientific methodology for costing. The approach taken to estimates is conservative. Where there are doubts about the quality of data, costs are not included. The cost is thus an underestimate.

The Study identified the victims of trafficking. For some costs (coordination, law enforcement and specialised services), it was possible to investigate the costs generated by trafficking directly. For the other costs, the Study investigated costs by following the victim’s journey from forms of exploitation, to types of violence experienced, to hurts to physical and mental health, and then to the costs generated, for example by increased use of services.

Several sources of data are used: administrative statistics on registered victims of trafficking in human beings in Member States; published scientific literature; original analysis of quantitative data sets; original collection of information across the EU; Eurostat held information; European Commission documents; and other scientific studies.

Data on the number, age, sex, and form of trafficking of registered victims of trafficking is extracted from the European Commission (2018) Data Collection on Trafficking in Human Beings in the EU. Data is fundamentally centred around registered victims in 2016.

The scientific literature on trafficking in human beings that contained quantitative information was systematically reviewed. This was used to provide a profile of the extent to which victims of trafficking suffered physical violence, sexual violence and threats, disaggregated by the form of trafficking.

Surveys of populations that share similarities with victims of trafficking were analysed to provide additional information on how harms from physical violence, sexual violence and threats had consequences for use of health and welfare services, for the extent of employment, and for quality of life including physical injuries, substance dependence and long-term mental health. This included surveys of crime, mental health and physical health, as well as of victims of trafficking. The datasets were analysed to quantify the extent to which people who had experienced each type of violence were more likely to experience each harm outcome. The analyses used regression models that adjusted for a range of other factors that could explain the association. Information from these surveys on the implications of specific types of harms was then applied proportionately to victims of trafficking.

Directorate General Migration and Home Affairs carried out several calculations in order to obtain broad estimates of the costs of the policy options, when this was possible. The methodology followed is described in the section on the economic impact of the policy options of the Impact Assessment (section 6.3) and Annex 3.

For instance, the estimated cost of police amounts to a total of EUR 623 789 396 or EUR 77 711 per victim in the EU in one year. Prosecution costs for trafficking offences are estimated at EUR 154 196 901 in total, EUR 19 210 per victim and EUR 56 379 per prosecution. Costs of conviction (i.e. the average cost per day and average number of days a court would spend on a trafficking case) are estimated at EUR 71 490 256 in total, EUR 8 906 per victim and EUR 52 838 per conviction 224 . 

The data on the cost of a police investigation is an average cost per day and the average number of days a police officer worked on a case (utilising a 220-day working year). Nine Member States provided data. For each of the Member States that provided data, an average cost per case was calculated, then a cost for that Member State that took into account the number of registered victims in that country in 2016. The cost per case was the cost per day multiplied by the number of days. The cost for that Member State was the cost per case multiplied by the number of cases. For the police, the number of cases was taken to be the same as the number of registered victims.

The data on the cost of a prosecution were an average cost per day and the average number of days a prosecutor spends on a case (utilising a 220-day working year). Three Member States provided data. For each of the Member States that provided data, an average cost per case was calculated, then a cost for that Member State that took into account the number of registered victims in that country in 2016. The cost per case was the cost per day multiplied by the number of days. The cost for that Member State was the cost per case multiplied by the number of cases. For prosecutions, the number of cases was the number of prosecutions.

The data on the cost of a conviction were an average cost per day and the average number of days a court would spend on a trafficking case (utilising a 220-day working year). Three Member States provided data. For each of the Member States that provided data, an average cost per case was calculated, then a cost for that Member State that took into account the number of registered victims in that country in 2016. The cost per case was the cost per day multiplied by the number of days. The cost for that Member State was the cost per case multiplied by the number of cases. For courts, the number of cases was the number of convictions.

The estimated costs of the benefits brought by this initiative were calculated based on the cost of the lost economic input and the lost quality of life for victims of trafficking in human beings. This is based on the assumption that reducing the scale of trafficking in human beings, including the number of victims, would mean that more people can participate in the legal economy because they are not trafficked and do not suffer from the harms caused by the trafficking in the post-trafficking phase.

The Study on the economic, social and human costs of trafficking in human beings uses the concept of Gross Development Product per capita to estimate the costs of the lost economic input, which includes not only wages but also taxes and profits, and intrinsically contains adjustment for the balance of the population in employment or not. This methodology is based on definitions and data provided by ESTAT. The lost economic output is calculated when the victim is in trafficking and post-trafficking. The methodology is further described in the Study 225 .

Victims of trafficking are subject to physical violence, sexual violence and threats that reduce the length and quality of life. These losses in quality and length of life may be considered ‘intangible’ in that they do not have a direct monetary value, but they matter to people.

The approach in the Study on the economic, social and human costs of trafficking in human beings broadly follows the health-oriented framework of the Global Burden of Disease, in which disability weights are applied to particular injuries and health conditions in order to estimate their impact on Quality Adjusted Life Years (QALYs). This is combined with the benchmark valuations provided by the European Commission. The EU offer benchmarks to estimate the value of the statistical value of a human life and of the value of a year of life lived without disability (European Commission 2009). The value placed on a statistical life (VOSL) is 1-2 million euros. The Study takes the midpoint. The value placed on a year of life lived without disability (VOLY) in Europe is EUR 50 000-EUR 100 000. The Study takes the midpoint. The Study considers costs resulting from reduced quality of life at two stages in the journey of a victim of trafficking: while in trafficking and post-trafficking.

The methodology to estimate the costs for the physical injuries, homicides and fear, depression and anxiety during trafficking, as well as mental health harms post-trafficking is further described in the Study on the economic, social and human costs of trafficking in human beings 226 .

2.7. List of sources