REPORT on the proposal for a directive of the European Parliament and of the Council amending Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a directive of the European Parliament and of the Council amending Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims

(COM(2022)0732 – C9‑0431/2022 – 2022/0426(COD))

(Ordinary legislative procedure: first reading)

The European Parliament,

– having regard to the Commission proposal to Parliament and the Council (COM(2022)0732),

– having regard to Article 294(2), Article 82(2) and Article 83(1) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C9-0431/2022),

– having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

– having regard to the opinion of the European Economic and Social Committee of 27 April 2023[1],

– having regard to Rule 59 of its Rules of Procedure,

– having regard to the joint deliberations of the Committee on Civil Liberties, Justice and Home Affairs and the Committee on Women’s Rights and Gender Equality under Rule 58 of the Rules of Procedure,

– having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs and the Committee on Women's Rights and Gender Equality (A9-0285/2023),

1. Adopts its position at first reading hereinafter set out;

2. Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;

3. Instructs its President to forward its position to the Council, the Commission and the national parliaments.

 

 

 

Amendment  1

AMENDMENTS BY THE EUROPEAN PARLIAMENT[*]

to the Commission proposal

---------------------------------------------------------

#2022/0426 (COD)

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

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 82(2) and 83(1) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

[Having regard to the opinion of the European Economic and Social Committee[2], 

Having regard to the opinion of the Committee of the Regions27,] 

Acting in accordance with the ordinary legislative procedure, Whereas:

(1) Trafficking in human beings is a serious crime, often committed within the framework of organised crime, a gross violation of fundamental rights and explicitly prohibited by the Charter of Fundamental Rights of the European Union. Preventing and combatting trafficking in human beings, respecting, protecting and promoting the rights of all trafficked victims and supporting those victims, regardless of their country of origin, remains a priority for the Union and a legal obligation of the Member States.

(1a) Trafficking in human beings has different root causes. Poverty, conflict, inequality, gender-based violence, the absence of viable employment opportunities or social support, humanitarian crisis and discrimination are among the main factors that make persons, especially women, children and members of marginalised groups, vulnerable to trafficking.

(2) Directive 2011/36/EU of the European Parliament and the Council[3] constitutes the main Union legal instrument on preventing and combating trafficking in human beings and protecting the victims of this crime. That Directive sets out a comprehensive framework to address trafficking in human beings by establishing minimum rules concerning the definition of criminal offences and sanctions. It also includes common provisions to strengthen the assistance, prevention and protection of all victims, taking into account the gender, disability and child perspectives and considering in particular the needs of unaccompanied children and children deprived of parental care.

(2a) There is also a need to adopt an intersectional approach to all measures that aim to prevent and combat trafficking in human beings, as well as to the assistance,  support and protection of victims while taking into account their specific needs.

(3) The EU Strategy on Combatting Trafficking in Human Beings 2021-2025[4] sets out a policy response adopting a multi-disciplinary and comprehensive approach from prevention through protection of victims, to prosecution and conviction of traffickers. It included a series of actions to be implemented with the strong involvement of civil society organisations. In order to address evolving trends in the area of trafficking in human beings, as well as shortcomings identified by the Commission, experts and civil society organisations working in the field, and to further step up efforts against this crime, it is necessary, nevertheless, to amend Directive 2011/36/EU. Identified threats and trends, which require the adoption of new rules concern in particular regarding the modi operandi of traffickers, including the commission or facilitation of offences concerning trafficking in human beings by means of information and communication technologies. Identified shortcomings of the criminal law response requiring an adaptation of the legal framework relate to offences concerning trafficking in human beings committed in the interest of legal persons, to the data collection system, to the cooperation and coordination between Member States as well as to the national systems aimed at the early detection, identification of, specialised assistance to and support for victims of trafficking.

(4) In order to tackle the steady increase of the number and relevance of offences concerning trafficking in human beings committed for purposes other than sexual or labour exploitation, it is necessary to include forced marriage, illegal adoption, surrogacy for reproductive exploitation and exploitation of children in residential and closed-type institutions in the forms of exploitations explicitly listed in the Directive and to ensure that the Member States address within their national legal systems the widest range of forms of exploitation, insofar as these fulfil the constitutive elements of trafficking in human beings. In addition, children are considered to be one of the most vulnerable groups targeted by organised criminal groups involved in trafficking of human beings. These children are often exploited by criminal groups by being recruited into joining organised criminal groups to later commit criminal activities.  In order to address that increasing phenomenon, it is essential for Member States to ensure that the recruitment of children to commit or participate in criminal activities is a form of exploitation as defined in this Directive. 

(4a) Children placed in residential and closed-type institutions are a group particularly vulnerable to human trafficking. They can be placed or kept in these institutions for the purpose of exploitation and profit or trafficked during and after their placement. That vulnerability persists when they leave such institutions after coming of age.

(4b) In order for Member States to comply with their primary responsibility to respect, protect and promote the rights of all trafficked persons regardless of their country of origin, Member States should ensure that the standard of due diligence along with the principle of State responsibility, affirming the centrality of victims as rights-holders, are incorporated in their national legislation. Member States should also ensure that their national frameworks to prevent and combat trafficking in human beings contribute to the elimination of all forms of discrimination on grounds such as sex, gender, race or ethnic origins, disability, age, sexual orientation, gender identity, gender expression and sex characteristics, or a combination of those grounds. Member States should ensure that their national frameworks are implemented in a way that does not affect victims negatively.

(5) An increasing number of offences concerning trafficking in human beings is committed or facilitated by means of information or communication technologies leading to a sharp increase of victims exploited online. The online dimension has become a significant part of trafficking in human beings as traffickers use the Internet and social media inter alia as a method to establish comprehensive trafficking networks, communicate with other traffickers, recruit, advertise or exploit victims, exercise control and organise transport and accommodation. Internet and social media are also used to distribute exploitative materials. It is therefore important to explicitly address the online dimension of trafficking and the link between the online and the offline dimension of the crime in the legal framework in all its stages from prevention to prosecution. In combatting trafficking in human beings online, full use is to be made of existing instruments, such as Regulation (EU) 2022/2065 of the European Parliament and of the Council[5]. 

(6) In order to enhance the criminal justice response to offences concerning trafficking in human beings committed for the benefit of legal persons and to deter the commission of those offences, it is necessary to strengthen the sanctions regime against legal persons with a proportionate mandatory approach. Therefore, the optional sanctions regime set out in Directive 2011/36/EU is replaced with a mandatory sanctions regime applicable when a legal person is held liable pursuant to Article 5(1) and (2).

(7)  In combatting trafficking in human beings, full use is to be made of existing instruments on the freezing and confiscation of proceeds and instrumentalities of crime, such as Directive EU/XX/YY of the European Parliament and of the Council [Proposed Directive on asset recovery and confiscation][6]. ▌Frozen and confiscated instrumentalities and proceeds from the offences referred to in Directive 2011/36/EU should be used, as a matter of priority, to support victims’ assistance and protection, including through direct compensation of victims ▌. Where it is not possible to use frozen and confiscated instrumentalities and proceeds for victims’ assistance, support and protection through direct compensation, those instrumentalities and proceeds should be used for social purposes, in particular by allocating them to organisations that assist an support victims of trafficking. Frozen and confiscated assets should not constitute the only source of funds for providing compensation, support or assistance to victims. Member States should, to that effect, establish a national fund or a similar instrument for victims of trafficking and to further invest into investigation and prosecution of trafficking cases. 

(7a) In order to increase coordination of all bodies working on trafficking in human beings and to reinforce national policy responses, it is necessary to establish National Anti-Trafficking Coordinators (NAC). Member States should ensure the allocation of sufficient resources to national anti-trafficking coordinators to enable the effective and adequate performance of their tasks.

(7b)  In the light of the Stockholm Programme and with a view to developing a consolidated Union strategy against trafficking in human beings aimed at further strengthening the commitment of, and efforts made, by the Union and the Member States to prevent and combat such trafficking, Member States should facilitate the tasks of an EU Anti-Trafficking Coordinator in coordinating the Union’s response to trafficking in human beings and developing knowledge and findings on the various aspects of trafficking in human beings, including research into the gender dimension and the particular vulnerability of children, improving coordination and coherence, avoiding duplication of effort, between Union institutions and related agencies as well as between Member States and international actors, contributing to the development of existing or new Union policies and strategies relevant to the fight against trafficking in human beings or reporting to the Union institutions.

 

(8) In order to enhance the national prevention capability and the national capability to detect and identify victims at an early stage, and to refer them to the appropriate protection, assistance and support services, it is necessary to establish by laws, regulations or administrative provisions National Referral Mechanisms in the Member States. Establishing formal national referral mechanisms for the referral of victims and appointing national focal points for different forms of trafficking are essential measures to enhance cross-border cooperation and to ensure the early detection, identification, assistance and support to victims through coordination between competent authorities and relevant support organisations. When dealing with child victims, particularly girls, the mechanisms should provide support in a manner that is particularly adapted to their specific needs, as set out in this Directive.

(8a) With a view to strengthening the national capability regarding detection, identification and referral of victims, Member States should also develop National Anti-Trafficking Action Plans. They should review and update those plans at regular intervals. The National Action Plans should contain comprehensive measures, including preventive, monitoring, data collection, coordination and due diligence measures to prevent re-trafficking. Member States should develop and update these plans in consultation with civil society organisations.

(8b) Assistance, support and protection to victims of trafficking should not be conditional on their cooperation in the criminal investigation, prosecution or trial for offences related to their situation as victims of trafficking, or on the success of such proceedings. Victims of trafficking should not be detained, charged or prosecuted for the irregularity of their entry into or stay in a Member State, or for their involvement in unlawful activities, and they should not be excluded from assistance, support and protection measures because of their decision not to cooperate with investigating or prosecuting authorities.

(9) In order to develop a coherent policy response to tackle demand and to further reinforce and harmonise the criminal justice efforts on demand and supply reduction across Member States, it is important to criminalise the use of services and acts which are the objects of exploitation provided by a victim of an offence concerning trafficking in human beings. Establishing this as a criminal offence is part of a comprehensive approach to reduce demand which aims to tackle the high levels of supply and demand that fosters all forms of exploitation and to eliminate the current culture of impunity. The offence should not apply to customers who purchase products manufactured under exploitative working conditions, as they are not users of a service. This Directive establishes a minimum legal framework in this regard, and Member States are free to adopt or maintain more stringent criminal rules.

(9a) Efforts to criminalise the knowing use of services of victims of trafficking in human beings have not resulted in a reduction in demand and countries that legislated on such demand have proven effective. In order to avoid creating a high threshold for prosecutions and missing the Directive’s objective of reducing demand, criminal liability should not be restricted to the use of sexual services with the knowledge that the person is a victim of trafficking.

(9b)  In order to achieve the objective of discouraging the demand that fosters trafficking, criminal justice efforts need to be combined with other measures. Such measures should include victim-centred information and awareness-raising campaigns, training, including training specifically designed for men, education activities that promote equality and combat sexist stereotypes, racism, and gender-based violence, as well as research to analyse the relationship between situations of vulnerability and exposure to risks of trafficking.

(9c)  Persons with any type of disability, in particular girls with disabilities, are at an increased risk of becoming victims of trafficking. Perpetrators are able to target them specifically because of their increased vulnerability and the barriers they face in accessing justice. Since Member States are parties to the United Nations’ Convention on the rights of Persons with Disabilities, they should consider the specific needs of victims of trafficking with disabilities when providing these victims with support measures, and should ensure that civil servants receive adequate training so that they can assist victims in a disability-friendly manner. Member States should also take the necessary measures to ensure that victims of trafficking with disabilities are able to participate effectively in legal proceedings.

 

(9d)  Considering the United Nations Convention relating to the Status of Stateless Persons of 28 September 1954 and the United Nations Convention on the Reduction of Statelessness of 30 August 1961 (the ‘UN Conventions on Statelessness’), Member States should take into account the specific needs of stateless persons who are victims of trafficking, as well as take the necessary measures to prevent victims of trafficking from becoming stateless. Member States should also take the necessary measures to establish the identity of the victims of trafficking and to establish and confirm their citizenship and their citizenship status.  

 

(10) The collection of accurate reliable, coherent, anonymised data disaggregated by at least sex, gender, racial and ethnic origin, age, socio-economic status, citizenship, statelessness and comparable across Member States, where possible under national law, as well as the timely publication of collected data and statistics are fundamental to ensure full knowledge on the scope of trafficking in human beings within the Union. Introducing a requirement for Member States to, in cooperation with relevant Union agencies, collect and report to the Commission statistical data on trafficking in human beings every year in a harmonised way is expected to constitute a relevant step to enhance the general understanding of the phenomenon and to ensure the adoption of data-informed policies and strategies.  Due to the importance of having up-to-date statistical data as soon as possible it is appropriate to determine the date of the application of the article on data collection at the earliest point in time, which is the entry into force of this Directive.

(10a) All Member States should comply with the principle of non-refoulement, which prohibits States from transferring or removing individuals from their jurisdiction or effective control when there are substantial grounds for believing that the person would be at risk of irreparable harm upon return, including persecution, torture, ill-treatment or other serious human rights violation. The principle of non-refoulement binds all Member States in accordance with the Treaty on the Functioning of the European Union and the Charter of Fundamental Rights of the European Union. 

(10b) Member States should take into account the specific situation of vulnerability of victims of trafficking in need of international protection in asylum procedures, including through special procedural guarantees [and their possible exclusion from the border procedure following an individual assessment carried out by the national authorities  in accordance with Regulation (EU) XX/YY of the European Parliament and of the Council Proposed Regulation establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU] and special reception needs in accordance with  Directive (EU) XX/YY of the European Parliament and of the Council [Proposed Directive on laying down standards for the reception of applicants for international protection].

(10c) Particular attention should be paid by Member States to prevent victims for being retrafficked into the Union when carrying out transfers under the Regulation EU/XX/YY of the European Parliament and of the Council [Proposed Regulation on asylum and migration management and amending Council Directive (EC) 2003/109  notably by nottransferring themto the country where they were exploited when they first arrived or where the offenders are present, thereby leaving them more exposed to the risk of being re-trafficked and re-traumatised, without prejudice to the right to family life.

(10d) It is important to prevent victims having to choose between the asylum procedure and claim a residence permit under the Council Directive 2004/81/EC[7]. Member States should ensure the complementarity between procedures.

(10e) Abduction, incarceration, rape, sexual enslavement, forced labour, removal of organs, physical beatings, starvation, the deprivation of medical treatment, among others, are inherent to trafficking. These constitute serious violations of human rights, which might amount to persecution. Furthermore, victims of trafficking might be at risk of persecution or other serious human rights violations if they return to their home country. Such persons need international protection as provided for in the Convention Relating to the Status of Refugees and the Directive (EU) XX/YY of the European Parliament and of the Council [Proposed Directive on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted], in international human rights law or others forms of protection under national law.

(10f) The lack of safe and legal migration opportunities, humanitarian crises and the general demand for cheap and exploitative labour, services and acts, combined with the lack of legal protection, exposes people to a considerable risk of exploitation and abuse and exacerbate the exposure of migrants, refugees and asylum-seekers to traffickers.

(10g) Member States should always prioritise an approach based on the protection of the victims’ fundamental rights over prosecution when implementing national actions regarding the fight against trafficking, in particular during the identification process.

(10h) If protected and assisted, victims are less likely to be at risk of being re-victimized and re-trafficked, and they are likely to be more open to participating voluntarily in criminal proceedings by giving evidence against traffickers, once trust has been built with support services and authorities.

(10i) In cases of humanitarian crises, Member States should integrate counter-trafficking measures as part of any emergency response plans. Such measures should be carried out from the onset of any crisis and should include child protection. measures.

(10j) Member States should ensure that free psychological, psychosocial, emotional and educational support is provided to child victims in accordance with their age and maturity. Support should also be provided to children who have witnessed trafficking or children who became deprived of parental care as a result of trafficking.

(10k) Member States should ensure that a guardian is appointed to unaccompanied child victims of trafficking to represent, assist and act on their behalf in order to safeguard their best interests and general well-being. When, in accordance with this Directive, a guardian and/or a representative should to be appointed for a child, those roles may be performed by the same person or by a legal person, an institution or an authority.

(11) Since the objectives of this Directive, namely preventing and combating trafficking in human beings and protecting the victims of this crime, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effect of the action, be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary to achieve that objective.

(12) The Directive respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union, in particular the respect and protection of human dignity, the prohibition of slavery, forced labour and trafficking in human beings, the right to physical and mental integrity of the person, the prohibition of torture and inhuman or degrading treatment or punishment, the right to liberty and security, the protection of personal data, the freedom of expression and information, the freedom to choose an occupation and right to engage in work, the equality between women and men, the rights of the child, the rights of persons with disabilities, and the prohibition of child labour, the right to an effective remedy and to a fair trial, the principles of legality and proportionality of criminal offences and penalties. In particular, this Directive seeks to ensure full respect for these rights and principles, which are to be implemented accordingly.

(13) In accordance with Articles 1 and 2 and Article 4a(1) of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, and without prejudice to Article 4 of that Protocol, Ireland is not taking part in the adoption of this Directive and is not bound by it or subject to its application. [Or] In accordance with Article 3 and Article 4a(1) of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Ireland has notified [, by letter of …,] its wish to take part in the adoption and application of this Directive.

(14) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application.

(15) In accordance with the Joint Political Declaration of 28 September 2011 of Member States and the Commission on explanatory documents[8], Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified.

(15a) In protecting the victims of trafficking in human beings, full use is to be made of existing instruments on victims' rights such as Directive 2012/29/EU of the European Parliament and of the Council[9].

(16) Directive 2011/36/EU should therefore be amended accordingly,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Amendments to Directive 2011/36/EU

 

Directive 2011/36/EU is amended as follows:

(1)  in Article 2, paragraph 3 is replaced by the following:

 

‘3. Exploitation shall include, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs, forced marriage, illegal adoption, surrogacy for reproductive exploitation, exploitation of children in residential and closed-type institutions, or the recruitment of children to commit or participate in criminal activities.’;

 (2) the following Article 2a is inserted:

“Article 2a

Offences concerning trafficking in human beings committed or facilitated by means of information or communication technologies

Member States shall take the necessary measures to ensure that the intentional acts and means referred to in Article 2(1), and exploitation as set out in Article 2(3) shall include acts committed by means of information and communication technologies.“  

(2a)  Article 4 is amended as follows:

(a) paragraph 2 is replaced by the following:

‘2. Member States shall take the necessary measures to ensure that an offence referred to in Article 2 is punishable by a maximum penalty of at least 10 years of imprisonment where that offence:

(a) was committed against a victim who was particularly vulnerable, which, in the context  of this Directive, shall include at least the grounds of residence status, pregnancy, a situation of dependence or a state of physical, mental, intellectual or sensory disability or distress, living in institutions, such as retirement homes, children’s homes, reception centres, detention facilities or accommodation centres for asylum seekers, as well as  victims who are stateless and child victims;

(b) was committed within the framework of a criminal organisation within the meaning of Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime[10];

(c) deliberately or by gross negligence endangered the life of the victim or caused the death of the victim;

(d) was committed by use of serious violence or has caused particularly serious physical or psychological harm to the victim;

(da) was committed by means of information or communication technologies by creating sexually explicit content featuring a victim of trafficking, including sharing or threatening to share such content, or obtaining economic benefits from it, which places or keeps the victim in a situation of exploitation or vulnerability and causes significant psychological harm;

(db) was committed by means of causing the victim to take, use or be affected by drugs, alcohol or other intoxicating substances; or

(dc) the offender has previously been convicted of offences of the same nature.’;

  (b) the following paragraph is added:

‘5. Member States shall take the necessary measures to ensure that, in addition to the penalties referred to in paragraphs 1 and 2, acts and means referred to in Article 2(1), and exploitation as set out in Article 2(3) are punishable by fines proportionate to the gravity and duration of the harm caused to the victim of human trafficking, as well as to the financial benefits accrued by committing the offence.’;

(2b) Article 5 is amended as follows:

(a) in paragraph 1, the introductory wording is replaced by the following:

‘1. Member States shall take the necessary measures to ensure that legal persons can be held liable for the offences referred to in Articles 2, 3 and 18a (1)  committed for their benefit by any person, acting either individually or as part of an organ of the legal person, who has a leading position within the legal person, based on:’;

(b) paragraph 2 is replaced by the following:

‘2. Member States shall also ensure that a legal person can be held liable where the lack of supervision or control, by a person referred to in paragraph 1, has made possible the commission of the offences referred to in Articles 2, 3 and 18a.1 for the benefit of that legal person by a person under its authority.’;

(3)  Articles 6 and 7 are replaced by the following: 

 

“Article 6
Sanctions on legal persons

1. Member States shall take the necessary measures to ensure that a legal person held liable pursuant to Article 5(1) or (2) is subject to criminal or non-criminal fines and, if appropriate, to the following sanctions:

(a) exclusion from entitlement to public benefits, aid or subsidies;

(b) temporary or permanent closure of establishments which have been used for committing the offence.

(ba)  exclusion from participation in public contracts;

 (bb)   recovery of some or all public benefits, aid, or subsidies granted for up to 12 months preceding the commission of the offences of trafficking;

2. Member States shall take the necessary measures to ensure that a legal person held liable pursuant to Article 5(1) or (2) for an offence aggravated by any of the circumstances set forth in Article 4(2) is subject, if appropriate, to the following sanctions:

(a) temporary or permanent disqualification from the practice of commercial activities;

(b) placing under judicial supervision;

(c) judicial winding-up.

3.  Member States shall ensure that sanctions referred to in paragraphs 1 and 2 are effective, proportionate and dissuasive.”

Article 7
Freezing and confiscation

 Member States shall take the necessary measures to ensure that their competent authorities are entitled to trace, freeze, manage and confiscate, in accordance with Directive EU/XX/YY of the European Parliament and of the Council [Proposed Directive on asset recovery and confiscation][11], the proceeds derived from, and instrumentalities used or intended to be used for the commission, or contribution to the commission, of the offences referred to in this Directive.  

Member States shall take the necessary measures to ensure that frozen and confiscated proceeds derived from, and instrumentalities used for the commission, or contribution to the commission, of the offences referred to in this Directive are used, as a matter of priority, to provide victims support, assistance and protection, including through direct compensation of victims and further invest into investigation and prosecution of trafficking cases.”;

(3a)  Article 8 is replaced by the following:

‘Non-prosecution or non-application of penalties to the victim

1. Member States shall take the necessary measures, including criminal law provisions and procedural guidelines, to ensure that victims of trafficking in human beings are not held liable for the irregularity of their entry into or stay in a Member State, or for their involvement in unlawful activities which they have beencompelled to commit as a direct consequence of being subjected to any of the acts referred to in Article 2. Member States shall take the necessary measures to discontinue any proceedings against the victim, terminate any restriction of victims’ rights, including deprivation of liberty, to annul any related penalties and to expunge their police and criminal records where competent authorities have failed to apply the non-prosecution and non-application of penalties.

2. Member States shall take the necessary measures to ensure that non-prosecution and non-application of penalties to the victims is not made conditional on the victim's cooperation in the criminal investigation, prosecution or trial, without prejudice to Directive 2004/81/EC or provisions of national law transposing that Directive.

3. Member States shall take the necessary measures to ensure that any decision concerning the non-prosecution and non-application of penalties to the victims is taken following an individual assessment of the case by trained and qualified officials.

4. Member States shall raise awareness and enhance capacities concerning the implementation of the national provisions adopted pursuant to this Article among professionals likely to come into contact with victims, including law enforcement, the judiciary, legal representatives, border management and labour inspectors.

5. Member States shall prohibit any deprivation of liberty, prosecution and application of any penalties in the case of children for their involvement in unlawful activities which they have been compelled to commit as a direct consequence of being subjected to any of the acts referred to in Article 2.’;

(3b) Article 9, paragraphs 3 and 4 are replaced by the following:

‘3. Member States shall take the necessary measures to ensure that persons, units or services responsible for investigating or prosecuting the offences referred to in Articles 2 and 3 are trained accordingly, as well as to create specialised units within Member States’ police forces and prosecution.

4. Member States shall ensure that professionals likely to come into contact with victims of trafficking, such as law enforcement authorities, health care and social services, general and specialist support services and judicial authorities, receive evidence-based training and targeted information on a level appropriate to their contacts with victims, to enable them to detect, prevent and address trafficking in human beings and avoid revictimisation. Such training shall be developed in consultation with women’s specialist support services and support services specialised in victims of trafficking, and shall be human rights based, victim-centred, gender-, disability-, child-, and language- sensitive and trauma-informed.

 5. Member States shall take the necessary measures to ensure that effective investigative tools, such as those which are used in organised crime or other serious crime cases, are available to persons, units or services responsible for investigating or prosecuting the offences referred to in Articles 2, 2a, and 3. Member States shall ensure that measures taken to detect, prevent, investigate and prosecute the offences referred to in Articles 2, 2a, and 3 are proportionate to the offence committed.’;

(4)  Article 11 ▌ is replaced by the following:

‘Article 11

Assistance, support and protection for victims of trafficking in human beings

1. Member States shall take the necessary measures to ensure that assistance, support and protection are provided to victims in a gender-, disability- and child-sensitive approach and based on an intersectional approach. Member States shall ensure that assistance, support and protection are provided to victims before, during and for an appropriate period of time after the conclusion of criminal proceedings. Member States shall ensure that the victims have access to assistance free of charge and in a language they can understand. 1a.  Member States shall establish whether trafficking victims are stateless or at risk of statelessness and shall take the necessary measures to ensure that assistance and support are provided to those victims taking into account their specific protection needs.

2. Member States shall take the necessary measures to ensure that a person is considered to bea victim and treated as such, as soon as the competent authorities have a reasonable-grounds indication for believing that the person might have been subjected to any of the offences referred to in Articles 2 and 3. 3. Member States shall take the necessary measures to ensure that assistance, support and protection for a victim are not made conditional on the victim’s willingness to cooperate in the criminal investigation, prosecution or trial without prejudice to Directive 2004/81/EC or provisions of national law transposing that Directive.

4. Member States shall take the necessary measures to establish by laws, regulations or administrative provisions, national referral mechanisms aimed at the early detection, identification of, assistance to, and support for detected and identified victims, in cooperation with relevant support organisations, and to appoint a national focal point for the referral of victims. In the process of early detection and identification of victims, Member States shall take the necessary measures to ensure the involvement of relevant civil society organisations and other relevant stakeholders.

Member States shall establish National Referral Mechanisms with competences in at least the following areas:

(a) with regard to the detection of victims, establishing minimum standards, adapting the procedures to the different forms of exploitation covered by this Directive and setting up contingency plans for sensitive environments;

(b) with regard to the identification of victims, promoting, coordinating and, where appropriate, financing programmes for the identification of those victims, as well as developing tools for risk assessment, including in humanitarian crises;

(c) with regard to the protection of victims, establishing mechanisms to harmonise assistance for those victims and establishing minimum standards in reception centres and programmes referring victims to specific shelter or to psychosocial support resources.

5. The assistance and support measures referred to in paragraphs 1, 1 a and 2 shall be provided on a consensual and informed basis, and shall include long-term assistance and at least at standards of living capable of ensuring victims’ subsistence through measures such as the provision of appropriate and safe accommodation and financial assistance, resources for their economic and social recovery through access to education, training and access to labour market as well as necessary medical treatment including psychological assistance, counseling and information, and translation and interpretation services where appropriate.

5a. Member States shall take necessary measures to provide specialised facilities for the detected and identified victims of trafficking, including women, unaccompanied and separated minors, and to ensure safe places in shelters; Member States shall ensure the presence of gender-trained staff in reception facilities and to provide adequate support and funding to civil society organisations working with them.

6. The information referred to in paragraph 5 shall cover, where relevant, information on a reflection and recovery period pursuant to Directive 2004/81/EC, and information on the possibility of granting international protection pursuant to Council Directive 2004/83/EC[12]  and Council Directive 2005/85/EC[13] or pursuant to other international instruments or other similar national rules.

7. The assistance, support and protection measures provided to the victims shall be adapted to the form of trafficking or exploitation of human beings suffered and the specific needs of the victim. Member States shall attend to victims with special needs, where those needs derive, in particular, from whether they are pregnant, their health, a disability or a serious form of psychological, physical or sexual violence they have suffered.’;

(4a)  the following article is inserted:

‘Article 11a

Victims of trafficking in need of international protection  

1. Member States shall ensure compliance with the principle of non-refoulement and with the right of victims to apply for international protection or equivalent national status, including when the victim is receiving assistance, support and protection referred to in article 11 and notwithstanding the irregularity of entry into the territory of the Member States or stay paragraph 3. To that effect, the tasks of the national referral mechanisms referred to in article 11 paragraph 4 shall include close cooperation with asylum authorities and establishing protocols to ensure that assistance, support and protection, is provided to victims of trafficking who are also in need of international protection, taking into account the victim’s individual circumstances, including whether they experienced discrimination based on grounds such as gender, sex, race or ethnic origins , disability, age, sexual orientation, gender identity, gender expression and sex characteristics, or a combination of those.

2  Member States shall dedicate appropriate resources and shall take the necessary measures to ensure the rapid and accurate detection and identification of victims of trafficking in human beings, and their referral to international protection procedures bycompetent authorities, relevant civil society organizations andother relevant  stakeholders involved in the identification, reception and processing of irregular migrants The victims shall be informed of their right to apply for international protection, in a language they can understand and at the earliest opportunity.

3. Member States shall, , take the necessary measures to ensure that the principle of non-prosecution or non-application of penalties to the victim under Article 8 is applied to victims of trafficking in need of international protection.

4. Member States shall ensure complementarity and coordination between international protection systems and procedures for the protection of victims of trafficking. In doing so, appropriate and effective referral mechanisms shall be in place between the authorities involved in anti-trafficking activities and those responsible for granting international protection.

5. Member States shall ensure that the examination of applications for international protection of victims of trafficking and the assessment of the merits of the application is not linked to a victim’s willingness or ability to cooperate with the authorities in the criminal investigation and prosecution of trafficking without prejudice to Directive 2004/81/EC or provisions of national law transposing that Directive.’;

(4b) in Article 12, paragraph 2 is replaced by the following:

‘2. Member States shall ensure that victims of trafficking in human beings have access without delay to legal counselling, and, in accordance with the role of a victim in the relevant justice system, to legal representation, including for the purpose of claiming compensation. Legal counselling and legal representation shall be provided in a language that they can understand and free of charge.’;

(4c) in Article 13, the following paragraphs are added:

‘2a. Member States shall ensure that reporting procedures are safe, confidential and accessible for children, in accordance with their age and maturity.

2b. Member States shall  take the necessary measures to detect and identify early child victims of trafficking who give any indication that they could be at risk of persecution in need of international protection and referred to the competent national asylum authorities in accordance with Article 11a.’;

(4d) Article 14 is amended as follows:

 (a) paragraphs 1 and 2 are replaced by the following:

‘1. Member States shall take the necessary measures to ensure that the specific actions and support services to assist and support child victims of trafficking in human beings, in the short and long term, in their physical and psycho-social recovery, are undertaken following an individual assessment of the special circumstances of each particular child victim, taking due account of the child’s views, needs and concerns with a view to finding a durable solution for the child, including programs to support their transition to emancipation and adulthood in order to avoid re-trafficking. Within a reasonable time, Member States shall provide access to education for child victims and the children of victims who are given assistance and support in accordance with Article 11, in accordance with their national law. Member States shall provide accommodation for child victims without depriving them of liberty.

2. Member States shall appoint a guardian or a representative for a child victim of trafficking in human beings from the moment the child is identified by the authorities when, under national law, the holders of parental responsibility are, as a result of a conflict of interest between them and the child victim, precluded from ensuring the child’s best interest and/or from representing the child. This provision shall apply also when a child victim of trafficking is under the guardianship of a public or a private institution.’;

(b) the following paragraphs are inserted:

‘3a. Member States shall ensure that a guardian is appointed to unaccompanied child victims of trafficking to represent them, assist them and act on their behalf, as applicable, in order to safeguard their interests and general well-being and so that the unaccompanied children can benefit from the rights under this Directive. Member States shall also take the necessary measures to determine the identity and citizenship of the unaccompanied child and to find their family, provided that this is in the best interest of the child.

3b. Child victims shall have access to specialised child protection and support services, including child friendly shelters and facilities. Member States shall ensure that support measures for protection are adequately afforded to those child victims who go through adoption and welfare services.’;

(4e) Article 15 is amended as follows:

(a) paragraph 2 is replaced by the following:

‘2. Member States shall, in accordance with the role of victims in the relevant justice system, ensure that child victims have access without delay to free legal counselling in a language they can understand and to free legal representation, including for the purpose of claiming compensation.’;

 (b) paragraph 3, point (a) is replaced by the following:

‘(a) interviews with the child victim take place without delay after the facts have been reported to the competent authorities;’;

(4f) Article 16 is amended as follows:

(a) paragraph 1 is replaced by the following:

‘1. Member States shall take the necessary measures to ensure that the specific actions to assist and support child victims of trafficking in human beings, as referred to in Article 14(1), take due account of the personal and special circumstances of the unaccompanied child victim. Law enforcement authorities and other professions likely to come in contact with victims or potential victims should be adequately trained for assisting and supporting unaccompanied minors.’;

 (b) paragraph 4 is replaced by the following:

‘4. Member States shall take the necessary measures to ensure that, in criminal investigations and proceedings, in accordance with the role of victims in the relevant justice system, competent authorities appoint a representative where the child is unaccompanied or separated from its family. Those persons shall receive specialized training to take particularly into account the vulnerabilities and needs of child victims of trafficking in human beings.’; 

(c) the following paragraph is added:

‘5a. Member States shall cooperate and take the necessary measures to trace family of victims or to find and protect unaccompanied child victims who have disappeared.’;

(4g) Article 17 is replaced by the following:

‘Article 17

Compensation to victims

-1a. Member States shall ensure that the victims of trafficking have the right to an effective and in due time legal remedy under national law in the event of a breach of obligations deriving from this Directive.

1. Member States shall ensure that all victims of trafficking in human beings have access to effective schemes of compensation regardless of whether a judicial process has been initiated.

1a. Member States shall take the necessary measures to ensure that compensation awarded to a victim of trafficking in human beings as a result of a decision adopted in criminal or civil proceedings is paid in due time after the adoption of the decision by the Member State concerned to the victim. The Member State concerned shall pursue those liable for that compensation to reimburse the compensation advanced by the State to the victim.

2. Member States shall establish a national victims fund or a similar instrument according to their national legislation, with the frozen and confiscated proceeds derived from, and instrumentalities used for the commission, or contribution to the commission, of the offences referred to in this Directive in order to pay compensation to victims.’;

(5)  Article 18 is replaced by the following:

‘Article 18

Prevention

1. Member States shall allocate the necessary resources and they shall take appropriate measures, such as education, training and campaigns, with a specific attention to the online dimension, to target potential and current users to discourage and reduce the demand that fosters all forms of exploitation related to trafficking in human beings.

1a. In the case of children, Member States shall ensure that national child protection systems, including residential or closed-type institutions, develop specific plans to prevent trafficking in human beings.

2. Member States shall take appropriate action, in a gender-sensitive and child-friendly way based on an intersectional approach, including through the internet, such as information and awareness-raising campaigns, research and education programmes, including the promotion of digital literacy and skills, for potential victims, specifically targeted at women and girls, and where appropriate  in cooperation with relevant civil society organisations and other stakeholders such as the private sector and online platforms, aimed at raising awareness and reducing the risk of people, especially children and persons with disabilities, becoming victims of trafficking in human beings.

 

2a. In addition, Member States shall take further appropriate action, such as education programmes and information and awareness-raising campaigns, aimed at increasing knowledge, particularly among men and boys, of the impact of negative attitudes, behaviours, and gender stereotypes that promote the exploitation of women and girls and thereby contribute to trafficking. Member States shall ensure that awareness-raising campaigns are victim-centred and aim at increasing understanding among the public of the driving factors of trafficking, placing special attention to its gendered dimension, discrimination based on racial and ethnic origin, and to situations of vulnerability, as well as at challenging harmful stereotypes and changing norms that justify exploitation and abuse.

2b. Member States shall take measures to conduct in-depth qualitative research to analyse the relationship between situations of vulnerability and exposure to risks of trafficking including research to examine the nexus between gender and trafficking situations, in particular less visible forms of trafficking such as domestic servitude and organ removal, taking into account an intersectional approach. Research shall also examine the root causes, prevalence, impact, victims, perpetrators, manifestations, channels and the need for support and protection services.

3. Member States shall allocate the necessary resources in order to conduct regular specialised mandatory gender-, child-, disability- and gender-sensitive  training for officials likely to come into contact with victims or potential victims of trafficking in human beings, including front-line police officers, judges, welfare officers, social workers and hospital workers aimed at enabling them to identify and deal with victims and potential victims of trafficking in human beings.

 

4. Member States shall incorporate anti-trafficking measures as part of their emergency response plans and facilitate cooperation and coordination between each other in order to prevent and reduce the occurrence of trafficking in human beings in such contexts, in close cooperation with the EU anti-trafficking coordinator (EU ATC).

5. Member States shall put in place effective, accessible and independent complaint mechanisms. Such mechanisms would contribute to the early detection, identification of, assistance to and support for victims of trafficking. Complaints may be put forward by trusted third parties, such as NGOs, trade unions, or migrant workers’ organisations, on behalf of the victim under the condition that the victim has given consent. Coming forward with a complaint shall not lead to any reprisals for the victim, particularly in relation to their immigration status.’; 

(6) The following Article 18 a is inserted:

‘Article 18 a

Offences concerning the use of services which are the object of exploitation extracted from a victim of an offence concerning trafficking in human beings

1. In order to make the preventing and combating of trafficking in human beings more effective by discouraging demand, Member States shall take the necessary measures to establish as a criminal offence the use of service of people which are the objects of exploitation of the prostitution of others or other forms of sexual exploitation as referred to in Article 2 ▌.

 

1a. Member States shall also consider taking measures regarding those who solicit, accept or obtain a sexual act from a person in a situation of prostitution in exchange for remuneration, the promise of remuneration, the provision of a benefit in kind or the promise of such a benefit.

 

1b. For other cases of exploitation referred to in Article 2, Member States shall take the necessary measures to establish as a criminal offence the use of such services when the user knew or could have reasonably known that the person was a victim of such exploitation.
 

2. Member States shall take the necessary measures to ensure that an offence as established in accordance with paragraphs 1 and 2 are punishable by effective, proportionate and dissuasive penalties and sanctions.’;

 

(6a) Article 19 is replaced by the following

‘Article 19

National Anti-Trafficking Coordinators

1. Member States shall take the necessary measures to establish national anti-trafficking coordinators (NAC) and provide them with the adequate resources necessary to effectively carry out their functions. The national anti-trafficking coordinator shall work with relevant national, regional and local bodies and agencies, particularly law enforcement authorities, national referral mechanisms, and with relevant civil society organisations active in this field. The NAC shall also liaise with the EU Anti-Trafficking Coordinator (EU ATC) as well as with relevant Union agencies.

2. The NAC shall support the government in the development of coherent and effective policies, including the National Action Plans referred to in Article 19c, to assist, support and protect victims.

3. Member States shall also establish independent national rapporteurs or equivalent mechanisms to monitor the impact of anti-trafficking measures, to submit annual reports and monographic reports on matters considered to be serious, urgent or requiring special attention to the competent national authority and to receive complaints. They shall be also responsible for carrying out assessments of root causes and trends in trafficking in human beings, at least the gathering of statistics covered in Article 19a.’;

(7) the following Article 19a is inserted:

‘Article 19 a

Data collection and statistics

1. Member States shall collect statistical data to monitor the effectiveness of their systems to combat offences referred to in this Directive.

2. The statistical data referred to in paragraph 1 shall include at least the following comparable data disaggregated by intersectional indicators including gender, racial or ethnic origin, disability, age, citizenship or statelessness and forms of exploitation, where possible under national law:

(b)  the number of suspects of offences referred to in Article 2 ▌, (c)  the number of persons prosecuted for offences referred to in Article 2 ▌, nature of the final decision to prosecute as well as the number of legal persons held liable pursuant to Article 5(1) or (2), and the number and type of sanctions against legal persons referred to in Article 6;

 

2a. Member States shall ensure that the processing of personal data necessary to collect the statistical data referred to in paragraphs 1 and 2 is carried out in a manner that does not allow the identification of the persons concerned.

3. Member States shall in collaboration with the relevant Union agencies ensure that the statistical data referred to in paragraph 2 for the previous year is transmitted annually to the Commission, by 1 July each year, according to all relevant provisions,  as well as to the  European Parliament.‘;  

 

 (7a) the following article is inserted:

‘Article 19b

National Action Plans

1. Member States shall adopt and implement National Anti-Trafficking Action Plans in cooperation with national anti-trafficking coordinators,national rapporteurs, relevant stakeholders including law enforcement authorities, judicial authorities and civil society organisations active in the field to prevent and combat trafficking in human beingsby... [insert date-two years from the date of entry into force of this Directive]. Member States shall ensure that the National Action Plans are reviewed and updated at least every five years.

2. A National Action Plan shall include:

i. preventive measures, including analysis aimed at the identification of economic and social sectors where the risk of trafficking is present;

ii. the development of due diligence schemes to be applied by natural and legal persons operating in the economic and social sectors where risk of trafficking is identified;

iii. strategies for monitoring the correct application of the due diligence schemes developed for specific sectors where risk of trafficking is identified, including through inspections by and reporting to competent administrative authorities, and related follow-up measures;

iv. appropriate mechanisms for coordination and cooperation at strategic and operational levels among all competent authorities, including with relevant Union agencies  appropriate financial resources appropriate training and appropriate legal capabilities made available to competent authorities;

 v. measures to enhance the exchange of information and intelligence on  cross-border human trafficking.

vi. strategies for the development and implementation of measures to prevent re-trafficking of victims;

 vii. procedures for regular monitoring and evaluation of the results achieved through the implementation of the National Anti-Trafficking Action Plans;

The National Anti-Trafficking Action Plans and the reports prepared as a result of their implementation shall be publicly available.’

(7b) Article 20 is replaced by the following:

Article 20

Coordination of the Union strategy against trafficking in human beings

1. In order to contribute to a coordinated and consolidated Union strategy against trafficking in human beings, Member States shall facilitate the tasks of the EU anti-trafficking coordinator (ATC). In particular, Member States shall transmit to the ATC at least the information referred to in Article 19, the data referred to in 19a and 19b. The ATC shall contribute to reporting carried out by the Commission every two years on the progress made in the fight against trafficking in human beings, in consultation with national anti-trafficking coordinators, national rapporteurs and equivalent mechanisms, EU agencies and relevant civil society organizations active in the field.

2. In order to transmit the information referred to in paragraph 1 and to ensure coherent cooperation, Member States shall establish a coordination structure between the ATC, national anti-trafficking coordinators, national referral mechanisms and relevant civil society organisations active in the field.’;

(8)  In Article 23, the following paragraph 3 is inserted:

“The Commission shall, [by three years after transposition deadline], submit a report to the European Parliament and the Council, assessing the extent to which the Member States have taken the necessary measures to comply with this Directive, including Article 18a and the impact of such measures.” ;

Article 2

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by one year after the entry into force at the latest. They shall forthwith communicate to the Commission the text of those provisions.

When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

3. Point (7) of Article 1, which inserts Article 19a into Directive 2011/36/EU shall start to apply on the day referred to in Article 3.

Article 3

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Article 4

This Directive is addressed to the Member States in accordance with the Treaties.

Done at Brussels,

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