Changes from plenary report to adopted text

Removed(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].

Removed(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.

Removed(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. Member States should ensure the complementarity between procedures.

Removed(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.

Removed(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.

Removed(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.

Removed(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.

Removed(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.

Removed(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.

Removed(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.

Removed(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.

Removed(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.

Removed(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.

Removed(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.

Removed(15) In accordance with the Joint Political Declaration of 28 September 2011 of Member States and the Commission on explanatory documents, 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.

Removed(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.

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

RemovedHAVE ADOPTED THIS DIRECTIVE:

RemovedAmendments to Directive 2011/36/EU

RemovedDirective 2011/36/EU is amended as follows:

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

Removed‘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.’;

Removed(2) the following Article 2a is inserted:

Removed“Article 2a

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

RemovedMember 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.“

Removed(2a) Article 4 is amended as follows:

Removed(a) paragraph 2 is replaced by the following:

Removed‘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:

Removed(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;

Removed(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;

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

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

Removed(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;

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

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

Removed(b) the following paragraph is added:

Removed‘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.’;

Removed(2b) Article 5 is amended as follows:

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

Removed‘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:’;

Removed(b) paragraph 2 is replaced by the following:

Removed‘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.’;

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

Removed“Article 6 Sanctions on legal persons

Removed1. 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:

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

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

Removed(ba) exclusion from participation in public contracts;

Removed(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;

Removed2. 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:

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

Removed(b) placing under judicial supervision;

Removed(c) judicial winding-up.

Removed3. Member States shall ensure that sanctions referred to in paragraphs 1 and 2 are effective, proportionate and dissuasive.”

RemovedMember 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], 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.

RemovedMember 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.”;

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

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

Removed1. 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.