Joint NGO Statement on recast EU Anti-Trafficking Directive

Joint NGO Statement on recast EU Anti-Trafficking Directive


Download the Statement As PDF here. 

Joint NGO Statement on recast
EU Anti-Trafficking Directive

25 April 2024

On 23 of April, during its last plenary meeting of this mandate, the EU parliament adopted the final
text of the recast of the EU anti-trafficking Directive1. We, the undersigned non-governmental human
rights organisations, welcome some progress that has been made in the revised Directive. It is positive
that sanctions for legal persons have been strengthened for those liable for misconduct;
that the nonpunishment clause now applies to all unlawful activities and that the right to international protection
is strongly recognised in the text.

Overall, however the final legislative text demonstrates a lack of commitment of the European
institutions to advance the rights of trafficked persons.

We have advocated for binding measures for EU Member States to ensure real access to rights and
justice for victims of trafficking, both on paper and in practice, including their access to safe reporting,
non-punishment, compensation and unconditional access to adequate support and protection, as well
as residence. However, most of the provisions in the Directive related to these rights have not been
meaningfully or effectively strengthened. Moreover, the use of services of trafficked persons is now
criminalised, while there is no evidence that this will be effective or strengthen victims’ rights. In fact,
it is likely to cause human rights violations instead.

Also, we raise concern that article 19 no longer encourages EU Member States to establish National
Rapporteurs. This runs counter to the fact that independent Rapporteurs have proven to be essential
to scrutinize and raise awareness about violations of victims’ rights and to provide recommendations
to States to enhance victims’ rights.

Now that the Directive will soon be enforced and EU Members States have two years to transpose it,
we call upon the European Commission and EU Member States to still show their commitment and
ensure that the rights of victims are prioritised during the transposition and implementation process.

Clear guidance by the Commission and full implementation of the Directive by EU Members States
would already go a long way towards this. Below we outline our strong recommendations for the
transposing period and beyond, based on a do no harm and strong human rights approach.

1. Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating
trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA


DEFINITION/ Offences concerning trafficking in human beings.

Article 2 - The definition of the Directive has been extended and now includes ‘the exploitation of
surrogacy, of forced marriage, or of illegal adoption’. We have raised concern especially about the
addition of surrogacy into this EU law, which seem more based on political interests, instead of
adequate data and evidence.

 • The Commission and Member States should conduct thorough research and collect the
necessary evidence for the exploitation of surrogacy or exploitation of illegal adoption in
relation to human trafficking, to provide for an adequate debate on facts and evidence and
ensure further guidance on the application of these forms of trafficking.

• It is also important for Member States to ensure that all new forms of trafficking in human
beings are only considered trafficking in human beings if the conduct fulfils all the elements
of the definition of trafficking in human beings. The addition of new forms of trafficking does
not automatically imply that all illegal adoptions or all surrogacy, should be automatically
considered as trafficking in human beings.

• Member States should further ensure that measures to prevent human trafficking, will not
restrict or infringe on existing rights for persons to marry, adopt a child or create a family



Article 4 - The Directive text now foresees that the use of information and communication technology
is an aggravating circumstance, when it has facilitated or committed the dissemination of images or
videos or similar material of a sexual nature involving the victim. While we can support this change,
we regret that the text only speaks of materials of a sexual nature and not takes a broader ‘all forms
of human trafficking’ approach, in line with the Directive and underline that measures related to
technology should safeguard people’s rights to and when using such technologies.

  • Member States should ensure that measures addressing online recruitment and exploitation
    – including the extension of powers for law enforcement bodies to collect and monitor data
    – should not negatively impact the rights of (certain groups of) people and should be based
    on respect and protection of human rights of all. Anti-trafficking measures targeting online
    trafficking should not adversely affect and compromise the safety and privacy of sex workers
    and creators of online intimate content.



Article 6 - Sanctions for legal persons, that have been liable for misconduct have been strengthened
and now may include the exclusion of access to public funding, tender and grants, or the removal of
business permits and authorisation. We can support these measures, as it remains very difficult to hold
legal persons accountable. We highlight that:

• Member States should engage workers and workers representative organisations in the
development and monitoring of these legislative measures and ensure that the impact of
these measures on all potential affected workers is well-evaluated. Measures taken to address
the misconduct, should not negatively impact the rights of workers.

• Recovered assets and fines paid by legal entities/companies should be used to compensate
workers and victims for damages including for back wages.



Article 8 - The scope of the non-punishment clause has been extended and now applies to all unlawful
activities, that victims have been compelled to commit as a direct consequence of being subject
of trafficking. This includes administrative offences related to prostitution, begging, loitering
or undeclared work, or other acts which are not criminal in nature but subject to administrative or
pecuniary sanctions, in accordance with national law.

We welcome this change. However, we highlight that for the non-punishment principle to be effectively

• Member States should ensure that the non-punishment provision is appropriately assessed
and applied as early as possible by competent authorities. Further, it should be ensured that
any proceedings against the victim must be promptly terminated, and all their consequences
cancelled, before and after an eventual conviction. This implies that criminal records must be
cleared, and any other sanctions cancelled including fines or other administrative sanctions.

• States who have not done so yet should establish national provisions and procedural guidelines
on non-punishment, next to ensuring awareness raising and training of relevant stakeholders,
to ensure an effective implementation of the non-punishment clause.



Article 11 - We welcome the small amendments made to Article 11, which refer to ‘specialised’ services
and clarifies that appropriate and safe accommodation’ (already part of the 2011 Directive) should
include ‘shelters and other appropriate interim accommodation’, which ‘shall be provided in sufficient
numbers and easily accessible for presumed and identified victims of trafficking. They shall assist them
in their recovery, by providing adequate and appropriate living conditions with a view on a return to
independent living’.

However, the unconditional access to support and residence permits has unfortunately not been
improved in the text of the Directive. While the Directive makes clear that the assistance to victims
should not be dependent on the willingness to cooperate in criminal investigations etc., the text still
reads “without prejudice to Directive 2004/81/EC or similar national rules”. A real human rights-based
approach detaches victim’s identification and assistance from participation in criminal proceedings and
places their interests and their support and protection of their rights at the centre. Such an approach
will ultimately lead to reduced vulnerabilities, fewer re-trafficking cases, more credibility of State
protection systems, and safer communities.

• Member States should ensure that there is access in practice to ‘unconditional support’ for every
person in need, regardless of their status or engagement with authorities or legal proceedings,
or a ‘social path’, to ensure a positive impact on access to justice for victims of trafficking, in
relation to their access to identification, residence, compensation, non-punishment and long
term integration, including victim’s access to the labour market.

• The granting of a residence permit on personal grounds should be enhanced in law and practice,
considering a range of situations, such as the victim’s safety or vulnerability, state of health
and family situation. This would also significantly increase victims’ incentives to co-operate
with the authorities.

• Member States should ensure that the provision of services should be: (a) accessible to victims
through in particular, sufficient proximity of services to victims, opening hours, and delivery
of services through multiple channels including face to face, online, helplines and itinerant/
mobile services; coordinated in particular through referrals in accordance with their specific
needs; (b) be free of charge; (c) be confidential; (d) act in the interests of the victims; (e) remain
fully operational in times of crisis, such as health crisis or other states of emergency;



Article 11 - The revised Directive mentions that victims of trafficking, should be enabled to exercise
their right to apply for international protection or equivalent national status and States should ensure
complementarity and coordination between the authorities involved in anti-trafficking activities and
asylum authorities, ensuring appropriate and effective referral mechanisms to be in place between
both authorities. Recital 10c reads: “Member States are further requested not to transfer victims to a
Member State where there are substantial grounds for believing that the victims, because of the transfer
to that Member State, would face a real risk of violation of their fundamental rights that amounts to
inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights
of the European Union”. We welcome both text additions and would like to highlight that:

 •  When transposing the Directive, EU Members States should ensure that victims of trafficking
also in practice do not have to choose between the different mechanisms in place and can
always apply for international protection.

 •  EU Member States should take measures to enhance identification among people applying for
international protection and those denied protection.

 • EU Member States should develop and implement a risk assessment process for Dublin returns
and evaluate the impact on returned victims and their access to justice and adequate care.
Before initiating removal proceedings, EU Member States should conclude the identification
process and provide individuals with a specified period for recovery and reflection.

• EU Member States should comply with the non-refoulement principle.


Article 13a - This article refers to ‘General provisions on assistance, support, and protection measures
for child victims of trafficking in human beings’ and their need for safe reporting mechanisms. We
strongly regret that reference to safe reporting and complaint mechanisms is not embedded in the
text for adult victims.

  • EU MS should ensure that safe reporting and complaint mechanisms beyond the minimum
    requirements set out in the revised Directive are available for all potential victims of human
    trafficking, and that mechanisms that enable identification, reporting and representation by
    third parties are available in practice.


Article 17 - This article on access to compensation has not been effectively strengthened. The access
to compensation is still restricted in the text to existing schemes – and if no schemes exist, there is
no access. While the text now mentions that States may establish a compensation fund, they are not
bound to do so, and in fact this was already possible. 

• Member States should take the necessary measures to ensure that victims of trafficking in
human beings, irrespective of their residence status or type of exploitation, have access
to schemes of compensation to victims of crime and necessary measures should be taken to
ensure that recovered assets and administrative fines are used to pay compensation to victims.

• More EU guidance is needed to define material and immaterial damages.

• Member States should ensure that victims have the right in practice to claim and receive
compensation during criminal procedures, and have access to legal assistance or representation,
next to advance payment.



Article 11 - The Directive calls for strengthened NRMs. EU Member States should take measures to
establish by law one or more NRMs. The Directive now also describes what the minimum tasks of
this NRM should include. Furthermore, Article 11 refers to the establishment of a European Referral
Mechanism and focal points. While we can support this, we critically note that:

• EU Member States should ensure that sufficient capacity and resources are allocated to NRMs,
including priority funds for victim support, which are currently lacking.

• The formalising of NRMs should by no means be used to further limit the outreach and support
to victims.

• The establishment of a European Referral Mechanism (ERM) should not be taken top down but
be developed in close cooperation with national actors and the inclusion of civil society from
the outset. The ERM should primarily focus on the adequate and safe referral of victims based
on a human rights-based approach, including needs and risk assessments. It should not be (mis)
used as a vehicle for victim return.

• For the proposed national focal points for victims, common criteria should be developed
including a leading role for civil society actors and other support organisations in their



Article 18 - This article of the Directive now criminalises the use of a service from a victim of trafficking
in human beings when it is committed intentionally and with the knowledge that the person providing
the service is a victim. We believe that criminalisation of “knowing use” will not strengthen victims’
rights or the prevention and prosecution of human trafficking. In fact, it is likely to cause human rights
violations instead. Evaluations conducted, including by the European Commission, have so far shown
the absence of any proven positive impact of such a provision. Most of the EU Member States have
already introduced such provisions in national criminal law and there is only very limited prosecutorial
activity and few convictions across the EU.

While we are relieved that the final text of article 18 ensures that criminalization of the use of services
requires intent, profit and knowledge and applies equally to all forms of trafficking in human beings,
we remain concerned that states might see it as a call to criminalise the provision of sexual services,
especially as Recital 9a calls for more stringent criminal rules, including criminalising the purchase of
sexual acts. We therefore insist that:

• States should regularly evaluate and report about the criminalisation of the knowing use,
especially looking into the human rights impact on the most vulnerable population such as
migrants, sex workers and other precarious workers. Anti-trafficking measures shouldn’t
adversely affect human rights of vulnerable groups.

•  The European Commission should raise awareness of this crime across Europe and ensure
adequate awareness campaigns. Such campaigns should address all services and not be
misused to advocate against sex work.

•  Anti-trafficking measures should generally not be conflated with or used to criminalise sex work
and criminalisation should always target the use of services provided within the framework of
exploitation covered by the offence of trafficking in human beings (rec. 9.a)


Article 19 - In this article, the Directive has weakened the call for a National Rapporteur to be established
in each EU MS and instead there is a call for strong coordination. We regret that there is not more
binding language included for independent Rapporteurs, who are necessary for the independent and
critical assessment of the impact of THB measures, which is urgently needed for us to critically evaluate
efforts taken.

• It is important that coordination bodies are clearly separated from National Rapporteurs, who
should independently and critically monitor the implementation and impact of anti-trafficking

• Member States should appoint independent Rapporteurs, who should as well as collecting
data and monitoring anti-trafficking measures, carry out specific assessments on the human
rights impact of anti-trafficking measures on a regular basis.

• EU MS/Rapporteurs should collect data that provides more insight in the access of victims to
their rights embedded in the Directive, including their right to identification, the reflection
period, temporary and longer-term residence including on personal grounds, non-punishment,
compensation, and international protection, next to assistance and support.


Signed by:

European Council on Refugees and Exiles (ECRE)

European Sex Workers’ Rights Alliance (ESWA)

Global Alliance against Traffic in Women (GAATW)

La Strada International – European NGO Platform against Trafficking in Human Beings

Platform for International Cooperation on Undocumented Migrants (PICUM)

Victim Support Europe (VSE)



1 Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA
2 See further LSI policy paper

Let’s keep in touch

Subscribe to stay informed about new campaigns, policy briefings and resources, events and other activities you can get involved with.