On 23 January, EU lawmakers reached a political agreement on the revision of the EU Anti-Trafficking Directive. While the revision now addresses also the online dimension of human trafficking and foresees sanctions on legal persons, such as companies, La Strada International regrets that the revision did not bring meaningful improvements in the rights and protection of trafficked people and those at risk. Except for some minor adjustments related to assistance and support and reference to the right to international protection, the EU legislators were not willing to improve victims’ access to unconditional support, residence, unpunishment and or remedies.
While EU member states now ‘may’ establish compensation funds, there is no referral made to using assets recovered for compensation payments to victims. Also MEP proposals for state advance payments; for ensuring compensation claims to be dealt with in criminal procedures or ensuring legal assistance for the execution of compensation awards did not make it to the final text, while these proposals are currently part of the Commission’s proposal for the revision of the Victim Rights Directive, which is still under discussion.
While FEMM and LIBE seemed initally ready to advance victims’ rights, during the last institutional negotiations the two Rapporteurs seems to prioritize their demands to get surrogacy embedded in the definition and to ensure reference to criminalisation of sexual services in addition to criminalising, the knowing use of services of trafficked people. Both issues that La Strada International has been strongly advocating against.
Surrogacy is now added, next to forced marriage and illegal adoption to the definition (article 2) and a binding criminalisation of knowing use is also in. Fortunately, the Council opposed differentiation between services and also opposed the Rapporteurs call for strict liability; users can now only be criminalised, when it relates to intentional use and when the user had the knowledge that the services were offered by victims of trafficking.
However apparently a new recital (9) is agreed that cites that states may criminalise the purchase of sexual services. This is concerning and seems to conflict with the overall text of the directive, which covers all forms of human trafficking, while this recital only relates to sexual services. Confusing is also that the text of the same recital makes clear that ‘the criminalisation should only target the use of services provided within the framework of exploitation covered by the offence of trafficking in human beings’. La Strada International does not expect much positive impact of the binding criminalisation of the knowing use, rather harm.
Also, the Commission’s own earlier evaluations acknowledged the scarce application, the lack of proof of any impact and the existence of unintended harmful side effects. In spite of this, the Commission still surprisingly concluded that there was a need for introducing a binding provision in the revised EU Trafficking Directive. The only simple argument repeatedly used in favour of a binding provision is the idea that a harmonized landscape would be more effective to tackle demand. However, there is no proof that a harmonized landscape would give a better result in this particular field, and no explanation or proof has so far been given on why harmonized criminalization would work better than harmonized decriminalization. Likely also the EU legislatators cannot answer this question.