Overwegingen bij COM(2024)60 - Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on combating the sexual abuse and sexual exploitation of children and child sexual abuse material and replacing Council Framework Decision 2004/68/JHA (recast)

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dossier COM(2024)60 - Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on combating the sexual abuse and sexual exploitation ...
document COM(2024)60 EN
datum 6 februari 2024
 
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(1)A number of amendments are to be made to Directive 2011/93/EU of the European Parliament and of the Council 13 . In the interests of clarity, that Directive should be recast.


🡻 2011/93/EU recital 1 (adapted)

(2)Sexual abuse and sexual exploitation of children, including child pornography ⌦ sexual abuse material ⌫, constitute serious violations of fundamental rights, in particular of the rights of children to the protection and care necessary for their well-being, as provided for by the 1989 United Nations Convention on the Rights of the Child and by the Charter of Fundamental Rights of the European Union 14 .


🡻 2011/93/EU recital 2 (adapted)

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(3)In accordance with Article 6(1) of the Treaty on European Union, the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union, in which Article 24(2) provides that in all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration. Moreover, the Stockholm Programme — An Open and Secure Europe Serving and Protecting Citizens  (4)  ⇨ EU Strategy for a more effective fight against child sexual abuse 15   ⇦ gives a clear priority to ⌦ stepping up the fight against ⌫ combating the sexual abuse and sexual exploitation of children and child pornography ⇨ sexual abuse material, including through actions aimed at ensuring the continued effectiveness of existing Union legislation, if needed through its updating. This is also supported by the EU Strategy on the rights of the child in its objective to fight violence against children and ensure child-friendly justice ⇦ .  


🡻 2011/93/EU recital 3 (adapted)

(4)Child pornography ⌦ sexual abuse material ⌫ and other particularly serious forms of sexual abuse and sexual exploitation of children are increasing and spreading through the use of new technologies and the Internet.


🡻 2011/93/EU recital 4 (adapted)

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(5)Council Framework Decision 2004/68/JHA of 22 December 2003 on combating the sexual exploitation of children and child pornography (5) approximates Member States’ legislation to criminalise the most serious forms of child sexual abuse and sexual exploitation, to extend domestic jurisdiction, and to provide for a minimum level of assistance for victims. Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings establishes a set of victims’ rights in criminal proceedings, including the right to protection and compensation.  ⇨ Directive 2012/29/EU of the European Parliament and of the Council 16  establishes a set of victims’ rights for all victims of all crime, including for child victims of sexual abuse. These rights include the right to information, the rights to support and protection in accordance with victims’ individual needs, a set of procedural rights and a right to a decision on compensation from the offender. The proposal for the revision of the Victims’ Rights Directive further strengthens the rights of victims of crime in the EU, including strengthening of the right to support and protection for child victims of crime 17 . This Directive builds on and is applicable in addition to the Victims’ Rights Directive. ⇦Moreover, the coordination of prosecution of cases of sexual abuse, sexual exploitation of children and child pornography ⌦ sexual abuse material ⌫ will be ⌦ is ⌫ facilitated by the implementation of Council Framework Decision 2009/948/JHA of 30 November 2009 on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings 18 . ⇨ Where prosecution of such cases falls within jurisdiction of more than one Member State, the Member States concerned should cooperate to determine which Member State is best placed to prosecute. Where the competent authorities of the Member States concerned decide, following cooperation or direct consultations under Council Framework Decision 2009/948/JHA 19 , to centralise criminal proceedings in a single Member State through the transfer of criminal proceedings, the Regulation (EU) …/… [proposed Regulation on the transfer of proceedings in criminal matters] 20  should be used for such a transfer. ⇦


🡻 2011/93/EU recital 5

(6)In accordance with Article 34 of the United Nations Convention on the Rights of the Child, States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. The 2000 United Nations Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography and, in particular, the 2007 Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse are crucial steps in the process of enhancing international cooperation in this field.


🡻 2011/93/EU recital 6 (adapted)

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(7)Serious criminal offences such as the sexual exploitation of children and pornography ⌦ sexual abuse material ⌫ require a comprehensive approach covering the prosecution of offenders, the protection of child victims, and prevention of the phenomenon ⇨ , including its recent and foreseeable evolutions and trends, increasingly involving the use of online technologies. For that purpose, the current legal framework needs to be updated, in order to ensure it remains effective ⇦. The child’s best interests must be a primary consideration when carrying out any measures to combat these offences in accordance with the Charter of Fundamental Rights of the European Union and the United Nations Convention on the Rights of the Child. Framework Decision 2004/68/JHA should be replaced by a new instrument providing such comprehensive legal framework to achieve that purpose.


🡻 2011/93/EU recital 7 (adapted)

(8)This Directive should be fully complementary with 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 21 , as some victims of human trafficking have also been child victims of sexual abuse or sexual exploitation.


🡻 2011/93/EU recital 8 (adapted)

(9)In the context of criminalising acts related to pornographic ⌦ child sexual abuse ⌫ performance, this Directive refers to such acts which consist of an organised live exhibition, aimed at an audience, thereby excluding personal face-to-face communication between consenting peers, as well as children over the age of sexual consent and their partners from the definition.


🡻 2011/93/EU recital 9 (adapted)

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(10)Child pornography ⌦ sexual abuse material ⌫ frequently includes images recording the sexual abuse of children by adults. It may also include images of children involved in sexually explicit conduct, or of their sexual organs, where such images are produced or used for primarily sexual purposes and exploited with or without the child’s knowledge. Furthermore, the concept of child pornography ⌦ sexual abuse material ⌫ also covers realistic images of a child, where a child is engaged or depicted as being engaged in sexually explicit conduct for primarily sexual purposes ⇨ , as well as so-called ‘paedophile manuals’ ⇦ .


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(11)Research has shown that limiting the dissemination of child sexual abuse material is not only crucial to avoid the re-victimisation linked to the circulation of images and videos of the abuse but is also essential as a form of offender-side prevention, as accessing child sexual abuse material is often the first step towards hands-on abuse, regardless of whether it depicts real or simply realistic abuse and exploitation. The ongoing development of artificial intelligence applications capable of creating realistic images that are indistinguishable from real images, the number of so-called ‘deep-fake’ images and videos depicting child sexual abuse is expected to grow exponentially in the coming years. In addition, the development of augmented, extended and virtual reality settings making use of avatars including sensory feedback, e.g. through devices providing a perception of touch are not fully covered by the existing definition. The inclusion of an explicit reference to ‘reproductions and representations’ should ensure that the definition of child sexual abuse material covers these and future technological developments in a sufficiently technology-neutral and hence future-proof way.  

(12)To prevent offences involving the sexual abuse of children, the definition of child sexual abuse material should include so-called ‘paedophile manuals’. Paedophile manuals provide advice on how to find, groom and abuse children and avoid being identified and prosecuted. By lowering barriers and providing the necessary know-how, they contribute to inciting offenders and support the commission of sexual abuse. Their online dissemination has already led certain Member States to amend their criminal law and explicitly criminalise possession and distribution of such manuals. The lack of harmonisation creates an uneven level of protection across the EU.


🡻 2011/93/EU recital 10

(13)Disability, by itself, does not automatically constitute an impossibility to consent to sexual relations. However, the abuse of the existence of such a disability in order to engage in sexual activities with a child should be criminalised.


🡻 2011/93/EU recital 11 (adapted)

(14)In adopting legislation on substantive criminal law, the Union should ensure consistency of such legislation in particular with regard to the level of penalties. The Council conclusions of 24 and 25 April 2002 on the approach to apply regarding approximation of penalties, which indicate four levels of penalties, should be kept in mind in the light of the Lisbon Treaty. This Directive, because it contains an exceptionally high number of different offences, requires, in order to reflect the various degrees of seriousness, a differentiation in the level of penalties which goes further than what should usually be provided in Union legal instruments.


🡻 2011/93/EU recital 12 (adapted)

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(15)Serious forms of sexual abuse and sexual exploitation of children should be subject to effective, proportionate and dissuasive penalties. This includes, in particular, various forms of sexual abuse and sexual exploitation of children which are facilitated by the use of information and communication technology, such as the online solicitation of children for sexual purposes via social networking websites and chat rooms. The definition of child pornography ⌦ sexual abuse material ⌫ should also be clarified and brought closer to that contained in international instruments. ⇨ More broadly, the terminology used in this Directive should be brought into line with recognised international standards such as the Terminology Guidelines for the Protection of Children from Sexual Exploitation and Sexual Abuse adopted by the Interagency Working Group in Luxembourg on 28 January 2016. ⇦  


🡻 2011/93/EU recital 13

(16)The maximum term of imprisonment provided for in this Directive for the offences referred to therein should apply at least to the most serious forms of such offences.


🡻 2011/93/EU recital 14 (adapted)

(17)In order to reach the maximum term of imprisonment provided for in this Directive for offences concerning sexual abuse and sexual exploitation of children and child pornography ⌦ sexual abuse material ⌫, Member States may combine, taking into account their national law, the imprisonment terms provided for in national legislation in respect of those offences.


🡻 2011/93/EU recital 15 (adapted)

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(18)This Directive ⇨ should ⇦ obliges Member States to provide for criminal penalties in their national legislation in respect of the provisions of Union law on combating sexual abuse ⌦ and ⌫, sexual exploitation of children and child pornography ⌦ sexual abuse material ⌫. This Directive ⇨ should not ⇦ creates no ⌦ any ⌫ obligations regarding the application of such penalties, or any other available system of law enforcement, in individual cases.


🡻 2011/93/EU recital 16

(19)Especially for those cases where the offences referred to in this Directive are committed with the purpose of financial gain, Member States are invited to consider providing for the possibility to impose financial penalties in addition to imprisonment. 


🡻 2011/93/EU recital 17 (adapted)

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(20)In the context of child pornography ⌦ sexual abuse material ⌫, the term ⌦ not be considered to be committed ⌫‘without right’ allows Member States to provide a defence in respect of conduct relating to pornographic material ⇨ that could constitute child sexual abuse material ⇦ having, for example, a medical, scientific or similar purpose. It also allows activities carried out under domestic legal powers, such as the legitimate possession of child pornography ⌦ sexual abuse material ⌫ by the authorities in order to conduct criminal proceedings or to prevent, detect or investigate crime ⇨ , or activities carried out by organisations acting in the public interest against child sexual abuse, when these organisations have been authorised by the competent authorities of the Member State in which they are established. These activities include, in particular, the reception, analysis and creation of reports of suspected child sexual abuse material, including the determination of the location where the material referred to in the reports is hosted, submitted to them by online users or other organisations acting in the public interest against child sexual abuse, as well as carrying out searches to detect the dissemination of child sexual abuse material ⇦ . Furthermore, it ⌦ the term ‘without right’ ⌫does not exclude legal defences or similar relevant principles that relieve a person of responsibility under specific circumstances, for example where telephone or Internet hotlines carry out activities to report those cases. .


🡻 2011/93/EU recital 18 (adapted)

(21)Knowingly obtaining access, by means of information and communication technology, to child pornography ⌦ sexual abuse material ⌫ should be criminalised. To be liable, the person should both intend to enter   ⌦ an online location ⌫ a site where child pornography ⌦ sexual abuse material ⌫ is available and know that such  ⌦ material ⌫ images can be found there. Penalties should not be applied to persons inadvertently accessing sites ⌦ online locations ⌫ containing child pornography ⌦ sexual abuse material ⌫. The intentional nature of the offence may notably be deduced from the fact that it is recurrent or that the offence was committed via a service in return for payment.


🡻 2011/93/EU recital 19

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(22)Solicitation of children for sexual purposes is a threat with specific characteristics in the context of the Internet, as the latter provides unprecedented anonymity to users because they are able to conceal their real identity and personal characteristics, such as their age. ⇨ In the last decade, the use of information and communication technologies has provided offenders with increasingly easy access to children, where the contact often starts with the offender luring the child, for example by pretending to be a peer or with other deceitful or flattering conduct, into compromising situations. This increased access to children has led to the rapid growth of phenomena such as ‘sextortion’ (i.e. the conduct of threatening to share intimate material depicting the victim to obtain money, child sexual abuse material or any other benefit), affecting children both below and above the age of sexual consent. There has been a surge in recent years of financially motivated sextortion by organised crime groups that target in particular teenage boys, which have led to multiple cases of those children taking their lives. It is therefore essential that all these phenomena are appropriately covered in Member States’s law. ⇦ At the same time, Member States acknowledge the importance of also combating the solicitation of a child outside the context of the Internet, in particular where such solicitation is not carried out by using information and communication technology. Member States are encouraged to criminalise the conduct where the solicitation of a child to meet the offender for sexual purposes takes place in the presence or proximity of the child, for instance in the form of a particular preparatory offence, attempt to commit the offences referred to in this Directive or as a particular form of sexual abuse. Whichever legal solution is chosen to criminalise ‘off-line grooming’, Member States should ensure that they prosecute the perpetrators of such offences.


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(23)In light of recent technological developments and, in particular, of the development of augmented, extended and virtual reality settings, the criminalisation of the solicitation of children should not be limited to voice, text or mail conversations, but also include contacts or exchanges in augmented, extended or virtual reality settings, as well as large-scale solicitation of children through the use of chat-bots trained for that purpose, as this phenomenon is itself expected to increase in light of the foreseeable evolution of artificial intelligence applications. Therefore “by means of information and communication technology” should be understood in a sufficiently broad way to cover all those technological developments.


🡻 2011/93/EU recital 20 (adapted)

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(24)This Directive does not govern Member States’ policies with regard to consensual sexual activities in which children may be involved and which can be regarded as the normal discovery of sexuality in the course of human development, taking account of the different cultural and legal traditions and of new forms of establishing and maintaining relations among children and adolescents, including through information and communication technologies. These issues fall outside of the scope of this Directive. Member States which avail themselves of the possibilities referred to in this Directive do so in the exercise of their competences. ⇨ More particularly, Member States should be able to exempt from criminalisation consensual sexual activities involving exclusively children above the age of sexual consent, as well as consensual sexual activities involving peers. The amendments to that Article are intended to clarify the scope of the derogation, in light of the fact that some Member States appear to have interpreted its original wording too broadly (e.g. by exempting from criminalisation consensual activities between minors above the age of consent and adults of any age, considered to be ‘peers’ despite a significant age difference). ⇦   


🡻 2011/93/EU recital 21

(25)Member States should provide for aggravating circumstances in their national law in accordance with the applicable rules established by their legal systems on aggravating circumstances. They should ensure that those aggravating circumstances are available for judges to consider when sentencing offenders, although there is no obligation on judges to apply those aggravating circumstances. The aggravating circumstances should not be provided for in Member States’ law when irrelevant taking into account the nature of the specific offence. The relevance of the various aggravating circumstances provided for in this Directive should be evaluated at national level for each of the offences referred to in this Directive.


🡻 2011/93/EU recital 22

(26)Physical or mental incapacity under this Directive should be understood as also including the state of physical or mental incapacity caused by the influence of drugs and alcohol.


🡻 2011/93/EU recital 23 (adapted)

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(27)In combating sexual exploitation of children, full use should be made of existing instruments on the seizure and confiscation of the proceeds of crime, such as the United Nations Convention against Transnational Organized Crime 22 and the Protocols thereto, the 1990 Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, Council Framework Decision 2001/500/JHA of 26 June 2001 on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime 23 , and Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime Related Proceeds, Instrumentalities and Property 24  ⇨ , and Directive […/…/…] of the European Parliament and of the Council 25  ⇦. The use of seized and confiscated instrumentalities and the proceeds from the offences referred to in this Directive to support victims’ assistance and protection should be encouraged.


🡻 2011/93/EU recital 24 (adapted)

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(28)Secondary victimisation should be avoided for victims of offences referred to in this Directive. ⇨ For example, and without affecting the safeguards provided for in Directive (EU) 2016/800 of the European Parliament and of the Council 26 , in ⇦ . In Member States where prostitution or the appearance in pornography is punishable under national criminal law, it should be possible not to prosecute or impose penalties under those laws where the child concerned has committed those acts as a result of being victim of sexual exploitation or where the child was compelled to participate in child pornography ⇨ sexual abuse material. The term “compelled” should be understood in this case as covering also situations where the child has been lured to act, without having been forced or coerced, in addition to situations where the child was forced or coerced to act.  ⇦


🡻 2011/93/EU recital 25

(29)As an instrument of approximation of criminal law, this Directive provides for levels of penalties which should apply without prejudice to the specific criminal policies of the Member States concerning child offenders.


🡻 2011/93/EU recital 26

(30)Investigating offences and bringing charges in criminal proceedings should be facilitated, to take into account the difficulty for child victims of denouncing sexual abuse and the anonymity of offenders in cyberspace. To ensure successful investigations and prosecutions of the offences referred to in this Directive, their initiation should not depend, in principle, on a report or accusation made by the victim or by his or her representative. The length of the sufficient period of time for prosecution should be determined in accordance with national law.


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(31)Victims of sexual abuse and sexual exploitation of children are often unable to report the crime for several decades after its commission due to the shame, guilt and self-blame, which can be related, among others, to the social and cultural stigma that still surround sexual abuse, the secrecy in which the abuse takes place, threatening or blaming conduct by the perpetrator, and/or trauma. Perpetrators of sexual abuse and sexual exploitation of children, unlike perpetrators of other violent crimes, tend to remain active until old age, continuing to pose a threat to children. In light of this, effective investigation and prosecution of offences involving sexual abuse and sexual exploitation of children, as well as appropriate victims’ assistance and support, can only be provided if statutes of limitations allow victims to report the crime for a significantly extended period of time.


🡻 2011/93/EU recital 27 (adapted)

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(32)Effective investigatory tools should be made available to those responsible for the investigation and prosecutions of the offences referred to in this Directive. Those tools could include interception of communications, covert surveillance including electronic surveillance, monitoring of bank accounts or other financial investigations, taking into account, inter alia, the principle of proportionality and the nature and seriousness of the offences under investigation. Where appropriate, and in ⌦ In ⌫ accordance with national law, such tools should also include the possibility for law enforcement authorities to use a concealed identity on the Internet ⇨ and to distribute, under judicial supervision, child sexual abuse material. Requiring Member States to enable the use of these investigative techniques is essential to ensure the effective investigation and prosecution of offences involving sexual abuse and sexual exploitation of children. As those are, in most cases, facilitated or enabled by online tools and are therefore intrinsically cross-border, undercover operations and the use of so-called ‘honeypots’ have proven to be particularly effective investigative tools in relation to child sexual abuse and child sexual exploitation offences. To ensure effective investigation and prosecution, Member States’ competent authorities should also cooperate through and with Europol and Eurojust, within their respective competences and in accordance with the applicable legal framework. These competent authorities should also share information among each other and with the Commission on issues encountered in investigations and prosecutions. ⇦ 


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(33)Some forms of online child sexual abuse, such as the live streaming of abuse of children, often committed physically by persons present in third countries at the request of paying perpetrators in the EU, create particular investigative challenges, as the streamed abuse does not usually leave images or recorded traces behind. Cooperation with financial services defined in Article 2, point (b), of Directive 2002/65/EC of the European Parliament and of the Council 27  and other relevant service providers can be crucial to overcome challenges in investigating and prosecuting such offences. Hence, to ensure effective investigation and prosecution, Member States should consider providing frameworks for close cooperation between financial services and other relevant service providers such as providers of live streaming services. This would reduce impunity and ensure that all of the offences covered by this Directive can be investigated effectively, using targeted and appropriate tools and resources.


🡻 2011/93/EU recital 28

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(34)Member States should encourage any person who has knowledge or suspicion of the sexual abuse or sexual exploitation of a child to report to the competent services. ⇨ In particular, Member States should make available information to children about the possibility to report the abuse, including to helplines. ⇦ It is the responsibility of each Member State to determine the competent authorities to which such suspicions may be reported. Those competent authorities should not be limited to child protection services or relevant social services. The requirement of suspicion ‘in good faith’ should be aimed at preventing the provision being invoked to authorise the denunciation of purely imaginary or untrue facts carried out with malicious intent.


🡻 2011/93/EU recital 29 (adapted)

(35)Rules on jurisdiction should be amended to ensure that sexual abusers or sexual exploiters of children from the Union face prosecution even if they commit their crimes outside the Union, in particular via so-called sex tourism. ⌦ The sexual exploitation of children in travel and tourism ⌫Child sex tourism should be understood as the sexual exploitation of children by a person or persons who travel from their usual environment to a destination abroad where they have sexual contact with children. Where child sex tourism⌦ the sexual exploitation of children in travel and tourism ⌫takes place outside the Union, Member States are encouraged to seek to increase, through the available national and international instruments including bilateral or multilateral treaties on extradition, mutual assistance or a transfer of the proceedings, cooperation with third countries and international organisations with a view to combating sex tourism. Member States should foster open dialogue and communication with countries outside the Union in order to be able to prosecute perpetrators, under the relevant national legislation, who travel outside the Union borders for the purposes of ⌦ the sexual exploitation of children in travel and tourism ⌫child sex tourism. 


🡻 2011/93/EU recital 30

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(36)Measures to protect child victims in a comprehensive manner should be adopted in their best interest, taking into account an assessment of their needs. Effective child protection requires a whole of society approach. With the child at the centre, all relevant authorities and services should work together to protect and support the child, in their best interests. ⇨ The “Barnahus” model of providing a child-friendly environment staffed with specialists from all relevant disciplines is currently the most advanced example of a child-friendly approach to justice and to avoiding revictimisation. The relevant provisions of this Directive are built on the principles of that model. That model aims to ensure that all children involved in child abuse or child sexual exploitation investigations benefit from a high-quality assessment in child-friendly settings, appropriate psychosocial support and child protective services. This Directive attempts to ensure that all Member States uphold these principles, although it does not require the Member States to follow the Barnahus model as such. Where medical examinations of the child are necessary for the purposes of the criminal investigations, for example to gather evidence of abuse, these should be limited to the strictly necessary in order to limit retraumatisation. This obligation should not prevent other medical examinations necessary for the well-being of the child. ⇦ Child victims should have easy access to ⇨ child friendly justice, ⇦legal remedies and measures to address conflicts of interest where sexual abuse or sexual exploitation of a child occurs within the family. When a special representative should be appointed for a child during a criminal investigation or proceeding, this role may be also carried out by a legal person, an institution or an authority. Moreover, child victims should be protected from penalties, for example under national legislation on prostitution, if they bring their case to the attention of competent authorities. Furthermore, participation in criminal proceedings by child victims should not cause additional trauma to the extent possible, as a result of interviews or visual contact with offenders. ⇨ All authorities involved in the proceedings should be trained in child friendly justice. ⇦A good understanding of children and how they behave when faced with traumatic experiences will help to ensure a high quality of evidence-taking and also reduce the stress placed on children when carrying out the necessary measures. ⇨ Where child victims participate in criminal proceedings, the court should take full account of their age and maturity in conducting the proceedings and should ensure that the proceedings are accessible and understandable to the child. ⇦


🡻 2011/93/EU recital 31

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(37)Member States should consider giving ⇨ provide tailored and comprehensive ⇦ short- and long-term assistance to child victims. Any harm caused by the sexual abuse and sexual exploitation of a child is significant and should be addressed ⇨ as soon as possible after the first contact of the victim with the authorities. Immediate assistance to victims before and during criminal investigations and proceedings is essential to limit the long-term trauma linked to the abuse suffered. To facilitate the swift provision of assistance, including the identification of the relevant support services, Member States should issue guidelines and protocols for healthcare, education and social service professionals, including the staff at helplines ⇦. Because of the nature of the harm caused by sexual abuse and sexual exploitation, such assistance should continue for as long as necessary for the child’s physical and psychological recovery and may last into adulthood if necessary. Assistance and advice should be considered to be extended to parents ⇨ , carers ⇦  or guardians of the child victims where they are not involved as suspects in relation to the offence concerned, in order to help them to assist child victims throughout the proceedings.


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(38)The trauma arising from sexual abuse and sexual exploitation of children often lasts well into adulthood, entailing long-term effects which often prevent victims from reporting the offence and from seeking assistance and support for years or even decades. Therefore, Member States should provide tailored and comprehensive short- and long-term assistance not only to child victims, but also to adult survivors of child sexual abuse and sexual exploitation.


🡻 2011/93/EU recital 32 (adapted)

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(39)Framework Decision 2001/220/JHA ⌦ Directive 2012/29/EU ⌫ establishes a set of victims’ rights in criminal proceedings, including the right to protection and ⇨ the right to receive a decision on ⇦ compensation ⇨ from the offender ⇦. ⇨ The proposal for the revision of the Victims’ Rights Directive provides for targeted amendments to all victims’ rights. ⇦ In addition ⌦ to the rights established under that Directive, ⌫ child victims of sexual abuse, sexual exploitation and child pornography⌦ sexual abuse material ⌫ should be given access to legal counselling and, in accordance with the role of victims in the relevant justice systems, to legal representation, including for the purpose of claiming compensation. Such legal counselling and legal representation could also be provided by the competent authorities for the purpose of claiming compensation from the State. The purpose of legal counselling is to enable victims to be informed and receive advice about the various possibilities open to them. Legal counselling should be provided by a person having received appropriate legal training without necessarily being a lawyer. Legal counselling and, in accordance with the role of victims in the relevant justice systems, legal representation should be provided free of charge, at least when the victim does not have sufficient financial resources, in a manner consistent with the internal procedures of Member States.


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(40)The EU Centre to prevent and combat child sexual abuse (‘EU Centre’), established by Regulation […/…/EU laying down rules to prevent and combat child sexual abuse] 28 , should support Member States’ prevention and assistance to victims’ efforts and obligations under this Directive. It should facilitate the exchange of best practices in the Union and beyond. The EU Centre should encourage dialogue between all relevant stakeholders to help the development of state-of-the-art prevention programmes. Moreover, by cooperating with Member States and contributing to the standardisation of data collection concerning child sexual abuse and sexual exploitation throughout the Union, the EU Centre should be an asset in supporting evidence-based policy on both prevention and assistance to victims. Member States should establish national authorities or equivalent entities as they consider most appropriate according to their internal organisation, taking into account the need for a minimal structure with identified tasks, capable of carrying out assessments of trends in child sexual abuse, of gathering statistics, of measuring the results of actions to prevent and combat child sexual abuse, and of regularly reporting on such trends, statistics and results. Such national authorities should serve as a national contact point and should take an integrative multistakeholder approach in their work. In addition, Member States should establish the necessary mechanisms at national level to ensure effective coordination and cooperation in the development and implementation of measures to prevent and combat child sexual abuse and child sexual exploitation, both online and offline, among all relevant public and private actors, as well as facilitate cooperation with the EU Centre and the Commission.


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(41)Member States may choose to appoint existing bodies or entities, such as national Coordinating Authorities already designated in accordance with Regulation […/…/EU Proposed CSA regulation], as national authorities or equivalent mechanisms under this Directive, to the extent that this is compatible with the need to ensure that the tasks attributed to them under this Directive are performed effectively and in full.


🡻 2011/93/EU recital 33 (adapted)

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(42)Member States should undertake action to prevent or prohibit acts related to the promotion of child sexual abuse and  ⌦ the sexual abuse and sexual exploitation of children in travel and tourism ⌫ child sex tourism. Different preventative measures could be considered, such as the drawing up and reinforcement of a code of conduct and self-regulatory mechanisms in the tourism industry, the setting-up of a code of ethics or ‘quality labels’ ⇨ or establishing an explicit policy ⇦for tourist organisations combating ⌦ the sexual abuse and sexual exploitation of children in travel and tourism ⌫ child sex tourism. ⇨ Member States should leverage the tools at their disposal under EU law, national law, and international agreements, for the purpose of preventing the sexual abuse and sexual exploitation of children in travel and tourism through or towards their territory, most notably by taking appropriate action upon reception of relevant information from third countries, including conducting further checks or issuing a refusal of entry in the context of the Regulation (EU) 2018/1861 on the establishment, operation and use of the Schengen Information System (SIS) in the field of border checks 29 . ⇦ 


🡻 2011/93/EU recital 34 (adapted)

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(43)Member States should establish and/or strengthen policies to prevent sexual abuse and sexual exploitation of children, including measures to discourage and reduce the demand that fosters all forms of sexual exploitation of children, and measures to reduce the risk of children becoming victims, by means of, information and awareness-raising campaigns, ⇨ including for parents and carers and society at large, ⇦ and research and education programmes. In such initiatives, Member States should adopt a child-rights based approach. Care should be taken to ensure that awareness-raising campaigns aimed at children are appropriate and sufficiently easy to understand ⇨ , and tailored to the specific needs of children of different age groups, including pre-school children. Prevention measures should take a holistic approach to the phenomenon of child sexual abuse and sexual exploitation, by addressing its online and offline dimensions and mobilizing all relevant stakeholders. In particular for the online dimension, measures should include the development of digital literacy skills, including critical engagement with the digital world, to help users identify and address attempts of online child sexual abuse, seek support and prevent its perpetration. Particular attention should be paid to prevention of child sexual abuse and sexual exploitation of children that are cared for in a group facility rather than in the context of family-based care ⇦.⌦ Where not already in place, the ⌫ The establishment of  ⇨ dedicated ⇦ help-lines or hotlines should be considered. 


🡻 2011/93/EU recital 35 (adapted)

(44)Regarding the system of reporting sexual abuse and sexual exploitation of children and helping children in need, hotlines under the number 116 000 for missing children, 116 006 for victims of crime and 116 111 for helplines for children, as introduced by Commission Decision 2007/116/EC of 15 February 2007 on reserving the national numbering beginning with 116 for harmonised numbers for harmonised services of social value 30 , should be promoted and experience regarding their functioning should be taken into account.


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(45)Organisations acting in the public interest on the fight against child sexual abuse, such as the members of the INHOPE network of hotlines, have been active for years in several Member States, cooperating with law enforcement and providers to facilitate the process of removal and reporting of online child sexual abuse material. This work combats re-victimisation by limiting the spread of illegal material online, and can provide evidence to law enforcement of crimes committed. However, the legal framework in which they operate differs considerably from one Member State to another and is, in many cases, lacking in terms of the identification of the tasks that these organisations can lawfully undertake, as well as of the relevant conditions. Member States should be able to provide an authorisation for these organisations to carry out relevant tasks, and in particular the processing of child sexual abuse material, in which case the processing should not be considered to be “without right”. Such authorisations are encouraged as they increase legal certainty, maximise synergies between national authorities and other actors involved in the fight against child sexual abuse, and support victims’ rights by removing child sexual abuse material from the public digital sphere.


🡻 2011/93/EU recital 36 (adapted)

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(46)Professionals likely to come into contact with child victims of sexual abuse and sexual exploitation should be adequately trained to identify and deal with such victims. ⇨ To ensure child-friendly justice throughout the investigation and prosecution of child sexual abuse and sexual exploitation cases, that ⇦That training should be promoted for members of the following categories when they are likely to come into contact with child victims: police officers, public prosecutors, lawyers, members of the judiciary and court officials, child and health care personnel, ⇨ professionals in the education sector, including in early childhood education and care, social services, providers of victim support and restorative justice services, ⇦but could also involve other groups of persons who are likely to encounter child victims of sexual abuse and sexual exploitation in their work.


🡻 2011/93/EU recital 37

(47)In order to prevent the sexual abuse and sexual exploitation of children, intervention programmes or measures targeting sex offenders should be proposed to them. Those intervention programmes or measures should meet a broad, flexible approach focusing on the medical and psycho-social aspects and have a non-obligatory character. Those intervention programmes or measures are without prejudice to intervention programmes or measures imposed by the competent judicial authorities.


🡻 2011/93/EU recital 38

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(48)Intervention programmes or measures are not provided as an automatic right. It is for the Member State to decide which intervention programmes or measures are appropriate. ⇨ In the case of persons who fear that they might offend, these programmes or measures should be accessible in line with national standards concerning healthcare. ⇦


🡻 2011/93/EU recital 39 (adapted)

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(49)To prevent and minimise recidivism, offenders should be subject to an assessment of the danger posed by the offenders and the possible risks of repetition of sexual offences against children. Arrangements for such assessment, such as the type of authority competent to order and carry out the assessment or the moment in or after the criminal proceedings when that assessment should take place as well as arrangements for effective intervention programmes or measures offered following that assessment should be consistent with the internal procedures of Member States. For the same objective of preventing and minimising recidivism, offenders should also have access to effective intervention programmes or measures on a voluntary basis. Those intervention programmes or measures should not interfere with national schemes set up to deal with the treatment of persons suffering from mental disorders   ⇨ health issues and should be accessible and affordable in line with national standards concerning healthcare, for example with regard to their eligibility for reimbursement under the health schemes of the Member States ⇦. 


🡻 2011/93/EU recital 40 (adapted)

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(50)Where the danger posed by the offenders and the possible risks of repetition of the offences make it appropriate, convicted offenders should be temporarily or permanently prevented from exercising at least professional activities involving direct and regular contacts with children ⇨ or within organisations that work for children or organisations acting in the public interest on the fight against child sexual abuse ⇦ . Employers when recruiting for a post involving direct and regular contact with children are entitled to be informed of  ⇨ should request information on ⇦ existing convictions for sexual offences against children entered in the criminal record, or of existing disqualifications. For the purposes of this Directive, the term ‘employers’ should also cover persons running an organisation that is active in volunteer work related to the supervision and/or care of children involving direct and regular contact with children ⇨ , including community settings such as schools, hospitals, social care services, sports clubs or religious communities ⇦. The way such information is delivered, such as for example access via the person concerned, and the precise content of the information, the meaning of organised voluntary activities and direct and regular contact with children should be laid down in accordance with national law. ⇨ However, the information transmitted from one competent authority to another should at least contain all relevant records stored by any Member State in their national criminal records registers, and all relevant records that can be easily obtained from third countries, such as information that can be obtained from the United Kingdom through the channel established in accordance with Title IX of Part Three of the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part 31 . ⇦ 


🡻 2011/93/EU recital 41

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(51) ⇨ In the area of child sexual abuse, the phenomenon of offenders that regain access to children after a conviction or disqualification by moving to another jurisdiction is particularly widespread and worrisome. It is therefore crucial to take all necessary measures to prevent it. ⇦ With due regard to the different legal traditions of the Member States, this Directive takes into account the fact that access to criminal records is allowed only either by the competent authorities or by the person concerned. This Directive does not establish an obligation to modify the national systems governing criminal records or the means of access to those records. 


🡻 2011/93/EU recital 42

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(52)⇨ For information not or not yet available in ECRIS, for example information concerning offending third country nationals until the time Regulation 2019/816 of the European Parliament and of the Council 32  is fully implemented, Member States should make use of other channels to provide all relevant information to employers that recruit for a post involving direct and regular contact with children. ⇦The aim of this Directive is not to harmonise rules concerning consent of the person concerned when exchanging information from the criminal registers, i.e. whether or not to require such consent. Whether the consent is required or not under national law, this Directive does not establish any new obligation to change the national law and national procedures in this respect.


🡻 2011/93/EU recital 43 (adapted)

(53)Member States may consider adopting additional administrative measures in relation to perpetrators, such as the registration in sex offender registers of persons convicted of offences referred to in this Directive. Access to those registers should be subject to limitation in accordance with national constitutional principles and applicable data protection standards, for instance by limiting access to the judiciary and/or law enforcement authorities.


🡻 2011/93/EU recital 44 (adapted)

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(54)Member States are encouraged ⇨ should take the necessary measures ⇦  to create mechanisms for data collection or focal points, at the national, local or regional levels and in collaboration with civil society, for the purpose of observing and evaluating the phenomenon of sexual abuse and sexual exploitation of children ⇨ , building also on the broader data collection obligations set in the Directive […/…] [Victims rights Directive, Recast], and Regulation (EU) [Regulation to prevent and combat child sexual abuse] ⇦. In order to be able to properly evaluate the results of actions to combat sexual abuse and sexual exploitation of children and child pornography ⌦ sexual abuse material ⌫, the Union should continue to develop its work on methodologies and data collection methods to produce comparable statistics.  ⇨ The EU Centre, as a central knowledge hub on child sexual abuse in the Union, should play a key role in this respect. ⇦  


🡻 2011/93/EU recital 45

(55)Member States should take appropriate action for setting up information services to provide information on how to recognise the signs of sexual abuse and sexual exploitation.


🡻 2011/93/EU recital 46 (adapted)

(56)Child pornography, which constitutes child sexual abuse images, ⌦ sexual abuse material ⌫ is a specific type of content which cannot be construed as the expression of an opinion. To combat it, it is necessary to reduce the circulation of child sexual abuse material by making it more difficult for offenders to upload such content onto the publicly accessible web. Action is therefore necessary to remove the content and apprehend those guilty of making, distributing or downloading child sexual abuse images ⌦ material ⌫ . With a view to supporting the Union’s efforts to combat child pornography ⌦ sexual abuse material ⌫, Member States should use their best endeavours to cooperate with third countries in seeking to secure the removal of such content from servers within their territory.


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(57)Member States’ efforts to reduce the circulation of child sexual abuse material, including by cooperating with third countries under this Directive, should not affect Regulation (EU) 2022/2065, Regulation (EU) 2021/1232 and […/…/ Regulation laying down rules to prevent and combat child sexual abuse]. Online content constituting or facilitating criminal offences referred to in this Directive will be subject to measures pursuant to Regulation (EU) 2022/2065 of the European Parliament and of the Council 33 as regards illegal content.


🡻 2011/93/EU recital 47 (adapted)

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(58)However, despite⌦ Despite ⌫ such efforts ⌦ by Member States ⌫, the removal of child pornography ⌦ sexual abuse material ⌫ at its source is often not possible when the original materials are not located within the Union, either because the State where the servers are hosted is not willing to cooperate or because obtaining removal of the material from the State concerned proves to be particularly long. Mechanisms may also be put in place to block access from the Union’s territory to Internet pages identified as containing or disseminating child pornography ⌦ sexual abuse material ⌫. The measures undertaken by Member States in accordance with this Directive in order to remove or, where appropriate, block websites containing child pornography ⌦ sexual abuse material ⌫ could be based on various types of public action, such as legislative, non-legislative, judicial or other. In that context, this Directive is without prejudice to voluntary action taken by the Internet industry to prevent the misuse of its services or to any support for such action by Member States. Whichever basis for action or method is chosen, Member States should ensure that it provides an adequate level of legal certainty and predictability to users and service providers. Both with a view to the removal and the blocking of child abuse content, cooperation between public authorities should be established and strengthened, particularly in the interests of ensuring that national lists of websites containing child pornography ⌦ sexual abuse material ⌫ are as complete as possible and of avoiding duplication of work. Any such developments must take account of the rights of the end users and comply with existing legal and judicial procedures and the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Charter of Fundamental Rights of the European Union. The Safer Internet Programme has set up a network of hotlines the goal of which is to collect information and to ensure coverage and exchange of reports on the major types of illegal content online. ⇨ The EU co-funded network of hotlines 34 handles reports of alleged child sexual abuse material reported anonymously by the public and cooperates with law enforcement and industry at national, European and global level to ensure swift removal of this type of content. ⇦


🡻 2011/93/EU recital 48

48. This Directive aims to amend and expand the provisions of Framework Decision 2004/68/JHA. Since the amendments to be made are of substantial number and nature, the Framework Decision should, in the interests of clarity, be replaced in its entirety in relation to Member States participating in the adoption of this Directive.


🡻 2011/93/EU recital 49 (adapted)

(59)Since the objective of this Directive, namely to combat child sexual abuse, sexual exploitation of children and child pornography ⌦ sexual abuse material ⌫, cannot be sufficiently achieved by the Member States alone and ⌦ but ⌫ can ⌦ rather ⌫ therefore, by reasons of the scale and effects ⌦ 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.


🡻 2011/93/EU recital 50

(60)This Directive respects fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union and in particular the right to the protection of human dignity, the prohibition of torture and inhuman or degrading treatment or punishment, the rights of the child, the right to liberty and security, the right to freedom of expression and information, the right to the protection of personal data, the right to an effective remedy and to a fair trial and the principles of legality and proportionality of criminal offences and penalties. This Directive seeks to ensure full respect for those rights and principles and must be implemented accordingly.


🡻 2011/93/EU recital 51

51. In accordance with Article 3 of the Protocol (No 21) on the position of United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union, the United Kingdom and Ireland have notified their wish to take part in the adoption and application of this Directive.


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(61)[In accordance with Article 3 and Article 4a(1) of Protocol No 21 on the position of 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.]

OR    

[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.]


🡻 2011/93/EU recital 52 (adapted)

(62)In accordance with Articles 1 and 2 of the Protocol (No 22) 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.


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(63)The obligation to transpose this Directive into national law should be confined to those provisions which represent a substantive amendment as compared to the earlier Directive. The obligation to transpose the provisions which are unchanged arises under the earlier Directive.


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(64)This Directive should be without prejudice to the obligations of the Member States relating to the time-limit for the transposition into national law of the Directive set out in Annex I.


🡻 2011/93/EU (adapted)