This is an excerpt from Varieties of European Subsidiarity: A Multidisciplinary Approach. Get your free download from E-International Relations.
European action against trafficking in human beings needs to be viewed from a twofold perspective. On the one hand, it is part of the measure against irregular migration, which is analyzed in section three of this book. On the other hand, it is a serious form of crime that is included in EU cooperation in criminal matters in the area of freedom, security and justice (Title V of the Treaty on the Functioning of the European Union, TFEU), as explained in Chapter 7. This dual perspective is also reflected in two different legal bases, which are set out in Articles 79 and 83 TFEU. Both provisions are included in Title V, although they are not binding on all EU Member States as the United Kingdom, Ireland and Denmark have deviated from these provisions. However, the EFTA member states are bound. In the area of freedom, security and justice, the EU does not have exclusive competence and must therefore comply with the principle of subsidiarity mentioned in the Treaties. Protocol No. 2 in particular relates to the application of the principle of subsidiarity and the principle of proportionality. The aim of this chapter is to understand the role of the subsidiarity principle in European action in the fight against trafficking in human beings. After analyzing the principle in the EU legal framework and in the context of human trafficking, the focus will be on its contribution to the adoption of solutions against users of services provided by victims of human trafficking.
The principle of subsidiarity in the area of freedom, security and justice
The principle of subsidiarity is a filter between the Union’s competences and their exercise. The EU may only use its legislative powers in a certain area, as delegated by the Member States, in a way that is compatible with the principle of subsidiarity. The Lisbon Treaty retained this approach, even if the specific guidelines for the application of the subsidiarity test were not included in the new protocol that is annexed to the treaties (Lenaerts and Van Nuffel 2011).
The Treaty on European Union (TEU) stipulates in Article 5 (1) that the use of the EU’s competences “is subject to the principles of subsidiarity and proportionality”. In particular, the EU can act according to the principle of subsidiarity if the objectives of the proposed measure cannot be sufficiently achieved by the Member States, but can be better achieved at Union level due to the scope or impact of the proposed measure ”. By its very nature, it only applies in areas where the Union shares legislative powers with that of the Member States (Article 5 (3) TFEU).
In practice, the principle of subsidiarity examines the Union’s action on the basis of a decentralization criterion and an efficiency criterion: the EU only acts if the proposed goals cannot be sufficiently achieved by the member states and if they can be achieved better by the Union (Lenaerts and Van Nuffel 2011 ). In other words, it is understood that EU action must have a better impact than the sum of the individual national actions in the specific policy area of concern.
Since the Treaty of Lisbon, the wording of the treaty based on the principle of subsidiarity refers explicitly to measures by the Member States “either at the central level or at regional and local level”. The philosophy is that decisions are made “as closely as possible to the citizen” (TEU preamble, last paragraph). The EU “acts only within the limits of the powers conferred on it by the Member States in the Treaties” (Article 5 (1) TEU) and subsidiarity is one of the principles governing the exercise of the powers conferred on the EU. For this reason, the EU’s approach will only violate the principle of subsidiarity if the desired goal can also be achieved in all Member States by acting either alone or in cooperation between the Member States concerned (Article 5 (1) TEU).
The application of the principle of subsidiarity must follow Protocol No. 2, adopted together with the Lisbon Treaty. This implies that the actions of the EU institutions are scrutinized by the national parliaments in accordance with the specific procedures established. This is intended to contribute to the smooth functioning of the Union (Article 12 (b) TEU). In the area of freedom, security and justice, Article 69 TFEU reaffirms the role of the national representative bodies as controllers of the EU’s institutional compliance with the principle of subsidiarity. In particular, as in Article 3 of Protocol No. 1, the national parliaments can send the presidents of the three political EU institutions a reasoned opinion on whether a draft legislative act complies with the principle. It is clear, however, that subsidiarity concerns cannot be used to create forms of crime other than those already contained in the part of the Criminal Cooperation Treaty. In other words, subsidiarity cannot be used to create different and new EU competences. Rather, its specific application in the area of freedom, security and justice confirms the need for EU action. Since it is not intended to restrict the use of central European measures, it stands in clear contrast to an interpretation that sees subsidiarity as a means of safeguarding the political function of national borders in EU-wide criminal proceedings (Herlin-Karnell 2009, 352)).
The preamble to Protocol No. 2 clearly states the aim of the principle of subsidiarity: establishing the “condition for application” and establishing a “monitoring mechanism”. Indeed, the main EU institutions have to guarantee their “constant respect” (Article 1) and justify each version of a new legal act with a detailed declaration of compliance (Article 5). Indeed, within eight weeks of submitting a draft legislation, any national parliament can submit a reasoned opinion to the management of the EU institutions showing that compliance is not guaranteed (Article 6). The lack of an explicit reference to such concerns could constitute a breach of EU law set out in the Treaties.
The fight against human trafficking and its weakness
Human trafficking is a serious form of crime and a serious violation of human dignity. Indeed, it is prohibited under Article 5 (3) of the Charter of Fundamental Rights of the European Union. It therefore has no legal or moral acceptance, and the coercive exploitation of one person by another must be viewed as a reprehensible act in any system of criminal law and justice. As mentioned above, the European legal framework addresses the fight against trafficking in human beings from a double perspective: firstly in the context of combating irregular migration and secondly as a crime with a European dimension subject to cooperation between Member States in India’s criminal cases. According to Article 79 TFEU, the EU has:
Develop a common immigration policy aimed at ensuring, at all stages … the prevention and strengthening of measures to combat illegal immigration and trafficking in human beings.
To this end, the EU institutions are called upon to take specific action to combat trafficking in human beings, especially when the criminal practice affects women and children. In this legal context, however, the fight against trafficking in human beings is only one of the instruments aimed at achieving the objective of combating irregular migration and is thus part of EU immigration policy. This arises from an emphasis on the external “cross-border” dimension of trafficking in human beings, which is also reflected in the spirit of the United Nations Convention on Organized Crime (Palermo Convention and its Protocol on Trafficking in Human Beings; United Nations, 2000) and the Convention des Council of Europe against human trafficking (Council of Europe, 2005a).
Taking up the fight against human trafficking solely within the framework of migration policy would clearly have severely restricted EU action. All other constellations of human trafficking within or between Member States would not be pursued and could avoid further prosecution. For this reason, the explicit mention of trafficking in human beings in the list of crimes with a European dimension is an added value. It covers all situations in which EU citizens have become victims of human trafficking without having to be specifically linked to migration issues. Article 83 TFEU therefore states that the
The European Parliament and the Council may, through directives adopted in accordance with the ordinary legislative procedure, lay down minimum requirements for the definition of criminal offenses and sanctions in areas of particularly serious offenses with an internal “cross-border” dimension, which result from the nature or effects of such offenses or because of a special need to fight them together.
Indeed, human trafficking is one of those serious forms of crime with a cross-border dimension, albeit without the necessary link to a migration problem.
At the same time, the transnational dimension stipulated in Article 83 relates to potential internal European constellations, although the area of freedom, security and justice has no internal borders. However, there are such limits to the prosecution of criminal offenses where the competence of the law enforcement authorities lies in the national jurisdictions and the legal measures in the hands of the Member States are considered inadequate.
The EU legal framework for human trafficking includes the Anti-Trafficking Directive and the Residence Permit Directive (EU 2004; 2011). The former is the main source of the current framework and had a legal predecessor in the form of Framework Decision 2002/629 (see EU 2002; Krieg 2009). The latter was the first EU law to deal with trafficking in human beings from a criminal point of view and was therefore included in the third pillar of the original treaty structure, which deals with cooperation in the fields of justice and home affairs.
When the two directives were adopted, concerns about subsidiarity came into play because, in addition to the sum of the national legal provisions, there was added value from EU measures. The investigation and prosecution of the respective criminal offenses depends heavily on the cooperation of the Member States concerned and is reinforced by harmonized criminal laws. However, a satisfactory degree of required harmonization “cannot be achieved by national legislators alone, even if they should decide to work closely together” (Satzger et al. 2013, 115–8).
Therefore, the Anti-Trafficking Directive aims to take a comprehensive approach to combating trafficking in human beings by including measures to sanction traffickers, regardless of whether they are natural or legal persons. Unfortunately, EU legislation does not contain similar provisions for exploiters of victims who are not considered traffickers but who use their services. Indeed, according to the wording of Article 18 (4) of the Anti-Trafficking Directive, Member States should only “consider measures” to “penalize the use of services which are the subject of the use”. This clearly has to be seen as the weakest part of the existing legal framework. Indeed, a system that includes sanctions for users of the services of victims of human trafficking would be much more complete and effective if the opportunities for exploitation were significantly reduced.
Although in line with the subsidiarity principle, it should be noted that in the elections of the European Parliament and the Council, the existing national approaches are preferred and the consideration of criminal penalties remains with the national authorities. Therefore, a genuinely European approach with potentially global reach is being undermined as national governments retain the final say in decisions on criminal law and policy. Unsurprisingly, the proposed solution has not yet worked, as shown in a recent report on the criminalization of service use (EU 2016) issued by the Commission.
The report on the criminalization of the use of services
In short, the report confirmed that national measures were not achieving the desired objectives. For this reason, the Commission was asked to examine the possibility of making a concrete proposal to criminalize the users of services of victims of trafficking in human beings while fully respecting the subsidiarity principle.
In order to develop its own position, the Commission used the information received from the Member States, although they did not explain in detail how “they have complied with the legal obligation to examine the criminalization of users of victims under Article 18 (4)” Directive 2011/36 / EU (EU 2016, 3). This formulation is meaningful and relates in terms of content to both parliamentary and state initiatives. Potentially, the obligation to consider criminalizing users of victims could be met by a simple discussion of the possibility of different penalties within the existing legal framework.
Due to the limited cooperation between Member States, only a patchwork of data and information became available. It appears that only ten EU countries (Bulgaria, Croatia, Cyprus, Greece, Lithuania, Malta, Portugal, Romania, Slovenia and the United Kingdom) deal with all forms of exploitation and recognize the use of services related to human trafficking as a criminal offense . Other EU countries have chosen to criminalize their practices in a more limited and more selective way. In particular, a second group of 14 Member States (Austria, Belgium, Czech Republic, Estonia, France, Germany, Hungary, Italy, Latvia, Luxembourg, the Netherlands, Poland, Slovakia and Spain) stated that they did not have explicit national legislation in place to address the Establish “use of services” as a criminal offense. Instead, use could be made of provisions on sexual offenses and sexual exploitation of children in a smaller subset of Member States (Belgium, Italy, the Netherlands, Spain) or on the illegal placement and exploitation of labor in general (Italy). . Finally, in a third group, Member States such as Finland, Ireland and Sweden have introduced legislation targeting the use of victims of human trafficking, but only in relation to certain forms of exploitation: sexual exploitation in the case of Finland and Ireland and the purchase of sexual services in the case of Sweden. Meanwhile, the demand for services from victims is driving exploitative behavior across Europe, while a comprehensive and coherent response from EU policies is lacking. As individual states appear to be limiting the measures required against human traffickers, the end result is increasingly a fragmented EU measure targeting “ultimate consumers” sporadically.
Currently, most legislative measures focus on sexual exploitation, taking into account that most of the victims are women and girls (Eurostat 2015, 11). However, according to European and international definitions of human trafficking, exploitation for sexual reasons is only one category among many others. The latter also include, for example, “Forced labor or services, including begging, slavery, … bondage or exploitation of criminal activities or organ removal” (EU 2011, Article 2). Only in the first group of countries is there legislation that covers various forms of exploitation. The second and third groups can provide protection through rules that do not necessarily target human trafficking violations. In contrast, the EU legal framework applies when the victims of human trafficking are third-country nationals who are staying illegally on Union territory. A legal instrument in the form of the Employer Sanctions Directive (EU 2009) is then available to the member states. In certain circumstances, this Directive can justify sanctioning users of services, although its primary purpose is to combat irregular migration.
In addition, a communication from the European Commission clarifies that in all the circumstances described in Article 9 of the Employer Sanctions Directive, Member States have made illegal employment a criminal offense, including those where the employer knows that the worker is a victim of human trafficking (EU 2014) 5). The Commission reiterates that Member States do not necessarily sanction illegal employment if “the employer knew that the worker was a victim of human trafficking” (EU 2014, 5). Instead, the Employer Sanctions Directive only applies to the more specific case of victims staying illegally as third-country nationals in a Member State. It does not apply if potential victims are EU citizens or regular EU citizens. Then none of the European legal acts would be useful to counteract the exploitative behavior of users of services and all other applicable legal instruments would have to be rooted in national legal systems.
It appears that the current situation in the fight against human trafficking is influenced by different approaches and practices that have been developed in the EU Member States. If national measures exist to establish a crime, their individual scope is limited, for example without recruitment agencies. In addition, all national legal provisions stipulate that the user was previously aware that the service provider was a victim of human trafficking (EU 2016, 7). The need to find evidence of intent or, in fact, knowledge of wrongdoing by users of services (Men rea) highlights the complexity of the problem. In most Member States, the burden of proof rests with the public prosecutor, while the suspect or accused “benefits from the presumption of innocence and is not obliged to prove his innocence” (EU 2016, 7). Similarly, an explanatory report by the Council of Europe pointed to this main obstacle, but still considered the evidence argument inconclusive in relation to the criminal nature of a particular type of behavior (Council of Europe 2005b, 37).
Furthermore, the development of criminal law needs to go beyond a deterrent and protect people who are part of a larger community. This is especially true for those who are most exposed to violence and who use violence to exploit their individual weaknesses. The focus must therefore be on actors, legal persons or groups of people who exploit victims of human trafficking in the form of abuse or for profit. Investigations must also include promoters or facilitators of such behavior who actively create an environment that enables exploitation by humans. The potential link between exploitation and profit is not limited to criminal organizations as it may be a chain of legitimate businesses. These can be profit makers such as relatives of victims, formal and informal recruitment agencies, employment agencies, subcontractors of global suppliers, travel agencies or transport companies as well as information technology companies (EU 2016, 9). The proposed criminalization of the users of services by victims of human trafficking would be a first step in protecting vulnerable people and as an incentive for law enforcement agencies to increase the reach of their activities.
Accountability of perpetrators as a measure to combat trafficking in human beings is a fundamental aspect of EU action. However, the strength of this key element will be undermined if the users of services are not fully and comprehensively sanctioned. Indeed, this further affects the effective prevention of the crime of human trafficking itself, as it is “less discouraged and even encouraged … through a culture of impunity”. Raising demand-side awareness of various forms of human trafficking can help ensure that “those who benefit from crime and exploit the victims are brought to justice” (EU 2016, 10). Again, in the words of the Commission (EU 2016, 10):
The lack of criminalization of the use of the services of a person who is a victim of human trafficking, especially with the knowledge that they are a victim of human trafficking, makes the fight against human trafficking less effective overall.
While it has been a short time since the Anti-Trafficking Directive came into force and an initial assessment report was published, its results should sound an alarm bell. Successful implementation will only happen if there is a more coherent and unified EU approach to criminalizing users of exploitative services.
Application of the principle of subsidiarity
As mentioned above, the principle of subsidiarity supports European legislative measures that add value to individual national efforts. In the scenario described, subsidiarity concerns need to be examined from at least two perspectives: How, if at all, could a new EU law criminalizing users of human trafficking services be seen as a necessity? and is this due to the inability of the Member States to achieve the desired objective set out in the original directive?
As mentioned earlier, subsidiarity in EU legislation is not intended as a tool to create new forms of criminalization. In addition, human trafficking was included in the list of serious “euro crimes”. What is even more important here is the fact that the “nature” of the existing codification allows the Union to exercise exclusive powers. In this context, reference should be made to the content of Article 18 (4) of Directive 2011/36 / EU:
In order to make the prevention and combating of trafficking in human beings more effective by discouraging demand, Member States shall consider taking measures to criminalize the use of services that are the subject of use under Article 2 Knowing that the person has been the victim of a Is an offense under Article 2.
According to the Commission’s report, the majority of Member States have not yet adopted comprehensive legislation sanctioning the use of services by victims of trafficking in human beings. and most laws sanction the use of human trafficking services for sexual reasons. On the one hand, this is justified because of the strong gender-specific dimension of crime; On the other hand, it excludes all other forms of exploitation. It has also become clear that not all national measures are aimed directly at users of services. Instead, national authorities use legal instruments already in place in their national legal framework to address this form of exploitative behavior.
As a first result, taking into account the purpose of the Anti-Trafficking Directive, the requirements of Article 18 (4) will therefore be complied with and the action taken by Member States will be consistent with the aim of considering measures to give rise to a criminal offense. The provisions described, however, only partially fulfill the obligation of the Member States. Here, too, the Commission’s report is essential evidence that only a minority of states have a comprehensive legal system, including rules that criminalize service users. In addition, the competent national authorities cannot prosecute all user groups of exploitative services. As a result, national measures remain inadequate and inadequate, especially as the number of reported crimes increases at both regional and global levels. There is little doubt that the demand side for the use of human trafficking services continues to fuel the criminal behavior of human traffickers.
Overall, in view of the actual situation in the policy area under discussion, further intervention by European legislation can be justified, while at the same time the principle of subsidiarity is fully complied with. This is possible because the Member States have not yet been able to achieve all of the objectives of Article 18 (4). Regardless of the full implementation of Article 18 (4), its partial or total non-compliance, an argument can be made in favor of a new legal act criminalizing users of exploitative services in accordance with the principle of subsidiarity.
In this way the European objectives in the fight against trafficking in human beings could be better achieved. So, ideally, there would be no further discrimination or differentiation between users of services that protect potential victims from exploitation at different stages in the supply chain. Such genuine European action can also have a positive impact on the general fight against organized crime, which is the main source of certain types of exploitation.
The fight against human trafficking requires a full legal framework to target all of its manifestations. This draws attention to the use of human trafficking services as the main aspect of the observed phenomenon. With the Anti-Trafficking Directive, EU member states have been obliged to prosecute natural and legal persons as traffickers or as companies that exploit vulnerable persons. it also enabled them to further investigate the criminalization of user behavior. The Commission’s own report, however, showed the limits of the European system in solving the problem identified. In short, national measures against the user population appear fragmented and piecemeal, while empirical data on the exact consequences of the implementation process of the directive are difficult to obtain. As the reported crime rates of human trafficking do not decrease, the importance of an effective European legal instrument in the hands of national prosecutors will be strengthened. In this scenario, the principle of subsidiarity justifies EU action in the form of a new Commission proposal to criminalize exploitative behavior, thereby enhancing the use of this policy instrument.
However, the proposed legal interpretation of the principle of subsidiarity takes into account the limits set in the Treaties, as it does not serve to create a new form of crime. Instead, an attempt is being made to develop the existing legal framework for a problem constellation with an already recognized European dimension. The latter has been repeatedly confirmed in official documents dealing with the issue and also highlights the social costs of human trafficking (see EU 2015). This chapter argued that a revised anti-trafficking directive needs to be brought into line with the demand and supply side of a criminal transaction by “changing the overall environment”, which facilitates trafficking in human beings (EU 2011, Article 2; EU 2016, 9). . Closing this existing loophole in the European legal order would provide much-needed support to national authorities in their mission to protect vulnerable people from exploitation.
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