Dr Matilde Ventrella, Senior Lecturer in Law, University of Wolverhampton (UK)

1. Introduction

The European Commission recently released two important documents on October 17th: a progress report on the EU’s plan to combat human trafficking and a report on how a specific directive (Directive 2004/81) is being used to protect victims. This analysis will delve into the key findings of both reports and offer concluding observations.

2. Progress Report on the EU’s Fight Against Human Trafficking

This report focuses on the period from 2012 to the third quarter of 2014 and examines the policies, legislation, and progress made by the EU in addressing human trafficking.

The report highlights the implementation of Directive 2011/36/EU, a crucial piece of legislation that recognizes the gendered nature of human trafficking and the distinct ways in which men and women are exploited. This directive mandates member states to actively investigate and prosecute traffickers, while providing essential protection to victims. While 25 member states have reportedly integrated this directive into their national laws, the report stresses the need for a dedicated effort to eliminate this heinous crime by prioritizing victim identification and protection. To facilitate this, the Commission has issued guidelines for identifying victims, emphasizing the importance of early detection to enable effective investigations and prosecutions. These guidelines call for training programs for consular services and border guards to enhance victim identification and suggest collaboration with NGOs and a special focus on child victims.

The report also emphasizes the importance of raising awareness about human trafficking and reducing demand, particularly focusing on addressing violence against women and gender inequality. An upcoming study on the gender dimensions of human trafficking, due in late 2015, is expected to shed further light on this critical aspect.

Recognizing the organized nature of human trafficking, the Commission urges cooperation among EU member states, advocating for joint internal security operations, support from Europol, and the development of annual action plans focusing on priority areas identified by the Council, which considers human trafficking a major concern within its organized crime strategy.

Civil society plays a crucial role, according to the report. The Commission established the EU Civil Society Platform against THB in 2013 to facilitate engagement with civil society organizations specializing in human trafficking. This platform brings together over 100 organizations from EU member states and four non-EU countries every two years.

Furthermore, the report emphasizes the need for stronger collaboration between EU and non-EU countries to effectively combat all forms of human trafficking, referencing a 2009 action plan that stresses the importance of international dialogue. This plan supports global efforts to prevent human trafficking, protect victims, and promote international collaboration, advocating for the involvement of EU agencies like Eurojust, Europol, Frontex, and FRA in these endeavors.

Annexed to the report is a joint action report from various Justice and Home Affairs (JHA) agencies detailing their combined efforts between October 2012 and September 2014. While the report calls for greater coherence and collaboration among these agencies, it lacks specifics on how to achieve this. The report acknowledges the goal of dismantling criminal networks but offers no concrete proposals. Essentially, the report outlines meetings, training sessions, and conferences organized by JHA agencies without demonstrating tangible action against trafficking networks.

The report’s lack of clarity on individual agency responsibilities and coordination mechanisms raises concerns. For instance, the European Asylum Support Office (EASO), tasked with managing a common European asylum system, should have a different role from Europol, which assists member states in investigating cross-border crime. It is unclear how JHA agencies can effectively fulfill their mandates and collaborate without overlaps. The report should have addressed the potential need for reforms within these agencies, such as expanding Europol’s reach to counter the global nature of human trafficking. Reports from organizations like the UN, IOM, and the Global Initiative highlight the vulnerability of smuggled migrants to human trafficking, often forced into exploitation to repay debts incurred during their journeys. Recent investigations by Italian journalists have revealed even more horrifying practices, with traffickers exploiting smuggled migrants for organ harvesting. The lack of concrete proposals on how JHA agencies can address these issues within and outside the EU is a significant shortcoming of the report.

While the true extent of human trafficking, especially the number of smuggled migrants subsequently trafficked or exploited for their organs, remains unknown, the report provides statistical data on victims and traffickers from 2010 to 2012, sourced from Eurostat. This data, based on identified or “presumed” victims (meeting criteria but lacking formal identification or refusing it), estimates that over 30,000 victims were registered in the EU during this period. The data reveals a higher prevalence of female victims (80%), with 45% being 25 years or older. Disturbingly, children represent a significant portion of victims, with 17% aged 12-17 and 2% aged 0-11. However, the data skews heavily towards EU citizens, with only five non-EU nationalities identified. Victims hidden within member states or trafficked through maritime smuggling remain unaccounted for, highlighting the need for intensified investigations both within and outside the EU. Understanding criminal networks operating between the EU and countries like those in Africa is crucial for identifying these hidden victims. Sadly, the report lacks concrete steps in this direction.

3. Assessment of the Commission’s Report on Directive 2004/81 Implementation

The Commission’s analysis of Directive 2004/81’s implementation reveals how member states are using it to address human trafficking. This directive permits residence permits for victims of human trafficking and migrant smuggling who assist law enforcement in apprehending criminals. However, member states have discretion in applying this directive to smuggling cases, and residence permits are typically contingent on victim cooperation. The option to grant residence permits to uncooperative victims exists but is rarely used. This conditional approach contradicts Directive 2011/36, which mandates support for all victims regardless of their cooperation with law enforcement.

While the report emphasizes the importance of victim identification for the directive’s effectiveness, particularly informing them of their right to support and their choice regarding cooperation with authorities, it notes ambiguity in member states’ implementation regarding whether “presumed” victims receive this information. Providing this information to presumed victims could offer them a lifeline, enabling them to escape their traffickers and access support.

The Commission expresses concern over the low number of residence permits issued in exchange for cooperation, noting that unconditional permits are rare. Interviews with law enforcement and civil society members in Rimini, Italy, revealed that unconditional residence permits can be instrumental in combating human trafficking. Such permits provide a sense of security for victims and encourage them to report traffickers without fear. Moreover, they break the cycle of vulnerability that victims face when investigations conclude, and their temporary permits expire, leaving them susceptible to re-trafficking. An unconditional permit allows victims to integrate into society and escape the clutches of traffickers. This approach has yielded positive results in Rimini, effectively curbing human trafficking, and in Siracusa, aiding in the identification of smuggling networks operating between Egypt and Italy. However, authorities in Siracusa acknowledge that tackling the complex issue of maritime migrant smuggling requires broader investigations beyond the EU’s borders, calling for greater involvement from JHA agencies.

The Commission, disturbed by the infrequent use of unconditional residence permits, plans to address this issue directly with member states to ensure proper implementation of the directive. Additionally, they plan to leverage the Task Force Mediterranean, established in 2013, to prevent migrant deaths at sea. While this signifies a positive step towards recognizing the link between human trafficking and maritime smuggling, the Task Force’s communication lacks concrete action plans and clarity on the role of agencies like Europol and Eurojust in tackling these interconnected crimes. While the report promotes cooperation with non-EU countries and a comprehensive approach to immigration, it fails to propose concrete reforms.

**4. ** Conclusions

The Commission’s reports paint a concerning picture of the situation within member states, suggesting that current efforts are insufficient to eradicate or significantly reduce human trafficking. The report on Directive 2004/81 reveals a reluctance among member states to utilize residence permits as a tool to protect and empower victims. The Commission’s intention to rectify this situation and ensure proper implementation of the directive offers a glimmer of hope.

Granting relevant investigative powers to agencies like Europol, both within and outside the EU, is crucial. While such reforms necessitate member state consent, as they fall under Article 87 of the Treaty on the Functioning of the European Union (TFEU), member states seem preoccupied with border security, failing to grasp that combating human trafficking, by reducing irregular migration, ultimately enhances border security. Italy’s announcement to suspend its Mare Nostrum Operation, coupled with the lack of support from other member states in rescuing and accommodating migrants at sea, is a worrying sign. The unwillingness to cooperate in investigations, grant residence permits, or even participate in sea rescues points towards a dangerous trend. Unless this changes, human trafficking and its interconnected crime, migrant smuggling by sea, will continue to thrive, resulting in further exploitation and loss of life.

 Barnard & Peers: chapter 26