Implementing Action against Trafficking of Human Beings under the TFEU: A Preliminary Analysis
| DOI | 10.1177/203228441200300305 |
| Author | Tom Obokata,Brian Payne |
| Date | 01 September 2012 |
| Published date | 01 September 2012 |
| Subject Matter | Article |
298 Intersentia
IMPLEMENTING ACTION AGAINST
TRAFFICKING OF HUMAN BEINGS UNDER
THE TFEU: A PRELIMINARY ANALYSIS
T O and B P*
ABSTRACT
is article examines the extent to which the European Union and its Member States
have been able to implement so-called 3P obligations (prosecution, protection and
prevention) in relation to tra cking of hum an beings under the Treaty on the Functioning
of the European Union (TFEU), with particular reference to the new EU Directive
adopted in 2011. A detailed analysis of relevant provisions will be presented in
comparison with its predece ssor, the Framework Decision on Human Tra cking 2002,
adopted under the TEU. e main conclusion reached is that, although a number of
improvements have been made to ful l 3P obligations, a wide margin of discretion, the
principle of State sovereignty a s well as other issues such as enlarge ment and restrictive
immigration policies might prevent the EU and its Member States from advancing
e ective action against this crime.
Keywords: approximation of criminal justice; directive; human tra cking; mutual
recognition; T FEU
1. INTRODUCTION
e tra cki ng of human beings has ex perienced an explosion in political, legislative
and academic interests in Europe over t he last two decades. is rise in prominence of
the eld is in part a re ection of the international concern regardi ng this crime, which
led to the adoption of the United Nations Convention against Transnational O rganised
Crime 2000 (Organised Crime Convention) and the Protocol to Prevent, Suppress
* School of Law, Keele University. i s article was produced as a result of t heir ongoing resea rch
project ‘North-S outh Irish Responses to Transnat ional Organised Crime’ f unded by the Arts and
Humani ties Resea rch Counci l.
Implementing Action against Tra c king of Human Being s under the TFEU
New Journal of Eu ropean Crimina l Law, Vol.3, Issue 3-4, 2012 299
and Punish Tra cking in Persons, esp ecially Women and Children 200 01 (Tra cking
Protocol). e latter instrument was an important development, as it required the
adoption of a three-pronged policy, the so-called ‘3Ps obligations’, focusing on
prosecution, protection and prevention. International law on human tra cking as
represented by these instr uments aims to facilit ate a more joined-up approach through
international co-operation among State Parties as well as other stakeholders such as
civil societ y organisations and international agencies.
Regionally, the European Union and it s Member States have been instrumental in
its endeavours to combat and prevent human tra cking, e specially since the adoption
and coming into force of the Treaty on European Union (TEU), which was later
revised by the Treaty of Amsterda m.2 One of the key instruments adopted under the
TEU was the Council Fra mework Decision 2002/629/JHA On Combating Tra cking
in Human Beings3 (2002 Framework Decision). rough the principle of approximation
of national crimi nal laws and procedures, this ins trument aimed to promote a uni ed
EU response to human tra cking. Unfortunately, the implementation of the 2002
Framework Decision was not an easy task, and the European Commission saw the
need to tighten up the EU action by adopti ng a new instrument. An opportu nity came
when the Treaty on the Functioning of t he European Union (TFEU) came into force
in December 2009.4 e Commission put forward a proposal for a directive on the
subject in March 20105 to replace the 2002 Framework Decision, and the EU Di rective
2011/36/EU on Preventing and Combating Tra cking in Human Beings and
Protecting Its Victi ms (2011 Directive)6 entered into force in April 2011.
e purpose of this article is to examine the extent to which this new Directive
adopted under the TFEU wil l enable the EU and its Member States to facilitate a bet ter
response to human tra cking in comparison with the 2002 Framework Decision,
with a particular focus on 3P obligations. It begins by highlighting two key legal
principles applicable under the TFEU: approximation of national criminal laws and
policies, and mutual recog nition of judicial decisions in criminal matters . e article
then looks at how 3P obligations are incorpor ated into the 2011 Directive th rough an
in-depth analysis of pertinent provisions. In so doing, major improvements as well as
areas of concerns are explored in comparison with the 2002 Framework Decision.
Finally, the article w ill analyse wider issues such as the implementation of principles
of approximation and mutual recogn ition in relation to human tra cking, enlargement
and reconsideration of restrictive immigration laws and policies within the EU
1 A/RES/55/25 (15November 2000).
2 T. Obokata, ‘EU Council Fr amework Decision on Combating Tra cking in Human Beings: A
Critical Appra isal’, 40 (2003) Common Marke t Law Review 917.
3 OJ L 203/1 (1August 2002).
4 OJ C83/47 (30March 2010).
5 Proposal for a Direc tive of the European Parliament and of the Council on Preventing and
Combating Tra cking in Persons and P rotecting Victi ms, COM(2010)95 nal (29Ma rch 2010).
6 OJ L 101/1 (15 April 2011).
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