The European Union (‘EU’) has taken several steps over the past ten years towards combating trafficking in human beings through the adoption of several legal instruments. Prior to the adoption of Directive 2011/36/EU, EU trafficking legislation was contained in three different instruments each of which dealt with a specific aspect of prevention or protection. These instruments were also drafted in line with states’ obligations to put into place criminal provisions to punish perpetrators and to prevent future acts of trafficking, and much less on the need for the protection of victims.
The first instrument, Council Directive 2004/81/EC, requires Member States to provide residence permits to third-country (non EU) trafficking victims who cooperate with the Competent Authorities. The second main legislative instrument is Council Framework Decision 2001/220/JHA of 15 March 2001 on the Standing of Victims in Criminal Proceedings, which does not explicitly refer to trafficking victims, but instead addresses victims of any crime covered by the national law of Member States. The third main legislative instrument was Council Framework Decision 2002/629/JHA of 19 July 2002 on Combating Trafficking in Human Beings and focussed almost exclusively on the need for a criminal law framework and for the investigation and prosecution of those responsible for trafficking individuals.
The adoption of a comprehensive Directive dealing with preventing and combating trafficking in human beings and protecting its victims is a much welcome development particularly in light of the enhanced legal status a Directive has in comparison to a Framework Decision. As a matter of general EU law, certain provisions of Directives can have direct effect in national law if they are clear, precise, and unconditional, and if the deadline for implementation has passed. Provisions of Directives must be incorporated into domestic law in any event, but if they have not, or have not been incorporated properly, individuals may rely directly on those effective provisions before domestic courts. Individuals can also bring actions for damages against the authorities for failing to implement the provisions of a Directive that have direct effect.
The UK initially exercised its ability to opt-out of the Directive on the basis of its view that the UK already complies with much of the provisions contained in the draft EU Directive. However, it later applied to opt-in to the Directive and its request was accepted by the European Commission. The date of entry into force of the Directive for the UK was on 18 October 2011.
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