4 - The EU’s Integrated and Holistic Approach

Summary

The European Union adopted region-wide binding legal norms and a multifaceted legal approach to human trafficking. This chapter explains that the EU has competence (legal authority or jurisdiction) over human trafficking because trafficking is seen as a crime that moves across borders. By contrast, the EU needs another source of competence to tackle forced labour in supply chains. These different sources of competence over different drivers of unfree labour resulted in a proliferation of gendered governance strategies. Pushed by the Council of Europe’s Convention on Action against Trafficking in Human Beings, the EU incorporated the rights of trafficking victims. The chapter illustrates how victim’s rights were subsumed under the EU’s primary goal of hardening Member States’ borders against undesirable outsiders, exemplified by migrant sex workers. The EU also promoted a corporate sustainability due-diligence directive and a product ban targeting unfree labour in supply chains, thereby extending EU values beyond Member States’ borders.

In order to effectively address trafficking, a holistic and integrated approach is needed which builds on the respect and promotion of human rights as its fundament.

—European Commission, Report of the Experts Group on Trafficking

The border is the definitive marker of the political, defining in and out, friend and enemy, us and them.

—Longo, The Politics of Borders

The most concentrated site of multiscalar governance – the European Union – has led the way in adopting region-wide binding legal norms to address human trafficking. In 1996, the European Commission identified ‘trafficking in women for the purpose of sexual exploitation’ as ‘an increasing type of international organized crime generating high profits with relatively low forms of risk for traffickers’.¹ Initially, the EU’s governing institutions approached human trafficking as a problem of organised crime and illegal immigration, focusing almost exclusively on sexual exploitation and prostitution. By 2012, however, labour trafficking was firmly on the agenda. EU governing institutions embraced a multifaceted approach ‘based on human rights’ and ‘systematically embedded in multiple policy instruments’ in ‘policy areas ranging from security to migration, justice, equality, anti-discrimination, fundamental rights, employment, development, research, humanitarian aid and fisheries, amongst others’.² The EU’s antitrafficking framework is widely praised for augmenting the human rights of victims and filling the gap surrounding victim protection left in the UN’s Human Trafficking Protocol.³ The overlapping membership between the Council of Europe (whose sole purpose is to protect human rights) and the EU helps to explain the EU’s emphasis on the human rights of victims in the context of human trafficking.

The shift in the EU’s governance approach to human trafficking occurred at the same time as a similar change in how UN institutions handled the problem and the emergence of the global antislavery network. In both cases, human rights advocates and networks of experts drove the expansion of antitrafficking strategies, which coincided with the interests of governance institutions concerned with protecting and strengthening their institutional domain. Like its international counterparts, EU institutions also adopted highly gendered governance strategies for dealing with different kinds of human trafficking, treating sexual and labour exploitation very differently.

Despite these similarities, there are some critical differences between the EU’s and the global antislavery governance network’s approaches to human trafficking and unfree labour. Most significantly, the EU has retained the concept of human trafficking with its emphasis on movement as the core of its governance strategies. It is the movement across national borders that gives the EU legislative authority over human trafficking. Another difference is that unlike the global antitrafficking network, EU governance institutions have not embraced the term ‘modern slavery’. This difference is more than simply terminological; it signifies different understandings of the nature of the problem to be governed, a difference encapsulated in a 2013 report by two prominent new abolitionists assessing the EU’s antitrafficking strategy. Objecting to the EU’s use of ‘trafficking’ as ‘an overarching term that includes the concept “slavery”’, Kevin Bales and Zoe Trodd argued that since ‘trafficking is a process by which slavery can be achieved’, trafficking is defined by slavery, not vice versa.⁴ In contrast, they identified the problem as a constraint on freedom, not movement, urging the EU to adopt the definition of slavery in the Bellagio–Harvard Guidelines, which emphasises controlling a person in such a way as to significantly deprive that person of individual liberty. By pivoting away from human trafficking, with its emphasis on sexual exploitation, to modern slavery, the EU could, they claimed, begin to grapple with the bigger problem, which is forced labour in labour and supply chains.⁵

By late 2020, all EU governance institutions had committed to introducing legislation to tackle the problem of labour exploitation in supply chains; however, they did not embrace the overarching frame of modern slavery endorsed by new abolitionists and the ethical business alliance. Instead, the EU adopted a broader notion of sustainability that encompasses the environment, human rights, and decent work.⁶ In addition to freedom, the proposed directive on corporate sustainability is intended to protect human dignity and sustainability as core values. The EU’s directive will go beyond transparency legislation of the type favoured in the United States, UK, Australia, and Canada (the ‘Anglosphere’) to impose an obligation on businesses to design and implement processes to identify, prevent, and mitigate any adverse impacts their business may have on human rights. This proposed due-diligence directive is just one dimension of the EU’s multifaceted approach to human trafficking, which continues to concentrate on cross-border movement, to emphasise the sexual exploitation of women and children, and to deploy a criminal-law approach.

Understanding the dynamic legal assemblage of jurisdiction between EU institutions and its Member States is critical for understanding how the EU approaches the transnational problems of human trafficking across borders and forced labour in supply chains. The EU disrupts the conventional legal default of jurisdiction that links sovereignty to territory by creating plural and hierarchical borders between Member States of the EU, new accession countries, candidate countries, and countries outside the EU.⁷ The treaties that make up the EU allocate governance authority, known in the EU as competences, on a scalar basis between EU institutions and Member States, creating a complex hybrid form of sovereignty.

The treaties also allocate legislative authority between the EU’s three main governing institutions: the European Parliament, which is elected by and represents the EU’s citizens; the Council of the European Union, which is made up of the heads of each Member State and, as such, tends to represent the interests of individual states; and the European Commission, which acts as the executive and seeks to uphold the interests of the EU as a whole. A key feature of EU integration has been the separation and sorting of different governance authorities (competences) into different scales that are associated with different governance mechanisms and techniques. The treaties assemble the EU’s jurisdiction and how its jurisdiction interacts with that of Member States.

From its origins in 1957 as a common market among six nations, the EU evolved, by 2024, into a single market (founded on the four freedoms of movement of goods, capital, services, and people) involving twenty-seven Member States with different economic and political traditions and institutions. In the wake of the breakup of the Soviet Union, the EU intensified its twin projects of transnational governance and market expansion. It responded to the related challenges of integrating new Member States into the single market and enhancing the legitimacy of its decision-making process by attempting to institutionalise a conception of EU citizenship rooted in the ‘European values’ of free movement, democracy, gender equality, and human rights.⁸

The EU’s evolving competences have shaped its approach to human trafficking. Since 1990, the EU has gone through three episodes of significant constitutional change that have altered the scalar and governance dimensions of its competence. The first two episodes (the Maastricht and Amsterdam Treaties), which occurred in the 1990s and are discussed in the following section, triggered a project of criminal-law harmonisation. In contrast, the third constitutional movement, the Lisbon Treaty, which came into effect in 2009 and is the focus of the third section, supported a countermovement, boosted by the Council of Europe’s Human Trafficking Convention, to protect the rights of victims of trafficking. The fourth section explains how the dramatic expansion of the EU to include former socialist countries led to increased concerns in 2012 that migrant workers from recent-accession states were subject to exploitation and greater attention to the problem of labour trafficking. The EU’s commitment to introducing a mandatory human rights due-diligence (HRDD) directive and a regulation imposing a marketing ban on goods made with forced labour added another facet to the EU’s antitrafficking strategy, which is the subject of the final section.

As we will see, trafficking is a problem for the EU to address because it is seen as a crime that moves across borders. By contrast, for the EU to address forced labour and modern slavery in supply chains, it must use another source of competence, such as its authority over the internal market or its external power over trade and development. Using different competences (sources of jurisdiction) to deal with different forms of unfree labour has resulted in different governance strategies for what are treated as different problems – the movement of people and the movement of goods across borders. This chapter illustrates how the EU’s expanding competence over human trafficking and human rights authorised governance strategies that distinguished between sex and labour trafficking, creating different categories of mobile workers and extending EU values beyond the borders of its Member States.

Making Sex Trafficking a Crime

The collapse of the Soviet Union reignited Europe’s historical anxiety over sex trafficking. In 1989, the European Parliament adopted a resolution on ‘the exploitation of prostitution and the traffic in human beings’, urging those Member States that had not already done so to ratify the 1949 UN Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others.⁹ Fears of a ‘Natasha’ trade in women trafficked from eastern to western Europe harkened back to historical understandings of white slavery centred on European women trafficked in Europe and to the colonies.¹⁰ Noting that the 1949 Convention had declared prostitution and human trafficking incompatible with the dignity and worth of the human person, the resolution called for Member States to adopt a common policy to combat prostitution and to eliminate the traffic in persons.

The European Women’s Lobby, a feminist umbrella organisation funded by the EU and linked to the influential US-based Coalition Against Trafficking in Women, was crucial in framing human trafficking at the European level as a matter of women’s rights and part of the broader agenda to address violence against women and to promote gender equality. Like its international counterpart, the European Women’s Lobby viewed prostitution as exploitative per se and advocated its abolition through policies criminalising the demand for sexual services as part of the solution to the problem of human trafficking. Although organisations that supported sex workers’ rights distinguished between prostitution and human trafficking by stressing coercion as a critical component of trafficking, the European Women’s Lobby exerted a great deal of influence over the EU’s antitrafficking policy.¹¹ Swedish feminists who held influential positions within the commission and Parliament were receptive to the Women’s Lobby, and they played an important role in promoting and circulating the Swedish approach to prostitution, which treats it as a form of violence against women antithetical to women’s equality and a form of human trafficking.¹²

In the 1990s, all three of the EU’s legislative institutions framed human trafficking in terms of sexual exploitation and illegal immigration best tackled by criminal law and securitising borders. Reports of between 200,000 and 500,000 women and children trafficked each year into the EU circulated widely, and the numbers took on a life of their own.¹³ The migrant sex worker came to personify anxieties about national identity and sovereignty in Europe.¹⁴ Since human trafficking was associated with other forms of criminality such as drugs, arms, and prostitution, it was seen as the ‘most menacing form of irregular migration’.¹⁵ In turn, the need to combat the horror of sex trafficking affirmed the role of ‘the state in maintaining sovereign borders and quelling the anxiety created by European integration and globalization’.¹⁶

Initially, the EU’s antitrafficking actions were restricted by its limited competence over criminal and immigration matters, matters of increasing prominence both for EU institutions and Member States because the Schengen Agreement, once it came into effect in 1995, would abolish internal borders between EU Member States. Effective in 1993, the Maastricht Treaty gave EU institutions authority over police and judicial cooperation in border control, asylum, and migration policy. Indeed, the treaty specifically contemplated the establishment of a European Police Office, and Europol began to operate in 1998. However, since Member States had primary jurisdiction over criminal and immigration matters, EU institutions were relegated to a secondary role, dealing with those matters with a transnational dimension.¹⁷

Anita Gradin, Sweden’s first European commissioner, was pivotal in characterising human trafficking as a policy issue that the EU could and should tackle. Responsible for immigration, home affairs, and justice in the EU from 1995 to 1999, she rejected the idea that there was no legal basis for the EU to take up the issue of human trafficking. Gradin claimed that this ‘international slave trade’ was clearly a matter of cross-border crime and within the EU’s jurisdiction.¹⁸ By focusing on individual criminality, this approach to human trafficking had the effect of cocooning the broader economic and social forces that made women vulnerable to exploitation from scrutiny. While Commissioner Gradin was of the view, which prevailed in Sweden, that prostitution should be abolished as a violation of women’s rights, she was willing to compromise with organisations that promoted sex workers’ rights to get antitrafficking policies on the EU’s legislative agenda.¹⁹

The European Parliament urged the EU to address prostitution and take a position on its relationship to human trafficking. A parliamentarian from Sweden, Marianne Eriksson, was very influential in shaping the Parliament’s position on prostitution, which equated it with sexual exploitation and human trafficking. She drafted the Parliament’s 1997 resolution on violence against women, in which prostitution was defined as a form of violence against women.²⁰ By contrast, both the commission and council treated prostitution as a matter within the jurisdiction of Member States and, thus, refused to define the relationship between trafficking in human beings and sexual exploitation.²¹

The 1997 Treaty of Amsterdam opened the EU up to the possibility of negotiations for common policies on criminal justice, immigration, and social policy. The treaty also increased the authority of Parliament and reduced that of individual Member States in the legislative process.²² It accommodated Member States’ reluctance to cede their exclusive competence over criminal and immigration law by restricting criminal-law matters to framework decisions that have weaker enforcement powers than directives and by requiring immigration matters to be governed for five more years by the old legislative process.²³ Thus, even though the EU had a legal basis for developing criminal and immigration laws relating to human trafficking, Member States continued to enjoy a great deal of leeway in implementing the former and de facto veto power over the latter.

The EU’s imminent competence to harmonise criminal law over human trafficking exposed divisions in Member States by bringing opposing conceptions of prostitution as either a form of work or a form of violence against women into direct conflict.²⁴ The relationship between prostitution and sexual exploitation fundamentally tied the EU’s approach to human trafficking to the criminal laws and policies of Member States. Countries rushed to revise their prostitution laws ahead of the Amsterdam Treaty’s coming into force in 1999.²⁵ The spectrum of state responses to prostitution across the EU ranged from legalisation/regulation (e.g., Germany, Austria, Spain, Luxembourg, Netherlands), to the toleration of prostitution where it was not officially allowed but also not illegal (e.g., Greece, France, Portugal), to full-scale criminalisation in states where prostitution was illegal (e.g., Ireland), to approaches that criminalised the purchase of sexual services (Sweden, Finland).²⁶ The contention over the best way to regulate prostitution and the sale of sexual services crystallised Member States’ concerns about the EU’s new, albeit limited, criminal-law competence, raising anxieties about criminality and fears that lack of internal movement controls would, especially with the looming accession of ten states, lead to an influx of desperate migrants. Migrant sex workers epitomised these fears.²⁷

In 1999, the European Council asked the commission to prepare legislation on human trafficking. Most EU Member States had no specific legislation addressing trafficking in women, although some maintained that trafficking was dealt with through general provisions criminalising third-party involvement in prostitution.²⁸ The commission presented a proposal for a council framework decision, which endorsed the UN’s broad definition of human trafficking and proposed common penalties to be imposed by Member States.²⁹ Although the commission included labour exploitation within the definition of human trafficking, its focus was on sex trafficking, especially from central and eastern Europe.³⁰

The 2002 framework decision on human trafficking was part of the EU’s broader agenda to exercise greater authority over border controls in light of the lifting of internal border controls following the Schengen Agreement.³¹ The EU wanted to prevent illegal immigration, which it linked to human trafficking. Following the UN’s precedent, the EU adopted two legal instruments, one for human trafficking and the other for human smuggling. The EU’s 2002 framework decision on the ‘facilitation of illegal immigration’, which is more commonly known as ‘smuggling’, strengthened the penal framework to prevent the facilitation of unauthorised entry, transit, and residence.³² The EU gradually expanded its competence over border management, and in 2004 Frontex, the European Agency for the Management of Operational Cooperation at the External Borders, was born.

Despite a recital characterising human trafficking as comprising ‘serious violations of fundamental human rights and human dignity’, the 2002 framework decision on human trafficking was essentially a criminal-law measure that outlined the elements of the crime of human trafficking and specified minimum penalties; its legal basis was the treaty provisions on police and judicial cooperation in criminal matters.³³ It largely followed the definition of human trafficking in the UN Palermo Protocol, which enabled the EU to avoid getting mired in debates about the relationship between prostitution and human trafficking by delegating the definition of ‘exploitation’ to Member States.³⁴ The EU’s definition, like that in the protocol, did not require a transnational dimension for the action to be considered human trafficking. However, unlike the UN protocol, the framework decision was silent on matters pertaining to immigration, and the protections it offered to trafficking victims were even weaker than the UN protocol’s optional provisions. The EU promised to introduce an instrument more specifically regarding victims’ rights.³⁵

Concerned with avoiding creating an incentive that would encourage an opportunistic abuse of residence permits by illegal immigrants, Member States were reluctant to agree to legally binding rules to protect the rights of victims of trafficking who were neither their own nationals nor citizens of the EU.³⁶ It took two years of intense negotiation for the council to adopt a directive on short-term residence permits in 2004 (the Residence Permit Directive).³⁷ Based on the treaty provisions allowing the EU to adopt legislative measures in relation to illegal immigration and residence, the Residence Permit Directive’s aim is to strengthen the fight against trafficking and illegal migration by providing temporary residence permits and encouraging third-country nationals to cooperate with the law enforcement authorities of Member States. It establishes the conditions for granting residence permits of limited duration to EU nationals who are victims of human trafficking or, if the Member State chooses, to those accused of people smuggling who cooperate in prosecuting these crimes. Victims of trafficking are distinguished from third-country nationals smuggled into the EU on the ground that the latter group consented, and the directive creates a small zone of protection for victims. The directive does not require Member States to identify the victims of trafficking, but if they do, Member States are obliged to give victims an unspecified reflection period to allow them to decide whether to cooperate with the authorities. During this period, Member States are prohibited from enforcing expulsion orders against trafficking victims and are required to provide them an unspecified ‘appropriate standard’ of living and access to emergency medical treatment.³⁸ Significantly, the directive ties victims’ rights to their cooperation with law enforcement initiatives, and even those rights are minimal and discretionary.³⁹ Not only does this discretion permit wide variation in the way in which Member States treat victims of trafficking, Denmark, Ireland, and the United Kingdom opted out of the residence directive.

The 2002 Framework Decision and the Residence Permit Directive reinforced national sovereignty by giving Member States a great deal of discretion over how to define human trafficking and the rights granted to victims, while at the same time framing human trafficking as a threat to both the EU’s and national security, a threat that required stronger borders against illegal migration and greater penalties against transnational crime. The EU’s antitrafficking initiatives focused on sexual exploitation and prostitution. Migrant prostitution came to be seen as an ‘inherent evil to be combatted domestically and internationally’.⁴⁰ In part, migrants who are not EU nationals were targeted because the European Court of Justice ruled that EU nationals have the right to work as prostitutes in Member States where the activity is not illegal.⁴¹ The Residence Permit Directive provided a humanitarian rationale for deporting migrant sex workers regardless of the Member State’s specific stance on prostitution since they could easily be redefined as victims of trafficking and repatriated to their country of origin. Sex trafficking discourses operated as key elements in the construction of borders in the EU, filtering the flow of people into the EU into different categories, such as EU citizen, illegal migrant, and victim of trafficking, with different rights and entitlements.⁴²

Hitching Human Rights to a Carceral Agenda

The powerful position of the Council of the European Union in the EU’s legislative process and the EU’s competence explain the extremely limited protection of the human rights of victims of trafficking in the EU’s first two legislative antitrafficking initiatives. Both the commission and Parliament were more open to the human rights approach promoted by international human rights institutions and NGOs than were Member States and the Council of the European Union.

Indeed, for the European Commission, the trafficking directives were another example of the human rights deficit growing in the EU. The commission sought to mediate ‘the ongoing tensions between preserving the sovereign right of European states to – individually or collectively within the EU – control their borders and arrivals into their territories, and the desire to preserve Europe’s image as a continent that honours its human rights and humanitarian commitments’.⁴³ It marshalled civil society organisations and experts to persuade Member States and the Council of the European Union to better protect the human rights of victims of trafficking.

Together with the European Parliament and the International Organization for Migration, the commission convened a broad-based conference of a thousand participants in Brussels in September 2002 to take stock of EU antitrafficking policy. This conference issued what came to be known as the Brussels Declaration on Preventing and Combating Trafficking in Human Beings, which characterised human trafficking as a serious violation of the victim’s ‘human rights as enshrined in international law and the EU Charter on Fundamental Rights’.⁴⁴ Announcing its intention to use the Brussels Declaration as the main basis of its future work, in March 2003 the European Commission set up a consultative group known as the Experts Group on Trafficking in Human Beings.

Just months after the EU adopted the Residence Permit Directive, the Experts Group released its report in 2004.⁴⁵ The president of the Experts Group, Marjan Wijers, identified two major themes informing the report: a human rights perspective on human trafficking and a holistic, multilevel, and integrated approach to combatting it. Since human rights require states to tackle the root causes of human trafficking, the report argued that any strategy for addressing human trafficking could not be limited to criminal law and immigration controls. Indeed, it cautioned on the need to avoid ‘unintended and undesirable side effects of repressive policies that might increase vulnerability for trafficking’.⁴⁶

Essentially, the report offered a critique and alternative to the EU’s approach to antitrafficking. Instead of concentrating on the process of trafficking, the Experts Group advised the EU to focus on its outcomes – ‘the exploitation of human beings under forced labour or slavery like conditions, no matter whether such exploitation involves a victim of trafficking, a smuggled person, an illegal migrant or a lawful resident’.⁴⁷ Human trafficking was reframed as a problem of labour exploitation rather than a problem of illegal immigration and prostitution. The report identified restrictive border controls, especially when combined with informal and unregulated sectors in the labour markets of EU Member States, as contributing to the problem of human trafficking, and the ‘increasing movement of labour and use of contractors and sub-contractors’ as making labour and supply chains harder to regulate.⁴⁸ Thus, it recommended legal pathways for labour migration as an essential part of any solution and advocated for the enforcement of labour standards combined with the organisation of workers as critical components of an antitrafficking strategy.⁴⁹ Like the ILO, it endorsed a labour approach to trafficking (see Chapter 3).

Blending specific recommendations designed to address clear limitations in victim protection with a far-reaching analysis of the causes of human trafficking, the Experts Group’s report urged the commission to initiate a new directive that would better protect the rights of all victims, irrespective of their cooperation in criminal proceedings, and to attend specifically to the position, rights, and needs of children. It also recommended that Member States establish an individual complaint mechanism, national rapporteurs (or their equivalent), and national referral mechanisms, which governments and civil society groups set up to ensure the proper identification and referral of trafficked persons so they could receive adequate assistance.

The 2004 Experts Groups’ report was extremely influential in shaping the language the commission used to characterise its approach to antitrafficking policy; the commission’s 2005 proposal for an action plan on human trafficking referred to the need to have an ‘integrated approach’ that has ‘as its fundament the respect of human rights’.⁵⁰ However, the shared language of ‘human rights’ and ‘integrated approach’ obscured different governance strategies based on different approaches to human rights and different conceptions of the harm of human trafficking.⁵¹ Although the proposal emphasised that the EU’s Charter of Fundamental Rights prohibited human trafficking and that under international laws and commitments Member States were required to protect the rights of victims of trafficking, it offered little in terms of concrete steps to protect them. In the context of human trafficking, the commission approached human rights from a law enforcement perspective that treats them as a ‘justification for a broad range of criminal measures’.⁵² It identified labour trafficking as a concern, but it treated the sexual exploitation of women and children as a separate problem warranting particular attention.

The Council of Europe, the leading pan-European human rights organisation, played a critical role in shaping the EU’s governance of trafficking. All EU Member States are members of the Council of Europe and bound by the European Convention of Human Rights, which imposes legally enforceable obligations on party states. Like the European Commission, the Council of Europe institutions used experts to develop its human rights approach to trafficking. In 2002, the Council of Europe’s Steering Committee for Equality between Men and Women commissioned a study on the feasibility of drawing up a convention on action against human trafficking as part of its attempt to persuade the Council’s Committee of Ministers, which is composed of the foreign affairs ministers of its forty-seven member states, to adopt a binding regional instrument.⁵³ Endorsing the definition of human trafficking provided in the UN protocol, the study claimed that a European convention would add value by making ‘human rights its foundation and reference point’.⁵⁴

The Committee of Ministers established an Ad Hoc Committee of Experts on Action Against Trafficking in Human Beings to draft an instrument that better balanced ‘matters concerning human rights and prosecution’.⁵⁵ The drafting process was tightly controlled, and there were no public hearings, although a coalition of NGOs made submissions and attempted to push the drafting committee in a human rights direction.⁵⁶ The Parliamentary Assembly, which consisted of 324 members of Parliament from the 47 member states, was concerned that the protections for the human rights of trafficking victims were being weakened in the negotiation process as states were more concerned ‘to protect themselves from illegal immigration’.⁵⁷ The European Commission was singled out for attempting to induce the Council of Europe ‘to lower its standards to the lowest common denominator of [EU] community law’.⁵⁸

The Council of Europe adopted the Convention on Action against Trafficking in Human Beings in May 2005, which it described as supplementing both the UN Protocol and the EU Framework Decision by bringing ‘a human rights perspective and its focus on victim protection’.⁵⁹ The convention’s definition of human trafficking was based on that provided in the UN Protocol, marking a shift away from the Council of Europe’s hitherto exclusive focus on the sexual exploitation of women and children. Throughout the convention, however, special reference is made to the importance of guaranteeing gender equality in relation to both prevention and protection. The convention also targeted the demand for services provided by victims of trafficking by requiring parties to consider making it a criminal offence to knowingly use such services.⁶⁰

The convention’s victim protection provisions implemented some of the recommendations contained in the EU’s 2004 Experts Group report, such as the establishment of a mechanism for identifying victims and detaching the obligation to protect victims from the victim’s ability and willingness to cooperate in the prosecution process. Unlike the EU’s Residence Permit Directive, the gateway to assistance and protection under the Council of Europe convention is the identification of victims of trafficking and not their cooperation with prosecution. States ratifying the convention are under an obligation to ensure that a national framework is in place for identifying victims and providing them with a period of reflection and recovery. However, the positive obligation to provide assistance depends both on where the individual is in the victim identification procedure and their migration status. Victims who cooperate are entitled to greater assistance, and if a victim who has been identified decides to cooperate, states are required to provide a temporary residence permit, in contrast to the EU’s Residence Permit Directive, which leaves the issuance of a residence permit to the discretion of each Member State.

States also have additional obligations under the convention, including the provision of full medical and other assistance, vocational training and education, and access to the labour market to victims with lawful immigration status, although the conditions of access are left to state parties. Moreover, states are obliged to provide victims with a mechanism for seeking compensation and legal redress from their traffickers. Once states have ratified the convention, they are subject to a distinctive monitoring mechanism, the Group of Experts on Action against Trafficking in Human Beings (GRETA), which consists of an independent group of fifteen experts.⁶¹ By issuing evaluative reports on a party state’s effective implementation of the convention, GRETA exercises soft powers of norm and practice dispersion, which may also involve naming and shaming.

Although the Council of Europe Convention enhances the rights of victims of trafficking beyond what is provided in the UN Protocol and the EU’s legislative instruments, states were unwilling to accept key victim protections on the ground that they could be exploited by ‘undeserving’ victims. The convention does not provide procedural guarantees for challenging a negative determination of an individual’s status as a victim. Nor does it prohibit states from prosecuting trafficking victims for other criminal offences, such as illegal immigration or prostitution, that are linked to their status as victims of trafficking.⁶² In fact, none of the rights provided to victims in the convention are justiciable and, as such, cannot be enforced by victims via legal actions.⁶³

The Council of Europe’s convention’s emphasis on the human rights of trafficking victims is perfectly compatible with the UN’s and EU’s emphasis on criminal law. Unlike the 2004 EU Experts Group’s report, which cautioned that a carceral approach to human trafficking could undermine the human rights of victims, the Council of Europe interpreted human rights as compatible with an emphasis on security. Its ‘victims-first’ approach emphasises victim support, while ‘acknowledging the role criminal law plays in the fight against human trafficking’.⁶⁴ The nexus between human rights and criminal law was reinforced by the European Court of Human Rights’ 2005 decision in Siliadin v. France, which ruled that the prohibition of slavery, servitude, forced, and compulsory labour in Article 4 of the European Convention on Human Rights gave rise to positive obligations on states to criminalise forms of forced labour, including domestic servitude.⁶⁵ Indeed, the law enforcement and victim-rights approaches to human rights in the context of human trafficking were not only compatible, they reinforced one another: ‘both frame human rights as dependent upon state-control mechanisms and coercive action, which in turn are regarded as necessary conditions to achieve victims’ rights and protection’.⁶⁶

Bolstered by the Council of Europe Convention, the European Commission began to steer the other EU legislative institutions towards a more victim-oriented human rights approach to human trafficking. This was part of its general concern to strengthen the social dimension of the EU to compensate for its market expansion and cultivate a human rights culture in its new, formerly communist Member States. Emerging out of the failed constitutional project, the Treaty of Lisbon was designed to enhance democracy within the EU and to promote European values, including human rights and gender equality (Article 2). Adopted in December 2007, the treaty introduced co-decision making between the council and Parliament and qualified majority voting over immigration matters, thus limiting the veto power of individual Member States. At the same time, it expanded the EU’s competence over the human rights of its citizens. Although the EU had proclaimed the Charter of Fundamental Rights – which enshrines certain political, social, and economic rights for both European Union citizens and residents, including the prohibition against human trafficking in Article 5, in 2000 – the charter’s legal effect was weak and uncertain. The Lisbon Treaty required the EU to legislate consistently with the charter and granted the Court of Justice of the European Union the authority to strike down EU legislation that contravenes it.⁶⁷ To assist it in exercising its new human rights jurisdiction and to instil a fundamental rights culture, in 2007, the EU established the European Union Agency for Fundamental Rights (FRA), which provides independent advice to EU institutions and Member States on the rights set out in the charter. Moreover, once it came into effect in 2009, the Lisbon Treaty also authorised the EU to adopt directives harmonising substantive criminal law with respect to ten transnational offences, including trafficking in human beings and the sexual exploitation of women and children (Article 83(1)).

In anticipation of the Treaty of Lisbon coming into effect, the commission sought to consolidate and institutionalise a hybrid law enforcement and victims-first approach to human rights in the context of human trafficking within the EU. It set up a second Group of Experts on Trafficking in Human Beings in 2008 to provide its opinion on revising the Framework Decision on Combating Trafficking in Human Beings and specifically directed the group to consider the impact of EU enlargement and the problem of trafficking for labour exploitation. This Group of Experts embraced the first group’s ‘holistic, coordinated and integrated approach’, which became a mantra for the EU’s antitrafficking strategy.⁶⁸ Many of its recommendations designed to protect victims’ rights followed provisions set out in the Council of Europe’s Convention, which would also require revising the 2004 Resident Permit. The 2008 Experts Group also underscored the need for a revised framework decision to consider the connection of human trafficking with migration policies and labour market regulation, urging Member States to prevent human trafficking through ‘awareness raising, training, and monitoring of the supply chains, and other measures to address demand’.⁶⁹

The commission submitted a proposal for a new directive in March 2010, which was governed by the new ‘Lisbon’ legislative process that enhanced the power of EU institutions when it came to regulating human trafficking.⁷⁰ Under this process, the council was obliged to negotiate the terms of the directive with Parliament, which had just adopted a resolution calling on the commission and council to adopt a ‘holistic approach’ to human trafficking centred on human rights.⁷¹ The commission identified the value the proposed new directive added to the 2005 Council of Europe Convention as a combination of greater protections for victims and increased coercive powers to tackle human trafficking.⁷²

Expressly adopting ‘an integrated, holistic, and human rights approach to the fight against human trafficking’, ‘Directive 2011/36/EU of the European Parliament and the council’ repealed the 2002 framework decision (Recital 7 of the Preamble).⁷³ It went further than the framework decision in protecting the victims of human trafficking and addressing methods of prevention, cleaving closer to the Council of Europe Convention.⁷⁴ It required Member States to establish national referral mechanisms to identify victims. It added concern for victims to the law enforcement approach to human rights. However, it ignored the 2004 Experts Group’s warnings that a penal approach to human trafficking undermined victims’ rights. The directive widened the substantive criminal law definition of trafficking to include begging, exploitation of criminal activities, and removal of organs; clarified the idea of ‘vulnerability’ in relation to a victim by referring to ‘a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved’ (Article 2 (2)); increased the penalties for human trafficking; added the crime of aggravated trafficking; expanded Member State jurisdiction over human trafficking extraterritorially to include all acts committed by each Member State’s nationals anywhere in the world; and added a new provision on the seizure and confiscation of assets. Since the commission’s initial proposal to criminalise demand proved to be too controversial, Member States were also urged to consider imposing criminal sanctions on any person who knowingly used the services of a victim of trafficking.

To ensure greater accountability to the EU, Member States were obliged to establish national rapporteurs, responsible for monitoring the implementation of antitrafficking policy at the national level, and to cooperate with the soon-to-be-established EU antitrafficking coordinator, who would be charged with preparing biannual progress reports to the commission assessing efforts to address human trafficking.⁷⁵ The deadline for Member States to transpose the directive into national legislation was 6 April 2013.

The 2011 directive is concerned with rectifying the harm to individual victims within an overall criminal law orientation. Its integrated approach to human trafficking hitches victims’ rights to a broader carceral agenda that sees human trafficking as a form of organised crime linked to illegal migration. The human rights dimension of the directive is weakened by the fact that many aspects of its transposition into national law are left to the Member States’ discretion. For example, the unconditional nature of the protection offered to trafficked persons is limited to the reflection period, after which protection is left to the discretion of Member States. The same is true of the nonpenalisation clause, which only requires Member States to consider the possibility of nonpunishment. In addition, the directive states that its provisions regarding victim protection shall not prejudice the 2004 directive, which means that residence permits are still conditional on victim cooperation in criminal proceedings.

Despite the EU’s claim that it was adopting a human rights approach to human trafficking, neither the 2011 antitrafficking directive nor the 2004 Residence Permit Directive is a human rights instrument. It is the transnational and criminal nature of human trafficking that is the legal basis for the EU’s jurisdiction to enact antitrafficking legislation. The 2011 directive does not offer trafficked persons from states outside the EU greater protection from deportation than that provided in the 2002 framework decision, although it does provide them with access to a limited suite of social rights. But even these small advances were resisted by Member States; the European Commission repeatedly expressed its unhappiness with their transposition and effective implementation of the directive, especially when it came to victim protection.⁷⁶

Tackling Labour Exploitation and Demand

With the release of its 2012–2016 strategy the year after the 2011 directive was adopted, the EU sought to move beyond its almost exclusive focus on a carceral approach to human trafficking to develop and implement ‘a multi-disciplinary, coherent policy’.⁷⁷ It also broadened its concern with sex trafficking to give greater attention to labour exploitation, vowing to involve a ‘more diverse group of actors’, including labour inspectors, trade unions, employers’ organisations, temporary job agencies, and recruitment agencies, in policymaking.⁷⁸ By widening its focus and adopting a broader range of antitrafficking governance strategies, the EU followed the same path as UN institutions and the United States under the Obama administration (Chapter 1).

The EU’s attention to labour trafficking was a response to both the labour market turmoil caused by the 2008 fiscal crisis and a greatly enlarged European labour market composed of Member States with different labour market institutions and outcomes. Stressing the need for labour legislation to regulate migrants working in the EU to prevent human trafficking, the 2012–2016 antitrafficking strategy called for measures to address contractors, subcontractors, and job recruitment agencies in high-risk sectors.⁷⁹

There were, however, two big impediments to developing a coordinated strategy to address labour trafficking in the EU: the absence of a common understanding or definition of trafficking for labour exploitation in Europe, and Member State competence over most aspects of labour law and regulation.⁸⁰ Labour trafficking was neither recognised nor addressed by policy or practice in most European states, which helps explain why the number of individuals identified as victims of labour trafficking in Europe was one-quarter that of the number of victims of sex trafficking in 2010.⁸¹ Two nonlegislative EU institutions, the EU Fundamental Rights Agency (FRA) and the European Foundation for the Improvement of Living and Working Conditions (Eurofound), took up these matters.

In 2015, the FRA released a report on severe labour exploitation, and its goal was to consider human rights as a legal basis for addressing it. Concerned with exploitation, the FRA cited Article 5 of the Charter of Fundamental Rights, which prohibits slavery, forced labour, and trafficking, and Article 31, which grants every worker the right to fair and just working conditions, as sources of competence.⁸² By contrast, the focus of the trafficking directive was on transnational movement.

Of specific concern to the FRA was what it called the ‘no name’ problem: forms of severe exploitation in which working conditions are clearly in breach of legal norms but which do not amount to slavery and forced labour because the worker has ‘consented’ to the treatment.⁸³ It proposed to expand the scope of severe labour exploitation operating within EU law beyond forced labour and slavery, the definitions of which hinge on lack of consent and the denial of freedom, to a conception based on human dignity, which is the foundational norm of the EU’s human rights system. The 2009 EU employer sanctions directive, designed to deter employers from hiring third-country nationals with irregular migration status by sanctioning such behaviour, offered some guidance for establishing an EU standard. The directive requires Member States to apply criminal penalties against employers who employ undocumented third-country nationals under ‘particularly exploitative conditions’ or who knowingly employ a victim of human trafficking (Article 9). The phrase ‘particularly exploitative working conditions’ is defined as working conditions ‘where there is a striking disproportion compared with the terms of employment of legally employed workers which, for example, affects workers’ health and safety, and which offends against human dignity’ (Article 2).⁸⁴

Like the ILO (Chapter 3), the FRA conceptualised labour exploitation as a continuum spanning from slavery to relatively less serious forms of exploitation covered by labour and or civil law. It defined ‘severe labour exploitation’ as including ‘coercive forms of exploitation, such as slavery, servitude, forced or compulsory labour and trafficking prohibited by Article 5 of the Fundamental Rights Charter and employment situations covered by Article 9 (1) of the Employer Sanctions Directive’.⁸⁵ This definition includes nonconsensual and consensual forms of exploitation. According to the FRA, the differences in severity between these two forms of exploitation should be reflected in their respective penalties, with situations of ‘medium severity’, such as those defined in the employers sanctions directive, attracting a lesser penalty than nonconsensual forms of exploitation.⁸⁶ To sever the link with illegal immigration, which is the legal basis for the sanctions directive, the FRA advised that the offence of severe labour exploitation apply to EU citizens and third-country nationals regardless of their migration status.

Identifying migrant workers as especially vulnerable to exploitation, the FRA regarded labour market regulation as shaping risk of exposure to severe exploitation. Thus, it urged Member States to implement a comprehensive system of workplace inspections and a mechanism to monitor recruitment agencies. Third parties such as trade unions should, it advised, be enabled to act in support of victims of severe labour exploitation. EU institutions and Member States were encouraged to enact supply-chain-transparency legislation.⁸⁷

Eurofound also focused on the exploitation of migrant workers. Like the ILO (Chapter 3), it adopted a labour approach to the problem of labour trafficking and advocated the regulation of labour market intermediaries through licencing, certifications, and inspections, and the involvement of social partners. However, because most aspects of labour market regulation fell outside the EU’s jurisdiction, all the commission could do was pass on these recommendations as policy pointers to Member States.⁸⁸

Since most trafficking victims identified in the EU come from other EU countries, the commission regarded regulating labour markets within EU Member States as extremely important for combatting labour trafficking.⁸⁹ In 2017, the president of the European Commission announced the creation of a European Labour Authority, charged with ensuring that EU rules on labour mobility and social-security coordination are enforced fairly and effectively.⁹⁰

The Council of Europe institutions led the way in imposing a duty on states to take positive action beyond simply criminalising specific behaviours to deal with human trafficking. In 2010, the European Court of Human Rights interpreted the prohibition on slavery and forced labour in Article 4 to include human trafficking and imposed a positive obligation on states to ensure that there is a regulatory framework, based primarily in the criminal law but extending beyond it, in place to protect individuals from human trafficking.⁹¹ In 2017, the court made it clear that states must take measures to prevent forced labour when they know it is occurring. It ruled that Greece had failed in its obligations under Article 4 to prevent human trafficking, protect victims, and investigate those responsible.⁹² The case involved forty-two undocumented Bangladeshi workers who, among other things, were denied payments for their work at a strawberry farm in southern Greece. When they demanded their unpaid wages, armed guards employed by their employer shot at them, seriously injuring thirty workers. Finding that the workers did not continue to work voluntarily because the employer threatened to expose their undocumented status and have them deported, the court classified their condition as forced labour and as a form of labour trafficking.⁹³ Noting that state authorities were acquainted with the exploitation of workers in the strawberry plantations, the court emphasised their failure to protect these workers from trafficking. Referring to the Council of Europe’s Convention on Human Trafficking, which was not yet in force in Greece, and GRETA’s interpretation of state obligations, the court held that states are under an obligation to provide an appropriate legislative and administrative framework to address human trafficking, which includes regulating businesses.⁹⁴

The European Parliament advocated for some elements of a labour approach to human trafficking, especially when it came to how immigration status contributed to workers’ exposure to extreme labour exploitation. In 2016, it called for Member States to build ‘firewalls’ between immigration and labour authorities to encourage trafficking victims without lawful immigration status to report abuses and ensure that there is no fear of retaliatory action by immigration authorities. Member States were also reminded of ‘the critical distinction’ between human trafficking and migrant smuggling, which, the European Parliament noted, require ‘different legal and practical responses and involve different State obligations’.⁹⁵

While other EU and Council of Europe institutions were recommending labour law mechanisms to tackle human trafficking, the commission concentrated on how Member States had transposed the provisions in the 2011 antitrafficking directive having to do with criminalising and discouraging demand.⁹⁶ In a 2016 report on Member State legislation, it found that ten of the twenty-seven Members States had established an offence criminalising the use of services of victims of trafficking who suffered any form of exploitation, while fifteen had established only a limited and selective criminalisation for the use of services of victims of sex trafficking.⁹⁷ The problem, the commission concluded, was that the ‘rather diverse legal landscape’ across EU Member States failed to discourage demand and, indeed, may even foster it by cultivating ‘a culture of impunity’.⁹⁸

Criminalising the use of services performed by a victim of trafficking is tied up with the regulation of prostitution.⁹⁹ In 2014, the European Parliament reverted to its historical position of equating prostitution with sexual exploitation when it adopted a nonbinding resolution that would criminalise the purchase of sexual services as a way of combatting human trafficking for sexual exploitation. Characterising ‘prostitution as a form of slavery incompatible with human dignity and fundamental human rights’, the resolution claimed that ‘prostitution in the European Union and across the world is directly linked to the trafficking of women and girls’.¹⁰⁰ That year, the Parliamentary Assembly of the Council of Europe also adopted a similar motion.¹⁰¹

Reporting in 2017 on its antitrafficking strategy, the commission referred to the 2015 migration crisis, which Italian prime minister Matteo Renzi had characterised as a ‘new slave trade’ in the Mediterranean, and called for ‘stronger action at both national and EU levels’ against human trafficking.¹⁰² It identified three priorities for the EU’s future action: stepping up the fight against criminal networks in an effort to disrupt the trafficking chain’s business model, guaranteeing victims of trafficking access to their rights, and intensifying a coordinated and consolidated response within and outside the EU.¹⁰³ The first two priorities reflected the EU’s traditional criminal prosecution and victim protection approaches, while the third covered a range of corporate due diligence, trade, and development initiatives. The commission characterised ‘responsible management of global value chains’ as one of the ways to discourage the ‘demand for all forms of exploitation’ and raised the possibility of a new EU instrument that would impose obligations on business to address, among other things, exploitation in supply chains.¹⁰⁴

Supply Chains and Human Rights

Governing the world’s largest single market and committed to the principles of democracy, human rights, and rule of law, the EU was the target of new abolitionists and human rights organisations’ campaign for legislation to address modern slavery and labour exploitation in supply chains.¹⁰⁵ However, unlike human trafficking, where the EU’s competence is directly provided for in the treaties under provisions dealing with transnational crime and immigration, the commission had to reframe the problem of exploitation in supply chains in order to find a treaty basis for EU competence. Modern slavery laws and trade restrictions on goods made with forced labour were recast as part of a broader sustainable governance measure to promote the freedom of establishments to conduct business in all EU Member States and to ensure the proper functioning of the internal market, which provides the EU with the treaty bases of legislative authority in relation to its internal dimension.¹⁰⁶ The eradication of modern slavery in supply chains was also portrayed by the EU as part of its commitment to protecting and promoting human rights globally.¹⁰⁷

Corporate transparency requirements were not new to the EU. In the aftermath of the financial crisis, the commission took its first step towards making corporate social responsibility mandatory, and in 2014 the EU adopted the nonfinancial reporting directive, which requires companies to report on matters pertaining to human rights.¹⁰⁸ Complementing and drawing upon corporate social responsibility measures at the international level, the directive allows businesses a great deal of flexibility to accommodate the multidimensional nature of corporate social responsibility and the diversity of businesses. It did not, however, satisfy new abolitionists. Anti-Slavery International complained that the directive was ‘inadequate’ for resolving specific issues such as forced labour in international supply chains, explaining that it ‘is more likely to dissipate attention and action across a range of issues that will vary from business to business depending on the whims of executives, the company’s level of knowledge about the issue and their sense of risk’.¹⁰⁹

In 2016, the EU faced pressure from some of its members to propose legislation imposing a due-diligence obligation on corporations to respect human rights.¹¹⁰ Member States with due-diligence legislation were anxious to ‘level’ the EU market by requiring all members of the internal market to implement such legislation. France, for example, was about to enact its Duty of Vigilance Law, which would impose a duty of care on companies throughout their international supply chains to identify and address environmental and human rights violations.¹¹¹ Backed by human rights organisations such as Amnesty International, the European Coalition for Corporate Justice, and CIDSE, an international family of Catholic social justice organisations, this law shifted the debate in the EU away from transparency legislation targeted solely at modern slavery, forced labour, and human trafficking in supply chains to more onerous due-diligence obligations to detect and address a range of environmental and human rights violations.¹¹²

EU legislative institutions drew closer to the position that mandatory rules requiring some form of corporate social responsibility were necessary to combat modern slavery. Instead of light-touch disclosure obligations, the European Parliament and the commission supported reporting and due-diligence obligations encompassing human rights and the UN’s Sustainable Development Goals, which included promoting decent work.¹¹³ Dignity and sustainability, and not simply freedom, were the EU’s animating values.

In December 2019, one hundred civil society organisations and trade unions, including such prominent actors in the global antislavery network as Anti-Slavery International and the Freedom Fund, released a public call for EU legislation to establish a mandatory human rights and environmental due-diligence framework for businesses operating or offering a product or service within the EU.¹¹⁴ The commission agreed that EU legislative action was necessary since Member States’ action alone is insufficient and inefficient to address the ‘global dimension’ of the sustainability problem and its ‘cross-border effects’.¹¹⁵ The consultations on the proposed directive revealed a split between business and civil society organisations over the extent of the due-diligence obligations. Individual businesses and their representative, Business Europe, wanted to limit the proposed directive’s due-diligence requirements to putting in place a due-diligence process, whereas civil society organisations were overwhelmingly in favour of an enforceable duty of care to mitigate actual and potential harm.¹¹⁶ In March 2021, the European Parliament threw its weight behind the civil society organisations when it adopted a legislative initiative report (504 votes in favour, 79 against, and 112 abstentions) setting out recommendations to the commission, including a draft directive, which would impose a mandatory corporate due-diligence obligation on corporations to mitigate human rights violations and negative environmental impacts in their supply chains.¹¹⁷

On 23 February 2022, the European Commission adopted a proposal for a directive on corporate sustainability due diligence, declaring: ‘For businesses these new rules will bring legal certainty and a level playing field. For consumers and investors they will provide more transparency.’¹¹⁸ Under the ordinary legislative process, the European Parliament and the Council of the EU must agree to formally adopt the directive. The commission and council preferred a measure that would replicate the prevailing model of corporate human rights due diligence, relying heavily on contractual assurances from business partners, third-party auditing, and industry initiatives as measures companies can implement to fulfil their responsibility to respect human rights and the environment in their value chains. By contrast, the European Parliament wanted a much stronger emphasis on stakeholder engagement throughout the due-diligence process. The trialogue was completed in late 2023. However, a lack of consensus between the EU Member States in the Council of the EU delayed the final vote on the directive’s text until late April 2024 and it is expected to be adopted in June 2024, after which Member States will be given two years to transpose the directive into national law. The due-diligence directive goes well beyond existing voluntary initiatives .

In 2021, a coalition of human rights groups urged the EU to adopt ‘import bans’ for products made with forced labour into the EU as a supplement to the sustainable governance directive. They pointed to the 2017 Conflict Minerals Regulation, which requires importers to ensure that certain high-risk minerals and metals do not contribute to forced labour or conflicts, as a precedent.¹¹⁹ In September 2022, the commission released a proposal for a regulation on prohibiting products made with forced labour (which will follow the ordinary legislative procedure).¹²⁰ Unlike the United States (discussed in Chapter 2), the commission’s proposal was not designed as an outright import ban. It proposed a more comprehensive approach that includes a marketing ban for products made with forced labour in the internal market, as well as exports out of the EU.¹²¹ In contrast to the due diligence directive, the negotiations among and between the EU governance institutions and Member States on the regulation imposing a market ban on goods made with forced labour was much quicker; Parliament approved the regulation on the import and export of goods made with forced labour in late April 2024.

Trade restrictions, such as an import prohibition, are designed to combat trade in products made with forced labour and are only an indirect tool to tackle the problem of forced labour. The regulation ‘is a means to eliminate the unfair competitive advantage enjoyed by businesses and governments exploiting forced labour, and to create a major disincentive for economic operators from using forced labour in their supply chains’.¹²² It is seen as a bridge between the 2011 antitrafficking directive’s penal approach and the proposed corporate sustainability directive’s business regulation orientation. However, the extent to which this kind of trade mechanism can protect workers from forced labour depends on regulatory design and enforcement practices. Unless measures are in place to require remediation, trade restrictions can be very harmful to workers at risk of or engaged in forced labour.¹²³ The EU’s regulation to prohibit goods made with forced labour in the internal market does not require companies to undertake remedial action for workers affected by forced labour practices.

Conclusion

Describing the 2011 antitrafficking directive as the ‘backbone’ of the EU’s antitrafficking efforts in the 2021–2025 EU antitrafficking strategy, the commission questioned whether the decade old instrument was ‘fit for purpose’ and announced that it would be launching a study to evaluate it.¹²⁴ The evaluation was to focus on strengthening criminal law enforcement and providing better assistance, support, and protection for victims.¹²⁵ In December 2022, the commission introduced a proposal to amend the 2011 antitrafficking directive to implement the evaluation’s recommendations that the criminal justice aspects of the antitrafficking directive be strengthened, victim identification and protection be improved, and demand be tackled by making the use of services exacted from victims of trafficking a criminal offence.¹²⁶ If adopted, the amendments would reinforce the EU’s approach to human trafficking of prioritising the criminal law while protecting the rights of victims.

The EU’s antitrafficking legislative instruments emphasise transnational crime and movement across borders because these are the elements over which the EU has competence. With the implementation of the Schengen accord, which lifted internal borders, Member States were concerned that their national borders were only as secure as those of their neighbours. In the face of large migration flows from previous communist states as they opened their borders and the war-torn former Yugoslavia, the EU began to strengthen its external borders. Human trafficking, with its clearly defined victims and villains, underpinned governance strategies ‘to strengthen moral capacities of the state by hardening its borders’ and by giving state operatives new powers to surveil and assess third-country migrants.¹²⁷ Although the EU’s supranational jurisdiction disrupts fixed notions of territorially bounded political units, the rescaling of legislative authority over human trafficking effectively amplifies the power of nation-states to secure their territorial borders.

The EU’s turn towards protecting the right of victims of trafficking was driven by human rights organisations and the increasing institutionalisation of European values, such as human rights and gender equality, into EU law. Different actors, however, have different interpretations of these values. The Council of Europe’s 2005 Anti-Trafficking Convention (which sought to reinforce the human rights domain when it comes to human trafficking) and the European Court of Human Rights’ decisions pertaining to forced labour and human trafficking were very influential on the EU. However, under EU directives, the positive obligations imposed on Member States to protect victims are more limited and most turn on assisting with a criminal investigation. The EU’s celebrated ‘integrated, holistic, and human rights approach to the fight against human trafficking’ has not dislodged criminal and immigration law from the heart of antitrafficking governance. Human rights were incorporated within and subsumed under a governance strategy designed to harden the EU’s and Member States’ borders to exclude undesirable outsiders. In the process, the EU itself became ‘a striking incarnation of the anxieties caused by globalisation: the erosion of the state, the homogenization of national cultures, lost control over domestic politics, and subjugation to distant, uncaring overseers’.¹²⁸

When it comes to the governance of human trafficking, EU legislative institutions and Member States mobilise scalar differentiation in a strategic manner to govern a transnational problem. The borders demarcating the inside and outside of the EU have created a complex division of jurisdiction over different legal categories of mobile workers, such as free-moving EU citizens, illegal migrants, and victims of trafficking, with very different rights and obligations.¹²⁹ Instead of operating as barriers, the borders operate as filters that sort desirable migrants from unacceptable ones.¹³⁰ Victims of trafficking, especially those who are subject to sexual exploitation, epitomise unfreedom and, thus, they are the antithesis of what the EU with its embrace of free movement is about.¹³¹

Combatting sexual exploitation has been at the heart of the EU’s antitrafficking legislative initiatives, which has led to their entanglement with the controversial question about how to regulate prostitution. On the twentieth anniversary of the UN’s adoption of the Human Trafficking Protocol, the former president of the European Commission’s 2004 Experts Group, Marjan Wijers, confessed that if she and other colleagues who advocated for sex workers’ rights ‘had known the history and the inherent flaws of the concept of trafficking’ back in the 1990s when the protocol was being negotiated, ‘we never would have used it’.¹³² In hindsight, she saw how by ‘falling back on the 19th-century Victorian concept of trafficking with its focus on the purity and victimhood of women and the protection of national borders’, she and other sex workers’ advocates ‘unwittingly imported a highly biased concept, dividing women into innocent victims in need of rescue and guilty ones who can be abused with impunity, but also with racist and nationalistic overtones’.¹³³

EU legislative institutions have been slower to address labour trafficking, which is considered a smaller, although growing, problem than trafficking for sexual exploitation. In the 2021–2025 EU strategy, the commission recommended that the criminal justice response to trafficking for labour exploitation be strengthened.¹³⁴ To discourage demand, the EU has adopted a directive on sustainable corporate governance to foster responsible corporate behaviour and it adopted a regulation to use trade measures to block products made with forced labour from being marketed inside the EU and exported outside of it. None of these measures use governance techniques based on labour law; instead, they rely on the criminal law and on internal trade and commercial laws – legal domains that reflect the EU’s treaty basis.

The EU’s legal assemblage of jurisdiction has led to a multifaceted approach to human trafficking that is anchored to a concern to protect society from cross-border organised crime.¹³⁵ But even though the EU’s antitrafficking governance strategies construct the broad categories of hierarchically organised mobile workers, the bulk of the work of sorting mobile people into different legal categories is performed by Member States. What constitutes exploitation is, for the most part, still defined at the national level.