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31993L0075

Council Directive 93/75/EEC of 13 September 1993 concerning minimum requirements for vessels bound for or leaving Community ports and carrying dangerous or polluting goods

Official Journal L 247 , 05/10/1993 P. 0019 - 0027 Finnish special edition: Chapter 3 Volume 52 P. 0219  Swedish special edition: Chapter 3 Volume 52 P. 0219

COUNCIL DIRECTIVE 93/75/EEC of 13 September 1993 concerning minimum requirements for vessels bound for or leaving Community ports and carrying dangerous or polluting goodsTHE COUNCIL OF THE EUROPEAN COMMUNITIES,  Having regard to the Treaty establishing the European Economic Community, and in particular Article 84 (2) thereof,  Having regard to the proposal from the Commission (1),  Having regard to the opinion of the European Parliament (2),  Having regard to the opinion of the Economic and Social Committee (3),  Whereas the volume of dangerous or polluting goods carried by sea has been growing unabated, increasing the risk of serious accidents which continue to occur;  Whereas it appears necessary to take all appropriate measures in order to avoid conditions likely to cause accidents of this type and to reduce the resulting damage when such accidents occur; whereas to that end minimum requirements must be observed by  vessels bound for or leaving a Community port;  Whereas better information could contribute to prevention and minimization of accidents; whereas better information will also enable the relevant authorities to take the necessary precautions with regard to vessels carrying dangerous or polluting goods  bound for or leaving Community ports;  Whereas, in accordance with the Solas and Marpol Conventions, information must be provided to the competent authorities about the nature and the location of the dangerous or polluting goods on board vessels;  Whereas some regular scheduled services may be exempted from providing such information;  Whereas, in order to reduce the accident risk, it is appropriate to stress certain navigation rules;  Whereas IMO Resolution A 648 (16) 'urges Member Governments to ensure that ship reporting systems and reporting requirements comply as closely as possible with the general principles specified in its Annex';  Whereas to that end the competent authorities should, in case of an incident or circumstance at sea posing a threat to their coastline or to related interests, receive from the master of the vessel immediate information as regards the incident and the  presence of dangerous or polluting goods on board so as to permit those authorities to take all necesary measures;  Whereas, in addition, this Directive recalls what measures are available to Member States under international law;  Whereas the Solas and Marpol Conventions oblige vessels to inform the other vessels and the coastal authorities of danger for the vessel itself, for other vessels and for maritime navigation, as well as of actual or probable unpermitted or abnormal  discharge of polluting goods; whereas it seems appropriate that the relevant authorities shall, as necessary, broadcast the information made available to them;  Whereas each Member State should make the necessary arrangements to use fully such information;  Whereas such exchange of information imposes an appropriate cooperation between authorities from all over the Community, shippers, operators of vessels, masters and pilots;  Whereas the implementation of the Directive may require some amendments which will be adopted by the Commission assisted by a committee or, in given circumtances, by the Council itself;  Whereas the Commission should produce new proposals to complete the sytem laid down by this Directive;  Whereas this Directive repeals Council Directive 79/116/EEC of 21 December 1978 concerning minimum requirements for certain tankers entering or leaving Community ports (4);  Whereas this Directive does not affect the right of Member States to impose additional requirements in respect of vessels,  HAS ADOPTED THIS DIRECTIVE:   Article 1  1. Member States take all necessary and appropriate measures to ensure that the masters or operators of vessels bound for or leaving a Community port and carrying dangerous or polluting goods in bulk or in packaged form, as well as shippers  of such goods observe the minimum requirements addressed to them under this Directive.  2. This Directive shall not apply to:  (a) warships and other official ships used for non-commercial purposes;  (b) bunkers, stores and equipment for use on board ships.   Article 2  For the purpose of this Directive:  (a) 'operators' includes the owners, charterers, managers or agents of the vessel;  (b) 'vessel' means any cargo vessel, oil, chemical or gas tanker or passenger vessel bound for or leaving a Community port and carrying dangerous or polluting goods in bulk or in packaged form;  (c) 'dangerous goods' means goods classified in the IMDG Code, in Chapter 17 of the IBC Code and in Chapter 19 of the IGC Code;  (d) 'polluting goods' means:  - oils as defined in Marpol Annex 1,  - noxious liquid substances as defined in Marpol Annex 2,  - harmful substances as defined in Marpol Annex 3;  (e) 'Marpol' means the International Convention for the prevention of pollution from ships, 1973 and its 1978 Protocol, as it is in force at the time of adoption of this Directive;  (f) 'IMDG Code' means the International Maritime Dangerous Goods Code, as it is in force at the time of adoption of this Directive;  (g) 'IBC Code' means the IMO International Code for construction and equipment of ships carrying dangerous chemicals in bulk, as it is in force at the time of adoption of this Directive;  (h) 'IGC Code' means the IMO International Code for the construction and equipment of ships carrying liquefied gases in bulk, as it is in force at the time of adoption of this Directive;  (i) 'IMO Resolution A 648 (16)' means the International Maritime Organization Resolution 648 (16) adopted by the Assembly at its sixteenth session on 19 October 1989 and entitled 'General principles for ship reporting systems and ship reporting  requirements, including guidelines for reporting incidents involving dangerous goods, harmful substances and/or marine pollutants', as it is in force at the time of adoption of this Directive;  (j) 'competent authorities' are the authorities and organizations designated by Member States in accordance with Article 3;  (k) 'shipper' means any person by whom or in whose name or on whose behalf a contract of carriage of goods by sea has been concluded with a carrier.   Article 3  Member States shall designate, and inform the Commission of, the competent authorities to which the information and notifications provided for in this Directive shall be addressed.  The Commission shall publish the list of the competent authorities and their communication links designated by Member States.   Article 4  No dangerous or polluting goods shall be offered for carriage or taken on board any vessel unless a declaration has been delivered to the master or operator containing the correct technical names of the dangerous or polluting goods, the  United Nations (UN) numbers where they exist, the IMO hazard classes in accordance with the IMDG, IBC and IGC Codes, the quantities of such goods and, if in portable tanks or freight containers, their identification marks.  It shall be the duty of the shipper to deliver to the master or operator the declaration required by this Directive and to ensure that the shipment offered for carriage is indeed the one declared in compliance with the first subparagraph.   Article 5  1. Each Member State shall make the necessary arrangements to apply the requirements set out in the following paragraph to any vessel.  2. The operator of a vessel leaving a port in a Member State shall notify before departure of the vessel all information listed in Annex I to the competent authority of that Member State.  3. The operator of a vessel coming from a port located outside the Community and bound for a port located in the Community or an anchorage located in a Member State's territorial waters shall, as a condition for the entry into that port or anchorage,  notify on departure from the loading port, all information listed in Annex I to the competent authority of the Member State in which the first port of destination or anchorage is located.  4. Member States may exempt regular scheduled services of less than one hour's crossing time from the application of paragraphs 2 and 3. The Commission may, on request from a Member State, agree to a reasonable extension of this period.  In this case, the information in Annex I must at all times be made available by the operator upon request by the authorities of the Member States of departure or destination.  5. Vessels entering or leaving a port located in a Member State shall in accordance with the national regulations of that State:  (a) make use of the service provided by the local vessel traffic service (VTS), where they exist;  (b) make use of pilots.   Article 6  1. Each Member State shall require that, in the case of an incident or circumstance at sea which poses a threat to its coastline or related interest, the master of the vessel concerned shall at least provide immediate information to the  competent authority of the Member State concerned as to the particulars of the incident and the information in Annex I.  The competent authority may consider that the obligation to report the information in Annex I is satisfied if the vessel indicates which competent authority within the Community is holding the information required by Article 5.  2. The notification provided for in paragraph 1 shall be effected in accordance with IMO Resolution A 648 (16) and shall be made at least in all circumstances set out in that Resolution.  3. Annex III sets out what measures are available to Member States under international law.   Article 7  Articles 5 and 6 shall be without prejudice to existing requirements imposed as a result of international conventions or national port notification arrangements.   Article 8  1. The master of the vessels shall complete truly and accurately a check list as reproduced in Annex II to this Directive and make it available to the pilot for his information and to the competent authority, if it so requests.  2. Pilots engaged in berthing, unberthing or manoeuvring vessels shall immediately inform the competent authority whenever they learn that there are deficiencies which may prejudice the safe navigation of the vessel.   Article 9  The competent authority of the Member State concerned shall, as necessary, broadcast within the relevant areas any incident notified under Article 6 (1) and information with regard to any vessel which poses a threat to other shipping.   Article 10  The competent authorities holding the information as notified in accordance with Articles 5 and 6 (1) shall make adequate arrangements to provide such information at any time upon request for safety reasons by the competent authority of  another Member State.  Any Member State the competent authorities of which have been informed, in accordance with this Directive or in some other way, of facts which involve or increase the risk for another Member State of a hazard being posed to certain maritime and coastal  zones, shall take whatever measures are appropriate to inform the Member State concerned thereof as soon as possible.  Each Member State shall make the necessary arrangements to use fully the reports which the vessels are obliged to transmit to them in the event of an incident which may cause very serious damage.   Article 11  This Directive may be amended in accordance with the procedure laid down in Article 12 in order to:  - apply, for the purposes of this Directive, subsequent amendments which have entered into force to the International Convention, Codes and Resolution referred to in Article 2 (e), (f), (g), (h) and (i),  - adapt the implementation of this Directive in the light of scientific and technical progress, without broadening its scope.   Article 12  1. The Commission shall be assisted by a committee composed of representatives of the Member States and chaired by the representative of the Commission.  2. The representative of the Commission shall submit to the committee a draft of the measures to be taken. The committee shall deliver its opinion on the draft within a time limit which the chairman may lay down according to the urgency of the matter.  The opinion shall be delivered by the majority laid down in Article 148 (2) of the Treaty in the case of decisions which the Council is required to adopt on a proposal from the Commission. The votes of the representatives of the Member States within the  committee shall be weighted in the manner set out in that Article. The Chairman shall not vote.  3. (a) The Commission shall adopt the measures envisaged if they are in accordance with the opinion of the committee.  (b) If the measures envisaged are not in accorance with the opinion of the committee, or if no opinion is delivered, the Commission shall, without delay, submit to the Council a proposal relating to the measures to be taken. The Council shall act by a  qualified majority.  If, on the expiry of eight weeks from the date of referral to the Council, the Council has not acted, the proposed measures shall be adopted by the Commission.   Article 13  1. The Commission shall submit a report to the Council by 31 December 1995, together with proposals as necessary, concerning the implementation of this Directive.  2. The Commission shall also, as soon as possible and in any case by 31 December 1993, produce new proposals for the introduction of a fuller reporting system for the Community. These proposals may cover vessels transiting along the coasts of Member  States and include electronic data interchange systems between vessels and shore-based installations.   Article 14  1. Member States shall adopt the laws, regulations and administrative provisions necessary to comply with this Directive no later than 12 months after adoption of this Directive. They shall forthwith inform the Commission thereof.  2. When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such a reference shall be laid down by Member  States.  3. The obligations deriving from this Directive shall take effect 24 months after adoption of this Directive.  4. Member States shall communicate to the Commission, no later than 12 months after the adoption of this Directive, the texts of the basic provisions of national law which they adopt in the field governed by this Directive.  In addition, these provisions shall be communicated via the national warning and information services to the maritime sector.   Article 15  Directive 79/116/EEC shall be repealed 24 months after the adoption of this Directive.   Article 16  This Directive is addressed to the Member States.  Done at Brussels, 13 September 1993.  For the Council The President Ph. MAYSTADT  (1) OJ No C 147, 14. 6. 1989, p. 3. OJ No C 294, 24. 11. 1990, p. 12.  (2) OJ C 175, 16. 7. 1990, p. 41. OJ No C 255, 20. 8. 1993.  (3) OJ No C 329, 20. 12. 1989, p. 20.  (4) OJ No L 33, 8. 2. 1979, p. 33. Directive as amended by Directive 79/1034/EEC (OJ No L 315, 11. 12. 1979, p. 16).      ANNEX I  Information on vessels carrying dangerous or polluting goods  (Article 5) 1. Name and call sign of the vessel 2. Nationality of the vessel 3. Length and draught of the vessel 4. Port of destination 5. Estimated time of arrival at the port of destination or pilot station, as required by competent authority 6. Estimated time of departure 7. Intended route 8. The correcti technical names of the dangerous or polluting goods, the United Nations (UN) numbers where they exist, the IMO hazard classes in accordance with the IMDG, IBC and IGC Codes, the quantities of such goods and their location on board and,  if in portable tanks or freight containers, their identification marks.  9. Confirmation that a list or manifest or appropriate loading plan giving details of the dangerous or polluting goods carries and of their location on the vessel is on board.     ANNEX II  CHECK LIST FOR VESSELS  (Article 6 (3), Article 8 and Annex III) A. Vessel identification Name of vessel:  Owner:  Year built:  Flag:  Call sign:  Gross tonnage:  Port of registry:  Length overall:    Vessel's international call sign, if available:    Classification society:    Class notation:  Hull:  Machinery:  Propulsion machinery:   Output:  Agent:    Draught:  Forward:  Amidships:  Aft:  Volume/mass of dangerous or polluting cargo:     B. Safety installations aboard In good working order Yes No Deficiencies 1. Construction and technical equipment    Main and auxiliary engines     Main steering gear     Auxiliary steering gear     Anchor gear     Fixed fire-extinguishing system     Inert gas system (if applicable)     2. Navigational equipment    Manoeuvring characteristics available     First radar installation     Second radar installation     Gyro compass     Standard magnetic compass     Radio direction-finding apparatus     Echo-sounding device     Other electronic position-fixing aids     3. Radio equipment    Radiotelegraphy installation     Radiotelephony installation (VHF)     C. Documents Certificates/documents valid on board Yes No Cargo ship safety construction certificate    Cargo ship safety equipment certificate    Cargo ship safety radio telegraphy certificate    Cargo ship safety radio telephony certificate    Load line certificate    Classification certificate    Pollution risk insurance certificate    Solas dangerous goods certificate    Passenger safety certificate    Oil/cargo record book filled in    (International) certificate of fitness for the carriage of dangerous chemicals in bulk    (International) certificate of fitness for the carriage of liquefied in bulk    International oil pollution prevention certificate (IOPP certificate)    International pollution prevention certificate for the carriage of noxious liquid substances in bulk    D. Officers and ratings Certificate of competency (detailed description and serial number) Issued by (issuing authority) At (place/country) Yes No Master         Chief mate         Second mate         Third mate         Chief engineer         First engineer officer         Second engineer officer         Third engineer officer         Radio officer         Total number of ratings Deck Engine room      Deep-sea pilot taken aboard             Date Signature of the master or, if he is indisposed, of the deputy     ANNEX III  Measures available to Member States under international law  (Article 6 (3)) Where, following upon an incident or circumstance of the type described under Article 6 (1) and (2) in regard to a vessel falling within the scope of this Directive, the competent authority of the Member State concerned considers, in the framework of  international law (1), that it is necessary to prevent, mitigate or eliminate a serious and imminent danger to its coastline or related interests, the safety of other ships, the safety of crews, passengers or people ashore or to protect the marine  environment such authority may, in particular:  - restrict the movement of the vessel or direct it to follow a certain course. This requirement shall not override the master's responsibility for the safe conduct of his vessel,  - request the master to provide the relevant information from the check list in Annex II of this Directive and confirm that a copy of the list or manifest or appropriate loading plan referred to under paragraph 9 of Annex I is available on board.   (1) - United Nations Convention on the Law of the Sea (Unclos) (1983, Article 221), - International Convention relating to intervention on the high seas in cases of oil pollution casualties, 1969, Articles I, II, III and V, - Protocol relating  to intervention on the high seas in cases of pollution by substances other than oil, 1973, Articles I and II.


title: Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA

text:
               17.12.2011

               EN

               Official Journal of the European Union

               L 335/1

         DIRECTIVE 2011/92/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
   of 13 December 2011
   on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA
   THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty on the Functioning of the European Union, and in particular Article 82(2) and Article 83(1) thereof,
   Having regard to the proposal from the European Commission,
   After transmission of the draft legislative act to the national parliaments,
   Having regard to the opinion of the European Economic and Social Committee (1),
   After consulting the Committee of the Regions,
   Acting in accordance with the ordinary legislative procedure (2),
   Whereas:

               (1)

               Sexual abuse and sexual exploitation of children, including child pornography, constitute serious violations of fundamental rights, in particular of the rights of children to the protection and care necessary for their well-being, as provided for by the 1989 United Nations Convention on the Rights of the Child and by the Charter of Fundamental Rights of the European Union (3).

               (2)

               In accordance with Article 6(1) of the Treaty on European Union, the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union, in which Article 24(2) provides that in all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration. Moreover, the Stockholm Programme — An Open and Secure Europe Serving and Protecting Citizens (4) gives a clear priority to combating the sexual abuse and sexual exploitation of children and child pornography.

               (3)

               Child pornography, which consists of images of child sexual abuse, and other particularly serious forms of sexual abuse and sexual exploitation of children are increasing and spreading through the use of new technologies and the Internet.

               (4)

               Council Framework Decision 2004/68/JHA of 22 December 2003 on combating the sexual exploitation of children and child pornography (5) approximates Member States’ legislation to criminalise the most serious forms of child sexual abuse and sexual exploitation, to extend domestic jurisdiction, and to provide for a minimum level of assistance for victims. Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings (6) establishes a set of victims’ rights in criminal proceedings, including the right to protection and compensation. Moreover, the coordination of prosecution of cases of sexual abuse, sexual exploitation of children and child pornography will be facilitated by the implementation of Council Framework Decision 2009/948/JHA of 30 November 2009 on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings (7).

               (5)

               In accordance with Article 34 of the United Nations Convention on the Rights of the Child, States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. The 2000 United Nations Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography and, in particular, the 2007 Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse are crucial steps in the process of enhancing international cooperation in this field.

               (6)

               Serious criminal offences such as the sexual exploitation of children and child pornography require a comprehensive approach covering the prosecution of offenders, the protection of child victims, and prevention of the phenomenon. The child’s best interests must be a primary consideration when carrying out any measures to combat these offences in accordance with the Charter of Fundamental Rights of the European Union and the United Nations Convention on the Rights of the Child. Framework Decision 2004/68/JHA should be replaced by a new instrument providing such comprehensive legal framework to achieve that purpose.

               (7)

               This Directive should be fully complementary with Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA (8), as some victims of human trafficking have also been child victims of sexual abuse or sexual exploitation.

               (8)

               In the context of criminalising acts related to pornographic performance, this Directive refers to such acts which consist of an organised live exhibition, aimed at an audience, thereby excluding personal face-to-face communication between consenting peers, as well as children over the age of sexual consent and their partners from the definition.

               (9)

               Child pornography frequently includes images recording the sexual abuse of children by adults. It may also include images of children involved in sexually explicit conduct, or of their sexual organs, where such images are produced or used for primarily sexual purposes and exploited with or without the child’s knowledge. Furthermore, the concept of child pornography also covers realistic images of a child, where a child is engaged or depicted as being engaged in sexually explicit conduct for primarily sexual purposes.

               (10)

               Disability, by itself, does not automatically constitute an impossibility to consent to sexual relations. However, the abuse of the existence of such a disability in order to engage in sexual activities with a child should be criminalised.

               (11)

               In adopting legislation on substantive criminal law, the Union should ensure consistency of such legislation in particular with regard to the level of penalties. The Council conclusions of 24 and 25 April 2002 on the approach to apply regarding approximation of penalties, which indicate four levels of penalties, should be kept in mind in the light of the Lisbon Treaty. This Directive, because it contains an exceptionally high number of different offences, requires, in order to reflect the various degrees of seriousness, a differentiation in the level of penalties which goes further than what should usually be provided in Union legal instruments.

               (12)

               Serious forms of sexual abuse and sexual exploitation of children should be subject to effective, proportionate and dissuasive penalties. This includes, in particular, various forms of sexual abuse and sexual exploitation of children which are facilitated by the use of information and communication technology, such as the online solicitation of children for sexual purposes via social networking websites and chat rooms. The definition of child pornography should also be clarified and brought closer to that contained in international instruments.

               (13)

               The maximum term of imprisonment provided for in this Directive for the offences referred to therein should apply at least to the most serious forms of such offences.

               (14)

               In order to reach the maximum term of imprisonment provided for in this Directive for offences concerning sexual abuse and sexual exploitation of children and child pornography, Member States may combine, taking into account their national law, the imprisonment terms provided for in national legislation in respect of those offences.

               (15)

               This Directive obliges Member States to provide for criminal penalties in their national legislation in respect of the provisions of Union law on combating sexual abuse, sexual exploitation of children and child pornography. This Directive creates no obligations regarding the application of such penalties, or any other available system of law enforcement, in individual cases.

               (16)

               Especially for those cases where the offences referred to in this Directive are committed with the purpose of financial gain, Member States are invited to consider providing for the possibility to impose financial penalties in addition to imprisonment.

               (17)

               In the context of child pornography, the term ‘without right’ allows Member States to provide a defence in respect of conduct relating to pornographic material having for example, a medical, scientific or similar purpose. It also allows activities carried out under domestic legal powers, such as the legitimate possession of child pornography by the authorities in order to conduct criminal proceedings or to prevent, detect or investigate crime. Furthermore, it does not exclude legal defences or similar relevant principles that relieve a person of responsibility under specific circumstances, for example where telephone or Internet hotlines carry out activities to report those cases.

               (18)

               Knowingly obtaining access, by means of information and communication technology, to child pornography should be criminalised. To be liable, the person should both intend to enter a site where child pornography is available and know that such images can be found there. Penalties should not be applied to persons inadvertently accessing sites containing child pornography. The intentional nature of the offence may notably be deduced from the fact that it is recurrent or that the offence was committed via a service in return for payment.

               (19)

               Solicitation of children for sexual purposes is a threat with specific characteristics in the context of the Internet, as the latter provides unprecedented anonymity to users because they are able to conceal their real identity and personal characteristics, such as their age. At the same time, Member States acknowledge the importance of also combating the solicitation of a child outside the context of the Internet, in particular where such solicitation is not carried out by using information and communication technology. Member States are encouraged to criminalise the conduct where the solicitation of a child to meet the offender for sexual purposes takes place in the presence or proximity of the child, for instance in the form of a particular preparatory offence, attempt to commit the offences referred to in this Directive or as a particular form of sexual abuse. Whichever legal solution is chosen to criminalise ‘off-line grooming’, Member States should ensure that they prosecute the perpetrators of such offences one way or another.

               (20)

               This Directive does not govern Member States’ policies with regard to consensual sexual activities in which children may be involved and which can be regarded as the normal discovery of sexuality in the course of human development, taking account of the different cultural and legal traditions and of new forms of establishing and maintaining relations among children and adolescents, including through information and communication technologies. These issues fall outside of the scope of this Directive. Member States which avail themselves of the possibilities referred to in this Directive do so in the exercise of their competences.

               (21)

               Member States should provide for aggravating circumstances in their national law in accordance with the applicable rules established by their legal systems on aggravating circumstances. They should ensure that those aggravating circumstances are available for judges to consider when sentencing offenders, although there is no obligation on judges to apply those aggravating circumstances. The aggravating circumstances should not be provided for in Member States’ law when irrelevant taking into account the nature of the specific offence. The relevance of the various aggravating circumstances provided for in this Directive should be evaluated at national level for each of the offences referred to in this Directive.

               (22)

               Physical or mental incapacity under this Directive should be understood as also including the state of physical or mental incapacity caused by the influence of drugs and alcohol.

               (23)

               In combating sexual exploitation of children, full use should be made of existing instruments on the seizure and confiscation of the proceeds of crime, such as the United Nations Convention against Transnational Organized Crime and the Protocols thereto, the 1990 Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, Council Framework Decision 2001/500/JHA of 26 June 2001 on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime (9), and Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime Related Proceeds, Instrumentalities and Property (10). The use of seized and confiscated instrumentalities and the proceeds from the offences referred to in this Directive to support victims’ assistance and protection should be encouraged.

               (24)

               Secondary victimisation should be avoided for victims of offences referred to in this Directive. In Member States where prostitution or the appearance in pornography is punishable under national criminal law, it should be possible not to prosecute or impose penalties under those laws where the child concerned has committed those acts as a result of being victim of sexual exploitation or where the child was compelled to participate in child pornography.

               (25)

               As an instrument of approximation of criminal law, this Directive provides for levels of penalties which should apply without prejudice to the specific criminal policies of the Member States concerning child offenders.

               (26)

               Investigating offences and bringing charges in criminal proceedings should be facilitated, to take into account the difficulty for child victims of denouncing sexual abuse and the anonymity of offenders in cyberspace. To ensure successful investigations and prosecutions of the offences referred to in this Directive, their initiation should not depend, in principle, on a report or accusation made by the victim or by his or her representative. The length of the sufficient period of time for prosecution should be determined in accordance with national law.

               (27)

               Effective investigatory tools should be made available to those responsible for the investigation and prosecutions of the offences referred to in this Directive. Those tools could include interception of communications, covert surveillance including electronic surveillance, monitoring of bank accounts or other financial investigations, taking into account, inter alia, the principle of proportionality and the nature and seriousness of the offences under investigation. Where appropriate, and in accordance with national law, such tools should also include the possibility for law enforcement authorities to use a concealed identity on the Internet.

               (28)

               Member States should encourage any person who has knowledge or suspicion of the sexual abuse or sexual exploitation of a child to report to the competent services. It is the responsibility of each Member State to determine the competent authorities to which such suspicions may be reported. Those competent authorities should not be limited to child protection services or relevant social services. The requirement of suspicion ‘in good faith’ should be aimed at preventing the provision being invoked to authorise the denunciation of purely imaginary or untrue facts carried out with malicious intent.

               (29)

               Rules on jurisdiction should be amended to ensure that sexual abusers or sexual exploiters of children from the Union face prosecution even if they commit their crimes outside the Union, in particular via so-called sex tourism. Child sex tourism should be understood as the sexual exploitation of children by a person or persons who travel from their usual environment to a destination abroad where they have sexual contact with children. Where child sex tourism takes place outside the Union, Member States are encouraged to seek to increase, through the available national and international instruments including bilateral or multilateral treaties on extradition, mutual assistance or a transfer of the proceedings, cooperation with third countries and international organisations with a view to combating sex tourism. Member States should foster open dialogue and communication with countries outside the Union in order to be able to prosecute perpetrators, under the relevant national legislation, who travel outside the Union borders for the purposes of child sex tourism.

               (30)

               Measures to protect child victims should be adopted in their best interest, taking into account an assessment of their needs. Child victims should have easy access to legal remedies and measures to address conflicts of interest where sexual abuse or sexual exploitation of a child occurs within the family. When a special representative should be appointed for a child during a criminal investigation or proceeding, this role may be also carried out by a legal person, an institution or an authority. Moreover, child victims should be protected from penalties, for example under national legislation on prostitution, if they bring their case to the attention of competent authorities. Furthermore, participation in criminal proceedings by child victims should not cause additional trauma to the extent possible, as a result of interviews or visual contact with offenders. A good understanding of children and how they behave when faced with traumatic experiences will help to ensure a high quality of evidence-taking and also reduce the stress placed on children when carrying out the necessary measures.

               (31)

               Member States should consider giving short and long term assistance to child victims. Any harm caused by the sexual abuse and sexual exploitation of a child is significant and should be addressed. Because of the nature of the harm caused by sexual abuse and sexual exploitation, such assistance should continue for as long as necessary for the child’s physical and psychological recovery and may last into adulthood if necessary. Assistance and advice should be considered to be extended to parents or guardians of the child victims where they are not involved as suspects in relation to the offence concerned, in order to help them to assist child victims throughout the proceedings.

               (32)

               Framework Decision 2001/220/JHA establishes a set of victims’ rights in criminal proceedings, including the right to protection and compensation. In addition child victims of sexual abuse, sexual exploitation and child pornography should be given access to legal counselling and, in accordance with the role of victims in the relevant justice systems, to legal representation, including for the purpose of claiming compensation. Such legal counselling and legal representation could also be provided by the competent authorities for the purpose of claiming compensation from the State. The purpose of legal counselling is to enable victims to be informed and receive advice about the various possibilities open to them. Legal counselling should be provided by a person having received appropriate legal training without necessarily being a lawyer. Legal counselling and, in accordance with the role of victims in the relevant justice systems, legal representation should be provided free of charge, at least when the victim does not have sufficient financial resources, in a manner consistent with the internal procedures of Member States.

               (33)

               Member States should undertake action to prevent or prohibit acts related to the promotion of sexual abuse of children and child sex tourism. Different preventative measures could be considered, such as the drawing up and reinforcement of a code of conduct and self-regulatory mechanisms in the tourism industry, the setting-up of a code of ethics or ‘quality labels’ for tourist organisations combating child sex tourism, or establishing an explicit policy to tackle child sex tourism.

               (34)

               Member States should establish and/or strengthen policies to prevent sexual abuse and sexual exploitation of children, including measures to discourage and reduce the demand that fosters all forms of sexual exploitation of children, and measures to reduce the risk of children becoming victims, by means of, information and awareness-raising campaigns, and research and education programmes. In such initiatives, Member States should adopt a child-rights based approach. Particular care should be taken to ensure that awareness-raising campaigns aimed at children are appropriate and sufficiently easy to understand. The establishment of help-lines or hotlines should be considered.

               (35)

               Regarding the system of reporting sexual abuse and sexual exploitation of children and helping children in need, hotlines under the number
                     116 000 for missing children,
                     116 006 for victims of crime and
                     116 111 for children, as introduced by Commission Decision 2007/116/EC of 15 February 2007 on reserving the national numbering beginning with 116 for harmonised numbers for harmonised services of social value (11), should be promoted and experience regarding their functioning should be taken into account.

               (36)

               Professionals likely to come into contact with child victims of sexual abuse and sexual exploitation should be adequately trained to identify and deal with such victims. That training should be promoted for members of the following categories when they are likely to come into contact with child victims: police officers, public prosecutors, lawyers, members of the judiciary and court officials, child and health care personnel, but could also involve other groups of persons who are likely to encounter child victims of sexual abuse and sexual exploitation in their work.

               (37)

               In order to prevent the sexual abuse and sexual exploitation of children, intervention programmes or measures targeting sex offenders should be proposed to them. Those intervention programmes or measures should meet a broad, flexible approach focusing on the medical and psycho-social aspects and have a non-obligatory character. Those intervention programmes or measures are without prejudice to intervention programmes or measures imposed by the competent judicial authorities.

               (38)

               Intervention programmes or measures are not provided as an automatic right. It is for the Member State to decide which intervention programmes or measures are appropriate.

               (39)

               To prevent and minimise recidivism, offenders should be subject to an assessment of the danger posed by the offenders and the possible risks of repetition of sexual offences against children. Arrangements for such assessment, such as the type of authority competent to order and carry out the assessment or the moment in or after the criminal proceedings when that assessment should take place as well as arrangements for effective intervention programmes or measures offered following that assessment should be consistent with the internal procedures of Member States. For the same objective of preventing and minimising recidivism, offenders should also have access to effective intervention programmes or measures on a voluntary basis. Those intervention programmes or measures should not interfere with national schemes set up to deal with the treatment of persons suffering from mental disorders.

               (40)

               Where the danger posed by the offenders and the possible risks of repetition of the offences make it appropriate, convicted offenders should be temporarily or permanently prevented from exercising at least professional activities involving direct and regular contacts with children. Employers when recruiting for a post involving direct and regular contact with children are entitled to be informed of existing convictions for sexual offences against children entered in the criminal record, or of existing disqualifications. For the purposes of this Directive, the term ‘employers’ should also cover persons running an organisation that is active in volunteer work related to the supervision and/or care of children involving direct and regular contact with children. The manner in which such information is delivered, such as for example access via the person concerned, and the precise content of the information, the meaning of organised voluntary activities and direct and regular contact with children should be laid down in accordance with national law.

               (41)

               With due regard to the different legal traditions of the Member States, this Directive takes into account the fact that access to criminal records is allowed only either by the competent authorities or by the person concerned. This Directive does not establish an obligation to modify the national systems governing criminal records or the means of access to those records.

               (42)

               The aim of this Directive is not to harmonise rules concerning consent of the person concerned when exchanging information from the criminal registers, i.e. whether or not to require such consent. Whether the consent is required or not under national law, this Directive does not establish any new obligation to change the national law and national procedures in this respect.

               (43)

               Member States may consider adopting additional administrative measures in relation to perpetrators, such as the registration in sex offender registers of persons convicted of offences referred to in this Directive. Access to those registers should be subject to limitation in accordance with national constitutional principles and applicable data protection standards, for instance by limiting access to the judiciary and/or law enforcement authorities.

               (44)

               Member States are encouraged to create mechanisms for data collection or focal points, at the national or local levels and in collaboration with civil society, for the purpose of observing and evaluating the phenomenon of sexual abuse and sexual exploitation of children. In order to be able to properly evaluate the results of actions to combat sexual abuse and sexual exploitation of children and child pornography, the Union should continue to develop its work on methodologies and data collection methods to produce comparable statistics.

               (45)

               Member States should take appropriate action for setting up information services to provide information on how to recognise the signs of sexual abuse and sexual exploitation.

               (46)

               Child pornography, which constitutes child sexual abuse images, is a specific type of content which cannot be construed as the expression of an opinion. To combat it, it is necessary to reduce the circulation of child sexual abuse material by making it more difficult for offenders to upload such content onto the publicly accessible web. Action is therefore necessary to remove the content and apprehend those guilty of making, distributing or downloading child sexual abuse images. With a view to supporting the Union’s efforts to combat child pornography, Member States should use their best endeavours to cooperate with third countries in seeking to secure the removal of such content from servers within their territory.

               (47)

               However, despite such efforts, the removal of child pornography content at its source is often not possible when the original materials are not located within the Union, either because the State where the servers are hosted is not willing to cooperate or because obtaining removal of the material from the State concerned proves to be particularly long. Mechanisms may also be put in place to block access from the Union’s territory to Internet pages identified as containing or disseminating child pornography. The measures undertaken by Member States in accordance with this Directive in order to remove or, where appropriate, block websites containing child pornography could be based on various types of public action, such as legislative, non-legislative, judicial or other. In that context, this Directive is without prejudice to voluntary action taken by the Internet industry to prevent the misuse of its services or to any support for such action by Member States. Whichever basis for action or method is chosen, Member States should ensure that it provides an adequate level of legal certainty and predictability to users and service providers. Both with a view to the removal and the blocking of child abuse content, cooperation between public authorities should be established and strengthened, particularly in the interests of ensuring that national lists of websites containing child pornography material are as complete as possible and of avoiding duplication of work. Any such developments must take account of the rights of the end users and comply with existing legal and judicial procedures and the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Charter of Fundamental Rights of the European Union. The Safer Internet Programme has set up a network of hotlines the goal of which is to collect information and to ensure coverage and exchange of reports on the major types of illegal content online.

               (48)

               This Directive aims to amend and expand the provisions of Framework Decision 2004/68/JHA. Since the amendments to be made are of substantial number and nature, the Framework Decision should, in the interests of clarity, be replaced in its entirety in relation to Member States participating in the adoption of this Directive.

               (49)

               Since the objective of this Directive, namely to combat sexual abuse, sexual exploitation of children and child pornography, cannot be sufficiently achieved by the Member States alone and can therefore, by reasons of the scale and effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary to achieve that objective.

               (50)

               This Directive respects fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union and in particular the right to the protection of human dignity, the prohibition of torture and inhuman or degrading treatment or punishment, the rights of the child, the right to liberty and security, the right to freedom of expression and information, the right to the protection of personal data, the right to an effective remedy and to a fair trial and the principles of legality and proportionality of criminal offences and penalties. This Directive seeks to ensure full respect for those rights and principles and must be implemented accordingly.

               (51)

               In accordance with Article 3 of the Protocol (No 21) on the position of United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union, the United Kingdom and Ireland have notified their wish to take part in the adoption and application of this Directive.

               (52)

               In accordance with Articles 1 and 2 of the Protocol (No 22) on the position of Denmark annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application,

         HAVE ADOPTED THIS DIRECTIVE:
   Article 1
   Subject matter
   This Directive establishes minimum rules concerning the definition of criminal offences and sanctions in the area of sexual abuse and sexual exploitation of children, child pornography and solicitation of children for sexual purposes. It also introduces provisions to strengthen the prevention of those crimes and the protection of the victims thereof.
   Article 2
   Definitions
   For the purposes of this Directive, the following definitions apply:

               (a)

               ‘child’ means any person below the age of 18 years;

               (b)

               ‘age of sexual consent’ means the age below which, in accordance with national law, it is prohibited to engage in sexual activities with a child;

               (c)

               ‘child pornography’ means:

                           (i)

                           any material that visually depicts a child engaged in real or simulated sexually explicit conduct;

                           (ii)

                           any depiction of the sexual organs of a child for primarily sexual purposes;

                           (iii)

                           any material that visually depicts any person appearing to be a child engaged in real or simulated sexually explicit conduct or any depiction of the sexual organs of any person appearing to be a child, for primarily sexual purposes; or

                           (iv)

                           realistic images of a child engaged in sexually explicit conduct or realistic images of the sexual organs of a child, for primarily sexual purposes;

               (d)

               ‘child prostitution’ means the use of a child for sexual activities where money or any other form of remuneration or consideration is given or promised as payment in exchange for the child engaging in sexual activities, regardless of whether that payment, promise or consideration is made to the child or to a third party;

               (e)

               ‘pornographic performance’ means a live exhibition aimed at an audience, including by means of information and communication technology, of:

                           (i)

                           a child engaged in real or simulated sexually explicit conduct; or

                           (ii)

                           the sexual organs of a child for primarily sexual purposes;

               (f)

               ‘legal person’ means an entity having legal personality under the applicable law, except for States or public bodies in the exercise of State authority and for public international organisations.

         Article 3
   Offences concerning sexual abuse
   1.   Member States shall take the necessary measures to ensure that the intentional conduct referred to in paragraphs 2 to 6 is punishable.
   2.   Causing, for sexual purposes, a child who has not reached the age of sexual consent to witness sexual activities, even without having to participate, shall be punishable by a maximum term of imprisonment of at least 1 year.
   3.   Causing, for sexual purposes, a child who has not reached the age of sexual consent to witness sexual abuse, even without having to participate, shall be punishable by a maximum term of imprisonment of at least 2 years.
   4.   Engaging in sexual activities with a child who has not reached the age of sexual consent shall be punishable by a maximum term of imprisonment of at least 5 years.
   5.   Engaging in sexual activities with a child, where:

               (i)

               abuse is made of a recognised position of trust, authority or influence over the child, shall be punishable by a maximum term of imprisonment of at least 8 years if the child has not reached the age of sexual consent, and of at least 3 years of imprisonment, if the child is over that age; or

               (ii)

               abuse is made of a particularly vulnerable situation of the child, in particular because of a mental or physical disability or a situation of dependence, shall be punishable by a maximum term of imprisonment of at least 8 years if the child has not reached the age of sexual consent, and of at least 3 years of imprisonment if the child is over that age; or

               (iii)

               use is made of coercion, force or threats shall be punishable by a maximum term of imprisonment of at least 10 years if the child has not reached the age of sexual consent, and of at least 5 years of imprisonment if the child is over that age.

         6.   Coercing, forcing or threatening a child into sexual activities with a third party shall be punishable by a maximum term of imprisonment of at least 10 years if the child has not reached the age of sexual consent, and of at least 5 years of imprisonment if the child is over that age.
   Article 4
   Offences concerning sexual exploitation
   1.   Member States shall take the necessary measures to ensure that the intentional conduct referred to in paragraphs 2 to 7 is punishable.
   2.   Causing or recruiting a child to participate in pornographic performances, or profiting from or otherwise exploiting a child for such purposes shall be punishable by a maximum term of imprisonment of at least 5 years if the child has not reached the age of sexual consent and of at least 2 years of imprisonment if the child is over that age.
   3.   Coercing or forcing a child to participate in pornographic performances, or threatening a child for such purposes shall be punishable by a maximum term of imprisonment of at least 8 years if the child has not reached the age of sexual consent, and of at least 5 years of imprisonment if the child is over that age.
   4.   Knowingly attending pornographic performances involving the participation of a child shall be punishable by a maximum term of imprisonment of at least 2 years if the child has not reached the age of sexual consent, and of at least 1 year of imprisonment if the child is over that age.
   5.   Causing or recruiting a child to participate in child prostitution, or profiting from or otherwise exploiting a child for such purposes shall be punishable by a maximum term of imprisonment of at least 8 years if the child has not reached the age of sexual consent, and of at least 5 years of imprisonment if the child is over that age.
   6.   Coercing or forcing a child into child prostitution, or threatening a child for such purposes shall be punishable by a maximum term of imprisonment of at least 10 years if the child has not reached the age of sexual consent, and of at least 5 years of imprisonment if the child is over that age.
   7.   Engaging in sexual activities with a child, where recourse is made to child prostitution shall be punishable by a maximum term of imprisonment of at least 5 years if the child has not reached the age of sexual consent, and of at least 2 years of imprisonment if the child is over that age.
   Article 5
   Offences concerning child pornography
   1.   Member States shall take the necessary measures to ensure that the intentional conduct, when committed without right, referred to in paragraphs 2 to 6 is punishable.
   2.   Acquisition or possession of child pornography shall be punishable by a maximum term of imprisonment of at least 1 year.
   3.   Knowingly obtaining access, by means of information and communication technology, to child pornography shall be punishable by a maximum term of imprisonment of at least 1 year.
   4.   Distribution, dissemination or transmission of child pornography shall be punishable by a maximum term of imprisonment of at least 2 years.
   5.   Offering, supplying or making available child pornography shall be punishable by a maximum term of imprisonment of at least 2 years.
   6.   Production of child pornography shall be punishable by a maximum term of imprisonment of at least 3 years.
   7.   It shall be within the discretion of Member States to decide whether this Article applies to cases involving child pornography as referred to in Article 2(c)(iii), where the person appearing to be a child was in fact 18 years of age or older at the time of depiction.
   8.   It shall be within the discretion of Member States to decide whether paragraphs 2 and 6 of this Article apply to cases where it is established that pornographic material as referred to in Article 2(c)(iv) is produced and possessed by the producer solely for his or her private use in so far as no pornographic material as referred to in Article 2(c)(i), (ii) or (iii) has been used for the purpose of its production and provided that the act involves no risk of dissemination of the material.
   Article 6
   Solicitation of children for sexual purposes
   1.   Member States shall take the necessary measures to ensure that the following intentional conduct is punishable:
   the proposal, by means of information and communication technology, by an adult to meet a child who has not reached the age of sexual consent, for the purpose of committing any of the offences referred to in Article 3(4) and Article 5(6), where that proposal was followed by material acts leading to such a meeting, shall be punishable by a maximum term of imprisonment of at least 1 year.
   2.   Member States shall take the necessary measures to ensure that an attempt, by means of information and communication technology, to commit the offences provided for in Article 5(2) and (3) by an adult soliciting a child who has not reached the age of sexual consent to provide child pornography depicting that child is punishable.
   Article 7
   Incitement, aiding and abetting, and attempt
   1.   Member States shall take the necessary measures to ensure that inciting or aiding and abetting to commit any of the offences referred to in Articles 3 to 6 is punishable.
   2.   Member States shall take the necessary measures to ensure that an attempt to commit any of the offences referred to in Article 3(4), (5) and (6), Article 4(2), (3), (5), (6) and (7), and Article 5(4), (5) and (6) is punishable.
   Article 8
   Consensual sexual activities
   1.   It shall be within the discretion of Member States to decide whether Article 3(2) and (4) apply to consensual sexual activities between peers, who are close in age and degree of psychological and physical development or maturity, in so far as the acts did not involve any abuse.
   2.   It shall be within the discretion of Member States to decide whether Article 4(4) applies to a pornographic performance that takes place in the context of a consensual relationship where the child has reached the age of sexual consent or between peers who are close in age and degree of psychological and physical development or maturity, in so far as the acts did not involve any abuse or exploitation and no money or other form of remuneration or consideration is given as payment in exchange for the pornographic performance.
   3.   It shall be within the discretion of Member States to decide whether Article 5(2) and (6) apply to the production, acquisition or possession of material involving children who have reached the age of sexual consent where that material is produced and possessed with the consent of those children and only for the private use of the persons involved, in so far as the acts did not involve any abuse.
   Article 9
   Aggravating circumstances
   In so far as the following circumstances do not already form part of the constituent elements of the offences referred to in Articles 3 to 7, Member States shall take the necessary measures to ensure that the following circumstances may, in accordance with the relevant provisions of national law, be regarded as aggravating circumstances, in relation to the relevant offences referred to in Articles 3 to 7:

               (a)

               the offence was committed against a child in a particularly vulnerable situation, such as a child with a mental or physical disability, in a situation of dependence or in a state of physical or mental incapacity;

               (b)

               the offence was committed by a member of the child’s family, a person cohabiting with the child or a person who has abused a recognised position of trust or authority;

               (c)

               the offence was committed by several persons acting together;

               (d)

               the offence was committed within the framework of a criminal organisation within the meaning of Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime (12);

               (e)

               the offender has previously been convicted of offences of the same nature;

               (f)

               the offender has deliberately or recklessly endangered the life of the child; or

               (g)

               the offence involved serious violence or caused serious harm to the child.

         Article 10
   Disqualification arising from convictions
   1.   In order to avoid the risk of repetition of offences, Member States shall take the necessary measures to ensure that a natural person who has been convicted of any of the offences referred to in Articles 3 to 7 may be temporarily or permanently prevented from exercising at least professional activities involving direct and regular contacts with children.
   2.   Member States shall take the necessary measures to ensure that employers, when recruiting a person for professional or organised voluntary activities involving direct and regular contacts with children, are entitled to request information in accordance with national law by way of any appropriate means, such as access upon request or via the person concerned, of the existence of criminal convictions for any of the offences referred to in Articles 3 to 7 entered in the criminal record or of the existence of any disqualification from exercising activities involving direct and regular contacts with children arising from those criminal convictions.
   3.   Member States shall take the necessary measures to ensure that, for the application of paragraphs 1 and 2 of this Article, information concerning the existence of criminal convictions for any of the offences referred to in Articles 3 to 7, or of any disqualification from exercising activities involving direct and regular contacts with children arising from those criminal convictions, is transmitted in accordance with the procedures set out in Council Framework Decision 2009/315/JHA of 26 February 2009 on the organisation and content of the exchange of information extracted from the criminal record between Member States (13) when requested under Article 6 of that Framework Decision with the consent of the person concerned.
   Article 11
   Seizure and confiscation
   Member States shall take the necessary measures to ensure that their competent authorities are entitled to seize and confiscate instrumentalities and proceeds from the offences referred to in Articles 3, 4 and 5.
   Article 12
   Liability of legal persons
   1.   Member States shall take the necessary measures to ensure that legal persons may be held liable for any of the offences referred to in Articles 3 to 7 committed for their benefit by any person, acting either individually or as part of an organ of the legal person, and having a leading position within the legal person, based on:

               (a)

               a power of representation of the legal person;

               (b)

               an authority to take decisions on behalf of the legal person; or

               (c)

               an authority to exercise control within the legal person.

         2.   Member States shall also take the necessary measures to ensure that legal persons may be held liable where the lack of supervision or control by a person referred to in paragraph 1 has made possible the commission, by a person under its authority, of any of the offences referred to in Articles 3 to 7 for the benefit of that legal person.
   3.   Liability of legal persons under paragraphs 1 and 2 shall be without prejudice to criminal proceedings against natural persons who are perpetrators, inciters or accessories to the offences referred to in Articles 3 to 7.
   Article 13
   Sanctions on legal persons
   1.   Member States shall take the necessary measures to ensure that a legal person held liable pursuant to Article 12(1) is punishable by effective, proportionate and dissuasive sanctions, which shall include criminal or non-criminal fines and may include other sanctions, such as:

               (a)

               exclusion from entitlement to public benefits or aid;

               (b)

               temporary or permanent disqualification from the practice of commercial activities;

               (c)

               placing under judicial supervision;

               (d)

               judicial winding-up; or

               (e)

               temporary or permanent closure of establishments which have been used for committing the offence.

         2.   Member States shall take the necessary measures to ensure that a legal person held liable pursuant to Article 12(2) is punishable by sanctions or measures which are effective, proportionate and dissuasive.
   Article 14
   Non-prosecution or non-application of penalties to the victim
   Member States shall, in accordance with the basic principles of their legal systems take the necessary measures to ensure that competent national authorities are entitled not to prosecute or impose penalties on child victims of sexual abuse and sexual exploitation for their involvement in criminal activities, which they have been compelled to commit as a direct consequence of being subjected to any of the acts referred to in Article 4(2), (3), (5) and (6), and in Article 5(6).
   Article 15
   Investigation and prosecution
   1.   Member States shall take the necessary measures to ensure that investigations into or the prosecution of the offences referred to in Articles 3 to 7 are not dependent on a report or accusation being made by the victim or by his or her representative, and that criminal proceedings may continue even if that person has withdrawn his or her statements.
   2.   Member States shall take the necessary measures to enable the prosecution of any of the offences referred to in Article 3, Article 4(2), (3), (5), (6) and (7) and of any serious offences referred to in Article 5(6) when child pornography as referred to in Article 2(c)(i) and (ii) has been used, for a sufficient period of time after the victim has reached the age of majority and which is commensurate with the gravity of the offence concerned.
   3.   Member States shall take the necessary measures to ensure that effective investigative tools, such as those which are used in organised crime or other serious crime cases are available to persons, units or services responsible for investigating or prosecuting offences referred to in Articles 3 to 7.
   4.   Member States shall take the necessary measures to enable investigative units or services to attempt to identify the victims of the offences referred to in Articles 3 to 7, in particular by analysing child pornography material, such as photographs and audiovisual recordings transmitted or made available by means of information and communication technology.
   Article 16
   Reporting suspicion of sexual abuse or sexual exploitation
   1.   Member States shall take the necessary measures to ensure that the confidentiality rules imposed by national law on certain professionals whose main duty is to work with children do not constitute an obstacle to the possibility, for those professionals, of their reporting to the services responsible for child protection any situation where they have reasonable grounds for believing that a child is the victim of offences referred to in Articles 3 to 7.
   2.   Member States shall take the necessary measures to encourage any person who knows about or suspects, in good faith that any of the offences referred to in Articles 3 to 7 have been committed, to report this to the competent services.
   Article 17
   Jurisdiction and coordination of prosecution
   1.   Member States shall take the necessary measures to establish their jurisdiction over the offences referred to in Articles 3 to 7 where:

               (a)

               the offence is committed in whole or in part within their territory; or

               (b)

               the offender is one of their nationals.

         2.   A Member State shall inform the Commission where it decides to establish further jurisdiction over an offence referred to in Articles 3 to 7 committed outside its territory, inter alia, where:

               (a)

               the offence is committed against one of its nationals or a person who is an habitual resident in its territory;

               (b)

               the offence is committed for the benefit of a legal person established in its territory; or

               (c)

               the offender is an habitual resident in its territory.

         3.   Member States shall ensure that their jurisdiction includes situations where an offence referred to in Articles 5 and 6, and in so far as is relevant, in Articles 3 and 7, is committed by means of information and communication technology accessed from their territory, whether or not it is based on their territory.
   4.   For the prosecution of any of the offences referred to in Article 3(4), (5) and (6), Article 4(2), (3), (5), (6) and (7) and Article 5(6) committed outside the territory of the Member State concerned, as regards paragraph 1(b) of this Article, each Member State shall take the necessary measures to ensure that its jurisdiction is not subordinated to the condition that the acts are a criminal offence at the place where they were performed.
   5.   For the prosecution of any of the offences referred to in Articles 3 to 7 committed outside the territory of the Member State concerned, as regards paragraph 1(b) of this Article, each Member State shall take the necessary measures to ensure that its jurisdiction is not subordinated to the condition that the prosecution can only be initiated following a report made by the victim in the place where the offence was committed, or a denunciation from the State of the place where the offence was committed.
   Article 18
   General provisions on assistance, support and protection measures for child victims
   1.   Child victims of the offences referred to in Articles 3 to 7 shall be provided assistance, support and protection in accordance with Articles 19 and 20, taking into account the best interests of the child.
   2.   Member States shall take the necessary measures to ensure that a child is provided with assistance and support as soon as the competent authorities have a reasonable-grounds indication for believing that a child might have been subject to any of the offences referred to in Articles 3 to 7.
   3.   Member States shall ensure that, where the age of a person subject to any of the offences referred to in Articles 3 to 7 is uncertain and there are reasons to believe that the person is a child, that person is presumed to be a child in order to receive immediate access to assistance, support and protection in accordance with Articles 19 and 20.
   Article 19
   Assistance and support to victims
   1.   Member States shall take the necessary measures to ensure that assistance and support are provided to victims before, during and for an appropriate period of time after the conclusion of criminal proceedings in order to enable them to exercise the rights set out in Framework Decision 2001/220/JHA, and in this Directive. Member States shall, in particular, take the necessary steps to ensure protection for children who report cases of abuse within their family.
   2.   Member States shall take the necessary measures to ensure that assistance and support for a child victim are not made conditional on the child victim’s willingness to cooperate in the criminal investigation, prosecution or trial.
   3.   Member States shall take the necessary measures to ensure that the specific actions to assist and support child victims in enjoying their rights under this Directive, are undertaken following an individual assessment of the special circumstances of each particular child victim, taking due account of the child’s views, needs and concerns.
   4.   Child victims of any of the offences referred to in Articles 3 to 7 shall be considered as particularly vulnerable victims pursuant to Article 2(2), Article 8(4) and Article 14(1) of Framework Decision 2001/220/JHA.
   5.   Member States shall take measures, where appropriate and possible, to provide assistance and support to the family of the child victim in enjoying the rights under this Directive when the family is in the territory of the Member States. In particular, Member States shall, where appropriate and possible, apply Article 4 of Framework Decision 2001/220/JHA to the family of the child victim.
   Article 20
   Protection of child victims in criminal investigations and proceedings
   1.   Member States shall take the necessary measures to ensure that in criminal investigations and proceedings, in accordance with the role of victims in the relevant justice system, competent authorities appoint a special representative for the child victim where, under national law, the holders of parental responsibility are precluded from representing the child as a result of a conflict of interest between them and the child victim, or where the child is unaccompanied or separated from the family.
   2.   Member States shall ensure that child victims have, without delay, access to legal counselling and, in accordance with the role of victims in the relevant justice system, to legal representation, including for the purpose of claiming compensation. Legal counselling and legal representation shall be free of charge where the victim does not have sufficient financial resources.
   3.   Without prejudice to the rights of the defence, Member States shall take the necessary measures to ensure that in criminal investigations relating to any of the offences referred to in Articles 3 to 7:

               (a)

               interviews with the child victim take place without unjustified delay after the facts have been reported to the competent authorities;

               (b)

               interviews with the child victim take place, where necessary, in premises designed or adapted for this purpose;

               (c)

               interviews with the child victim are carried out by or through professionals trained for this purpose;

               (d)

               the same persons, if possible and where appropriate, conduct all interviews with the child victim;

               (e)

               the number of interviews is as limited as possible and interviews are carried out only where strictly necessary for the purpose of criminal investigations and proceedings;

               (f)

               the child victim may be accompanied by his or her legal representative or, where appropriate, by an adult of his or her choice, unless a reasoned decision has been made to the contrary in respect of that person.

         4.   Member States shall take the necessary measures to ensure that in criminal investigations of any of the offences referred to in Articles 3 to 7 all interviews with the child victim or, where appropriate, with a child witness, may be audio-visually recorded and that such audio-visually recorded interviews may be used as evidence in criminal court proceedings, in accordance with the rules under their national law.
   5.   Member States shall take the necessary measures to ensure that in criminal court proceedings relating to any of the offences referred to in Articles 3 to 7, that it may be ordered that:

               (a)

               the hearing take place without the presence of the public;

               (b)

               the child victim be heard in the courtroom without being present, in particular through the use of appropriate communication technologies.

         6.   Member States shall take the necessary measures, where in the interest of child victims and taking into account other overriding interests, to protect the privacy, identity and image of child victims, and to prevent the public dissemination of any information that could lead to their identification.
   Article 21
   Measures against advertising abuse opportunities and child sex tourism
   Member States shall take appropriate measures to prevent or prohibit:

               (a)

               the dissemination of material advertising the opportunity to commit any of the offences referred to in Articles 3 to 6; and

               (b)

               the organisation for others, whether or not for commercial purposes, of travel arrangements with the purpose of committing any of the offences referred to in Articles 3 to 5.

         Article 22
   Preventive intervention programmes or measures
   Member States shall take the necessary measures to ensure that persons who fear that they might commit any of the offences referred to in Articles 3 to 7 may have access, where appropriate, to effective intervention programmes or measures designed to evaluate and prevent the risk of such offences being committed.
   Article 23
   Prevention
   1.   Member States shall take appropriate measures, such as education and training, to discourage and reduce the demand that fosters all forms of sexual exploitation of children.
   2.   Member States shall take appropriate action, including through the Internet, such as information and awareness-raising campaigns, research and education programmes, where appropriate in cooperation with relevant civil society organisations and other stakeholders, aimed at raising awareness and reducing the risk of children, becoming victims of sexual abuse or exploitation.
   3.   Member States shall promote regular training for officials likely to come into contact with child victims of sexual abuse or exploitation, including front-line police officers, aimed at enabling them to identify and deal with child victims and potential child victims of sexual abuse or exploitation.
   Article 24
   Intervention programmes or measures on a voluntary basis in the course of or after criminal proceedings
   1.   Without prejudice to intervention programmes or measures imposed by the competent judicial authorities under national law, Member States shall take the necessary measures to ensure that effective intervention programmes or measures are made available to prevent and minimise the risks of repeated offences of a sexual nature against children. Such programmes or measures shall be accessible at any time during the criminal proceedings, inside and outside prison, in accordance with national law.
   2.   The intervention programmes or measures, referred to in paragraph 1 shall meet the specific developmental needs of children who sexually offend.
   3.   Member States shall take the necessary measures to ensure that the following persons may have access to the intervention programmes or measures referred to in paragraph 1:

               (a)

               persons subject to criminal proceedings for any of the offences referred to in Articles 3 to 7, under conditions which are neither detrimental nor contrary to the rights of the defence or to the requirements of a fair and impartial trial, and, in particular, in compliance with the principle of the presumption of innocence; and

               (b)

               persons convicted of any of the offences referred to in Articles 3 to 7.

         4.   Member States shall take the necessary measures to ensure that the persons referred to in paragraph 3 are subject to an assessment of the danger that they present and the possible risks of repetition of any of the offences referred to in Articles 3 to 7, with the aim of identifying appropriate intervention programmes or measures.
   5.   Member States shall take the necessary measures to ensure that the persons referred to in paragraph 3 to whom intervention programmes or measures in accordance with paragraph 4 have been proposed:

               (a)

               are fully informed of the reasons for the proposal;

               (b)

               consent to their participation in the programmes or measures with full knowledge of the facts;

               (c)

               may refuse and, in the case of convicted persons, are made aware of the possible consequences of such a refusal.

         Article 25
   Measures against websites containing or disseminating child pornography
   1.   Member States shall take the necessary measures to ensure the prompt removal of web pages containing or disseminating child pornography hosted in their territory and to endeavour to obtain the removal of such pages hosted outside of their territory.
   2.   Member States may take measures to block access to web pages containing or disseminating child pornography towards the Internet users within their territory. These measures must be set by transparent procedures and provide adequate safeguards, in particular to ensure that the restriction is limited to what is necessary and proportionate, and that users are informed of the reason for the restriction. Those safeguards shall also include the possibility of judicial redress.
   Article 26
   Replacement of Framework Decision 2004/68/JHA
   Framework Decision 2004/68/JHA is hereby replaced in relation to Member States participating in the adoption of this Directive without prejudice to the obligations of those Member States relating to the time limits for transposition of the Framework Decision into national law.
   In relation to Member States participating in the adoption of this Directive, references to Framework Decision 2004/68/JHA shall be construed as references to this Directive.
   Article 27
   Transposition
   1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 18 December 2013.
   2.   Member States shall transmit to the Commission the text of the provisions transposing into their national law the obligations imposed on them under this Directive.
   3.   When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by the Member States.
   Article 28
   Reporting
   1.   The Commission shall, by 18 December 2015, submit a report to the European Parliament and the Council assessing the extent to which the Member States have taken the necessary measures in order to comply with this Directive, accompanied, if necessary, by a legislative proposal.
   2.   The Commission shall, by 18 December 2015, submit a report to the European Parliament and the Council assessing the implementation of the measures referred to in Article 25.
   Article 29
   Entry into force
   This Directive shall enter into force on the day of its publication in the Official Journal of the European Union.
   Article 30
   Addressees
   This Directive is addressed to the Member States in accordance with the Treaties.

      Done at Strasbourg, 13 December 2011.

            For the European Parliament

            The President

         J. BUZEK

            For the Council

            The President

         M. SZPUNAR

      (1)  OJ C 48, 15.2.2011, p. 138.

      (2)  Position of the European Parliament of 27 October 2011 (not yet published in the Official Journal) and decision of the Council of 15 November 2011.

      (3)  OJ C 364, 18.12.2000, p. 1.

      (4)  OJ C 115, 4.5.2010, p. 1.

      (5)  OJ L 13, 20.1.2004, p. 44.

      (6)  OJ L 82, 22.3.2001, p. 1.

      (7)  OJ L 328, 15.12.2009, p. 42.

      (8)  OJ L 101, 15.4.2011, p. 1.

      (9)  OJ L 182, 5.7.2001, p. 1.

      (10)  OJ L 68, 15.3.2005, p. 49.

      (11)  OJ L 49, 17.2.2007, p. 30.

      (12)  OJ L 300, 11.11.2008, p. 42.

      (13)  OJ L 93, 7.4.2009, p. 23.