Following the Lisbon Treaty, any legislative proposals must now take the form of either
Regulations or Directives.
The third main legislative instrument was Council Framework Decision 2002/629/JHA of 19
July 2002 on Combating Trafficking in Human Beings (‘the 2002 Framework Decisions’). This
focussed almost exclusively on the need for a criminal law framework and for the investigation
and prosecution of those responsible for trafficking individuals. Article 7 of this Framework
Decision alone addressed “protection of and assistance to victims” with three provisions that
concerned the treatment of human trafficking victims, again in the context of criminal
proceedings. On 15 April 2011, with the entry into force of Directive 2011/36/EU (‘the
Trafficking Directive’), the 2002 Framework Decision was repealed and replaced by that
Directive.
The adoption of a comprehensive Directive dealing with preventing and combating trafficking in
human beings and protecting its victims is a much welcome development particularly in light of
the enhanced legal status a Directive has in comparison to a Framework Decision - which
provides for virtually no judicial oversight and does not confer directly effective rights on
individuals. As a matter of general EU law, certain provisions of Directives can have direct
effect in national law if they are clear, precise, and unconditional, and if the deadline for
implementation has passed (Case 41/74 Van Duyn v Home Office). Provisions of Directives must
be incorporated into domestic law in any event, but if they have not, or have not been
incorporated properly, individuals may rely directly on those directly effective provisions before
domestic courts. Individuals can also bring actions for damages against the authorities for failing
to implement the provisions of a Directive that have direct effect (also known as Francovich
claims