Flexible Implementation and the EU Sexual Abuse Directive

This report concerns the Directive on combating the sexual abuse and sexual exploitation of children and child pornography (SAD). It assesses the room for flexible implementation it provides and the way in which EU Member States have made use of this. The sample of Member States includes Czech Republic, Germany, Ireland and the Netherlands. The Directive includes various ways to allow for flexible implementation. The directive establishes thresholds for the maximum terms of imprisonment that the Member States should include in their laws (minimum harmonization). The directive equally contains provisions with elaboration discretion for the Member States, allowing them to further flesh out the content of these provisions in national law. This is especially the case with regard to the provisions on prevention and protection of victims. The directive further contains open-worded and non-defined terms which also allow for differentiated implementation. Our analysis demonstrates that implementation legislation varies quite substantially across the Member States. Frequently, the national implementation strategy has been informed by the wish not to unnecessarily change existing laws. From an input legitimacy perspective this may be criticised, but also be understood from the particular nature of criminal law and legislation. This report has not identified major implementation problems, but especially the open worded provisions may create legal uncertainties.