Legal provisions of COM(2023)755 - Minimum rules to prevent and counter the facilitation of unauthorised entry, transit and stay in the Union - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2023)755 - Minimum rules to prevent and counter the facilitation of unauthorised entry, transit and stay in the Union. |
|---|---|
| document | COM(2023)755 |
| date | November 28, 2023 |
Article 1
Subject matter
This Directive establishes minimum rules concerning the definition of criminal offences and sanctions in the area of facilitation of unauthorised entry, transit and stay of third-country nationals, as well as measures to prevent and counter the commission of such criminal offences.
Article 2
Definitions
For the purposes of this Directive, the following definitions apply:
1. ‘third-country national’ means any person who is not a citizen of the Union within the meaning of Article 20(1) of the Treaty on the Functioning of the European Union and who is not a person enjoying the right of free movement under Union law as defined in Article 2, point 5, of Regulation (EU) 2016/399 of the European Parliament and of the Council19;
2. ‘unaccompanied minor’ means a third-country national below the age of 18 years who arrives on the territory of the Member States unaccompanied by an adult responsible for him or her whether by law or by the practice of the Member State concerned, and for as long as he or she is not effectively taken into the care of such a person, including a minor who is left unaccompanied after he or she has entered the territory of the Member States;
3. ‘legal person’ means any legal entity having such status under the applicable national law, except for States or public bodies exercising State authority and for public international organisations.
Article 3
Criminal offences
1. Member States shall ensure that intentionally assisting a third-country national to enter, or transit across, or stay within the territory of any Member State in breach of relevant Union law or the laws of the Member State concerned on the entry, transit and stay of third-country nationals constitutes a criminal offence where:
a) the person who carries out the conduct requests, receives or accepts, directly or indirectly, a financial or material benefit, or a promise thereof, or carries out the conduct in order to obtain such a benefit; or
b) there is a high likelihood of causing serious harm to a person.
2. Member States shall ensure that publicly instigating third-country nationals to enter, or transit across, or stay within the territory of any Member State in breach of relevant Union law or the laws of the Member State concerned on the entry, transit and stay of third-country nationals constitutes a criminal offence.
Article 4
Aggravated criminal offences
Member States shall ensure that the conduct referred to in Article 3 constitutes an aggravated criminal offence where:
(a) the criminal offence was committed within the framework of a criminal organisation within the meaning of Council Framework Decision 2008/841/JHA20;
(b) the criminal offence deliberately or by gross negligence caused serious harm to, or endangered the life of, the third-country nationals who were subject to the criminal offence;
(c) the criminal offence was committed by use of serious violence;
(d) the third-country nationals who were subject to the criminal offence were particularly vulnerable, including unaccompanied minors;
(e) the criminal offence caused the death of third-country nationals who were subject to the criminal offence.
Article 5
Incitement, aiding and abetting, and attempt
Member States shall ensure that inciting, aiding and abetting and attempting to commit any of the criminal offences referred to in Article 3(1) and Article 4 are punishable as criminal offences.
Article 6
Penalties for natural persons
1. Member States shall take the necessary measures to ensure that the criminal offences referred to in Articles 3, 4 and 5 are punishable by effective, proportionate and dissuasive criminal penalties.
2. Member States shall take the necessary measures to ensure that the criminal offences referred to in Article 3 are punishable by a maximum term of imprisonment of at least three years.
3. Member States shall take the necessary measures to ensure that the criminal offences referred to in Article 4, points (a) to (d) are punishable by a maximum term of imprisonment of at least ten years.
4. Member States shall take the necessary measures to ensure that the criminal offences referred to in Article 4 point (e), including attempts to commit the criminal offence referred to in that provision, are punishable by a maximum term of imprisonment of at least fifteen years.
5. In addition to criminal penalties imposed in accordance with paragraphs 1 to 4, Member States shall take the necessary measures to ensure that natural persons that have been convicted of committing one of the criminal offences referred to in Articles 3, 4 and 5 may be subject to criminal or non-criminal sanctions or measures imposed by a competent authority, including:
(a) withdrawal of permits or authorisations to pursue activities which have resulted in committing the criminal offence, or prohibition on practising directly or through an intermediary the occupational activity in the exercise of which the criminal offence was committed;
(b) return after the enforcement of the penalty in a Member State, or to serve the penalty imposed, or part of it, in the third country of return, without prejudice to more favourable provisions that may be applicable by virtue of Union or national law;
(c) prohibition to enter and stay on the territory of the Member States for an appropriate period of maximum 10 years, without prejudice to more favourable provisions that may be applicable by virtue of Union or national law;
(d) exclusions from access to public funding, including tender procedures, grants and concessions;
(e) fines;
(f) freezing and confiscation of the proceeds derived from, and instrumentalities used for, the commission of the offence, in accordance with Directive 2014/42/EU of the European Parliament and of the Council21.
Article 7
Liability of legal persons
1. Member States shall take the necessary measures to ensure that legal persons can be held liable for the criminal offences referred to in Articles 3, 4 and 5 committed for their benefit by any person, acting either individually or as part of an organ of the legal person, who has 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;
(c) an authority to exercise control within the legal person.
2. Member States shall also take the necessary measures to ensure that a legal person can be held liable where the lack of supervision or control by a person referred to in paragraph 1 has made possible the commission of the criminal offences referred to in Articles 3, 4 and 5 for the benefit of that legal person by a person under its authority.
3. Liability of a legal person under paragraphs 1 and 2 shall not exclude criminal proceedings against natural persons who are perpetrators of, inciters of, or accessories in the criminal offences referred to in Articles 3, 4 and 5.
Article 8
Sanctions for legal persons
1. Member States shall take the necessary measures to ensure that a legal person held liable pursuant to Article 7 is subject to effective, proportionate and dissuasive sanctions.
2. Member States shall take the necessary measures to ensure that sanctions or measures for legal persons liable pursuant to Article 7 for the criminal offences referred to in Articles 3, 4 and 5 may include:
(a) criminal or non-criminal fines;
(b) exclusion from entitlement to public benefits, aid or subsidies;
(c) temporary or permanent exclusion from access to public funding, including tender procedures, grants and concessions;
(d) temporary or permanent disqualification from the practice of commercial activities;
(e) placing under judicial supervision;
(f) judicial winding-up;
(g) temporary or permanent closure of establishments which have been used for committing the criminal offence;
(h) withdrawal of permits and authorisations to pursue activities which have resulted in committing the criminal offence;
(i) freezing and confiscation of the proceeds derived from, and instrumentalities used for, the commission of the offence, in accordance with Directive 2014/42/EU of the European Parliament and of the Council22.
3. The amount of criminal or non-criminal fines shall be proportionate to the seriousness of the conduct and to the individual, financial and other circumstances of the legal person concerned. Member States shall take the necessary measures to ensure that the maximum level of such fines is not less than:
(a) 3% of the total worldwide turnover of the legal person, either in the business year preceding the one in which the criminal offence was committed, or in the business year preceding the fining decision, for criminal offences referred to in Article 3;
(b) 5% of the total worldwide turnover of the legal person, either in the business year preceding the one in which the criminal offence was committed, or in the business year preceding the fining decision, for criminal offences referred to in Article 4, points (a) to (d);
(c) 6% of the total worldwide turnover of the legal person, either in the business year preceding the one in which the criminal offence was committed, or in the business year preceding the fining decision, for criminal offences referred to in Article 4, point (e).
4. When providing for criminal or non-criminal fines pursuant to paragraph 3, Member States may provide for rules applicable in cases where it is not possible to determine the amount of the fine on the basis of the total worldwide turnover of the legal person in the business year preceding the one in which the criminal offence was committed, or in the business year preceding the fining decision.
Article 9
Aggravating circumstances
Member States shall take the necessary measures to ensure that the following circumstances may be regarded as aggravating circumstances, in relation to the criminal offences referred to Articles 3, 4 and 5:
(a) the criminal offence was committed by a public official when performing his or her duties;
(b) the criminal offence entailed or resulted in the involvement of third-country nationals who were subject to the criminal offence in illegal employment as referred to in Directive 2009/52/EC of the European Parliament and of the Council23;
(c) the offender has previously been definitively convicted of criminal offences of the same nature under Articles 3, 4 or 5;
(d) the criminal offence entailed or resulted in the exploitation or instrumentalisation of a third-country national who was subject to the criminal offence;
(e) dispossessing the third-country nationals who are subject to the criminal offence of their identity or travel documents;
(f) the criminal offence was carried out while carrying a firearm.
Article 10
Mitigating circumstances
Member States shall take the necessary measures to ensure that, in relation to the criminal offences referred to in Articles 3, 4 and 5, it may be regarded as a mitigating circumstance that the offender provides the competent authorities with information which they would not otherwise been able to obtain, helping them to:
(a) identify or bring to justice other offenders; or
(b) find evidence.
Article 11
Limitation periods for criminal offences
1. Member States shall take the necessary measures to provide for a limitation period that enables the investigation, prosecution, trial and judicial decision of criminal offences referred to in Articles 3, 4 and 5 for a sufficient period of time after the commission of those criminal offences, in order for those criminal offences to be tackled effectively.
2. Member States shall take the necessary measures to enable the investigation, prosecution, trial and judicial decision:
(a) of criminal offences referred to in Article 3, for a period of at least seven years from the time when the criminal offence was committed,
(b) of criminal offences referred to in Article 4, points (a) to (d) for a period of at least ten years from the time when the criminal offence was committed;
(c) of criminal offences referred to in Article 4, point (e), including attempts to commit the offence referred to in Article 4, point (e), for a period of at least fifteen years from the time when the criminal offence was committed.
3. Member States shall take the necessary measures to enable the enforcement of:
(a) a penalty of imprisonment in the case of a criminal offence, imposed following a final conviction for a criminal offence referred to in Article 3, for at least seven years from the date of the final conviction;
(b) a penalty of imprisonment in the case of a criminal offence, imposed following a final conviction for a criminal offence referred to in Article 4, points (a) to (d), for at least ten years from the date of the final conviction;
(c) a penalty of imprisonment in the case of a criminal offence, imposed following a final conviction for a criminal offence referred to in Article 4, point (e), including attempts to commit the criminal offence referred to in Article 4, point (e), for at least fifteen years from the date of the final conviction.
4. By way of derogation from paragraphs 2 and 3, Member States may establish a shorter limitation period, provided that the period may be interrupted or suspended in the event of specified acts. This period shall not be shorter than:
(a) five years for the criminal offences referred to in Article 3;
(b) eight years for the criminal offences referred to in Article 4, points (a) to (d);
(c) ten years for the criminal offences referred to in Article 4, point (e), including attempts to commit the criminal offence referred to in Article 4, point (e).
Article 12
Jurisdiction
1. Each Member State shall establish its jurisdiction over a criminal offence referred to in Articles 3, 4 and 5 where the criminal offence:
(a) is committed in whole or in part in its territory;
(b) is committed by one of its nationals or a third-country nationals who is a habitual resident in its territory;
(c) is committed for the benefit of a legal person
(i) established in its territory;
(ii) in respect of any business done in whole or in part in its territory;
(d) is committed on board of a ship or an aircraft registered in it or flying its flag;
(e) results in the entry, transit or stay in the territory of that Member State of third-country nationals who were subject to the criminal offence.
2. Member States shall establish jurisdiction over attempts to commit a criminal offence referred to in Article 4 point (e), where the conduct would have constituted a criminal offence over which jurisdiction would have been established pursuant to paragraph 1.
3. For the prosecution of the criminal offences referred to in Articles 3, 4 and 5 committed outside the territory of a Member State, each Member State shall take the necessary measures to ensure that its jurisdiction is not subject to either of the following conditions:
(a) the acts are a criminal offence at the place where they were carried out;
(b) the prosecution can be initiated only following a transmission of information from the State of the place where the criminal offence was committed.
4. Where a criminal offence referred to in Articles 3, 4 and 5 falls within the jurisdiction of more than one Member State, these Member States shall cooperate to determine which Member State is to conduct criminal proceedings. The matter shall, where appropriate and in accordance with Article 12 of Framework Decision 2009/948/JHA, be referred to Eurojust.
Article 13
Prevention
1. Member States shall take appropriate action, such as information and awareness-raising campaigns, and research and education programmes, aimed at raising public awareness and reducing the commission of the criminal offences referred to in Articles 3, 4 and 5.
2. Where appropriate, Member States shall take the necessary measures to carry out the activities referred to in paragraph 1 in cooperation with other Member States, relevant Union agencies and third countries.
Article 14
Resources
Member States shall ensure that national authorities competent for the detection, investigation, prosecution or adjudication of the criminal offences referred to Articles 3, 4 and 5 have a sufficient number of qualified staff and sufficient financial, technical and technological resources necessary for the effective performance of their functions related to the implementation of this Directive.
Article 15
Training
1. Member States shall take the necessary measures to ensure adequate resources for and the provision of specialised training at regular intervals for the members of the law enforcement, the judiciary and the staff of authorities tasked with criminal investigations and proceedings of criminal offences referred to in Articles 3, 4 and 5.
2. Without prejudice to judicial independence, Member States shall take the necessary measures to ensure that specialised regular training is provided to judges, prosecutors, law enforcement and judicial staff and competent authorities’ staff involved in criminal proceedings and investigations with respect to the objectives of this Directive.
Article 16
Investigative tools
Member States shall take the necessary measures to ensure that effective and proportionate investigative tools are available for investigating or prosecuting criminal offences referred to in Articles 3, 4 and 5. Where appropriate, these tools shall include special investigative tools, such as those which are used in countering organised crime or other serious crime cases.
Article 17
Data collection and statistics
1. Member States shall collect statistical data disaggregated by the type of criminal offence referred to in Articles 3, 4 and 5.
2. The statistical data referred to in paragraph 1 shall include, at least, the following:
(a) the number of third-country nationals who were subject to the criminal offence, disaggregated by citizenship, sex and age (child/adult);
(b) the average length of the criminal investigation of cases;
(c) the number of natural persons prosecuted for criminal offences referred to in this Directive, disaggregated by sex and citizenship;
(d) the number of legal persons prosecuted for criminal offences referred to in this Directive, disaggregated by place of establishment;
(e) the number of decisions of the prosecution services, disaggregated by type of decision (to prosecute or not to prosecute);
(f) the number of final court decisions, disaggregated by type of decision (conviction, acquittal, dismissal on the substance or not, and including non-trial resolutions);
(g) the number of natural persons convicted of criminal offences referred to in this Directive, disaggregated by sex and citizenship;
(h) the number of natural persons subjected to penalties disaggregated by the type and level of penalty (imprisonment, fines, others) sex and citizenship;
(i) the number of legal persons convicted for criminal offences referred to in this Directive and sanctioned;
(j) the number of legal persons sanctioned disaggregated by place of establishment and type of sanction (fines, others);
(k) the average length of courts proceedings of cases in first instance, second instance and cassation.
3. Member States shall, on an annual basis and by 1 July each year, publish, in a machine-readable and disaggregated format, the statistical data referred to in paragraph 2 for the previous year and transmit it to the Commission.
Article 18
Replacement of Directive 2002/90/EC and Framework Decision 2002/946/JHA
1. Directive 2002/90/EC and Framework Decision 2002/946 JHA are replaced with regard to the Member States bound by this Directive, without prejudice to the obligations of those Member States with regard to the date for transposition of those instruments into national law.
2. With regard to the Member States bound by this Directive, references to Directive 2002/90/EC and Framework Decision 2002/946 JHA shall be construed as references to this Directive.
Article 19
Transposition
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by [one year after the entry into force of this Directive] at the latest. They shall forthwith communicate to the Commission the text of those provisions.
2. When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
3. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
Article 20
Entry into force
This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
Article 21
Addressees
This Directive is addressed to the Member States in accordance with the Treaties.