Explanatory Memorandum to COM(2023)755 - Minimum rules to prevent and counter the facilitation of unauthorised entry, transit and stay in the Union - Main contents
Please note
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. |
|---|---|
| source | COM(2023)755 |
| date | 28-11-2023 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
Migrant smuggling is a criminal activity that disrespects human life and strips people of their dignity in the pursuit of profit, violating fundamental rights as well as undermining the migration management objectives of the EU.
Fighting and preventing migrant smuggling is one of the priorities of the European Union and crucial to addressing irregular migration in a comprehensive way. Criminal networks take advantage of people’s despair and use land, sea, and air routes to facilitate irregular migration, putting people’s lives at risk and seeking in every way to maximise their profits.
In her State of the Union address on 13 September 2023, President von der Leyen called for strengthening of all the tools at disposal of the EU to effectively counter migrant smuggling, by updating the current, more than 20-year-old legislative framework. She also called for strengthening the governance on migrant smuggling and increasing the role of EU agencies, in particular of Europol. She also emphasised the need to work with partners to tackle this global challenge, and this is why the Commission is organising an International Conference, creating a Global Alliance with a Call to Action to fight migrant smuggling.
Migrant smuggling to and within the EU is reaching new heights, fuelled by increasing demand due to emerging and deepening crises, most notably economic recessions, environmental emergencies caused by climate change, as well as conflicts and demographic pressure in many third countries. Migrant smuggling drives the increase of irregular arrivals to the EU: in 2022, around 331 000 irregular entries were detected at the EU external borders, the highest level since 2016, representing a 66% increase compared to the previous year1. In 2023, until the end of September, approximately 281 000 irregular border crossings were detected at the external borders of the EU, representing an 18% increase compared to the same period in 2022. This coincides with an increase in the smuggling activities, evidenced by a new record with over 15 000 migrant smugglers reported by Member States to Frontex in 20222. Taking into account the increase in irregular arrivals in 2023 and the various worldwide crises in a range of countries of origin and transit, consistently high and potentially increased migratory flows to Europe3 and related smuggling criminal activities can be expected.
It is estimated that more than 90% of the irregular migrants who reach the EU make use of the services of smugglers4, mostly organised in criminal groups. Moreover, smuggling networks make substantial profits from their criminal activities, with estimates ranging between EUR 4.7 – 6 billion worldwide annually5. Providing a strong and firm response to smugglers’ activities is therefore of primary importance to reducing irregular migration. It is estimated that the activities of ruthless migrant smugglers, especially at sea, resulted in a staggering death toll of over 28 000 people6 since 2014.
Around half of the migrant smuggling networks are also involved in other crimes, such as trafficking in human beings, drugs and firearms smuggling, while also facilitating unauthorised movements within the EU. Law enforcement and judicial authorities are faced with multiple and constantly evolving challenges: the rapidly changing and adapting modi operandi of smugglers; the increased use of threats and violence vis-à-vis the migrants as well as law enforcement authorities7; the difficulties to locate and arrest smugglers who hide in countries outside the EU; the use of a broad variety of means of transport, including unseaworthy, less detectable vessels (such as fishing boats and makeshift metal boats), road vehicles in which migrants are dangerously concealed, as well as commercial and charter flights increasingly used to bring migrants to countries close to or bordering the EU, from where migrants then seek to irregularly enter the EU8; the use of digital tools at all stages of the process, with online advertising of smuggling services, routes and prices as well as for forging documents; the use of crypto-currencies, digital money or other unofficial forms of payment (e.g. hawala)9.
Tackling migrant smuggling is essential to dismantling organised crime networks that can cause human rights violations and death, and to countering the increase in irregular migration to the EU. A comprehensive and sustainable approach to migration requires a combination of robust and efficient actions complementing mutually beneficial partnerships with countries of origin and transit, addressing the root causes of migration and in particular irregular migration, and at the same time fighting organised crime including migrant smuggling and trafficking in human beings. The New Pact on Migration and Asylum10 puts preventing and countering migrant smuggling at the centre of its comprehensive approach to migration.
The existing EU legal and operational framework on migrant smuggling needs to be modernised and reinforced to enhance the tools at the disposal of the European Union to prevent and respond to this continuously evolving crime, including in the context of the legal obligations on the Union and its Member States under international law under the United Nations Protocol against the Smuggling of Migrants by Land, Sea and Air.
This proposal for a Directive is part of a set of measures that operationalise the call of President von der Leyen and aim to modernise and strengthen the existing legal framework and provide the Union with rules which are fit for purpose. It updates and modernises the existing EU criminal law rules of the “Facilitators Package”, composed of Directive 2002/90/EC establishing a common definition of the offence of facilitation of unauthorised entry, transit, and residence11, and Framework Decision 2002/946/JHA on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit, and residence12.
This proposal is accompanied by a Commission proposal for a Regulation13, which enhances police cooperation as well as the powers of Europol in the area of migrant smuggling and trafficking in human beings notably by codifying the establishment of the European Centre Against Migrant Smuggling within the Europol and reinforcing its related powers. The proposal enhances the strategic and operational tasks of Europol on fighting migrant smuggling to steer and support the Centre’s activities and to identify and implement operational priorities and actions. It establishes a governance framework, which includes Member States’ entities responsible for migrant smuggling, the Commission, and other EU agencies. It strengthens inter-agency cooperation with Frontex and Eurojust and reinforces cooperation between Europol and third countries.
This package is presented on the day of the International Conference launching a “Global Alliance to counter migrant smuggling”. With this Conference, the Commission is creating a framework for strong political cooperation with international partners to jointly counter migrant smuggling globally.
These three initiatives complement the existing initiatives in the area of countering migrant smuggling, implementing the renewed EU action plan against smuggling (2021-2025)14 by modernising the existing EU legal framework to sanction migrant smugglers acting on the migratory routes, and setting out a renewed legal, operational and international cooperation framework against migrant smuggling for the years to come.
Together, these proposals aim to modernise the legal framework to fight the smuggling of migrants, to ensure that we have the necessary legal and operational tools to respond to the new modus operandi of smugglers, as set out in the Commission work programme 2024 announced on 17 October 2023.
Objectives of the proposal
The current EU legal framework on facilitation of unauthorised entry, transit and residence in the EU was adopted in 2002 under provisions pre-dating the Treaty of Lisbon. The general objective of this proposal for a Directive is to bring about a modern EU criminal law instrument that clearly defines and effectively sanctions the offence of facilitation of unauthorised entry, transit and stay in the EU, in line with the provisions of Article 83 of the Treaty on the Functioning of the European Union and the United Nations Protocol against the Smuggling of Migrants by Land, Sea and Air.
Contents
- Ensuring an effective investigation, prosecution and sanctioning of organised criminal networks responsible for migrant smuggling
The 2017 REFIT evaluation of the current Facilitators Package, and the subsequent monitoring of its implementation, pointed to the challenges linked to a broad definition on what constitutes a crime of facilitation of unauthorised entry, transit and residence. Namely, it pointed to the fact that it has not been effective in creating clarity and legal certainty about the distinction between facilitation of irregular migration and humanitarian assistance, due to the broad definition of the offence and the absence of exemptions. This proposal brings clarity on which offences should be criminalised. These include facilitation conducted for financial or material benefit or the promise thereof; facilitation that is highly likely to cause serious harm to a person even though conducted without financial or material benefit; and in cases of public instigation of third-country nationals, for instance through the internet, to enter, transit across or stay irregularly in the European Union. The proposal also clarifies that the purpose of the Directive is not to criminalise third-country nationals for the fact of being smuggled, assistance provided to family members, or humanitarian assistance or the support of basic human needs provided to third-country nationals in compliance with legal obligations.
Furthermore, the refined definition also provides that the offence of facilitation can take place within the territory of any Member State, facilitating judicial cooperation between Member States.
- More harmonised penalties that take account of the seriousness of the offence
Since the adoption of the Facilitators Package in 2002, criminal networks involved in migrant smuggling have increasingly resorted to violence towards migrants and law enforcement authorities, endangering lives. The proposal introduces the definition of aggravated criminal offences (e.g., offence committed as part of an organised criminal group, causing serious harm or endangering life or health, causing death) to which there are corresponding higher level of criminal penalties. The minimum level of maximum penalties in the proposed Directive are higher than those provided for by the current Facilitators Package (which envisaged a maximum level of imprisonment of at least 8 years) and have been determined taking into account the overall regime of the penalties introduced by EU criminal law instruments. The main offence of facilitation would be punishable by a maximum level of imprisonment of at least 3 years, while aggravated offences (e.g. organised crime, use of serious violence) for at least 10 years and the most serious offences (causing death) 15 years.
- Improving the jurisdictional reach
The people who are organising and conducting migrant smuggling activities often reside outside the EU and are therefore outside the reach of the jurisdiction of the Member States. To increase the possibilities of sanctioning high-value targets who are organising smuggling activities and to avoid a situation where no State is able to exercise jurisdiction over serious and tragic smuggling cases happening for instance in international waters, the proposed Directive expands the jurisdiction of the Member States to cases in which the facilitation of unauthorised entry into the EU fails and third-country nationals lose their lives: this is, for instance, the case in which unseaworthy boats sink in international waters, therefore before reaching the territorial waters of a Member State or a third country. The proposed Directive also expands jurisdiction over offences committed on board of ships or aircrafts registered in a Member State or flying it flag, and offences committed by legal persons doing business but not necessarily established in the EU.
- Reinforcing Member States resources to tackle and prevent migrant smuggling
To ensure that Member States effectively counter migrant smuggling, the proposed Directive requires Member States to make sure that the relevant law enforcement and judicial authorities are adequately resourced, sufficiently trained and specialised to ensure effective prevention, investigation and prosecution of offenders. In addition, Member States should also work on the prevention of migrant smuggling, through information and awareness-raising campaigns, research and education programmes.
- Improving data collection and reporting
Lack of robust, comprehensive and comparable data on migrant smuggling offences and criminal justice responses at national and European level has been identified in the 2017 evaluation15 as a key element hindering the assessment of the effects of the Facilitators Package in the Member States; furthermore, it prevents national policy makers and practitioners from monitoring and measuring the effectiveness of their measures. To address this shortcoming and ensure better monitoring, the proposal requires Member States to collect and report statistical data on an annual basis. This would contribute to a better understanding of the nature and scale of migrant smuggling, the detection of cases and the responses of the criminal justice systems of the Member States, supporting evidence-based policy making.
• Consistency with existing policy provisions in the policy area
This proposal is consistent with the New Pact on Migration and Asylum, which provides for a strong European response to migrant smuggling inside and outside the EU as an essential part of the comprehensive approach to migration. It implements the renewed EU action plan against smuggling (2021-2025)16, by updating and modernising the existing EU legal framework to sanction migrant smugglers acting on the migratory routes. The proposal is consistent and coherent with the EU Action Plans presented by the Commission on the Central Mediterranean, the Eastern Mediterranean, the Western Mediterranean and Atlantic, and the Western Balkans routes, as well as with the Toolbox addressing the use of commercial means of transport to facilitate irregular migration to the EU17 and the proposal for a Regulation on measures against transport operators that facilitate or engage in trafficking in persons or smuggling of migrants in relation to illegal entry into the territory of the European Union18. It is also in line with commitments of comprehensive partnerships on migration undertaken at international level.
This proposal is also consistent with the UN Protocol Against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organised Crime to which the European Union is party. The UN Protocol includes financial or other material benefit as a constituent element of the crime and provides that third-country nationals are not to become liable to criminal prosecution under the Protocol for having been subject to the offence.
The proposal supports the objectives of the EU Security Union Strategy19, the EU strategies to tackle Organised Crime 2021-202520 and on Combating Trafficking in Human Beings 2021-202521, as well as the revised EU Maritime Security Strategy22.
The proposal is consistent with the Commission’s 2020 Guidance on the implementation of EU rules on definition and prevention of the facilitation of unauthorised entry, transit and residence23, which asserts that humanitarian assistance mandated by law (for example in the framework of search and rescue operations) cannot and must not be criminalised, that criminalisation of any non-state actors that carry out search and rescue operations at sea, complying with the relevant legal framework, amounts to a breach of international law and is therefore not permitted by EU law and that, where applicable, an assessment of whether an act falls within the concept of ‘humanitarian assistance’ – a concept that cannot be construed in a manner that would allow an act mandated by law to be criminalised – should be carried out on a case-by-case basis, taking into account all the relevant circumstances.
• Consistency with other Union policies
The proposal for a Directive is in line with the policy aims pursued by the Union, and in particular with:
- Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union and the Proposal for a Directive on asset recovery and confiscation24;
- Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union;
- Directive 2014/41/EU regarding the European Investigation Order in criminal matters;
- Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA;
- 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;
- Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities;
- Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Law Enforcement Cooperation (Europol);
- Regulation (EU) 2018/1727 of the European Parliament and of the Council of 14 November 2018 on the European Union Agency for Criminal Justice Cooperation (Eurojust), and replacing and repealing Council Decision 2002/187/JHA;
- Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for Digital Services and amending Directive 2000/31/EC (Digital Services Act);
- Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals;
- Council Framework Decision 2009/948/JHA on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings and the proposal for a Regulation on the transfer of proceedings in criminal matters25.
This proposal is without prejudice to Directive 2004/38/EC26 and the EU-UK Withdrawal Agreement27. The proposal does not in any respect amend Directive 2004/38/EC or the EU-UK Withdrawal Agreement.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
The legal basis for this proposal is Article 83(2) of the Treaty on the Functioning of the European Union (TFEU), which sets out the EU’s competence to establish minimum rules if the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures. The area of common immigration policy, notably the conditions of entry and residence, illegal immigration and unauthorised residence, and the management of the external borders of the EU, has already been subject to harmonisation by virtue of the Union acquis in the area of Title V TFEU on Freedom, Security and Justice, Chapter 2 policies on border checks, asylum and immigration, and it is essential to ensure its effective implementation through the approximation of criminal laws and regulations of the Member States.
• Subsidiarity
Migrant smuggling is a cross-border crime directly affecting the Union, its external borders and often more than one Member State at the time. Member States acting alone cannot successfully address this cross-border crime successfully. Further approximation in the definition of the offence, the levels of sanctions and the applicable preventive measures in the Member States can ensure more effective action in detecting, investigating and prosecuting migrant smuggling and preventing forms of “forum shopping” by criminals taking advantage of systems where penalties are less severe.
To increase the deterrent effect of the sanctions in the Union, the proposal introduces aggravated offences, to which there are corresponding higher penalties, as well as aggravating circumstances, for instance in case of recidivism, if the offence is committed by a public official or by a person carrying a firearm. At the moment, according to the information at the Commission’s disposal, maximum level of criminal penalties for facilitation of unauthorised entry and transit in the Member States range from up to one year in Belgium and Spain to up to 10 years in Bulgaria, Cyprus, Ireland and Slovenia. Criminal penalties for facilitation of residence in the Member States range from up to one year in Austria, Belgium, Czechia, Estonia and Spain to up to 15 years in Cyprus for facilitation of residence. Fifteen Member States1 since 2015 have found it relevant to amend their national legislation (amendments are currently pending in three Member States2) with the changes including stricter penalties3, criminalisation of smuggling4 attempt and the exemption of humanitarian assistance of unauthorised transit5.
In accordance with the principles of subsidiarity and proportionality as set out in Article 5(3) of the Treaty on European Union, the objectives of the proposal cannot be sufficiently achieved by Member States and can thus be better achieved at the Union level. Due to the transnational dimension of migrant smuggling, and considering already existing EU legislation, action at EU level is expected to be more effective and efficient and to bring a tangible added value compared to action taken by Member States individually. EU intervention would create added value by further approximating criminal law of Member States and contributing to ensuring a common playing field between Member States.
• Proportionality
In accordance with the principle of proportionality, as set out in Article 5 i of the Treaty on European Union, the proposed Directive is limited to what is necessary to reinforce the EU framework on preventing and countering migrant smuggling and does not go beyond what is necessary to achieve the policy objectives at stake.
In order to specifically address serious forms of migrant smuggling, for instance those that result in serious harm or loss of life, which are currently not explicitly mentioned in the Facilitators Package, the proposal for a Directive is introducing the definition of aggravated criminal offences, as well as a set of aggravating and mitigating circumstances, which ensure the proportionality of the criminal penalties, in line with the principle of proportionality of criminal penalties as enshrined in Article 49(3) of the Charter.
• Choice of the instrument
In accordance with Article 83(2) of the Treaty on the Functioning of the European Union, the approximation of criminal laws and regulations of the Member States that is essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, can only be achieved by means of a Directive of the European Parliament and the Council adopted in accordance with the ordinary legislative procedure.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Ex-post evaluations/fitness checks of existing legislation
An evaluation of the Facilitators Package was carried out in the framework of the Commission’s Regulatory Fitness and Performance Programme (REFIT) in 2017. It aimed at assessing whether the Facilitators Package was fit-for-purpose. To this effect, the effectiveness, efficiency, relevance, coherence and EU added value of the existing provisions were evaluated. The evaluation showed that all Member States transposed the Facilitators Package and amended their legislation accordingly. The adoption of the Facilitators Package clarified the distinction between the offences of migrant smuggling and trafficking in human beings and allowed for further approximation of the definition of the offence with all Member States introducing sanctions for the facilitation of unauthorised entry, transit and residence.
The evaluation findings pointed to a serious lack of reliable and comparable data on migrant smuggling offences and criminal justice responses at national and European level, affecting almost all evaluation criteria. Due to the limited availability of data, it is not possible to assess how and to what extent increases in detection and prosecution of facilitators, or the enhanced cooperation between Member States, are directly linked to the implementation of the Facilitators Package. Collecting and analysing reliable and timely submitted statistical data on crime and criminal justice is indispensable for developing evidence-based policy at EU level.
Available data and stakeholders' views highlighted both critical and satisfactory elements in relation to the effectiveness of the Facilitators Package in reaching its objectives. For example, while the deterrent effect of this legislation was questioned against the background of increasing migrant smuggling to the EU, the approximation of the penal framework was assessed more positively.
Differences were noted also across the different categories of stakeholders, who expressed diverse and sometimes contradicting views on different aspects of the Facilitators Package. Most of the individuals and organisations consulted were strongly in favour of a modification of the existing definition of the offence. Despite the fact that the current Article 1(2) of the Facilitation Directive leaves the choice to the Member States to exempt from criminal sanctions the facilitation of unauthorised entry and transit when it is conducted on humanitarian grounds, this provision was criticised for its optional character, entailing a lack of clarity and legal certainty. Concerns were raised by the representatives of civil society about the perceived risks of criminalisation of assistance provided by civil society organisations or individuals assisting and/or working with irregular migrants.
These perceptions and criticisms concerned both humanitarian assistance provided within the territory of a Member State as well as at the borders or on the high seas, despite the different legal frameworks that apply to such conducts. The analysis of the implementation of the Facilitators Package revealed the existence of varied approaches to what constitutes a crime across Member States: whereas in certain Member States the practice of the authorities is to focus on cases of facilitation when committed with a lucrative intent or by organised criminal groups, in others, due to the broad definition of the offence, people providing services to irregular migrants in the context of their professional activities or providing assistance for selfless reasons have also been prosecuted.
• Stakeholder consultations
The Commission had a series of targeted consultations with a wide range of stakeholders on the implementation of the Facilitators Package. These consultations included Member States law enforcement and judicial authorities, relevant EU Agencies (Eurojust, Europol, the European Border and Coast Guard Agency, the Fundamental Rights Agency) and civil society representatives who were consulted in the framework of the preparation of the evaluation of the Facilitators Package in 2017, in the preparation of the Commission Guidance on the implementation of EU rules on definition and prevention of the facilitation of unauthorised entry, transit and residence in 2020, in the preparation of the renewed EU action plan against smuggling (2021-2025) and in the course of 2023 as part of the monitoring and mapping of the implementation of the Facilitators Package in the Member States.
In general, stakeholders positively assessed the approximation of the criminal framework in the Member States. Divergent views were expressed by different categories of stakeholders on the definition of the offence and the optional character of exempting actions conducted on humanitarian grounds. Representatives of civil society organisations highlighted that a wide definition of the offence leads to a lack of clarity and legal certainty as well as to risks of criminalisation of humanitarian assistance by civil society organisations or individuals assisting and/or working with irregular migrants, whereas Member States did not refer to a need to narrow the definition of the offence or to introduce a mandatory exemption from criminalisation. However, due to the varied national approaches to the crime of facilitation that the effectiveness of common EU action, and in order to focus on offences committed with a lucrative intent in particular by organised criminal groups, it is necessary to clearly define the offence of facilitation. Consultation of Europol and Eurojust also pointed to the same approach because it would facilitate operational cooperation and response.
In the preparation of this proposal, the Commission consulted the Member States as well as Eurojust, Europol and the European Border and Coast Guard Agency on the main gaps in the EU legal and operational framework and on the possible response to those.
• Impact assessment
The proposal is exceptionally presented without an accompanying impact assessment. This proposal nevertheless builds on the evidence gathered through the REFIT evaluation of the Facilitators Package conducted in 2017, the public consultation on the renewed EU action plan against migrant smuggling (2021-2025), the information and evidence provided by Europol, Eurojust and Frontex, as well as on the engagement with the Member States and civil society stakeholders in the framework of monitoring the implementation of the current legal framework. The information and evidence gathered from these consultations pointed to shortcomings concerning a serious lack of reliable and comparable data on migrant smuggling offences and criminal justice responses at national and European level, the need to further align the definition of the offence and to more clearly define the criminal offence under EU legislation, in particular with regard to the element of financial gain, the optional character of the exemption from criminal sanctions of conduct aimed at providing humanitarian assistance, the perceived risks of criminalisation and the deterrent effect of the existing legislation.
• Regulatory fitness and simplification
In compliance with the Commission’s Regulatory Fitness and Performance Programme (REFIT), all initiatives aimed at revising existing EU legislation should seek to simplify and deliver stated policy objectives more efficiently, i.e. by reducing unnecessary regulatory costs and the administrative burden on Member States. The proposed Directive aims at improving the Member States’ capability to counter migrant smuggling efficiently, notably in relation to threats and trends that have emerged and evolved over the past two decades since the entry into force of the Facilitators Package.
The proposal will approximate the legal landscape addressing the criminalisation and sanctioning of migrant smuggling across the Member States. The new rules are expected to establish more legal certainty regarding criminalised conducts and to adapt criminal penalties to the seriousness of the offences.
• Fundamental rights
This proposal respects the fundamental rights and observes the principles recognised by Articles 2 and 6 of the Treaty on European Union and enshrined in the Charter of Fundamental Rights of the European Union (‘Charter’).
Several fundamental rights and freedoms enshrined in the Charter are relevant in the context of countering migrant smuggling. These include the rights to respect for human dignity (Article 1), the right to life and physical integrity (Articles 2 and 3), the prohibition of torture and inhuman or degrading treatment or punishment (Article 4), the right to personal liberty (Article 6 of), the respect for private and family life (Article 7), the right to protection of personal data (Article 8), the right to property (Article 17), the right to asylum (Article 18), the rights of the child (Article 24), the right to an effective remedy and to a fair trial (Article 47), the presumption of innocence and right of defence (Article 48), the principles of legality and proportionality of criminal offences and penalties (Article 49), and the right not to be tried or punished twice in criminal proceedings for the same offence (Article 50).
This proposal for a Directive, through the inclusion of aggravated criminal offences, aggravating and mitigating circumstances, the regime of sanctions on legal persons and the requirement of preventive measures, would increase the effectiveness of tackling the crime of migrant smuggling and ensuring a proportionate response. This also increases the protection of all relevant fundamental rights of the third-country nationals concerned.
The provisions introducing new offences or sanctions or amending the definition of the crime were thoroughly analysed in the light of the right to an effective remedy and to a fair trial, the presumption of innocence and the right of defence, the principles of legality and proportionality of criminal offences and penalties, and the right not to be tried or punished twice in criminal proceedings for the same criminal offence. They were also analysed from the perspective of the respect of the freedom of assembly and of association and the right to family life.
This Directive will have to be transposed into national law respecting fundamental rights. In particular, Member States should ensure that the imposition of penalties respects the principles of the Charter, including the privilege against self-incrimination, the right to remain silent and the prohibition of being tried or punished twice in criminal proceedings for the same offence. Member States should also ensure that the procedural rights of suspected or accused persons in criminal proceedings are respected, as enshrined in the six EU Procedural Rights Directives, i.e. Directives 2010/64/EU1, 2012/13/EU2, 2013/48/EU3, (EU) 2016/3434, (EU) 2016/8005 and (EU) 2016/19196 of the European Parliament and of the Council.
4. BUDGETARY IMPLICATIONS
This proposal has budgetary implications for the Union, notably additional human resources needed for the European Commission (4 FTEs) to ensure support to the Member States in the transposition and correct implementation of the legislative package that includes this Directive and the proposal for a Regulation on enhancing police cooperation in relation to the prevention, detection and investigation of migrant smuggling and trafficking in human beings, and on enhancing Europol’s support to preventing and combating such crimes.
The annex to the Legislative Financial Statement accompanying this proposal and the proposal for a Regulation further details and justifies these needs.
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
In accordance with this proposal for a Directive, Member States are required to bring into force the laws, regulations and administrative provisions necessary to comply with it by one year after its entry into force at the latest and to communicate to the Commission the text of those provisions. The corresponding national provisions need to explicitly refer to this Directive.
• Explanatory documents (for directives)
No explanatory documents on the transposition are considered necessary.
• Detailed explanation of the specific provisions of the proposal
Article 1 – Subject matter: this provision sets out the scope of the proposed Directive, notably that it establishes minimum rules concerning the definition of criminal offences and sanctions on the facilitation of unauthorised entry, transit and stay of third-country nationals in the Union, as well as measures to better prevent and counter it.
Article 2 – Definitions: this provision contains definitions of the main terms used in the Directive, namely ‘third-country national’, ‘unaccompanied minor’ and ‘legal person’.
Article 3 – Criminal offences: this provision defines that intentionally assisting a third-country national to enter, transit across or stay within the territory of any Member State constitutes a criminal offence when there is an actual or promised financial or material benefit, or where the offence is highly likely to cause serious harm to a person. Publicly instigating third-country nationals, for instance through the internet, to enter, transit or stay in the Union irregularly is also considered to be an offence. The proposal also highlights in recitals that the purpose of the Directive is not to criminalise third-country nationals for the fact of being smuggled. Moreover, the recitals also clarify that it is not the purpose of this Directive to criminalise, on the one hand, assistance provided to family members and, on the other hand, humanitarian assistance or the support of basic human needs provided to third-country nationals in compliance with legal obligations.
Article 4 – Aggravated criminal offences: this provision defines the criminal offences related to more serious conducts concerning the facilitation of unauthorised entry, transit and stay in the Union, e.g. where the offence is committed within the framework of a criminal organisation, causes serious harm to, or endangers the life of the third-country nationals concerned, is committed using serious violence, or the smuggled migrants are particularly vulnerable, including unaccompanied minors. Facilitation that causes the death of one or more third-country nationals is also an aggravated criminal offence.
Article 5 - Incitement, aiding and abetting, and attempt: this provision requires Member States to criminalise forms of aiding and abetting, inciting and attempting the offences referred to in this Directive.
Article 6 – Penalties for natural persons: this provision establishes minimum rules on the penalties for the offences and the aggravated offences defined in this Directive. Member States should ensure that these are punishable by effective, proportionate and dissuasive criminal penalties. The proposed level of penalties reflects the seriousness of the offences: the main criminal offence of facilitation should be punishable by a maximum term of imprisonment of at least three years; aggravated offences should be punishable by a maximum term of imprisonment of at least ten years; the most serious aggravated offences, notably those that cause death of third-country nationals, should be punishable by a maximum term of imprisonment of at least fifteen years. The proposed article also establishes the additional sanctions or measures that could be imposed to convicted natural persons.
Article 7 – Liability of legal persons: this provision contains obligations to ensure the liability of legal persons for offences referred to in this Directive where such offences have been committed for their benefit. The provision also provides that Member States ensure that legal persons can be held accountable for lack of supervision and control that has made possible the commission of a criminal offence for the benefit of the legal person. Moreover, the liability of the legal person should not exclude criminal proceedings against natural persons.
Article 8 – Sanctions for legal persons: this provision sets out the sanctions applicable to legal persons involved in the criminal offences covered by this proposal. Such sanctions must be proportionate to the seriousness of the offence. Imposed fines should range from 3% of the total worldwide turnover for the basic criminal offence, to 5% for aggravated offences, to 6% for the aggravated criminal offence causing death.
Article 9 – Aggravating circumstances: this provision sets out the aggravating circumstances to be considered by the judicial authorities when imposing sanctions in relation to the offences defined in this Directive.
Article 10 – Mitigating circumstances: this provision sets out the mitigating circumstances to be considered by the judicial authorities when imposing sanctions in relation to the offences defined in this Directive.
Article 11 – Limitation periods for criminal offences: this provision lays down the limitation periods to allow the competent authorities to investigate, prosecute and adjudicate the criminal offences covered by this proposal, as well as the execution of relevant sanctions, for a sufficient time. This proposal sets the minimum length of the limitation periods between seven (with a derogation to five) to fifteen years, depending on the seriousness of the offence.
Article 12 – Jurisdiction: this provision requires Member States to establish jurisdiction for the criminal offences defined in this proposal. Each Member State should establish its jurisdiction over offences committed partially or entirely in its territory, or committed by a national or habitual resident, or committed on a ship or aircraft registered in its territory, or for the benefit of a legal person established or operating on its territory. The provision also establishes that Member States should establish jurisdiction over attempts when it resulted in the death of the third-country nationals concerned.
Article 13 – Prevention: this provision requires Member States to take preventive actions to reduce the commission of the offences defined in this Directive, for instance through information and awareness raising campaigns and education programmes.
Article 14 – Resources: this provision aims at ensuring that national authorities which detect, investigate, prosecute and adjudicate on facilitation criminal offences have an adequate number of qualified staff and sufficient financial, technical and technological resources necessary to perform their tasks effectively.
Article 15 – Training: this provision requires Member States to provide specialised training for competent authorities and their staff and to ensure that there are adequate resources for this.
Article 16 – Investigative tools: this provision aims at ensuring that investigative tools which are provided for in national law for organised crime or other serious crime cases can also be used in cases of facilitation of irregular migration.
Article 17: Data collection and statistics: this provision addresses the need to systematically collect information on efforts to counter the facilitation of irregular migration and to provide statistical data on this crime for developing evidence-based policy at EU level. It requires Member States to collect, publish and send every year the relevant statistical data to the Commission.
Article 18: Replacement of Council Directive 2002/90/EC and Council Framework Decision 2002/946/JHA: this provision replaces the current provisions in the area of the criminalisation of facilitation of unauthorised entry, transit and stay in relation to Member States bound by this Directive.
Article 19 – Transposition: this provision sets out the conditions of transposition, notably that Member States have to transpose the Directive into the national legal order within one year after the entry into force.