COM(2023) 755 Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL laying down minimum rules to prevent and counter the facilitation of unauthorised entry, transit and stay in the Union, and replacing Council Directive 2002/90/EC and Council Framework Decision 2002/946 JHA

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EUROPEAN COMMISSION

Brussels, 28.11.2023

COM(2023) 755 final

2023/0439 (COD)

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

laying down minimum rules to prevent and counter the facilitation of unauthorised

entry, transit and stay in the Union, and replacing Council Directive 2002/90/EC and

Council Framework Decision 2002/946 JHA

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EXPLANATORY MEMORANDUM

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.

1 Frontex, Risk Analyses for 2023/2024. 2 Frontex, Risk analyses for 2023/2024. 3 Frontex, Risk Analysis for 2023/2024. 4 Estimates by Europol. 5 United Nations Office on Drugs and Crime, Global study on smuggling of migrants, 2018. 6 International Organisation for Migration, Missing migrants project, available at:

https://missingmigrants.iom.int/region/mediterranean.

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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

7 Europol, Criminal Networks in Migrant Smuggling, Europol Spotlight, 2023. 8 Frontex, Risk Analyses for 2023/2024. 9 Europol (2023), Criminal Networks in Migrant Smuggling, Europol Spotlight. 10 COM(2020) 609 final. 11 OJ L 328, 5.12.2002, p. 17. 12 OJ L 328, 5.12.2002, p. 1. 13 COM(2023) 754 final.

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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.

This proposal for a Directive serves the following specific objectives:

– 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.

14 COM(2021) 591 final.

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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

15 SWD(2017) 117 final.

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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:

16 COM(2021) 591 final. 17 Available at: https://ec.europa.eu/commission/presscorner/detail/en/ip_23_3057. 18 COM(2021) 753 final. 19 COM(2020) 605 final. 20 COM(2021) 170 final. 21 COM(2021) 171 final. 22 Council Conclusions 14280/23 of 24 October 2023 on the Revised EU Maritime Security Strategy

(EUMSS) and its Action Plan. 23 OJ C 323, 1.10.2020, p. 1.

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• 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.

24 COM(2022) 245 final. 25 COM(2023) 185 final. 26 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of

citizens of the Union and their family members to move and reside freely within the territory of the

Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC,

68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and

93/96/EEC, OJ L 158, 30.4.2004, p. 77.

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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

States28 since 2015 have found it relevant to amend their national legislation (amendments are

currently pending in three Member States29) with the changes including stricter penalties30,

criminalisation of smuggling31 attempt and the exemption of humanitarian assistance of

unauthorised transit32.

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

27 Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the

European Union and the European Atomic Energy Community 2019/C 384 I/01, OJ C 384 I,

12.11.2019, p. 1. 28 Belgium, Bulgaria, Cyprus, Greece, France, Croatia, Hungary, Ireland, Italy, Malta, the Netherlands,

Poland, Portugal, Slovenia and Slovakia. 29 France, the Netherlands, Slovakia. 30 Cyprus, Italy, the Netherlands, Slovenia. 31 Belgium. 32 France.

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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(4) 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.

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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.

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• 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

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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/EU33, 2012/13/EU34, 2013/48/EU35, (EU)

2016/34336, (EU) 2016/80037 and (EU) 2016/191938 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.

33 Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to

interpretation and translation in criminal proceedings, OJ L 280, 26.10.2010, p. 1. 34 Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to

information in criminal proceedings, OJ L 142, 1.6.2012, p. 1. 35 Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of

access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right

to have a third party informed upon deprivation of liberty and to communicate with third persons and

with consular authorities while deprived of liberty, OJ L 294, 6.11.2013, p. 1. 36 Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the

strengthening of certain aspects of the presumption of innocence and of the right to be present at the

trial in criminal proceedings, OJ L 65, 11.3.2016, p. 1. 37 Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural

safeguards for children who are suspects or accused persons in criminal proceedings, OJ L 132,

21.5.2016, p. 1. 38 Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal

aid for suspects and accused persons in criminal proceedings and for requested persons in European

arrest warrant proceedings, OJ L 297 4.11.2016, p. 1.

EN 12 EN

• 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.

EN 13 EN

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.

EN 14 EN

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.

EN 15 EN

2023/0439 (COD)

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

laying down minimum rules to prevent and counter the facilitation of unauthorised

entry, transit and stay in the Union, and replacing Council Directive 2002/90/EC and

Council Framework Decision 2002/946 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 83(2) 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 Committee1,

Having regard to the opinion of the Committee of the Regions2,

Acting in accordance with the ordinary legislative procedure,

Whereas:

(1) The facilitation of unauthorised entry, transit and stay in the Union are criminal

activities that put human life in danger and disrespect the dignity of people for the

purpose of obtaining high profits, undermining fundamental rights. These criminal

activities contribute to irregular migration, undermining the migration management

objectives of the Union. The commission of such criminal activities is driven by

increasing demand and the high profits obtained by criminal organisations. Preventing

and countering those offences remains a priority for the Union.

(2) Directive 2002/90/EC3 and Council Framework Decision 2002/946/JHA4 (the

‘Facilitators’ Package’) constitute the Union legal framework to counter the

facilitation of unauthorised entry, transit and stay of third-country nationals. It

establishes a common definition of the offences of facilitation of unauthorised entry,

transit and residence, and sets up the penal framework for the sanctioning of such

offences. To address evolving trends, and to further enhance the effectiveness of the

Union framework to prevent and counter these offences, it is necessary to update the

existing legal framework.

(3) The European Council Conclusions of 9 February 2023 affirmed the need to reinforce

Union action to prevent irregular migration and loss of life, notably by intensifying

1 OJ C , , p. . 2 OJ C , , p. . 3 Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry,

transit and residence (OJ L 328, 5.12.2002, p. 17., ELI: http://data.europa.eu/eli/dir/2002/90/oj). 4 Council Framework Decision 2002/946/JHA of 28 November 2002 on the strengthening of the penal

framework to prevent the facilitation of unauthorised entry, transit and residence (OJ L 328, 5.12.2002,

p. 1., ELI: http://data.europa.eu/eli/dec_framw/2002/946/oj).

EN 16 EN

cooperation with countries of origin and transit, and by ensuring stronger cooperation

between Member States and with Europol, Frontex and Eurojust. The renewed Action

Plan against migrant smuggling (2021-2025) sets out the policy response to migrant

smuggling, as an essential part of the comprehensive approach to migration set out in

the New Pact on Migration and Asylum. It sets out actions in four priority areas:

reinforcing cooperation with partner countries and international organisations;

sanctioning migrant smugglers and preventing the exploitation of migrants;

reinforcing cooperation and supporting the work of law enforcement and judicial

authorities; and increasing the knowledge base.

(4) The facilitation of unauthorised entry, transit and stay is a transnational phenomenon,

and measures adopted at Union and national levels should recognise its international

dimension. Union and national actions should therefore take into account the

international commitments of the Union and its Member States, including in relation

to the Protocol Against the Smuggling of Migrants by Land, Sea and Air,

supplementing the United Nations Convention against Transnational Organized

Crime, the United Nations Convention on the Law of the Sea, the International

Convention for the Safety of Life at Sea, the International Convention on maritime

Search and Rescue, the United Nations Convention on the Rights of the Child, as well

as the work of the United Nations Office against Drugs and Crime.

(5) Taking account of the evolution of the activities aimed to facilitate unauthorised entry,

transit and stay in the Union, as well as the legal obligations of the Union and the

Member States under international law, the definition of the criminal offences should

be further approximated in all Member States so that it covers the relevant conducts

more comprehensively.

(6) In accordance with the principles of legality and proportionality of criminal law, and

in order to address criminal activities that put human life in danger and disrespect the

dignity of people for the purpose of obtaining profits, it is necessary to provide a

precise and detailed definition of the criminal offences that counter these criminal

behaviours. Assistance of unauthorised entry, transit or stay in the Union should

constitute a criminal offence when there is a link with an actual or a promised financial

or material benefit. This conduct should also be criminalised provided that this is

highly likely to cause serious harm to the third-country nationals who were subject to

the criminal offence or to any other person, even though there is no financial or

material benefit or no promise of such benefit. It is necessary to establish a criminal

offence in order to discourage the modus operandi of persons who publicly instigate,

for instance through the internet, third-country nationals to enter, transit or stay in the

Union without authorisation. Providing objective information or advice to third-

country nationals on the conditions for the legal entry and stay in the Union, and on

international protection, should not be understood as public instigation.

(7) It is appropriate to provide for criminal liability where there is a link to a financial or

material benefit, or where migrants are highly likely to be subjected to serious harm.

These elements will usually not be fulfilled when it comes to assistance among family

members or the provision of humanitarian assistance or the support of basic human

needs. Third-country nationals should not become criminally liable for having been

the subject to such criminal offences. Moreover, 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.

EN 17 EN

(8) The impact of facilitation of unauthorised entry, transit and stay extends beyond the

Member State of unauthorised entry. Minimum rules concerning the definition of the

criminal offences should encompass conducts taking place in the territory of any

Member State, to allow Member States other than those of unauthorised entry to act on

such offences, provided that the Member States concerned establish jurisdiction over

these offences.

(9) There is a need to distinguish between the criminal offence of facilitation of

unauthorised entry, transit and stay in the Union and the aggravated criminal offences

that create higher harm to individuals and to society. The levels of penalties should

reflect the higher social concern regarding more serious and harmful conducts,

therefore aggravated offences should be sanctioned by more severe criminal penalties.

(10) Member States should apply this Directive in accordance and in full compliance with

the 1951 Convention Relating to the Status of Refugees as amended by the Protocol of

New York of 1967, obligations related to access to international protection, in

particular the principle of non-refoulement, and fundamental rights.

(11) Penalties for the criminal offences should be effective, dissuasive and proportionate.

To this end, minimum levels for the maximum term of imprisonment should be set for

natural persons. Accessory measures are often effective and, therefore, should be also

available in criminal proceedings. Considering the possible risk to public policy and

public security that they may pose, third-country nationals who committed the

offences defined in this Directive should be subject to return in accordance with

Directive 2008/115/EC of the European Parliament and of the Council5 or in

accordance with national law where Member States have made use of Article 2(2),

point (b), of that Directive, either after having served the prison sentence in a Member

State or in view of serving the prison sentence, or part of it, in a third country, without

prejudice to more favourable provisions applicable by virtue of Union or national law;

furthermore, without prejudice to more favourable provisions applicable by virtue of

Union or national law, those third-country nationals should be prohibited to re-enter

the territory of the Member States for an appropriate period of time to be determined

on a case-by-case basis, and that can reach 10 years in the most serious cases. This

should not affect the discretion of judges or courts in criminal proceedings to impose

appropriate sanctions in the individual cases.

(12) The assessment of the seriousness of the offence should also extend to attempts to

committ the offence that do not result in unauthorised entry in the Union. Attempts

thatcause the death of one or more third-country nationals should be sanctioned with

more severe penalties than other types of attempts. Setting minimum rules on the

maximum level of penalties at Union level for such attempts is justified and

proportionate in view of the transnational dimension of the offence, and the fact that

an attempt to committ the offence resulting in the death of third-country nationals

bears the same gravity as a committed offence resulting in death.

(13) Where national law provides for it, legal persons should be held criminally liable for

the facilitation of unauthorised entry, transit and stay in the Union. Member States

whose national law does not provide for the criminal liability of legal persons should

ensure that their administrative sanctioning systems provide for effective, dissuasive

5 Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on

common standards and procedures in Member States for returning illegally staying third-country

nationals (OJ L 348, 24.12.2008, p. 98, ELI: http://data.europa.eu/eli/dir/2008/115/oj).

EN 18 EN

and proportionate sanction types and levels, as laid down in this Directive in order to

achieve its objectives. They should be accompanied by accessory measures. The

financial situation of legal persons should be considered to ensure the dissuasiveness

of the sanction imposed with criminal and non-criminal fines taking into account

worldwide turnover of the legal persons.

(14) Effectiveness of sanctions imposed in practice should be fostered through providing

for aggravating circumstances that reflect the severity of the criminal offence. Graver

circumstances should include situations conducive to other unlawful activities, such as

exploitation, including sexual exploitation, instrumentalisation, dispossession of

identity documents, and involvement in illegal employment.

(15) The approximation and effectiveness of sanction levels imposed in practice should

also be fostered with common mitigating circumstances that reflect the contribution

provided by natural or legal persons that perpetrated a criminal offence referred to in

this Directive through cooperation with the competent national authorities in the

investigation or detection of such offence.

(16) Member States should lay down rules concerning limitation periods in order to enable

them to counter the criminal offences referred to in this Directive effectively, without

prejudice to national rules that do not set limitation periods for investigation,

prosecution and enforcement.

(17) To counter the facilitation of unauthorised entry, transit and stay in the Union, it is of

outmost importance to ensure the effective seizure of the proceedings of the crime, as

well as of the instrumentalities that are used to commit the criminal offences,

including for instance boats, engines and other boat components and vehicles. For this

purpose, full use should be made of existing instruments on the freezing and

confiscation of proceeds and instrumentalities of crime, such as Directive 2014/42/EU

of the European Parliament and of the Council6.

(18) Considering the cross-border nature of the criminal offences referred to in this

Directive, the mobility of perpetrators of illegal conducts and the possibility of cross-

border investigations, it is necessary to lay down rules on the establishment of

jurisdiction by Member States in order to counter such conduct effectively. The

unauthorised transit or stay taking place in whole or in part in the territory of a

Member State should allow a Member State different from the Member State of first

unauthorised entry to establish jurisdiction. The gravity and the cross-border nature of

the offences referred to in this Directive require that jurisdiction be established not

only on natural persons who are nationals of the Member State concerned, but also on

third-country nationals habitually residing in its territory. Jurisdiction over legal

persons should be established when these are established in the Member State

concerned or in respect of any business carried out in whole or in part in its territory.

For the same reasons, it is necessary that a Member State establishes jurisdiction over

criminal offences committed on board of ships and aircrafts registered in the Member

State or flying its flag. Member States, including those other than that of first

unauthorised entry, should establish jurisdiction in relation to criminal offences

6 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 (OJ L 127,

29.4.2014, p. 39 ELI: http://data.europa.eu/eli/dir/2014/42/oj).

EN 19 EN

referred to in this Directive when this results in the entry, transit or stay of the third-

country nationals subject to the offence in the concerned Member State.

(19) Where assistance is provided for a third-country national to reach the territory of a

Member State, the concerned Member States may also be able to establish their

jurisdiction with regard to attempts, even if the third-country national does not enter

their territory. Member States should at least establish their jurisdiction with regard to

the attempt of an offence that caused the death of a third-country national..

(20) Where a criminal offence falls within jurisdiction of more than one Member State, the

Member States concerned should cooperate to determine which Member State is best

placed to prosecute. Where the competent authorities of the Member States concerned

decide, following cooperation or direct consultations under Council Framework

Decision 2009/948/JHA7, to centralise criminal proceedings in a single Member State

through the transfer of criminal proceedings, the Regulation (EU) …/… [proposed

Regulation on the transfer of proceedings in criminal matters]8 should be used for

such a transfer. For this purpose, the relevant criteria of Article 5 of that Regulation

should be duly taken into account. The priority and weight of such criteria should be

based on the facts and merits of each individual case.

(21) To counter the facilitation of unauthorised entry, transit and stay in the Union, both

criminal justice and preventive mechanisms should be used. The prevention of the

criminal offences referred to in this Directive should mitigate the need for criminal

justice response and should have wider benefits in crime reduction. Such measures

should aim at raising public awareness, and include information campaigns, research

and education programmes. These should be carried out in cooperation with other

Member States, relevant Union agencies and third countries.

(22) Lack of resources and enforcement powers for national authorities which detect,

investigate, prosecute or adjudicate the criminal offences referred to in this Directive

creates obstacles for the effective prevention and punishment thereof. In particular, a

shortage of resources may prevent authorities from taking action or limit their

enforcement actions, allowing offenders to escape liability or to receive punishment

that does not correspond to the gravity of the criminal offence. Minimum criteria

concerning resources and enforcement powers should therefore be established.

(23) The effective functioning of the enforcement chain depends on a range of specialist

skills. The complexity of the challenges posed by the facilitation of unauthorised

entry, transit and stay in the Union, and the nature of such criminal offences require a

multidisciplinary approach, a high level of legal knowledge, technical expertise and

financial support as well as a high level of training and specialisation within all

relevant competent authorities. Member States should provide training appropriate to

the function of those who detect, investigate, prosecute or adjudicate criminal offences

concerning the facilitation of unauthorised entry, transit and stay in the Union.

(24) To ensure successful enforcement, Member States should make available effective

investigative tools for the criminal offences referred to in this Directive, such as those

included in their national law for combating organised crime or other serious crimes,

including for instance the interception of communications, covert surveillance

7 Council Framework Decision 2009/948/JHA of 30 November 2009 on prevention and settlement of

conflicts of exercise of jurisdiction in criminal proceedings (OJ L 328, 15.12.2009, p. 42, ELI:

http://data.europa.eu/eli/dec_framw/2009/948/oj). 8 COM(2023) 185 final.

EN 20 EN

including electronic surveillance, monitoring of bank accounts and other financial

investigation tools. These tools should be applied in line with the principle of

proportionality and in full respect of the Charter of Fundamental Rights of the

European Union. In accordance with national law, the nature and gravity of the

criminal offences under investigation should justify the use of these investigative

tools. The right to the protection of personal data should be respected.

(25) Online content constituting or facilitating criminal offences referred to in this

Directive, notably providing assistance to or publicly instigating unauthorised entry,

transit and stay in the EU through the internet, will be subject to measures pursuant to

Regulation (EU) 2022/2065 of the European Parliament and of the Council9 as regards

illegal content.

(26) To effectively tackle the facilitation of unauthorised entry, transit and stay in the

Union, it is necessary that competent authorities in the Member States collect accurate,

consistent and comparable data on the scale of and trends in the criminal offences

referred to in this Directive, the efforts to combat them and their results. Member

States should collect and report to the Commission relevant statistical data on such

offences. The Commission should regularly assess and publish the results based on

data transmitted by the Member States. Member States should also regularly collect

and disseminate statistical data and information on the application of this Directive to

allow for the monitoring of its implementation. Statistical data and information should

be comparable between the Member States and collected on the basis of common

minimum standards.

(27) Since the objective of this Directive, namely to lay down minimum rules to prevent

and counter the facilitation of unauthorised entry, transit and stay in the Union, cannot

be sufficiently achieved by the Member States and can therefore, by reason of the

scale and effect of the action, 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.

(28) This Directive respects the fundamental rights and observes the principles recognised

by the Charter of Fundamental Rights of the European Union, in particular the respect

and protection of human dignity, the right to the integrity of the person, the prohibition

of torture and inhuman or degrading treatment or punishment, the right to liberty and

security, the rights of the child, the freedom of association, the right to an effective

remedy and to a fair trial, the principles of legality and proportionality of criminal

offences and penalties, and the prohibition of ne bis in idem.

(29) This Directive aims to amend and expand the provisions of Directive 2002/90/EC and

Framework Decision 2002/946/JHA. Since the amendments to be made are of

substantial nature, Directive 2002/90/EC and Framework Decision 2002/946/JHA

should, in the interests of clarity, be replaced in their entirety in relation to the

Member States bound by this Directive.

9 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) (OJ L

277, 27.10.2022, p. 1, ELI: http://data.europa.eu/eli/reg/2022/2065/oj).

EN 21 EN

(30) This Directive is without prejudice to the application of Directive 2004/38/EC of the

European Parliament and of the Council10 and the EU-UK Withdrawal Agreement11.

(31) Ireland is taking part in this Directive, in accordance with Article 5(1) of Protocol No

19 on the Schengen acquis integrated into the framework of the European Union,

annexed to the Treaty on European Union and to the Treaty on the Functioning of the

European Union, and Article 6(2) of Council Decision 2002/192/EC12.

(32) In accordance with Articles 1 and 2 of the Protocol 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. Given that this Directive builds upon the

Schengen acquis, Denmark should, in accordance with Article 4 of that Protocol,

decide within a period of six months after the Council has decided on this Directive

whether it will implement it in its national law.

(33) As regards Iceland and Norway, this Directive constitutes a development of the

provisions of the Schengen acquis within the meaning of the Agreement concluded by

the Council of the European Union and the Republic of Iceland and the Kingdom of

Norway concerning the latter’s association with the implementation, application and

development of the Schengen acquis13 which fall within the areas referred to in Article

1, point A of Council Decision 1999/437/EC14.

(34) As regards Switzerland, this Directive constitutes a development of the provisions of

the Schengen acquis within the meaning of the Agreement between the European

Union, the European Community and the Swiss Confederation on the Swiss

Confederation’s association with the implementation, application and development of

the Schengen acquis15 which fall within the areas referred to in Article 1, point A of

Decision 1999/437/EC read in conjunction with Article 3 of Council Decision

2008/146/EC16.

10 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of

citizens of the Union and their family members to move and reside freely within the territory of the

Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC,

68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and

93/96/EEC (OJ L 158, 30.4.2004, p. 77, ELI: http://data.europa.eu/eli/dir/2004/38/oj). 11 Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the

European Union and the European Atomic Energy Community 2019/C 384 I/01 (OJ C 384 I,

12.11.2019, p. 1, ELI: http://data.europa.eu/eli/treaty/withd_2019(3)/oj). 12 Council Decision 2002/192/EC of 28 February 2002 concerning Ireland’s request to take part in some

of the provisions of the Schengen acquis (OJ L 64, 7.3.2002, p. 20,

ELI: http://data.europa.eu/eli/dec/2002/192/oj). 13 OJ L 176, 10.7.1999, p. 36, ELI: http://data.europa.eu/eli/agree_internation/1999/439(1)/oj. 14 Council Decision 1999/437/EC of 17 May 1999 on certain arrangements for the application of the

Agreement concluded by the Council of the European Union and the Republic of Iceland and the

Kingdom of Norway concerning the association of those two States with the implementation,

application and development of the Schengen acquis (OJ L 176, 10.7.1999, p. 31,

ELI: http://data.europa.eu/eli/dec/1999/437/oj). 15 OJ L 53, 27.2.2008, p. 52. 16 Council Decision 2011/350/EU of 7 March 2011 on the conclusion, on behalf of the European Union,

of the Protocol between the European Union, the European Community, the Swiss Confederation and

the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement

between the European Union, the European Community and the Swiss Confederation on the Swiss

Confederation’s association with the implementation, application and development of the Schengen

acquis, relating to the abolition of checks at internal borders and movement of persons (OJ L 160,

18.6.2011, p. 19, ELI: http://data.europa.eu/eli/dec/2011/350/oj).

EN 22 EN

(35) As regards Liechtenstein, this Directive constitutes a development of the provisions of

the Schengen acquis within the meaning of the Protocol between the European Union,

the European Community, the Swiss Confederation and the Principality of

Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement

between the European Union, the European Community and the Swiss Confederation

on the Swiss Confederation’s association with the implementation, application and

development of the Schengen acquis17 which fall within the areas referred to in Article

1, point A of Decision 1999/437/EC read in conjunction with Article 3 of Council

Decision 2011/350/EU18.

(36) As regards Cyprus, Bulgaria and Romania, this Directive constitutes an act building

upon, or otherwise related to, the Schengen acquis within, respectively, the meaning of

Article 3(1) of the 2003 Act of Accession and Article 4(1) of the 2005 Act of

Accession,

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 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

17 OJ L 160, 18.6.2011, p. 21. 18 Council Decision 2011/350/EU of 7 March 2011 on the conclusion, on behalf of the European Union,

of the Protocol between the European Union, the European Community, the Swiss Confederation and

the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement

between the European Union, the European Community and the Swiss Confederation on the Swiss

Confederation’s association with the implementation, application and development of the Schengen

acquis, relating to the abolition of checks at internal borders and movement of persons, (OJ L 160,

18.6.2011, p. 19, ELI: http://data.europa.eu/eli/dec/2011/350/oj). 19 Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union

Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ L

077 23.3.2016, p. 1, ELI: http://data.europa.eu/eli/reg/2016/399/oj).

EN 23 EN

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.

20 Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime

(OJ L 300, 11.11.2008, p. 42, ELI: http://data.europa.eu/eli/dec_framw/2008/841/oj).

EN 24 EN

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;

EN 25 EN

(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;

21

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 (OJ L 127,

29.4.2014, p. 39 ELI: http://data.europa.eu/eli/dir/2014/42/oj).

EN 26 EN

(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;

22

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 (OJ L 127,

29.4.2014, p. 39 ELI: http://data.europa.eu/eli/dir/2014/42/oj). 23 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 (OJ L 168, 30.6.2009, p. 24, ELI: http://data.europa.eu/eli/dir/2009/52/oj).

EN 27 EN

(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

EN 28 EN

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.

EN 29 EN

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:

EN 30 EN

(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.

EN 31 EN

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.

Done at Brussels,

For the European Parliament For the Council

The President The President

10.01.2024

Inimsmugeldamise eest kohaldatavate karistuste direktiivi ettepanek COM(2023)755

Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL laying down minimum rules to prevent and counter

the facilitation of unauthorised entry, transit and stay in the Union, and replacing Council Directive 2002/90/EC and Council

Framework Decision 2002/946 JHA

Otsuse ettepanek koordinatsioonikogule

Kujundada seisukoht

Kaasvastutaja sisendi tähtpäev 26.01.2024

KOKi esitamise tähtpäev 14.02.2024

VV esitamise tähtpäev 22.02.2024

Seisukoha valitsusse toomise alus ja põhjendus

Algatuse reguleerimisala nõuab vastavalt Eesti Vabariigi põhiseadusele seaduse või Riigikogu otsuse vastuvõtmist, muutmist või kehtetuks tunnistamist (RKKTS § 152¹ lg 1 p 1);

Algatuse vastuvõtmisega kaasneks oluline majanduslik või sotsiaalne mõju (RKKTS § 152¹ lg 1 p 2);

Selgitus: Peavastutaja JM

Kaasvastutajad SiM, MKM, RaM, SoM

Sisukokkuvõte

Ettepanekuga kehtestatakse miinimumeeskirjad ebaseadusliku riiki sisenemise, transiidi ja ELis ebaseaduslikult viibimise hõlbustamise vältimiseks ja selle vastu võitlemiseks. Ebaseadusliku üle piiri toimetamise süütegu tuleks selgemalt määratleda kui tegevust, mis on ajendatud rahalisest või materiaalsest kasust või mis võib suure tõenäosusega põhjustada teisele isikule tõsist kahju. Kriminaliseeritakse ka EL-i loata sisenemise avalik õhutamine. See hõlmab rändajate ebaseadusliku üle piiri toimetamise reklaami digitaalsete vahendite ja sotsiaalmeedia kaudu.

Samuti kehtestatakse rikkumise raskusele vastavad ühtlustatud karistused. Raskendavatel asjaoludel toime pandud kuritegude eest, mis põhjustavad ühe või mitme inimese surma, tuleks karistada vähemalt 15-aastase

maksimaalse vangistusega (kehtivates EL-i õigusaktides on praegu ette nähtud kaheksa aastat).

Liikmesriikide kohtualluvus hakkaks kehtima näiteks ka rahvusvahelistes vetes asuvate laevade ja inimeste surma korral. Seda laiendatakse ka muudele juhtumitele, sealhulgas liikmesriikides registreeritud laevade või õhusõidukite pardal toime pandud kuritegudele ning EL-is tegutsevate juriidiliste isikute toime pandud kuritegudele. Kriminaliseerida ei tohi selliseid tegevusi nagu humanitaarabi valitsusväliste organisatsioonide poolt, seadusliku otsingu- ja päästekohustuse täitmine, pereliikmete poolt osutatav abi.

Liikmesriigid peaksid eraldama piisavalt ressursse oma riiklikele ametiasutustele, et tagada inimsmugeldajate tegevuse tõhus ennetamine, uurimine ja vastutusele võtmine. Samuti peaksid liikmesriigid tegema tööd inimsmugeldamise ennetamiseks teabe- ja teadlikkuse tõstmise kampaaniate, teadusuuringute ja haridusprogrammide kaudu.

Liikmesriikidelt nõutakse statistiliste andmete kogumist ja iga-aastast aruandlust.

Mõju ja sihtrühm

Mõju valdkonnad

Sotsiaalala: Demograafia ja rahvastiku areng, Inimeste õigused

Mõju sisserändele ja inimeste põhiõigustele on positiivne, kui tõhusama smugeldamisvastase võitluse ja rikkumiste ennetamisega õnnestub smugeldamist vähendada ja rännet paremini kontrollida. Smugeldamise mõju on liikmesriigiti väga erinev – nt on smugeldamise tõttu Vahemerel alates 2014. aastast uppunud või kadunuks jäänud üle 28000 inimese.

Siseturvalisus

Mõju siseturvalisuse valdkonnale on oluline. Rohkem kui 90% ebaseaduslikest sisserändajatest jõuavad ELi smugeldajate kaasabil. 2022.aastal registreeriti EL välispiiril u 330000 ebaseaduslikku piiriületust ja Frontexi andmetel tehti kindlaks üle 15000 inimsmugeldaja. Inimsmugeldamine on tulus: 2019.a teenisid smugeldajad ELi suunduvatel Vahemere rändeteedel üle 200 miljoni euro, keskmiselt 3000 eurot smugeldatud inimese kohta.

Kaasamine

Vajalik eelkõige JM ja SiM valitsemisala sisend (PPA, prokuratuur, advokatuur, kohtud). Ettevõtlussektori puhul on mõjutatud eelkõige transpordiettevõtted, sotsiaalmeediaettevõtted. Kaasata võiks ka inimõigusorganisatsioone ja õiguskantsleri bürood. RaM ja SoM puutumus väiksem (riigihanked ja

2

juriidiliste asutuste karistused, koostöö rahapesu andmebürooga ja tööinspektsiooniga jm)

3

    Resolutsiooni liik: Riigikantselei resolutsioon Viide: Justiitsministeerium /  / ; Riigikantselei /  / 2-5/24-00071

Resolutsiooni teema: Inimsmugeldamise eest kohaldatavate karistuste direktiivi ettepanek

Adressaat: Justiitsministeerium Ülesanne: Tulenevalt Riigikogu kodu- ja töökorra seaduse § 152` lg 1 p 2 ning Vabariigi Valitsuse reglemendi § 3 lg 4 palun valmistada ette Vabariigi Valitsuse seisukoha ja otsuse eelnõu järgneva algatuse kohta, kaasates seejuures olulisi huvigruppe ja osapooli: - Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL laying down minimum rules to prevent and counter the facilitation of unauthorised entry, transit and stay in the Union, and replacing Council Directive 2002/90/EC and Council Framework Decision 2002/946 JHA, COM(2023) 755.

EISi toimiku nr: 23-0495

Tähtaeg: 12.02.2024

Adressaat: Majandus- ja Kommunikatsiooniministeerium, Rahandusministeerium, Siseministeerium, Sotsiaalministeerium Ülesanne: Palun esitada oma sisend Justiitsministeeriumile seisukohtade kujundamiseks antud eelnõu kohta (eelnõude infosüsteemi (EIS) kaudu).

Tähtaeg: 26.01.2024

Lisainfo: Eelnõu on kavas arutada valitsuse 22.02.2024 istungil ja Vabariigi Valitsuse reglemendi § 6 lg 6 kohaselt sellele eelneval nädalal (14.02.2024) EL koordinatsioonikogus. Esialgsed materjalid EL koordinatsioonikoguks palume esitada hiljemalt 12.02.2024.

Kinnitaja: Katrin Juhandi, Euroopa Liidu asjade direktori asetäitja Kinnitamise kuupäev: 12.01.2024 Resolutsiooni koostaja: Elen Nurme [email protected], 693 5201