Reforming the EU ‘Facilitators’ Package’: The new Commission proposal in the light of the Kinshasa litigation

Posted on: 12 February 2024 by Professor Valsamis Mitsilegas in Blog

The Current EU Framework on the Facilitation of Unauthorised Entry

A key feature of the EU policy to prevent migrants from reaching the EU external border has been the criminalisation – and in essence the overcriminalisation- of facilitation of unauthorised entry, transit and stay. The EU criminal law framework dates back from over twenty years ago, in the third pillar, pre-Lisbon era. This framework is known as the EU ‘facilitators’ package’ and consists of a (then) first pillar Directive on the facilitation of unauthorised entry, transit and residence accompanied by a (then) third pillar Framework Decision on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence confirming that the conduct defined as facilitation in the Directive will be treated as a criminal offence by EU Member States. The criminalisation of facilitation is very broad. In terms of the facilitation of irregular entry or transit, criminal sanctions will be imposed on any person who intentionally assists a person who is not a national of a Member State to enter, or transit across, the territory of a Member State in breach of the laws of the State concerned on the entry or transit of aliens⁴.

EU law thus has introduced a much broader framework of criminalisation of facilitation of unauthorised entry in comparison with international law. The main international law instrument in the field, the smuggling Protocol to the 2000 United Nations Convention on Transnational Organised Crime (the Palermo Convention) frames human smuggling firmly within an organised crime context and defines smuggling of migrants as the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident⁶. Criminalisation of smuggling must be based on intentional conduct with the aim of obtaining a financial or other material benefit⁷. The requirement of obtaining a financial benefit is not included in the EU criminalisation framework, which leads to the potential criminalisation of humanitarian aid towards asylum seekers, including activities of search and rescue at sea. A ‘humanitarian exception’ to criminalisation is not mandatory in the facilitators’ package, but an optional clause was introduced according to which Member States may decide not to impose sanctions for facilitation of irregular entry and transit for cases where the aim of the behaviour is to provide humanitarian assistance to the person concerned⁸.

In reality, few EU Member States have introduced this humanitarian exception in national law implementing the facilitators’ package. The divergence of EU law from international law means that the EU has introduced in the facilitators package a paradigm of preventive criminalisation of such a breadth that it can cover any form of assistance to enter or transit the territory of an EU Member State in breach of what is essentially administrative law. Practice on the ground has resulted in the use of criminal law on facilitation of unauthorised entry by Member States to target civil society for humanitarian assistance, and even to target migrants themselves for their journeys. The challenges that the overcriminalisation of facilitation of unauthorised entry has been posing on fundamental rights have led to calls for the reform of the outdated facilitators package. Yet the Commission, in an evaluation conducted in 2017, declined to take up the opportunity to reform the facilitators’ package. The evaluation defended resolutely the status quo¹³. The outcome of the evaluation was not the adoption of new legally binding measures, but rather the adoption on nonbinding Guidelines.

The Kinshasa litigation

A game changer in the reform of EU criminal law on facilitation has appeared in the form of a reference for a preliminary ruling to the Court of Justice by the Tribunale di Bologna in Italy. In the Kinshasa reference, lodged on 21 July 2023, the referring Court has asked the CJEU whether the criminalisation of the facilitation of unauthorised entry in EU law and in national law even where the conduct is carried out on a non-profit-making basis, without providing, at the same time, an obligation on Member States to exclude from criminalisation conduct facilitating unauthorised entry aimed at providing humanitarian assistance is compatible with the Charter. The referring Court focuses on the principle of proportionality referred to in Article 52(1), read in conjunction with the right to personal liberty and the right to property referred to in Articles 6 and 17, as well as the rights to life and physical integrity referred to in Articles 2 and 3, the right to asylum referred to in Article 18 and respect for family life referred to in Article 7 of the Charter. The reference is welcome in stressing the potential adverse effect of the overcriminalisation of facilitation on a wide range of fundamental rights. One can add to the list of rights provided by the referring court the principles of legality and proportionality enshrined in Article 49 of the Charter, with legality being linked to the broader rule of law deficit of the facilitation package. It is submitted that the latter does not meet the requirement of legal certainty, in introducing a very broad and elliptical text to impose criminal offences and sanctions and by not providing legal certainty regarding the extent or existence of a humanitarian exception to criminalisation.

The facts in Kinshasa lay bare what I have called the shaky normative foundations and adverse effects of overcriminalisation of facilitation of unauthorised entry in EU and Italian law. They involve the prosecution of a Congolese woman arriving at the air border of Bologna for the facilitation of the unauthorised entry of her minor daughter and niece¹⁷. The referring court queries the compatibility of the national legislation, and the underlying EU law, which allow prosecution applies to those who have facilitated the unauthorised entry of a foreign national for humanitarian assistance purposes and even if the foreign national is in need, with the Charter. The referring court questions the reasonableness of such criminalisation and its compatibility with fundamental rights enshrined in the Charter, noting in particular that in its view the protection of those fundamental rights must be taken into account in the balancing exercise which must form the basis of the common immigration policy; and that in both the EU regulatory framework and the Italian legislation, there is a lack of proportionality in favour of the protection of the interest in controlling migration flows, which also results in an unnecessary sacrifice of fundamental rights¹⁸.

The preliminary reference in Kinshasa is a game changer in giving a clear opportunity to the CJEU to engage fully with the compatibility of the facilitators’ package with the Charter, and arguably with the rule of law more broadly. The CJEU will have a number of options if it finds shortcomings in EU law itself- from annulling the facilitators’ package in its entirety (following the example of the ruling on data retention) to ‘re-writing’ the package in conformity with the Charter (following the example of the ruling on the EU PNR Directive), in order to limit criminalisation and to inject legal certainty into EU law and its implementation. In addition, it is for the Court to further stress the requirement for national legislators and national courts to implement EU law in conformity with the Charter. However, the Kinshasa litigation is a game-changer in a different respect: it has arguably prompted the European Commission, faced with the prospect of this litigation in Luxembourg, to table- notwithstanding its recent stance to the contrary- a legislative proposal reforming the facilitators’ package. Four months after the recording of the Kinshasa reference, in November 2023, the Commission tabled a proposal for a Directive aimed to lay down minimum rules to prevent and counter the facilitation of unauthorised entry, transit and stay in the Union, which will replace the existing facilitators’ package.

The Commission proposal for a new facilitation Directive and its shortcomings

The proposal is a response to Ursula von der Leyen’s State of the Union address of September 2023 and aims to update and modernise the existing EU criminal law rules of the facilitators package²². Its legal basis of the proposal is Article 83(2) TFEU. The Directive will replace the facilitators package²³. It introduces the following criminal offences:
- 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 where 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 (Article 3(1)(a))²⁴
- 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 where there is a high likelihood of causing serious harm to a person (Article 3(1)(b)).²⁵
- 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 (Article 3(2)).²⁶

The Directive introduces a number of aggravated criminal offences including where: the criminal offence was committed within the framework of a criminal organisation; 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; the criminal offence was committed by use of serious violence; the third-country nationals who were subject to the criminal offence were particularly vulnerable, including unaccompanied minors; and the criminal offence caused the death of third-country nationals who were subject to it²⁷. The Directive further introduces, in Article 9, a series of aggravating circumstances, including notably the fact that the offence entailed or resulted in the involvement of third-country nationals who were subject to the criminal offence in illegal employment²⁸; the criminal offence entailed or resulted in the exploitation or instrumentalisation of a third-country national who was subject to the criminal offence²⁹; and dispossessing the third-country nationals who are subject to the criminal offence of their identity or travel documents³⁰. Mitigating circumstances consist of collaboration with state authorities including the offender providing the competent authorities with information which they would not otherwise been able to obtain, helping them to identify or bring to justice other offenders or find evidence³¹. The Directive introduces provisions on incitement, aiding and abetting and attempt³², limitation periods³³, and penalties for natural and legal persons³⁴. Penalties for natural persons notably include entry bans³⁵. The provision on jurisdiction notably extends jurisdiction³⁶ where the criminal offence results in the entry, transit or stay in the territory of a Member State of third-country nationals who were subject to the facilitation offence³⁷, wording that could be read as establishing extraterritorial jurisdiction for facilitation offences.

The Commission’s proposal to reform the EU criminal law framework on facilitation of unauthorised entry appears to be a response to the Kinshasa litigation which has highlighted the numerous fundamental rights challenges arising from the existing overcriminalisation paradigm inherent in the facilitators’ package. Moreover, the Preamble to the proposal appears to acknowledge the legality shortcomings of the current framework, stating that 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 behaviours³⁸. Yet the Commission proposal does not go far enough in addressing the fundamental rights and rule of law concerns arising from the current EU facilitators’ package in a number of respects:

- the focus of the new proposal remains predominantly preventive, with the aim remaining essentially to prevent access of migrants to EU territory and to prevent entry
- while the Commission refers on a number of occasions to the linkages between facilitation and organised crime, the aim of the proposal remains migration management- this is evidenced by the choice of legal basis, which is Article 83(2) TFEU (to enhance the effectiveness of the implementation of the EU policy of migration management), rather than Article 83(1) TFEU (to address major security threats including organised crime).
- Criminal law is being used to address what could be dealt with under administrative law, and criminalisation is framed from a perspective of breach of regulations: facilitation is defined as 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
- The disassociation between facilitation offences and organised crime is evident also when one examines the substance of criminalisation: the new Directive criminalises not only facilitation for financial gain, but also facilitation where there is a high likelihood of causing serious harm to a person
- It is notable that the Commission proposal does not include a humanitarian exception to the criminalisation of the facilitation of unauthorised entry. The Preamble states that third-country nationals should not become criminally liable for having been the subject to such criminal offences and that it is not the purpose of the 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. However, these remain preambular provisions and continuing with broad criminalisation of humanitarianism is not excluded by the Preamble which also states that the criminalisation elements of the proposal 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 (recital 7)
- The criminalisation of facilitation where there is a high likelihood of causing serious harm to a person risks maintaining the current paradigm of overcriminalisation and perpetuating the hostile environment against those who assist migrants, in particular through search and rescue operations.
- The definition of facilitation where there is a high likelihood of causing serious harm to a person does not meet the requirement of legal certainty; it is not clear how Member States will implement this provision which in essence may serve to perpetuate the criminalisation of humanitarianism resulting from the current facilitators’ package
- The potential use of the offence of the criminalisation of facilitation where there is a high likelihood of causing serious harm to a person to exacerbate the hostile environment against humanitarian assistance is also clear from the high level of penalties envisaged for this offence, including attempts to commit it- both are punishable by a maximum term of imprisonment of at least fifteen years (Article 6(4))
- Mitigating circumstances are strictly limited to cooperation with state authorities, maintaining thus a securitised emphasis to criminalisation and disregarding humanitarian motives

The shortcomings in the Commission proposal render the Kinshasa litigation of ongoing relevance. The CJEU will have the opportunity, at a time when the proposal will be negotiated by EU institutions, to address directly the fundamental rights and rule of law challenges posed by the current facilitators’ package and thus potentially have a decisive influence the development of new legislation in the field.

Footnotes

¹ The present analysis is based on V.Mitsilegas, ‘Reforming EU Criminal Law on the Facilitation of Unauthorised Entry: The new Commission proposal in the light of the Kinshasa litigation’ New Journal of European Criminal Law, 2024, issue 1, forthcoming.

⁴ Article 1(1)(a) of the facilitation Directive combined with Article 1(1) of the facilitation Framework Decision.

⁶ Article 3(3) of the Smuggling Protocol.
⁷ Article 6(1) of the Smuggling Protocol.
⁸ Article 1(2) of the facilitation Directive
¹³ Commission, supra note 7.
¹⁷ Kinshasa Reference- paras. 1-5.
¹⁸ Reference- para. 17.
²² Pp.1-2.
²³ Article 18.
²⁴ Article 3(1)(a).
²⁵ Article 3(1)(b).
²⁶ Article 3(2).
²⁷ Article 4.
²⁸ Article 9(b).
²⁹ Article 9(d).
³⁰ Article 9(e).
³¹ Article 10.
³² Article 5.
³³ Article 11.
³⁴ Articles 6 and 7 respectively.
³⁵ Article 6(5) (c) establishes a 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.
³⁶ Article 12.
³⁷ Article 12(e).
³⁸ Preamble, recital 6.