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DRAFT REPORT (COM(2023)0755 – C90430/2023 – 2023/0439(COD))

On the 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

LIBE-PR-768109

Committee on Civil Liberties, Justice and Home Affairs · Rapporteur: Birgit Sippel

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This is the rapporteur's draft report on the Commission proposal for a directive laying down minimum rules to prevent and counter the facilitation of unauthorised entry, transit and stay in the Union, replacing Council Directive 2002/90/EC and Council Framework Decision 2002/946/JHA. The draft proposes amendments to clarify the criminal offence, add an exemption for humanitarian assistance, delete the concepts of high likelihood of serious harm and public instigation, and remove aggravated offences, addressing the additional elements through penalty levels and aggravating circumstances instead. It also proposes lower maximum penalties and limitation periods, narrower jurisdiction rules, and the deletion of return and entry-ban measures from the criminal law text. The draft adds rules on ne bis in idem, statistical data collection, training, investigative tools and awareness-raising campaigns in third countries.

Committee position. The rapporteur proposes to amend the Commission proposal to improve clarity and legal certainty, notably by exempting humanitarian assistance, deleting the concepts of high likelihood of serious harm and public instigation, removing aggravated offences, lowering penalties and limitation periods, and narrowing jurisdiction rules.

Key points

  1. The draft states that the directive should be applied in full compliance with the 1951 Refugee Convention, the principle of non-refoulement and fundamental rights, and should not prejudice protection for refugees and asylum seekers.
  2. It defines 'humanitarian assistance' as actions to save lives, alleviate suffering and maintain human dignity, governed by humanity, impartiality, neutrality and independence, and states that providing it is not a criminal offence.
  3. It limits the criminal offence to conduct carried out in order to obtain, directly or indirectly, a financial or material benefit, and deletes the 'high likelihood of causing serious harm' element and the offence of public instigation.
  4. It states that third-country nationals should not become liable for the sole fact of having been the object of the conduct.
  5. It deletes the separate category of aggravated criminal offences and addresses the additional elements through higher penalty levels and aggravating circumstances.
  6. It sets maximum terms of imprisonment of at least two years for the basic offence, five years for offences causing serious harm, endangering life, involving serious violence or vulnerable persons, and ten years for offences committed in a criminal organisation or causing death.
  7. It deletes return and re-entry ban measures from the list of penalties for natural persons, and deletes freezing and confiscation provisions as covered by other Union law.
  8. It sets maximum fines for legal persons of at least 3% of total worldwide turnover for offences under Article 3 and 5% for offences under Article 6(3) and (4).
  9. It deletes illegal employment as an aggravating circumstance and replaces carrying a firearm with cruel, inhuman or degrading treatment.
  10. It shortens limitation periods to at least three, five and ten years depending on the applicable maximum penalty, and allows a shorter period of not less than five years if it can be interrupted or suspended.
  11. It makes jurisdiction based on habitual residence, legal persons and entry or transit optional, and adds a rule that multiple jurisdictions must not infringe the principle of ne bis in idem.
  12. It requires Member States to run awareness campaigns in third countries, provide sufficient staff and resources, offer specialised training including to legal professionals, and ensure effective and proportionate investigative tools.

Who is affected

  • Member States, which must transpose the rules on offences, penalties, jurisdiction, limitation periods and data collection.
  • People and organisations providing humanitarian assistance, who would not be criminalised for such actions.
  • Third-country nationals who are the object of smuggling, who should not be criminalised for that fact.
  • Legal persons, which can be held liable and fined based on worldwide turnover.
  • National authorities, judges, prosecutors and law enforcement, which must receive training and resources.

Figures and deadlines

  • At least two years' maximum imprisonment for the basic offence.
  • At least five years' maximum imprisonment for offences causing serious harm, endangering life, involving serious violence or vulnerable persons.
  • At least ten years' maximum imprisonment for offences in a criminal organisation or causing death.
  • Fines of at least 3% of total worldwide turnover for offences under Article 3.
  • Fines of at least 5% of total worldwide turnover for offences under Article 6(3) and (4).
  • Limitation periods of at least three, five and ten years depending on the maximum penalty.
  • A shorter limitation period of not less than five years if it can be interrupted or suspended.
  • Member States must publish statistical data annually by 1 July.

Legal basis: Article 294(2) and Article 83(2) of the Treaty on the Functioning of the European Union.