Member States agree a position on a proposed directive which lays down minimum rules to prevent and counter migrant smuggling
During the Justice and Home Affairs Council on 13 December 2024, Member States agreed on a proposal aimed at bringing their criminal law closer together on issues such as the definition and sanctioning of migrant smuggling. The text will now be used by the Council in “trilogue” negotiations with the European Parliament.
On 28 November 2023, the European Commission proposed new legislation to prevent and fight migrant smuggling. The proposal for a Directive aimed to replace Council Directive 2002/90/EC and Council Framework Decision 2002/946/JHA, which constitute the Union's legal framework to counter the facilitation of unauthorised entry, transit and stay of third-country nationals.
On 13 December 2024, the Council of the European Union agreed its position on the new proposal. The text, which is an instrument of minimum harmonization, inter alia, clarifies:
- What should at least constitute a criminal offence: Member States must ensure that in their national law, intentionally assisting a third-country national to enter, transit across or stay within the territory of any of the European Union Member States in exchange for financial or material benefit constitutes a criminal offence.
- What penalties should at least be applied to natural persons: EU countries must take action so that the offence of migrant smuggling results in a maximum term of imprisonment of at least three years. The maximum penalty levels should extend to at least eight years when smugglers operate as part of a criminal organisation or when they use serious violence against migrants. If the offence causes the death of a migrant, the maximum prison term should be at least ten years.
- What penalties should at least be applied to legal persons: Member States shall ensure that the maximum level of fines is not less than either a percentage of the total worldwide turnover or a fixed amount, up to €40 million.
Several organisations deplore that the humanitarian clause be included in a recital. The purpose of the humanitarian clause is to specify that certain assistance to irregular migrants, notably assistance to close family members or support to provide basic human needs, may not qualify as the criminal offence of migrant smuggling. However, Member States are free to adopt or maintain legislation providing for a broader incrimination than what is set out in the text.
For further information, please read the press release from the Council of the EU and the analysis from Statewatch.