CELEX_52023PC0755_EN_TXT

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
EN EN
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.
EN 1 EN
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
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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
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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
17
Available at: https://ec.europa.eu/commission/presscorner/detail/en/ip_23_3057.
18
19
20
21
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
25
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 11 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 12 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 13 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 14 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 15 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 16 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 17 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 18 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
EN 19 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 20 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 21 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 22 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 23 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.
referred to in Article 3 are punishable by a maximum term of imprisonment of at
least three years.
referred to in Article 4, points (a) to (d) are punishable by a maximum term of
imprisonment of at least ten years.
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 24 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
EN 25 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
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
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
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 26 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 27 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 28 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 29 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 30 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
EN 31 EN

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EUROPEAN

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

1. CONTEXT OF THE PROPOSAL

3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

For the European Parliament For the Council

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