Brussels, 10/04/2012 (Agence Europe) - A member state may impose criminal penalties for aiding illegal immigration when persons who have infiltrated EU territory, and who are nationals of non-member countries, hold visas fraudulently obtained but not yet annulled.
Such was the substance of the preliminary ruling delivered on Tuesday 10 April by the EU Court of Justice (Case C-83/12 PPU), in response to a question by the Federal Court of Justice, Germany. A Vietnamese national was prosecuted in Germany in criminal proceedings in which he was charged with facilitating illegal immigration by procuring, for his compatriots in exchange for payment, limited Schengen visas under false pretences such as tourism and seasonal work from consular authorities of other member states. The German court called on the Court of Justice to rule whether, in such circumstances, it is contrary to EU law for provisions of national law to make aiding and abetting illegal immigration punishable by criminal penalties when nationals of non-member countries who have infiltrated EU territory hold visas obtained by fraud that have not yet been annulled.
In its judgment, the Court points out that, although European visa legislation does not contain rules providing for criminal penalties to be imposed in the event of conditions being breached, the applicant is informed that any false statement will lead, among other things, to the annulment of the visa and may also render him liable to prosecution. European legislation makes it an obligation for member states to take the measures necessary to ensure that infringements in this field are punishable by effective penalties, in particular “prosecuting any person intentionally assisting a person who is not a national of a member state to enter unlawfully the territory of that member state”. However, member states must not act in such a way as to hinder the free moment of persons holding visas unless the visas have been duly and regularly annulled. Also, they must provide for and enforce effective, proportionate and dissuasive criminal penalties for persons committing such infringements, particularly “couriers”. Those obligations must be performed, giving the provisions of Union law their full effectiveness. Now, of its very nature, a prosecution - in which it may be necessary for the investigation to be secret or confidential and for urgent measures to be taken - will not always be able to satisfy a requirement of previous annulment of visas by the competent authorities. The Court concludes that member states may, in the case in hand, apply criminal penalties, without the visa having been previously annulled. (FG/transl.jl)