On Tuesday 28 November, the European Commission presented two new legislative initiatives to prevent and punish human trafficking and migrant smuggling, at a time when 2,600 people have already died in the Mediterranean in 2023 and the trafficking ‘business’ is worth between €4.7 and €6 billion a year worldwide.
As part of an international conference organised the same day in Brussels and the launch of a global alliance, the Commission presented a Directive ‘laying down minimum rules to prevent and counter the facilitation of unauthorised entry, transit and stay in the Union’ and a draft Regulation on the strengthening of police cooperation in preventing and detecting smuggling of migrants and human beings.
The aim is to modernise the 2002 legislative framework known as ‘Facilitators’ (of illegal entry). Five objectives are set out in the Directive.
Firstly, the aim is to prosecute networks more effectively, with a clearer definition of the smuggling offence to focus on activities motivated by a financial or material advantage or highly likely to cause serious harm to a person.
“The 2017 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”, the Commission explains in its Directive.
The proposal thus clarifies which offences should be made criminal offences. 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; - 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 specifies that the aim of the Directive is not to criminalise third-country nationals for having been smuggled, for assisting family members or for providing humanitarian assistance or meeting basic human needs to third country nationals in compliance with legal obligations.
The second objective covers harmonised penalties reflecting the seriousness of the offence: the main facilitation offence would be punishable by a maximum term of imprisonment of at least 3 years, aggravated offences - e.g. organised crime, use of violence - by at least 10 years and the most serious offences (causing the death of one or more persons) by 15 years.
Protected NGOs
Improving the scope of jurisdiction is the 3rd objective: the jurisdiction of Member States will also apply when ships sink in international waters and people die. Member States’ jurisdiction is also extended to other cases, including offences committed on board ships or aircraft registered in Member States and offences committed by legal persons carrying out activities in the EU.
Activities such as humanitarian assistance by NGOs, the fulfilment of a legal search and rescue obligation, assistance by family members and the migrants themselves will not be criminal offences.
Finally, the resources and capacities of the Member States need to be strengthened and the collection and communication of data improved.
The draft Regulation, for its part, aims to strengthen Europol’s role and inter-agency cooperation in the fight against the smuggling of migrants and trafficking in human beings, with a reinforced obligation on Member States to share information with Europol. Europol will also be able to deploy more officers on the ground to combat migrant smugglers, including in third countries.
The Commission also wants to increase Europol’s budget by €50 million and provide it with 50 more agents by 2027.
Links to proposals: https://aeur.eu/f/9t3 ; https://aeur.eu/f/9t4 (Original version in French by Solenn Paulic)