On Wednesday 27 November, the Member States gave a positive assessment of the Hungarian Presidency’s draft general approach to the directive aimed at stepping up the fight against migrant smuggling and smuggler networks.
But they will confirm this direction next week, on the basis of a slightly modified text, with certain details still to be worked out.
The dossier will then be forwarded to home affairs ministers meeting on 12 December. In November 2023 (see EUROPE 13302/11), the Commission proposed replacing two old texts from 2002 (the so-called ‘facilitation’ of migration package) with a regulation concerning Europol and a directive aimed at establishing minimum rules for more effective prosecution of smuggler networks, clarifying the definition of the offence of smuggling and harmonising penalties.
Although this directive primarily aimed to align the penalties applied for the crime of migrant smuggling and to bring them into line with other European texts, the most sensitive discussions concerned the definition of the crime of smuggling, with some delegations expressing concern about the treatment of NGOs helping migrants, not wishing to criminalise them.
The compromise approved on 27 November includes a ‘humanitarian clause’ in a recital specifying that the directive does not apply to the work of NGOs.
“The issue of the humanitarian clause refers to the idea that certain assistance to third country nationals to enter, transit or stay in the European Union – notably assistance to close family members or support to provide basic human needs – should not qualify as the criminal offence of migrant smuggling”, states the recital.
The Commission had also proposed inserting the clause in a recital, but some Member States had suggested moving the clause to the body of the directive to strengthen the language regarding NGO activity. The delegations’ positions also differed on the exact wording of the clause.
The compromise recalls in all cases that the directive is “an instrument of minimum harmonisation” and that “Member States are free to adopt or maintain legislation providing for a broader incrimination than what is set out in this Directive”.
Adjustments have also been made to penalties for legal persons to take account of the specific situation of States that do not, for example, determine “the amount of criminal or non-criminal fines for legal persons in proportion to the gravity of the offence committed by a natural person, but apply other criteria”.
With regard to penalties for natural persons, the latter text states that Member States shall take the necessary measures to ensure that criminal offences are punishable by terms of imprisonment ranging from 3 to 8 years, in particular for particularly serious offences, such as “seriously endangering the lives of third-country nationals who have been the victims of the offence or if the third-country national who was the subject of the criminal offence was particularly vulnerable, such as an unaccompanied minor”. A minimum prison sentence of 10 years is to be introduced for traffickers who cause the death of a migrant. (Original version in French by Solenn Paulic)