EU justice ministers meeting in Brussels on Friday 13 December approved a new European directive to prevent and combat migrant smuggling by harmonising penalties and the definition of these crimes (see EUROPE 13538/11).
The aim of this proposal is to approximate the criminal laws of the Member States on issues such as the definition and punishment of migrant smuggling. The EU Council commented in a press release that the position adopted today will serve as a basis for future negotiations with the European Parliament. Germany’s Birgit Sippel (S&D) is the designated rapporteur for this dossier.
According to the text adopted, Member States must ensure that, under their national law, intentionally assisting a third-country national to enter, transit through or stay in the territory of one of the European Union Member States in exchange for financial or material benefit constitutes a criminal offence, explains the EU Council.
And as far as penalties are concerned, EU countries must take steps to make the offence of migrant smuggling punishable by a maximum prison sentence of at least three years. The maximum sentences must be increased to at least eight years when the people smugglers act as part of a criminal organisation or when they use serious violence against migrants. If the offence results in a migrant’s death, the maximum prison sentence should be at least ten years. Member States can always decide to impose longer maximum sentences.
The text also provides for rules on the penalties applicable to legal entities: either a percentage of total worldwide turnover or a fixed amount of up to €40 million.
Humanitarian clause. The most sensitive issue, however, was the fate of NGOs and the humanitarian aid provided to migrants. The compromise was again criticised by some Member States at Friday’s public session, notably by Spain and Germany, because in their view, it does not sufficiently protect the activities of NGOs providing aid to migrants.
The majority of Member States accepted the European Commission’s initial proposal to insert a so-called humanitarian clause only in a recital and not in the body of the text. The purpose of this humanitarian clause is to clarify that certain forms of assistance to irregular migrants, in particular assistance to close family members or assistance to meet basic human needs, cannot be considered as criminal offences relating to migrant smuggling.
With this clause retained in the recitals, it will be up to the Member States to decide how to deal with this issue in their national legislation, explains the EU Council. The text also highlights the fact that Member States are free to adopt or maintain national legislation providing for stricter measures.
For Germany, while this text contributes to a more effective fight against people smugglers and can therefore be approved, the aim of this directive “is not to make humanitarian aid a criminal offence”, said State Secretary Angelika Schlunck.
For Spain, the political message sent by this recital “is worrying”, said Minister Félix Bolaños on Friday morning. “This humanitarian clause must be included in the body of the text”. This will be one of the issues during negotiations with the European Parliament, which has yet to adopt its position.
For the migrant aid association PICUM, as it had anticipated on 11 December, the EU Council has adopted a text that threatens those who help migrants.
“Nor does the text submitted to the EU Council’s vote introduce a legally binding provision exempting from criminalisation acts of solidarity with persons in an irregular situation. Instead, the EU Council will vote to simply invite Member States not to criminalise humanitarian acts in a non-binding recital. In the absence of a legal obligation prohibiting the criminalisation of migration and solidarity, there is a risk that Member States will increase the number of legal proceedings against migrants themselves and the people who help them”, was the association’s reaction.
Link to note on general approach: https://aeur.eu/f/esr (Original version in French by Solenn Paulic)