BAKGRUNN (fra kommisjonsforslaget)

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 year 1 . 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 2022 2 . 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 Europe 3 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 smugglers 4 , 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 annually 5 . 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 people 6  since 2014.

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 authorities 7 ; 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 EU 8 ; 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 Asylum 10 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 residence 11 , and Framework Decision 2002/946/JHA on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit, and residence 12 .

This proposal is accompanied by a Commission proposal for a Regulation 13 , 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 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.

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 evaluation 15 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 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.