* FNRS Post-doctoral Research Associate at the Centre de Droit Européen of the Université Libre de Bruxelles. I am grateful to Prof. Chloé Brière for her valuable remarks and suggestions.
On 23 September 2020 the European Commission presented its ‘Guidance on the implementation of EU rules on definition and prevention of the facilitation of unauthorised entry, transit and residence’ within the New Pact on Migration and Asylum (a first analysis of the main components of the Pact has been made by Steve Peers here). As part of the New Pact, the 'Guidance' intends to translate into soft law the clear statement by President von der Leyen in her 2020 State of the Union address that “saving lives at sea is not optional” and to follow up on a 2018 Resolution of the European Parliament calling for guidelines to prevent humanitarian assistance from being criminalised.
As a matter of fact, the establishment of criminal proceedings against citizens and volunteers of NGOs who had assisted, in different ways, migrants and asylum seekers for humanitarian motives has been a hot topic of debate in recent years. The issue was not entirely unprecedented but since the inception of the so-called ‘migration crisis’ in 2015, these proceedings seem to have occurred more frequently than in the past, revealing the potentially far-reaching scope of criminalisation of the EU legal instruments on the facilitation of irregular migration: Directive 2002/90/EC and the Framework Decision 2002/946/JHA (collectively known as the ‘Facilitators Package’). These two instruments have been criticised on that point by several academic studies, reports from think tanks and civil society organizations as well as by the EU Fundamental Rights Agency starting from its first thematic report in 2014. At first, the European Commission appeared well aware of such criticisms when, in the context of the EU Action Plan Against Smuggling (2015-2020), announced a revision of the ‘Facilitators Package’ in 2016. However, eventually this did not happen. In 2017 the Commission in its ‘REFIT Evaluation’ of the Package concluded that there was insufficient evidence to support a legislative revision. The problematic cases of prosecution against individuals acting for humanitarian purposes had rather to be considered as an ‘unintended consequence’ to be addressed through a ‘reinforced exchange of knowledge and good practice’.
This wish did not materialise, as just in July 2020 the EU Fundamental Rights Agency reported several criminal proceedings against crew members and shipmasters of NGOs operating search and rescue missions in the Mediterranean. Still today the new Commission ‘Guidance’ seems to acknowledge that the ‘perceived lack of legal certainty’ surrounding the EU ‘Facilitators Package’ has not yet been dispelled.
Against this background and following a quick overview of the relevant legal framework, this contribution will analyse the new 2020 Commission ‘Guidance’. It will in particular discuss how the document can do little to remedy the legal uncertainty on humanitarian assistance to migrants, which potentially violate the principle of legality of offences in criminal matters.
2. Smuggling of migrants under the UN Protocol
As the Commission ‘Guidance’ also recalls, the main international instrument providing a definition of smuggling of migrants is the United Nations Protocol against Migrant Smuggling by Land, Sea and Air which supplements the 2000 UN Convention against Transnational Organised Crime (UNTOC). Adopted in 2000, this instrument requires its Parties to criminalize the procurement of irregular entry and the enablement of irregular residence when committed intentionally and ‘in order to obtain, directly or indirectly, a financial or other material benefit’.
The purpose of a ‘financial or other material benefit’ is probably the constitutive element that most characterizes criminologically the definition of smuggling in the context of the fight against organized crime: accordingly, under the Protocol the procurement of irregular entry and the enablement of irregular residence is not relevant per se, but as expression of a profitable ‘criminal business model’. Most importantly, the ‘financial or other material benefit’ performs a function of ‘selection’ of the type of conduct to be criminalized according to the Protocol, by excluding from the scope of the offence actions inspired by humanitarian, ideological reasons or based on close family ties. This is notably confirmed by the Travaux Préparatoires of the Protocol and a 2017 ad hoc Concept Paper released by the United Nations Office on Drugs and Crime (UNODC). Nonetheless, the Protocol does not seem to prevent its States Parties from adopting broader definitions of smuggling, f.i., by not including as a basic element of the offence the pursuit of a financial or other material benefit. Art. 34 par. 3 of the UNTOC Convention - which applies also to the Protocol – in fact, preserves the right of the State Parties to adopt ‘more strict or severe’ standards for preventing and combating transnational organized crime, potentially creating a layer of normative ambiguity at level of international law.
3. ‘Facilitation’ under The EU’s Facilitators’ Package
As previously mentioned, under EU Law, the criminalization of smuggling and facilitation of irregular residence is the object of two complementary legal instruments dating back to 2002 known as ‘Facilitators Package’. Adopted under the institutional framework of the Treaty of Amsterdam, the ‘Facilitators Package’ is composed of a Directive laying down the definition of ‘facilitation’ and a Framework Decision setting out criminal penalties, aggravating circumstances, rules on jurisdiction and on the liability of legal persons. Under the general infringement of facilitation, the Directive defines and requires the criminalization of two separate intentional offences:
a) assisting a third country national to irregularly enter or transit across the territory of a Member State
b) assisting, ‘for financial gain’, a third country national to irregularly reside in the territory of a Member State.
Differently from the UN Protocol, the EU definition requires the constitutive element of ‘financial gain’ for the facilitation of unauthorized residence but not for the basic definition of facilitation of unauthorized entry and transit. Altruistic or compassionate acts of ‘humanitarian assistance’, therefore, may potentially be attracted in the scope of application of the offence of facilitation of entry and transit. In regard to this latter, however, the same Directive provides for an optional ‘humanitarian exception’ leaving its implementation at the discretion of the Member States. According to art. 1 para 2 of the Directive, Member States ‘may decide not to impose sanctions’ when the facilitation of unauthorized entry or transit was aimed at providing humanitarian assistance. The optional nature of the humanitarian exception has been questioned from several commentators for both its inability to safeguard the humanitarian principles which supposedly inspire it and for its lack of added value in approximating national criminal laws (see f.i. Peers). It is not surprising, thus, that only a few Member States (BE, EL, ES, FI, HR, IT, MT) have expressly implemented the exception in their national legal frameworks with significant differences as to its scope of applicability. As a way of example, the Italian humanitarian exception - recalled also in the Commission ‘Guidance’ - exempts from criminalisation acts of humanitarian assistance in favour of migrants who are already ‘present’ on the Italian territory, therefore, raising doubts as to its applicability in the case of facilitation of entry.
4. The Commission Guidance: overview of the contents
The ‘Guidance’ is an interpretative tool that, according to the Commission, is intended to provide ‘greater clarity’ on the scope of application of the Facilitation Directive.
Its contents can be summarised around three main conceptual blocks:
- The relationship between the UN Protocol on Smuggling and the EU Facilitators Package
- The scope of application the offence of facilitation of irregular entry and transit vis à vis humanitarian assistance ‘mandated by law’
- A policy recommendation on the optional humanitarian exception
As for the relationship between the UN Protocol and the ‘Facilitators Package’, the Commission recalls the broader objective of the latter. The general objective of the EU legal framework on facilitation indeed would be twofold: on the one hand, similarly to the UN Protocol, the fight against organised crime, on the other, the fight against irregular migration. Hence, according to the Commission, the broader scope of criminalisation resulting from the non-inclusion of the purpose of gain in the basic definition of the offence of facilitation of entry and transit would not be in contrast with the definition of the UN Protocol, but rather an expression of the additional (and broader) objective of fighting against irregular migration.
Such broader scope of application of the offence of facilitation of entry and transit, however, must be read in light of the ‘general spirit and objective’ of the Facilitators Package and cannot be construed as to imply the criminalisation of humanitarian activity that is ‘mandated by law’. According to the Commission, a specific example of such kind of humanitarian activity is represented by search and rescue (SAR) at sea, since SAR obligations are ‘mandated’ by the Law of the Sea, under several international conventions (the UN Convention on the Law of the Sea, UNCLOS, the International Convention for the Safety of Life at Sea, SOLAS, the International Convention on Maritime Search and Rescue, SAR Convention), and by customary international law. As such, according to the Commission, the criminalisation of NGOs or any other non-state actors that carry SAR operations in compliance with the relevant legal framework cannot be allowed by EU Law. This applies ‘regardless how the Facilitation Directive is applied under national law’, or in other terms irrespective of whether the Member State implemented or not the ‘humanitarian exception’.
In regard to the optional humanitarian exception, the Commission has, first of all, provided an overview of the national rules that explicitly implemented the exception and stressed that, in this context, it is for the national authorities to determine what is meant by ‘humanitarian assistance’, taking into account all the circumstances of the case, and to strike the right balance between the different interests and values at play (recalling the ECtHR case Mallah v. France). As for the Member States that did not implement the exception, the Commissions addresses, as a Policy Recommendation, the invitation to use the possibility provided by art. 1 para 2 of the ‘Facilitation Directive’.
5. A mere problem of implementation or a problem of legality?
As an effort to gradually approach a complex issue in a difficult political scenario, the Commission ‘Guidance’ it is certainly to be welcomed, but it cannot be regarded as the ‘final word’ of the EU on the matter.
Firstly, the 'Guidance' seems mostly - if not only - focused on cases of humanitarian assistance 'mandated by law' and, in particular, to cases of rescue at sea. Surely, the proceedings against NGOs and individuals conducting private SAR operations represent the most striking example of criminalization of solidarity, but they do not exhaust the hypotheses of ‘humanitarian assistance’ we have witnessed in recent years. The humanitarian 'facilitation' of the entry or transit by land clearly does not benefit from the ‘primacy umbrella’ of the Law of the Sea, while the definition of what should be intended as ‘humanitarian assistance mandated by law’ – beyond SAR obligations – remains at least ‘anodyne’. The law, normally, does not prescribe any obligation to donate food or provide shelter to an irregular migrant in transit and yet such a circumstance would not detract anything from the humanitarian nature of such conduct.
Secondly, the invitation to all the Member States to ‘use the possibility’ of the optional humanitarian exception foreseen in the Directive, sounds not very satisfactory insofar as it still seems to address the problem as a mere matter of implementation. In contrast, from a criminal law point of view, the problem of the ‘Facilitators Package’ seems to be more and more one of legality, or rather, a problem related to the way of understanding the principle of legality in substantive criminal law. The use of ‘discretionary’ or ‘optional clauses’ in instruments of secondary EU law aimed at approximating substantive criminal law, indeed, might raise questions as to their compatibility with the principle of legality of offences provided in Article 49 of the Charter of Fundamental Rights.
Even taking into account the peculiar nature of directives as instruments requiring a national transposition and the limited Union’s legislative competence in that area (art. 83 paras 1 and 2 TFEU), the core of the principle of legality would still require the EU legislator to provide a clear description of the punishable conduct and a reasonable consideration of the interest(s) protected by the offence. In the case of the ‘Facilitators Package’, affirming that an act of 'facilitation' inspired by a humanitarian or altruistic purpose may or may not be criminalised at the discretion of a Member State does not simply entail an implementation option, but rather a completely different balance between the legal interests at stake and, ultimately, a different characterisation of the punishable conduct. In fact, while such an action, determining the irregular entry or transit of the migrant, may affect the legitimate interest in effective border control, on the other hand, it may concretely prevent an harm to the life or to the human dignity of an individual, competing legal interests which are also protected by primary Union law.
The reluctance of the EU legislator to determine a baseline balance between these competing legal interests, leaving it to the discretion of the Member States, sits uneasily with the understanding of the principle of legality in the domain of substantive criminal law. This issue was unresolved at the time of adoption of the Facilitators’ Package, determining a structural flaw in the EU definition of the offence of facilitation that cannot be remedied at the level of the interpretation, but only through a legislative revision.
In conclusion, whilst the ‘Guidance’ constitutes a commendable reminder of the law applicable to humanitarian assistance, it is to be hoped that in the near future the Commission will also consider using its power of legislative initiative to align the EU legal framework with international law and the Charter. Its hesitation to engage in the matter at the level of ‘hard law’ on a hard law level, despite its announcement in 2015, echoes to the restrained approach it pursues in other parts of the New Migration Pact and reflects the political sensitivity of the issue of humanitarian assistance to migrants, unfortunately, still perceived by some Member States and parts of the European public opinion as a crime deserving to be punished.
Barnard & Peers: chapter 26
JHA4: chapter I:7
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