Opinion of the Advocate General — ECLI:EU:C:2024:941
Date: 2024-11-07
Language of the case: Italian
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-460/23 – 1 
Case C-460/23 [Kinshasa] i 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice  
Date lodged:  
21 July 2023 
Referring court:  
Tribunale di Bologna (Italy) 
Date of the decision to refer:  
17 July 2023 
Accused:  
OB 
  
Subject matter of the main proceedings 
Criminal proceedings against OB, of Congolese origin, who is accused of having 
carried out acts intended to procure the unauthorised entry of two minors, who are 
also foreign nationals, into Italian territory, and also charged with the offence of 
holding false identification documents concerning herself and the two minors.  
Subject matter and legal basis of the request  
The referring court raises, pursuant to Article 267 TFEU, the issue of the 
compatibility with the Charter of Fundamental Rights of the European Union (‘the 
Charter’) of the EU legislation on facilitating illegal immigration and the related 
Italian implementing provisions, which, as regards the offence of facilitating the 
unauthorised entry of foreign nationals, do not provide that the purpose of 
humanitarian assistance can be regarded as a justificatory ground for excluding 
criminal liability. 
 
i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-460/23 
 
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Questions referred for a preliminary ruling  
1. Does the Charter of Fundamental Rights, in particular the principle of 
proportionality referred to in Article 52(1), read in conjunction with the right to 
personal liberty and the right to property referred to in Articles 6 and 17, as well 
as the rights to life and physical integrity referred to in Articles 2 and 3, the right 
to asylum referred to in Article 18 and respect for family life referred to in 
Article 7, preclude the provisions of Directive 2002/90/EC and Framework 
Decision 2002/946/JHA (implemented in Italian law by the rules laid down in 
Article 12 of Legislative Decree No 286), in so far as they impose on Member 
States the obligation to provide for penalties of a criminal nature against any 
person who intentionally facilitates or engages in acts intended to facilitate the 
unauthorised entry of foreign nationals into the territory of the Union, even where 
the conduct is carried out on a non-profit-making basis, without providing, at the 
same time, an obligation on Member States to exclude from criminalisation 
conduct facilitating unauthorised entry aimed at providing humanitarian assistance 
to the foreign national? 
2. Does the Charter of Fundamental Rights, in particular the principle of 
proportionality referred to in Article 52(1), read in conjunction with the right to 
personal liberty and the right to property referred to in Articles 6 and 17, as well 
as the rights to life and physical integrity referred to in Articles 2 and 3, the right 
to asylum referred to in Article 18 and respect for family life referred to in 
Article 7, preclude the criminal offence provisions laid down in Article 12 of 
Legislative Decree No 286, in so far as it penalises the conduct of a person who 
engages in acts intended to procure the unauthorised entry of a foreign national 
into the territory of the State, even where the conduct is carried out on a non-
profit-making basis, without at the same time excluding from criminalisation 
conduct facilitating unauthorised entry aimed at providing humanitarian assistance 
to the foreign national? 
Provisions of European Union law relied on 
Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of 
unauthorised entry, transit and residence; in particular, Article 1. 
Council framework Decision 2002/946/JHA of 28 November 2002 on the 
strengthening of the penal framework to prevent the facilitation of unauthorised 
entry, transit and residence; in particular, Article 1(1) [and] Article 6. 
Charter of Fundamental Rights of the European Union; in particular, 
Article 52(1). 
KINSHASA 
 
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Provisions of national law relied on 
Decreto legislativo n. 286 – Testo unico delle disposizioni concernenti la 
disciplina dell’immigrazione e norme sulla condizione dello straniero (Legislative 
Decree No 286 consolidating the provisions regulating immigration and the rules 
relating to the status of foreign nationals) of 25 July 1998, (‘Legislative Decree 
No 286’); in particular, Article 12: 
1. Save where the act constitutes a more serious criminal offence, any person 
who, in breach of the provisions of the present consolidated law, promotes, 
directs, organises, finances or carries out the transportation of foreign 
nationals into Italy or carries out other acts intended to procure their 
unauthorised entry into Italy or into the territory of another State of which 
they are not nationals or in which they are not entitled to permanent 
residence shall be liable to a term of imprisonment from 2 to 6 years and a 
fine of EUR 15000 for each individual. 
2. Without prejudice to the provisions of Article 54 of the Criminal Code, 
activities of relief and humanitarian assistance provided in Italy in relation 
to foreign nationals in need, however present on the territory of the State, do 
not constitute a criminal offence. 
[…] [subsequent paragraphs relating to similar but more serious offences 
penalised by more severe penalties]. 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 27 August 2019, OB, of Congolese origin, presented herself at the air border 
of Bologna on arrival on a flight from Casablanca, showed a false Senegalese 
passport and accompanied two girls aged 8 and 13 years old, for whom she 
presented two false passports. OB thus carried out acts aimed at procuring the 
unauthorised entry of the two minors into Italian territory and was charged with 
the offence of ‘facilitating the unauthorised entry of foreign nationals’ within the 
meaning of Article 12(1) of Legislative Decree No 286. 
2 On 28 August 2019, OB was arrested and the two girls, by order of the Tribunale 
per i minorenni (Juvenile Court, Italy), were placed in a dedicated reception 
facility. 
3 On 29 August 2019, OB was heard by the Giudice per le Indagini Preliminari 
(judge responsible for preliminary investigations) of the Tribunale di Bologna 
(District Court, Bologna), to whom she stated that she had fled the Democratic 
Republic of the Congo to escape the death threats made against her and her family 
by her partner, following the end of their relationship. She also stated that the 
minors travelling with her were her daughter and her niece (the daughter of her 
deceased sister who had been entrusted to her), respectively, and that she had 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-460/23 
 
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brought them with her because she feared for their physical integrity. The judge 
confirmed OB’s arrest, but did not order her to remain in prison. 
4 On 9 October 2019, the accused lodged an application for international protection. 
That procedure has not yet been completed. 
5 Subsequently, the Juvenile Court, Italy, found that one of the two minors was the 
daughter of the accused and that, in all likelihood, the other girl was her niece. 
6 On 29 May 2023, at the hearing before the referring court, counsel for the accused 
proposed that a request for a preliminary ruling be submitted to the Court of 
Justice; the referring court granted that request and stayed the national 
proceedings. 
Succinct presentation of the reasoning in the request for a preliminary ruling  
7 The referring court is the court that must assess the criminal liability of the 
accused. 
8 It explains, first of all, that the offence of facilitating the unauthorised entry of 
foreign nationals provided for in Article 12(1) of Legislative Decree No 286 is by 
its nature an offence of danger, in that the Italian legislature, in order to prevent in 
advance the infringement of a legal interest, already seeks to penalise the conduct 
in itself, on the sole ground that acts are carried out with the intention of procuring 
the unauthorised entry of non-EU nationals, irrespective of the reasons for those 
acts. Moreover, the need for a specific intention to make a profit from the offence 
is not foreseen (specific intent to make a profit is only considered as an 
aggravating circumstance). 
9 Another aspect of that offence is that it is “free-form”, in the sense that the offence 
may be committed in any way by the perpetrator, using any means. The conduct 
can therefore be in a remarkably wide variety of forms. 
10 The only justificatory ground is provided for in Article 12(2) of Legislative 
Decree No 286, but it is not applicable in the present case, as it presupposes that 
the relief and humanitarian assistance activities are provided to a foreign national 
already present in Italian territory (cases of facilitating residence, or of facilitating 
travel abroad from Italy to other Member States). 
11 It follows that the criminal penalty also applies to those who have facilitated the 
unauthorised entry of a foreign national for humanitarian assistance purposes and 
even if the foreign national is in need. 
12 That said, the referring court notes that the Italian legislation complies with the 
regulatory framework of EU law, as set out in Directive 2002/90/EC and 
Framework Decision 2002/946/JHA (‘the EU regulatory framework’), since, 
according to that regulatory framework, as regards facilitating entry, on the one 
KINSHASA 
 
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hand, there is no requirement for a profit-making basis and, on the other hand, 
there are no precise requirements for identifying the unlawful conduct, which can 
therefore be configured in various ways. 
13 As regards excluding criminal liability, Article 1(2) of Directive 2002/90/EC 
merely provides for the option, and not the obligation, for Member States to 
exclude criminal liability in cases where the facilitation of unauthorised entry 
takes place for the aim of providing humanitarian assistance. 
14 By providing for criminal liability for the conduct concerned, both the EU 
regulatory framework and the national legislation at issue seek to combat the 
smuggling of irregular migrants and their exploitation, including by criminal 
organisations which do not hesitate to endanger the lives of the migrants 
themselves. In addition, there is the objective of ensuring that migration flows 
take place in an orderly and controlled manner. 
15 The referring court notes, however, a possible conflict with the criteria of 
Article 52(1) of the Charter from the point of view of necessity and 
proportionality, that is to say, the reasonable balancing of the conflicting interests 
involved. 
16 That court raises the issue of the reasonableness of the failure to provide for 
excluding criminal liability in relation to cases in which the conduct of facilitating 
the unauthorised entry of foreign nationals is carried out for the purpose of 
humanitarian assistance, consisting of making it easier for the person concerned to 
exercise fundamental rights, such as the right to life and physical integrity, 
protected in Articles 2 and 3 of the Charter, the right to asylum, protected in 
Article 18 of the Charter, and the right to respect for family life, protected in 
Article 7 of the Charter. 
17 In its view, the protection of those fundamental rights must be taken into account 
in the balancing exercise which must form the basis of the common immigration 
policy; it notes, however, that in both the EU regulatory framework and the Italian 
legislation, there is a lack of proportionality in favour of the protection of the 
interest in controlling migration flows, which also results in an unnecessary 
sacrifice of fundamental rights. 
18 The referring court states that the European legislature itself, by providing in 
Article 1(2) of Directive 2002/90/EC that the Member States may introduce the 
humanitarian assistance justification, confirms that the introduction of that ground 
for exclusion of criminal liability is not an obstacle to the pursuit of the objectives 
of controlling migration flows. Moreover, that court notes that in some Member 
States (for example, Finland, Belgium and Spain) humanitarian purpose is already 
recognised in various ways as a ground for exclusion of criminal liability. 
19 The referring court points out that, even if the objective of controlling migration 
flows is important and legitimate, the fact remains that the EU regulatory 
framework (like the Italian legislation that complies with it) achieves it in an 
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unreasonable manner because it does not exclude criminal liability for conduct (of 
facilitating unauthorised entry which is intended to provide humanitarian 
assistance) which actually seeks to safeguard fundamental rights worthy of 
protection. 
20 Consequently, the regulatory framework adopted by the European legislature 
appears to infringe the criteria of reasonableness, since it allows it to sacrifice 
fundamental rights worthy of protection in cases in which that sacrifice is not 
necessary for the pursuit of the objectives that the legislature itself proposes. 
21 The referring court reiterates that the criminal offence referred to in Article 12(1) 
of Legislative Decree No 286, applicable in the present case, appears to comply 
with the EU legal framework, but has doubts, for the reasons set out above, as to 
its compatibility with the overriding principles laid down in the Charter. 
22 On the one hand, it is clear that the conduct of the accused objectively 
corresponds to conduct punishable for the offence provided for in Article 12(1) of 
Legislative Decree No 286. 
23 On the other hand, however, according to the referring court, the same conduct 
may be regarded as being for the purpose of humanitarian assistance, in several 
respects: the right to life of the two minors, threatened in the country of origin; the 
right to asylum of the two minors, in relation to the application for international 
protection made by the accused (who has parental responsibility for one of the 
children, while the other had been entrusted to her guardianship); the right to 
family life, taking into account the parenthood and family relationship between 
the two minors whose entry into the national territory was facilitated and the 
accused herself (who is the mother and aunt, respectively). 
24 However, even if the purpose of humanitarian assistance were to be established in 
the context of the national procedure, the referring court, on the basis of the Italian 
legislation, would still have to convict the accused, because the rules in Article 12 
of Legislative Decree No 286 do not provide for a corresponding ground for 
exclusion of criminal liability. 
25 Lastly, the referring court states that the accused is not currently subject to 
measures restricting her liberty, but it nevertheless requests that the case be 
determined pursuant to the expedited procedure provided for in Article 105 of the 
Rules of Procedure of the Court of Justice, in so far as it raises questions of 
interpretation and validity that could have an immediate effect on pending 
criminal proceedings, in similar cases, both under Italian law and under the laws 
of other Member States, in which accused persons may be subject to measures 
restricting their liberty.