62023CJ0460_RES
Case C‑460/23 [Kinsa] (
i
)
OB
v
Procura della Repubblica
(Request for a preliminary ruling from the Tribunale di Bologna)
Judgment of the Court (Grand Chamber) of 3 June 2025
(Reference for a preliminary ruling – Area of freedom, security and justice – Border controls, asylum and immigration – Directive 2002/90/EC – General offence of facilitation of unauthorised entry, transit and residence – Article 1(1)(a) – Interpretation consistent with the Charter of Fundamental Rights of the European Union – Article 7 – Respect for private and family life – Article 24 – Rights of the child – Article 52(1) – Interference with the essence of fundamental rights – Article 18 – Right to asylum – Person bringing into the territory of a Member State, in an unauthorised manner, minors who are third-country nationals accompanying him or her and over whom he or she exercises actual care)
Border controls, asylum and immigration – Immigration policy – Prevention of the facilitation of unauthorised entry, transit and residence – General offence of facilitation of unauthorised entry – Concept – Person bringing into the territory of a Member State, in an unauthorised manner, minors who are third-country nationals under his or her actual care – Not included – National legislation criminalising that conduct – Not permissible – Right to respect for family life – Obligation to take into consideration the best interests of the child
(Charter of Fundamental Rights of the European Union, Arts 7, 18, 24 and 52(1); Council Directive 2002/90, Art. 1(1)(a))
(see paragraphs 43-73, operative part)
Résumé
Seised by the Tribunale di Bologna (District Court, Bologna, Italy), the Court of Justice, sitting as the Grand Chamber, clarifies, first, that an interpretation of Article 1(1)(a) of Directive 2002/90 (
1
) that is consistent with Articles 7 and 24 of the Charter of Fundamental Rights of the European Union (‘the Charter’) has the result of excluding from the scope of the offence of facilitation of unauthorised entry, within the meaning of Article 1(1)(a), the conduct of a person who, in breach of the rules governing the movement of persons across borders, brings into the territory of a Member State minors who are third-country nationals and are accompanying him or her, and over whom he or she exercises actual care. Second, the Court considers that those articles preclude national legislation criminalising such conduct.
On 27 August 2019, OB, a third-country national, accompanied by two minors, nationals of the same third country, presented herself with false passports at the airport border of Bologna (Italy), upon arrival of a flight from a third country. Those children were her daughter and her niece, with the niece having been entrusted to OB’s care following the death of the niece’s mother.
On 28 August 2019, OB was arrested and the two children were placed in a care facility. Proceedings were brought against OB before the District Court, Bologna, which is the referring court, for the offence of facilitating the unauthorised entry of third-country nationals, provided for in Article 12(1) of the Consolidated Law on Immigration, (
2
) which transposes Article 1(1)(a) of Directive 2002/90 into Italian law, (
3
) as well as for the offence of holding false identity documents, provided for in the Italian Criminal Code. By contrast, OB is not the subject of criminal proceedings for alleged unauthorised entry into Italian territory.
On 29 August 2019, at the hearing to validate her arrest, before the judge responsible for the criminal investigation of the District Court, Bologna, OB stated that she had fled her country of origin in order to escape the death threats from her former partner and that she feared for the physical integrity of the minors accompanying her.
The judge responsible for the criminal investigation validated OB’s arrest, but refused the request by the Public Prosecutor for her to be remanded in custody.
On 9 October 2019, OB submitted an application for international protection.
It is apparent from the findings of the referring court that the minors were placed under the ‘responsibility’ and the ‘protection’ of OB. That court considers that OB’s conduct corresponds to the offence provided for in Article 12(1) of the Consolidated Law on Immigration and does not fall within the exception provided for in Article 12(2) thereof. (
4
) It asks whether such conduct could nevertheless be classified as an act committed for the purposes of ‘humanitarian assistance’ within the meaning of Article 1(2) of Directive 2002/90, (
5
) and not fall within the general offence of facilitation of unauthorised entry laid down in Article 1(1)(a) of that directive, since it seeks to facilitate the exercise by the minors concerned of their rights guaranteed by the Charter. (
6
)
Noting that Directive 2002/90 merely provides for the right, and not the obligation, for Member States to refrain from establishing, as a criminal offence, conduct seeking to assist unauthorised entry into their territory where the aim of that conduct is to provide ‘humanitarian assistance’, the referring court questions, inter alia, the validity of Article 1 of that directive in the light of the Charter, and the interpretation of the Charter in order to determine whether it precludes the national implementing provisions.
Findings of the Court
The Court recalls that an EU act must be interpreted, as far as possible, in conformity with primary law as a whole and, in particular, with the provisions of the Charter. In the light of the facts in the main proceedings, Articles 7, 18 and 24 of the Charter (
7
) are of decisive importance in answering the questions referred by the national court. In addition, those questions are based on the premiss that the conduct at issue in the main proceedings falls within the general offence of facilitation of unauthorised entry, as defined in Article 1(1)(a) of Directive 2002/90.
The Court thus examines whether Article 1(1)(a) of Directive 2002/90, read in the light, in particular, of Articles 7, 18 and 24 of the Charter, must be interpreted as meaning that the conduct of a person who, in breach of the rules governing the movement of persons across borders, brings into the territory of a Member State minors who are third-country nationals and are accompanying him or her, and over whom he or she exercises actual care, (
8
) does not fall within the scope of the general offence of facilitation of unauthorised entry.
On account of its open wording, Article 1(1)(a) of Directive 2002/90 lends itself to different interpretations. Although that provision does not expressly refer to the conduct at issue in the main proceedings, it also does not expressly preclude, as such, an interpretation according to which such conduct falls within the scope of the general offence provided for in that provision.
However, that latter interpretation cannot be accepted.
In the first place, it would be contrary to the objectives of Directive 2002/90. Indeed, conduct such as that of OB does not constitute facilitation of illegal immigration, but stems from the assumption by the person concerned of his or her personal responsibility by virtue of the care that he or she exercises over the minors.
In the second place, having regard to Articles 7 and 24 of the Charter, in the light of which Article 1(1)(a) of Directive 2002/90 must be interpreted, the conduct at issue cannot fall within the scope of the general offence of facilitation of unauthorised entry, including where that person has himself or herself entered that territory in an unauthorised manner.
Any other interpretation would entail a particularly serious interference with the right to respect for family life and the rights of the child, enshrined in the abovementioned articles of the Charter, to such an extent that it would undermine the essence of those fundamental rights within the meaning of Article 52(1) of the Charter.
Indeed, to accept that a person may be punished for merely assisting minors, over whom he or she exercises actual care, to enter the territory of a Member State in an unauthorised manner would undermine the essence of such fundamental rights.
By such conduct, a person such as OB, in principle, merely assumes in concrete terms an obligation inherent to his or her personal responsibility, based on his or her family relationship with those minors, in order to secure the protection and the care necessary for their well-being and development. That person’s conduct is the concrete expression of his or her general responsibility towards those minors.
Consequently, if the essence of the rights enshrined in Articles 7 and 24 of the Charter is not to be undermined, Article 1(1)(a) of Directive 2002/90 cannot be intended to ensure that conduct such as that of OB is characterised as ‘facilitation of unauthorised entry’ into that territory and criminalised on that basis.
In the last place, that interpretation is also necessary in the light of Article 18 of the Charter, (
9
) which is relevant where, like OB, the person concerned, once he or she has entered the territory of the Member State in question, has made an application for international protection.
In that regard, the right of any third-country national to make an application for international protection on the territory of a Member State, including at its borders or in its transit zones, even if he or she is staying illegally in that Member State, must be recognised, irrespective of the prospects of success of such a claim. When such an application is made, an applicant cannot, in principle, be regarded as staying illegally on the territory of the Member State concerned, so long as no decision has been given on that application at first instance, if the effectiveness of the right to asylum, as guaranteed by Article 18 of the Charter, is not to be compromised. Measures which, without reasonable justification, result in a third-country national being discouraged from submitting his or her application for international protection to the competent authorities are also liable to undermine the effectiveness of the right to asylum.
In the present case, OB enjoys the rights arising from having submitted such an application and cannot be subject to criminal penalties either on account of her own unauthorised entry into Italian territory or on account of the fact that, at the time of that entry, she was accompanied by her daughter and her niece, over whom she exercises actual care.
The Court finds that, in those circumstances, there is no need to examine the validity of Article 1 of Directive 2002/90 or to interpret Article 1(2) thereof, which relates to exemption from criminal liability in cases where the aim of the conduct at issue is to provide humanitarian assistance to the person concerned.
Furthermore, in the light of the referring court’s doubts concerning the compatibility with EU law of the national provision transposing, inter alia, Article 1(1)(a) of Directive 2002/90 into Italian law, the Court recalls that, when implementing the measures transposing a directive, the courts of the Member States must not only interpret their national law in a manner consistent with that directive, but also ensure that they do not rely on an interpretation of the directive that would be in conflict with the fundamental rights protected by the EU legal order or with the other general principles recognised by EU law.
Accordingly, when transposing Article 1(1)(a) of Directive 2002/90, which provision seeks to define precisely the offence of facilitation of illegal immigration, Member States may not establish, in national law, rules that would go beyond the scope of that offence, as defined by that provision, by including conduct not covered by it, in breach of Articles 7 and 24 and Article 52(1) of the Charter.
Moreover, Articles 7 and 24 of the Charter are sufficient in themselves and do not need to be made more specific by provisions of EU or national law to confer on individuals rights which they may rely on as such. Consequently, if the referring court were to find that it is not conceivable to interpret its national law in conformity with EU law, it would be required to ensure within its jurisdiction the judicial protection for individuals flowing from those articles, and to guarantee their full effectiveness by disapplying, if need be, Article 12 of the Consolidated Law on Immigration.
(
i
)	The name of the present case is a fictitious name. It does not correspond to the real name of any of the parties to the proceedings.
(
1
)	Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence (OJ 2002 L 328, p. 17). Article 1 of that directive, entitled ‘General infringement’, provides in paragraph 1(a) thereof that each Member State must adopt appropriate sanctions on ‘any person who intentionally assists a person who is not a national of a Member State to enter, or transit across, the territory of a Member State in breach of the laws of the State concerned on the entry or transit of aliens’.
(
2
)	Decreto legislativo n. 286 – Testo unico delle disposizioni concernenti la disciplina dell’immigrazione e norme sulla condizione dello straniero (Legislative Decree No 286 – Consolidated law on the provisions concerning the regulation of immigration and the rules relating to the status of foreigners) of 25 July 1998 (GURI No 191 of 18 August 1998, Ordinary Supplement No 139), in the version applicable to the facts in the main proceedings.
(
3
)	And also Article 1(1) of 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 (OJ 2002 L 328, p. 1).
(
4
)	That provision states that ‘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.
(
5
)	Under that provision, ‘any Member State may decide not to impose sanctions with regard to the behaviour defined in [Article 1(1)(a)] by applying its national law and practice for cases where the aim of the behaviour is to provide humanitarian assistance to the person concerned’.
(
6
)	Namely, first, of their right to life, physical integrity, liberty and security, as those rights are threatened in their country of origin, second, of their right to respect for family life, in view of the parent-child and family ties between OB and those minors, and, third, of their right to asylum, in connection with the application for international protection submitted by OB.
(
7
)	Which enshrine, respectively, the right to respect for family life, the right to asylum and the rights of the child.
(
8
)	‘Such conduct’.
(
9
)	According to that provision, the right to asylum must be guaranteed with due respect for the rules of the Geneva Convention and in accordance with the EU Treaty and the FEU Treaty. The Member States must comply with such rules in the implementation of both Directive 2002/90 and Framework Decision 2002/946.