Initiative of the French Republic with a view to the adoption of a Council Directive defining the facilitation of unauthorised entry, movement and residence
Date: 2000-09-04
Institutions: France
Subjects: Council of the European Union, EC Directive, France, Schengen Agreement, Treaty on European Union, national implementing measure

4.9.2000

EN

Official Journal of the European Communities

C 253/1

II

(Preparatory Acts)

COUNCIL

Initiative of the French Republic with a view to the adoption of a Council Directive defining the
facilitation of unauthorised entry, movement and residence

(2000/C 253/01)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community and in particular Articles 61(a) and 63(3)(b)
thereof;

Having regard to Council Decision 1999/436/EC of 20 May
1999 determining the legal basis for each of the provisions or
decisions constituting the Schengen acquis (1);

Having regard to the initiative of the French Republic;

Having regard to the opinion of the European Parliament,

Whereas:

(1) The Treaty on European Union lays down that one of the
objectives entrusted to the Union is to combat trafficking
in human beings by approximating, as far as necessary,
rules on criminal matters in the Member States. The
priority accorded to such action was stressed at
the
Tampere European Council.

(2) The Treaty

establishing

European Community
provides for the gradual creation of an area of freedom,
security and justice, which means,
inter alia, that illegal
immigration must be combated.

the

(4) To that end it is essential to approximate existing legal
frameworks, which means, on the one hand, the precise
and effective definition of the offence in question, which
is the subject of this Directive and, on the other hand,
laid down, of cases
harmonisation of
of
aggravating
circumstances, which is the subject of the draft Council
Framework Decision (cid:133)/(cid:133)/EC of (cid:133) on the strengthening
of the penal framework to preventing the facilitation of
unauthorised entry and residence (2).

exemption or, on the

the penalties

contrary, of

(5) The purpose of this Directive, which is based on Title IV
of the Treaty establishing the European Community, is to
provide a better definition of the facilitation of
illegal
immigration and consequently to render more effective
the implementation of Framework Decision (cid:133)/(cid:133)/EC on
framework in order to
the strengthening of the penal
prevent
and
residence.

facilitation of unauthorised entry

the

and improving the

(6) These instruments will thus supplement recommendations
such as that of 22 December 1995 on harmonising
means of combating illegal
immigration and illegal
relevant means of
employment
control (3), that of 27 September 1996 on combating the
illegal employment of third-country nationals (4), as well
as Joint Action 97/154/JHA of 24 February 1997 to
sexual
combat
exploitation of children (5) without prejudice to measures
which have been, or will be, taken in the framework of
Title
the European
IV of
Community.

the Treaty

establishing

trafficking

human

beings

and

in

(3) Consequently measures should be taken to combat the
aiding of illegal immigration, whether in connection with
unauthorised crossing of the border in the strict sense or
for
that exploit
human beings.

sustaining networks

the purpose of

(1) OJ L 176, 10.7.1999, p. 17.

(7) This Directive is a development of the Schengen acquis as

defined in the Schengen Protocol,

(2) See p. 6 of this Official Journal.
(3) OJ C 5, 10.1.1996, p. 1.
(4) OJ C 304, 14.10.1996, p. 1.
(5) OJ L 63, 4.3.1997, p. 2.

C 253/2

EN

Official Journal of the European Communities

4.9.2000

HAS ADOPTED THIS DIRECTIVE:

(cid:151) his spouse or the person who is known to cohabit with

him.

Article 1

General offence

Article 5

Implementation

Each Member State shall take the measures necessary to ensure
that the act of facilitating intentionally, by aiding directly or
indirectly, the unauthorised entry, movement or residence in
its territory of an alien who is not a national of a Member
State of the European Union is regarded as an offence.

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive before 1 November 2001. They shall
forthwith
inform the Commission thereof.

Article 2

Participation, instigation and attempt

Each Member State shall take the measures necessary to ensure
in the
that participation, as an accomplice or
offence referred to in Article 1 shall be considered to be an
offence, as shall also the attempt to commit such an offence.

instigator,

When Member States adopt these measures, they shall contain
a reference to this Directive or shall be accompanied by such
reference on the occasion of
their official publication. The
methods of making such reference shall be laid down by
Member States.

2. Member States shall communicate to the Commission the
text of the main provisions of national law which they adopt
in the field covered by this Directive together with a table
showing how the provisions of this Directive correspond to
the national provisions adopted. The Commission shall inform
the other Member States thereof.

Article 3

Penalties

Article 6

Entry into force

Each Member State shall take the measures necessary to ensure
that the offences referred to in Articles 1 and 2 are punishable
by effective, proportionate and dissuasive penalties.

This Directive shall enter
publication in the Official Journal of the European Communities.

into force on the day of

its

Article 4

Exemption

Article 7

Addressees

This Directive is addressed to the Member States.

Each Member State may exempt from criminal prosecution, for
the offences referred to in Articles 1 and 2, persons whose link
to the alien who has benefited from the aiding referred to in
these same Articles is as follows:

Done at (cid:133)

(cid:151) a relative in the ascending or descending line, brothers and

sisters and their spouses,

For the Council

The President

(cid:133)