Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence
Date: 2002-11-28
Institutions: Council of the European Union
Subjects: approximation of laws, fight against crime, illegal migration, offence, organised crime, penalty

5.12.2002

EN

Official Journal of the European Communities

L 328/17

COUNCIL DIRECTIVE 2002/90/EC

of 28 November 2002

defining the facilitation of unauthorised entry, transit and residence

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Commu-
nity, and in particular Article 61(a) and Article 63(3)(b) thereof,

Having regard to the initiative of the French Republic (1),

Having regard to the opinion of the European Parliament (2),

(7)

(8)

Whereas:

(1)

(2)

(3)

(4)

(5)

(6)

One of the objectives of the European Union is the
gradual creation of an area of freedom, security and
justice, which means, inter alia, that illegal immigration
must be combated.

Consequently, measures should be taken to combat the
aiding of illegal
immigration both in connection with
unauthorised crossing of the border in the strict sense
and for
the purpose of sustaining networks which
exploit human beings.

To that end it is essential to approximate existing legal
provisions, in particular, on the one hand, the precise
definition of the infringement in question and the cases
of exemption, which is the subject of this Directive and,
on the other hand, minimum rules for penalties, liability
of legal persons and jurisdiction, which is the subject of
framework Decision 2002/946/JHA of 28
Council
November 2002 on the strengthening of
the penal
framework to prevent the facilitation of unauthorised
entry, transit and residence (3).

the facilitation of

The purpose of this Directive is to provide a definition
of
immigration and conse-
quently to render more effective the implementation of
framework Decision 2002/946/JHA in order to prevent
that offence.

illegal

This Directive supplements other instruments adopted in
order to combat illegal immigration, illegal employment,
trafficking in human beings and the sexual exploitation
of children.

As regards Iceland and Norway, this Directive constitutes
a development of provisions of
the Schengen acquis
within the meaning of the Agreement concluded by the
Council of the European Union and the Republic of
Iceland and the Kingdom of Norway concerning the
association of those two States with the implementation,
application and development of the Schengen acquis (4),
which fall within the area referred to in Article 1(E) of
Council Decision 1999/437/EC of 17 May 1999 on
certain arrangements for the application of that Agree-
ment (5).

(1) OJ C 253, 4.9.2000, p. 1.
(2) OJ C 276, 1.10.2001, p. 244.
(3) See page 1 of this Official Journal.
(4) OJ L 176, 10.7.1999, p. 36.
(5) OJ L 176, 10.7.1999, p. 31.

The United Kingdom and Ireland are taking part in the
adoption and application of this Directive in accordance
with the relevant provisions of the Treaties.

In accordance with Articles 1 and 2 of the Protocol on
the position of Denmark annexed to the Treaty on
European Union and to the Treaty establishing the
European Community, Denmark is not taking part in
the adoption of this Directive and is not bound by it or
subject to its application. Given that this Directive builds
upon the Schengen acquis under the provisions of Title
IV of Part Three of the Treaty establishing the European
Community, Denmark shall, in accordance with Article
5 of the said Protocol, decide within a period of six
months after the Council has adopted this Directive
whether it will implement it in its national law,

HAS ADOPTED THIS DIRECTIVE:

Article 1

General infringement

1.

Each Member State shall adopt appropriate sanctions on:

(a) 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;

(b) any person who, for financial gain, intentionally assists a
person who is not a national of a Member State to reside
within the territory of a Member State in breach of the laws
of the State concerned on the residence of aliens.

2.
Any Member State may decide not to impose sanctions
with regard to the behaviour defined in paragraph 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.

Article 2

Instigation, participation and attempt

Each Member State shall take the measures necessary to ensure
that the sanctions referred to in Article 1 are also applicable to
any person who:

(a) is the instigator of,

(b) is an accomplice in, or

(c) attempts to commit

an infringement as referred to in Article 1(1)(a) or (b).

L 328/18

EN

Official Journal of the European Communities

5.12.2002

Article 3

Sanctions

Article 5

Repeal

Each Member State shall take the measures necessary to ensure
the infringements referred to in Articles 1 and 2 are
that
subject to effective, proportionate and dissuasive sanctions.

Article 4

Implementation

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive before 5 December 2004. They shall forthwith inform
the Commission thereof.

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 a reference shall be laid down by the
Member States.

2. Member States shall communicate to the Commission the
text of the main provisions of their 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 27(1) of
the 1990 Schengen Convention shall be
repealed as from 5 December 2004. Where a Member State
implements this Directive pursuant to Article 4(1) in advance
of that date, the said provision shall cease to apply to that
Member State from the date of implementation.

Article 6

Entry into force

This Directive shall enter into force on the day of its publica-
tion in the Official Journal of the European Communities.

Article 7

Addressees

This Directive is addressed to the Member States in accordance
with the Treaty establishing the European Community.

Done at Brussels, 28 November 2002.

For the Council

The President

B. HAARDER