Report from the Commission based on Article 9 of the Council Framework Decision of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence {SEC(2006)1591}
Date: 2006-12-06
Institutions: European Commission
Subjects: criminal law, fight against crime, illegal migration, legal person, liability, organised crime, penalty

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 6.12.2006 
COM(2006) 770 final 

REPORT FROM THE COMMISSION 

based on Article 9 of the Council Framework Decision of 28 November 2002 on the 
strengthening of the penal framework to prevent the facilitation of unauthorised entry, 
transit and residence 

{SEC(2006)1591} 

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TABLE OF CONTENTS 

1. 

Introduction .................................................................................................................. 3 

1.1. 

Background .................................................................................................................. 3 

2. 

2.1. 

2.2. 

2.3. 

3. 

4. 

Method And Criteria For Evaluation of the conformity of Member States legislation 
with this Framework Decision ..................................................................................... 4 

Evaluation criteria ........................................................................................................ 4 

Context of evaluation ................................................................................................... 5 

General purpose of the report....................................................................................... 6 

ASSESSMENT ............................................................................................................ 6 

CONCLUSIONS.......................................................................................................... 8 

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REPORT FROM THE COMMISSION 

based on Article 9 of the Council Framework Decision of 28 November 2002 on the 
strengthening of the penal framework to prevent the facilitation of unauthorised entry, 
transit and residence 

1. 

INTRODUCTION 

1.1. 

Background 

Under  Article  9(2)  of  the  Council  Framework  Decision  of  28  November  2002  on  the 
strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit 
and  residence  (hereinafter  “the  Framework  Decision”)  the  Commission  has  to  establish  a 
written  report  on  the  measures  taken  by  the  Member  States  to  comply  with  the  Framework 
Decision1. 

Paragraph  (1)  of  that  Article  obliges  the  Member  States  to  take  the  necessary  measures  to 
comply with  the provisions  of  the Framework  Decision  by  5  December 2004. According to 
paragraph (2), Member States should forward to the General Secretariat of the Council and to 
the Commission by the same day the text of the provisions transposing into their national law 
the obligations arising from the Framework Decision. On the basis of a written report by the 
Commission, the Council should, by 5 June 2005, assess the extent to which Member States 
have complied with this Framework Decision. As regards Iceland and Norway, as well as the 
United  Kingdom  and  Ireland,  it  has  to  be  taken  into  account  that  the  Framework  Decision 
constitutes a development of the Schengen acquis Therefore, compliance with this Framework 
Decision by Iceland and Norway is assessed in a specific procedure agreed with these States. 
Norway  has  notified  that  the  constitutional  requirements  have  been  fulfilled  in  accordance 
with  Article  8  (2)  (c)  of  the  Agreement  and  the  said  Council  Directive  and  Council 
Framework Decision can become binding on Norway. On the other hand, Norway has not yet 
sent the text of relevant national legislation to the Commission.  

The value of this report therefore depends to a large extent on the quality and punctuality of 
the  national  information  received  by  the  Commission.  The  Commission  reminded  Member 
States of their obligation by means of a letter sent on 7 December 2004. 

Finally,  by  the  end  of  March  2006,  the  Commission  had  received  no  information  regarding 
the  implementation  of  the  Framework  Decision  from  five  Member  States,  namely  Austria, 
Cyprus,  Greece,  Luxembourg  and  Portugal.  The  information  submitted  by  four  Member 
States  -  Estonia,  Malta,  Spain  and  Sweden  -  was  either  only  preliminary  or  not  specific 
enough, and therefore does not provide an appropriate basis for an in-depth assessment. 

Although  5  December  2004  was  the  deadline  for  forwarding  the  text  of  the  implementing 
provisions,  as  far  as  possible  information  provided  up  to  March  2006  has  been  taken  into 
account in the Report.  

A departmental working paper associated with this Report contains a detailed analysis of the 
national measures taken by Member States in order to comply with the Framework Decision.  

1 

OJ L 328/1 – 5 December 2002 

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Ireland  communicated  that  in  accordance  with  Art  6(3)  of  Decision  2002/192/EC,  the 
implementation  by  Ireland  of  measures  building  on  the  Schengen  acquis would  take place 
when the "acquis" is implemented by virtue of a decision under Article 4(1) of that Decision. 
On that basis, the Framework Decision of November 2002 (2002/946/JHA) would not yet be 
due  for  implementation  by  Ireland.  The  United  Kingdom,  on  the  other  hand,  submitted 
information concerning the implementation of the Framework Decision.  

2. 

METHOD  AND  CRITERIA  FOR  EVALUATION  OF  THE  CONFORMITY  OF  MEMBER 
STATES’ LEGISLATION WITH THIS FRAMEWORK DECISION  

This  Framework  Decision  is  based  on  the  Treaty  of  the  European  Union  (TEU),  and  in 
particular Articles 29, 31 (e) and 34(2) (b) thereof. 

A  directive  is  the  legal  instrument  that  is  most  comparable  to  a  framework  decision2.  Both 
instruments are binding upon Member States as to the result to be achieved, but leave to the 
national authorities the choice of form and method for implementation. However, framework 
decisions do not have direct effect. The Commission has no legal action before the Court of 
Justice  -  at  least  in  the  current  state  of  development  of  European  Law  -  to  enforce 
transposition legislation for a framework decision. Nonetheless, the Court of Justice can rule 
on  any  dispute  between  Member  States  regarding  the  interpretation  or  the  application 
(including the transposition)  of  the  Framework Decision. The possible exercise of this right 
requires a solid factual basis, which the Commission's Report can help to establish. 

2.1. 

Evaluation criteria 

In  order  to  be  able  to  evaluate  objectively  whether  a  framework  decision  has  been  fully 
implemented by a Member State, some general criteria have been developed with respect to 
directives which should be applied mutatis mutandis to framework decisions: 

1. 

2. 

The form and methods of implementation of the result to be achieved must be chosen 
in a manner which ensuresan effective functioning, with account being taken of the 
aims3; 

Each Member State is obliged to choose a way of implementation which satisfies the 
requirements  of  clarity  and  legal  certainty,  and  thus  ensures  a  transposition  into 
national provisions which have binding force4 , 

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Article 249 EC Treaty. 
See relevant case law re the implementation of directives: e.g. Case 48/75 Royer [1976 ECR 497 at 518 
See  relevant  case  law  re  the  implementation  of  directives:  e.g.  Case  239/85  Commission  v.  Belgium 
[1986] ECR 3645 at 3659. See also Case 300/81 Commission v. Italy [1983] ECR 449 at 456. 

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3. 

Transposition  into  national  law  does  not  necessarily  require  enactment  in  precisely 
the same words which means that, for example, appropriate and pre-existing national 
measures may be sufficient, as long as the full application is assured in a sufficiently 
clear and precise manner5;  

4. 

If a time limit has been fixed, transposition has to be completed within this deadline.6  

Both types of instruments are binding 'as to the results to be achieved'. That may be defined as 
a  legal  or  factual  situation  which  does  justice  to  the  envisaged  result  that  the  Treaty 
instrument in question was intended to ensure7 . 

The  general  assessment  provided  of  the  extent  to  which  the  Member  States  have  complied 
with the Framework Decision is, where possible, based on the criteria outlined above. 

2.2. 

Context of evaluation 

A  preliminary  observation  concerns  the  legal  context,  in  particular  of  the  follow  up  of  the 
evaluation report. As already mentioned, within the TUE, the Commission does not have the 
ability  to  start  infringement  procedures  against  Member  States.  Nevertheless,  the  legal 
evaluation  conducted  by  the  Commission  of  Framework  Decisions  and  Directives  imposing 
on Member States objectives of the same nature is based on the same principle and methods. 

A  second  preliminary  observation  concerns  the  specific  nature  of  the  field  being  regulated. 
The  Framework  Decision  is  one  of  the  instruments  adopted  in  order  to  combat  illegal 
immigration, illegal employment, trafficking in human beings and the sexual exploitation of 
children;  its  purpose  is  to  strengthen  the  penal  framework  to  prevent  the  facilitation  of 
unauthorised  entry,  transit  and  residence.  It  supplements  Directive  2002/90/EC8  (hereinafter 
"the  Directive")  which  is  not  covered  by  this  report  and  will  be  subject  to  a  separate 
evaluation. 

As regards penalties, the Framework Decision stipulates that each Member State shall take the 
measures necessary to ensure that the infringements defined in the Directive are punishable by 
effective, proportionate and dissuasive criminal penalties, which may entail extradition9. Such 
penalties may by accompanied by confiscation of the means of transport used to commit the 
offence,  or  a  prohibition  on  practising  directly  or  through  an  intermediary  the  occupational 
activity in the exercise of which the offence was committed, or deportation. Furthermore, the 
penalties shall be custodial sentences with the maximum sentence not less than 8 years when 
the offences are committed for financial gain and either involved a/the criminal organization 
or endangered the lives of the persons who are subject of the offence. 

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See  relevant  case  law  re  the  implementation  of  directives,  e.g.  Case  29/84  Commission  v.  Germany 
[1985] ECR 1661-to 1673. 
See substantial case law re the implementation of directives, for example: e.g. Case 52/75 Commission 
v.  Italy  [1976]  ECR  277  to  284,  See,  in  general,  the  Commission’s  annual  reports  on  monitoring  the 
application of Community law, for example COM (2001) 309 final. 
See PJG Kapteyn and P. Verloren van Themaat 'Introduction to the Law of the European Communities', 
third edition, 1998, p. 328. 
OJ L 328/1 – 5/12/2002, p. 17 
In essence, this means that Member States should provide for a custodial sentence or a detention order 
for a maximum period of at least one year.  

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On  13  September  2005  the  European  Court  of  Justice  annulled  the  Council  Framework 
Decision on the protection of the environment through criminal law because this instrument 
was adopted outside the European Community framework (case C-176/03), i.e. in breach of 
Community  competences.  This  judgment  clarifies  the  distribution  of  powers  between  the 
Community and the Union as regards provisions of criminal law. An evaluation of the impact 
and  possible  shortcomings  of  the  so-called  ‘facilitators  package’,  consisting  of  Directive 
2002/90/EC  and  Council  Framework  Decision  2002/946/JHA  to  define  whether  there  is  a 
need to improve the substance of this legislation, will also take into account the impact of the 
judgment with a view to replacing these instruments by a single directive. 

2.3. 

General purpose of the report 

This report assesses the extent to which Member States have complied with the Framework 
Decision. 

3. 

ASSESSMENT 

The objective of the Framework Decision is to approximate the laws of the Member States in 
the  area  of  combating  illegal  immigration  in  order  to  strengthen  the  penal  framework  to 
prevent and prosecute the facilitation of unauthorised entry, transit and residence.  

Furthermore, it introduced measures to 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  has  been 
considered  essential  to  approximate  existing  legal  provisions,  in  particular  the  precise 
definition of the infringement in question, on the one hand, and the cases of exemption, which 
is  the  subject  of  the  Council  Directive  and  on  the  other  hand,  minimum  rules  for  penalties, 
liability of legal persons and jurisdiction, which is subject of this Framework Decision. 

However,  the  information  the  Commission  has  received  varies  considerably,  especially  in 
terms  of  its  completeness.  This  is  reflected  in  the  Annex  to  this  report  that  contains  the 
information provided by Member States. In this regard, not all Member States have sent the 
Commission  all  the  relevant  texts  of  their  implementing  provisions.  The  factual  assessment 
and subsequent conclusions are therefore sometimes based on incomplete information.  

Article 1: Penalties  

Member States are required to take the measures necessary to ensure that the offences defined 
by  the  Directive  on  the  facilitation  of  unauthorised  entry,  movement  and  residence  are 
punishable  by  effective,  proportionate  and  dissuasive  criminal  penalties,  including  custodial 
sentences, which may entail extradition and, where appropriate, other penalties. In particular 
this means that Member States must respect the definitions set out in Article 1(a) (intentional 
assistance to illegally enter or transit across the territory of the Member States) and Article 1.b 
(intentional assistance, for financial gain, to illegally reside within the territory of the MS). On 
the  other  hand,  account  must  be  taken  of  Article  1(2)  of  the  Directive  which  stipulates  that 
Member States  may decide  not to impose sanctions with regard to the behaviour defined in 
Article  1(1)(a),  where  the  aim  of  the  behaviour  is  to  provide  humanitarian  assistance  to  the 
person concerned. 

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In  most  of  the  notified  legislations  the  facilitation of illegal entry, transit and residence, i.e. 
intentional assistance either to enter or to transit across the territory of the Member States or, 
for financial gain, to reside within the territory of the Member States in breach of the relevant 
laws,  is  punishable  under  criminal  law.  The  same  can  be  concluded  for  instigating, 
participating  and  attempting.  On  the  other  hand,  there  is  still  a  considerable  variety  of 
penalties. They range from fines as minimum penalties to imprisonment of up to 15 years as 
maximum  penalties  in  aggravating  circumstances.  However,  this  is  not  contrary  to  the 
Framework Decision, since it only provides for minimum approximation. 

Furthermore, although this is not an obligation under the Framework Decision, but merely an 
option,  most  Member  States  have  provisions  at  their  disposal  concerning  confiscation  of 
means of transport and the prohibition of the exercise of specific occupations or activities, as 
well as deportation. 

Most  of  the  notified  legislation  establishes  that,  in  accordance  with  Article  1(3)  of  the 
Framework  Decision,  crimes  committed  for  financial  gain  or  as  activities  of  criminal 
organization  or  while  endangering  the  lives  of  the  smuggled  persons  are  considered  to  be 
committed under aggravating circumstances involving severe penalties. This is an obligation 
under the Framework Decision.  

Article 2 and 3: Liability of and sanctions against legal persons 

The Framework Decision introduces the concept of liability of legal persons in parallel with 
that of natural persons, obliging Member States to ensure that legal persons can be held liable 
for offences referred to in Article 1 and 2 committed for their benefit by any person with a 
certain  leading  position  within  the  legal  person.  It  is  not  required  that  such  liability  be 
exclusively  criminal.  Sanctions  against  legal  persons  shall  be  "effective,  proportionate  and 
dissuasive". 

In any case, as regards the information on national systems submitted to the Commission, the 
legislation  of  most  of  the  Member  States  provides  for  the  possibility  of  taking  sanctions 
against legal persons at least by means of administrative measures. 

According  to  the  legislation  of  the  Czech  Republic,  Latvia  and  the  Slovak  Republic,  legal 
persons cannot be held liable for criminal offences.  

Article 4: Jurisdiction  

Article 4 of the Framework Decision sets out the cases in which Member States are obliged to 
establish  jurisdiction  over  the  offences  referred  to  in  Article  1.  The  main  rule  is  the 
territoriality principle, according to which each Member State must establish its jurisdiction 
over offences committed in whole or in part in its territory. All Member States that provided 
information comply with this principle.  

Furthermore Member States have to established jurisdiction for offences committed by one of 
their  nationals  or  for  the  benefit  of  legal  persons  established  in  their  territory,  unless  they 
decided to make use of the opt out options provided in Article 4 paragraph 2 in accordance 
with the procedural requirements set out in Article 4 paragraph 3. So far the Commission is 
not aware of information sent by the Member States to the Secretary General of the Council in 
accordance with Article 4 paragraph 3. 

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Article 5: Extradition and prosecution 

This article  has been  largely superseded by the Decision on the European Arrest  Warrant10. 
Since  the  further  applicability  of  Article  5  requires  and  in-depth  analysis  of  the  European 
Arrest  Warrant,  e.g.  Article  33,  and  of  the  subsequent  implementation  problems,  for  e.g. 
annulment the transposition law in one Member States, this question shall be addressed in the 
context of the further development regarding the EAW.  

Article 6: International law on refugees 

The Commission is not able to take a  final position of the  implementation of this provision 
due to the lack of information provided by Member States. However the Commission has no 
indication  that  the  international  law  on  refugees  has  been  violated  as  a  result  of  the 
implementation of this Framework Decision. 

Article 7: Communication of information between Member States 

In  general,  Member  States  have  not  provided  information  concerning  the  transposition  of 
Article 7; the exceptions are the United Kingdom, Belgium, Latvia and Denmark. 

Article 8: Territorial application 

This  provision  stipulates  that  the  Framework  Decision  shall  apply  to  Gibraltar.  The  United 
Kingdom provided specific information on transposition in Gibraltar. 

4. 

CONCLUSIONS 

Not all Member States have transmitted to the Commission in a timely manner all the relevant 
texts  of  their  implementing  provisions.  By  the  end  of  March  2006,  the  Commission  had 
received  no  information  from  five  Member  States  regarding  the  implementation  of  the 
Framework  Decision.  Those  Member  States  are  Austria,  Cyprus,  Greece,  Luxembourg  and 
Portugal.  Only  preliminary  or  unspecified  information  was  submitted  by  Estonia,  Malta, 
Spain  and  Sweden;  this  information  does  not  provide  an  appropriate  basis  for  an  in-depth 
assessment. 

The  legal  assessment  and  the  conclusions  drawn  from  it  are  therefore  sometimes  based  on 
incomplete information. 

On one hand, one of the consequences of the Framework Decision is that in the majority of 
Member States there are provisions of criminal law which impose penalties on the facilitation 
of illegal transit and residence. On the other hand, the range of these penalties still seems to be 
very wide; there may therefore be a case for thinking in terms of an EU instrument that aims 
at  a  higher  level  of  harmonization.  Moreover,  it  appears  that  the  criminal  laws  of  some 
Member  States  (e.g.  Spain  and  the  Netherlands)  do  not  make  a  clear  distinction  between 
human trafficking and migrant smuggling. The two Framework Decisions aimed at combating 
these form of crime are based on different definitions which seems to exclude that the same 
criminal  law  provisions  could  cover  both  forms  of  crime.  Therefore,  doubts  arise  about  the 

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Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the 
surrender procedures between Member States. 

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proper implementation and application of the relevant Council Framework Decision without 
distinguishing between human trafficking and migrant smuggling.  

Furthermore,  the  Commission  has  been  unable  to  obtain  statistical  information  showing  the 
practical impact of the Framework Decision on illegal immigration. Against that background 
a  more  practice-oriented  evaluation  by  the  Commission  of  the  so-called  facilitator  package 
consisting  of  the  Framework  Decision  and  Directive  2002/90/EC  will  take  place  in 
2006/2007,  also  with  a  view  to  transforming  these  acts  into  a  single  directive  following  the 
judgment of the European Court of Justice in case C-176/03.  
These  first  EU  level  instruments  on  unlawful  assistance  to  illegal  entry  and  stay  should  be 
complemented  by  measures  to  specifically  target  employment  of  illegally  staying  third-
country  nationals,  given  that  the  possibility  of  finding  such  illegal  employment  is  an 
important  pull-factor  for  illegal  immigration  into  the  EU.  The  Commission  will  therefore 
propose,  in  the  first  half  of  2007,  binding  rules  on  sanctions  for  employers  who  employ 
illegally staying third-country nationals. 

The  Commission  stresses  the  importance  of  a  harmonious  relationship  between  the  relevant 
provisions  of  criminal  law  and  the  protection  of  refugees  and  asylum  seekers.  Furthermore, 
the  Commission  underlines  the  usefulness  of  continued  cooperation,  including  the 
communication of relevant information between the Member States. However, in that regard, 
further evaluation on the basis of more reliable information may be necessary. 

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