Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL laying down minimum rules to prevent and counter the facilitation of unauthorised entry, transit and stay in the Union, and replacing Council Directive 2002/90/EC and Council Framework Decision 2002/946 JHA
Date: 2023-11-28
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: EU migration policy, external border of the EU, fight against crime, foreign national, illegal migration, offence, organised crime, penalty, third country

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   EUROPEAN COMMISSION  Brussels, 28.11.2023  COM(2023) 755 final 2023/0439 (COD)  Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL laying down minimum rules to prevent and counter the facilitation of unauthorised entry, transit and stay in the Union, and replacing Council Directive 2002/90/EC and Council Framework Decision 2002/946 JHA  
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

Migrant smuggling is a criminal activity that disrespects human life and strips people of their 
dignity  in  the  pursuit  of  profit,  violating  fundamental  rights  as  well  as  undermining  the 
migration management objectives of the EU.  

Fighting and preventing migrant smuggling is one of the priorities of the European Union and 
crucial  to  addressing  irregular  migration  in  a  comprehensive  way.  Criminal  networks  take 
advantage of people’s despair and use land, sea, and air routes to facilitate irregular migration, 
putting people’s lives at risk and seeking in every way to maximise their profits.  

In her State of the Union address on 13 September 2023, President von der Leyen called for 
strengthening of all the tools at disposal of the EU to effectively counter migrant smuggling, 
by  updating  the  current,  more  than  20-year-old  legislative  framework.  She  also  called  for 
strengthening the governance on migrant smuggling and increasing the role of EU agencies, 
in  particular  of  Europol.  She  also  emphasised  the  need  to  work  with  partners  to  tackle  this 
global challenge, and this is why the Commission is organising an International Conference, 
creating a Global Alliance with a Call to Action to fight migrant smuggling. 

Migrant  smuggling  to  and  within  the  EU  is  reaching  new  heights,  fuelled  by  increasing 
demand  due  to  emerging  and  deepening  crises,  most  notably  economic  recessions, 
environmental emergencies caused by climate change, as well as conflicts and demographic 
pressure in many third countries. Migrant smuggling drives the increase of irregular arrivals 
to the EU: in 2022, around 331 000 irregular entries were detected at the EU external borders, 
the highest level since 2016, representing a 66% increase compared to the previous year1. In 
2023,  until  the  end  of  September,  approximately  281  000  irregular  border  crossings  were 
detected  at  the  external  borders  of  the  EU,  representing  an  18%  increase  compared  to  the 
same period in 2022. This coincides  with an increase in the smuggling activities, evidenced 
by a new record with over 15 000 migrant smugglers reported by Member States to Frontex in 
20222.  Taking  into  account  the  increase  in  irregular  arrivals  in  2023  and  the  various 
worldwide crises in a range of countries of origin and transit, consistently high and potentially 
increased  migratory  flows  to  Europe3  and  related  smuggling  criminal  activities  can  be 
expected.  

It is estimated that more than 90% of the irregular migrants who reach the EU make use of the 
services of smugglers4, mostly organised in criminal groups. Moreover, smuggling networks 
make substantial  profits  from  their criminal  activities,  with  estimates  ranging  between EUR 
4.7  –  6  billion  worldwide  annually5.  Providing  a  strong  and  firm  response  to  smugglers’ 
activities  is  therefore  of  primary  importance  to  reducing  irregular  migration.  It  is  estimated 
that  the  activities  of  ruthless  migrant  smugglers,  especially  at  sea,  resulted  in  a  staggering 
death toll of over 28 000 people6 since 2014. 

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Frontex, Risk Analyses for 2023/2024. 
Frontex, Risk analyses for 2023/2024. 
Frontex, Risk Analysis for 2023/2024. 
Estimates by Europol. 
United Nations Office on Drugs and Crime, Global study on smuggling of migrants, 2018. 
International  Organisation 
https://missingmigrants.iom.int/region/mediterranean. 

for  Migration,  Missing  migrants 

project, 

available 

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at: 

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Around  half  of  the  migrant  smuggling  networks  are  also  involved  in  other  crimes,  such  as 
trafficking  in  human  beings,  drugs  and  firearms  smuggling,  while  also  facilitating 
unauthorised movements within the EU. Law enforcement and judicial  authorities are faced 
with  multiple  and  constantly  evolving  challenges:  the  rapidly  changing  and  adapting  modi 
operandi of smugglers; the increased use of threats and violence vis-à-vis the migrants as well 
as  law  enforcement  authorities7;  the  difficulties  to  locate  and  arrest  smugglers  who  hide  in 
countries  outside  the  EU;  the  use  of  a  broad  variety  of  means  of  transport,  including 
unseaworthy, less detectable vessels (such as fishing boats and makeshift metal boats),  road 
vehicles  in  which  migrants  are  dangerously  concealed,  as  well  as  commercial  and  charter 
flights  increasingly  used  to  bring  migrants  to  countries  close  to  or  bordering  the  EU,  from 
where migrants then seek to irregularly enter the EU8; the use of digital tools at all stages of 
the  process,  with  online  advertising  of  smuggling  services,  routes  and  prices  as  well  as  for 
forging  documents;  the  use  of  crypto-currencies,  digital  money  or  other  unofficial  forms  of 
payment (e.g. hawala)9.  

Tackling  migrant  smuggling  is  essential  to  dismantling  organised  crime  networks  that  can 
cause human rights violations and death, and to countering the increase in irregular migration 
to the EU. A comprehensive and sustainable approach to migration requires a combination of 
robust and efficient actions complementing mutually beneficial partnerships with countries of 
origin  and  transit,  addressing  the  root  causes  of  migration  and  in  particular  irregular 
migration,  and  at  the  same  time  fighting  organised  crime  including  migrant  smuggling  and 
trafficking in human beings. The New Pact  on Migration and Asylum10 puts  preventing and 
countering migrant smuggling at the centre of its comprehensive approach to migration.   

The  existing  EU  legal  and  operational  framework  on  migrant  smuggling  needs  to  be 
modernised  and  reinforced  to  enhance  the  tools  at  the  disposal  of  the  European  Union  to 
prevent and respond to this continuously evolving crime, including in the context of the legal 
obligations  on  the  Union  and  its  Member  States  under  international  law  under  the  United 
Nations Protocol against the Smuggling of Migrants by Land, Sea and Air.  

This  proposal  for  a  Directive  is  part  of  a  set  of  measures  that  operationalise  the  call  of 
President von der Leyen  and aim to  modernise  and strengthen the existing  legal  framework 
and  provide  the  Union  with  rules  which  are  fit  for  purpose.  It  updates  and  modernises  the 
existing  EU  criminal  law  rules  of  the  “Facilitators  Package”,  composed  of  Directive 
2002/90/EC  establishing  a  common  definition  of  the  offence  of  facilitation  of  unauthorised 
entry, transit, and  residence11, and Framework Decision 2002/946/JHA on the strengthening 
of  the  penal  framework  to  prevent  the  facilitation  of  unauthorised  entry,  transit,  and 
residence12.  
This proposal is accompanied by a Commission proposal for a Regulation13, which enhances 
police  cooperation  as  well  as  the  powers  of  Europol  in  the  area  of  migrant  smuggling  and 
trafficking  in  human  beings  notably  by  codifying  the  establishment  of  the  European  Centre 
Against  Migrant  Smuggling  within  the  Europol  and  reinforcing  its  related  powers.  The 
proposal  enhances  the  strategic  and  operational  tasks  of  Europol  on  fighting  migrant 
smuggling  to  steer  and  support  the  Centre’s  activities  and  to  identify  and  implement 

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Europol, Criminal Networks in Migrant Smuggling, Europol Spotlight, 2023. 
Frontex, Risk Analyses for 2023/2024. 
Europol (2023), Criminal Networks in Migrant Smuggling, Europol Spotlight. 
COM(2020) 609 final. 
OJ L 328, 5.12.2002, p. 17. 
OJ L 328, 5.12.2002, p. 1. 
COM(2023) 754 final. 

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operational  priorities  and  actions.  It  establishes  a  governance  framework,  which  includes 
Member  States’  entities  responsible  for  migrant  smuggling,  the  Commission,  and  other  EU 
agencies.  It  strengthens  inter-agency  cooperation  with  Frontex  and  Eurojust  and  reinforces 
cooperation between Europol and third countries.  

This  package  is  presented  on  the  day  of  the  International  Conference  launching  a  “Global 
Alliance to counter migrant smuggling”. With this Conference, the Commission is creating a 
framework  for  strong  political  cooperation  with  international  partners  to  jointly  counter 
migrant smuggling globally. 

These  three  initiatives  complement  the  existing  initiatives  in  the  area  of  countering  migrant 
smuggling,  implementing  the  renewed  EU  action  plan  against  smuggling  (2021-2025)14  by 
modernising  the  existing  EU  legal  framework  to  sanction  migrant  smugglers  acting  on  the 
migratory  routes,  and  setting  out  a  renewed  legal,  operational  and  international  cooperation 
framework against migrant smuggling for the years to come. 

Together,  these  proposals  aim  to  modernise  the  legal  framework  to  fight  the  smuggling  of 
migrants,  to  ensure that we have the necessary legal  and operational  tools to  respond to  the 
new  modus  operandi  of  smugglers,  as  set  out  in  the  Commission  work  programme  2024 
announced on 17 October 2023. 

Objectives of the proposal 

The current EU legal framework on facilitation of unauthorised entry, transit and residence in 
the  EU  was  adopted  in  2002  under  provisions  pre-dating  the  Treaty  of  Lisbon.  The  general 
objective  of  this  proposal  for  a  Directive  is  to  bring  about  a  modern  EU  criminal  law 
instrument  that  clearly  defines  and  effectively  sanctions  the  offence  of  facilitation  of 
unauthorised entry, transit and stay in the EU, in line with the provisions of Article 83 of the 
Treaty on the Functioning of the European Union and the United Nations Protocol against the 
Smuggling of Migrants by Land, Sea and Air. 

This proposal for a Directive serves the following specific objectives: 

– 

Ensuring  an  effective  investigation,  prosecution  and  sanctioning  of  organised 
criminal networks responsible for migrant smuggling 

The  2017  REFIT  evaluation  of  the  current  Facilitators  Package,  and  the  subsequent 
monitoring  of  its  implementation,  pointed  to  the  challenges  linked  to  a  broad  definition  on 
what constitutes a crime of facilitation of unauthorised entry, transit and residence. Namely, it 
pointed to the fact that it has not been effective in creating clarity and legal certainty about the 
distinction between facilitation of irregular migration and humanitarian assistance, due to the 
broad definition of the offence and the absence of exemptions. This proposal brings clarity on 
which offences should be criminalised. These include facilitation conducted for  financial  or 
material benefit or the promise thereof; facilitation that is highly likely to cause serious harm 
to a person even though conducted without financial or material benefit; and in cases of public 
instigation of third-country nationals, for instance through the internet, to enter, transit across 
or stay irregularly in the European Union. The proposal also clarifies that the purpose of the 
Directive  is  not  to  criminalise  third-country  nationals  for  the  fact  of  being  smuggled, 
assistance  provided  to  family  members,  or  humanitarian  assistance  or  the  support  of  basic 
human needs provided to third-country nationals in compliance with legal obligations. 

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COM(2021) 591 final. 

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Furthermore, the refined definition also provides that the offence of facilitation can take place 
within  the  territory  of  any  Member  State,  facilitating  judicial  cooperation  between  Member 
States.  

– 

More harmonised penalties that take account of the seriousness of the offence 

Since the adoption of the Facilitators Package in 2002, criminal networks involved in migrant 
smuggling  have  increasingly  resorted  to  violence  towards  migrants  and  law  enforcement 
authorities, endangering lives. The proposal introduces the definition of  aggravated criminal 
offences  (e.g.,  offence  committed  as  part  of  an  organised  criminal  group,  causing  serious 
harm  or  endangering  life  or  health,  causing  death)  to  which  there  are  corresponding  higher 
level  of  criminal  penalties.  The  minimum  level  of  maximum  penalties  in  the  proposed 
Directive  are  higher  than  those  provided  for  by  the  current  Facilitators  Package  (which 
envisaged a maximum level  of imprisonment of at  least  8 years)  and have been determined 
taking  into  account  the  overall  regime  of  the  penalties  introduced  by  EU  criminal  law 
instruments.  The  main  offence  of  facilitation  would  be  punishable  by  a  maximum  level  of 
imprisonment  of  at  least  3  years,  while  aggravated  offences  (e.g.  organised  crime,  use  of 
serious violence) for at least 10 years and the most serious offences (causing death) 15 years.  

– 

Improving the jurisdictional reach 

The  people  who  are  organising  and  conducting  migrant  smuggling  activities  often  reside 
outside the EU and are therefore outside the reach of the jurisdiction of the Member States. To 
increase  the  possibilities  of  sanctioning  high-value  targets  who  are  organising  smuggling 
activities and to avoid a situation where no State is able to exercise jurisdiction over serious 
and  tragic  smuggling  cases  happening  for  instance  in  international  waters,  the  proposed 
Directive expands the jurisdiction of the Member States to cases in which the facilitation of 
unauthorised  entry  into  the  EU  fails  and  third-country  nationals  lose  their  lives:  this  is,  for 
instance,  the  case  in  which  unseaworthy  boats  sink  in  international  waters,  therefore  before 
reaching the territorial waters of a Member State or a third country.  The proposed Directive 
also expands jurisdiction over offences committed on board of ships or aircrafts registered in 
a Member State or flying it flag, and offences committed by legal persons doing business but 
not necessarily established in the EU. 

– 

Reinforcing Member States resources to tackle and prevent migrant smuggling 

To ensure that Member States effectively counter migrant smuggling, the proposed Directive 
requires  Member  States  to  make  sure  that  the  relevant  law  enforcement  and  judicial 
authorities  are  adequately  resourced,  sufficiently  trained  and  specialised  to  ensure  effective 
prevention,  investigation  and  prosecution  of  offenders.  In  addition,  Member  States  should 
also work on the prevention of migrant smuggling, through information and awareness-raising 
campaigns, research and education programmes. 

– 

Improving data collection and reporting  

Lack  of  robust,  comprehensive  and  comparable  data  on  migrant  smuggling  offences  and 
criminal  justice  responses  at  national  and  European  level  has  been  identified  in  the  2017 
evaluation15  as  a  key  element  hindering  the  assessment  of  the  effects  of  the  Facilitators 
Package  in  the  Member  States;  furthermore,  it  prevents  national  policy  makers  and 
practitioners from monitoring and measuring the effectiveness of their measures. To address 
this shortcoming and ensure better monitoring, the proposal requires Member States to collect 
and report statistical data on an annual basis. This would contribute to a better understanding 

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SWD(2017) 117 final. 

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of the nature and scale of migrant smuggling, the detection of cases and the responses of the 
criminal justice systems of the Member States, supporting evidence-based policy making.  

• 

Consistency with existing policy provisions in the policy area 

This proposal is consistent with the New Pact on Migration and Asylum, which provides for a 
strong European response to migrant smuggling inside and outside the EU as an essential part 
of  the  comprehensive  approach  to  migration.  It  implements  the  renewed  EU  action  plan 
against  smuggling  (2021-2025)16,  by  updating  and  modernising  the  existing  EU  legal 
framework  to  sanction  migrant  smugglers  acting  on  the  migratory  routes.  The  proposal  is 
consistent  and  coherent  with  the  EU  Action  Plans  presented  by  the  Commission  on  the 
Central  Mediterranean,  the  Eastern Mediterranean, the  Western Mediterranean and  Atlantic, 
and  the  Western  Balkans  routes,  as  well  as  with  the  Toolbox  addressing  the  use  of 
commercial means of transport to facilitate irregular migration to the EU17 and the proposal 
for a Regulation on measures against transport operators that facilitate or engage in trafficking 
in  persons  or  smuggling  of  migrants  in  relation  to  illegal  entry  into  the  territory  of  the 
European  Union18.  It  is  also  in  line  with  commitments  of  comprehensive  partnerships  on 
migration undertaken at international level. 

This proposal is also consistent with the UN Protocol Against the Smuggling of Migrants by 
Land,  Sea  and  Air,  supplementing  the  United  Nations  Convention  against  Transnational 
Organised Crime to which the European Union is party. The UN Protocol includes financial 
or other material benefit as a constituent element of the crime and provides that third-country 
nationals are not to become liable to criminal prosecution under the Protocol for having been 
subject to the offence. 
The proposal supports the objectives of the EU Security Union Strategy19, the EU strategies to 
tackle Organised Crime 2021-202520 and on Combating Trafficking in Human Beings 2021-
202521, as well as the revised EU Maritime Security Strategy22. 

The proposal  is  consistent  with  the Commission’s  2020 Guidance on the  implementation  of 
EU  rules  on  definition  and  prevention  of  the  facilitation  of  unauthorised  entry,  transit  and 
residence23, which asserts that humanitarian assistance mandated by law (for example in the 
framework  of  search  and  rescue  operations)  cannot  and  must  not  be  criminalised,  that 
criminalisation  of  any  non-state  actors  that  carry  out  search  and  rescue  operations  at  sea, 
complying with the relevant legal framework, amounts to a breach of international law and is 
therefore not permitted by EU law and that, where applicable, an assessment of whether an act 
falls within the concept of ‘humanitarian assistance’ – a concept that cannot be construed in a 
manner that would allow an act mandated by law to be criminalised – should be carried out on 
a case-by-case basis, taking into account all the relevant circumstances.  

• 

Consistency with other Union policies 

The  proposal  for  a  Directive  is  in  line  with  the  policy  aims  pursued  by  the  Union,  and  in 
particular with: 

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COM(2021) 591 final. 
Available at: https://ec.europa.eu/commission/presscorner/detail/en/ip_23_3057.  
COM(2021) 753 final. 
COM(2020) 605 final. 
COM(2021) 170 final. 
COM(2021) 171 final. 
Council  Conclusions  14280/23  of  24  October  2023  on  the  Revised  EU  Maritime  Security  Strategy 
(EUMSS) and its Action Plan. 
OJ C 323, 1.10.2020, p. 1. 

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• 

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• 

Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 
on  the  freezing  and  confiscation  of  instrumentalities  and  proceeds  of  crime  in  the 
European  Union  and  the  Proposal  for  a  Directive  on  asset  recovery  and 
confiscation24; 

Convention on Mutual Assistance in Criminal Matters between the Member States of 
the European Union; 

Directive  2014/41/EU  regarding  the  European  Investigation  Order  in  criminal 
matters; 

Directive 2012/29/EU of the European Parliament and of the Council of 25 October 
2012 establishing minimum standards on the rights, support and protection of victims 
of crime, and replacing Council Framework Decision 2001/220/JHA; 

Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 
on preventing and combating trafficking in human beings and protecting its victims, 
and replacing Council Framework Decision 2002/629/JHA; 

Council  Directive  2004/81/EC  of  29  April  2004  on  the  residence  permit  issued  to 
third-country nationals who are victims of trafficking in human beings or who have 
been the subject of an action to facilitate illegal immigration, who cooperate with the 
competent authorities; 

Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 
2016 on the European Union Agency for Law Enforcement Cooperation (Europol); 

Regulation  (EU)  2018/1727  of  the  European  Parliament  and  of  the  Council  of  14 
November  2018  on  the  European  Union  Agency  for  Criminal  Justice  Cooperation 
(Eurojust), and replacing and repealing Council Decision 2002/187/JHA; 

Regulation  (EU)  2022/2065  of  the  European  Parliament  and  of  the  Council  of  19 
October  2022  on  a  Single  Market  for  Digital  Services  and  amending  Directive 
2000/31/EC (Digital Services Act); 

Directive  2009/52/EC  of  the  European  Parliament  and  of  the  Council  of  18  June 
2009 providing for minimum standards on sanctions and measures against employers 
of illegally staying third-country nationals; 

Council  Framework  Decision  2009/948/JHA  on  prevention  and  settlement  of 
conflicts  of  exercise  of  jurisdiction  in  criminal  proceedings  and  the  proposal  for  a 
Regulation on the transfer of proceedings in criminal matters25. 

This  proposal  is  without  prejudice  to  Directive  2004/38/EC26  and  the  EU-UK  Withdrawal 
Agreement27. The proposal does not in any respect amend Directive 2004/38/EC or the EU-
UK Withdrawal Agreement. 

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COM(2022) 245 final. 
COM(2023) 185 final. 
Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of 
citizens  of  the  Union  and  their  family  members  to  move  and  reside  freely  within  the  territory  of  the 
Member  States  amending  Regulation  (EEC)  No  1612/68  and  repealing  Directives  64/221/EEC, 
68/360/EEC,  72/194/EEC,  73/148/EEC,  75/34/EEC,  75/35/EEC,  90/364/EEC,  90/365/EEC  and 
93/96/EEC, OJ L 158, 30.4.2004, p. 77. 

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2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The  legal  basis  for  this  proposal  is  Article  83(2)  of  the  Treaty  on  the  Functioning  of  the 
European Union (TFEU), which sets out the EU’s competence to establish minimum rules if 
the approximation of criminal laws and regulations of the Member States proves essential to 
ensure the  effective implementation of a Union policy in  an area which has been subject  to 
harmonisation measures. The area of common immigration policy, notably the conditions of 
entry and residence, illegal immigration and unauthorised residence, and the management of 
the  external  borders  of  the  EU,  has  already  been  subject  to  harmonisation  by  virtue  of  the 
Union  acquis  in  the  area  of  Title  V  TFEU  on  Freedom,  Security  and  Justice,  Chapter  2 
policies on border checks, asylum and immigration, and it is essential to ensure its effective 
implementation  through  the  approximation  of  criminal  laws  and  regulations  of  the  Member 
States. 

• 

Subsidiarity  

Migrant  smuggling is  a  cross-border crime directly affecting the  Union,  its  external  borders 
and  often  more  than  one  Member  State  at  the  time.  Member  States  acting  alone  cannot 
successfully  address  this  cross-border  crime  successfully.  Further  approximation  in  the 
definition of the offence, the levels of sanctions and the applicable preventive measures in the 
Member  States  can  ensure  more  effective  action  in  detecting,  investigating  and  prosecuting 
migrant smuggling and preventing forms of “forum shopping” by criminals taking advantage 
of systems where penalties are less severe.  

To  increase  the  deterrent  effect  of  the  sanctions  in  the  Union,  the  proposal  introduces 
aggravated offences, to which there are corresponding higher penalties, as well as aggravating 
circumstances,  for  instance  in  case  of  recidivism,  if  the  offence  is  committed  by  a  public 
official or by a person carrying a firearm. At the moment, according to the information at the 
Commission’s disposal, maximum level of criminal penalties for facilitation of unauthorised 
entry and transit in the Member States range from up to one year in Belgium and Spain to up 
to  10  years  in  Bulgaria,  Cyprus,  Ireland  and  Slovenia.  Criminal  penalties  for  facilitation  of 
residence  in  the  Member  States  range  from  up  to  one  year  in  Austria,  Belgium,  Czechia, 
Estonia and Spain to up to  15 years in Cyprus for facilitation of residence.  Fifteen Member 
States28 since 2015 have found it relevant to amend their national legislation (amendments are 
currently  pending  in  three  Member  States29)  with  the  changes  including  stricter  penalties30, 
criminalisation  of  smuggling31  attempt  and  the  exemption  of  humanitarian  assistance  of 
unauthorised transit32. 

In accordance with the principles of subsidiarity and proportionality as set out in Article 5(3) 
of  the  Treaty  on  European  Union,  the  objectives  of  the  proposal  cannot  be  sufficiently 
achieved  by  Member  States  and  can  thus  be  better  achieved  at  the  Union  level.  Due  to  the 
transnational  dimension  of  migrant  smuggling,  and  considering  already  existing  EU 

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Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the 
European  Union  and  the  European  Atomic  Energy  Community  2019/C  384  I/01,  OJ  C  384  I, 
12.11.2019, p. 1. 
Belgium,  Bulgaria,  Cyprus,  Greece,  France,  Croatia,  Hungary,  Ireland,  Italy,  Malta,  the  Netherlands, 
Poland, Portugal, Slovenia and Slovakia. 
France, the Netherlands, Slovakia. 
Cyprus, Italy, the Netherlands, Slovenia. 
Belgium. 
France. 

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legislation,  action  at  EU  level  is  expected  to  be  more  effective  and  efficient  and  to  bring  a 
tangible  added  value  compared  to  action  taken  by  Member  States  individually.  EU 
intervention  would  create  added  value  by  further  approximating  criminal  law  of  Member 
States and contributing to ensuring a common playing field between Member States. 

• 

Proportionality 

In accordance with the principle of proportionality, as set out in Article 5(4) of the Treaty on 
European Union, the proposed  Directive is  limited to  what  is  necessary  to reinforce the EU 
framework on preventing and countering migrant smuggling and does not go beyond what is 
necessary to achieve the policy objectives at stake.  

In  order  to  specifically  address  serious  forms  of  migrant  smuggling,  for  instance  those  that 
result  in  serious  harm  or  loss  of  life,  which  are  currently  not  explicitly  mentioned  in  the 
Facilitators Package, the proposal for a Directive is introducing the definition of aggravated 
criminal offences, as well as a set of aggravating and mitigating circumstances, which ensure 
the  proportionality  of  the  criminal  penalties,  in  line  with  the  principle  of  proportionality  of 
criminal penalties as enshrined in Article 49(3) of the Charter.  

• 

Choice of the instrument 

In accordance with Article 83(2) of the Treaty on the Functioning of the European Union, the 
approximation  of  criminal  laws  and  regulations  of  the  Member  States  that  is  essential  to 
ensure the  effective  implementation of a Union policy in  an area which has been subject  to 
harmonisation  measures,  can  only  be  achieved  by  means  of  a  Directive  of  the  European 
Parliament and the Council adopted in accordance with the ordinary legislative procedure. 

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

An  evaluation  of  the  Facilitators  Package  was  carried  out  in  the  framework  of  the 
Commission’s Regulatory Fitness and Performance Programme (REFIT) in 2017. It aimed at 
assessing  whether  the  Facilitators  Package  was  fit-for-purpose.  To  this  effect,  the 
effectiveness, efficiency, relevance, coherence and EU added value of the existing provisions 
were  evaluated.  The  evaluation  showed  that  all  Member  States  transposed  the  Facilitators 
Package and amended their legislation accordingly. The adoption of the Facilitators Package 
clarified the distinction between the offences of migrant smuggling and trafficking in human 
beings and allowed for further approximation of the definition of the offence with all Member 
States introducing sanctions for the facilitation of unauthorised entry, transit and residence. 

The evaluation findings pointed to a serious lack of reliable and comparable data on migrant 
smuggling  offences  and  criminal  justice  responses  at  national  and  European  level,  affecting 
almost all evaluation criteria. Due to the limited availability of data, it is not possible to assess 
how and to what extent increases in detection and prosecution of facilitators, or the enhanced 
cooperation  between  Member  States,  are  directly  linked  to  the  implementation  of  the 
Facilitators Package. Collecting and analysing reliable and timely submitted statistical data on 
crime and criminal justice is indispensable for developing evidence-based policy at EU level. 

Available data and stakeholders' views highlighted both  critical  and satisfactory elements  in 
relation  to  the  effectiveness  of  the  Facilitators  Package  in  reaching  its  objectives.  For 
example, while the deterrent effect of this legislation was questioned against the background 
of  increasing  migrant  smuggling  to  the  EU,  the  approximation  of  the  penal  framework  was 
assessed more positively.  

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Differences  were  noted  also  across  the  different  categories  of  stakeholders,  who  expressed 
diverse  and  sometimes  contradicting  views  on  different  aspects  of  the  Facilitators  Package. 
Most of the individuals and organisations consulted were strongly in favour of a modification 
of the existing  definition of the offence. Despite  the fact  that the current  Article 1(2) of the 
Facilitation  Directive  leaves  the  choice  to  the  Member  States  to  exempt  from  criminal 
sanctions  the  facilitation  of  unauthorised  entry  and  transit  when  it  is  conducted  on 
humanitarian grounds, this provision was criticised for its optional character, entailing a lack 
of  clarity  and  legal  certainty.  Concerns  were  raised  by  the  representatives  of  civil  society 
about  the  perceived  risks  of  criminalisation  of  assistance  provided  by  civil  society 
organisations or individuals assisting and/or working with irregular migrants. 

These perceptions and criticisms concerned both humanitarian assistance provided within the 
territory of a Member State as well as at the borders or on the high seas, despite the different 
legal  frameworks  that  apply  to  such  conducts.  The  analysis  of  the  implementation  of  the 
Facilitators Package revealed the existence of varied approaches to what  constitutes a crime 
across Member States: whereas in certain Member States the practice of the authorities is to 
focus on cases of facilitation when committed with a lucrative intent or by organised criminal 
groups,  in  others,  due  to  the  broad  definition  of  the  offence,  people  providing  services  to 
irregular  migrants  in  the  context  of  their  professional  activities  or  providing  assistance  for 
selfless reasons have also been prosecuted.  

• 

Stakeholder consultations 

The Commission had a series of targeted consultations with a wide range of stakeholders on 
the implementation of the Facilitators Package. These consultations included Member States 
law  enforcement  and  judicial  authorities,  relevant  EU  Agencies  (Eurojust,  Europol,  the 
European Border and Coast Guard Agency, the Fundamental Rights Agency) and civil society 
representatives who were consulted in the framework of the preparation of the evaluation of 
the  Facilitators  Package  in  2017,  in  the  preparation  of  the  Commission  Guidance  on  the 
implementation  of  EU  rules  on  definition  and  prevention  of  the  facilitation  of  unauthorised 
entry, transit and residence in 2020, in the preparation of the renewed EU action plan against 
smuggling (2021-2025) and in the course of 2023 as part of the monitoring and mapping of 
the implementation of the Facilitators Package in the Member States. 

In general,  stakeholders  positively  assessed the approximation of the  criminal framework in 
the Member States. Divergent views were expressed by different categories of stakeholders on 
the  definition  of  the  offence  and  the  optional  character  of  exempting  actions  conducted  on 
humanitarian grounds.  Representatives of civil  society organisations highlighted that a wide 
definition  of  the  offence  leads  to  a  lack  of  clarity  and  legal  certainty  as  well  as  to  risks  of 
criminalisation  of  humanitarian  assistance  by  civil  society  organisations  or  individuals 
assisting  and/or  working  with  irregular  migrants,  whereas  Member  States  did  not  refer  to  a 
need  to  narrow  the  definition  of  the  offence  or  to  introduce  a  mandatory  exemption  from 
criminalisation.  However,  due  to  the  varied  national  approaches  to  the  crime  of  facilitation 
that the effectiveness of common EU action, and in order to focus on offences committed with 
a lucrative intent in particular by organised criminal groups, it is necessary to clearly define 
the  offence  of  facilitation.  Consultation  of  Europol  and  Eurojust  also  pointed  to  the  same 
approach because it would facilitate operational cooperation and response.  

In the preparation of this proposal, the Commission  consulted the Member States as well as 
Eurojust, Europol and the European Border and Coast Guard Agency on the main gaps in the 
EU legal and operational framework and on the possible response to those. 

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• 

Impact assessment 

The  proposal  is  exceptionally  presented  without  an  accompanying  impact  assessment.  This 
proposal  nevertheless  builds  on  the  evidence  gathered  through  the  REFIT  evaluation  of  the 
Facilitators  Package  conducted  in  2017,  the  public  consultation  on  the  renewed  EU  action 
plan  against  migrant  smuggling  (2021-2025),  the  information  and  evidence  provided  by 
Europol,  Eurojust  and  Frontex,  as  well  as  on  the  engagement  with  the  Member  States  and 
civil  society stakeholders  in  the framework of monitoring the implementation  of  the current 
legal framework. The information and evidence gathered from these consultations pointed to 
shortcomings concerning a serious lack of reliable and comparable data on migrant smuggling 
offences  and  criminal  justice  responses  at  national  and  European  level,  the  need  to  further 
align the definition of the offence and to more clearly define the criminal offence under EU 
legislation, in particular with regard to the element of financial gain, the optional character of 
the exemption from criminal sanctions of conduct aimed at providing humanitarian assistance, 
the perceived risks of criminalisation and the deterrent effect of the existing legislation. 

• 

Regulatory fitness and simplification 

In  compliance  with  the  Commission’s  Regulatory  Fitness  and  Performance  Programme 
(REFIT), all initiatives aimed at revising existing EU legislation should seek to simplify and 
deliver stated policy objectives more efficiently, i.e. by reducing unnecessary regulatory costs 
and the administrative burden on Member States. The proposed Directive aims at improving 
the Member States’ capability to counter migrant smuggling efficiently, notably in relation to 
threats  and trends that have emerged and evolved over the past  two decades since the  entry 
into force of the Facilitators Package.  

The  proposal  will  approximate  the  legal  landscape  addressing  the  criminalisation  and 
sanctioning  of migrant  smuggling  across the Member States. The new rules are  expected to 
establish more legal certainty regarding criminalised conducts and to adapt criminal penalties 
to the seriousness of the offences. 

• 

Fundamental rights 

This  proposal  respects  the  fundamental  rights  and  observes  the  principles  recognised  by 
Articles  2  and  6  of  the  Treaty  on  European  Union  and  enshrined  in  the  Charter  of 
Fundamental Rights of the European Union (‘Charter’).  

Several fundamental rights and freedoms enshrined in the Charter are relevant in the context 
of  countering  migrant  smuggling.  These  include  the  rights  to  respect  for  human  dignity 
(Article 1), the right to life and physical integrity (Articles 2 and 3), the prohibition of torture 
and  inhuman  or  degrading  treatment  or  punishment  (Article  4),  the  right  to  personal  liberty 
(Article  6  of),  the  respect  for  private  and  family  life  (Article  7),  the  right  to  protection  of 
personal data (Article 8), the right to property (Article 17), the right to  asylum (Article 18), 
the rights of the child (Article 24), the right to an effective remedy and to a fair trial (Article 
47), the presumption of innocence and right of defence (Article 48), the principles of legality 
and  proportionality  of  criminal  offences  and  penalties  (Article  49),  and  the  right  not  to  be 
tried or punished twice in criminal proceedings for the same offence (Article 50).  

This  proposal  for  a  Directive,  through  the  inclusion  of  aggravated  criminal  offences, 
aggravating  and  mitigating  circumstances,  the  regime  of  sanctions  on  legal  persons  and  the 
requirement of preventive measures, would increase the effectiveness of tackling the crime of 
migrant smuggling and ensuring a proportionate response. This also increases the protection 
of all relevant fundamental rights of the third-country nationals concerned.  

The provisions introducing new offences or sanctions or amending the definition of the crime 
were thoroughly analysed in the light of the right to an effective remedy and to a fair trial, the 

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presumption  of  innocence  and  the  right  of  defence,  the  principles  of  legality  and 
proportionality  of  criminal  offences  and  penalties,  and  the  right  not  to  be  tried  or  punished 
twice  in  criminal  proceedings  for  the  same  criminal  offence.  They  were  also  analysed  from 
the perspective of the respect of the freedom of assembly and of association and the right to 
family life. 

This Directive will have to be transposed into national law respecting fundamental rights. In 
particular,  Member  States  should  ensure  that  the  imposition  of  penalties  respects  the 
principles of the Charter, including the privilege against self-incrimination, the right to remain 
silent  and  the  prohibition  of  being  tried  or  punished  twice  in  criminal  proceedings  for  the 
same  offence.  Member  States  should  also  ensure  that  the  procedural  rights  of  suspected  or 
accused persons in criminal proceedings are respected, as enshrined in the six EU Procedural 
i.e.  Directives  2010/64/EU33,  2012/13/EU34,  2013/48/EU35,  (EU) 
Rights  Directives, 
2016/34336,  (EU)  2016/80037  and  (EU)  2016/191938  of  the  European  Parliament  and  of  the 
Council. 

4. 

BUDGETARY IMPLICATIONS 

This proposal has budgetary implications for the Union, notably additional human resources 
needed for the European Commission (4 FTEs) to ensure support to the Member States in the 
transposition  and  correct  implementation  of  the  legislative  package  that  includes  this 
Directive and the proposal for a Regulation on enhancing police cooperation in relation to the 
prevention, detection and investigation of migrant smuggling and trafficking in human beings, 
and on enhancing Europol’s support to preventing and combating such crimes.  

The  annex  to  the  Legislative  Financial  Statement  accompanying  this  proposal  and  the 
proposal for a Regulation further details and justifies these needs. 

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

In  accordance  with  this  proposal  for  a  Directive,  Member  States  are  required  to  bring  into 
force the laws, regulations and administrative provisions necessary to comply with it by one 
year after its entry into force at the latest and to communicate to the Commission the text of 
those  provisions.  The  corresponding  national  provisions  need  to  explicitly  refer  to  this 
Directive. 

33 

34 

35 

36 

37 

38 

Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to 
interpretation and translation in criminal proceedings, OJ L 280, 26.10.2010, p. 1. 
Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to 
information in criminal proceedings, OJ L 142, 1.6.2012, p. 1. 
Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of 
access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right 
to have a third party informed upon deprivation of liberty and to communicate with third persons and 
with consular authorities while deprived of liberty, OJ L 294, 6.11.2013, p. 1. 
Directive  (EU)  2016/343  of  the  European  Parliament  and  of  the  Council  of  9  March  2016  on  the 
strengthening  of  certain  aspects  of  the  presumption  of  innocence  and of  the  right  to  be present  at  the 
trial in criminal proceedings, OJ L 65, 11.3.2016, p. 1. 
Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural 
safeguards  for  children  who  are  suspects  or  accused  persons  in  criminal  proceedings,  OJ  L  132, 
21.5.2016, p. 1. 
Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal 
aid  for  suspects  and  accused  persons  in  criminal  proceedings  and  for  requested  persons  in  European 
arrest warrant proceedings, OJ L 297 4.11.2016, p. 1. 

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• 

Explanatory documents (for directives) 

No explanatory documents on the transposition are considered necessary. 

• 

Detailed explanation of the specific provisions of the proposal 

Article 1 – Subject matter: this provision sets out the scope of the proposed Directive, notably 
that it establishes minimum rules concerning the definition of criminal offences and sanctions 
on  the  facilitation  of  unauthorised  entry,  transit  and  stay  of  third-country  nationals  in  the 
Union, as well as measures to better prevent and counter it. 

Article  2  –  Definitions:  this  provision  contains  definitions  of  the  main  terms  used  in  the 
Directive, namely ‘third-country national’, ‘unaccompanied minor’ and ‘legal person’. 

Article 3 – Criminal offences: this provision defines that intentionally assisting a third-country 
national to enter, transit across or stay within the territory of any Member State constitutes a 
criminal  offence when  there is  an actual or promised  financial or material benefit, or where 
the  offence  is  highly  likely  to  cause  serious  harm  to  a  person.  Publicly  instigating  third-
country  nationals,  for  instance  through  the  internet,  to  enter,  transit  or  stay  in  the  Union 
irregularly is also considered to be an offence. The proposal also highlights in recitals that the 
purpose  of  the  Directive  is  not  to  criminalise  third-country  nationals  for  the  fact  of  being 
smuggled.  Moreover,  the  recitals  also  clarify  that  it  is  not  the  purpose  of  this  Directive  to 
criminalise, on the one hand, assistance provided to family members and, on the other hand, 
humanitarian  assistance  or  the  support  of  basic  human  needs  provided  to  third-country 
nationals in compliance with legal obligations. 

Article 4 – Aggravated criminal offences: this provision defines the criminal offences related 
to more serious conducts concerning the facilitation of unauthorised entry, transit and stay in 
the  Union,  e.g.  where  the  offence  is  committed  within  the  framework  of  a  criminal 
organisation,  causes  serious  harm  to,  or  endangers  the  life  of  the  third-country  nationals 
concerned,  is  committed  using  serious  violence,  or  the  smuggled  migrants  are  particularly 
vulnerable, including unaccompanied minors. Facilitation that causes the death of one or more 
third-country nationals is also an aggravated criminal offence.  

Article  5  -  Incitement,  aiding  and  abetting,  and  attempt:  this  provision  requires  Member 
States  to  criminalise  forms  of  aiding  and  abetting,  inciting  and  attempting  the  offences 
referred to in this Directive.   

Article  6  –  Penalties  for  natural  persons:  this  provision  establishes  minimum  rules  on  the 
penalties  for  the  offences  and  the  aggravated  offences  defined  in  this  Directive.  Member 
States  should  ensure  that  these  are  punishable  by  effective,  proportionate  and  dissuasive 
criminal penalties. The proposed level of penalties reflects the seriousness of the offences: the 
main  criminal  offence  of  facilitation  should  be  punishable  by  a  maximum  term  of 
imprisonment of at least three years; aggravated offences should be punishable by a maximum 
term  of  imprisonment  of  at  least  ten  years;  the  most  serious  aggravated  offences,  notably 
those that cause death of third-country nationals, should be punishable by a maximum term of 
imprisonment  of  at  least  fifteen  years.  The  proposed  article  also  establishes  the  additional 
sanctions or measures that could be imposed to convicted natural persons. 

Article 7 – Liability of legal persons: this provision contains obligations to ensure the liability 
of  legal  persons  for  offences  referred  to  in  this  Directive  where  such  offences  have  been 
committed for their benefit. The provision also provides that Member States ensure that legal 
persons can be held accountable for lack of supervision and control that has made possible the 
commission of a criminal offence for the benefit of the legal person. Moreover, the liability of 
the legal person should not exclude criminal proceedings against natural persons.  

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Article 8 – Sanctions for legal persons: this provision sets out the sanctions applicable to legal 
persons  involved  in  the criminal  offences  covered  by  this  proposal.  Such  sanctions  must  be 
proportionate  to  the seriousness  of the offence.  Imposed fines  should  range from 3%  of the 
total worldwide turnover for the basic criminal offence, to 5% for aggravated offences, to 6% 
for the aggravated criminal offence causing death. 

Article 9 – Aggravating circumstances: this provision sets out the aggravating circumstances 
to  be  considered  by  the  judicial  authorities  when  imposing  sanctions  in  relation  to  the 
offences defined in this Directive.  

Article 10 – Mitigating circumstances: this provision sets out the mitigating circumstances to 
be considered by the judicial authorities when imposing sanctions in relation to the offences 
defined in this Directive.  

Article 11 – Limitation periods for criminal offences: this provision lays down the limitation 
periods  to  allow  the  competent  authorities  to  investigate,  prosecute  and  adjudicate  the 
criminal offences covered by this proposal, as well as the execution of relevant sanctions, for 
a  sufficient  time.  This  proposal  sets  the  minimum  length  of  the  limitation  periods  between 
seven (with a derogation to five) to fifteen years, depending on the seriousness of the offence.  

Article  12  –  Jurisdiction:  this  provision  requires  Member  States  to  establish  jurisdiction  for 
the  criminal  offences  defined  in  this  proposal.  Each  Member  State  should  establish  its 
jurisdiction  over  offences  committed  partially  or  entirely  in  its  territory,  or  committed  by  a 
national or habitual resident,  or committed on a ship or aircraft registered in  its territory, or 
for the benefit of  a  legal person  established  or operating  on its  territory.  The provision  also 
establishes that Member States should establish jurisdiction over attempts when it resulted in 
the death of the third-country nationals concerned. 

Article 13 – Prevention: this provision requires  Member States to take preventive actions to 
reduce  the  commission  of  the  offences  defined  in  this  Directive,  for  instance  through 
information and awareness raising campaigns and education programmes. 

Article 14 – Resources: this provision aims at ensuring that national authorities which detect, 
investigate,  prosecute  and  adjudicate  on  facilitation  criminal  offences  have  an  adequate 
number  of  qualified  staff  and  sufficient  financial,  technical  and  technological  resources 
necessary to perform their tasks effectively. 

Article 15 –  Training: this provision  requires Member States to provide specialised  training 
for  competent  authorities  and  their  staff  and  to  ensure  that  there  are  adequate  resources  for 
this. 

Article 16 – Investigative tools: this provision aims at ensuring that investigative tools which 
are provided for in national law for organised crime or other serious crime cases can also be 
used in cases of facilitation of irregular migration. 

Article 17: Data collection and statistics: this provision addresses the need to systematically 
collect information on efforts to counter the facilitation of irregular migration and to provide 
statistical  data  on  this  crime  for  developing  evidence-based  policy  at  EU  level.  It  requires 
Member  States  to  collect,  publish  and  send  every  year  the  relevant  statistical  data  to  the 
Commission. 

Article 18: Replacement of Council Directive 2002/90/EC and Council Framework Decision 
2002/946/JHA: this provision replaces the current provisions in the area of the criminalisation 
of facilitation of  unauthorised entry, transit and  stay  in  relation  to  Member States  bound by 
this Directive.  

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Article 19 – Transposition: this provision sets out the conditions of transposition, notably that 
Member States have to  transpose the Directive into the national  legal  order within one year 
after the entry into force. 

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2023/0439 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

laying down minimum rules to prevent and counter the facilitation of unauthorised 
entry, transit and stay in the Union, and replacing Council Directive 2002/90/EC and 
Council Framework Decision 2002/946 JHA 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 83(2) thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national parliaments, 
Having regard to the opinion of the European Economic and Social Committee1, 
Having regard to the opinion of the Committee of the Regions2,  

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

The  facilitation  of  unauthorised  entry,  transit  and  stay  in  the  Union  are  criminal 
activities  that  put  human  life  in  danger  and  disrespect  the  dignity  of  people  for  the 
purpose  of  obtaining  high  profits,  undermining  fundamental  rights.  These  criminal 
activities  contribute  to  irregular  migration,  undermining  the  migration  management 
objectives  of  the  Union.  The  commission  of  such  criminal  activities  is  driven  by 
increasing demand and the high profits obtained by criminal organisations. Preventing 
and countering those offences remains a priority for the Union.  
Directive  2002/90/EC3  and  Council  Framework  Decision  2002/946/JHA4  (the 
‘Facilitators’  Package’)  constitute  the  Union  legal  framework  to  counter  the 
facilitation  of  unauthorised  entry,  transit  and  stay  of  third-country  nationals.  It 
establishes a common definition of the offences of facilitation of unauthorised entry, 
transit  and  residence,  and  sets  up  the  penal  framework  for  the  sanctioning  of  such 
offences. To  address  evolving trends, and to  further  enhance the  effectiveness  of the 
Union framework to prevent and counter these offences, it is necessary to update the 
existing legal framework. 

(3) 

The European Council Conclusions of 9 February 2023 affirmed the need to reinforce 
Union  action  to  prevent  irregular  migration  and  loss  of  life,  notably  by  intensifying 

1 
2 
3 

4 

OJ C , , p. . 
OJ C , , p. . 
Council  Directive  2002/90/EC  of  28  November  2002  defining  the  facilitation  of  unauthorised  entry, 
transit and residence (OJ L 328, 5.12.2002, p. 17., ELI: http://data.europa.eu/eli/dir/2002/90/oj). 
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 L 328, 5.12.2002, 
p. 1., ELI: http://data.europa.eu/eli/dec_framw/2002/946/oj). 

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cooperation with countries of origin and transit, and by ensuring stronger cooperation 
between Member States and with Europol, Frontex and Eurojust. The renewed Action 
Plan  against  migrant  smuggling  (2021-2025)  sets  out  the  policy  response  to  migrant 
smuggling, as an essential part of the comprehensive approach to migration set out in 
the  New  Pact  on  Migration  and  Asylum.  It  sets  out  actions  in  four  priority  areas: 
reinforcing  cooperation  with  partner  countries  and  international  organisations; 
sanctioning  migrant  smugglers  and  preventing 
the  exploitation  of  migrants; 
reinforcing  cooperation  and  supporting  the  work  of  law  enforcement  and  judicial 
authorities; and increasing the knowledge base. 

The facilitation of unauthorised entry, transit and stay is a transnational phenomenon, 
and measures adopted at  Union and  national  levels should recognise  its  international 
dimension.  Union  and  national  actions  should  therefore  take  into  account  the 
international commitments of the Union and its Member States, including in relation 
to  the  Protocol  Against  the  Smuggling  of  Migrants  by  Land,  Sea  and  Air, 
supplementing  the  United  Nations  Convention  against  Transnational  Organized 
Crime,  the  United  Nations  Convention  on  the  Law  of  the  Sea,  the  International 
Convention  for  the  Safety  of  Life  at  Sea,  the  International  Convention  on  maritime 
Search and Rescue, the United Nations Convention on the Rights of the Child, as well 
as the work of the United Nations Office against Drugs and Crime. 

Taking account of the evolution of the activities aimed to facilitate unauthorised entry, 
transit  and  stay  in  the  Union,  as  well  as  the  legal  obligations  of  the  Union  and  the 
Member States under international law, the definition of the criminal offences should 
be further approximated  in  all Member States so  that it covers  the relevant  conducts 
more comprehensively.  

In accordance with the principles of legality and proportionality of criminal law, and 
in order to address criminal activities that put human life in danger and disrespect the 
dignity  of  people  for  the  purpose  of  obtaining  profits,  it  is  necessary  to  provide  a 
precise  and  detailed  definition  of  the  criminal  offences  that  counter  these  criminal 
behaviours.  Assistance  of  unauthorised  entry,  transit  or  stay  in  the  Union  should 
constitute a criminal offence when there is a link with an actual or a promised financial 
or  material  benefit.  This  conduct  should  also  be  criminalised  provided  that  this  is 
highly likely to cause serious harm to the third-country nationals who were subject to 
the  criminal  offence  or  to  any  other  person,  even  though  there  is  no  financial  or 
material  benefit  or no promise of such benefit. It  is  necessary to  establish a criminal 
offence in order to discourage the modus operandi of persons who publicly instigate, 
for instance through the internet, third-country nationals to enter, transit or stay in the 
Union  without  authorisation.  Providing  objective  information  or  advice  to  third-
country nationals on the conditions for the legal  entry and stay in the Union, and on 
international protection, should not be understood as public instigation.  

It is appropriate to provide for criminal liability where there is a link to a financial or 
material benefit, or where migrants are highly likely to be subjected to serious harm. 
These elements will usually not be fulfilled when it comes to assistance among family 
members  or  the  provision  of  humanitarian  assistance  or  the  support  of  basic  human 
needs.  Third-country  nationals  should  not  become  criminally  liable  for  having  been 
the subject to such criminal offences. Moreover, it is not the purpose of this Directive 
to  criminalise,  on  the  one  hand,  assistance  provided  to  family  members  and,  on  the 
other hand, humanitarian assistance or the support of basic human needs provided to 
third-country nationals in compliance with legal obligations. 

(4) 

(5) 

(6) 

(7) 

EN 

16 

  EN 

(8) 

(9) 

The  impact  of  facilitation  of  unauthorised  entry,  transit  and  stay  extends  beyond  the 
Member State of unauthorised entry. Minimum rules concerning the definition of the 
criminal  offences  should  encompass  conducts  taking  place  in  the  territory  of  any 
Member State, to allow Member States other than those of unauthorised entry to act on 
such offences, provided that the Member States concerned establish  jurisdiction over 
these offences. 

There  is  a  need  to  distinguish  between  the  criminal  offence  of  facilitation  of 
unauthorised entry, transit and stay in the Union and the aggravated criminal offences 
that  create  higher  harm  to  individuals  and  to  society.  The  levels  of  penalties  should 
reflect  the  higher  social  concern  regarding  more  serious  and  harmful  conducts, 
therefore aggravated offences should be sanctioned by more severe criminal penalties.  

(10)  Member States should apply this Directive in accordance and in full compliance with 
the 1951 Convention Relating to the Status of Refugees as amended by the Protocol of 
New  York  of  1967,  obligations  related  to  access  to  international  protection,  in 
particular the principle of non-refoulement, and fundamental rights. 

(11)  Penalties  for  the  criminal  offences  should  be  effective,  dissuasive  and  proportionate. 
To this end, minimum levels for the maximum term of imprisonment should be set for 
natural persons. Accessory measures are often effective and, therefore, should be also 
available  in  criminal  proceedings.  Considering  the  possible  risk  to  public  policy  and 
public  security  that  they  may  pose,  third-country  nationals  who  committed  the 
offences  defined  in  this  Directive  should  be  subject  to  return  in  accordance  with 
Directive  2008/115/EC  of  the  European  Parliament  and  of  the  Council5  or  in 
accordance  with  national  law  where  Member  States  have  made  use  of  Article  2(2), 
point (b), of that Directive, either after having served the prison sentence in a Member 
State or in view of serving the prison sentence, or part of it, in a third country, without 
prejudice to more favourable provisions applicable by virtue of Union or national law; 
furthermore,  without prejudice to  more favourable provisions applicable  by virtue of 
Union  or  national  law,  those  third-country  nationals  should  be  prohibited  to  re-enter 
the territory of the Member States for an appropriate period of time to be determined 
on  a  case-by-case  basis,  and  that  can  reach  10  years  in  the  most  serious  cases.  This 
should not affect the discretion of judges or courts in criminal proceedings to impose 
appropriate sanctions in the individual cases. 

(12)  The  assessment  of  the  seriousness  of  the  offence  should  also  extend  to  attempts  to 
committ  the  offence  that  do  not  result  in  unauthorised  entry  in  the  Union.  Attempts 
thatcause the death of one or more third-country nationals should be sanctioned with 
more  severe  penalties  than  other  types  of  attempts.  Setting  minimum  rules  on  the 
maximum  level  of  penalties  at  Union  level  for  such  attempts  is  justified  and 
proportionate in view of the transnational dimension of the offence, and the fact that 
an  attempt  to  committ  the  offence  resulting  in  the  death  of  third-country  nationals 
bears the same gravity as a committed offence resulting in death.  

(13)  Where national law provides for it, legal persons should be held criminally liable for 
the  facilitation  of  unauthorised  entry,  transit  and  stay  in  the  Union.  Member  States 
whose national law does not provide for the criminal liability of legal persons should 
ensure  that  their  administrative  sanctioning  systems  provide  for  effective,  dissuasive 

5 

Directive  2008/115/EC  of  the  European  Parliament  and  of  the  Council  of  16  December  2008  on 
common  standards  and  procedures  in  Member  States  for  returning  illegally  staying  third-country 
nationals (OJ L 348, 24.12.2008, p. 98, ELI: http://data.europa.eu/eli/dir/2008/115/oj). 

EN 

17 

  EN 

 
and proportionate sanction types and levels, as laid down in this Directive in order to 
achieve  its  objectives.  They  should  be  accompanied  by  accessory  measures.  The 
financial situation of legal persons should be considered to ensure the dissuasiveness 
of  the  sanction  imposed  with  criminal  and  non-criminal  fines  taking  into  account 
worldwide turnover of the legal persons. 

(14)  Effectiveness  of  sanctions  imposed  in  practice  should  be  fostered  through  providing 
for aggravating circumstances that reflect the severity of the criminal offence. Graver 
circumstances should include situations conducive to other unlawful activities, such as 
exploitation,  including  sexual  exploitation,  instrumentalisation,  dispossession  of 
identity documents, and involvement in illegal employment.  

(15)  The  approximation  and  effectiveness  of  sanction  levels  imposed  in  practice  should 
also  be  fostered  with  common  mitigating  circumstances  that  reflect  the  contribution 
provided by natural or legal persons that perpetrated a criminal offence referred to in 
this  Directive  through  cooperation  with  the  competent  national  authorities  in  the 
investigation or detection of such offence. 

(16)  Member States should lay down rules concerning limitation periods in order to enable 
them to counter the criminal offences referred to in this Directive effectively, without 
prejudice  to  national  rules  that  do  not  set  limitation  periods  for  investigation, 
prosecution and enforcement. 

(17)  To counter the facilitation of unauthorised entry, transit and stay in the Union, it is of 
outmost importance to ensure the effective seizure of the proceedings of the crime, as 
well  as  of  the  instrumentalities  that  are  used  to  commit  the  criminal  offences, 
including for instance boats, engines and other boat components and vehicles. For this 
purpose,  full  use  should  be  made  of  existing  instruments  on  the  freezing  and 
confiscation of proceeds and instrumentalities of crime, such as Directive 2014/42/EU 
of the European Parliament and of the Council6. 

(18)  Considering  the  cross-border  nature  of  the  criminal  offences  referred  to  in  this 
Directive, the mobility of perpetrators of illegal conducts and the possibility of cross-
border  investigations,  it  is  necessary  to  lay  down  rules  on  the  establishment  of 
jurisdiction  by  Member  States  in  order  to  counter  such  conduct  effectively.  The 
unauthorised  transit  or  stay  taking  place  in  whole  or  in  part  in  the  territory  of  a 
Member State should allow a Member State different from the Member State of first 
unauthorised entry to establish jurisdiction. The gravity and the cross-border nature of 
the  offences  referred  to  in  this  Directive  require  that  jurisdiction  be  established  not 
only on natural persons who are nationals of the Member State concerned, but also on 
third-country  nationals  habitually  residing  in  its  territory.  Jurisdiction  over  legal 
persons  should  be  established  when  these  are  established  in  the  Member  State 
concerned or in respect of any business carried out in whole or in part in its territory. 
For the same reasons, it is necessary that a Member State establishes jurisdiction over 
criminal offences committed on board of ships and aircrafts registered in the Member 
State  or  flying  its  flag.  Member  States,  including  those  other  than  that  of  first 
unauthorised  entry,  should  establish  jurisdiction  in  relation  to  criminal  offences 

6 

Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing 
and  confiscation  of  instrumentalities  and  proceeds  of  crime  in  the  European  Union  (OJ  L  127, 
29.4.2014, p. 39 ELI: http://data.europa.eu/eli/dir/2014/42/oj). 

EN 

18 

  EN 

 
referred to in this Directive when this results in the entry, transit or stay of the third-
country nationals subject to the offence in the concerned Member State. 

(19)  Where  assistance  is  provided  for  a  third-country  national  to  reach  the  territory  of  a 
Member  State,  the  concerned  Member  States  may  also  be  able  to  establish  their 
jurisdiction with  regard to attempts,  even if the third-country national  does not  enter 
their territory. Member States should at least establish their jurisdiction with regard to 
the attempt of an offence that caused the death of a third-country national.. 

(20)  Where a criminal offence falls within jurisdiction of more than one Member State, the 
Member States concerned should cooperate to determine which Member State is best 
placed to prosecute. Where the competent authorities of the Member States concerned 
decide,  following  cooperation  or  direct  consultations  under  Council  Framework 
Decision 2009/948/JHA7, to centralise criminal proceedings in a single Member State 
through  the  transfer  of  criminal  proceedings,  the  Regulation  (EU)  …/…  [proposed 
Regulation  on  the  transfer  of  proceedings  in  criminal  matters]8  should  be  used  for 
such a transfer.  For this  purpose, the relevant  criteria of Article 5 of  that Regulation 
should be duly taken into account. The priority and weight of such criteria should be 
based on the facts and merits of each individual case.  

(21)  To  counter  the  facilitation  of  unauthorised  entry,  transit  and  stay  in  the  Union,  both 
criminal  justice  and  preventive  mechanisms  should  be  used.  The  prevention  of  the 
criminal  offences  referred  to  in  this  Directive  should  mitigate  the  need  for  criminal 
justice  response  and  should  have  wider  benefits  in  crime  reduction.  Such  measures 
should aim at raising public awareness,  and include information campaigns, research 
and  education  programmes.  These  should  be  carried  out  in  cooperation  with  other 
Member States, relevant Union agencies and third countries. 

(22)  Lack  of  resources  and  enforcement  powers  for  national  authorities  which  detect, 
investigate, prosecute or adjudicate the  criminal offences referred to in this Directive 
creates obstacles for the effective prevention and punishment thereof. In particular,  a 
shortage  of  resources  may  prevent  authorities  from  taking  action  or  limit  their 
enforcement  actions,  allowing  offenders  to  escape  liability  or  to  receive  punishment 
that  does  not  correspond  to  the  gravity  of  the  criminal  offence.  Minimum  criteria 
concerning resources and enforcement powers should therefore be established.  

(23)  The  effective  functioning  of  the  enforcement  chain  depends  on  a  range  of  specialist 
skills.  The  complexity  of  the  challenges  posed  by  the  facilitation  of  unauthorised 
entry, transit and stay in the Union, and the nature of such criminal offences require a 
multidisciplinary  approach,  a  high  level  of  legal  knowledge,  technical  expertise  and 
financial  support  as  well  as  a  high  level  of  training  and  specialisation  within  all 
relevant competent authorities. Member States should provide training appropriate to 
the function of those who detect, investigate, prosecute or adjudicate criminal offences 
concerning the facilitation of unauthorised entry, transit and stay in the Union. 

(24)  To  ensure  successful  enforcement,  Member  States  should  make  available  effective 
investigative tools for the criminal offences referred to in this Directive, such as those 
included in their national law for combating organised crime or other serious crimes, 
including  for  instance  the  interception  of  communications,  covert  surveillance 

7 

8 

Council  Framework  Decision  2009/948/JHA  of  30  November  2009  on  prevention  and  settlement  of 
conflicts  of  exercise  of  jurisdiction  in  criminal  proceedings  (OJ  L  328,  15.12.2009,  p.  42,  ELI: 
http://data.europa.eu/eli/dec_framw/2009/948/oj). 
COM(2023) 185 final. 

EN 

19 

  EN 

 
including  electronic  surveillance,  monitoring  of  bank  accounts  and  other  financial 
investigation  tools.  These  tools  should  be  applied  in  line  with  the  principle  of 
proportionality  and  in  full  respect  of  the  Charter  of  Fundamental  Rights  of  the 
European  Union.  In  accordance  with  national  law,  the  nature  and  gravity  of  the 
criminal  offences  under  investigation  should  justify  the  use  of  these  investigative 
tools. The right to the protection of personal data should be respected. 

(25)  Online  content  constituting  or  facilitating  criminal  offences  referred  to  in  this 
Directive,  notably  providing  assistance  to  or  publicly  instigating  unauthorised  entry, 
transit and stay in the EU through the internet, will be subject to measures pursuant to 
Regulation (EU) 2022/2065 of the European Parliament and of the Council9 as regards 
illegal content. 

(26)  To  effectively  tackle  the  facilitation  of  unauthorised  entry,  transit  and  stay  in  the 
Union, it is necessary that competent authorities in the Member States collect accurate, 
consistent  and  comparable  data  on  the  scale  of  and  trends  in  the  criminal  offences 
referred  to  in  this  Directive,  the  efforts  to  combat  them  and  their  results.  Member 
States  should  collect  and  report  to  the  Commission  relevant  statistical  data  on  such 
offences.  The  Commission  should  regularly  assess  and  publish  the  results  based  on 
data  transmitted  by  the  Member  States.  Member  States  should  also  regularly  collect 
and disseminate statistical data and information on the application of this Directive to 
allow for the monitoring of its implementation. Statistical data and information should 
be  comparable  between  the  Member  States  and  collected  on  the  basis  of  common 
minimum standards.  

(27)  Since  the  objective  of  this  Directive,  namely  to  lay  down  minimum  rules  to  prevent 
and counter the facilitation of unauthorised entry, transit and stay in the Union, cannot 
be  sufficiently  achieved  by  the  Member  States  and  can  therefore,  by  reason  of  the 
scale and effect of the action, be better achieved at Union level, the Union may adopt 
measures in accordance with the principle of subsidiarity as set out in Article 5 of the 
Treaty on European Union. In accordance with the principle of proportionality, as set 
out in that Article, this Directive does not go beyond what is necessary to achieve that 
objective. 

(28)  This Directive respects the fundamental rights and observes the principles recognised 
by the Charter of Fundamental Rights of the European Union, in particular the respect 
and protection of human dignity, the right to the integrity of the person, the prohibition 
of torture and inhuman or degrading treatment or punishment, the right to liberty and 
security,  the  rights  of  the  child,  the  freedom  of  association,  the  right  to  an  effective 
remedy  and  to  a  fair  trial,  the  principles  of  legality  and  proportionality  of  criminal 
offences and penalties, and the prohibition of ne bis in idem.  

(29)  This Directive aims to amend and expand the provisions of Directive 2002/90/EC and 
Framework  Decision  2002/946/JHA.  Since  the  amendments  to  be  made  are  of 
substantial  nature,  Directive  2002/90/EC  and  Framework  Decision  2002/946/JHA 
should,  in  the  interests  of  clarity,  be  replaced  in  their  entirety  in  relation  to  the 
Member States bound by this Directive. 

9 

Regulation  (EU)  2022/2065  of  the  European  Parliament  and  of  the  Council  of  19  October  2022  on a 
Single  Market  for  Digital  Services  and  amending  Directive  2000/31/EC  (Digital  Services  Act)  (OJ  L 
277, 27.10.2022, p. 1, ELI: http://data.europa.eu/eli/reg/2022/2065/oj). 

EN 

20 

  EN 

 
(30)  This Directive is without prejudice to the application of Directive 2004/38/EC of the 

European Parliament and of the Council10 and the EU-UK Withdrawal Agreement11. 

(31) 

(32) 

Ireland is taking part in this Directive, in accordance with Article 5(1) of Protocol No 
19  on  the  Schengen  acquis  integrated  into  the  framework  of  the  European  Union, 
annexed to the Treaty on European Union and to the Treaty on the Functioning of the 
European Union, and Article 6(2) of Council Decision 2002/192/EC12. 

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 on the Functioning of the 
European  Union, 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,  Denmark  should,  in  accordance  with  Article  4  of  that  Protocol, 
decide within a period of six  months  after the Council has  decided on this Directive 
whether it will implement it in its national law. 

(33)  As  regards  Iceland  and  Norway,  this  Directive  constitutes  a  development  of  the 
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  latter’s  association  with  the  implementation,  application  and 
development of the Schengen acquis13 which fall within the areas referred to in Article 
1, point A of Council Decision 1999/437/EC14. 

(34)  As regards Switzerland, this Directive constitutes a development of the provisions of 
the  Schengen  acquis  within  the  meaning  of  the  Agreement  between  the  European 
Union,  the  European  Community  and  the  Swiss  Confederation  on  the  Swiss 
Confederation’s association with the implementation, application and development of 
the Schengen acquis15 which fall within the areas referred to in Article 1, point A of 
Decision  1999/437/EC  read  in  conjunction  with  Article  3  of  Council  Decision 
2008/146/EC16. 

10 

11 

12 

13 
14 

15 
16 

of 

the 

the 

Schengen 

provisions 

Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of 
citizens  of  the  Union  and  their  family  members  to  move  and  reside  freely  within  the  territory  of  the 
Member  States  amending  Regulation  (EEC)  No  1612/68  and  repealing  Directives  64/221/EEC, 
68/360/EEC,  72/194/EEC,  73/148/EEC,  75/34/EEC,  75/35/EEC,  90/364/EEC,  90/365/EEC  and 
93/96/EEC (OJ L 158, 30.4.2004, p. 77, ELI: http://data.europa.eu/eli/dir/2004/38/oj). 
Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the 
European  Union  and  the  European  Atomic  Energy  Community  2019/C  384  I/01  (OJ  C  384  I, 
12.11.2019, p. 1, ELI: http://data.europa.eu/eli/treaty/withd_2019(3)/oj). 
Council Decision 2002/192/EC of 28 February 2002 concerning Ireland’s request to take part in some 
of 
20, 
ELI: http://data.europa.eu/eli/dec/2002/192/oj). 
OJ L 176, 10.7.1999, p. 36, ELI: http://data.europa.eu/eli/agree_internation/1999/439(1)/oj. 
Council  Decision  1999/437/EC  of  17  May  1999  on  certain  arrangements  for  the  application  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 
(OJ  L  176,  10.7.1999,  p.  31, 
the  Schengen  acquis 
ELI: http://data.europa.eu/eli/dec/1999/437/oj). 
OJ L 53, 27.2.2008, p. 52. 
Council Decision 2011/350/EU of 7 March 2011 on the conclusion, on behalf of the European Union, 
of the Protocol between the European Union, the European Community, the Swiss Confederation and 
the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement 
between  the  European  Union,  the  European  Community  and  the  Swiss  Confederation  on  the  Swiss 
Confederation’s  association  with  the  implementation,  application  and  development  of  the  Schengen 
acquis,  relating  to  the  abolition  of  checks  at  internal  borders  and  movement  of  persons  (OJ  L  160, 
18.6.2011, p. 19, ELI: http://data.europa.eu/eli/dec/2011/350/oj). 

7.3.2002, 

acquis 

(OJ 

64, 

p. 

L 

EN 

21 

  EN 

 
(35)  As regards Liechtenstein, this Directive constitutes a development of the provisions of 
the Schengen acquis within the meaning of the Protocol between the European Union, 
the  European  Community, 
the  Principality  of 
Liechtenstein  on  the  accession  of  the  Principality  of  Liechtenstein  to  the  Agreement 
between the European Union, the European Community and the Swiss Confederation 
on  the  Swiss  Confederation’s  association  with  the  implementation,  application  and 
development of the Schengen acquis17 which fall within the areas referred to in Article 
1,  point  A  of  Decision  1999/437/EC  read  in  conjunction  with  Article  3  of  Council 
Decision 2011/350/EU18. 

the  Swiss  Confederation  and 

(36)  As  regards  Cyprus,  Bulgaria  and  Romania,  this  Directive  constitutes  an  act  building 
upon, or otherwise related to, the Schengen acquis within, respectively, the meaning of 
Article  3(1)  of  the  2003  Act  of  Accession  and  Article  4(1)  of  the  2005  Act  of 
Accession, 

HAVE ADOPTED THIS DIRECTIVE: 

Article 1 

Subject matter 

This Directive establishes minimum rules concerning the definition of criminal offences and 
sanctions  in  the  area  of  facilitation  of  unauthorised  entry,  transit  and  stay  of  third-country 
nationals,  as  well  as  measures  to  prevent  and  counter  the  commission  of  such  criminal 
offences. 

For the purposes of this Directive, the following definitions apply:  

Article 2 

Definitions 

1.  

2.  

17 
18 

19 

‘third-country national’  means any person who is  not  a citizen of the Union  within 
the meaning of Article 20(1) of the Treaty on the Functioning of the European Union 
and  who  is  not  a  person  enjoying  the  right  of  free  movement  under  Union  law  as 
defined  in  Article  2,  point  5,  of  Regulation  (EU)  2016/399  of  the  European 
Parliament and of the Council19; 

‘unaccompanied  minor’  means  a  third-country  national  below  the  age  of  18  years 
who  arrives  on  the  territory  of  the  Member  States  unaccompanied  by  an  adult 
responsible  for  him  or  her  whether  by  law  or  by  the  practice  of  the  Member  State 
concerned, and for as long as he or she is not effectively taken into the care of such a 

OJ L 160, 18.6.2011, p. 21. 
Council Decision 2011/350/EU of 7 March 2011 on the conclusion, on behalf of the European Union, 
of the Protocol between the European Union, the European Community, the Swiss Confederation and 
the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement 
between  the  European  Union,  the  European  Community  and  the  Swiss  Confederation  on  the  Swiss 
Confederation’s  association  with  the  implementation,  application  and  development  of  the  Schengen 
acquis,  relating  to  the  abolition  of  checks  at  internal  borders  and  movement  of  persons,  (OJ  L  160, 
18.6.2011, p. 19, ELI: http://data.europa.eu/eli/dec/2011/350/oj). 
Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union 
Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ L 
077 23.3.2016, p. 1, ELI: http://data.europa.eu/eli/reg/2016/399/oj). 

EN 

22 

  EN 

 
3.  

1.  

2.  

person, including a minor who is left unaccompanied after he or she has entered the 
territory of the Member States; 

‘legal person’ means any legal entity having such status under the applicable national 
law,  except  for  States  or  public  bodies  exercising  State  authority  and  for  public 
international organisations. 

Article 3 

Criminal offences 

Member  States  shall  ensure  that  intentionally  assisting  a  third-country  national  to 
enter, or transit across, or stay within the territory of any Member State in breach of 
relevant Union law or the laws of the Member State concerned  on the entry, transit 
and stay of third-country nationals constitutes a criminal offence where: 

a)  the  person  who  carries  out  the  conduct  requests,  receives  or  accepts,  directly  or 
indirectly,  a  financial  or  material  benefit,  or  a  promise  thereof,  or  carries  out  the 
conduct in order to obtain such a benefit; or 

b) there is a high likelihood of causing serious harm to a person. 

Member States shall ensure that publicly instigating third-country nationals to enter, 
or  transit  across,  or  stay  within  the  territory  of  any  Member  State  in  breach  of 
relevant Union law or the laws of the Member State concerned  on the entry, transit 
and stay of third-country nationals constitutes a criminal offence. 

Article 4 

Aggravated criminal offences 

Member States shall ensure that the conduct referred to in Article 3 constitutes an aggravated 
criminal offence where: 

(a)  the  criminal  offence  was  committed  within  the  framework  of  a  criminal 
organisation within the meaning of Council Framework Decision 2008/841/JHA20; 

(b) the criminal offence deliberately or by gross negligence caused serious harm to, 
or  endangered  the  life  of,  the  third-country  nationals  who  were  subject  to  the 
criminal offence; 

(c) the criminal offence was committed by use of serious violence; 

(d)  the  third-country  nationals  who  were  subject  to  the  criminal  offence  were 
particularly vulnerable, including unaccompanied minors; 

(e) the criminal offence caused the death of third-country nationals who were subject 
to the criminal offence. 

20 

Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime 
(OJ L 300, 11.11.2008, p. 42, ELI: http://data.europa.eu/eli/dec_framw/2008/841/oj). 

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Article 5 

Incitement, aiding and abetting, and attempt 

Member States shall ensure that inciting, aiding and abetting and attempting to commit any of 
the  criminal  offences  referred  to  in  Article  3(1)  and  Article  4  are  punishable  as  criminal 
offences. 

1. 

2. 

3. 

4. 

5. 

Article 6 

Penalties for natural persons 

Member States shall take the necessary measures to ensure that the criminal offences 
referred  to  in  Articles  3,  4  and  5  are  punishable  by  effective,  proportionate  and 
dissuasive criminal penalties. 

Member States shall take the necessary measures to ensure that the criminal offences 
referred  to  in  Article  3  are  punishable  by  a  maximum  term  of  imprisonment  of  at 
least three years. 

Member States shall take the necessary measures to ensure that the criminal offences 
referred  to  in  Article  4,  points  (a)  to  (d)  are  punishable  by  a  maximum  term  of 
imprisonment of at least ten years. 

Member States shall take the necessary measures to ensure that the criminal offences 
referred to in Article 4 point (e), including attempts to commit the criminal offence 
referred to in that provision, are punishable by a maximum term of imprisonment of 
at least fifteen years. 

In  addition  to  criminal  penalties  imposed  in  accordance  with  paragraphs  1  to  4, 
Member States shall take the necessary measures to ensure that natural persons that 
have  been  convicted  of  committing  one  of  the  criminal  offences  referred  to  in 
Articles 3, 4 and 5 may be subject to criminal or non-criminal sanctions or measures 
imposed by a competent authority, including: 

(a) withdrawal of permits or authorisations to pursue activities which have resulted in 
committing the criminal offence, or prohibition on practising directly or through an 
intermediary the occupational activity in the exercise of which the  criminal offence 
was committed; 

(b)  return  after  the  enforcement  of  the  penalty  in  a  Member  State,  or  to  serve  the 
penalty  imposed,  or  part  of  it,  in  the  third  country  of  return,  without  prejudice  to 
more  favourable  provisions  that  may  be  applicable  by  virtue  of  Union  or  national 
law; 

(c)  prohibition  to  enter  and  stay  on  the  territory  of  the  Member  States  for  an 
appropriate  period  of  maximum  10  years,  without  prejudice  to  more  favourable 
provisions that may be applicable by virtue of Union or national law; 

(d) exclusions from access to public funding, including tender procedures, grants and 
concessions; 

(e) fines; 

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1. 

2. 

3. 

1. 

2. 

(f) freezing and confiscation of the proceeds derived from, and instrumentalities used 
for, the commission of the offence, in accordance with Directive 2014/42/EU of the 
European Parliament and of the Council21. 

Article 7 

Liability of legal persons 

Member States shall take the necessary measures to ensure that legal persons can be 
held liable for the criminal offences referred to in Articles 3, 4 and 5 committed for 
their  benefit  by  any  person,  acting  either  individually  or  as  part  of  an  organ  of  the 
legal person, who has a leading position within the legal person, based on: 

(a) a power of representation of the legal person; 

(b) an authority to take decisions on behalf of the legal person; 

(c) an authority to exercise control within the legal person. 

Member States shall also take the necessary measures to  ensure that a legal  person 
can be held liable where the lack of supervision or control by a person referred to in 
paragraph 1 has made possible the commission of the criminal offences referred to in 
Articles 3, 4 and 5 for the benefit of that legal person by a person under its authority. 

Liability  of  a  legal  person  under  paragraphs  1  and  2  shall  not  exclude  criminal 
proceedings  against  natural  persons  who  are  perpetrators  of,  inciters  of,  or 
accessories in the criminal offences referred to in Articles 3, 4 and 5. 

Article 8 

Sanctions for legal persons 

Member States shall take the necessary measures to ensure that a legal person held 
liable  pursuant  to  Article  7  is  subject  to  effective,  proportionate  and  dissuasive 
sanctions. 

Member  States  shall  take  the  necessary  measures  to  ensure  that  sanctions or 
measures  for  legal  persons  liable  pursuant  to  Article  7  for  the  criminal  offences 
referred to in Articles 3, 4 and 5 may include: 

(a) criminal or non-criminal fines; 

(b) exclusion from entitlement to public benefits, aid or subsidies; 

(c)  temporary  or  permanent  exclusion  from  access  to  public  funding,  including 
tender procedures, grants and concessions; 

(d)  temporary  or  permanent  disqualification  from  the  practice  of  commercial 
activities; 

(e) placing under judicial supervision; 

(f) judicial winding-up; 

21 

Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing 
and  confiscation  of  instrumentalities  and  proceeds  of  crime  in  the  European  Union  (OJ  L  127, 
29.4.2014, p. 39 ELI: http://data.europa.eu/eli/dir/2014/42/oj).  

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(g)  temporary  or  permanent  closure  of  establishments  which  have  been  used  for 
committing the criminal offence; 

(h) withdrawal of permits and authorisations to pursue activities which have resulted 
in committing the criminal offence; 

(i) freezing and confiscation of the proceeds derived from, and instrumentalities used 
for, the commission of the offence, in accordance with Directive 2014/42/EU of the 
European Parliament and of the Council22.  

3.  

The  amount  of  criminal  or  non-criminal  fines  shall  be  proportionate  to  the 
seriousness of the conduct and to the individual, financial and other circumstances of 
the  legal  person  concerned.  Member  States  shall  take  the  necessary  measures  to 
ensure that the maximum level of such fines is not less than: 

(a) 3% of the total worldwide turnover of the legal person, either in the business year 
preceding  the one in which the  criminal  offence  was committed, or in  the business 
year preceding the fining decision, for criminal offences referred to in Article 3;  

(b) 5% of the total worldwide turnover of the legal person, either in the business year 
preceding  the one in which the  criminal  offence  was committed, or in  the business 
year  preceding  the  fining  decision,  for  criminal  offences  referred  to  in  Article  4, 
points (a) to (d); 

(c) 6% of the total worldwide turnover of the legal person, either in the business year 
preceding  the one in which the  criminal  offence  was committed, or in  the business 
year  preceding  the  fining  decision,  for  criminal  offences  referred  to  in  Article  4, 
point (e). 

4. 

When providing for criminal or non-criminal fines pursuant to paragraph 3, Member 
States may provide for rules applicable in cases where it is not possible to determine 
the amount of the fine on the basis of the total worldwide turnover of the legal person 
in the business year preceding the one in which the criminal offence was committed, 
or in the business year preceding the fining decision. 

Article 9 

Aggravating circumstances 

Member States shall take the necessary measures to ensure that the following circumstances 
may be regarded as aggravating circumstances, in relation to the criminal offences referred to 
Articles 3, 4 and 5: 

(a) the criminal offence was committed by a public official when performing his or 
her duties; 

(b)  the  criminal  offence  entailed  or  resulted  in  the  involvement  of  third-country 
nationals who were subject to the criminal offence in illegal employment as referred 
to in Directive 2009/52/EC of the European Parliament and of the Council23; 

22 

23 

Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing 
and  confiscation  of  instrumentalities  and  proceeds  of  crime  in  the  European  Union  (OJ  L  127, 
29.4.2014, p. 39 ELI: http://data.europa.eu/eli/dir/2014/42/oj). 
Directive  2009/52/EC  of  the  European  Parliament  and  of  the  Council  of  18  June  2009  providing  for 
minimum  standards  on  sanctions  and  measures  against  employers  of  illegally  staying  third-country 
nationals (OJ L 168, 30.6.2009, p. 24, ELI: http://data.europa.eu/eli/dir/2009/52/oj). 

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(c)  the  offender  has  previously  been  definitively  convicted  of  criminal  offences  of 
the same nature under Articles 3, 4 or 5; 

(d) the criminal offence entailed or resulted in the exploitation or instrumentalisation 
of a third-country national who was subject to the criminal offence; 

(e) dispossessing the third-country nationals who are subject to the criminal offence 
of their identity or travel documents; 

(f) the criminal offence was carried out while carrying a firearm. 

Article 10 

Mitigating circumstances 

Member  States  shall  take  the  necessary  measures  to  ensure  that,  in  relation  to  the  criminal 
offences  referred  to  in  Articles  3,  4  and  5,  it may  be  regarded  as  a  mitigating  circumstance 
that the offender provides  the competent  authorities with  information  which they would not 
otherwise been able to obtain, helping them to: 

(a) identify or bring to justice other offenders; or 

(b) find evidence. 

Article 11 

Limitation periods for criminal offences 

1. 

2. 

Member States shall take the necessary measures to  provide for  a limitation  period 
that  enables  the  investigation,  prosecution,  trial  and  judicial  decision  of  criminal 
offences  referred  to  in  Articles  3,  4  and  5  for  a  sufficient  period  of  time  after  the 
commission  of  those  criminal  offences,  in  order  for  those  criminal  offences  to  be 
tackled effectively. 

Member  States  shall  take  the  necessary  measures  to  enable  the  investigation, 
prosecution, trial and judicial decision: 

(a) of criminal offences referred to in Article 3, for a period of at least  seven years 
from the time when the criminal offence was committed,  

(b)  of  criminal  offences  referred  to  in  Article  4,  points  (a)  to  (d)  for  a  period  of  at 
least ten years from the time when the criminal offence was committed; 

(c)  of  criminal  offences  referred  to  in  Article  4,  point  (e),  including  attempts  to 
commit the offence referred to in Article 4, point (e), for a period of at least fifteen 
years from the time when the criminal offence was committed. 

3. 

Member States shall take the necessary measures to enable the enforcement of: 

(a) a penalty of imprisonment in the case of a criminal offence, imposed following a 
final conviction for a criminal offence referred to in Article 3, for at least seven years 
from the date of the final conviction; 

(b) a penalty of imprisonment in the case of a criminal offence, imposed following a 
final conviction for a criminal offence referred to in Article 4, points (a) to (d), for at 
least ten years from the date of the final conviction; 

(c) a penalty of imprisonment in the case of a criminal offence, imposed following a 
final  conviction  for  a  criminal  offence  referred  to  in  Article  4,  point  (e),  including 

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attempts to commit the criminal offence referred to in Article 4, point (e), for at least 
fifteen years from the date of the final conviction. 

4. 

By  way  of  derogation  from  paragraphs  2  and  3,  Member  States  may  establish  a 
shorter limitation period, provided that the period may be interrupted or suspended in 
the event of specified acts. This period shall not be shorter than: 

(a) five years for the criminal offences referred to in Article 3; 

(b) eight years for the criminal offences referred to in Article 4, points (a) to (d); 

(c)  ten  years  for  the  criminal  offences  referred  to  in  Article  4,  point  (e),  including 
attempts to commit the criminal offence referred to in Article 4, point (e). 

Article 12 

Jurisdiction 

1. 

Each Member State shall establish its jurisdiction over a criminal offence referred to 
in Articles 3, 4 and 5 where the criminal offence: 

(a) is committed in whole or in part in its territory; 

(b) is committed by one of its nationals or a third-country nationals who is a habitual 
resident in its territory; 

(c) is committed for the benefit of a legal person 

(i) established in its territory; 

(ii) in respect of any business done in whole or in part in its territory; 

(d) is committed on board of a ship or an aircraft registered in it or flying its flag; 

(e) results in the entry, transit or stay in the territory of that Member State of third-
country nationals who were subject to the criminal offence. 

Member States shall establish jurisdiction over attempts to commit a criminal offence 
referred  to  in  Article  4  point  (e),  where  the  conduct  would  have  constituted  a 
criminal  offence  over  which  jurisdiction  would  have  been  established  pursuant  to 
paragraph 1. 

For  the  prosecution  of  the  criminal  offences  referred  to  in  Articles  3,  4  and  5 
committed outside the territory of a Member State, each Member State shall take the 
necessary  measures  to  ensure  that  its  jurisdiction  is  not  subject  to  either  of  the 
following conditions: 

(a) the acts are a criminal offence at the place where they were carried out; 

(b)  the  prosecution  can  be  initiated  only  following  a  transmission  of  information 
from the State of the place where the criminal offence was committed.  

Where  a  criminal  offence  referred  to  in  Articles  3,  4  and  5  falls  within  the 
jurisdiction of more than one Member State, these Member States shall cooperate to 
determine which Member State is to conduct criminal proceedings. The matter shall, 
where  appropriate  and  in  accordance  with  Article  12  of  Framework  Decision 
2009/948/JHA, be referred to Eurojust. 

2. 

3. 

4. 

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Article 13 

Prevention 

1. 

2. 

Member  States  shall  take  appropriate  action,  such  as  information  and  awareness-
raising campaigns, and research and education programmes, aimed at raising public 
awareness  and  reducing  the  commission  of  the  criminal  offences  referred  to  in 
Articles 3, 4 and 5. 

Where appropriate, Member States shall take the necessary measures to carry out the 
activities  referred  to  in  paragraph  1  in  cooperation  with  other  Member  States, 
relevant Union agencies and third countries. 

Article 14 

Resources 

Member  States  shall  ensure 
that  national  authorities  competent  for  the  detection, 
investigation, prosecution or adjudication of the criminal offences referred to Articles 3, 4 and 
5  have  a  sufficient  number  of  qualified  staff  and  sufficient  financial,  technical  and 
technological  resources  necessary  for  the  effective  performance  of  their  functions  related  to 
the implementation of this Directive.  

Article 15 

Training 

1. 

2. 

Member  States  shall  take  the  necessary  measures  to  ensure  adequate  resources  for 
and the provision of specialised training at regular intervals for the members of the 
law  enforcement,  the  judiciary  and  the  staff  of  authorities  tasked  with  criminal 
investigations and proceedings of criminal offences referred to in Articles 3, 4 and 5. 

Without prejudice to judicial independence, Member States shall take the necessary 
measures  to  ensure  that  specialised  regular  training  is  provided  to  judges, 
prosecutors,  law  enforcement  and  judicial  staff  and  competent  authorities’  staff 
involved in criminal proceedings and investigations with respect to the objectives of 
this Directive. 

Article 16 

Investigative tools 

Member  States  shall  take  the  necessary  measures  to  ensure  that  effective  and  proportionate 
investigative tools are available for investigating or prosecuting criminal offences referred to 
in Articles 3, 4 and 5. Where appropriate, these tools shall include special investigative tools, 
such as those which are used in countering organised crime or other serious crime cases. 

Article 17 

Data collection and statistics 

1. 

Member  States  shall  collect  statistical  data  disaggregated  by  the  type  of  criminal 
offence referred to in Articles 3, 4 and 5. 

2.  

The statistical data referred to in paragraph 1 shall include, at least, the following: 

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(a) the number of third-country nationals who were subject to the  criminal offence, 
disaggregated by citizenship, sex and age (child/adult); 

(b) the average length of the criminal investigation of cases; 

(c) the number of natural persons prosecuted for criminal offences referred to in this 
Directive, disaggregated by sex and citizenship; 

(d) the number of legal  persons prosecuted for criminal  offences  referred to  in  this 
Directive, disaggregated by place of establishment; 

(e)  the  number  of  decisions  of  the  prosecution  services,  disaggregated  by  type  of 
decision (to prosecute or not to prosecute); 

(f) the number of final court decisions, disaggregated by type of decision (conviction, 
acquittal, dismissal on the substance or not, and including non-trial resolutions); 

(g) the number of natural  persons convicted of  criminal offences  referred  to  in  this 
Directive, disaggregated by sex and citizenship; 

(h)  the  number  of  natural  persons  subjected  to  penalties  disaggregated  by  the  type 
and level of penalty (imprisonment, fines, others) sex and citizenship; 

(i)  the  number  of  legal  persons  convicted  for  criminal  offences  referred  to  in  this 
Directive and sanctioned; 

(j)  the  number  of  legal  persons  sanctioned  disaggregated  by  place  of  establishment 
and type of sanction (fines, others); 

(k)  the  average  length  of  courts  proceedings  of  cases  in  first  instance,  second 
instance and cassation. 

Member  States  shall,  on  an  annual  basis  and  by  1  July  each  year,  publish,  in  a 
machine-readable  and  disaggregated  format,  the  statistical  data  referred  to  in 
paragraph 2 for the previous year and transmit it to the Commission. 

Article 18 

Replacement of Directive 2002/90/EC and Framework Decision 2002/946/JHA  

Directive  2002/90/EC  and  Framework  Decision  2002/946  JHA  are  replaced  with 
regard  to  the  Member  States  bound  by  this  Directive,  without  prejudice  to  the 
obligations of those Member States with regard to the date for transposition of those 
instruments into national law. 

With  regard  to  the  Member  States  bound  by  this  Directive,  references  to  Directive 
2002/90/EC and Framework Decision 2002/946 JHA shall be construed as references 
to this Directive. 

Article 19 

Transposition 

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative 
provisions necessary to comply with this Directive by [one year after the entry into 
force  of  this  Directive]  at  the  latest.  They  shall  forthwith  communicate  to  the 
Commission the text of those provisions. 

3. 

1. 

2.  

1. 

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2.  

3. 

When  Member  States  adopt  those  provisions,  they  shall  contain  a  reference  to  this 
Directive  or  be  accompanied  by  such  a  reference  on  the  occasion  of  their  official 
publication. Member States shall determine how such reference is to be made. 

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. 

Article 20 

Entry into force 

This Directive shall enter into force on the twentieth day following that of its publication in 
the Official Journal of the European Union. 

Article 21 

Addressees 

This Directive is addressed to the Member States in accordance with the Treaties. 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

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