1 This request for a preliminary ruling concerns, first, the interpretation of Article 52(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’), read in conjunction with Articles 2, 3, 6, 7, 17 and 18 thereof, and, second, the validity, in the light of those provisions, of Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence (OJ 2002 L 328, p. 17), and of Council Framework Decision 2002/946/JHA of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence (OJ 2002 L 328, p. 1).
2 The request has been made in the context of criminal proceedings brought against OB, a third-country national, for facilitation of the unauthorised entry into Italian territory of two minors, nationals of that third country, who were accompanying her and over whom she exercises actual care.
3 Article 31 of the Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951 (United Nations Treaty Series, Vol. 189, p. 150, No 2545 (1954)), which entered into force on 22 April 1954 and was supplemented by the Protocol relating to the Status of Refugees, concluded in New York on 31 January 1967, which entered into force on 4 October 1967 (‘the Geneva Convention’), entitled ‘Refugees unlawfully in the Country of Refuge’, provides in paragraph 1 thereof: ‘The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.’
4 The Protocol Against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention Against Transnational Organised Crime was signed by the European Community on 12 December 2000 in accordance with Council Decision 2001/87/EC of 8 December 2000 (OJ 2001 L 30, p. 44; ‘the Palermo Protocol against the Smuggling of Migrants’). That protocol was approved by Council Decision 2006/616/EC of 24 July 2006 (OJ 2006 L 262, p. 24), in so far as the provisions of that protocol fell within Articles 179 and 181a EC, and by Council Decision 2006/617/EC of 24 July 2006 (OJ 2006 L 262, p. 34), in so far those provisions fell within Part III, Title IV of the EC Treaty. Article 2 of the Palermo Protocol against the Smuggling of Migrants provides: ‘The purpose of this Protocol is to prevent and combat the smuggling of migrants, as well as to promote cooperation among States Parties to that end, while protecting the rights of smuggled migrants.’
5 Article 27(2) of the Convention on the Rights of the Child, adopted by the United Nations General Assembly on 20 November 1989 (United Nations Treaty Series, Vol. 1577, p. 3), provides: ‘The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child’s development.’
6 Article 7 of the Charter, entitled ‘Respect for private and family life’, states: ‘Everyone has the right to respect for his or her private and family life, home and communications.’
7 Article 18 of the Charter is worded as follows: ‘The right to asylum shall be guaranteed with due respect for the rules of the [Geneva Convention] and in accordance with the [EU Treaty] and the [FEU Treaty] …’
8 Article 24 of the Charter, entitled ‘The rights of the child’, provides: ‘1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity. 2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration. 3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.’
9 Article 52 of the Charter, entitled ‘Scope and interpretation of rights and principles’, provides in paragraph 1 thereof: ‘Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.’
10 Recitals 1 to 5 of Directive 2002/90 state: ‘(1) One of the objectives of the European Union is the gradual creation of an area of freedom, security and justice, which means, inter alia, that illegal immigration must be combated. (2) Consequently, measures should be taken to combat the aiding of illegal immigration both in connection with unauthorised crossing of the border in the strict sense and for the purpose of sustaining networks which exploit human beings. (3) To that end it is essential to approximate existing legal provisions, in particular, on the one hand, the precise definition of the infringement in question and the cases of exemption, which is the subject of this Directive and, on the other hand, minimum rules for penalties, … which is the subject of [Framework Decision 2002/946]. (4) The purpose of this Directive is to provide a definition of the facilitation of illegal immigration and consequently to render more effective the implementation of [Framework Decision 2002/946] in order to prevent that offence. (5) This Directive supplements other instruments adopted in order to combat illegal immigration, illegal employment, trafficking in human beings and the sexual exploitation of children.’
11 Article 1 of that directive, entitled ‘General infringement’, provides: ‘1. Each Member State shall adopt appropriate sanctions on: (a) any person who intentionally assists a person who is not a national of a Member State to enter, or transit across, the territory of a Member State in breach of the laws of the State concerned on the entry or transit of aliens; … 2. Any Member State may decide not to impose sanctions with regard to the behaviour defined in paragraph 1(a) by applying its national law and practice for cases where the aim of the behaviour is to provide humanitarian assistance to the person concerned.’
12 Article 1 of Framework Decision 2002/946, entitled ‘Penalties’, provides, in paragraph 1 thereof: ‘Each Member State shall take the measures necessary to ensure that the infringements defined in Articles 1 and 2 of Directive [2002/90] are punishable by effective, proportionate and dissuasive criminal penalties which may entail extradition.’
13 According to Article 6 of that framework decision, entitled ‘International law on refugees’: ‘This [F]ramework Decision shall apply without prejudice to the protection afforded refugees and asylum seekers in accordance with international law on refugees or other international instruments relating to human rights, in particular Member States’ compliance with their international obligations pursuant to Articles 31 and 33 of the [Geneva Convention].’
14 Recitals 16 and 18 of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337, p. 9) are worded as follows: ‘(16) … In particular this Directive seeks to ensure full respect for human dignity and the right to asylum of applicants for asylum and their accompanying family members and to promote the application of Articles 1, 7, 11, 14, 15, 16, 18, 21, 24, 34 and 35 of [the] Charter, and should therefore be implemented accordingly. … (18) The “best interests of the child” should be a primary consideration of Member States when implementing this Directive, in line with the [Convention on the Rights of the Child]. In assessing the best interests of the child, Member States should in particular take due account of the principle of family unity …’
15 Article 23 of that directive, entitled ‘Maintaining family unity’, provides, in paragraph 1 thereof: ‘Member States shall ensure that family unity can be maintained.’
16 Recital 9 of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (OJ 2013 L 180, p. 96) states: ‘In applying this Directive, Member States should seek to ensure full compliance with the principles of the best interests of the child and of family unity, in accordance with the [Charter], the [Convention on the Rights of the Child] and the [Convention] for the Protection of Human Rights and Fundamental Freedoms [, signed at Rome on 4 November 1950,] respectively.’
17 Article 3 of 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 2016 L 77, p. 1; ‘the Schengen Borders Code’), entitled ‘Scope’, is worded as follows: ‘This Regulation shall apply to any person crossing the internal or external borders of Member States, without prejudice to: … (b) the rights of refugees and persons requesting international protection, in particular as regards non-refoulement.’
18 Article 4 of the Schengen Borders Code, entitled ‘Fundamental Rights’, provides: ‘When applying this Regulation, Member States shall act in full compliance with relevant Union law, including the [Charter], relevant international law, including the [Geneva Convention], obligations related to access to international protection, in particular the principle of non-refoulement, and fundamental rights. …’
19 Article 12 of the decreto legislativo n. 286 - Testo unico delle disposizioni concernenti la disciplina dell’immigrazione e norme sulla condizione dello straniero (Legislative Decree No 286 - Consolidated law on the provisions concerning the regulation of immigration and the rules relating to the status of foreigners) of 25 July 1998 (GURI No 191 of 18 August 1998, Ordinary Supplement No 139), in the version applicable to the facts in the main proceedings (‘the Consolidated Law on Immigration’), entitled ‘Provisions against illegal immigration’, provides in paragraphs 1 and 2 thereof: ‘1. Save where the act constitutes a more serious criminal offence, any person who, in breach of the provisions of the present consolidated law, promotes, directs, organises, finances or carries out the transportation of foreign nationals into Italy or carries out other acts intended to procure their unauthorised entry into Italy or into the territory of another State of which they are not nationals or in which they are not entitled to permanent residence shall be liable to a term of imprisonment of one to five years and a fine of EUR 15000 for each individual. 2. Without prejudice to the provisions of Article 54 of the [Codice penale (Italian Criminal Code)], activities of relief and humanitarian assistance provided in Italy in relation to foreign nationals in need, however present on the territory of the State, do not constitute a criminal offence.’
20 On 27 August 2019, OB presented herself at the airport border of Bologna (Italy) upon arrival of a flight from a third country, accompanied by two minors, aged 8 and 13 respectively. All had false passports.
21 On 28 August 2019, OB was arrested and, by decision of the Tribunale per i minorenni (Juvenile Court, Italy), the two minors were placed in a care facility. Proceedings were brought against OB before the Tribunale di Bologna (District Court, Bologna, Italy), which is the referring court, for the offence of facilitating the unauthorised entry of third-country nationals, provided for in Article 12(1) of the Consolidated Law on Immigration, in conjunction with the offence of holding false identity documents, provided for in Article 497bis of the Italian Criminal Code. By contrast, OB is not the subject of criminal proceedings for alleged unauthorised entry into Italian territory.
22 On 29 August 2019, at the hearing to validate her arrest, before the judge responsible for the criminal investigation of the Tribunale di Bologna (District Court, Bologna), OB stated that she had fled her country of origin in order to escape the death threats to which she and her family were subjected by her former partner. OB also stated that she feared for the physical integrity of the minors accompanying her, namely, in OB’s submission, her daughter and niece, her niece having been entrusted to OB’s care following the death of the niece’s mother.
23 By order of the same date, the judge responsible for the criminal investigation validated OB’s arrest and refused the request by the Public Prosecutor for her to be remanded in custody. That refusal was upheld on appeal, on the ground that there was nothing to cast doubt on the veracity of the statements made by OB at the investigation stage.
24 On 9 October 2019, OB submitted an application for international protection. The proceedings relating to that application had not been closed on the date on which the request for a preliminary ruling was made.
25 By decision of 30 September 2021, the Tribunale per i minorenni (Juvenile Court) found, following a forensic assessment, that there was a parent-child relationship between OB and one of the two minors, with the result that OB was recognised as having parental authority over that minor. By contrast, that court was unable to establish the existence of a family relationship between OB and the other minor, since, on 10 September 2019, the latter had, on her own initiative, left the care facility to which she had been entrusted.
26 The referring court observes that, according to the social services report drawn up following the interviews conducted with the two minors, the second minor is indeed OB’s niece and was entrusted to OB’s care following her mother’s death. It notes that the two minors are ‘placed under [the] responsibility and [the] protection’ of OB.
27 That court considers that OB’s conduct seeking to procure the unauthorised entry into Italy of the two minors falls, materially, within the offence provided for in Article 12(1) of the Consolidated Law on Immigration and not within Article 12(2) thereof, inasmuch as that latter provision provides that only ‘activities of relief and humanitarian assistance provided in Italy in relation to foreign nationals in need, however present on the territory of the State’ do not constitute a criminal offence.
28 The referring court infers from the foregoing that Article 12 is contrary to the principle of proportionality deriving from Article 52(1) of the Charter from the point of view not only of the necessity of the interference with the fundamental rights guaranteed by Articles 2, 3, 6, 7, 17 and 18 of the Charter, in order to achieve the objectives pursued by Directive 2002/90 and Framework Decision 2002/946, but also of the balancing of the conflicting interests requiring protection.
29 Although, according to that court, conduct such as that of OB is excluded from the scope of Article 12(2) of the Consolidated Law on Immigration, it could nevertheless be classified as an act committed for the purposes of ‘humanitarian assistance’ within the meaning of Article 1(2) of Directive 2002/90. Accordingly, that conduct should not fall within Article 1(1)(a) of that directive, since it consists in facilitating the exercise, by the minors concerned, first, of their right to life, physical integrity, liberty and security, guaranteed by Articles 2, 3 and 6 of the Charter respectively, as those rights are threatened in their country of origin, second, of their right to respect for family life, guaranteed by Article 7 of the Charter, in view of the parent-child and family ties between OB and those minors, and, third, of their right to asylum, guaranteed by Article 18 of the Charter, in connection with the application for international protection submitted by OB.
30 However, in view of the conformity of Article 12(1) of the Consolidated Law on Immigration with the ‘regulatory framework set out in Directive 2002/90 and Framework Decision 2002/946’, the referring court considers it inappropriate to disapply that provision on the ground that it infringes Article 52(1) of the Charter. Rather, it appears to it to be necessary to ask the Court both about the interpretation of Article 52(1) of the Charter in relation to Article 12(1) of the Consolidated Law on Immigration, and the validity, in the light of the Charter, of Article 1(1)(a) and (2) of Directive 2002/90 and of Article 1(1) of Framework Decision 2002/946, in so far as it follows from the latter three provisions that they merely provide for the right, and not the obligation, for Member States to refrain from establishing, as a criminal offence, conduct seeking to assist unauthorised entry into their territory where the aim of that conduct is to provide humanitarian assistance.
31 In those circumstances the Tribunale di Bologna (District Court, Bologna) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Does the [Charter], in particular the principle of proportionality referred to in Article 52(1) [thereof], read in conjunction with the right to personal liberty and the right to property referred to in Articles 6 and 17 [of the Charter], as well as the rights to life and physical integrity referred to in Articles 2 and 3 [of the Charter], the right to asylum referred to in Article 18 [of the Charter] and respect for family life referred to in Article 7 [of the Charter], preclude the provisions of Directive [2002/90] and Framework Decision [2002/946] (implemented in Italian law by the rules laid down in Article 12 of [the Consolidated Law on Immigration]), in so far as they impose on Member States the obligation to provide for penalties of a criminal nature against any person who intentionally facilitates or engages in acts intended to facilitate the unauthorised entry of foreign nationals into the territory of the Union, even where the conduct is carried out on a non-profit-making basis, without providing, at the same time, an obligation on Member States to exclude from criminalisation conduct facilitating unauthorised entry aimed at providing humanitarian assistance to the foreign national? (2) Does the [Charter], in particular the principle of proportionality referred to in Article 52(1) [thereof], read in conjunction with the right to personal liberty and the right to property referred to in Articles 6 and 17 [of the Charter], as well as the rights to life and physical integrity referred to in Articles 2 and 3 [of the Charter], the right to asylum referred to in Article 18 [of the Charter] and respect for family life referred to in Article 7 [of the Charter], preclude the criminal offence provisions laid down in Article 12 of [the Consolidated Law on Immigration], in so far as [they penalise] the conduct of a person who engages in acts intended to procure the unauthorised entry of a foreign national into the territory of the State, even where the conduct is carried out on a non-profit-making basis, without at the same time excluding from criminalisation conduct facilitating unauthorised entry aimed at providing humanitarian assistance to the foreign national?’
32 In its request for a preliminary ruling, the referring court has requested that the present case be determined under the expedited procedure laid down in Article 105 of the Rules of Procedure of the Court of Justice. By order of 10 October 2023, Kinsa (C‑460/23, EU:C:2023:784), the President of the Court refused that request on the ground that the nature of the case does not require it to be dealt with within a short time.
33 By its questions, which it is appropriate to examine together, the referring court asks the Court, in essence, about the validity of Article 1 of Directive 2002/90 and of Article 1 of Framework Decision 2002/946 in the light of the Charter, and about the interpretation of the Charter in order to determine whether it precludes the national provisions transposing those articles into Italian law.
34 According to settled case-law, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the referring court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court of Justice may have to reformulate the questions referred to it (judgments of 28 November 2000, Roquette Frères, C‑88/99, EU:C:2000:652, paragraph 18, and of 20 March 2025, Porcellino Grasso, C‑116/24, EU:C:2025:198, paragraph 34). The Court may also find it necessary to consider provisions of EU law which the national court has not referred to in its questions, by extracting from all the information provided by that court, and in particular from the grounds of the decision referring the questions, the points of EU law which require interpretation, having regard to the subject matter of the dispute (judgments of 20 March 1986, Tissier, 35/85, EU:C:1986:143, paragraph 9, and of 22 June 2023, K.B. and F.S. (Raising ex officio of an infringement in criminal proceedings), C‑660/21, EU:C:2023:498, paragraphs 26 and 27 and the case-law cited).
35 In the present case, it is common ground that OB is being prosecuted before the referring court for, inter alia, the offence of facilitation of unauthorised entry into Italian territory, provided for in Article 12(1) of the Consolidated Law on Immigration - which transposes Article 1(1)(a) of Directive 2002/90 and Article 1(1) of Framework Decision 2002/946 into Italian law - for allegedly having brought into that territory, in an unauthorised manner, two minors who are third-country nationals and were accompanying her. Furthermore, it is apparent from that court’s findings that those two minors, OB’s daughter and niece respectively, were placed under her ‘responsibility’ and ‘protection’.
36 In those circumstances, it should be noted, first, that the questions referred are based on the premiss that OB’s conduct falls within the general offence of facilitation of unauthorised entry, as defined in Article 1(1)(a) of Directive 2002/90, and that Article 12 of the Consolidated Law on Immigration merely transposes that provision of EU law into Italian law. Consequently, if a provision of the Charter were to preclude the application of Article 1(1)(a) of that directive to conduct such as that of OB, such incompatibility would necessarily affect Article 12 of the Consolidated Law on Immigration, if Article 12 were to be interpreted as applying to that same conduct.
37 That being so, it must be borne in mind that, in accordance with a general principle of interpretation, an EU act must be interpreted, as far as possible, in such a way as not to affect its validity and in conformity with primary law as a whole and, in particular, with the provisions of the Charter. Thus, where it is necessary to interpret a provision of secondary EU law, preference should as far as possible be given to the interpretation which renders the provision consistent with the Treaties and the general principles of EU law (judgments of 21 March 1991, Rauh, C‑314/89, EU:C:1991:143, paragraph 17, and of 13 June 2024, Commission v Netherlands(Determining the compatibility of a measure not classified as State aid), C‑40/23 P, EU:C:2024:492, paragraph 40).
38 Second, it must be observed that, in the light of the statement of the facts in the main proceedings, as apparent from the request for a preliminary ruling, not only Article 7 of the Charter, which enshrines the right to respect for family life, and Article 18 of the Charter, relating to the guarantee of the right to asylum, to which the national court refers, but also, as the European Commission stated in its written observations, Article 24 of the Charter, which enshrines the rights of the child, are of decisive importance in answering the questions referred by the national court.
39 By its questions, the referring court must, therefore, be understood as asking, in essence, first, whether Article 1(1)(a) of Directive 2002/90, read in the light, in particular, of Articles 7, 18 and 24 of the Charter, must be interpreted as meaning that the conduct of a person who, in breach of the rules governing the movement of persons across borders, brings into the territory of a Member State minors who are third-country nationals and are accompanying him or her, and over whom he or she exercises actual care, does not fall within the scope of the general offence of facilitation of unauthorised entry and, second, whether those articles of the Charter must be interpreted as precluding national legislation criminalising such conduct.
40 Under Article 1(1)(a) of Directive 2002/90, each Member State must adopt appropriate sanctions on ‘any person who intentionally assists a person who is not a national of a Member State to enter, or transit across, the territory of a Member State in breach of the laws of the State concerned on the entry or transit of aliens’.
41 It follows from the wording of that provision, and in particular from the terms ‘any person’ and ‘assists’, that the EU legislature defined the ‘general infringement’ referred to in that provision in an abstract manner, by not excluding a priori any of the possible forms of assisting unauthorised entry into the territory of a Member State or any of the persons who may provide such assistance. The same applies to persons who may receive such assistance.
42 That open definition of the general offence of facilitation of unauthorised entry may be explained by the fact that, as is confirmed in recitals 1 and 2 of Directive 2002/90, the EU legislature intended ‘to combat the aiding of illegal immigration’, in its various forms, in order to combat such immigration effectively, not only where it concerns unauthorised crossing of the border in the strict sense, but also where its purpose is to sustain networks which exploit human beings. In addition, it is apparent from recitals 3 and 4 of that directive that the directive seeks to define precisely the offence of facilitation of illegal immigration, in order to ensure effective implementation of Framework Decision 2002/946, which lays down minimum rules for penalties, liability of legal persons and jurisdiction. Lastly, it follows from recital 5 of Directive 2002/90 that that directive supplements other instruments adopted in order to combat illegal immigration, illegal employment, trafficking in human beings and the sexual exploitation of children.
43 Admittedly, at first sight the open wording of Article 1(1)(a) of Directive 2002/90 would lend itself to different interpretations. In particular, although that provision does not expressly refer to the conduct of a person who, in breach of the rules governing the movement of persons across borders, brings into the territory of a Member State minors who are third-country nationals and are accompanying him or her, and over whom he or she exercises actual care, that provision, in itself, also does not expressly preclude an interpretation according to which such conduct falls within the scope of the general offence provided for in that provision.
44 However, that latter interpretation cannot be accepted.
45 In the first place, the objectives of Directive 2002/90 militate against such an interpretation. As the Commission noted in its written observations, such conduct does not constitute facilitation of illegal immigration, which that directive seeks to combat, but stems from the assumption by the person concerned of his or her personal responsibility by virtue of the care that he or she exercises over those minors.
46 That conclusion is necessary a fortiori, in the second place, in the light of Articles 7 and 24 of the Charter.
47 Article 7 of the Charter guarantees everyone the right, inter alia, to respect for his or her family life, it having been specified that existence of ‘family life’ is a question of fact depending upon the real existence in practice of close personal ties, and that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life (judgment of 14 December 2021, Stolichna obshtina, rayon Pancharevo, C‑490/20, EU:C:2021:1008, paragraph 61).
48 As regards Article 24 of the Charter, paragraph 1 thereof provides, inter alia, that children are to have the right to such protection and care as is necessary for their well-being. Furthermore, paragraph 2 of Article 24 states that the child’s best interests must be a primary consideration in all actions relating to children, whether taken by public authorities or private institutions. That provision also applies to decisions which are not addressed to the minor, but have significant consequences for him or her (see, to that effect, judgment of 21 December 2023, GN (Ground for refusal based on the best interests of the child), C‑261/22, EU:C:2023:1017, paragraph 41 and the case-law cited). Lastly, paragraph 3 of Article 24 recognises in principle the right of every child to maintain on a regular basis a personal relationship and direct contact with both his or her parents.
49 According to settled case-law, Article 7 of the Charter must be read in conjunction with the obligation to take account of the child’s best interests, enshrined in Article 24(2) of the Charter, and with account being taken of the need for a child to maintain on a regular basis the relationships referred to in Article 24(3) of the Charter (see, to that effect, judgments of 17 November 2022, Belgische Staat (Married refugee minor), C‑230/21, EU:C:2022:887, paragraph 48, and of 30 January 2024, Landeshauptmann von Wien (Family reunification with a minor refugee), C‑560/20, EU:C:2024:96, paragraph 49 and the case-law cited).
50 In addition, since Article 24 of the Charter, as the Explanations relating to the Charter note, represents the integration into EU law of the principal rights of the child referred to in the Convention on the Rights of the Child, which has been ratified by all the Member States, it is necessary, when interpreting that article, to take due account of the provisions of that convention (judgment of 14 December 2021, Stolichna obshtina, rayon Pancharevo, C‑490/20, EU:C:2021:1008, paragraph 63). In particular, under Article 27(2) of that convention, the parent or parents or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child’s development.
51 Having regard to Articles 7 and 24 of the Charter, in the light of which Article 1(1)(a) of Directive 2002/90 must be interpreted, the conduct of a person who brings into the territory of a Member State, in an unauthorised manner, minors who are third-country nationals and are accompanying him or her, and over whom he or she exercises actual care, cannot fall within the scope of the general offence of facilitation of unauthorised entry, referred to in that provision, including where that person has himself or herself entered that territory in an unauthorised manner.
52 A contrary interpretation of that provision would entail a particularly serious interference with the right to respect for family life and the rights of the child, enshrined, respectively, in Articles 7 and 24 of the Charter, to such an extent that it would undermine the essence of those fundamental rights, within the meaning of Article 52(1) of the Charter.
53 Indeed, to accept that a person may be punished for merely assisting minors, over whom he or she exercises actual care, to enter the territory of a Member State in an unauthorised manner would undermine the essence of such fundamental rights.
54 A person, such as OB, who brings into the territory of a Member State, in an unauthorised manner, minors who are third-country nationals and are accompanying him or her, and over whom he or she exercises actual care, in principle merely assumes in concrete terms an obligation inherent to his or her personal responsibility, based on his or her family relationship with those minors, in order to secure their protection and the care necessary for their well-being and development. That person’s conduct is, above all, the concrete expression of his or her general responsibility towards those minors.
55 Consequently, if the essence of the right to respect for family life and the rights of the child enshrined, respectively, in Articles 7 and 24 of the Charter are not to be undermined, Article 1(1)(a) of Directive 2002/90 cannot be interpreted as seeking to ensure that the conduct of a person such as OB - which consists in taking with him or her, at the time of his or her unauthorised entry into the territory of a Member State, his or her child or other minor over whom he or she exercises actual care - is characterised as ‘facilitation of unauthorised entry’ into that territory and criminalised on that basis.
56 It follows that, in the light of Articles 7 and 24 of the Charter, Article 1(1)(a) of Directive 2002/90 must be interpreted as meaning that the conduct of a person who, in breach of the rules governing the movement of persons across borders, brings into the territory of a Member State minors who are third-country nationals and are accompanying him or her, and over whom he or she exercises actual care, does not fall within the scope of the general offence of facilitation of unauthorised entry.
57 In the third place, that interpretation of Article 1(1)(a) of Directive 2002/90 is also necessary in the light of Article 18 of the Charter, which is relevant where, as in the present case, the person concerned, once he or she has entered the territory of the Member State in question, has made an application for international protection.
58 In that regard, it should be noted, first, that, under Article 18 of the Charter, the right to asylum is to be guaranteed with due respect for the rules of the Geneva Convention and in accordance with the EU Treaty and the FEU Treaty. Member States are required to comply with such rules when implementing both Directive 2002/90 and Framework Decision 2002/946.
59 As confirmed by Article 6 of that framework decision, both that framework decision and Directive 2002/90 are, therefore, to apply without prejudice to the protection afforded refugees and asylum seekers and, in particular, the Member States’ compliance with their international obligations pursuant, inter alia, to Article 31 of the Geneva Convention. That article prohibits those States from imposing penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened, enter or are present in the territory of those States without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
60 Second, the Schengen Borders Code, which, in accordance with Article 3(b) thereof, is to apply to any person crossing the internal or external borders of Member States, without prejudice to the rights of refugees and persons requesting international protection, in particular as regards non-refoulement, requires the Member States, pursuant to Article 4 thereof, to act ‘in full compliance with relevant Union law, including the [Charter], relevant international law, including the [Geneva Convention], obligations related to access to international protection, in particular the principle of non-refoulement …’.
61 Third, the right of any third-country national or stateless person to make an application for international protection on the territory of a Member State, including at its borders or in its transit zones, even if he or she is staying illegally in that Member State, must be recognised, irrespective of the prospects of success of such a claim. When such an application is made, an applicant cannot, in principle, be regarded as staying illegally on the territory of the Member State concerned, so long as no decision has been given on that application at first instance, if the effectiveness of the right to asylum, as guaranteed by Article 18 of the Charter, is not to be compromised (see, to that effect, judgments of 17 December 2020, Commission v Hungary (Reception of applicants for international protection), C‑808/18, EU:C:2020:1029, paragraph 102, and of 16 November 2021, Commission v Hungary (Criminalisation of assistance to asylum seekers), C‑821/19, EU:C:2021:930, paragraphs 136 and 137).
62 Furthermore, it follows from the Court’s case-law that measures which, without reasonable justification, result in a third-country national being discouraged from submitting his or her application for international protection to the competent authorities are liable to undermine the effectiveness of the right to asylum, as guaranteed by Article 18 of the Charter (see, to that effect, judgments of 17 December 2020, Commission v Hungary (Reception of applicants for international protection), C‑808/18, EU:C:2020:1029, paragraphs 102, 103, 118 and 119, and of 22 June 2023, Commission v Hungary (Declaration of intent prior to an asylum application), C‑823/21, EU:C:2023:504, paragraphs 47 to 51).
63 Fourth, it is apparent from recital 9 of Directive 2013/33 that Member States should seek to ensure, in the reception of applicants for international protection, full compliance with the principles of the best interests of the child and of family unity.
64 Furthermore, the Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, of 25 July 1951, which drew up the text of the Geneva Convention, states that ‘the unity of the family … is an essential right of the refugee’. Similarly, Directive 2011/95 seeks, in accordance with recital 16 thereof, to ensure full respect for the right to asylum of applicants for asylum and their accompanying family members and to promote the application, inter alia, of Articles 7 and 24 of the Charter. Recital 18 of that directive states that the best interests of the child should be a primary consideration of Member States when implementing that directive and that, in assessing those interests, they should in particular take due account of the principle of family unity. Thus, Article 23(1) of the same directive expressly requires the Member States to ensure that family unity can be maintained.
65 In the present case, since OB made an application for international protection, she enjoys the rights arising from having made such an application and, therefore, cannot be subject to criminal penalties either on account of her own unauthorised entry into Italian territory or on account of the fact that, at the time of that entry, she was accompanied by her daughter and her niece, over whom she exercises actual care.
66 In the fourth place, as the Commission has noted in its written observations, the interpretation of Article 1(1)(a) of Directive 2002/90, set out in paragraphs 45 to 65 above, is supported by the Palermo Protocol against the Smuggling of Migrants, in the light of which that directive must be read. Indeed, in accordance with Article 2 of that protocol, the purpose of the protocol is to criminalise the smuggling of migrants, while protecting the rights of the migrants themselves.
67 That interpretation in no way has the effect of removing from the scope of criminal law conduct which, under the guise of being justified by family ties, might in fact pursue other purposes, such as illegal immigration, illegal employment, trafficking in human beings or sexual exploitation of children, thereby exposing the latter to serious infringements of their fundamental rights. It should be emphasised, in that regard, that Directive 2002/90, as stated in recital 5 thereof, supplements, without replacing, other instruments adopted in order to combat illegal immigration, illegal employment, trafficking in human beings and the sexual exploitation of children.
68 In the fifth and last place, since an interpretation of Article 1(1)(a) of Directive 2002/90 that is consistent with Articles 7 and 24 and Article 52(1) of the Charter leads to conduct such as that at issue in the main proceedings being excluded from the scope of the offence of facilitating unauthorised entry, within the meaning of Article 1(1)(a) of that directive, there is no need to examine the validity of Article 1 of Directive 2002/90 or to interpret Article 1(2) thereof, which relates to exemption from criminal liability in cases where the aim of the conduct at issue is to provide humanitarian assistance to the person concerned.
69 Furthermore, in the light of the referring court’s doubts concerning the compatibility with EU law of the national provision transposing, inter alia, Article 1(1)(a) of Directive 2002/90 into Italian law, it must be borne in mind that it is settled case-law that, when implementing the measures transposing a directive, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with that directive but also ensure that they do not rely on an interpretation of the directive that would be in conflict with the fundamental rights protected by the EU legal order or with the other general principles recognised by EU law (judgments of 29 January 2008, Promusicae, C‑275/06, EU:C:2008:54, paragraph 68, and of 21 June 2022, Ligue des droits humains, C‑817/19, EU:C:2022:491, paragraph 87 and the case-law cited).
70 In that context, it should also be recalled that, as noted in paragraph 42 above, it follows from recitals 3 and 4 of Directive 2002/90 that Article 1(1) of that directive seeks to define precisely the offence of facilitation of illegal immigration, in order to render more effective the implementation of Framework Decision 2002/946.
71 Accordingly, when transposing Article 1(1)(a) of Directive 2002/90, Member States may not establish, in national law, rules that would go beyond the scope of the general offence of facilitating unauthorised entry, as defined by that provision, by including conduct not covered by it, in breach of Articles 7 and 24 and Article 52(1) of the Charter.
72 Moreover, Articles 7 and 24 of the Charter are sufficient in themselves and do not need to be made more specific by provisions of EU or national law to confer on individuals rights which they may rely on as such. Consequently, if the referring court were to find that it is not conceivable to interpret its national law in conformity with EU law, it would be required to ensure within its jurisdiction the judicial protection for individuals flowing from those articles, and to guarantee their full effectiveness by disapplying, if need be, Article 12 of the Consolidated Law on Immigration (see, by analogy, judgment of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraphs 78 and 79).
73 In the light of the foregoing considerations, the answer to the questions referred is that Article 1(1)(a) of Directive 2002/90, read in the light of Articles 7 and 24 and Article 52(1) of the Charter, must be interpreted as meaning that, first, the conduct of a person who, in breach of the rules governing the movement of persons across borders, brings into the territory of a Member State minors who are third-country nationals and are accompanying him or her, and over whom he or she exercises actual care, does not fall within the scope of the general offence of facilitation of unauthorised entry, and, second, those articles preclude national legislation criminalising such conduct.
74 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.