Angelo Marletta*

* FNRS Post-doctoral Research Associate at the Centre de Droit Européen of the Université Libre de Bruxelles. I am grateful to Prof. Chloé Brière for her valuable remarks and suggestions.

1. Context

In September 2020, within the framework of the New Pact on Migration and Asylum, the European Commission released its ‘Guidance on the implementation of EU rules on definition and prevention of the facilitation of unauthorised entry, transit and residence’. This ‘Guidance’ aims to codify the principle that “saving lives at sea is not optional," a statement made by President von der Leyen in her 2020 State of the Union address, and responds to a 2018 European Parliament resolution calling for guidelines to prevent the criminalization of humanitarian aid.

The potential criminalization of NGOs and individuals providing humanitarian assistance to migrants and asylum seekers has been a subject of intense discussion in recent years. While not entirely new, this issue gained traction during the 2015 ‘migration crisis’, highlighting the extensive reach of EU legal instruments concerning the facilitation of irregular migration: Directive 2002/90/EC and Framework Decision 2002/946/JHA (together known as the ‘Facilitators Package’). These instruments have faced criticism from academics, think tanks, civil society organizations, and the EU Fundamental Rights Agency for potentially criminalizing humanitarian actions. Initially, the European Commission seemed receptive to these concerns and, as part of the EU Action Plan Against Smuggling (2015-2020), proposed a revision of the ‘Facilitators Package’ in 2016. This revision, however, never happened. In its 2017 ‘REFIT Evaluation’ of the Package, the Commission concluded that there was insufficient evidence to warrant a legislative overhaul. Instead, problematic prosecutions against individuals acting on humanitarian grounds were deemed an ‘unintended consequence’ to be addressed through improved ‘exchange of knowledge and good practice’.

Despite this, in July 2020, the EU Fundamental Rights Agency reported numerous criminal proceedings against NGO crew members and shipmasters involved in Mediterranean search and rescue missions. Even today, the new Commission ‘Guidance’ seems to acknowledge that the perceived lack of legal clarity surrounding the EU ‘Facilitators Package’ remains.

Therefore, after a brief overview of the legal context, this article will analyze the new 2020 Commission ‘Guidance’. It will focus on the document’s limitations in resolving the legal ambiguity surrounding humanitarian assistance to migrants, a situation that risks violating the principle of legal certainty in criminal matters.

2. Migrant Smuggling under the UN Protocol

The Commission ‘Guidance’ acknowledges the UN Protocol against Migrant Smuggling by Land, Sea and Air as the primary international instrument defining migrant smuggling. This protocol, supplementing the 2000 UN Convention against Transnational Organised Crime (UNTOC), mandates that participating states criminalize the act of enabling irregular entry or residence when done intentionally and ‘in order to obtain, directly or indirectly, a financial or other material benefit’.

Seeking ‘financial or other material benefit’ is arguably the defining element of smuggling in the context of organized crime. Under the Protocol, facilitating irregular entry or residence is not inherently criminal; it becomes so when driven by profit. This is corroborated by the Travaux Préparatoires of the Protocol and a 2017 ad hoc Concept Paper by the United Nations Office on Drugs and Crime (UNODC). Importantly, the ‘financial or other material benefit’ criterion excludes actions motivated by humanitarian, ideological, or close family ties from the definition of the offense. However, the Protocol does not prevent its signatories from adopting broader definitions of smuggling. Article 34 paragraph 3 of the UNTOC Convention, applicable to the Protocol, allows states to adopt more stringent measures against transnational organized crime, potentially creating ambiguity in international law.

3. ‘Facilitation’ under The EU’s Facilitators’ Package

Within the EU legal framework, the criminalization of smuggling and facilitating irregular residence falls under the 2002 ‘Facilitators Package’. Established under the Treaty of Amsterdam, the ‘Facilitators Package’ comprises a Directive defining ‘facilitation’ and a Framework Decision outlining penalties, aggravating factors, jurisdiction rules, and the liability of legal entities. The Directive outlines two distinct intentional offenses under the general infringement of facilitation:

a) aiding a third-country national to illegally enter or transit through a Member State’s territory

b) aiding, ‘for financial gain’, a third-country national to reside illegally within a Member State’s territory.

Unlike the UN Protocol, the EU definition requires ‘financial gain’ for facilitating unauthorized residence, but not for facilitating unauthorized entry or transit. Consequently, altruistic or compassionate acts of ‘humanitarian assistance’ could be criminalized as facilitation of entry and transit. However, the Directive offers an optional ‘humanitarian exception’ to address this, leaving its implementation to individual Member States. Article 1 paragraph 2 of the Directive allows Member States to refrain from imposing penalties if the facilitation of unauthorized entry or transit was intended for humanitarian purposes. However, the optional nature of this exception has drawn criticism, as it fails to adequately protect humanitarian principles and does little to harmonize national criminal laws (see, for example, Peers). Unsurprisingly, only a few Member States (BE, EL, ES, FI, HR, IT, MT) have incorporated the exception into their legal frameworks, each with varying interpretations of its scope. For instance, the Italian humanitarian exception, cited in the Commission ‘Guidance’, exempts humanitarian assistance provided to migrants already ‘present’ in Italian territory, raising questions about its applicability to facilitation of entry.

4. The Commission Guidance: Content Summary

The ‘Guidance’ is intended to provide clarity on the Facilitation Directive’s scope.

Its content can be broadly categorized into three main areas:

- The relationship between the UN Protocol on Smuggling and the EU Facilitators Package

- The scope of the offense of facilitation of irregular entry and transit in relation to ‘legally mandated’ humanitarian assistance

- A policy recommendation concerning the optional humanitarian exception

Regarding the relationship between the UN Protocol and the ‘Facilitators Package’, the Commission emphasizes the broader objective of the latter. The EU framework on facilitation aims to combat both organized crime, similar to the UN Protocol, and irregular migration. Therefore, according to the Commission, the broader scope of criminalization resulting from the absence of ‘financial gain’ in the basic definition of facilitating entry and transit does not contradict the UN Protocol, but reflects the additional objective of tackling irregular migration.

However, this broader application of facilitation of entry and transit must be viewed within the context of the ‘general spirit and objective’ of the Facilitators Package. It cannot be interpreted as criminalizing ‘legally mandated’ humanitarian activities. The Commission cites search and rescue (SAR) at sea as an example, as SAR obligations are mandated by the Law of the Sea, various international conventions (UNCLOS, SOLAS, SAR Convention), and customary international law. Consequently, the criminalization of NGOs or any actors conducting SAR operations within the legal framework is unacceptable under EU Law, regardless of the national interpretation of the ‘humanitarian exception’.

Regarding the optional humanitarian exception, the Commission first provides an overview of its implementation across different national legislations, highlighting that national authorities are responsible for defining ‘humanitarian assistance’, considering all circumstances, and striking a balance between various interests and values at play (citing the ECtHR case Mallah v. France). The Commission recommends that Member States yet to implement the exception utilize the option provided by Article 1 paragraph 2 of the ‘Facilitation Directive’.

5. An Implementation Issue or a Legality Issue?

The Commission ‘Guidance’ is a welcome step towards addressing this intricate issue within a complex political landscape. However, it should not be considered the EU’s definitive stance.

Firstly, the ‘Guidance’ appears to focus primarily, if not exclusively, on cases of ‘legally mandated’ humanitarian assistance, particularly sea rescues. While prosecutions against NGOs and individuals involved in private SAR operations represent a stark example of the criminalization of solidarity, they do not encompass all instances of ‘humanitarian assistance’ witnessed in recent years. Humanitarian ‘facilitation’ of entry or transit by land does not enjoy the same legal protection as actions at sea under the Law of the Sea. Moreover, the definition of ‘legally mandated’ humanitarian assistance beyond SAR obligations remains vague. Providing food or shelter to an irregular migrant in transit, while undoubtedly humanitarian, is not a legal obligation.

Secondly, encouraging Member States to ‘use the possibility’ of the optional humanitarian exception in the Directive seems insufficient. It approaches the problem as a matter of implementation, while from a criminal law perspective, the ‘Facilitators Package’ presents a legality issue—specifically concerning the principle of legality in substantive criminal law. Using ‘discretionary’ or ‘optional clauses’ in secondary EU law instruments aiming to harmonize substantive criminal law raises concerns about compatibility with Article 49 of the Charter of Fundamental Rights, which enshrines the principle of legal certainty in criminal matters.

Even considering the specific nature of Directives requiring national transposition and the limited legislative competence of the Union in this field (Article 83 paragraphs 1 and 2 TFEU), the principle of legality requires the EU legislator to clearly define punishable conduct and demonstrate a reasonable consideration of the interest(s) protected by the offense. In the context of the ‘Facilitators Package’, stating that an act of ‘facilitation’ motivated by humanitarian reasons may or may not be criminalized at a Member State’s discretion does not simply represent an implementation option; it reflects a fundamentally different balance between legal interests and, ultimately, a different understanding of the punishable act. While facilitating the irregular entry or transit of a migrant might affect the legitimate interest in border control, it could simultaneously prevent harm to an individual’s life or human dignity—competing legal interests also protected by primary Union law.

The EU legislator’s reluctance to establish a clear baseline balance between these competing interests, instead leaving it to individual Member States, contradicts the principle of legality in substantive criminal law. This unresolved issue, present since the ‘Facilitators Package’ was adopted, constitutes a fundamental flaw in the EU definition of facilitation, one that cannot be addressed through interpretation, but requires legislative revision.

In conclusion, while the ‘Guidance’ serves as a valuable reminder of the legal framework governing humanitarian assistance, the Commission should leverage its legislative power to align EU law with international law and the Charter. The Commission’s hesitation to address this issue through ‘hard law’, despite its 2015 announcement, echoes its cautious approach in other areas of the New Migration Pact and reflects the political sensitivity surrounding humanitarian assistance to migrants, which some Member States and segments of European public opinion still wrongly perceive as a punishable crime.

Barnard & Peers: chapter 26

JHA4: chapter I:7

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