Text · Report parliamentary committee draft
On the 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
Full title
On the 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
Document LIBE-PR-768109 · COM(2023)0755 – C90430/2023 – 2023/0439(COD)
- Kind
- Report parliamentary committee draft LIBE-PR-768109
- Date
- 26 March 2025
- Committee
- Committee on Civil Liberties, Justice and Home Affairs
- Rapporteur
- Birgit Sippel
- Dossier
- 2023-0439
More facts (3)
- Formats
- Official page PDF Word
- Subject matter
- ELSJ, J-AI
- Reference
- COM(2023)0755 – C90430/2023 – 2023/0439(COD)
In short
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This is the rapporteur's draft report on the Commission proposal for a directive laying down minimum rules to prevent and counter the facilitation of unauthorised entry, transit and stay in the Union, replacing Council Directive 2002/90/EC and Council Framework Decision 2002/946/JHA. The draft proposes amendments to clarify the criminal offence, add an exemption for humanitarian assistance, delete the concepts of high likelihood of serious harm and public instigation, and remove aggravated offences, addressing the additional elements through penalty levels and aggravating circumstances instead. It also proposes lower maximum penalties and limitation periods, narrower jurisdiction rules, and the deletion of return and entry-ban measures from the criminal law text. The draft adds rules on ne bis in idem, statistical data collection, training, investigative tools and awareness-raising campaigns in third countries.
Position. The rapporteur proposes to amend the Commission proposal to improve clarity and legal certainty, notably by exempting humanitarian assistance, deleting the concepts of high likelihood of serious harm and public instigation, removing aggravated offences, lowering penalties and limitation periods, and narrowing jurisdiction rules.
Key points
- The draft states that the directive should be applied in full compliance with the 1951 Refugee Convention, the principle of non-refoulement and fundamental rights, and should not prejudice protection for refugees and asylum seekers.
- It defines 'humanitarian assistance' as actions to save lives, alleviate suffering and maintain human dignity, governed by humanity, impartiality, neutrality and independence, and states that providing it is not a criminal offence.
- It limits the criminal offence to conduct carried out in order to obtain, directly or indirectly, a financial or material benefit, and deletes the 'high likelihood of causing serious harm' element and the offence of public instigation.
- It states that third-country nationals should not become liable for the sole fact of having been the object of the conduct.
- It deletes the separate category of aggravated criminal offences and addresses the additional elements through higher penalty levels and aggravating circumstances.
- It sets maximum terms of imprisonment of at least two years for the basic offence, five years for offences causing serious harm, endangering life, involving serious violence or vulnerable persons, and ten years for offences committed in a criminal organisation or causing death.
- It deletes return and re-entry ban measures from the list of penalties for natural persons, and deletes freezing and confiscation provisions as covered by other Union law.
- It sets maximum fines for legal persons of at least 3% of total worldwide turnover for offences under Article 3 and 5% for offences under Article 6(3) and (4).
- It deletes illegal employment as an aggravating circumstance and replaces carrying a firearm with cruel, inhuman or degrading treatment.
- It shortens limitation periods to at least three, five and ten years depending on the applicable maximum penalty, and allows a shorter period of not less than five years if it can be interrupted or suspended.
- It makes jurisdiction based on habitual residence, legal persons and entry or transit optional, and adds a rule that multiple jurisdictions must not infringe the principle of ne bis in idem.
- It requires Member States to run awareness campaigns in third countries, provide sufficient staff and resources, offer specialised training including to legal professionals, and ensure effective and proportionate investigative tools.
Who is affected
- Member States, which must transpose the rules on offences, penalties, jurisdiction, limitation periods and data collection.
- People and organisations providing humanitarian assistance, who would not be criminalised for such actions.
- Third-country nationals who are the object of smuggling, who should not be criminalised for that fact.
- Legal persons, which can be held liable and fined based on worldwide turnover.
- National authorities, judges, prosecutors and law enforcement, which must receive training and resources.
Figures and deadlines
- At least two years' maximum imprisonment for the basic offence.
- At least five years' maximum imprisonment for offences causing serious harm, endangering life, involving serious violence or vulnerable persons.
- At least ten years' maximum imprisonment for offences in a criminal organisation or causing death.
- Fines of at least 3% of total worldwide turnover for offences under Article 3.
- Fines of at least 5% of total worldwide turnover for offences under Article 6(3) and (4).
- Limitation periods of at least three, five and ten years depending on the maximum penalty.
- A shorter limitation period of not less than five years if it can be interrupted or suspended.
- Member States must publish statistical data annually by 1 July.
Legal basis. Article 294(2) and Article 83(2) of the Treaty on the Functioning of the European Union.
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Draft european parliament legislative resolution
–having regard to Article 294(2) and Article 83(2) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C9 0430/2023),
–having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs (A100000/2025),
2.Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;
3.Instructs its President to forward its position to the Council, the Commission and the national parliaments.
| Text proposed by the Commission | Amendment |
|---|---|
| (1) 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. | (1) 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 and networks. Bringing those criminal organisations and networks to justice while preventing and countering those offences remains a priority for the Union. |
It should be underlined in the opening recital that the aim of the reform is to help bring to justice criminal organisations and networks involved in smuggling.
| Text proposed by the Commission | Amendment |
|---|---|
| (2) 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. | (2) 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 clarify the scope of such offences, to further enhance the investigation and prosecution of criminal organisations and networks and ensure the effectiveness of the Union framework to prevent and counter these offences, it is necessary to update the existing legal framework. |
| 3 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). | 3 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). |
| 4 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). | 4 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). |
Literature on the existing Union framework specifies that the core offence of migrant smuggling needs to be better defined.
| Text proposed by the Commission | Amendment |
|---|---|
| (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 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. | deleted |
Outdated recital. It references Council conclusions from over two years ago and a Commission Action Plan that will expire this year.
| Text proposed by the Commission | Amendment |
|---|---|
| (4) 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. | (4) 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 respect international law and respect 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 UN Protocol’), 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. |
| Text proposed by the Commission | Amendment |
|---|---|
| (4a) 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, with obligations related to access to international protection, in particular the principle of non-refoulement, and with fundamental rights. |
Moved up from recital 10. The reference to the Geneva Convention belongs at the outset of the recitals as it often part of the context in which people who are the object of smuggling find themselves.
| Text proposed by the Commission | Amendment |
|---|---|
| (5) 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. | (5) 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 clarified and further approximated in all Member States so that it describes more clearly conduct that is criminal and conduct that is not criminal. |
Literature on the existing Union framework specifies that the core offence of migrant smuggling needs to be better defined.
| Text proposed by the Commission | Amendment |
|---|---|
| (6) 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. | (6) 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, in line with the UN Protocol, when it is carried out in order to obtain, directly or indirectly, a financial or other material benefit. |
| Text proposed by the Commission | Amendment |
|---|---|
| (7) 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. | (7) It is appropriate to provide for criminal liability, in line with the UN Protocol, only where the smuggling is carried out in order to obtain, directly or indirectly, a financial or material benefit. In accordance with the principle of legal certainty in criminal law, the elements of a criminal offence should be formulated precisely so as to enable individuals to predict which actions will make them criminally liable. As a consequence, it is necessary to exclude specifically actions that should not render individuals criminally liable. |
Aligned with changes proposed to the Articles and with the requirements of the principle of lex certa.
| Text proposed by the Commission | Amendment |
|---|---|
| (7a) Where an individual or organisation offers assistance to migrants through actions which are selfless and from which no financial or other material benefit is derived, or which are based on the principles of humanity, neutrality, impartiality and independence, then those actions should not be criminalised. Such actions may include the carrying out of search and rescue operations in accordance with international law, assistance to family members, assistance to third-country nationals in situations of danger or distress, the provision of legal assistance, medical assistance, healthcare, housing, shelter, clothing, food and water to third-country nationals or supporting third-country nationals in asserting their rights. |
If humanitarian assistance is to be exempted from criminal liability it is important to provide detail of the conduct that is not criminal.
| Text proposed by the Commission | Amendment |
|---|---|
| (8) 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. | (8) 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 may include conduct taking place in the territory of a 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. |
| Text proposed by the Commission | Amendment |
|---|---|
| (9) 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. | (9) There is a need to distinguish between the basic criminal offence of facilitation of unauthorised entry, transit and stay in the Union and situations in which the offence causes greater harm to individuals and to society. The levels of penalties for those situations causing greater harm should reflect the higher social concern regarding more serious and harmful conduct, and therefore should be sanctioned by more severe criminal penalties. |
| Text proposed by the Commission | Amendment |
|---|---|
| (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. | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| (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. | (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. |
| 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). | 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). |
| Text proposed by the Commission | Amendment |
|---|---|
| (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 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. | (13) Where national law provides for it, legal persons should be able to 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 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. |
Not all legal persons are criminally liable for facilitation of unauthorized entry just because national law allows for them to be held criminally liable.
| Text proposed by the Commission | Amendment |
|---|---|
| (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. | (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, dispossession of identity documents or previous convictions for similar offences. |
| Text proposed by the Commission | Amendment |
|---|---|
| (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 . | deleted |
| 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). |
| Text proposed by the Commission | Amendment |
|---|---|
| (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 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. | (18) Considering the cross-border nature of the criminal offences referred to in this Directive, and the possibility of cross-border investigations, it is appropriate 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 mean that Member States should be permitted to acquire jurisdiction 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 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. |
Certain possible extensions of jurisdiction should be permitted to Member States, without these becoming mandatory grounds for jurisdiction. Last sentence deleted, given that it would suggest that the mere transit of third country national through a Member State automatically provide it with jurisdiction to prosecute criminal offences where the essence of the offence will have occurred in other Member States.
| Text proposed by the Commission | Amendment |
|---|---|
| (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.. | (19) Where a third-country national is facilitated in reaching 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, in particular with regard to the attempt of an offence that caused the death of a third-country national. |
| Text proposed by the Commission | Amendment |
|---|---|
| (21a) In the implementation and application of this Directive, Member States should ensure that the procedural rights of suspects or accused persons in criminal proceedings, as well the rights of victims of crime, are respected. In that regard, obligations under this Directive do not affect Member States’ obligations under Union law on procedural rights in criminal proceedings and on the rights of victims of crime, in particular under Directives 2010/64/EU, 2012/13/EU, 2012/29/EU, 2013/48/EU, (EU) 2016/343, (EU) 2016/800 and (EU) 2016/1919. |
| Text proposed by the Commission | Amendment |
|---|---|
| (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 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. | (24) To ensure successful enforcement, Member States should make available effective investigative tools for the criminal offences referred to in this Directive. In line with the general principles of Union law, the use of such tools should be necessary and proportionate. The use of investigative tools, such as for instance the interception of communications, covert surveillance including electronic surveillance, monitoring of bank accounts and other financial investigation tools should be applied where organised crime is involved in the alleged offence. 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. |
| Text proposed by the Commission | Amendment |
|---|---|
| (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. | deleted |
| 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). |
| Text proposed by the Commission | Amendment |
|---|---|
| (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. | (26) To prosecute more effectively 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. |
The aim must be to prosecute and dismantle criminal organisations and networks profiteering from smuggling migrants.
| Text proposed by the Commission | Amendment |
|---|---|
| (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. | (28) In the implementation and application of this Directive, Member States should respect 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. |
The recital needs to remind Member States of their obligations under the Charter and not state, as a matter of fact, that the Directive does not violate the Charter.
| Text proposed by the Commission | Amendment |
|---|---|
| (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, | (36) As regards Cyprus, this Directive constitutes an act building upon, or otherwise related to, the Schengen acquis within, the meaning of Article 3(1) of the 2003 Act of Accession, |
| Text proposed by the Commission | Amendment |
|---|---|
| Subject matter | Subject matter and scope |
| Text proposed by the Commission | Amendment |
|---|---|
| It shall apply without prejudice to the protection afforded to 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 1951 Convention relating to the status of refugees, as amended by the Protocol of New York of 1967. |
| Text proposed by the Commission | Amendment |
|---|---|
| 2a. ‘humanitarian assistance’ means short-term or long-term actions taken to save lives, alleviate suffering and maintain human dignity during and after man-made crises and disasters, including actions to reduce vulnerabilities and promote and protect human rights, governed by the humanitarian principles of: humanity, impartiality, neutrality and independence; |
| Text proposed by the Commission | Amendment |
|---|---|
| Criminal offences | Assisting entry, transit or stay |
| Text proposed by the Commission | Amendment |
|---|---|
| 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 | a) the person who carries out the conduct does so in order to obtain, directly or indirectly, a financial or material benefit. |
Aligned to be closer to the definition established in Article 6 of the UN Protocol Against the Smuggling of Migrants by Land, Sea and Air (‘the UN Protocol’).
| Text proposed by the Commission | Amendment |
|---|---|
| b) there is a high likelihood of causing serious harm to a person. | deleted |
It is hard to see how the concept of “high likelihood of causing serious harm” complies with the principle of legal certainty in criminal law (lex certa).
| Text proposed by the Commission | Amendment |
|---|---|
| 2. 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. | deleted |
It is hard to see how the broad and novel concept of “public instigation” complies with the principle of legal certainty in criminal law (lex certa).
| Text proposed by the Commission | Amendment |
|---|---|
| 2a. The provision of ‘humanitarian assistance’ shall not constitute a criminal offence. |
In order to comply with the principle of legal certainty in criminal law, when establishing a criminal offence, it is necessary to allow an individual to ascertain whether their actions lead to criminal liability or not.
| Text proposed by the Commission | Amendment |
|---|---|
| 2b. Third country nationals shall not become liable under this Article for the sole fact of having been the object of the conduct set out in paragraph 1. |
In line with Article 5 of the UN Protocol. The criminal offence is migrant smuggling. The fact of being a migrant should not be criminalised.
| Text proposed by the Commission | Amendment |
|---|---|
| Article 4 | deleted |
| 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). |
There is no precedent for aggravated criminal offences in EU criminal law. The distinct additional elements mentioned are better addressed through Article 6 on penalties for natural persons and through Article 9 on aggravating circumstances.
| Text proposed by the Commission | Amendment |
|---|---|
| Incitement, aiding and abetting, and attempt | Inciting, aiding and abetting, and attempt |
| Text proposed by the Commission | Amendment |
|---|---|
| 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. | Member States shall ensure that inciting, and aiding and abetting, the commission of the criminal offence referred to in Article 3(1) are punishable as criminal offences. |
Technical amendment to remove reference to Article 4. Otherwise the language has been aligned with the draft model provisions on substantive criminal law, endorsed by the LIBE Coordinators in February 2025.
| Text proposed by the Commission | Amendment |
|---|---|
| Member States shall ensure that an attempt to commit a criminal offence referred to in Article 3(1) is punishable as a criminal offence. |
Technical amendment to remove reference to Article 4. Otherwise, the language has been aligned with the draft model provisions on substantive criminal law, endorsed by the LIBE Coordinators in February 2025.
| Text proposed by the Commission | Amendment |
|---|---|
| 1. 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. | 1. Member States shall take the necessary measures to ensure that, where a natural person commits an offence referred to in Articles 3 and 5, the criminal offence is punishable by effective, proportionate and dissuasive criminal penalties. |
Technical amendment to remove reference to Article 4. Otherwise the language has been aligned with the draft model provisions on substantive criminal law, endorsed by the LIBE Coordinators in February 2025.
| Text proposed by the Commission | Amendment |
|---|---|
| 2. 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. | 2. Member States shall take the necessary measures to ensure that the criminal offence referred to in Article 3(1) is punishable by a maximum term of imprisonment of at least two years. |
The general principle of proportionality in criminal law requires the minimum level of the maximum penalty to be proportionate to the seriousness of the offence committed, taking into account the harm, wrongdoing and culpability of the offender.
| Text proposed by the Commission | Amendment |
|---|---|
| 3. 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. | 3. Member States shall take the necessary measures to ensure that the criminal offence referred to in Article 3(1) is punishable by a maximum term of imprisonment of at least five years where: |
| (a) the criminal offence deliberately or by gross negligence caused serious harm to or endangered the life of the third-country nationals who were the object of the criminal offence; or | |
| (b) the criminal offence was committed by the use of serious violence against the third country nationals who were the object of the criminal offence; or | |
| (c) the third-country nationals who were the object of the criminal offence were vulnerable persons, such as unaccompanied minors. |
The following three cases were proposed by the Commission as aggravated offences. They are better addressed through the level of penalties imposed.
| Text proposed by the Commission | Amendment |
|---|---|
| 4. 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. | 4. Member States shall take the necessary measures to ensure that the criminal offence referred to in Article 3(1), is punishable by a maximum term of imprisonment of at least ten years where: |
| (a) the criminal offence was committed within the framework of a criminal organisation within the meaning of Council Framework Decision 2008/841/JHA; or | |
| (b) the criminal offence caused the death of third-country nationals who were the object of that offence. |
| Text proposed by the Commission | Amendment |
|---|---|
| 5. 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: | 5. Member States shall take the necessary measures to ensure that natural persons who have committed criminal offences referred to in Articles 3 and 5 may also be subject to criminal or non-criminal penalties or measures, which may include: |
| Text proposed by the Commission | Amendment |
|---|---|
| (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; | (a) withdrawal of permits or authorisations to pursue activities that resulted in the relevant criminal offence; |
The language has been aligned with the draft model provisions on substantive criminal law, endorsed by the LIBE Coordinators in February 2025.
| Text proposed by the Commission | Amendment |
|---|---|
| (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; | deleted |
Misplaced in a criminal law directive. Provisions on return are governed and will be governed by the Return Directive (and upcoming Return Regulation).
| Text proposed by the Commission | Amendment |
|---|---|
| (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; | deleted |
Misplaced in a criminal law directive. Provisions on entry bans are governed and will be governed by the Return Directive (and upcoming Return Regulation).
| Text proposed by the Commission | Amendment |
|---|---|
| (d) exclusions from access to public funding, including tender procedures, grants and concessions; | (d) exclusions from access to public funding, including tender procedures, grants, concessions and licences; |
The language has been aligned with the draft model provisions on substantive criminal law, endorsed by the LIBE Coordinators in February 2025.
| Text proposed by the Commission | Amendment |
|---|---|
| (e) fines; | (e) fines that are proportionate to the gravity of the conduct and to the individual, financial and other circumstances of the natural person concerned and, where relevant, that are determined taking due account of the gravity and duration of the damage caused; |
The language has been aligned with the draft model provisions on substantive criminal law, endorsed by the LIBE Coordinators in February 2025.
| Text proposed by the Commission | Amendment |
|---|---|
| (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 . | deleted |
| 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). |
This provision need not be included, as it is covered in the Directive on freezing and confiscation of assets.
| Text proposed by the Commission | Amendment |
|---|---|
| 1. 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: | 1. Member States shall ensure that legal persons can be held liable for the criminal offences referred to in Articles 3 and 5, where the criminal offences have been committed for the benefit of those legal persons by a natural person who has a leading position within the legal person and who acts individually or as part of an organ of the legal person, on the basis of any of the following: |
The language of Article 7 has been aligned with the draft model provisions on substantive criminal law, endorsed by the LIBE Coordinators in February 2025.
| Text proposed by the Commission | Amendment |
|---|---|
| 2. 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. | 2. Member States shall ensure that legal persons can be held liable for criminal offences referred to in Articles 3 and 5 where the lack of supervision or control by a leading person has made possible, by a natural person under their authority, the commission of a criminal offence referred to in Articles 3 and 5 for the benefit of that legal person. |
| Text proposed by the Commission | Amendment |
|---|---|
| 3. 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. | 3. The liability of legal persons under paragraphs 1 and 2 of this Article shall not preclude criminal proceedings against natural persons who commit, incite or are accessories in the criminal offences referred to in Articles 3 and 5. |
| Text proposed by the Commission | Amendment |
|---|---|
| Sanctions for legal persons | Penalties for legal persons |
The language of Article 8 has been aligned with the draft model provisions on substantive criminal law, endorsed by the LIBE Coordinators in February 2025.
| Text proposed by the Commission | Amendment |
|---|---|
| 1. 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. | 1. Member States shall take the necessary measures to ensure that, where a legal person is held liable pursuant to Article 7, the criminal offence is punishable by effective, proportionate and dissuasive criminal or non-criminal penalties or measures. |
| Text proposed by the Commission | Amendment |
|---|---|
| 2. 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: | 2. Member States shall take the necessary measures to ensure that effective, proportionate and dissuasive criminal or non-criminal penalties or measures shall include criminal or non-criminal fines and may include other criminal or non-criminal penalties or measures, such as: |
| Text proposed by the Commission | Amendment |
|---|---|
| (a) criminal or non-criminal fines; | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| (b) exclusion from entitlement to public benefits, aid or subsidies; | (b) exclusion from entitlement to public benefits or aid; |
| Text proposed by the Commission | Amendment |
|---|---|
| (c) temporary or permanent exclusion from access to public funding, including tender procedures, grants and concessions; | (c) exclusion from access to public funding, including tender procedures, grants and concessions; |
| Text proposed by the Commission | Amendment |
|---|---|
| (d) temporary or permanent disqualification from the practice of commercial activities; | (d) disqualification from the practice of commercial activities; |
| Text proposed by the Commission | Amendment |
|---|---|
| (g) temporary or permanent closure of establishments which have been used for committing the criminal offence; | (g) closure of establishments used for committing the criminal offence; |
| Text proposed by the Commission | Amendment |
|---|---|
| (h) withdrawal of permits and authorisations to pursue activities which have resulted in committing the criminal offence; | (h) withdrawal of permits and authorisations to pursue activities which have resulted in the criminal offence; |
| Text proposed by the Commission | Amendment |
|---|---|
| (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 . | deleted |
| 22 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). |
This provision need not be included, as it is covering in the Directive on freezing and confiscation of assets.
| Text proposed by the Commission | Amendment |
|---|---|
| 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: | 3. The amount of criminal or non-criminal fines shall be proportionate to the gravity of the conduct and to the individual, financial and other circumstances of the legal person. Member States shall ensure that the maximum level of such fines is not less than: |
| Text proposed by the Commission | Amendment |
|---|---|
| (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; | (a) 3% of the total worldwide turnover of the legal person, either in the business year preceding that in which the offence was committed, or in the business year preceding the decision to impose the fine, for criminal offences referred to in Article 3; |
| Text proposed by the Commission | Amendment |
|---|---|
| (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); | (b) 5% of the total worldwide turnover of the legal person, either in the business year preceding that in which the criminal offence was committed, or in the business year preceding the decision to impose the fine, for criminal offences covered by Article 6(3) and (4); |
Alignment with the deletion of Article 4 and additional specificities of offences referred to in Article 6.
| Text proposed by the Commission | Amendment |
|---|---|
| (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). | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| 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. | 4. Member States may establish rules for 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 that in which the criminal offence was committed, or in the business year preceding that of the decision to impose that fine. |
| Text proposed by the Commission | Amendment |
|---|---|
| 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: | To the extent that the following circumstances do not form part of the constituent elements of the criminal offence referred to in Article 3(1), Member States shall take the necessary measures to ensure, in relation to the criminal offences referred to in Articles 3 and 5, that the following circumstances may, in accordance with national law, be regarded as aggravating circumstances: |
| Text proposed by the Commission | Amendment |
|---|---|
| (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 ; | deleted |
| 23 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). |
The link between the criminal offence and illegal employment is too tenuous to justify this circumstance as an aggravated offence. The Employers’ Sanctions Directive already criminalises the employment of irregularly staying third country nationals.
| Text proposed by the Commission | Amendment |
|---|---|
| (c) the offender has previously been definitively convicted of criminal offences of the same nature under Articles 3, 4 or 5; | (c) the offender has previously been definitively convicted of criminal offences of the same nature under Article 3 or Article 5; |
| Text proposed by the Commission | Amendment |
|---|---|
| (d) the criminal offence entailed or resulted in the exploitation or instrumentalisation of a third-country national who was subject to the criminal offence; | (d) the criminal offence entailed or resulted in the exploitation of a third-country national who was the object of the criminal offence; |
| Text proposed by the Commission | Amendment |
|---|---|
| (e) dispossessing the third-country nationals who are subject to the criminal offence of their identity or travel documents; | (e) dispossessing the third-country nationals who are the object of the criminal offence of their identity or travel documents; |
| Text proposed by the Commission | Amendment |
|---|---|
| (f) the criminal offence was carried out while carrying a firearm. | (f) the criminal offence was committed involving cruel, inhuman or degrading treatment of a third-country national who was the object of the criminal offence. |
The aggravating circumstance of carrying a gun is not explicable - would it not be aggravating circumstance to carry a large knife? It is better to reflect the need to avoid cruel, inhuman or degrading treatment.
| Text proposed by the Commission | Amendment |
|---|---|
| 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: | Member States shall take the necessary measures to ensure that, in relation to the criminal offences referred to in Articles 3 and 5, the following may, in accordance with national law, be regarded as a mitigating circumstance: |
The language of Article 10 has been aligned with the draft model provisions on substantive criminal law, endorsed by the LIBE Coordinators in February 2025.
| Text proposed by the Commission | Amendment |
|---|---|
| (a) identify or bring to justice other offenders; or | (a) that the offender provides the competent authorities with information helping them to identify or bring to justice other offenders; |
| Text proposed by the Commission | Amendment |
|---|---|
| (b) find evidence. | (b) that the offender provides the competent authorities with information helping them to find evidence. |
| Text proposed by the Commission | Amendment |
|---|---|
| Limitation periods for criminal offences | Limitation periods |
| Text proposed by the Commission | Amendment |
|---|---|
| 1. 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. | 1. Member States shall take the necessary measures to provide for a limitation period that enables the investigation, prosecution, trial and adjudication of criminal offences referred to in Articles 3 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. |
| Text proposed by the Commission | Amendment |
|---|---|
| 2. Member States shall take the necessary measures to enable the investigation, prosecution, trial and judicial decision: | 2. Member States shall take the necessary measures to enable the investigation, prosecution, trial and adjudication: |
| Text proposed by the Commission | Amendment |
|---|---|
| (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, | (a) of criminal offences punishable by a maximum term of imprisonment of at least two years referred to in Article 3, for a period of at least three years from the commission of the criminal offence; |
| Text proposed by the Commission | Amendment |
|---|---|
| (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; | (b) of criminal offences punishable by a maximum term of imprisonment of at least five years, for a period of at least five years from the commission of the criminal offence; |
| Text proposed by the Commission | Amendment |
|---|---|
| (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. | (c) of criminal offences punishable by a maximum term of imprisonment of at least ten years, for a period of at least ten years from the time of commission of the criminal offence. |
| Text proposed by the Commission | Amendment |
|---|---|
| (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; | (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(1), for at least three years from the date of the final conviction; |
| Text proposed by the Commission | Amendment |
|---|---|
| (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; | (b) a penalty of imprisonment in the case of a criminal offence, imposed following a final conviction for a criminal offence covered in Article 6(3), for at least five years from the date of the final conviction; |
| Text proposed by the Commission | Amendment |
|---|---|
| (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 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. | (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 6(4), for at least ten years from the date of the final conviction. |
| Text proposed by the Commission | Amendment |
|---|---|
| 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: | 4. By way of derogation from paragraph 2, point (c), and paragraph 3, point (c), Member States may establish a shorter limitation period, provided that the period may be interrupted or suspended in the event of specified acts. That period shall not be shorter than five years. |
| (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). |
| Text proposed by the Commission | Amendment |
|---|---|
| 1. Each Member State shall establish its jurisdiction over a criminal offence referred to in Articles 3, 4 and 5 where the criminal offence: | 1. Each Member State shall establish its jurisdiction over the criminal offences referred to in Articles 3 and 5 where: |
| Text proposed by the Commission | Amendment |
|---|---|
| (a) is committed in whole or in part in its territory; | (a) the criminal offence is committed in whole or in part within its territory; |
| Text proposed by the Commission | Amendment |
|---|---|
| (b) is committed by one of its nationals or a third-country nationals who is a habitual resident in its territory; | (b) the offender is one of its nationals; |
The reference to habitual residents and to legal persons are moved to the optional jurisdiction provision in paragraph 2.
| Text proposed by the Commission | Amendment |
|---|---|
| (c) is committed for the benefit of a legal person | deleted |
| (i) established in its territory; | |
| (ii) in respect of any business done in whole or in part in its territory; |
| Text proposed by the Commission | Amendment |
|---|---|
| (d) is committed on board of a ship or an aircraft registered in it or flying its flag; | (d) the criminal offence is committed on board of a ship or an aircraft registered in it or flying its flag; |
| Text proposed by the Commission | Amendment |
|---|---|
| (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. | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| 2. 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. | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| 3. 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: | 3. For the prosecution of the criminal offences referred to in Articles 3 and 5 committed outside the territory of a Member State, a Member State shall inform the Commission where it intends to extend its jurisdiction where: |
| Text proposed by the Commission | Amendment |
|---|---|
| (a) the acts are a criminal offence at the place where they were carried out; | (a) the offender is a habitual resident in its territory; |
| Text proposed by the Commission | Amendment |
|---|---|
| (b) the prosecution can be initiated only following a transmission of information from the State of the place where the criminal offence was committed. | (b) the criminal offence 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 on its territory; |
| Text proposed by the Commission | Amendment |
|---|---|
| (ba) the criminal offence results in the entry or transit in the territory of Member State of third-country nationals who were the object of the criminal offence. |
| Text proposed by the Commission | Amendment |
|---|---|
| 4. 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. | 4. Where a criminal offence referred to in Articles 3 and 5 falls within the jurisdiction of more than one Member State, those Member States shall cooperate to determine which Member State is to conduct the criminal proceedings. The matter shall, where appropriate and in accordance with Article 12 of Framework Decision 2009/948/JHA, be referred to Eurojust. |
| Text proposed by the Commission | Amendment |
|---|---|
| Article 12a | |
| Ne bis in idem | |
| In the transposition and application of this Directive, Member States shall ensure that the possibility of multiple jurisdictions for cross-border criminal offences falling within its scope does not lead to any infringement of the principle of ne bis in idem. |
Given the expansion of jurisdiction and the increased risk of multiple jurisdictions existing, it is important to establish the application of the principle of ne bis in idem.
| Text proposed by the Commission | Amendment |
|---|---|
| 1. 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. | 1. Member States shall take appropriate action, such as information and awareness-raising campaigns, and research and education programmes, in particular in relevant third countries, aimed at raising public awareness and reducing the commission of the criminal offences referred to in Articles 3 and 5. |
For meaningful benefit, such information and awareness-raising campaigns need to be carried out in third countries.
| Text proposed by the Commission | Amendment |
|---|---|
| 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. | Member States shall ensure that national authorities competent for the detection, investigation, prosecution or adjudication of the criminal offences referred to Articles 3 and 5 have a sufficient number of qualified staff and sufficient financial, technical and technological resources for the effective performance of their functions related to the implementation of this Directive. |
| Text proposed by the Commission | Amendment |
|---|---|
| 1. 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. | 1. 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, legal professionals, the judiciary and the staff of authorities tasked with criminal investigations and proceedings of criminal offences referred to in Articles 3 and 5. |
It is important that specialized training is available to lawyers also in line with the recommendation from the CCBE.
| Text proposed by the Commission | Amendment |
|---|---|
| 2. 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. | 2. Without prejudice to judicial independence and differences in the organisation of the judiciary across the Union, Member States shall take the necessary measures to ensure that specialised regular training is provided to judges, prosecutors, law enforcement and judicial staff and to competent authorities’ staff involved in criminal proceedings and investigations with regard to the objectives of this Directive and appropriate to the functions of such judges, prosecutors, law enforcement and judicial staff and competent authorities’ staff. |
The language of Article 15 has been aligned with the draft model provisions on substantive criminal law, endorsed by the LIBE Coordinators in February 2025.
| Text proposed by the Commission | Amendment |
|---|---|
| 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. | 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 and 5. |
The special investigative tools used for tackling organised crime should be available, in accordance with national law, where there are indications that organised crime is involved in the criminal offences.
| Text proposed by the Commission | Amendment |
|---|---|
| Data collection and statistics | Statistical data |
The language of Article 10 has been aligned with the draft model provisions on substantive criminal law, endorsed by the LIBE Coordinators in February 2025.
| Text proposed by the Commission | Amendment |
|---|---|
| 1. Member States shall collect statistical data disaggregated by the type of criminal offence referred to in Articles 3, 4 and 5. | 1. Member States shall ensure that a system is in place for the collection, development, production and dissemination of anonymised statistical data on criminal offences referred to in Articles 3 and 5. |
| Text proposed by the Commission | Amendment |
|---|---|
| 2. The statistical data referred to in paragraph 1 shall include, at least, the following: | 2. Without prejudice to reporting obligations laid down in other Union legal acts, Member States shall, on an annual basis, submit to the Commission statistical data referred to in paragraph 1 which shall include, as a minimum, the following: |
| Text proposed by the Commission | Amendment |
|---|---|
| (a) the number of third-country nationals who were subject to the criminal offence, disaggregated by citizenship, sex and age (child/adult); | (a) the number of third-country nationals who were the object of the criminal offence, disaggregated by citizenship, sex and age (child/adult); |
| Text proposed by the Commission | Amendment |
|---|---|
| 3. 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. | 3. Member States shall, on an annual basis and by 1 July each year, publish, in a machine-readable and anonymised format, the statistical data referred to in paragraph 2 for the previous year and transmit it to the Commission. |
| Text proposed by the Commission | Amendment |
|---|---|
| 3a. The Commission shall, at least every three years, publish a report based on the statistical data transmitted by the Member States. That report shall be published for the first time ... [five years from the date of entry into force of this Directive]. |
Standard reporting obligation on the Commission. For the first report the Commission should be given enough time for transposition by the Member States and for the collection and transmission of enough data to make the report meaningful.
| Text proposed by the Commission | Amendment |
|---|---|
| 1. 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. | 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by ... [one year from the entry into force of this Directive]. They shall forthwith communicate to the Commission the text of those provisions. |
Back matter, 2
Parts that accompany the text rather than belong to it: explanatory statement, annexes, opinions appended by other committees. Collapsed.
Explanatory statement 9 blocks
The Rapporteur will present hereafter the main reasons for the amendments presented in the draft report on the 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 2023/0439(COD) adopted by the Commission in November 2023.
Since the re-confirmation of the appointment of the Rapporteur on 10 September 2024, several exchanges of views took place, including a meeting with the shadow Rapporteurs, as well as meetings with external stakeholders. In addition, the presentation of the European Parliamentary Research Service (EPRS) targeted substitute impact assessment took place in the LIBE Committee on 19 March 2025.
The Rapporteur shares the overall objective of the Commission to modernise and reinforce the legal framework on migration smuggling, in particular aligning the criminal law instrument with the United Nations Protocol against the Smuggling of Migrants by Land, Sea and Air. The Rapporteur strongly believes that modernisation of the criminal law should reflect the shared intention to investigate and prosecute “high-level” targets in organised crime and in criminal smuggling networks. With this intention in mind, the Rapporteur proposes amendments to the Commission’s proposal for a Directive, in order to improve clarity and legal certainty.
The Rapporteur regrets that the Commission did not produce an impact assessment for the proposal and would like to express her gratitude to the European Parliamentary Research Service Ex-Ante Impact Assessment Unit and the respective contractors for the work on the targeted substitute impact assessment.
The 2017 REFIT evaluation of the current Facilitators Package, and the 2024 study supporting the implementation of the Facilitators Package highlighted the challenges posed by the current broad definition of the criminal offence, specifically the risk of criminalisation of humanitarian assistance, a risk that we have seen borne out in practice in a number of Member States. While the Rapporteur explicitly welcomes the introduction of the financial or material gain to the definition of the criminal offence, the continued absence of an exemption for humanitarian assistance is regrettable. The Rapporteur therefore introduces a definition of humanitarian assistances and further stipulates that the provision thereof should not constitute a criminal offence.
Furthermore, the Rapporteur considers the introduction of a high likelihood of causing serious harm to a person and the novel concept of public instigation as part of the definition of the criminal offences as incompatible with the principle of legal certainty in criminal law and consequently proposes to delete them. The Rapporteur welcomes the fact that the Council of the European Union in its General Approach chose an equal approach.
To underline the Commission’s intention to dismantle organised crime networks engaged in migrant smuggling, the Rapporteur proposes a number of amendments. This includes the possibility for a maximum penalty of offences committed within framework of a criminal organisation and allowing for the use of special investigative tools, in accordance with national law, where organised crime is involved in the criminal offences.
Annex: entities or persons from whom the rapporteur has received input 3 blocks
Pursuant to Article 8 of Annex I to the Rules of Procedure, the rapporteur declares that she received input from the following entities or persons in the preparation of the draft report:
| Entity and/or person(2) |
| Amnesty International Limited |
| Border Violence Monitoring Network |
| Caritas Deutschland |
| Caritas Europa |
| Commissie Meijers |
| Council of Bars and Law Societies of Europe |
| Danish Refugee Council Brussels |
| Deutscher Anwaltverein |
| EMERGENCY |
| Equinox Initiative for Racial Justice |
| Evangelische Kirche in Deutschland |
| Legal Centre Lesvos |
| Médecins Sans Frontières International |
| Parliamentary Assembly of the Council of Europe Rapporteur on Migration Smuggling |
| Platform for International Cooperation on Undocumented Migrants |
| Red Cross EU |
| Sea-Watch e.V. |
| SOLIDAR |
| SOS Humanity e.V. |
| Stichting LOS |
| United Nations High Commissioner for Human Rights |
| United Nations High Commissioner for Refugees |
| United Nations Special Rapporteur on the situation of human rights defenders |
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Sources & citation
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- Licensed CC BY 4.0.
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- 25 September 2026
Cite as
European Parliament (2025). “DRAFT REPORT on the 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”. Text, 26 March 2025. docId LIBE-PR-768109. EU Parl Watch Research. https://news.eu-parl.st-solutions.dev/texts/LIBE-PR-768109 (retrieved 25 September 2026). Data: EP Open Data API: document record, https://data.europarl.europa.eu/api/v2/documents/LIBE-PR-768109 (CC BY 4.0).
BibTeX
@misc{epw-text-libe-pr-768109,
author = {{European Parliament}},
title = {{DRAFT REPORT on the 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}},
year = {2025},
date = {2025-03-26},
howpublished = {\url{https://news.eu-parl.st-solutions.dev/texts/LIBE-PR-768109}},
url = {https://news.eu-parl.st-solutions.dev/texts/LIBE-PR-768109},
urldate = {2026-09-25},
publisher = {EU Parl Watch Research},
note = {Text. docId LIBE-PR-768109. Data: EP Open Data API: document record (CC BY 4.0)}
}