1.
intentionally assisting a non-EU country national to enter or transit through the territory of an EU country in breach of laws; or
2.
intentionally assisting, and for financial gain, a non-EU country national to reside in the territory of an EU country in breach of laws.

However, in the first case, when the aim is to provide humanitarian assistance, EU countries are not obliged to impose sanctions.

Penalties

EU countries must adopt effective, proportionate and dissuasive criminal sanctions which may entail extradition. The criminal penalties may be accompanied by other measures, such as:

confiscation of the means of transport used to commit the offence;
prohibition to practice the occupational activity in which the offence was committed; or
deportation.

Infringing or instigating infringement must be punishable by custodial sentences with a maximum sentence of at least 8 years:

if committed for financial gain;
if committed as part of the activity of a criminal organisation; or
if the lives of the subjects of the offences were endangered.

Liability of legal persons

EU countries must also adopt effective, proportionate and dissuasive sanctions against legal persons* for aiding illegal immigration committed for their benefit, in any of the following circumstances:

the infringement is committed by someone with a leading position within that legal person;
the infringement is committed by someone under the authority of that legal person and over which the person with a leading position neglects to exercise supervision or control.

The sanctions must include criminal or non-criminal fines and may include other sanctions, such as:

exclusion from public benefits;
a temporary or definitive ban on commercial activities; or
a judicial supervision or dissolution measure.

Jurisdiction

EU countries must ensure their jurisdiction applies to infringements committed in their territory. They may decide whether they apply their jurisdiction in cases where the offence is committed by one of their nationals or for the benefit of a legal person established in their territory. If an EU country does not extradite its own nationals, it must ensure that its jurisdiction applies to infringements committed by its nationals outside its territory.
When an EU country becomes aware of infringements breaching another EU country’s immigration law, it must inform the country concerned. If one EU country requests another to prosecute an infringement of its immigration law, it must provide it with an official report or certificate describing the law that was breached.

Territorial application

Denmark does not take part in the application of the directive or of the decision under EU law but it is bound by its rules on the basis of Protocol 22.
The directive and the decision were initially applicable to the United Kingdom but it chose to opt-out of the framework decision with effect from 1 December 2014 on the basis of Article 10(4) of Protocol 36. Therefore, only the directive applies to the United Kingdom.
The facilitators package does not apply to Ireland yet.
The directive and the decision constitute a development of the Schengen acquis and therefore applies to Iceland, Liechtenstein, Norway and Switzerland.

FROM WHEN DO THESE ACTS APPLY?

Both acts have applied since 5 December 2002 and had to become law in EU countries by 5 December 2004.

BACKGROUND

The directive and the decision contribute to the development of an area of justice, freedom and security by developing common action among EU countries in the fields of police and judicial cooperation in criminal matters. They supplement the following acts:

Directive 2009/52/EC on illegal employment;
Directive 2011/36/EU on trafficking in human beings; and
Directive 2011/93/EU on the sexual exploitation of children.

KEY TERMS

Legal person: a body of persons or an entity (such as a company) considered as having many of the rights and responsibilities of a natural person and especially the capacity to sue and to be sued.

MAIN DOCUMENTS

Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence (OJ L 328, 5.12.2002, pp. 17-18)

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, pp. 1-3)

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