Penal framework for preventing the facilitation of illegal immigration

This framework decision provides minimum rules for European Union (EU) countries regarding penalties, liability of legal persons and jurisdiction for infringements relating to the facilitation of illegal immigration.

ACT

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.

SUMMARY

Common action between European Union (EU) countries in the fields of police and judicial cooperation in criminal matters is necessary for the creation of an area of freedom, security and justice. In this context, EU countries should also take measures to prevent the aiding of illegal immigration. To this end, this framework decision establishes minimum rules for penalties, liability of legal persons and jurisdiction.

Penalties

The directive defining the facilitation of illegal immigration sets out the infringements for which EU countries must adopt effective, proportionate and dissuasive criminal penalties that may include extradition. These penalties may be supplemented by other measures, such as:

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

Certain infringements committed for financial gain must be punishable by custodial sentences with a maximum sentence of not less than eight years, if they were committed as part of activity of a criminal organisation or if the lives of the subjects of the offences were endangered.

Liability of legal persons

Legal persons must be held liable for infringements relating to the aiding of illegal immigration committed for their benefit by any person that has power of representation of or authority to take decisions on behalf or to exercise control within the legal person. If such a person neglects to exercise supervision or control over a person under the authority of the legal person who commits an infringement, the legal person must also be held liable.

EU countries must adopt sanctions for legal persons that are effective, proportionate and dissuasive. These must include criminal or non-criminal fines and may include other sanctions, such as:

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

Jurisdiction

EU countries must ensure that 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. However, if an EU country does not extradite its own nationals, it must ensure that its jurisdiction applies to infringements committed by its nationals outside of its territory.

When an EU country becomes aware of infringements breaching another EU country’s law on the entry and residence of aliens, it must communicate this information to the country concerned. If an EU country requests another EU country to prosecute such infringements, it must provide the latter with an official report or certificate describing the provisions of its law that were breached.

RELATED ACTS

Report from the Commission of 6 December 2006 based on Article 9 of the Council Framework Decision of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence [COM(2006) 770 final – Not published in the Official Journal].

Last updated: 01.12.2010