February 2025
[PDF version available below]
On 29 November 2024, the Council of the European Union published its position on the proposed reform of the EU’s legal framework on people smuggling.
The position will now form the basis of the Council’s approach to the upcoming discussions with the EU Parliament and EU Commission on the proposed reform, in what is called the trilogue process.
A proposal for a Directive to reform EU law in this area, which has been governed by the ‘Facilitators Package’ since 2002, was put forward by the Commission on 28 November 2023.
While the Commission’s proposal was far from perfect, it was a welcome initiative given the widespread and persistent misuse of anti-smuggling legislation by Member States to criminalise solidarity with migrants and asylum seekers in the EU and at its borders, as well as migration itself.
On February 2024, I published a position paper on the Commission’s proposal. In it, I laid out three main concerns about the impact of the proposed reform on people exercising the right to defend human rights, and called on them to be addressed by the EU Parliament and Member States in the Council. These concerns involved:
- the failure to explicitly exclude acts of solidarity aimed at upholding the human rights of migrants and asylum seekers from the scope of the behaviour criminalised under the proposal;
- the potential for the newly created offence of ‘public instigation’ to be used against human rights defenders;
- the mandating of special investigative tools without insisting on appropriate human rights safeguards for their use.
The Council had the opportunity to address all of these issues. Unfortunately, however, it has failed to take it.
The offence of ‘public instigation’ has been removed in the Council’s position, and this is positive and should be supported by the EU Parliament and Commission.
Yet two of the major issues in the Commission’s proposal remain unaddressed:
- while the Council has included a reference to the so-called ‘humanitarian clause’ in the recitals, as the Commission did in its proposal, there is no reference to the clause in the operative part of the text. Moreover, the proposed humanitarian clause is poorly worded, leaving it open to misinterpretation;
- no safeguards have been included concerning the use of special investigative tools.
This is very disappointing. Yet other elements introduced in the Council’s position give cause for further concern.
To the fore are two issues linked to the treatment of the concept of ‘minimum harmonisation’ in the Council’s position.
A law of minimum harmonisation sets a bar which Member States must not fall below, while allowing them to go beyond it if they wish. As the purpose of the proposed reform is to combat people smuggling through its criminalisation, Member States are free to take measures beyond what might be laid out in any final Directive in order to meet this purpose.
This concept is problematically reflected in the Council’s position:
- while recital 7 does maintain a humanitarian clause, the Council explicitly states that this should be read in light of recital 6a, which holds that the Directive “… is an instrument of minimum harmonisation. As a consequence, Member States are free to adopt or maintain legislation providing for a broader incrimination than what is set out in this Directive, in the interests of enhancing the effectiveness of the fight against migrant smugglers.”
- Recital 6a also puts the inclusion of a material or profit motive as a constitutive element of the offence of smuggling into doubt on the same grounds, stating: “… since this Directive is an instrument of minimum harmonisation, Member States are free to criminalise such conduct when no financial or another material benefit has been provided.”
If accepted by the Commission and the Council, these two additions will leave the door wide open for the continued misuse of anti-people smuggling legislation against human rights defenders in the EU.
As I outlined in my position paper responding to the Commission’s proposal, the failure to introduce a binding humanitarian clause in the legislation in this area, coupled with the failure to include a profit motive as one of the constitutive elements of the criminal offence – in line with international standards1 – provided the grounds for such criminalisation in the first place. Rather than addressing these problems, the Council’s position would compound them.
The problematic concept of ‘instrumentalisation’, already introduced in the Commission’s proposal, would also appear to be opened up in the Council’s position as a new basis for the criminalisation of human rights defenders.
Recital 14c states: “Humanitarian assistance should not be considered as instrumentalisation of migrants when there is no aim to destablise the Union or a Member State.”
While this may have been included as an attempt to shelter human rights defenders from criminalisation, it would appear to fall short, raising the possibility that humanitarian assistance will be misconstrued as conduct aimed at undermining the EU or a Member State.
There is a clear contradiction in terms here. It is difficult if not impossible to imagine a situation in which the aim of humanitarian assistance is to destablise the EU or a Member State. Humanitarian assistance is aimed at protecting basic human rights, not at destablising states or regional blocs.
I call on the EU institutions to address these serious issues in the trilogues, and ensure that this opportunity to prevent the criminalisation of solidarity with migrants and asylum seekers in the EU, as well as to prevent the criminalisation of migration and migrants themselves, is taken.
[1] Particularly the UN Protocol Against the Smuggling of Migrants by Land, Sea and Air.