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DROIPEN 37 MIGR 25 COMIX 292 |
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I INTRODUCTION
The Mixed Committee at ministerial level (JHA) examined at
its meeting on 15 March 2001 the principal outstanding questions in respect of
the above proposals (the humanitarian clause in Article 1(2) of the draft
Directive and the provisions on sanctions in Article 1(1), (3) and (4) of the
draft Framework Decision) set out under point II of document 6766/01
DROIPEN 24 MIGR 15 COMIX 182. These questions were further examined by the
JHA Counsellors group on 2 April 2001 and by the Mixed Committee at the level
of ambassadors on 4, 11 and 25 April 2001.[1]
The Working Party on Substantive Criminal Law (Mixed Committee) examined at its meeting on 20 April 2001 the other outstanding questions regarding the two proposals on the basis of point III of DROIPEN 24. The texts of the two proposals resulting from the meeting are set out in Annexes I and II. Amendments made to the text as compared with document DROIPEN 24 are underlined.
The outstanding questions on the two proposals, apart from those dealt with in Mixed Committee at the level of ambassadors, are set out below. Certain minor points are set out in footnotes in the Annexes.
The European Parliament has been invited to give its opinion on the original initiatives by France by 17 November 2000. It has rejected the initiatives on 15 February 2001. 1
II OUTSTANDING
QUESTIONS
a. General
reservations
The Finnish delegation has maintained a general
scrutiny reservation on the two texts.
The two texts are subject to a parliamentary scrutiny
reservation by the Danish, United Kingdom, Netherlands and Swedish
delegations.
b. Recitals
It will be examined by the Legal Service of the Council to which extent there is a need for amendments or additions to the recitals of the Draft Directive and the Draft Framework Decision.
c. Relation
to Article 27 of the 1990 Schengen Convention (Article 5 of the draft Directive
and Article 8 of the draft Framework Decision)
The draft Directive and the draft Framework Decision are to
be regarded as a development of Article 27 of the 1990 Schengen Convention. The
said Article consists of 3 paragraphs. Paragraph 1 has its legal basis within
the Treaty Establishing the European Community whereas paragraphs 2 and 3 have
their legal basis within the Treaty on European Union (see Council Decision
1999/436/EC of 20 May 1999 determining the legal basis for each of the
provisions or decisions constituting the Schengen acquis[2]).
Paragraph 1 of Article 27 is therefore related to the draft
Directive and paragraphs 2 and 3 to the Draft Framework Decision. This is
reflected in Article 5 of the draft Directive and Article 8 of the draft
Framework Decision.
It should be clear with effect from which date Article 27
is repealed. It should be avoided that Article 27 is repealed before the
Directive and the Framework Decision have been implemented in all the Member
States.
The Legal Service of the Council will examine whether the
proposed Articles in the two texts (Article 5 of the draft Directive and
Article 8 of the draft Framework decision) need further adjustments.
d. Jurisdiction
(Article 4 of the Draft Framework Decision)
All delegations which made comments on Article 4 were in favour of drafting it in line with already agreed Articles in other Framework Decisions.
The Legal Service of the Council was of the opinion that
the introduction of more far-reaching jurisdiction rules could be considered,
taking into account the specific character of the conduct of illegal entry,
transit and residence. Such rules could include an obligation to establish
jurisdiction in cases where (i) an act forming part of the assistance has been
performed on its territory, (ii) the offender has his or her habitual residence
in its territory or, (iii) the offender is present in its territory.
A number of delegations thought that (i) was already
covered by Article 4(a).
The representative of the Commission favoured a more
far-reaching Article on jurisdiction.
e.
Legal basis
The Commission has earlier entered a reservation on
the legal basis. The Commission has explained its position in the Working Party
on Substantive Criminal Law on 30 October 2000 and has announced that it will
submit a formal note on the subject.
Certain delegations have earlier reserved their positions
in respect of the legal basis.
III CONCLUSIONS
The Article 36 Committee (Mixed Committee) is invited to
examine the questions set out under II above with a view to reaching political
agreement on the two instruments in the Mixed Committee at ministerial level
(JHA) on 28-29 May 2001.
______________
ANNEX I
COUNCIL DIRECTIVE 2000/ /EC
of
defining the facilitation of unauthorised entry, transit
and residence
THE COUNCIL OF THE
EUROPEAN UNION,
Having regard to the
Treaty establishing the European Community, and in particular
Articles 61(a) and 63(3)(b) thereof,
(…)
Having regard to the
initiative of the French Republic[3],
Having regard to the
opinion of the European Parliament,
Whereas:
(1) (…)
(2) The Treaty establishing
the European Community provides for the gradual creation of an area of freedom,
security and justice, which means, inter alia, that illegal immigration
must be combated.
(3) Consequently measures
should be taken to combat the aiding of illegal immigration, whether in
connection with unauthorised crossing of the border in the strict sense or for
the purpose of sustaining networks that exploit human beings.
(4) To that end it is
essential to approximate existing legal provisions, in particular, on
the one hand, the precise (…) definition of the infringement in
question and the cases of exemption, which is the subject of this
Directive and, on the other hand, minimum rules for penalties, liability of
legal persons and jurisdiction, which is the subject of Council Framework
Decision …/…/JHA on the strengthening of the penal framework
to prevent the facilitation of unauthorised entry, transit and residence[4].
(5) The purpose of this
Directive (…) is to provide a definition of the facilitation of illegal
immigration and consequently to render more effective the implementation of the
Framework Decision …/…/JHA on the strengthening of the penal
framework to prevent the facilitation of unauthorised entry, transit and
residence, in order to prevent that offence.
(6) This Directive supplements other instruments adopted
in order to combat illegal immigration,
illegal employment, trafficking in human beings and the sexual exploitation of children[5].
(7) [6]This
Framework Decision constitutes a development of the Schengen acquis that is
covered by Article 1 of Council Decision 1999/437/EC of 17 May 1999 on certain
arrangements for the application of the Agreement concluded by the Council of
the European Union and the Republic of Iceland and the Kingdom of Norway
concerning the association of those two States with the implementation,
application and development of the Schengen acquis[7];
(8) The United Kingdom
takes part in the adoption of this Directive, in accordance with
Article 8(2) of Council Decision 2000/365/EC of 29 May 2000 concerning the
request of the United Kingdom of Great Britain and Northern Ireland to take
part in some of the provisions of the Schengen acquis[8];
(9) Denmark, in accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and the Treaty establishing the European Community, is not participating in the adoption of the present Directive, and is therefore not bound by it, nor subject to its application. Within 6 months after the Council has decided on the present Directive, Denmark will decide whether it will implement it in its national law, in accordance with Article 5 of the Protocol on the position of Denmark;
HAS ADOPTED THIS
DIRECTIVE:
Article 1
General infringement
1. Each Member State shall adopt
appropriate sanctions on:
(a)
Any person who
intentionally assists or tries to assist a person who is not a national of a
Member State to enter, or transit across, the territory of a Member State in
breach of the laws of the State concerned on the entry or transit of aliens;
(b) Any person who, for financial gain, intentionally assists or tries to assist a person who is not a national of a Member State to reside within the territory of a Member State in breach of the laws of the State concerned on the residence of aliens.
2. Any Member State may decide not to impose sanctions in regard of the behaviour defined in paragraph 1(a) for cases where the aim of the behaviour is to provide humanitarian assistance to the person concerned.
Article 2
Participation, instigation
Each Member State shall take the measures necessary to ensure that the
sanctions referred to in Article 1 are also applicable to any person who is the
accomplice or instigator of any conduct as referred to in Article 1(1)(a)
or (b).
Article 3
Sanctions
Each Member State shall take the measures necessary to ensure that the
conduct referred to in Articles 1 and 2 is subject to
effective, proportionate and dissuasive sanctions.
Article 4
Implementation
1. Member States shall bring into
force the laws, regulations and administrative provisions necessary to comply
with this Directive before […].[9] They shall forthwith inform the
Commission thereof. When Member States adopt these measures, they shall contain
a reference to this Directive or shall be accompanied by such reference on the
occasion of their official publication. The methods of making such a reference
shall be laid down by the Member States.
2. Member States shall communicate
to the Commission the main provisions of their national law which they adopt in
the field covered by this Directive together with a table showing how the
provisions of this Directive correspond to the national provisions adopted. The
Commission shall inform the other Member States thereof.
Article 5
Repeal
Article
27 (1) of the 1990 Schengen Convention shall be repealed as from […]
Article 6
Entry into force
This Directive shall apply
from the day of its publication in the Official Journal of the European
Communities.
Article 7
Addressees
This Directive is
addressed to the Member States in accordance with the Treaty establishing the
European Community.
Done at
For
the Council
The
President
ANNEX II
COUNCIL FRAMEWORK DECISION …/…/JHA
of
on the strengthening of the penal framework to prevent
the facilitation of unauthorised entry, transit and
residence
THE COUNCIL OF THE
EUROPEAN UNION,
Having regard to the
Treaty on European Union, and in particular Articles 29, 31(e)
and 34(2)(b) thereof,
(…)
Having regard to the
initiative of the French Republic[10],
Having regard to the
opinion of the European Parliament,
Whereas:
(1) (…) Title VI
of the Treaty on European Union states that one of the Union’s objectives
shall be to provide citizens with a high level of safety within an area of
freedom, security and justice by developing common action among the member
States in the fields of police and judicial cooperation in criminal matters;
(2) In this framework,
measures should be taken to combat the aiding of illegal immigration, whether
in connection with unauthorised crossing of the border in the strict sense or
for the purpose of sustaining networks that exploit human beings;
(3) To that end it is
essential to approximate existing legal provisions, (…) in
particular, on the one hand, the precise (…) definition of the infringement
in question and the cases of exemption, which is the subject of
Directive 2000/…/EC defining the facilitation of unauthorised entry,
transit and residence and, on the other hand, minimum rules for penalties,
liability of legal persons and jurisdiction, which is the subject of this
Framework Decision[11];
(4) It is likewise
essential not to confine possible actions to natural persons only but to
provide for measures relating to the liability of legal persons;
(5) This
Framework Decision supplements other instruments adopted in order to combat illegal
immigration, illegal employment,
trafficking in human beings and the sexual exploitation of
children[12].
(6) This Framework
Decision constitutes a development of the Schengen acquis that is covered by
Article 1 of Council Decision 1999/437/EC of 17 May 1999 on certain
arrangements for the application of the Agreement concluded by the Council of
the European Union and the Republic of Iceland and the Kingdom of Norway
concerning the association of those two States with the implementation,
application and development of the Schengen acquis[13];
HAS ADOPTED THIS
FRAMEWORK DECISION:
Article 1[14]
Penalties
1. Each Member State shall take the
measures necessary to ensure that the conduct defined in Articles 1
and 2 of Directive 2000/…/EC is punishable by effective,
proportionate and dissuasive criminal penalties which may entail extradition.
2.
Where appropriate, the penalties covered in paragraph 1 may be accompanied
by the following measures:
– confiscation
of the means of transport used to commit the offence;
– a
prohibition on practising directly or through an intermediary the occupational
activity in the exercise of which the offence was committed;
– deportation (…).
3.
Each Member State shall take the measures necessary to ensure that, when
committed for financial gain, the actions defined in Article 1(1)(a) and,
to the extent relevant, Article 2, of Directive 2000/…/EC, is
punishable by custodial sentences, with a maximum sentence of not less than
[8 years], where they are committed in any of the following circumstances:
– the offence
was committed as an activity of a criminal organisation as defined in the Joint
Action of 21 December 1998,
adopted by the Council on the basis of Article K.3 of the Treaty[15];
- the offence was committed while endangering the lifes of the persons who are the subject of the offence.
4. If imperative to preserve the
coherence of the national penalty system, the actions defined in paragraph 3
shall be punishable by custodial sentences with a maximum sentence of not less
than 6 years, provided that it is among the most severe maximum sentences
available for crimes of comparable gravity.
Article 2[16]
Liability of legal persons
1. Each Member State shall take the
measures necessary to ensure that legal persons may be held liable for the conduct
to be sanctioned in accordance with Articles 1 and 2 of
Directive 2000/…/EC and 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:
– a power of
representation of the legal person, or
– an
authority to take decisions on behalf of the legal person, or
– an
authority to exercise control within the legal person,
(…)
2. Without prejudice to the cases
provided for in paragraph 1, each Member State shall take the measures
necessary to ensure that a legal person may 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 conduct to be sanctioned in accordance
with Articles 1 and 2 of Directive 2000/…/EC (…) and
committed for the benefit of that legal person by a person under its authority.
3. Liability of a legal person for the conduct to be sanctioned in accordance with Articles 1 and 2 of Directive 2000/…/EC (…) shall not exclude criminal proceedings against natural persons who are involved as perpetrators, instigators or accessories in the offences referred to in paragraph 1.
Penalties for legal persons
1. Each Member State shall take the
measures necessary to ensure that a legal person held liable pursuant to
Article 2(1) is punishable by effective, proportionate and dissuasive
penalties, which shall include criminal or non‑criminal fines and may
include other penalties such as:
(a) exclusion from
entitlement to public benefits or aid;
(b) temporary or permanent
disqualification from the practice of commercial activities;
(c) placing under judicial
supervision;
(d) a
judicial winding‑up order.
2. Each Member State shall take the measures necessary to ensure that a legal person held liable pursuant to Article 2(2) is punishable by effective, proportionate and dissuasive sanctions or measures.
Article 4
Jurisdiction
1. Each Member State shall take the
measures necessary to establish its jurisdiction with regard to the conduct
to be sanctioned in accordance with Articles 1 and 2 of Directive
2000/…/EC and committed (…)
(a) in
whole or in part within its territory; or
(b) by
one of its nationals; or
(c) for
the benefit of a legal person established in the territory of that Member
State.
2. Subject to the provisions of Article 4 a, any
Member State may decide that it will not apply, or that it will apply only in
specific cases or circumstances, the jurisdiction rule set out in:
-
paragraph 1(b);
-
paragraph 1(c
).
3. Each Member State shall inform
the Secretary-General of the Council in writing if it decides to apply
paragraph 2, where appropriate with an indication of the specific circumstances
or conditions in which its decision applies.
Article
4 a
Extradition
and prosecution
1. (a) Any
Member State which, under its law, does not extradite its own nationals shall
take the necessary measures to establish its jurisdiction over the conduct to
be sanctioned in accordance with Articles 1 and 2 of the Directive
2000/…/EC when committed by its own nationals outside its territory.
(b) Each Member State shall, when one of its
nationals is alleged to have committed in another Member State the conduct
defined by Directive 2000/…/EC, and it does not extradite that person to
that other Member State solely on the ground of his nationality, submit the
case to its competent authorities for the purpose of prosecution
if appropriate. In order to
enable prosecution to take place, the files, information and exhibits relating
to the offence shall be transmitted in accordance with the procedures laid down
in Article 6(2) of the European Convention on Extradition. The requesting
Member State shall be informed of the prosecution initiated and of its outcome.
2. For the purpose of this Article,
a "national" of a Member State shall be construed
in accordance with any declaration made by that State under
Article 6(1)(b) and (c) of the European Convention on Extradition of
13 December 1957, where appropriate as amended by the declarations
made with respect to the Convention drawn up on the basis of Article K.3 of the
Treaty on European Union, relating to extradition between the Member States of
the European Union[17].
Article 5
International law on refugees
This Framework Decision
shall apply without prejudice to the protection afforded 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 on refugee status as amended by the protocol of New York of 1957.
Article 6
(..title to be inserted …)
1. If a Member
State is informed of conduct to be sanctioned in accordance with Articles 1 and
2 of the Directive defining the facilitation of unauthorised entry, transit and
residence, which are in breach of the law on the entry and residence of aliens
of another Member State, it shall inform the latter accordingly.
2. Any Member
State which requests another Member State to prosecute, on the grounds of a
breach of its own laws on the entry and residence of aliens, conduct to be
sanctioned in accordance with Articles 1 and 2 of the Directive defining the
facilitation of unauthorised entry, transit and residence must specify, by
means of an official report or a certificate from the competent authorities,
the provisions of law that have been breached.
Article 7
Implementation
1. Member States shall adopt the
measures necessary to comply with the provisions of this Framework Decision
before [...].[18]
2. Before […], Member States
shall communicate to the General Secretariat of the Council and to the
Commission the texts of the provisions transposing into their national law the
obligations imposed on them by this Framework Decision. On the basis of that
information and a written report of the Commission, the Council will, no later
than […], assess the extent to which Member States have complied with
this Framework Decision.
Article 8
Repeal
Article 27(2) and (3) of the Schengen
Convention shall be repealed as from […].
Article 9
Entry into force
This Framework Decision
shall enter into force on the day of its publication in the Official
Journal of the European Communities.
Done at
For
the Council
The
President
______________