On 7 November 2024, the Advocate General of the CJEU delivered his opinion on our lawsuit challenging EU laws that criminalize facilitating unauthorised migration, known as the Facilitators' Package, as well as specific Italian legislation on the matter.
The Advocate General’s opinion is advisory and non-binding, so the court’s final ruling could still take a different direction. The court’s decision is expected in early 2025.
We asked: Is it legitimate and proportionate to criminalize any person who facilitates or assists unauthorized entry into the EU, regardless of the circumstances and without excluding altruistic acts?
Key Points of the Advocate General's Opinion
1) Broad Scope of Criminalization
The Advocate General notes that under current EU law, “facilitating irregular migration” could apply even to cases such as a mother helping her daughter and niece enter the EU.
This interpretation clearly contradicts the European Commission's assurances that those cases where there is a personal relation between the facilitator and the facilitated person are not intended targets of the law. We’ve argued all along that this law needs amending to exclude, at the very least, altruistic motives.
2) Validity of the Facilitators Package
The Advocate General finds the Facilitators Package to be valid. He notes that European directives can be vague and broad, and underscores that it is up to Member States to ensure that national implementation upholds the principles of proportionality and legality
3) Requirement for Proportionality in National Law
The Advocate General stresses that Member States violate the principle of proportionality if they fail to differentiate between acts driven exclusively by profit and those motivated by other factors such as humanitarian concerns, altruism, solidarity, or family ties. National courts must evaluate each case individually, considering these circumstances, and have the discretion to fully exempt individuals from punishment.
Although the opinion is somewhat open to interpretation, it may be seen as critical of Italian law, which does not require individual assessments for proportionality in each case. A clearer direction will depend on the court’s final decision.
Unfortunately, the Advocate General’s opinion does not align with our claims! He upheld the legality of the EU’s framework, and that it is up to national courts to differentiate between cases and weigh the different interests involved. While he noted that courts may choose not to punish individuals if it would be disproportionate, this is not mandatory, and "proportionate" remains vaguely defined.
“The AG confirmed that the EU Charter's principle of proportionality precludes criminalizing solidarity without allowing for exoneration. This is a positive step that could impact all criminal cases, but I hope the Court will go further by addressing this issue within the Facilitation Directive. Criminalizing solidarity should not exist at the EU level, as it leads to unequal treatment and legal uncertainty. I look forward to the Court's decision„ Lawyer Francesca Cancellaro
We remain firm in our belief that facilitating unauthorized entry should not be criminalized at all and that people should have the right to move freely. At the very least, the EU should not criminalize acts motivated by solidarity, compassion, and the intent to uphold the dignity and rights of individuals.
The fact that we must legally fight for this is a telling mark of our times: the EU chooses to threaten people with jail time for helping and upholding the rights of others, rather than encouraging such acts.
We say: #DecriminalizeFacilitation!
By the Kinsa-case campaign group