Article 49 - Principles of legality and proportionality of criminal offences and penalties
Article 52 - Scope and interpretation
Article 18 - Right to asylum
Key facts of the case:
Reference for a preliminary ruling – Immigration policy – Directive 2002/90/EC – Criminalisation of the facilitation of unauthorised entry into the territory of a Member State – Article 1(1)(a) – Definition of general infringement – Validity – Article 1(2) – Optional provision exonerating from criminal liability a person who facilitates unauthorised entry into the territory of a Member State for a humanitarian purpose – Charter of Fundamental Rights of the European Union – Article 49 – Principle of the legality and proportionality of criminal offences and penalties – Action by which a mother, a third-country national, contributes to the unauthorised entry into the territory of a Member State of two minor children, members of her family, by using false identity documents
Outcome of the case:
29) By its first question, the referring court essentially asks the Court whether Article 1(1)(a) of Directive 2002/90 is invalid on the ground that it infringes the principle of proportionality enshrined in Article 52(1) of the Charter.
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52) The referring court essentially asks the Court of Justice whether Article 1(1)(a) of Directive 2002/90 is invalid on the ground that, by requiring the Member States to criminalise the facilitation of unauthorised entry into the territory of a Member State, irrespective of the existence of financial gain, and without providing, in the form of a mandatory provision, for an express exoneration from criminal liability of those who act in a disinterested manner, for humanitarian reasons or because of family ties, it infringes the principle of proportionality enshrined in Article 52(1) of the Charter.
53) According to the referring court, the EU legislature has failed to strike a fair balance between the interests at stake by not placing any restrictions on the implementation of that criminalisation and by resorting to an optional provision under which Member States are free to exonerate from criminal liability an act committed for humanitarian purposes. In its view, such criminalisation therefore disproportionately infringes the fundamental rights of both the person providing the assistance and the person receiving it, in particular the right to life (Article 2 of the Charter); the right to the integrity of the person (Article 3 of the Charter); the right to liberty (Article 6 of the Charter); the right to respect for family life (Article 7 of the Charter); the right to property (Article 17 of the Charter); and the right to asylum (Article 18 of the Charter).
54) Taking her cue from the criticism levelled by the referring court at the alleged excessively broad nature of that criminalisation, the applicant further criticises the EU legislature for disregarding the principle of the legality of criminal offences and penalties, enshrined in Article 49(1) of the Charter, in its requirements relating to the clarity and foreseeability of criminal law. In her view, the punishable conduct is not clearly defined, as the criminalisation of facilitating unauthorised entry into the territory of a Member State provided for humanitarian purposes is left to the discretion of each Member State.
55) I will examine below the validity of the contested provision from each of those angles, in the light of the fundamental principles of the legality and proportionality of criminal offences and penalties, enshrined in Article 49 of the Charter. Indeed, while the national court refers to Article 52(1) of the Charter, I believe that, having regard, first, to the subject matter of Article 1(1)(a) of Directive 2002/90, which establishes a criminal offence whose commission gives rise to a criminal penalty with a high degree of severity, and, secondly, to its essentially enforcement purpose, the proportionality test must be exercised primarily in the light of Article 49(3) of the Charter.
58) The Court has abundantly recalled in its case-law the full significance, both in the legal order of the European Union and in the national legal orders, of the principle of the legality of criminal offences and penalties, enshrined in Article 49(1) of the Charter, in its requirements relating to the foreseeability, precision and non-retroactivity of the applicable criminal law. (32) This principle has the same meaning and scope as that guaranteed in Article 7(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms. (33) According to settled case-law, the principle constitutes a specific expression of the general principle of legal certainty and implies, in particular, that the law must clearly define offences and the penalties set for them. (34) The principle of the legality of criminal offences and penalties guides the establishment of rules relating to criminal liability. In so far as it constitutes a general principle of EU law and forms part of the constitutional traditions common to the Member States, it applies not only to the institutions of the European Union but also to the Member States when they transpose and apply EU law. (35)
72) Secondly, Article 1(1)(a) of Directive 2002/90 cannot, on its own, give rise to criminal liability for individuals and requires a legal basis for the implementation of that liability, by means of its transposition into national law. That provision therefore preserves the law-enforcement competence for the law adopted by the Member States, the effect of the provision being merely to provide an implementation framework. (49) The EU legislature thus leaves it to the Member States to implement that provision with indisputable binding force, through national legislation which respects the general principles of the European Union and the fundamental rights guaranteed by the Charter and which is therefore proportionate and endowed with the specificity, precision and clarity required in order to satisfy the requirement of legal certainty. (50) I would point out, in this regard, that the principle of the legality of criminal offences and penalties requires that the person subject to the law should be able to know, from the wording of the relevant provision and, if necessary, with the assistance of the interpretation given to it by the courts and legal advice, which acts and omissions will make him or her criminally liable. (51) According to the Court, that principle does not preclude the gradual, case-by-case clarification of the rules on criminal liability by judicial interpretation, provided that the result was reasonably foreseeable at the time the offence was committed, especially in the light of the interpretation of the relevant provision in the case-law at the material time. (52)
74) In the light of all those factors, I can find nothing to affect the validity of Article 1(1)(a) of Directive 2002/90 in the light of the principle of the legality of criminal offences and penalties enshrined in Article 49(1) of the Charter.
75) It is now appropriate to examine the validity of Article 1(1)(a) of that directive in the light of the principle of the proportionality of criminal offences and penalties, also guaranteed by Article 49 of the Charter, in paragraph 3 thereof.
76) Under Article 49(3) of the Charter, the severity of penalties must not be disproportionate to the criminal offence. It follows from the Court’s case-law that that principle applies not only to the determination of the constituent elements of an offence, but also to the determination of the rules relating to the severity of penalties and the assessment of the factors which may be taken into account in setting those penalties. (55) In accordance with Article 51(1) of the Charter, that principle is binding on the Member States when they implement EU law, including in the absence of harmonisation of EU rules in the field of applicable penalties.
86) Thirdly and lastly, I would point out that the criminalisation of the facilitation of unauthorised entry into the territory of a Member State set out in Article 1(1)(a) of Directive 2002/90 cannot have the effect of allowing Member States to breach their obligations under the Charter or other instruments of EU or international law. Thus, there is no question of preventing a third-country national from exercising his or her fundamental right to seek asylum in a Member State, as guaranteed in Article 18 of the Charter, or to apply for family reunification. (60) Following the reservation it had expressed as to the optional nature of the provision set out in Article 1(2) of Directive 2002/90, (61) the Commission moreover recalled, in its communication cited in footnote 31 to this Opinion, that the Member States are bound to respect international humanitarian law. (62)
96) I have, therefore, not identified anything to affect the validity of Article 1(1)(a) of Directive 2002/90 in the light of the principle of the proportionality of criminal offences and penalties, laid down in Article 49(3) of the Charter.
97) By its second question, the referring court asks, in essence, whether Article 52(1) and Article 49(3) of the Charter must be interpreted as meaning that the principle of proportionality of criminal offences and penalties precludes national legislation which provides for a penalty against anyone who facilitates unauthorised entry into national territory, even where the person who commits that criminal offence has no intention of financial gain, without at the same time providing for an express exoneration from criminal liability for those who act with a humanitarian purpose.
112) In the present case, the referring court reasons that Article 12(2) of Legislative Decree No 286/1998, which sets out a ground for exemption from criminal liability in respect of relief and humanitarian assistance provided in Italy to third-country nationals in need who are however ‘present on the territory of the State’, is by definition not applicable to the offence of facilitating unauthorised entry into the national territory. On the other hand, the Italian Government states that this article, by virtue of the reference made to Article 54 of the Italian Criminal Code, which provides for immunity in a state of necessity, makes it possible not to impose criminal penalties on conduct which, if criminalised, would be contrary to the principle of proportionality set out in Article 52(1) of the Charter. Thus, if it were established at the end of the trial that the person concerned has acted with the aim of saving her daughter and niece from serious and irreparable harm, it would then be possible to declare a state of necessity and exonerate her from criminal liability.
114) In the light of the foregoing, it is therefore appropriate, in my view, to reply to the second question referred for a preliminary ruling to the effect that the principle of the proportionality of criminal offences and penalties, enshrined in Article 49(3) of the Charter, precludes a system which would not allow the national court, when criminal proceedings are brought against a mother who is a third-country national and has intentionally facilitated the unauthorised entry into national territory of two minor children, members of her family, by using false identity documents, to balance the interests at stake and to differentiate between the criminalisation of a person who is shown to have acted out of humanity or necessity, in the sole interest of the minors, and that of a person who is motivated solely by the criminal intent to commit for financial gain the very act prohibited by law.-