CJEU Case C-460/23 / Judgment
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CJEU Case C-460/23 / Judgment
Key facts of the case:
Reference for a preliminary ruling – Area of freedom, security and justice – Border controls, asylum and immigration – Directive 2002/90/EC – General offence of facilitation of unauthorised entry, transit and residence – Article 1(1)(a) – Interpretation consistent with the Charter of Fundamental Rights of the European Union – Article 7 – Respect for private and family life – Article 24 – Rights of the child – Article 52(1) – Interference with the essence of fundamental rights – Article 18 – Right to asylum – Person bringing into the territory of a Member State, in an unauthorised manner, minors who are third-country nationals accompanying him or her and over whom he or she exercises actual care
Outcome of the case:
On those grounds, the Court (Grand Chamber) hereby rules:
Article 1(1)(a) of Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence, read in the light of Articles 7 and 24 and Article 52(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, first, the conduct of a person who, in breach of the rules governing the movement of persons across borders, brings into the territory of a Member State minors who are third-country nationals and are accompanying him or her, and over whom he or she exercises actual care, does not fall within the scope of the general offence of facilitation of unauthorised entry, and, second, those articles preclude national legislation criminalising such conduct. -
Paragraphs referring to EU Charter
33. By its questions, which it is appropriate to examine together, the referring court asks the Court, in essence, about the validity of Article 1 of Directive 2002/90 and of Article 1 of Framework Decision 2002/946 in the light of the Charter, and about the interpretation of the Charter in order to determine whether it precludes the national provisions transposing those articles into Italian law.
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36. In those circumstances, it should be noted, first, that the questions referred are based on the premiss that OB’s conduct falls within the general offence of facilitation of unauthorised entry, as defined in Article 1(1)(a) of Directive 2002/90, and that Article 12 of the Consolidated Law on Immigration merely transposes that provision of EU law into Italian law. Consequently, if a provision of the Charter were to preclude the application of Article 1(1)(a) of that directive to conduct such as that of OB, such incompatibility would necessarily affect Article 12 of the Consolidated Law on Immigration, if Article 12 were to be interpreted as applying to that same conduct.37. That being so, it must be borne in mind that, in accordance with a general principle of interpretation, an EU act must be interpreted, as far as possible, in such a way as not to affect its validity and in conformity with primary law as a whole and, in particular, with the provisions of the Charter. Thus, where it is necessary to interpret a provision of secondary EU law, preference should as far as possible be given to the interpretation which renders the provision consistent with the Treaties and the general principles of EU law (judgments of 21 March 1991, Rauh, C‑314/89, EU:C:1991:143, paragraph 17, and of 13 June 2024, Commission v Netherlands(Determining the compatibility of a measure not classified as State aid), C‑40/23 P, EU:C:2024:492, paragraph 40).
38. Second, it must be observed that, in the light of the statement of the facts in the main proceedings, as apparent from the request for a preliminary ruling, not only Article 7 of the Charter, which enshrines the right to respect for family life, and Article 18 of the Charter, relating to the guarantee of the right to asylum, to which the national court refers, but also, as the European Commission stated in its written observations, Article 24 of the Charter, which enshrines the rights of the child, are of decisive importance in answering the questions referred by the national court.
39. By its questions, the referring court must, therefore, be understood as asking, in essence, first, whether Article 1(1)(a) of Directive 2002/90, read in the light, in particular, of Articles 7, 18 and 24 of the Charter, must be interpreted as meaning that the conduct of a person who, in breach of the rules governing the movement of persons across borders, brings into the territory of a Member State minors who are third-country nationals and are accompanying him or her, and over whom he or she exercises actual care, does not fall within the scope of the general offence of facilitation of unauthorised entry and, second, whether those articles of the Charter must be interpreted as precluding national legislation criminalising such conduct.
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47. Article 7 of the Charter guarantees everyone the right, inter alia, to respect for his or her family life, it having been specified that existence of ‘family life’ is a question of fact depending upon the real existence in practice of close personal ties, and that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life (judgment of 14 December 2021, Stolichna obshtina, rayon Pancharevo, C‑490/20, EU:C:2021:1008, paragraph 61).
48. As regards Article 24 of the Charter, paragraph 1 thereof provides, inter alia, that children are to have the right to such protection and care as is necessary for their well-being. Furthermore, paragraph 2 of Article 24 states that the child’s best interests must be a primary consideration in all actions relating to children, whether taken by public authorities or private institutions. That provision also applies to decisions which are not addressed to the minor, but have significant consequences for him or her (see, to that effect, judgment of 21 December 2023, GN (Ground for refusal based on the best interests of the child), C‑261/22, EU:C:2023:1017, paragraph 41 and the case-law cited). Lastly, paragraph 3 of Article 24 recognises in principle the right of every child to maintain on a regular basis a personal relationship and direct contact with both his or her parents.
49. According to settled case-law, Article 7 of the Charter must be read in conjunction with the obligation to take account of the child’s best interests, enshrined in Article 24(2) of the Charter, and with account being taken of the need for a child to maintain on a regular basis the relationships referred to in Article 24(3) of the Charter (see, to that effect, judgments of 17 November 2022, Belgische Staat (Married refugee minor), C‑230/21, EU:C:2022:887, paragraph 48, and of 30 January 2024, Landeshauptmann von Wien (Family reunification with a minor refugee), C‑560/20, EU:C:2024:96, paragraph 49 and the case-law cited).
50. In addition, since Article 24 of the Charter, as the Explanations relating to the Charter note, represents the integration into EU law of the principal rights of the child referred to in the Convention on the Rights of the Child, which has been ratified by all the Member States, it is necessary, when interpreting that article, to take due account of the provisions of that convention (judgment of 14 December 2021, Stolichna obshtina, rayon Pancharevo, C‑490/20, EU:C:2021:1008, paragraph 63). In particular, under Article 27(2) of that convention, the parent or parents or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child’s development.
51. Having regard to Articles 7 and 24 of the Charter, in the light of which Article 1(1)(a) of Directive 2002/90 must be interpreted, the conduct of a person who brings into the territory of a Member State, in an unauthorised manner, minors who are third-country nationals and are accompanying him or her, and over whom he or she exercises actual care, cannot fall within the scope of the general offence of facilitation of unauthorised entry, referred to in that provision, including where that person has himself or herself entered that territory in an unauthorised manner.
52. A contrary interpretation of that provision would entail a particularly serious interference with the right to respect for family life and the rights of the child, enshrined, respectively, in Articles 7 and 24 of the Charter, to such an extent that it would undermine the essence of those fundamental rights, within the meaning of Article 52(1) of the Charter.
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55. Consequently, if the essence of the right to respect for family life and the rights of the child enshrined, respectively, in Articles 7 and 24 of the Charter are not to be undermined, Article 1(1)(a) of Directive 2002/90 cannot be interpreted as seeking to ensure that the conduct of a person such as OB – which consists in taking with him or her, at the time of his or her unauthorised entry into the territory of a Member State, his or her child or other minor over whom he or she exercises actual care – is characterised as ‘facilitation of unauthorised entry’ into that territory and criminalised on that basis.
56. It follows that, in the light of Articles 7 and 24 of the Charter, Article 1(1)(a) of Directive 2002/90 must be interpreted as meaning that the conduct of a person who, in breach of the rules governing the movement of persons across borders, brings into the territory of a Member State minors who are third-country nationals and are accompanying him or her, and over whom he or she exercises actual care, does not fall within the scope of the general offence of facilitation of unauthorised entry.
57. In the third place, that interpretation of Article 1(1)(a) of Directive 2002/90 is also necessary in the light of Article 18 of the Charter, which is relevant where, as in the present case, the person concerned, once he or she has entered the territory of the Member State in question, has made an application for international protection.
58. In that regard, it should be noted, first, that, under Article 18 of the Charter, the right to asylum is to be guaranteed with due respect for the rules of the Geneva Convention and in accordance with the EU Treaty and the FEU Treaty. Member States are required to comply with such rules when implementing both Directive 2002/90 and Framework Decision 2002/946.
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61. Third, the right of any third-country national or stateless person to make an application for international protection on the territory of a Member State, including at its borders or in its transit zones, even if he or she is staying illegally in that Member State, must be recognised, irrespective of the prospects of success of such a claim. When such an application is made, an applicant cannot, in principle, be regarded as staying illegally on the territory of the Member State concerned, so long as no decision has been given on that application at first instance, if the effectiveness of the right to asylum, as guaranteed by Article 18 of the Charter, is not to be compromised (see, to that effect, judgments of 17 December 2020, Commission v Hungary (Reception of applicants for international protection), C‑808/18, EU:C:2020:1029, paragraph 102, and of 16 November 2021, Commission v Hungary (Criminalisation of assistance to asylum seekers), C‑821/19, EU:C:2021:930, paragraphs 136 and 137).
62. Furthermore, it follows from the Court’s case-law that measures which, without reasonable justification, result in a third-country national being discouraged from submitting his or her application for international protection to the competent authorities are liable to undermine the effectiveness of the right to asylum, as guaranteed by Article 18 of the Charter (see, to that effect, judgments of 17 December 2020, Commission v Hungary (Reception of applicants for international protection), C‑808/18, EU:C:2020:1029, paragraphs 102, 103, 118 and 119, and of 22 June 2023, Commission v Hungary (Declaration of intent prior to an asylum application), C‑823/21, EU:C:2023:504, paragraphs 47 to 51).
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64. Furthermore, the Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, of 25 July 1951, which drew up the text of the Geneva Convention, states that ‘the unity of the family … is an essential right of the refugee’. Similarly, Directive 2011/95 seeks, in accordance with recital 16 thereof, to ensure full respect for the right to asylum of applicants for asylum and their accompanying family members and to promote the application, inter alia, of Articles 7 and 24 of the Charter. Recital 18 of that directive states that the best interests of the child should be a primary consideration of Member States when implementing that directive and that, in assessing those interests, they should in particular take due account of the principle of family unity. Thus, Article 23(1) of the same directive expressly requires the Member States to ensure that family unity can be maintained.
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68. In the fifth and last place, since an interpretation of Article 1(1)(a) of Directive 2002/90 that is consistent with Articles 7 and 24 and Article 52(1) of the Charter leads to conduct such as that at issue in the main proceedings being excluded from the scope of the offence of facilitating unauthorised entry, within the meaning of Article 1(1)(a) of that directive, there is no need to examine the validity of Article 1 of Directive 2002/90 or to interpret Article 1(2) thereof, which relates to exemption from criminal liability in cases where the aim of the conduct at issue is to provide humanitarian assistance to the person concerned.
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71. Accordingly, when transposing Article 1(1)(a) of Directive 2002/90, Member States may not establish, in national law, rules that would go beyond the scope of the general offence of facilitating unauthorised entry, as defined by that provision, by including conduct not covered by it, in breach of Articles 7 and 24 and Article 52(1) of the Charter.
72. Moreover, Articles 7 and 24 of the Charter are sufficient in themselves and do not need to be made more specific by provisions of EU or national law to confer on individuals rights which they may rely on as such. Consequently, if the referring court were to find that it is not conceivable to interpret its national law in conformity with EU law, it would be required to ensure within its jurisdiction the judicial protection for individuals flowing from those articles, and to guarantee their full effectiveness by disapplying, if need be, Article 12 of the Consolidated Law on Immigration (see, by analogy, judgment of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraphs 78 and 79).
73. In the light of the foregoing considerations, the answer to the questions referred is that Article 1(1)(a) of Directive 2002/90, read in the light of Articles 7 and 24 and Article 52(1) of the Charter, must be interpreted as meaning that, first, the conduct of a person who, in breach of the rules governing the movement of persons across borders, brings into the territory of a Member State minors who are third-country nationals and are accompanying him or her, and over whom he or she exercises actual care, does not fall within the scope of the general offence of facilitation of unauthorised entry, and, second, those articles preclude national legislation criminalising such conduct.
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Paragraphs referring to EU Charter (original language)