Prosecution of Italian traffickers can go ahead even after Romania’s accession to EU

italy_immigrationPaoletti and others (Judgment) [2016] EUECJ C-218/15 (6 October 2016) – read judgment

The Court of Justice of the European Union (CJEU) has ruled that people smugglers can be punished even if the illegal immigrants themselves have subsequently gained EU citizenship by dint of the relevant country’s accession to the EU.

Legal and factual background

The accused in the main proceedings had illegally obtained work and residence permits for 30 Romanian nationals in 2004 and 2005, before the accession of Romania to the EU. They were therefore charged with having organised the illegal entry of these Romanian nationals “in order to benefit from intensive and ongoing exploitation of foreign labour”. This law was introduced to the Italian criminal code in accordance with the EU directive requiring the prevention and punishment of people smuggling (Article 3 of Directive 2002/90 and Article 1 of Framework Decision 2002/946, which provide that such an offence is to be punishable by effective, proportionate and dissuasive penalties).

Article 49 of the EU Charter of Fundamental Freedoms mirrors Article 7 of the ECHR, which prohibits the imposition of retrospective or more severe penalties. The Charter applies to Member States’ actions by virtue of Article 6 TEU.

The question put to the CJEU was whether Romania’s subsequent accession to the EU had the effect of abolishing the offence of facilitating the illegal immigration of Romanian nationals, and whether the principle of the retroactive application of the more lenient criminal law should apply to the accused in the main proceedings.

In essence, what the referring court was asking was whether or not Article 6 TEU and Article 49 of the Charter should be interpreted as meaning that the accession of a state to the EU prevents a Member State imposing a criminal penalty on persons who committed the offence of facilitating illegal immigration before the accession of Romania to the EU.

Arguments on admissibilty

The Italian government argued that this referral question was not admissible because EU law does not apply to offences committed before Romania’s accession to the EU; in other words, these actions fell outside the scope of EU law.

The Charter’s field of application, as far as Member State action is concerned, is limited to Member State’s actions when implementing EU law. There should be “a degree of connection between an EU legal measure and the national measure in question, above and beyond the matters covered being closely related” (para 14).

The Court did not accept this argument. It observed that the questions referred related to the question of the effect of the acquisition of the status of EU citizens by Romanian nationals, as a consequence of the accession of Romania to the EU. The question therefore involved the interpretation of EU law, and therefore the Court had jurisdiction to answer the questions referred for a preliminary ruling.

The CJEU’s findings on the substantive question

The Court considered that the Italian law criminalising the facilitation of illegal immigration was not directed to those being smuggled, who subsequently obtained EU citizenship by virtue of accession.

The mere fact that, after their illegal entry, those nationals have become EU citizens because of the accession of their State of origin to the European Union has no bearing on the course of the criminal proceedings brought against those persons who facilitate illegal immigration.

That acquisition of EU citizenship constitutes a factual situation which is not capable of changing the constituent elements of the offence of facilitation of illegal immigration. [32-33]

The Court agreed with the AG’s opinion that, to decide otherwise, “would encourage such trafficking once a State has initiated the process of accession to the European Union, since traffickers would then be assured of benefiting from immunity.”

In that case, the aim achieved would be exactly the opposite of the aim pursued by the EU legislature.

It therefore followed that neither Article 6 TEU nor Article 49 of the Charter could be interpreted as meaning that the accession of a State to the European Union precludes another Member State imposing a criminal penalty on persons who committed, before the accession, the offence of facilitation of illegal immigration for nationals of the first State.

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