Member states’ comments were summed up in a “non-paper” circulated by the Belgian Council Presidency in March. This summary notes that some member states consider the proposal’s definition of smuggling as involving a “financial or material benefit” too restrictive, and argue that facilitating irregular entry or stay should be criminalised regardless of whether or not a benefit is obtained by the facilitator.
“The rationale behind this is that an effective investigation and prosecution are hindered by the difficulty of proving the existence of any financial or material benefit,” the Presidency noted.
The Presidency’s compromise text, circulated in mid-April, proposes to skip these requirements:
Article 3: Criminal offences
Member States shall ensure that intentionally assisting a third-country national to enter, or transit across, or stay within the territory of any Member State in breach of relevant Union law or the laws of the Member State concerned on the entry, transit and stay of third-country nationals constitutes a criminal offence where:
a) the person who carries out the conduct requests, receives or accepts, directly or indirectly, a financial or material benefit, or a promise thereof, or carries out the conduct in order to obtain such a benefit; or
b) there is a high likelihood of causing serious harm to a person.