Legal provisions of COM(2021)753 - Measures against transport operators that facilitate or engage in trafficking in persons or smuggling of migrants in relation to illegal entry into the territory of the EU

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dossier COM(2021)753 - Measures against transport operators that facilitate or engage in trafficking in persons or smuggling of migrants in ...
document COM(2021)753 EN
date November 23, 2021

Contents

Article 1 - Subject matter and scope

1. This Regulation lays down rules to prevent and counter the use of commercial means of transport to facilitate or engage in the commission of smuggling of migrants or trafficking in persons.

In particular, it lays down rules on measures that may be taken to prevent or restrict the activities of transport operators who, in relation to the illegal entry of such migrants and persons into the territory of the Union, either:

(a)    use transport means in the commission of smuggling of migrants or trafficking in persons; or

(b)    with knowledge of either the aim and general criminal activity of an organised criminal group active in smuggling of migrants or trafficking in persons or of its intention to commit those crimes take an active part in the criminal activities of such a group; or

(c)    organise, direct, aid, abet, facilitate or counsel the commission of smuggling of migrants or trafficking in persons involving an organised criminal group.

2. This Regulation also lays down measures to ensure that Member States take into account the measures taken by the Commission in the light of the conduct of transport operators referred to in paragraph 1 when assessing the good repute of managers and transport operators. 

Article 2 - Definitions

For the purpose of this Regulation, the following definitions shall apply:

(a)    ‘trafficking in persons’ means the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation; 

(b)    ‘smuggling of migrants’ means the procurement, in order to obtain, directly or indirectly, a benefit, of the illegal entry of a person into the Union of which the person is not a national or a permanent resident;

(c)    ‘serious crime’ means conduct constituting an offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty; 

(d)    ‘organised criminal group’ means a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences of smuggling of migrants or trafficking in persons, in order to obtain, directly or indirectly, a benefit;

(e)    ‘transport operator’ means any natural or legal person providing a transport operation on commercial terms by any mode of transport, namely by air, sea, inland waterways, rail or road;

(f)    ‘illegal entry’ means crossing borders without complying with the necessary requirements for legal entry into the receiving Member State. 

Article 3 - Measures concerning transport operators

1. Without prejudice to the application of national criminal and administrative measures, where a transport operator facilitates or engages in an activity referred to in Article 1(1), the Commission may, by means of immediately applicable implementing acts, decide to take measures against that transport operator. Those implementing acts shall be adopted in accordance with the procedure referred to in Article 8(2). They shall be published immediately in the Official Journal of the European Union.

2. The measures referred to in paragraph 1 shall be necessary and proportionate, and may consist of any of the following:

(a)    preventing any further expansion of or limiting the current transport operations in the Union market;

(b)    suspension of the right to provide transport services from, to or within the Union;

(c)    suspension of the right to fly over the territory of the Union;

(d)    suspensions of the right to refuel or carry out maintenance within the Union;

(e)    suspension of the right to call into and enter the Union ports;

(f)    suspension of the right to transit through the territory of the Union;

(g)    suspension of licences or authorisations granted under Union law to operate within the Union or to carry out activities of international carriage of passengers.

The period of application of those measures shall not exceed one year. They shall be reviewed where necessary and may be renewed.

3. Member States shall take into account the measures taken by the Commission pursuant to paragraph 1 when assessing the good repute of managers and transport operators for the purposes of Article 6 of Regulation (EC) No 1071/2009 and Article 8 of Directive 87/540/EEC.

Article 4 - Right to be heard

The Commission shall ensure that, before it adopts any of the measures referred to in Article 3, the transport operator concerned is given the opportunity of being heard, taking into account the need for urgency. The transport operator may be invited to cease any activity referred to in Article 1(1) without delay.

Article 5 - Procedural rules

The Commission may adopt implementing acts establishing the procedures to be followed for the adoption of the measures referred to in Article 3. Those implementing acts shall be adopted in accordance with the procedure referred to in Article 8(3).

Article 6 - Cooperation with third countries

Before taking any measures pursuant to Article 3 against transport operators established in third countries, the Commission shall consult, in an appropriate manner, the relevant authorities from that country with a view to coordinating their actions. The Commission may ask those authorities to take any relevant measures.

Article 7 - Information and rights of passengers

1. The implementing acts adopted by the Commission pursuant to Article 3 shall be published immediately in the Official Journal of the European Union.

2. Transport operators, national enforcing authorities, the European Aviation Safety Agency, the European Union Agency for Railways, the European Maritime Safety Agency, and the managing entities of ports, airports, stations and other relevant infrastructures in the territory of the Member States shall bring the measures taken by the Commission pursuant to Article 3 to the attention of passengers, both via their websites and, where relevant, in their premises.

3. This Regulation shall not affect passengers’ rights under Regulations (EC) No 261/2004, (EC) No 1107/2006, (EC) No 1371/2007, (EU) No 181/2011 and (EU) No 1177/2010.

4. For the purposes of those Regulations, the cancellation of transport operations due to the application of measures taken by the Commission pursuant to Article 3 shall not be considered as extraordinary circumstances.

Article 8 - Committee procedure

1. The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

2. Where reference is made to this paragraph, Article 8 of Regulation (EU) No 182/2011, in conjunction with Article 5 thereof, shall apply.

3. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.

Article 9 - Entry into force

This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.