Explanatory Memorandum to 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 - Main contents

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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 ...
source	COM(2021)753
date	23-11-2021

1. CONTEXT OF THE PROPOSAL

• Reasons for and objectives of the proposal

The Union and the Member States are parties to several United Nations Conventions and Protocols destined to combat transnational organised crime, the smuggling of migrants and trafficking in persons, namely:

·the United Nations Convention Against Transnational Organized Crime ¹ ,

·the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime ² ,

·the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime ³ .

Such illegal activities very often rely on different means and modes of transport, making it necessary to closely involve transport operators in preventing and countering these activities.

Several sectoral initiatives have already been taken at international level in this area. The International Civil Aviation Organization (ICAO) has adopted Circular 357 on ‘Guidelines for Reporting Trafficking in Persons by Flight and Cabin Crew ⁴ ’ and in its Circular 352 provided ‘Guidelines for Training Cabin Crew on Identifying and Responding to Trafficking in Persons ⁵ ’. According to these circulars, States' Civil Aviation Authorities should require that operators develop policies, procedures, training and guidance for their employees on these matters. The International Air Transport Association (IATA) also issued a Resolution against trafficking in persons in 2018 and has developed Guidance material for its members ⁶ . The International Maritime Organization (IMO) published interim measures for combating unsafe practices associated with the trafficking, smuggling or transport of migrants by sea ⁷ . The International Chamber of Shipping (ICS) has issued guidance on ensuring the safety and security of seafarers and rescued persons ⁸ .

Many transport operators have policies in place to avoid, to the best of their ability, becoming an accessory to trafficking and smuggling. However, in some cases such policies are not in place or not well implemented.

Recent events have also shown how migrants can be instrumentalised for political purposes, and how certain transport operators have been contributing to – and in some cases benefiting from - smuggling and trafficking operations that have put at risk the lives of vulnerable people and the security of the Union external borders.

Therefore, in order to avoid such situations, it is necessary to adopt legislation targeted at transport operators that facilitate or engage in the trafficking in persons, or the smuggling of migrants in relation to illegal entry into the Union territory. To pursue that purpose effectively, that legislation should be applicable across the Union. The conditions for its application should be formulated as close as possible to the ones provided for by the aforementioned UN Convention which have been ratified by the overwhelming majority of countries of the world, including all Member States of the Union. Thus the Union will be able to fully use the tools offered by this Convention, including in the situations envisaged in Article 15(2) of the said Convention, in cases where the smuggling or trafficking activities are committed with a view to committing serious crimes in the Union.

This Regulation should therefore provide a legal framework allowing the Union to adopt measures that should be addressed against transport operators of any mode of transport (air, sea, inland waterways, rail and road) that engage in the aforementioned activities. The types of measures to be imposed should be appropriate and proportionate in view of the particular circumstances of the case in question. They should include, in particular, the prevention of any further expansion or the limitation of current transport operations, the suspension of licences or authorisations granted under Union law, the suspension of the right to fly over the Union, transit through the territory of the Union or call into Union ports, the suspension of the rights to refuel or carry out maintenance within the Union or the suspension of rights to operate to, from and within the Union.

• Consistency with other Union policies

The present proposal is complementary to the Union’s external action including its common foreign and security policy. In the light of the possible security dimension, it is appropriate that the overall strategy as regards the measures to be taken is defined in coordination with the High Representative of the Union for Foreign Affairs and Security Policy.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

• Legal basis

The proposal is based on Articles 91 and 100(2) of the Treaty on the Functioning of the European Union in relation to transport matters.

• Subsidiarity

Since the objective of this proposal, namely to ensure a harmonised approach with regard to measures against transport operators, cannot be sufficiently achieved by the Member States but can rather, by reason of its effect, complexity, and trans-border and international character, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union.

• Proportionality

The proposal does not exceed what is necessary in order to achieve its objective.

• Choice of the instrument

In order to ensure that migrants and other persons affected by such illegal operations are protected in a uniform and effective manner, the rules to be established in that regard should take the form of a Regulation. Appropriate humanitarian measures should accompany the present measures.

3. STAKEHOLDER CONSULTATIONS

Since the beginning of the crisis at the EU’s external borders with Belarus, the EU has been making full use of the diplomatic and outreach tools at its disposal both at political and technical levels.

The Commission and the High Representative have stepped up visits to key countries of origin and transit. Authorities in those third countries have been reminded of their obligations under international conventions on trafficking and smuggling, alerted to the situation at the EU’s border with Belarus, the risks of exploitation of their citizens and of people in transit, the need to actively inform their citizens of the risks and dangers of irregular migration to Europe, and the potential for a negative impact on their relations with the EU. The outreach has included direct contacts with airlines and civil aviation authorities.

All parties consulted have agreed on the need to ensure that effective and appropriate tools are in place to fight the smuggling of migrants and the trafficking of persons, in particular the use of commercial means of transport in this context, and to ensure appropriate action is taken to protect the lives and safety of people being instrumentalised for political ends.

• Fundamental rights

Processing of personal data will be performed in a way that the obligations on personal data protection laid down in Regulation (EU) 2016/679 ⁹ and Regulation (EU) 2018/1725 of the European Parliament and of the Council ¹⁰ are respected.

4. BUDGETARY IMPLICATIONS

This proposal does not entail any implication for the Union budget.

5. OTHER ELEMENTS

• Implementation plans and monitoring, evaluation and reporting arrangements

Any measures adopted under this Regulation will be limited in time and will be subject to review in accordance with Article 3(2).

• Detailed explanation of the specific provisions of the proposal

The proposal is structured as follows:

Article 1: Subject matter and scope

Article 2: Definitions

Article 3: Measures concerning transport operators

Article 4: Right to be heard

Article 5: Procedural rules

Article 6: Cooperation with third countries

Article 7: Information and rights of passengers

Article 8: Committee procedure

Article 9: Entry into force