Considerations on 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
Please note
This page contains a limited version of this dossier in the EU Monitor.
| 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  |
| date | November 23, 2021 |
(2) The instrumentalisation of migrants, whereby State actors facilitate irregular migration for political purposes is an increasingly worrying phenomenon, which may involve the smuggling of migrants or trafficking of persons in relation to illegal entry into the territory of the Union, thereby endangering the lives and security of those people, while posing a security threat to the borders of the Union.
(3) Such illegal activities very often rely on different means and modes of transport, making it necessary to target transport operators in preventing and countering these activities. In order to combat trafficking in persons and smuggling of migrants, it is therefore necessary to provide for measures to be taken in respect of commercial transport operators that facilitate or engage in such illegal operations. Such measures should apply not only where the transport operators use the transport means for the trafficking in persons and smuggling of migrants, but also in cases where transport operators take an active part in the criminal activities of an organised criminal group active in trafficking in persons and smuggling of migrants with knowledge either of the aim and general activity of that organised criminal group, or of its intent to commit those crimes, or where they aid or facilitate the commission of those crimes, including where those transport operators and those organised criminal groups are State sponsored. The measures in question may target the activities of transport operators even where the latter do not transport persons or migrants into the Union. Those measures should not affect the activities of non-commercial operators, in particular humanitarian activities.
(4) In the light of the possible security dimension at hand, 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.
(5) The procedure for adopting measures against transport operators which contribute to trafficking in persons or smuggling of migrants should allow for decisions to be taken swiftly. Such measures should at all times be necessary and proportionate, and limited in time. Where necessary, it should be possible to extend the measures. The types of measures that may be taken against transport operators should be sufficiently broad to effectively target the specific conduct of the relevant transport operator.
(6) According to Article 6 of Regulation (EC) No 1071/2009 of the European Parliament and of the Council 13 and to Article 8 of Council Directive 87/540/EEC 14 , managers and transport operators are required to be of good repute, in order to provide certain transport services in the Union. Member States should take into account any measures taken by the Commission pursuant to this Regulation when assessing whether managers and transport operators fulfil or continue to fulfil that requirement.
(7) In order to ensure that the measures against transport operators may be taken swiftly, implementing powers should be conferred on the Commission to impose such measures through immediately applicable implementing acts. Implementing powers should also be conferred on the Commission to adopt detailed rules on the procedures to be followed before adopting such measures. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council 15 .
(8) It is fundamental to ensure the respect of the right of persons to be heard before any individual measure which affects them adversely is taken. The Commission should ensure that, before adopting any measures against transport operators, those operators are given the opportunity to be heard, while also taking into account the urgency of the procedure. It should also be possible to invite transport operators to cease any activities relating to trafficking in persons or smuggling of migrants without delay, before measures are taken.
(9) Before taking measures against transport operators established in third countries, the Commission should consult the relevant authorities in an appropriate manner, with a view to coordinating their actions. In that context, the Commission should also be able to ask those authorities to take any relevant measures.
(10) Measures taken against transport operators pursuant to this Regulation should be made known to the public. The implementing acts imposing such measures should therefore be published without delay in the Official Journal of the European Union, and relevant actors in transport operations should bring such measures to the attention of passengers, both via their websites and, where relevant, on their premises.
(11) This Regulation is without prejudice to the application of Directive 2011/36/EU 16 on preventing and combating trafficking in human beings and protecting its victims, which establishes, inter alia, appropriate mechanisms aimed at the early identification of, assistance to and support for victims, determines penalties and sets out the liability of legal persons committing trafficking in human beings.
(12) This Regulation should not affect the rights of passengers established in Regulations (EC) No 261/2004 17 , (EC) No 1107/2006 18 , (EC) No 1371/2007 19 , (EU) No 181/2011 20 and (EU) No 1177/2010 of the European Parliament and of the Council 21 . In particular, the rights to reimbursement, re-routing and compensation should be safeguarded. Moreover, the cancellation of transport operations due to the application of measures taken by the Commission should not be considered as extraordinary circumstances.
(13) Since the objective of this Regulation, namely to ensure a harmonised approach across the Union 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. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.
(14) While this Regulation affects the freedom to conduct a business enshrined in Article 16 of the Charter of Fundamental Rights of the European Union, it respects the essence of that freedom and limits it only to the extent necessary to meet the objectives of preventing and countering the use of commercial means of transport for the smuggling of migrants and trafficking in persons.
(15) In view of the urgency entailed by the exceptional circumstances caused by the situation at the Union’s external borders with Belarus, it is considered to be appropriate to invoke the exception to the eight-week period provided for in Article 4 of Protocol No 1 on the role of national Parliaments in the European Union, annexed to the Treaty on European Union, to the Treaty on the Functioning of the European Union and to the Treaty establishing the European Atomic Energy Community.
(16) In the light of the overriding need to address without delay any instrumentalisation of vulnerable people, this Regulation should enter into force as a matter of urgency on the day following that of its publication in the Official Journal of the European Union.