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CJEU Case C-218/15 / Opinion

Criminal Proceedings against Gianpaolo Paoletti and Others
Policy area
Justice, freedom and security
Deciding body type
Court of Justice of the European Union
Deciding body
Advocate General
Type
Opinion
Decision date
26/05/2016
ECLI (European case law identifier)
ECLI:EU:C:2016:370

Carta dos Direitos Fundamentais da UE

Title VI: Justice

Article 49 - Principles of legality and proportionality of criminal offences and penalties

VIEW FULL CASE
  • CJEU Case C-218/15 / Opinion

    Key facts of the case:

    Reference for a preliminary ruling — Fundamental rights — Retroactive application of the more lenient criminal law — Effect of Romania’s accession to the European Union on the criminal offence of facilitation of illegal immigration into Italian territory committed before accession

    Results (sanctions) and key consequences of the case:

    1. In view of the foregoing, I propose that the Court give the following answer to the Tribunale ordinario di Campobasso:

      Article 1(1) of Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence, Article 1(1) of Council Framework Decision 2002/946/JHA of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence and Article 49 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that a State’s accession to the European Union, after the criminal offence of facilitation of unauthorised entry and residence of nationals of that State into the territory of a Member State has been committed and before the offender has been tried, does not have the effect of nullifying that criminal offence.

  • Paragraphs referring to EU Charter
    1. By its questions, the referring court is essentially seeking to ascertain whether Article 7 of the ECHR, Article 49 of the Charter and Article 6 TEU must be interpreted as meaning that Romania’s accession to the European Union has the effect of nullifying the criminal offence of facilitation of unauthorised entry and residence of Romanian nationals in Italian territory where, after the offence was committed and before the offender was tried, those nationals acquired citizenship of the Union.
    2. The Italian Government asserts that these questions are inadmissible in so far as the Italian criminal provisions in question, which define the criminal offence of facilitation of illegal entry of foreign nationals into Italian territory, do not fall within the scope of EU law. It claims that the criminal treatment of conduct intended to facilitate illegal immigration of foreign nationals is not regulated by EU law. Thus, the relevant Italian legislation in the present case does not constitute a transposition of EU law by the Italian Republic and the Charter is not therefore applicable.
    1. I also consider that it is not possible to invoke the principle of retroactivity in mitius to which the reference to Article 49 of the Charter seems to relate. That principle in fact establishes a rule for the successive application of laws in time, as can be seen from the actual wording of Article 49(1) of the Charter. There must also be a succession of laws concerning the same criminal offence, which is not the case here, as there has been no amendment as regards the definition of the criminal offence or the penalty for that offence.
    2. Such an outcome could actually arise only if the criminal offence in question had lost its necessity. I explained above that this was certainly not the case with regard to smugglers.
    1. In the light of all these considerations, I take the view that Article 1(1) of Directive 2002/90, Article 1(1) of Framework Decision 2002/946 and Article 49 of the Charter must be interpreted as meaning that a State’s accession to the European Union, after the criminal offence of facilitation of unauthorised entry and residence of nationals of that State into the territory of a Member State has been committed and before the offender has been tried, does not have the effect of nullifying that criminal offence.