Request for a preliminary ruling from the Tribunale di Bologna (Italy) lodged on 21 July 2023 – Criminal proceedings against OB

(Case C-460/23, Kinshasa ¹ )

Language of the case: Italian

Referring court

Tribunale di Bologna

Party to the main proceedings

OB

Questions referred

Does the Charter of Fundamental Rights, in particular the principle of proportionality referred to in Article 52(1), read in conjunction with the right to personal liberty and the right to property referred to in Articles 6 and 17, as well as the rights to life and physical integrity referred to in Articles 2 and 3, the right to asylum referred to in Article 18 and respect for family life referred to in Article 7, preclude the provisions of Directive 2002/90/EC ¹ and Framework Decision 2002/946/JHA ² (implemented in Italian law by the rules laid down in Article 12 of Legislative Decree No 286 ³ ), in so far as they impose on Member States the obligation to provide for penalties of a criminal nature against any person who intentionally facilitates or engages in acts intended to facilitate the unauthorised entry of foreign nationals into the territory of the Union, even where the conduct is carried out on a non-profit-making basis, without providing, at the same time, an obligation on Member States to exclude from criminalisation conduct facilitating unauthorised entry aimed at providing humanitarian assistance to the foreign national?

Does the Charter of Fundamental Rights, in particular the principle of proportionality referred to in Article 52(1), read in conjunction with the right to personal liberty and the right to property referred to in Articles 6 and 17, as well as the rights to life and physical integrity referred to in Articles 2 and 3, the right to asylum referred to in Article 18 and respect for family life referred to in Article 7, preclude the criminal offence provisions laid down in Article 12 of Legislative Decree No 286, in so far as it penalises the conduct of a person who engages in acts intended to procure the unauthorised entry of a foreign national into the territory of the State, even where the conduct is carried out on a non-profit-making basis, without at the same time excluding from criminalisation conduct facilitating unauthorised entry aimed at providing humanitarian assistance to the foreign national?

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¹     The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

¹     Council Directive of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence (OJ 2002 L 328, p. 17).

¹     Council framework Decision of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence (OJ 2002 L 328, p. 1).

¹     Legislative Decree No. 286 of 25July 1998 (Consolidated Act of Provisions concerning immigration and the condition of third country nationals)