Criminalising Solidarity? Redefining the Boundaries of EU Facilitation Law Between Migrant Smuggling, Humanitarian Assistance and Fundamental Rights

This article examines the criminalisation of solidarity within the European Union’s legal framework on the facilitation of unauthorised entry, transit, and stay. While combating organised migrant smuggling is a legitimate objective of EU criminal law, the current and proposed facilitation regimes raise significant concerns regarding overcriminalisation, legal certainty, and fundamental rights protection. EU law has historically adopted a broader concept of facilitation than the international legal definition under the UN Smuggling of Migrants Protocol, particularly by omitting financial or material benefit as a mandatory constitutive element for entry and transit offences. Consequently, humanitarian assistance, family-based support, search-and-rescue activities, civic solidarity, and migrants’ own acts of mutual aid fall within the shadow of criminal liability. Through a doctrinal and normative analysis, this article evaluates the 2002 Facilitators’ Package, the European Commission’s Guidance 2020, the renewed EU Action Plan against Migrant Smuggling 2021–2025, the 2023 reform proposal, and the landmark Court of Justice judgment in Kinsa (Case C-460/23). It argues that Kinsa constitutionalises the limits of facilitation offences but does not fully resolve the broader criminalisation of civil society. The article further argues that Kinsa reflects a broader constitutionalisation of criminalisation in EU law, whereby Charter rights increasingly shape the substantive boundaries of criminal liability itself. Moving beyond existing doctrinal critiques, this article contributes to the scholarship by constructing a Charter-based, multi-tiered decision-tree model. This model provides legislative and judicial authorities with a structured framework designed to distinguish profit-driven, exploitative smuggling from constitutionally protected humanitarian, familial, and civic solidarity.