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Fundamental Rights Limits to EU Multilevel Criminalisation Choices: The Missed Opportunities and Constitutional Legacy of the Kinsa Case

ECJ 3 June 2025, Case C-460/23, Kinsa

Published online by Cambridge University Press:  11 February 2026

Lorenzo Grossio Open the ORCID record for Lorenzo Grossio [Opens in a new window]
Lorenzo Grossio*
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University of Turin, Turin, Italy, email: lorenzo.grossio@unito.it
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European Constitutional Law Review , First View , pp. 1 - 23
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Introduction

Criminalisation powers have traditionally constituted a core expression of national sovereignty.Footnote 1 However, member states’ exercise of ius puniendi falls within the scope of EU harmonisation competences in the Area of Freedom, Security and Justice. Article 83 TFEU authorises the EU legislature to establish minimum rules on the definition of offences and corresponding penalties in certain ‘areas of particularly serious crime with a cross-border dimension’,Footnote 2 as well as in situations where ‘the approximation of criminal laws and regulations of the member states proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures’.Footnote 3 Consequently, EU substantive criminal law operates through a multilevel criminalisation framework: EU legislation determines the minimum scope of conduct to be treated as criminal offences, while national law implements these obligations by specifying a corresponding – or even broader – scope of criminal liability.Footnote 4

Recourse to criminal law entails profound interferences with fundamental rights,Footnote 5 which thus require sound justification for the legitimacy of criminalisation choices. Remarkably, until 2023 the Court of Justice had not been called upon to adjudicate the limits imposed by the Charter within the framework of EU multilevel criminalisation specifically. The preliminary reference in Kinsa marked the very first case in this respect, attracting particular attention from the perspective of EU constitutional law.

The proceedings in Kinsa arose from a criminal trial in Bologna, Italy, concerning charges of facilitating illegal entry against a third-country national. The defendant had fled death threats in the Democratic Republic of Congo together with her minor daughter and niece.Footnote 6 At Bologna Airport, she used false identities for herself and the two minors, which resulted in her arrest and prosecution for facilitating illegal entry under Article 12 of Legislative Decree No. 286 of 25 July 1998.Footnote 7 During the criminal trial, the defence submitted a petition for referral to the Court of Justice for a preliminary ruling. The Italian offence of facilitating illegal entry, in fact, gives effect to the obligation to criminalise laid down jointly in Article 1 of Directive 2002/90/ECFootnote 8 and Article 1 of Framework Decision 2002/946/JHA.Footnote 9 While the first EU provision sets out the minimum elements of the offence, the second requires member states to impose ‘effective, proportionate and dissuasive criminal penalties’ for such conduct. The wording of Article 1(1) of the Directive provides for an all-encompassing definition of ‘facilitation’. In particular, for entry and transit in member states’ territory, domestic offences should cover the conduct of ‘any person who intentionally assists a person who is not a national of a Member State to enter, or transit across, the territory of a Member State in breach of the laws of the State concerned on the entry or transit of aliens’.Footnote 10 Given the breadth of this wording, Article 1(2) of the Directive introduces an optional exemption from criminal liability where facilitation is motivated by the provision of humanitarian assistance.Footnote 11 However, the Italian legislature has relied on that possibility in a very limited way. Indeed, Article 12(2) of Legislative Decree No. 286 of 25 July 1998 excludes the criminal relevance of humanitarian assistance conduct only if it is ‘provided in Italy to foreigners in need who are present in the territory of the State’. This provision does not apply in the present case, as the requirement of the beneficiary’s prior presence on Italian territory is not met.Footnote 12

Against this legal framework, the referring court questioned the proportionality – and, by extension, the validity – of the obligation to criminalise imposed by EU secondary law in light of fundamental rights protection. More precisely, the first-instance Court of Bologna asked the Court of Justice whether the EU legislature’s decision to extend criminalisation to include conduct motivated by humanitarian assistance infringes the rights to liberty, property, life, physical integrity, asylum, and family life pursuant to Article 52(1) of the Charter. It also inquired if Italy’s failure to exclude this conduct from the scope of criminal liability by relying on Article 1(2) of Directive 2002/90/EC gives rise to a proportionate interference with the defendant’s rights under the Charter.

The outcome of the Kinsa case was widely praised for its importance in delineating fundamental rights limits to EU multilevel criminalisation, particularly in the context of the growing phenomenon of ‘crimmigration’Footnote 13 and the ongoing reform process of the EU criminal law framework on facilitation of unauthorised entry, transit and residence.Footnote 14 However, the Advocate General’s Opinion and the Court’s ruling not only adopted radically different approaches – necessitating a combined analysis – but also raised significant issues from the standpoint of EU constitutional law. After recalling the key features of the Advocate General’s and Court’s respective reasoning, this contribution argues that their approaches unveil missed opportunities for clarifying fundamental rights limitations to multilevel criminalisation. In particular, the analysis will show that key issues affect both the interpretation of the scope of the relevant EU obligation to criminalise and the review of the offence’s legitimacy under Article 52(1) of the Charter. Building on these considerations, the final section offers concluding reflections on the constitutional legacy of the Kinsa case.

The Advocate General’s Opinion

In his Opinion, Advocate General Richard de la Tour advances a line of reasoning articulated in three successive steps. The first one is hermeneutical, as it consists of interpreting the scope of the general infringement of facilitation defined by Article 1(1)(a) of Directive 2002/90/EC and the meaning of ‘humanitarian assistance’ pursuant to Article 1(2) of said Directive. On the one hand, the Advocate General stated that the criminalisation obligation defined in Article 1(1)(a) of Directive 2002/90/EC extends, in principle, to cover such conduct. While the Commission took the opposite view,Footnote 15 the Advocate General opined that the provision at issue is characterised by broad wording, such as to encompass ‘all the forms that facilitating unauthorised entry into the territory of a Member State may take’.Footnote 16 As regards the crime’s mental element, the definition of the offence merely provides that ‘intentional’ conduct shall be punished. Therefore, no specific intent is required: that finding is confirmed by the preparatory works of Directive 2002/90/EC, which indicate that the Union legislature had ruled out such an alternative provision.Footnote 17 According to the Advocate General, the mere fact that the material scope of the offence is objectively defined by EU secondary law precludes any narrow interpretation based on the motives underlying the conduct.Footnote 18 Therefore, the criminalisation choice exercised by the Union legislature should be construed as including, in principle, the facilitation of illegal entry of family members into the territory of a member state.

On the other hand, the Advocate General concluded that the concept of ‘humanitarian assistance’ does extend to the facilitation of family members’ entry, as in the case at issue.Footnote 19 It follows that member states may ultimately rely on that optional ground to exclude criminal liability for acts of humanitarian assistance, such as the conduct at issue in the Kinsa case.

As a second step in his reasoning, the Advocate General examined the validity of the relevant EU secondary law as construed. The provision of a purely optional ground of justification for humanitarian assistance gives rise to an interference with several fundamental rights, which must be proportionate – and therefore justified – under Article 52(1) of the Charter.Footnote 20 Concerning the definition of the proportionality test, the Opinion referred to the traditional test of appropriateness and necessity to verify whether the obligation to criminalise, ‘on the one hand, is appropriate for achieving the objectives pursued by that directive and, on the other, does not go beyond what is necessary to achieve those objectives’.Footnote 21 According to the Advocate General, the provision under analysis satisfies both requirements. An obligation to criminalise the facilitation of entry committed without financial gain and for the benefit of family members would be appropriate to achieve the repressive objective underlying Directive 2002/90/EC and Framework Decision 2002/946/JHA. Indeed, a broad definition of the infringement, such as the one enshrined in Article 1 of the Directive, might be warranted to bring ‘all acts contributing to the unauthorised entry of third-country nationals into the territory of a Member State within the scope of intervention of … the criminal authorities’.Footnote 22 In this context, allowing member states to exclude criminal liability for conduct aimed at providing humanitarian assistance ensures that the supranational legal framework does not exceed what is necessary to achieve its objective. It is therefore for the domestic legislature to invoke the optional ground set out in Article 1(2) of the Directive specifically for that purpose.Footnote 23 Consequently, the Advocate General concluded that Article 1 of Directive 2002/90/EC constitutes a proportionate interference with the fundamental rights guaranteed by the Charter and is, therefore, valid.

Building upon this finding, the Opinion ultimately examined whether the Italian criminal provision on facilitation – depriving trial judges of any discretion to exclude the defendant’s criminal liability in the main proceedings – constitutes a proportionate interference with the enjoyment of the fundamental rights previously recalled. As stressed by the Advocate General, the obligation to provide for proportionate penalisation in the transposition of Directive 2002/90/EC stems from the general principle of proportionality of criminal offences and penalties, enshrined both in Article 52(1) and 49(3) of the Charter.Footnote 24 According to that principle, ‘the severity of the penalty must be commensurate with the seriousness of the infringement that it punishes, in particular by ensuring a genuinely deterrent effect, while not going beyond what is necessary to achieve the legitimate objectives pursued by the provision in question’.Footnote 25 That requirement entails that national legislation must equip trial courts with the necessary tools to assess, in light of the circumstances of the specific case, the measure most proportionate to the gravity of the conduct, including the possibility of excluding criminal liability where the acts are purely motivated by humanitarian assistance.Footnote 26 Article 12 of Legislative Decree No. 286 of 25 July 1998 establishes a particularly severe regime, as it makes no distinction between conduct carried out for payment and conduct motivated by humanitarian assistance. Therefore, subject to verification by the domestic court, the Advocate General opined that the Italian provision defining the offence of facilitation would be at odds with this requirement.Footnote 27

The Grand Chamber’s ruling

In its judgment of 3 June 2025,Footnote 28 the Grand Chamber confirmed that the Italian criminal law framework on facilitation runs counter to fundamental rights obligations stemming from the Charter. Still, this is the sole point of convergence with the Advocate General’s Opinion. Whereas the latter substantially followed the path outlined in the referring court’s preliminary questions, the Grand Chamber adopted a wholly different approach.

The Court’s shift in reasoning is evidenced by its decision to reformulate the preliminary questions. As anticipated, the first instance Court in Bologna had asked the Court of Justice to assess, first, the validity of Article 1 of Directive 2002/90/EC and, second, the compatibility of the Italian provision criminalising facilitation of illegal entry with the Charter. The Grand Chamber, however, held that precedence must be given to an interpretation of EU secondary law that safeguards its validity vis-à-vis primary law.Footnote 29 What is more, the Court found that the defendant’s conduct was relevant not only to the enjoyment of the right to respect for private and family life (Article 7 of the Charter) and the right to asylum (Article 18 of the Charter), as recalled by the referring court, but also to the rights of the child (Article 24 of the Charter), given that the beneficiaries of the conduct were minors at the time.Footnote 30 Therefore, the Court held that the referral should be understood as the domestic court requesting the interpretation – rather than the validity – of Article 1(1) of Directive 2002/90/EC, to be read in the light of Articles 7, 18, and 24 of the Charter. In particular, the question’s reformulation entails the Court ascertaining, first, whether the supranational obligation to criminalise extends to ‘the conduct of a person who, in breach of the rules governing the movement of persons across borders, brings into the territory of a Member State minors who are third-country nationals and are accompanying him or her, and over whom he or she exercises actual care’.Footnote 31 Second, the Court assessed whether Articles 7, 18, and 24 of the Charter ‘must be interpreted as precluding national legislation criminalising such conduct’.Footnote 32

While the reformulated preliminary questions raise two distinct issues of interpretation – respectively concerning secondary and primary law – the Court chose to address them through a single, combined line of reasoning. Concerning the scope of the obligation to criminalise under Article 1(1)(a) of Directive 2002/90/EC, the Court acknowledged that its wording may suggest a broad and all-encompassing definition of facilitation, thereby covering the conduct of the defendant in the Kinsa case.Footnote 33 Still, unlike the Advocate General’s stance, the Grand Chamber endorsed the Commission’s argument, according to which such an interpretation cannot be accepted.Footnote 34 This conclusion rests on three principal arguments.

First, from a teleological viewpoint, the Court held that the conduct of the defendant could not be regarded as serving the preventative and punitive goals of Directive 2002/90/EC and Framework Decision 2002/946/JHA. Since the two minors were under her responsibility, presenting false documents on their behalf to secure their entry into Italian territory should be understood as the concrete exercise of care rather than as facilitation of illegal immigration of the kind the directive seeks to combat.Footnote 35

Second, the Court adopted a fundamental-rights-oriented interpretation of the provision at issue, to be read in the light of Articles 7 and 24 of the Charter. In particular, the Court recalled its previous case law on the right to the protection of private and family life to affirm that ‘the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life’.Footnote 36 That aspect of Article 7 of the Charter should be read together with Article 24(2), which establishes the child’s best interests as the primary consideration, and with the third paragraph of the same provision, which affirms every child’s right ‘to maintain on a regular basis a personal relationship and direct contact with both his or her parents’.Footnote 37 These provisions apply to the facts in the main proceedings since, according to well-established case law, Article 24 of the Charter also covers decisions and acts that, even if not directly addressed to minors, have a significant impact on their situation.Footnote 38 These findings are further supported by the Court’s observation that Article 24 of the Charter ‘represents the integration into EU law of the principal rights of the child referred to in the Convention on the Rights of the Child’.Footnote 39

Given that the defendant’s conduct is an expression of the necessary care towards minors required by Articles 7 and 24 of the Charter,Footnote 40 it cannot fall within the scope of the obligation to criminalise under Article 1(1) of Directive 2002/90/EC. According to the Court’s reasoning, ‘[a] contrary interpretation of that provision would entail a particularly serious interference with the right to respect for family life and the rights of the child, … to such an extent that it would undermine the essence of those fundamental rights, within the meaning of Article 52(1) of the Charter’.Footnote 41

Third, the same conclusion is supported by a reference to further legal sources. In particular, Article 18 of the Charter, interpreted in light of Article 31 of the Geneva Convention and Article 4 of the Schengen Borders Code, reinforces the importance of family unity as a prerequisite for the defendant to exercise the right to asylum. In the same vein, Article 2 of the Palermo Protocol against the Smuggling of Migrants, which is relevant for interpreting Article 1(1) of Directive 2002/90/EC, affirms that criminalisation cannot jeopardise the rights of migrants.Footnote 42

On the basis of these considerations, the Court held that the obligation to criminalise under Article 1(1) of Directive 2002/90/EC does not extend to the conduct of individuals who unlawfully bring into the territory of a member state minors who are third-country nationals and over whom they exercise genuine care.Footnote 43

This preliminary conclusion implies that the Italian offence at issue constitutes a more restrictive criminal provision than the harmonised infringement defined by Directive 2002/90/EC. Nevertheless, as the domestic implementation of the Directive, that provision must be compatible with EU law, particularly with the fundamental rights obligations stemming from the Charter. The Court held that the same considerations outlined above demonstrate that the domestic choice to criminalise is incompatible with the rights to private and family life and to the protection of minors. In effect, criminalising the defendant’s conduct proscribes acts that embody care for minors, thereby infringing the very essence of the fundamental rights guaranteed by Articles 7 and 24 of the Charter. Moreover, the Court considered the definition of the infringement enshrined in the Directive to be detailed and precise, thereby precluding member states from adopting more restrictive criminal provisions such as the one at issue.Footnote 44

Against the clash between the Italian domestic offence of facilitation and Articles 7 and 24 of the Charter, the Court stated that said provisions ‘are sufficient in themselves and do not need to be made more specific by provisions of EU or national law to confer on individuals rights which they may rely on as such’.Footnote 45 They therefore have direct effect and require the disapplication of the Italian offence of facilitation in circumstances such as those at issue in the main proceedings.

Assessing fundamental rights limits to EU multilevel criminalisation choices: the missed opportunities of the Grand Chamber’s ruling and Advocate General’s Opinion in Kinsa

As the two previous sections reveal, the Advocate General and Grand Chamber advanced two radically different solutions to the legal issues raised by the referring court. Yet, in light of the critical questions emerging from the Kinsa case, both lines of reasoning amount to missed opportunities. The judgment and the Opinion left key questions unresolved and exposed certain argumentative shortcomings, particularly with respect to the definition of the scope of the supranational obligation to criminalise and the assessment of the compatibility of the domestic criminal law framework with Article 52(1) of the Charter.

Defining the boundaries between supranational and domestic criminalisation choices: the scope of the obligation to criminalise established by EU secondary law

In the case under review, the scope of the offence is set out in Article 1(1) of Directive 2002/90/EC, while the obligation to penalise such conduct by means of criminal law is enshrined in Article 1 of Framework Decision 2002/946/JHA. This duplication reflects the distinctive allocation of criminalisation powers between the First and Third Pillars in the pre-Lisbon EU architecture. Whenever the criminalisation of certain conduct was deemed essential to ensure the effectiveness of EU policies, the EU legislature relied on First Pillar legal bases to define the scope of the relevant harmonised offences.Footnote 46 Conversely, minimum rules on penalties may be established solely under the Third Pillar, requiring the Council to adopt a separate Framework Decision.Footnote 47 The referring court in Kinsa raised questions relating to both the Directive and Framework Decision at issue. However, since the case concerns solely the scope of the criminalised conduct, the Court’s exclusive focus on Article 1 of Directive 2002/90/EC is to be welcomed.

Does the defendant’s behaviour fall under the scope of the EU obligation to criminalise established by Article 1(1) of Directive 2002/90/EC? If so, the validity of that provision in light of the fundamental rights guaranteed by the Charter would arise. If not, criminalisation derives from a broader definition of the offence under the domestic implementation of the Directive. Both the Court and the Advocate General came to the latter conclusion, though they did so by entirely different routes.

Article 1(1)(a) of Directive 2002/90/EC describes the offence of facilitation of illegal entry and transit as the conduct of ‘any person who intentionally assists a person who is not a national of a Member State to enter, or transit across, the territory of a Member State in breach of the laws of the State concerned on the entry or transit of aliens’. Against this formulation, the Advocate General’s Opinion noted that the offence is framed in purely objective terms and that no indication is provided for the mental element.Footnote 48 It thus appears that the specific intention of the defendant – for example, providing care to minors under her responsibility – has no bearing on the possibility of excluding criminalisation under EU law.

Consequently, the hermeneutical approach adopted by the Court – excluding from the scope of the provision the defendant’s conduct in the main proceedings – appears somewhat surprising. As noted, the Grand Chamber’s reasoning rests on two principal arguments. First, the Court engaged in a teleological interpretation: from the legislature’s perspective, criminalisation under Directive 2002/90/EC was not intended to encompass conduct amounting to acts of care towards minors. Second, the Grand Chamber construed Article 1 of Directive 2002/90/EC in light of Articles 7 and 24 of the Charter.

However, both arguments are grounded in an arduous – and thus questionable – separation of the conduct’s legal qualification from its objective constituent elements. On the one hand, qualifying the acts committed by the defendant as an expression of care towards the two minors at issue is insightful. On the other hand, the constituent elements of the conduct correspond to the definition of the offence laid down in Article 1(1)(a) of Directive 2002/90/EC and must therefore be regarded as qualifying as a crime under that provision. The Kinsa case thus revealed a tension between, on the one hand, the wording of the relevant secondary law provision and, on the other, the exercise of the fundamental rights enshrined in Articles 7 and 24 of the Charter. In response, the Grand Chamber held that the conduct’s significance for the exercise of those rights precludes its qualification as a crime under the Directive.Footnote 49

Three arguments militate against this conclusion. First, provisions of EU law must be interpreted not only in conformity with the Charter, but also systematically, so as to safeguard the internal coherence of the EU legal order and to preserve the effet utile of its provisions.Footnote 50 In the case at hand, it should be recalled that Article 1(2) of Directive 2002/90/EC grants member states the option to exclude acts motivated by humanitarian assistance from the scope of criminalisation. If behaviours such as that committed by the defendant – which, according to the referring court, qualify as humanitarian assistance – were deemed per se to be excluded from the obligation to criminalise, one would paradoxically have to conclude that Article 1(2) of Directive 2002/90/EC is deprived of its effet utile. Footnote 51

Second, the Court’s separation of the conduct’s legal qualification under Directive 2002/90/EC from its constituent elements ultimately overrides the offence’s definition framed in objective terms by secondary law. Therefore, it could be justified only if the provision at issue allowed scope for such a far-reaching interpretation. Strikingly, the Court’s ruling offered no consideration of this point whatsoever.Footnote 52 What is more, such a room for a Charter-oriented interpretation of Article 1(1)(a) of the Directive seems lacking. Indeed, the provision is broadly framed, as it encompasses all forms of facilitation, irrespective of the motives underlying the conduct. The same considerations would apply if the Court had chosen to interpret restrictively the subjective rather than the objective scope of the harmonised offence, thereby holding that a third-country national accompanying minors could not be regarded as a facilitator within the meaning of Article 1(1)(a) of Directive 2002/90/EC. That provision stipulates that ‘any person’ who commits the offence described therein shall be punished. The formula ‘any person’ makes clear that every individual may commit the harmonised offence of facilitation; accordingly, the unequivocal wording of the provision itself precludes any categorisation of potential wrongdoers that would exclude the defendant in the main proceedings from the sphere of criminal liability established by EU secondary law. Therefore, there is a compelling case for concluding that Article 1(1)(a) of Directive 2002/90/EC leaves no room for excluding the criminalisation of conduct insofar as it corresponds to the definition of the offence set out in objective terms therein.

Against this legal framework, it may be argued that a different conclusion would raise tensions with the principle of legality enshrined in Article 49(1) of the Charter. According to the consistent case law of the Court, such a provision entails that ‘legislation must clearly define offences and the penalties which they attract’,Footnote 53 thus complying with ‘certain requirements of accessibility and foreseeability, as regards both the definition of the offence and the determination of the penalty’.Footnote 54 In the field of EU substantive criminal law, it is ultimately for the legislatures of the member states to ensure compliance with these requirements when adopting offences and penalties in the course of implementing EU provisions. By its very nature, the EU definition of the offence is characterised by a certain degree of vagueness, intended to afford national legislators sufficient flexibility to accommodate the enduring differences that distinguish the criminal systems of the member states.Footnote 55 Nevertheless, this consideration does not diminish the very fact that the principle of legality also applies to the EU legislature, which is called upon to provide sufficiently clear indications to national legislators as to which behaviour should be criminalised.Footnote 56 A departure from the definition of the crime’s constituent elements when the relevant EU harmonising provisions do not provide room for such an interpretation would arguably be contrary to that requirement.

The Advocate General’s opposing conclusions on the scope of Article 1(1)(a) of Directive 2002/90/EC are more persuasive. While the defendant’s actions fall within the scope of the EU’s criminalisation choices, the optional exclusion of criminal liability for humanitarian assistance provided by Article 1(2) of Directive 2002/90/EC provides leeway to align the EU criminal law framework on facilitation with the protection of fundamental rights under the Charter. Reliance on Article 1(2) of Directive 2002/90/EC constitutes a more solid basis for a Charter-based interpretation of Directive 2002/90/EC: although the clause is framed as optional, it should be interpreted as requiring that trial courts retain sufficient discretion under domestic criminal law to adapt the punishment to the specific characteristics of the conduct.Footnote 57 However, as noted in the scholarship,Footnote 58 this approach has a weak point: by addressing punishment rather than criminalisation, it fails to firmly establish fundamental rights limitations on substantive criminal law. To avoid this issue and ‘take rights seriously’ in the EU criminal law framework on facilitation, the Court could have strengthened the Advocate General’s reasoning on Article 1(2) of Directive 2002/90/EC by emphasising the conduct’s qualification as an expression of care under Articles 7 and 24 of the Charter. Through this approach, the following conclusion could have been reached: where the defendant’s conduct falls both within the general definition of ‘facilitation’ and within the optional exclusion for ‘humanitarian assistance,’ and insofar as it reflects the exercise of the duty of care towards minors under Articles 7 and 24 of the Charter, member states would be required to implement Article 1(2) of Directive 2002/90/EC so as to exclude such conduct from criminalisation. In this way, the Court could have reconciled the framework of EU substantive criminal law with the Charter on firmer foundations, thereby avoiding the argumentative difficulties highlighted above.

Assessing the fundamental rights limits to EU multilevel criminalisation choices: the ‘essence of the right’ versus the proportionality test

The criterion for reviewing the scope of criminalisation vis-à-vis fundamental rights pursuant to Article 52(1) of the Charter constitutes the second key point on which the ruling and the opinion diverge. On the one hand, the Grand Chamber concluded that criminalising the conduct of the defendant in the main proceedings – a mother facilitating the illegal entry of two minors under her care in the territory of a member state – amounts to a violation of the essence of the rights secured by Articles 7 and 24 of the Charter. On the other hand, the Advocate General carried out a proportionality assessment of the punishment’s interference with Articles 7, 24 and 18 of the Charter. Both approaches have considerable potential for establishing fundamental rights-based limitations to EU multilevel criminalisation within the scope of EU law. It nevertheless appears that neither the Grand Chamber nor the Advocate General fully apprehended the theoretical premises and implications of their respective reasoning.

Assessing the respect for the ‘essence of the right’ constitutes a prior verification with respect to proportionality when adjudicating under Article 52(1) of the Charter. From a theoretical viewpoint, the ‘essence’ amounts to the right’s inviolable core, a sphere of protection that no public authority action could ever legitimately clash with.Footnote 59 If the measure under scrutiny is so intrusive vis-à-vis the fundamental right invoked that it encroaches upon the very core of that right, no justification for its legitimacy can be accepted.Footnote 60 That measure is automatically unlawful and, therefore, there is no need to carry out a proportionality assessment under Article 52(1) of the Charter.Footnote 61 Against this premise, reliance on the ‘essence of the right’ paradigm in Kinsa may appear unusual, insofar as the Court employed it as an interpretative tool for secondary law rather than as a standard for reviewing its validity. At the same time, this approach accords with the broader dynamics of fundamental rights adjudication under the Charter. Much like the principle of proportionality, once a conflict arises between the enjoyment of fundamental rights and an EU measure, interpreting the latter in conformity with the Charter – guided by the requirements laid down in Article 52(1) – serves to avoid the invalidation of the secondary law provisions at issue.

To hold that a given measure infringes on the right’s essence, its scope must first be defined. This hermeneutical operation presents noteworthy conceptual hurdles, thus eliciting a casuistic – or, more accurately, an argumentative – approach. Indeed, a general theorisation of the ‘essence of the right’ concept has not yet emerged from the Court’s case law.Footnote 62 Still, even an argumentative technique requires sound grounds to demonstrate that given circumstances fall within the scope of the essence of the right. From that perspective, the Grand Chamber’s reasoning does not fully meet this standard. To demonstrate that criminalising the defendant’s conduct clashes with the essence of the right secured by Article 7 of the Charter, the Court relied on three considerations. First, the judgment recalls its previous ruling in Stolichna obshtina, rayon ‘Pancharevo’,Footnote 63 in which it held that ‘the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life’.Footnote 64 It is interesting to note that the Court of Justice’s previous case law elaborated this finding from the jurisprudence of the European Court of Human Rights.Footnote 65 This approach is insightful and should be welcomed. In the absence of a comprehensive methodology for defining the essence of rights, the possibility of referencing the European Court of Human Rights’ case law under Article 52(3) of the Charter provides the Luxembourg Court with firm argumentative footholds. In this line of reasoning, if the Strasbourg Court concluded that a given aspect of private and family life is relevant to the essence of the right secured in Article 8 of the European Convention on Human Rights, the same conclusion shall be drawn under Article 7 of the Charter.

Still, rather than building upon this promising consideration, the Grand Chamber sought tentatively to reinforce the finding by advancing two additional and far less convincing arguments. In particular, the Court held, second, that Article 7 of the Charter must be read in the light of Article 24(2), which provides that ‘the child’s best interests must be a primary consideration in all actions relating to children’.Footnote 66 However, while demonstrating that the criminalisation under scrutiny limits the enjoyment of that right, this consideration is insufficient to prove that it infringes on its essence. Third, the same consideration applies to the Court’s reliance on the right to asylum under Article 18 of the Charter. In this respect, the ruling merely recalls that such a right must ‘be guaranteed with due respect for the rules of the Geneva Convention and in accordance with the EU Treaty and the FEU Treaty’.Footnote 67 Even the Court’s references to further international and EU sources in the field of migration and asylum law – including, in particular, the Geneva Convention, the Schengen Borders Code, and Directive 2011/95 – fall short of contributing to the Court’s demonstration. Indeed, although such considerations demonstrate that the criminalisation of the defendant’s conduct interferes with the enjoyment of the right to asylum,Footnote 68 their citation does little to reinforce the Court’s position, which addresses a different – albeit complementary – issue: whether it encroaches upon the very core of that right.

Missed opportunities also characterise the Advocate General’s Opinion, which enshrined a proportionality assessment of both Article 1 of Directive 2002/90/EC and the Italian criminal law provisions on facilitation. There are at least two aspects of those proportionality tests on which further clarification would have been desirable. The first profile concerns its theorisation. In particular, the Opinion advanced two distinct conceptualisations, depending on whether the test is applied to the review of EU criminalisation choices or to the assessment of the compatibility of domestic criminal law provisions with the Charter. In the first case, the Advocate General framed proportionality as a suitability and necessity test.Footnote 69 Conversely, the proportionality assessment is much more elaborate for reviewing domestic criminal law provisions on facilitation under Article 52(1) of the Charter. Indeed, not only did the Advocate General’s Opinion complement the suitability and necessity tests with proportionality sensu stricto,Footnote 70 it also deepened the analysis by clarifying how those criteria should be applied in substantive criminal law. To that end, the Advocate General referred to the prospective and retrospective schemes derived from the criminal law understanding of proportionality. More specifically, ‘the severity of the penalty must be commensurate with the seriousness of the infringement that it punishes’ (retrospective proportionality) ‘in particular by ensuring a genuinely deterrent effect, while not going beyond what is necessary to achieve the legitimate objectives pursued by the provision in question’ (prospective proportionality).Footnote 71 While prospective proportionality implies weighing the dissuasive character of criminalisation against the pursuit of its objective, the retrospective criterion implies parameterising the severity of that criminal law response to the seriousness of the wrongdoing.Footnote 72

This ‘hybrid’ definition of proportionality of offences and penalties,Footnote 73 which combines the EU traditional threefold suitability, necessity and proportionality sensu stricto test with the prospective and retrospective schemes derived from the criminal law discourse, is further underscored by the Advocate General’s explicit reference to Article 49(3) of the Charter, which crystallises retrospective proportionality. The conclusions are therefore consistent with recent case law on the proportionality of criminal penalties, which has established that this principle emerges from a holistic conceptualisation grounded in both Article 49(3) and Article 52(1) of the Charter.Footnote 74 Article 49(3) thus complements Article 52(1) by reaffirming the retrospective declination of proportionality in the review of criminal penalties.Footnote 75 On that basis, the fact that Article 49(3) of the Charter is emphasised solely in the Advocate General’s Opinion, yet recalled neither in the reference nor in the Court’s judgment, comes as no surprise. Indeed, Article 49(3) applies exclusively to the review of criminal penalties, whereas both the preliminary questions and the Court’s ruling concerned the scope of criminalisation.

At the same time, the Court of Justice’s case lawFootnote 76 reveals that the hybrid theorisation of the principle of proportionality applies not only to the review of penalties, but also to the constituent elements of domestic criminal law. Therefore, if that hybrid proportionality assessment applies to the review of national criminal measures under Article 52(1) of the Charter, the same test should also apply to the scrutiny of the validity of EU provisions on offences and penalties. Indeed, the proportionality test of criminal provisions in relation to the enjoyment of fundamental rights guaranteed by the Charter is far more complex than the suitability and necessity test alone, since it requires prospective and retrospective assessments regarding the definition of both the constituent elements of the offence and penalties.

The practice of the EU legislature further supports this finding. When adopting legislative acts harmonising national criminal provisions, the Parliament, the Council and the Commission are called upon to justify under Article 52(1) of the Charter the interference caused by supranational criminalisation with the enjoyment of fundamental rights. To that end, the EU political institutions consistently undertake both prospective and retrospective assessments, which are crystallised in the relevant travaux préparatoires.Footnote 77 Provided that the EU legislature adopts such an approach, it is argued here that the Court’s scrutiny of the validity of the resulting legislative choices should likewise encompass both prospective and retrospective assessments. Unlike the approach taken by the Advocate General in his Opinion, this choice would foster greater symmetry between the proportionality considerations advanced by the Union legislature to justify EU criminalisation measures and their subsequent judicial review by the Court.

The second missed opportunity of the Advocate General’s reasoning concerns the intensity of the proportionality scrutiny of the Union’s criminalisation choices. On this point, the Opinion of Advocate General Richard de la Tour did not offer precise indications. To address this gap, the Court’s general approach to proportionality review of Union acts may offer valuable insights. In this regard, two opposing tendencies have emerged in the case law. On the one hand, ‘the Court has accepted that in the exercise of the powers conferred on it the Community legislature must be allowed a broad discretion in areas in which its action involves political, economic and social choices and in which it is called upon to undertake complex assessments and evaluations’.Footnote 78 In such circumstances, ‘the criterion to be applied is not whether a measure adopted in such an area was the only or the best possible measure, since its legality can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institutions are seeking to pursue’.Footnote 79 On the other hand, recent case law of the Court of Justice manifests a stricter approach to reviewing EU provisions that result in a particularly serious interference with the enjoyment of fundamental rights. In such cases, the proportionality scrutiny under Article 52(1) of the Charter aims to verify whether the interference is limited to what is strictly necessary for achieving the objective pursued.Footnote 80 In particular, the Court has made use of that standard of review in cases concerning EU provisions on data retention, since the latter technique was deemed to establish ‘wide-ranging, and … particularly serious’Footnote 81 interference with the enjoyment of fundamental rights. This finding is instructive because it establishes a benchmark: any EU measure that entails interferences equal to, or more serious than, those arising from data-retention techniques should be subject to strict proportionality scrutiny under the Charter. Such scrutiny should also apply to EU criminalisation measures. It is indeed common ground in literature that criminalisation constitutes by far the most profound form of interference with the rights of the individual.Footnote 82 Based on this premise, the justification for imposing criminalisation obligations at the supranational level as per Article 52(1) of the Charter should be subject to strict proportionality scrutiny by the Court of Justice. Therefore, even if the Grand Chamber did not uphold the proportionality assessment advanced by the Advocate General, the Opinion’s lack of clarity on the standard of the review constitutes, once again, one of the missed opportunities characterising the Kinsa case.

Concluding remarks: the constitutional legacy of the Kinsa case

The Kinsa case may be seen as a puzzle whose pieces were assembled differently by the Court and the Advocate General, leaving certain gaps and inconsistencies in the resulting picture. Nevertheless, the case holds crucial significance for the architecture of EU integration in the field of substantive criminal law. In particular, its constitutional legacy may be summarised in three key points.

The first aspect concerns the future prospects of developing fundamental rights limitations to EU multilevel criminalisation. In this respect, it is worth noticing that the different approaches featured in the Grand Chamber’s ruling and Advocate General’s Opinion ultimately stem from a common methodology. In particular, the different argumentative paths followed by the Court and the Advocate General share two consequential crossroads. Specifically, these are the interpretation of EU secondary law – to frame the scope of its obligation to criminalise and, consequently, verify whether the case concerns the validity of EU criminalisation choices or compatibility of domestic ones vis-à-vis the Charter – and, then, the assessment of that measure vis-à-vis the enjoyment of fundamental rights. Therefore, rather than two players solving a puzzle, the Court and the Advocate General may be envisaged as two hikers following different, yet intersecting, trails marked by the same starting point and converging at two common crossroads. The Court and the Advocate General took different turns, reaching different final destinations. Still, whatever the direction chosen, it always led to the very same two crossroads on the path. This point might appear trivial; still, it is noteworthy since Kinsa represented the very first case concerning fundamental rights limits to EU multilevel criminalisation. Therefore, even with missed opportunities and argumentative hurdles, the Kinsa case appears to have laid the groundwork – or, by sticking to the metaphor just advanced, the trails – for future litigation in this field, which will likely lead to strengthening the paths just inaugurated.

Second, the constitutional legacy of the case also lies in its potential implications for the broader architecture of EU integration in the field of substantive criminal law. From that perspective, a specific finding of the Grand Chamber in Kinsa previously noted elicits some reflection. To hold that the Italian definition of the facilitation offence is incompatible with EU law, the Court affirmed that Article 1(1)(a) of Directive 2002/90/EC ‘seeks to define precisely the offence of facilitation of illegal immigration’,Footnote 83 so that ‘Member States may not establish, in national law, rules that would go beyond the scope of the general offence of facilitating unauthorised entry, as defined by that provision, by including conduct not covered by it, in breach of Articles 7 and 24 and Article 52(1) of the Charter’.Footnote 84 This finding should be carefully considered. Indeed, a literal interpretation of the Court’s wording would neglect the ‘minimum’ nature of EU harmonisation in the field of substantive criminal law as mandated by Article 83 TFEU.Footnote 85 That feature implies that EU directives just provide for the minimum scope of criminalisation, while member states remain free to expand criminal liability to additional behaviour when implementing secondary law. It is interesting to note that the Council has expressly reaffirmed this possibility during the negotiations on the new EU criminal law framework on facilitation. In particular, its General Approach adopted on 13 December 2024 proposed to add a recital to the proposal for a new directive on facilitation, to clarify that ‘Member States are free to adopt or maintain legislation providing for a broader incrimination than what is set out in this Directive, in the interests of enhancing the effectiveness of the fight against migrant smugglers’.Footnote 86 Against the Court’s finding, should we deem that the supranational harmonisation of substantive criminal law is losing its ‘minimum’ nature, thus potentially paving the way to full approximation of offences? A different reading of the Court’s ruling seems appropriate. While member states’ criminal law provisions may well go beyond the minimum threshold provided by EU secondary law, they are still constrained by the limits dictated in the Charter. Indeed, domestic offences qualify as implementing provisions of EU directives on substantive criminal law and therefore fall within the scope of application of the Charter. In the circumstances of the Kinsa case, the Court’s finding should arguably be read as meaning that a broader scope of criminalisation of facilitation compared to Article 1(1)(a) of Directive 2002/90/EC would be in contrast with Articles 7 and 24 of the Charter.Footnote 87 From that perspective, the ‘minimum’ nature of EU harmonisation in substantive criminal law is still preserved after the Kinsa ruling.

Finally, the Court’s approach in tracing the boundaries of legislative discretion in supranational criminalisation choices emerging from Kinsa has profound legal and political implications. In particular, the ruling manifests reliance on the ‘essence of the right’ paradigm as a counter-majoritarian tool, a trend already illustrated in well-established scholarship.Footnote 88 Building upon that perspective, the Kinsa judgment appears to convey a clear legal and political message to the EU legislature in the wake of the Facilitators’ Package reform: in no way could EU substantive criminal law provisions be construed as criminalising conduct that qualifies as an exercise of fundamental rights. Still, if carried to its extreme consequences, that finding entails a troubling implication from the perspective of EU constitutional law. By upholding the validity of the harmonised offence of ‘facilitation’ while hermeneutically delineating limits to its scope in light of the Charter, the Court’s approach ultimately generates uncertainty in the interpretation of EU substantive criminal law. The Kinsa judgment paves the way for indeterminate possibilities in shaping the scope of EU harmonising provisions on offences, without solid anchorage in their objective definition. In this way, the Court’s ruling ultimately suggests that EU substantive criminal law can always be construed as compatible with the Charter, even if the constituent elements of the crime entail the criminalisation of acts which are expressions of fundamental rights. If that is the case, the Kinsa ruling thus raises a crucial (and perhaps a little provocative) question: can EU substantive criminal law provisions ever be annulled vis-à-vis the Charter? Or, conversely, can harmonised provisions on offences always be aligned with the protection of fundamental rights by means of consistent interpretation? That is the key constitutional issue left unresolved by the Kinsa case, which will arguably require further reflection and debate in the near future.

References

1 From that perspective, substantive criminal law has sometimes been described as the ‘secret garden’ of national sovereignty: S. Montaldo, I limiti della cooperazione in materia penale nell’Unione europea (Editoriale Scientifica 2015) p. 26.

2 Art. 83(1) TFEU.

3 Art. 83(2) TFEU.

4 The literature on the harmonisation of substantive criminal law is quite extensive. Among many potential references, not exhaustively, see V. Mitsilegas, EU Criminal Law, 2nd edn. (Hart Publishing 2022) p. 89-107; E. Herlin-Karnell, The Constitutional Dimension of European Criminal Law (Hart Publishing 2012); J. Öberg, The Normative Foundations for EU Criminal Justice: Powers, Limits and Justifications (Hart Publishing 2024) p. 63-91; I. Wieczorek, The Legitimacy of EU Criminal Law (Hart Publishing 2020); A. Weyembergh, L’harmonisation des législations : condition de l’espace pénal européen et révélateur de ses tensions (Editions de l’Université de Bruxelles 2004); J.W. Ouwerkerk, ‘Criminalization Powers of the European Union and the Risks of Cherry-Picking between Various Legal Bases: The Case for a Single Legal Framework for EU-Level Criminalization’, 23 Columbia Journal of European Law (2017) p. 503.

5 J. Monar, ‘Reflections on the Place of Criminal Law in the European Construction’, 27 European Law Journal (2021) p. 356 at p. 360; M. Kaiafa-Gbandi, ‘The Importance of Core Principles of Substantive Criminal Law for a European Criminal Policy Respecting Fundamental Rights and the Rule of Law’, 1 European Criminal Law Review (2011) p. 6 at p. 33.

6 ECJ 3 June 2025, Case C-460/23, Kinsa, para. 22.

7 Ibid., paras. 20-21.

8 Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence, O.J. 2002, L 328/17.

9 Council Framework Decision of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence, O.J. 2002, L 328/1.

10 Art. 1(1)(a) of Directive 2002/90.

11 Art. 1(2) of Directive 2002/90.

12 Criminal Court of Bologna, Order of 17 July 2023, Case 895/2020 R.G.Dib., para. 24.

13 On this perspective of analysis for the Kinsa case, see V. Mitsilegas, ‘Decriminalising the Facilitation of Unauthorised Entry in EU Law: Kinsa as a first step?’, 27 European Journal of Migration and Law (2025) p. 1; V. Moreno-Lax, ‘Solidarity Crimes, Legitimacy Limits: Punishing Civil Obedience as an Abuse of Power’, Verfassungsblog, 17 April 2024, https://verfassungsblog.de/solidarity-crimes-legitimacy-limits/, visited 13 January 2026; E. Pistoia, ‘Il colpo assestato alla crimmigration dalla sentenza Kinsa della Corte di giustizia’, 1 Unione europea e diritti (2025) p. 1. On the general features and legitimacy issues of ‘crimmigration’, see the wide-ranging contributions published in G.L. Gatta et al. (eds.), Controlling Immigration through Criminal Law. European and Comparative Perspectives on ‘Crimmigration’ (Hart Publishing 2021).

14 Proposal for a Directive of the European Parliament and of the Council laying down minimum rules to prevent and counter the facilitation of unauthorised entry, transit and stay in the Union, and replacing Council Directive 2002/90/EC and Council Framework Decision 2002/946 JHA, COM(2023) 755 final. On this profile, see V. Mitsilegas, ‘Editorial: Reforming the “Facilitators’ Package” through the Kinsa Litigation: Legality, Effectiveness and Taking International Law Into Account’, 10 Eurojus (2024) p. 155.

15 Opinion of AG Richard de la Tour, 7 November 2024 in Case C-460/23, Kinsa, para. 30.

16 Ibid., para. 35.

17 Ibid., para. 39.

18 Ibid., para. 40.

19 Ibid., para. 27.

20 Ibid., paras. 52-53.

21 Ibid., para. 77.

22 Ibid., para. 83.

23 Ibid., para. 85. In a similar vein, see E. Pistoia, ‘La facoltà di non incriminare il “favoreggiamento umanitario” al confronto con alcuni diritti di cittadini di Stati terzi sanciti nella Carta. Considerazioni a margine del rinvio pregiudiziale nel caso Kinsa’, Sistema penale, 18 October 2024, https://www.sistemapenale.it/it/scheda/pistoia-la-facolta-di-non-incriminare-il-favoreggiamento-umanitario-al-confronto-con-alcuni-diritti-di-cittadini-di-stati-terzi-sanciti-nella-carta, visited 13 January 2026, para. 5.

24 Opinion in Kinsa, supra n. 15, para. 102. On this point, see also ECJ 8 March 2022, Case C-205/20, Bezirkshauptmannschaft Hartberg-Fürstenfeld (Effet direct), para. 21. For an analysis of the implications of that ruling, see S. Montaldo, ‘Handle with Care! The Direct Effect of the Requirement of Proportionality of Sanctions and the Remedy of Disapplication: NE v. Bezirkshauptmannschaft Hartberg-Fürstenfeld’, 60 Common Market Law Review (2023) p. 863.

25 Opinion in Kinsa, supra n. 15, para. 102.

26 Ibid., para. 103.

27 Ibid., para. 104.

28 Kinsa, supra n. 6.

29 Ibid., para. 37.

30 Ibid., para. 38.

31 Ibid., para. 39.

32 Ibid.

33 Ibid., paras. 41-43.

34 Ibid., para. 44.

35 Ibid., para. 45.

36 Ibid., para. 47.

37 Ibid., para. 48.

38 Ibid.

39 Ibid., para. 50.

40 Ibid., para. 54.

41 Ibid., para. 52.

42 Ibid., para. 66.

43 Ibid., paras. 51 and 67.

44 Ibid., paras. 70-71.

45 Ibid., para. 72.

46 As established by the Court in ECJ 13 September 2005, Case C-176/03, Commission v Council, para. 48. Within the earlier debate on the Community’s competence in substantive criminal law, see C. Haguenau-Moizard, ‘Vers une harmonization communautaire du droit pénal?’, 42 Revue trimestrielle de droit européen (2006) p. 948; H. Labayle, ‘L’ouverture de la jarre de Pandore: réflexions sur la compétence de la Communauté en matiere pénale’, 3-4 Cahiers de droit européen (2006) p. 382; V. Mitsilegas, ‘Constitutional Principles of the European Community and European Criminal Law’, 8 European Journal of Law Reform (2006) p. 301.

47 ECJ 23 October 2007, Case C-440/05, Commission v Council, para. 70.

48 Opinion in Kinsa, supra n. 15, para. 39.

49 Pistoia, supran. 13, p. 5.

50 On systematic and teleological interpretation of EU law see, among many, K. Lenaerts and J.A. Gutiérrez-Fons, ‘To Say What the Law of the EU Is: Methods of Interpretation and the European Court of Justice’, 20 Columbia Journal of European Law (2013) p. 3.

51 This argument is also advanced in S. Zirulia, ‘Per la Corte di giustizia UE la Carta dei diritti fondamentali osta alla criminalizzazione del favoreggiamento dell’ingresso irregolare del figlio minorenne o di altri minori di cui l’agente è affidatario’, 6 Sistema penale (2025) p. 165 at p. 168-169.

52 As recently underlined in Pistoia, supra n. 13, p. 6.

53 Bezirkshauptmannschaft Hartberg-Fürstenfeld (Effet direct), supra n. 24, para. 47; ECJ 29 July 2024, Case C-623/22, Belgian Association of Tax Lawyers and Others, para. 39.

54 ECJ 5 December 2017, Case C-42/17, M.A.S. and M.B., para. 55.

55 This feature is physiological and does not conflict with the principle of legality, since provisions enshrined in directives are incapable of directly determining the criminal liability of individuals (in case law, see ECJ 20 December 2017, Case C-102/16, Vaditrans, para. 56).

56 C. Peristeridou, The Principle of Legality in European Criminal Law (Intersentia 2017) p. 299.

57 A comparable approach is manifested by a 2018 ruling of the French Constitutional Council (Conseil Constitutionnel). Adjudicating on a case bearing some similarities to Kinsa, the Constitutional Council declared the French offence of facilitation of illegal immigration unconstitutional insofar as it did not exclude the criminal liability of an act which is ‘accessory to the assistance to residence and is given for humanitarian reasons’ (Decision No. 2018-717/718 QPC of 6 July 2018, Cédric H. and another, para. 13; for an analysis, see Editorial, ‘Fraternité’, 15 EuConst (2019) p. 183). It is interesting to note that such a conclusion has been reached without hermeneutically reducing either the objective or the personal scope of the provision at issue. In line with the conclusions of the Advocate General in Kinsa, the Constitutional Council focused its reasoning on the clause excluding criminal liability for facilitation in certain circumstances as enshrined in French domestic legislation, deeming it illegitimate on the ground that it was too narrowly framed to cover acts motivated by the need to provide humanitarian assistance.

58 S. Zirulia, ‘Using Proportionality to Limit the Criminalisation of Solidarity’, Verfassungsblog, 26 June 2025, https://verfassungsblog.de/kinsa-judgment-proportionality/, visited 13 January 2026.

59 This is why the ‘essence of the right’ has sometimes been defined as ‘limits on limitations’: K. Lenaerts, ‘Limits on Limitations: The Essence of Fundamental Rights in the EU’, 20 German Law Journal (2019) p. 779.

60 F. de Cecco, ‘The Trouble with Trumps: On How (and Why) Not to Define the Core of Fundamental Rights’, 60 Common Market Law Review (2023) p. 1551 at p. 1578.

61 Lenaerts, supra n. 59, p. 782.

62 In this respect, Tridimas and Gentille contended that the ‘essence of the rights’ paradigm should be better understood as a concept ‘offering a constitutional posture and a legitimizing device than a judicial tool that provides a firm dividing line’: T. Tridimas and G. Gentille, ‘The Essence of Rights: An Unreliable Boundary?’, 20 German Law Journal (2019) p. 794 at p. 816. At the same time, some attempts to conceptualise that paradigm in light of existing ECJ case law have been insightfully advanced in the literature. Given the scope of this article, it is not possible to properly address that rich debate here. For some – although not exhaustive –references, see M. Brkan, ‘The Concept of Essence of Fundamental Rights in the EU Legal Order: Peeling the Onion to Its Core’, 20 EuConst (2018) p. 332; M. Dawson et al., ‘What is the Added Value of the Concept of the “Essence” of EU Fundamental Rights?’, 20 German Law Journal (2019) p. 763 at p. 765.

63 ECJ 14 December 2021, Case C-490/20, Stolichna obshtina, rayon ‘Pancharevo’, para. 61.

64 Kinsa, supra n. 6, para. 47.

65 Among others, see ECtHR 12 July 2001, No. 25702/94, K. and T. v Finland, paras. 150-151; ECtHR 8 January 2013, No. 37956/11, A.K. and L. v Croatia, para. 51; ECtHR 10 September 2019, No. 37283/13, Strand Lobben and Others v Norway, para. 202.

66 Kinsa, supra n. 6, para. 48.

67 Ibid., para. 58.

68 V. Mitsilegas, ‘The Ruling of the Court of Justice in Kinsa: A First Step Towards the Decriminalisation of the Facilitation of Unauthorised Entry?’, Eurojus, 21 July 2025, https://rivista.eurojus.it/the-ruling-of-the-court-of-justice-in-kinsa-a-first-step-towards-the-decriminalisation-of-the-facilitation-of-unauthorised-entry/, visited 13 January 2026. On the flaws concerning the Court’s reliance on international law sources in Kinsa, see M. Rocca, ‘In the End… Who Cares? The CJEU’s Kinsa Judgment’, Verfassungsblog, 30 June 2025, https://verfassungsblog.de/kinsa-judgment-charter/, visited 13 January 2026.

69 Opinion in Kinsa, supra n. 15, para. 77.

70 S. Zirulia, ‘Facilitating Irregular Immigration Under the Lens of the Proportionality Principle - Brief Notes on the Advocate General’s Conclusions in the Kinsa Case (C-460/23)’, EU Law Live, 21 November 2024, https://eulawlive.com/op-ed-facilitating-irregular-immigration-under-the-lens-of-the-proportionality-principle-brief-notes-on-the-advocate-generals-conclusions-in-the-kinsa-case-c-460-23/, visited 13 January 2026.

71 Opinion in Kinsa, supra n. 15, para. 102.

72 On the distinction between prospective and restrospective proportionality in EU criminal law, see R.A. Duff, ‘Proportionality and the Criminal Law: Proportionality of What to What?’, in E. Billis et al. (eds.), Proportionality in Crime Control and Criminal Justice (Hart Publishing 2021) p. 29 at p. 34; A. Martufi, ‘Proportionality of Sanctions Under EU Law: Insights from Penal Theory’, in L. Grossio et al. (eds.), Proportionality of Criminal Penalties in EU Law (Hart Publishing 2025) p. 37 at p. 54; Montaldo, supra n. 24, pp. 874-875; J. Öberg, ‘Conceptualising Proportionality and Criminal Sanctions in EU Law: Three Different Visions’, in Grossio et al. (eds.), ibid, p. 9 at p. 18.

73 As conceptualised in L. Grossio, Proportionality of Criminal Offences and Penalties in EU Law: A Hybrid Principle (Hart Publishing 2025).

74 ECJ 6 October 2021, Case C-544/19, ECOTEX BULGARIA, para. 97; ECJ Case C-537/16, Garlsson Real Estate and Others, para. 56.

75 Grossio, supra n. 73, p. 123-124.

76 In particular, see ECOTEX BULGARIA, supra n. 74, paras. 97 and 100; ECJ 11 February 2021, Case C-77/20, K. M. (Sanctions infligées au capitaine de navire), para. 38; ECJ 31 May 2018, Case C-190/17, Zheng, para. 40; ECJ 9 February 2012, Case C-210/10, Urbán, paras. 53-54; ECJ 4 October 2018, Case C-384/17, Link Logistik N&N, para. 42.

77 Grossio, supra n. 73, p. 77. To provide just two examples, it is worth mentioning the 2003 Proposal for a directive on ship-source pollution, whose explanatory memorandum makes it clear that ‘[the] effects … will only be sufficiently dissuasive if illicit discharges are considered a criminal offence …, indicating a societal disapproval that is qualitatively different from compensation mechanisms under civil law or administrative measures’: Proposal for a Directive of the European Parliament and of the Council on ship-source pollution and on the introduction of sanctions, including criminal sanctions, for pollution offences, COM(2003) 92 final, p. 5. This passage manifests an analysis of a prospective nature with regard to the proportionality of criminalisation choices. In a complementary way, the legislator also takes retrospective proportionality into account. As clarified by the 2021 Proposal for a directive on the protection of the environment through criminal law, the obligation to criminalise is to be limited to ‘serious violations of environmental law [thus respecting] proportionality’: Proposal for a directive of the European Parliament and of the Council on the protection of the environment through criminal law, replacing Directive 2008/99/EC, COM(2021) 851 final, p. 4.

78 Among many, see ECJ 8 June 2010, Case C-58/08, Vodafone and Others, para. 52.

79 Ex multis, see ECJ 22 November 2018, Case C-151/17, Swedish Match, para. 36. As recently pointed out in literature, the harmonisation of offences and penalties may well qualify as an area in which the Union legislature is called upon to carry out complex political assessments, such as to require restraint in judicial review: Monar, supra n. 5, p. 360.

80 ECJ 9 November 2010, Joined Cases C-92/09 and C-93/09, Volker und Markus Schecke and Eifert, para. 77; ECJ 8 April 2014, Joined Cases C-293/12 and C-594/12, Digital Rights Ireland and Others, para. 48; ECJ 21 June 2022, Case C-817/19, Ligue des droits humains, paras. 115-117; ECJ 22 November 2022, Joined Cases C-37/20 and C-601/20, Luxembourg Business Registers, paras. 64-65.

81 Digital Rights Ireland and Others, ibid., para. 37.

82 Among manifold potential references, see S. Melander, ‘Ultima Ratio in European Criminal Law’, 3 European Criminal Law Review (2013) p. 45 at p. 52; N. Jareborg, ‘Criminalisation as Last Resort (Ultima Ratio)’, 2 Ohio State Journal of Criminal Law (2005) p. 521 at p. 527.

83 Kinsa, supra n. 6, para. 70.

84 Ibid., para. 71.

85 However, as noted in literature, it is not uncommon for EU substantive criminal law provisions to enshrine detailed definitions of harmonised offences: I. Wieczorek, The Legitimacy of EU Criminal Law (Hart Publishing 2020) p. 51.

86 Council’s General Approach on the Proposal for a Directive of the European Parliament and of the Council laying down minimum rules to prevent and counter the facilitation of unauthorised entry, transit and stay in the Union, and replacing Council Directive 2002/90/EC and Council Framework Decision 2002/946 JHA, Doc No. 16910/24, Recital 6a.

87 Pistoia, supra n. 13, p. 10.

88 Dawson et al., supra n. 62, p. 772; Tridimas and Gentille, supra n. 62, p. 815.