Il delit de solidarité davanti alla Corte di Giustizia: il caso Kinshasa come game changer per le politiche migratorie europee

This contribution endeavors to provide a critical examination of the preliminary reference issued by the Tribunale di Bologna (Court of Bononia) in July 2023, whereby the Court of Justice of the European Union is urged to resolve uncertainties regarding the alignment of criminal penalties for facilitating irregular entry and transit – as per Article 12 of the Italian Consolidated Text on Immigration and the combination of Directive 2002/90 and Framework Decision 2002/946/JHA – with the principle of proportionality enshrined in Article 52(1) of the Charter of Fundamental Rights of the European Union. Following a detailed exposition of the matter, specifically addressing the legitimacy of such criminalization process in relation to so-called ‘humanitarian’ conducts carried out in support of third-country nationals, the Author ventures further to present two additional axes of illegitimacy within the EU legal framework that the Court of Justice ought to assess of its own motion – the unnecessary/disproportionate nature of criminalization choices pursuant to Article 83(2) TFEU, and the infringement of the principle of legality as per Article 49(1) of the Charter. The analysis culminates with reflections on potential legislative reforms, particularly in light of the very recent Proposal for a Directive on migrant smuggling, which, at this juncture, does not seem to offer a panacea for the issues broached by the preliminary reference.