Migrant Smuggling Laws: European Commission found in breach of transparency rules

The European Ombudsperson has found the European Commission bypassed key transparency rules (Better Regulation guidelines) when preparing legislation to counter migrant smuggling (Facilitation Directive and Europol Regulation).

The inquiry followed a complaint by European Digital Rights (EDRi) and Platform for International Cooperation on Undocumented Migrants (PICUM) on behalf of the Protect Not Surveil coalition, whose mission is to challenge digital surveillance in migration contexts.

The Ombudsperson found that the Commission relied on an overly broad and poorly justified claim of “urgency” to skip Better Regulation requirements, including public consultations and evidence gathering, and concluded that these omissions amount to maladministration.

As the coalition representatives highlighted in their complaint, the European Commission failed to conduct a proper impact assessment of the two proposed instruments, despite a clear mandate to do so and despite a recent implementation study– commissioned by the Commission itself – recommending such an impact assessment for the Facilitation Directive. This study was only made public months after the publication of the proposed Directive, following a request for access to information by PICUM.

Most importantly, the Commission’s failure to conduct an impact assessment overlooks flagrant human rights risks linked to the two instruments.

The proposed Facilitation Directive risks further criminalising migrants and those who help them, despite at least 142 people being prosecuted across the EU in 2024 for offering assistance. The Directive is currently being negotiated in the European Parliament, where right-wing and far-right forces are undermining efforts to protect solidarity from being criminalised.

The Europol proposal would significantly expand the agency’s surveillance powers, putting at risk migrants, aid workers and human rights defenders alike. The Ombudsperson’s findings make it unmistakable that neither broad claims of “operational need” nor political promises at the highest levels justify setting aside essential democratic principles in EU policymaking. The decision underscores – and deepens – public distrust in a European policing agency that receives expanded surveillance powers with little accountability or transparency.

The Ombudsman urges the Commission to clearly define “urgency,” record all exemptions from Better Regulation rules with reasons and approvals, and explain them in legislative memoranda. It also recommends that procedures be put in place to ensure urgent proposals still meet EU standards for transparent, evidence-based, and inclusive law-making.

The Commission is required to send its opinion along with any action it has taken in relation to the Ombudsperson’s recommendations by 25 February 2026.

QUOTES

Silvia Carta, Advocacy Officer at PICUM, said “The Ombudsperson’s findings confirm a worrying trend towards opaque policymaking in the migration field, among others. These proposals carry serious human rights risks, yet they were rushed forward with no formal consultations and no clear assessment of their impacts on people and on EU finances. The European Commission must comply with the Ombudsperson’s recommendations without delay”.

Chloé Berthélémy, Senior Policy Advisor at EDRi, said “The Commission’s maladministration in the Europol reform confirms a concerning trend: political leadership overlooks fair, transparent and evidence-based processes while making laws, and people most affected by the laws – in this case, people on the move – end up facing the devastating consequences. The Ombudsperson’s assessment should be the last nail in the coffin for any legitimacy of Europol’s expanded powers.”

NOTES TO THE EDITORS:

• In addition to the migration file, the Ombudsperson also examined complaints concerning the Commission’s fast-tracking of proposals on corporate sustainability and due diligence and on the Common Agricultural Policy. In both cases, she found similar procedural failings – most notably the absence of impact assessments and inadequate justification for invoking urgency – which together point to a broader, systemic problem in the Commission’s application of its Better Regulation rules.
• More information on the human rights risks of the Facilitation Directive can be found in PICUM’s briefing How the new EU Facilitation Directive furthers the criminalisation of migrants and human rights defenders.
• Media requests can be addressed to PICUM’s Senior Communications Officer on gianluca.cesaro@picum.org