Nieuwsbericht | 21-05-2007
Brussels, 16 May 2007
Sanctions against employers of illegally staying third-country nationals
Employment: a key pull factor for illegal immigration One of the factors encouraging illegal immigration into the EU is the possibility of finding work. The Commission has today adopted a proposal for a Directive that aims to reduce that pull factor by targeting the employment of third-country nationals who are illegally staying in the EU. Building on existing measures in the Member States, the aim is to ensure that all Member States introduce similar penalties for employers of such third-country nationals and enforce them effectively.
Part of a comprehensive EU migration policy This proposal is part of the EU's comprehensive migration policy. This comprehensive approach involves all stages of migration, aims to harness the benefits of legal migration and covers policies to fight illegal migration and trafficking in human beings. In addition to the two Communications on the external dimensions of migration being adopted alongside this proposal, the Commission plans to present in September 2007 two proposals for directives on legal migration and a report on integration.
Key elements of the proposal
The proposal provides for sanctions on employers, not workers. It covers not only natural or legal persons employing others in the course of business activities, but also private individuals when they act as employers.
As a preventive measure, employers would be required before recruiting a third-country national to check that they have a residence permit or another authorisation for stay. Employers who are a business would further be obliged to notify the competent national authorities. Employers who can show that they had carried out those obligations would not be liable to sanctions.
Employers of illegally staying third-country nationals who have not carried out the pre-recruitment check would be liable to sanctions consisting of:
- fines (including costs of returning illegally staying third-country nationals),
- repayment of outstanding wages, taxes and social security contributions, and
- if appropriate, other administrative measures, including loss of subsidies (including EU funding) for up to five years and disqualification from public contracts for up to five years.
In view of the prevalence of subcontracting in certain affected sectors such as construction, all the undertakings in a chain of subcontracting would be held jointly and severally liable to pay financial sanctions against a subcontractor at the end of the chain who employs illegally staying third-country nationals.
Fines and other administrative measures may not be enough to deter certain employers. The Commission therefore proposes criminal penalties in serious cases:
Member States would be required to set up effective complaint mechanisms by which relevant third-country nationals could lodge complaints directly or through designated third parties such as trade unions or other associations. In addition Member States should grant residence permits of limited duration, linked to the length of the relevant national proceedings, to third-country nationals who have been subjected to particularly exploitative working conditions and who cooperate in criminal proceedings against the employer.
Enforcement will be key. That is why it is proposed to require Member States to conduct a minimum number of inspections of companies established in each Member State.
Companies that post employees who are third-country nationals to another Member State in the context of the provision of services will be subject to control by the Member State in which the company is established and not the Member State in which the services are provided.
The value of a harmonised EU-wide approach At least 26 of the 27 EU Member States already have employer sanctions and preventive measures in place, and the legislation of 19 Member States provides for criminal sanctions. However, not only does the content of these measures vary greatly, but also the combinations of measures implemented. The effectiveness of measures currently in place are highly dependent on efforts and resources put in place for enforcement.
The proposed Directive would reduce the current differences between national preventive measures, sanctions and enforcement. This will bring added value by:
- improving enforcement,
- creating a more level playing field for businesses,
- sending a clearer message to employers and third countries of EU-wide action against illegal employment.
Impact Assessment The proposal is accompanied by an impact assessment which will be published at the following address: http://ec.europa.eu/governance/impact/cia_2007_en.htm
To find out more about Vice President Frattini's work please visit his website: http://www.ec.europa.eu/commission_barroso/frattini/index_en.htm