The final vote on the legislative resolution was postponed at the request of the rapporteur Claudio FAVA (PES, IT) to allow the addition of a declaration providing reassurance that this directive will not prevent further legislation on subcontractors.
In response to Mr Fava, the Czech Presidency of the Council said it would first have to consult the Member States before making such a declaration. Mr Fava requested that this declaration be added: "The European Parliament and the Council state that the rules on subcontracting agreed upon in Article 9 of this Directive shall be without prejudice to other provisions on this issue to be adopted in future legislative instruments."
The House will vote on the legislative resolution during the Brussels February plenary session (18 and 19 February 2009)
Criminalising the employer, not the migrant
Between 4.5 and 8 million illegal immigrants work in the construction, farming, hotel and other sectors in the EU. One of the factors encouraging illegal immigration into the EU is the possibility of finding work. This legislation aims to reduce that pull factor by targeting the employment of third-country nationals who are illegally staying in the EU.
The Commission’s draft legislation is supposed to complement other measures, such as the "return directive" and the “blue card” directive, the overall aim being to combat illegal immigration more firmly while encouraging legal immigration. The "sanctions directive" would introduce minimum penalties at European level against employers of illegal immigrants. Employers could be fined, forced to pay wages in arrears at legal levels or even banned for up to five years from bidding for public sector contracts or from receiving state aid – whether national or European.
Criminal law penalties in the most serious cases
The directive would also lay down criminal law penalties against employers for repeat offences, where a large number of people in an irregular situation are employed, where the working conditions are exploitative, where the employee is a victim of human trafficking and this is known to the employer, or if the employee is a minor.
Automatic recovery of unpaid wages
An employer who is found guilty must also refund any state aid received the previous year and pay a graduated fine according to the number of illegal immigrants employed. In addition, he must pay a sum equal to the amount of taxes and other levies he would have paid if the worker had been employed legally and, where applicable, the cost of returning the migrant.
The employment relationship will be assumed to have lasted at least three months unless the employer or worker supplies proof to the contrary. MEPs demanded that the procedures necessary for the employee to recover the unpaid wages must be automatic, without any need for the employee to take action.
MEPs successfully argued that Member States should establish lower financial penalties for people using clandestine immigrants as domestic staff, provided the working conditions are not exploitative.
Grievance procedure
Parliament also wants Member States to set up mechanisms to enable illegal immigrants to lodge complaints. Third parties designated by Member States, such as voluntary bodies or trade unions, should be allowed to report a guilty employer without running the risk of being subsequently taken to court for assisting someone to stay in the country illegally. Irregular immigrants will, if they cooperate with the legal action against their employer, be able to get a temporary residence permit.
Firms that use subcontractors to be liable
If the guilty employer is a subcontractor, the contracting firm must also be held liable, and even fully liable if it turns out that the contracting employer knew the subcontractor was acting illegally. A list of employers who have infringed the directive may be made public – another successful demand by MEPs.
Effective and sufficient inspections
The Member States are asked to conduct effective inspections sufficiently frequently to check on the employment of non-EU nationals in an irregular situation. They must also require employers to check that their non-EU employees have a valid residence permit and inform a national authority of any new recruitment of non-EU nationals.
UK not opting-in
The UK government supports the general purpose of the draft directive as part of the wider fight against illegal immigration. Nevertheless, it has a number of concerns and has not opted-in to this directive. The UK government believes there is no legal basis or Community competence for criminal sanctions in this directive, nor would we support measures which could create a pull factor for illegal immigrants (e.g: back payments, facilitation of complaints procedures and any associated delays in returning illegal migrants).
