Brussels, 09/01/2009 (Agence Europe) - European Union permanent representatives were able, on 23 December, to reach qualified majority on the draft “sanctions” directive, which provides for harmonisation of certain obligations imposed on employers and sanctions taken against them to combat illegal work by third country nationals. If the European Parliament adopts the text in codecision in the exact form of the compromise negotiated in Council, the proposal will then be adopted at first reading. The European Parliament's committee on civil liberties (LIBE) will vote, on 21 January, on the report presented by Claudio Fava (PES, Italy). The plenary vote is due during February.
The text of the compromise indicates that employers will first of all have to verify that a potential recruit is in a legal situation, with a valid residence permit or equivalent authorisation, and secondly that the relevant national authorities are informed. Failing this, they will be liable to fines including the cost of return of third country nationals found to be in an illegal situation, and the payment of any outstanding remunerations, taxes or social security contributions. Other sanctions may also be imposed upon them, for example, exclusion from entitlement to public subsidies and a ban on taking part in public contracts for a period of up to five years, as well as the temporary or definitive closure of any establishments that have been used for committing the offence, or the temporary or definitive withdrawal of the license allowing the activity in question. Given that administrative fines or penalties do not always prove sufficiently dissuasive for some employers, member states should use penal sanctions for the most serious intentional offences such as repeated infringement, simultaneous use of a significant number of illegal workers, employment of minors, particularly exploitative working conditions, or the fact that the employer knows the worker is a victim of people trafficking. These rules apply to all employers, whether professionals or individuals. In cases where subcontractors are used (frequent in the building trade in particular), the contractor and all companies in the subcontracting chain may, either on their own or together, be liable to financial penalties if a subcontractor at the end of the chain employs illegal third country nationals. Member states shall ensure that legal persons can be held liable for the offence. In order to ensure application of the directive, member states shall be under an obligation to make a minimum number of inspections in companies established on their territory depending on a sectoral risk analysis prepared by the national authorities. In sectors affected by illegal employment, member states should communicate by 1 July of each year the results of these inspections to the European Commission. Member states shall ensure that there are effective mechanisms through which third country nationals in illegal employment can lodge complaints against their employers, directly or through third parties designated by member states such as trade unions or other associations. (B.C./transl.jl)