No C 269/38 Official  Journal  of the European  Communities 13. 11. 78 
Opinion  on the proposal  for a Council  Directive  concerning  the approximation  of the 
legislation  of the Member  States,  in order  to combat  illegal  migration  and illegal  employment 
The text  referred  to the Committee  has been  published  in Official  Journal  of the European 
Communities  No  C 97 of 22 April  1978,  page  9. 
A. LEGAL  BASIS  FOR  THE  OPINION 
On 18 April  1978,  the Council  referred  the abovementioned  proposal  to the Economic  and 
Social  Committee  in accordance  with  Article  100  and  198  of the Treaty  establishing  the 
European  Economic  Community. 
B. OPINION  OF THE  ECONOMIC  AND  SOCIAL  COMMITTEE 
The Economic  and Social  Committee  prepared  its opinion  on the above  matter  at its 159th 
plenary  session,  held  in Brussels  on 31 May  and  1 June  1978. 
The full  text  of the opinion  is as follows: 
THE  ECONOMIC  AND  SOCIAL  COMMITTEE, 
Having  regard  to the Treaty  establishing  the European 
Economic  Community,  and in particular  Articles  100 and 
198 thereof, 
Having  regard  to the request  made  by the Council  of the 
European  Communities  on 20 April  1978  for  the 
Committee's  opinion, 
Having  regard  to the decision  taken  by the Committee's 
Bureau  on 26 April  1978,  instructing  the Section  for 
Social  Question  to prepare  an opinion  on the matter, 
Having  regard  to the Committee's  opinion  on the initial 
Directive  of 23 February  1977  (*), 
Having  regard  to the opinion  given  by the Section  for 
Social  Questions  dated  18 May  1978, 
Having  regard  to the  oral  report  presented  by the 
rapporteur,  Mr Kirschen, 
Having  regard  to the discussions  at the Committee's 
159th  plenary  session  held  on 31 May  and  1 June  1978 
(meeting  of 31 May  1978), 
Whereas  the continuing  economic  crisis  has highlighted 
the serious  situation  of illegal  migrant  workers; 
Whereas  efforts  must  be directed  first  and  foremost  to 
ensuring  that  illegal  migrant  workers  receive  welfare 
protection  consistent  with  the  objectives  of the 
Community; 
Whereas  it is necessary  to have  equitable  rules  governing 
all foreign  workers  - especially  as regards  social  security, 
legal  aid and  economic  conditions  of life, 
H OJ  No C 77, 30. 3. 1977,  p. 9. HAS  ADOPTED  THE  FOLLOWING  OPINION 
unanimously: 
1. In  its opinion  of 23 February  1977  on the initial 
proposal  for a Council  Directive  on illegal  migrations,  the 
Committee  congratulated  the Commission  on its choice  of 
legal  instrument  (a Directive)  and legal  basis  (Article  100 
of the EEC  Treaty),  but regretted  that  no concrete  steps 
had been  taken  by the Community  to improve  the critical 
situation  of illegal  migrant  workers. 
2. The  Commission  has  responded  to this  criticism, 
because  it has amended  the draft  Directive  to include  the 
following: 
— the  strengthening  of cooperation  between  the 
Member  States  in the  campaign  against  illegal 
migration  and  clandestine  employment, 
— the  imposition  of appropriate  penalties, 
— the  fulfilment  of employers'  obligations, 
— the  safeguarding  of workers'  rights  ensuing  from 
work  carried  out. 
These  various  recommendations  are also  to be found  in 
the Council  resolution  of 9 February  1976  on an Action 
Programme  for Migrant  Workers. 
3. The  Commission  has taken  into  consideration  the 
views  put forward  by the Committee  and  put the accent 
more  on prevention,  especially  as regards  information 
services  for migrants. 
4. As  far as punitive  sanctions  are concerned,  the 
Commission  considers  that  measures  to penalize  illegal 
employment  should  take  into  account  the social  and 
human  consequences  they  may  have  for the illegal  migrant 
worker. 
13. 11. 78 Official  Journal  of the European  Communities No C 269/39 
5. The  most  notable  advance,  however,  has been  made 
in respect  of protection  - a field  which  had  scarcely  even 
been  touched  upon  in the initial  proposal.  In its opinion 
on this  initial  proposal  the  Committee  had  in fact 
forcefully  made  the point  that  illegal  migrant  workers 
were  very  frequently  the  victims  of unscrupulous 
individuals,  and  in many  cases  were  convinced  that  they 
had complied  with  the laws  of the host  country. 
6. Specific  comments 
6.1. The  Commission  has  noted  in its explanatory 
memorandum  (a) the importance  of providing  potential 
migrant  workers  with  information  in third  countries  and 
(b) the vital  need  for cooperation  between  authorities  in 
the labour-importing  and  labour-exporting  countries. 
This  is what  the Committee  had wanted  the Commission 
to do. 
6.2. The  Committee  is nevertheless  convinced  that  an 
'agreement'  should  be concluded  between  the  nine 
Member  States,  under  the aegis  of the Council,  to try an 
experiment  in 'Community  criminal  law'  in this  area. 
Such  a move  would  be of great  importance  from  a political 
point  of view  since  the alignment  of various  aspects  of 
criminal  law  in the  Community  would  be a notable 
landmark  on the road  to European  unity. 
6.3. As  far as Article  1 is concerned,  the Committee 
reiterates  the concern  expressed  in its original  opinion 
about  the plight  and  specific  problems  of refugees.  The 
Committee  would  once  more  like to stress  the importance 
of compliance  with  the various  international  regulations 
on asylum  for  refugees;  and  under  no circumstances 
should  people  who  have  left  their  country  of origin  for 
political  reasons  be regarded  as illegal  migrants. 
In its original  opinion  the Committee  also  urged  that 
Article  1 of the proposed  Directive  should  make  explicit 
Done  at Brussels,  31 May  1978. mention  of the fact  that illegal  workers  'in transit'  through 
a Member  State's  territory  should  also  be covered.  The 
Committee  regrets  that  this suggestion  has not been  taken 
up. 
6.4. The  Committee  is gratified  to see that  Article  2 
now contains  a paragraph  3 on cooperation  with  the 
employers  and unions  concerned  in relation  to the control 
of labour  flows.  This  is what  the  Committee  had 
requested  in its original  opinion. 
6.5. The  Committee  regrets  that  Article  4 of the new 
proposal  does  not  expressly  state  that  traffickers  of 
migrant  labour  must  be prosecuted  in any Member  State 
in which  they  operate.  The  present  unacceptable 
situation  will  be  put  right  only  if trafficking  is 
systematically  stamped  out. 
6.6. The  Committee  is pleased  that  the Commission 
has wholly  taken  up in Article  5. its suggestion  that  a 
worker  and  his  family  must  not  bear  the  cost  of 
deportation  if they  are expelled  from  a country. 
6.7. Judging  from  the content  of Articles  6 and  7, the 
Commission  has also  taken  up the Committee's  request 
that legal  aid should  be free,  that  all possibilities  of appeal 
should  be allowed,  and  that  deportation  orders  would 
automatically  be suspended  if appeals  were  lodged. 
The Committee  would  also  point  out that  in its opinion  of 
23 February  1977  (i) on the  initial  proposal  of the 
Commission  it stated  that  'as regards  the more  general 
issue  of appeals  against  decisions  imposing  penalties  for 
alleged  illegal  employment,  the appeal  proceedings  must 
take into  consideration  social  and  humanitarian  factors, 
and the possible  legal  repercussions  the worker  may  have 
to suffer  when  he returns  to his country  of origin'. 
i1) OJ  No C 77, 30. 3. 1977,  paragraph  2.5.2. 
The Chairman 
of the Economic  and  Social  Committee 
Basil  de FERRANTI