22. 4. 78 Official Journal of the European Communities No C 97/9 
II 
(Preparatory Acts) 
COMMISSION 
Proposal for a Council Directive concerning the approximation of the legislation of the 
Member States in order to combat illegal migration and illegal employment 
(Submitted by the Commission to the Council on 5 April 1978) 
THE COUNCIL OF THE EUROPEAN COMMUNITIES, 
Having regard to the Treaty establishing the 
European Economic Community, and in particular 
Article 100 thereof, 
Having regard to the proposal from the Commission, 
Having regard to the opinion of the European 
Parliament, 
Having regard to the opinion of the Economic and 
Social Committee, 
Whereas, as stated in the preamble to the Treaty, the 
social advancement and constant improvement in the 
living and working conditions of the people of 
Europe constitutes one of the aims of the 
Community; whereas these social aims involve the 
full employment of the workers of the Member States 
under the best conditions; 
Whereas the illegal employment of non-Community 
labour on Community territory generally occurs 
under abusive conditions, such as discriminatory 
remuneration, misuse of social security laws, the 
ignoring of the provisions of labour laws on the 
protection of workers; whereas this is prejudicial to 
the employment of all workers; whereas it therefore 
constitutes an obstacle to the achievement of the 
social aims of the Community and, in particular, the 
improvement of living and working conditions which 
the Member States have recognized should be 
promoted as provided for in Article 117 of the 
Treaty; Whereas, moreover, in view of the growing 
interdependence and integration of national labour 
markets, measures taken by Member States 
individually against migration for the purpose of 
illegal employment, or the absence of such measures, 
inevitably impinge on the effectiveness of measures 
taken by the other Member States; whereas, in 
addition to measures within the sphere of competence 
of the Member States themselves, Community action 
is needed to combat the illegal employment of 
non-Community workers; 
Whereas, in its resolution of 9 February 1976 on an 
action programme for migrant workers and members 
of their families (*), the Council considers that 'it is 
important to strengthen cooperation between 
Member States in the campaign against illegal 
immigration of workers who are nationals of third 
countries and ensure that appropriate sanctions are 
laid down to suppress trafficking and abuses linked 
with illegal immigration and that the obligations of 
employers are fulfilled and the rights of workers 
relating to the work that they have carried out 
safeguarded without prejudice to the other 
consequences of the unlawful nature of their 
residence and employment'; 
Whereas, in the absence of any specific and direct 
reference to Community action in this sphere in the 
Treaty, the general provisions of the Treaty and the 
means established therein must be invoked, in this 
case the approximation of provisions laid down by 
law, regulation or administrative action in the 
Member States, 
(») OJ No C 34, 14. 2. 1976, p. 2. 
No C 97/10 Official Journal of the European Communities 22. 4. 78 
HAS ADOPTED THIS DIRECTIVE: 
Article 1 
1. For the purposes of this Directive, the following 
definitions shall apply: 
(a) 'illegal migration' shall mean entry into and 
residence in a Member State of a person who is 
not covered by the provisions of Article 48 of the 
Treaty and the legislation derived therefrom and 
who seeks or takes employment therein in 
violation of the relevant provisions laid down by 
law, regulation or administrative action; 
(b) 'illegal employment' shall mean the paid 
employment of a person referred to in 
subparagraph (a) above in violation of the 
provisions laid down by law, regulation or 
administrative action relating to the employment 
of foreign labour in each Member State; 
(c) 'illegal migrant' shall mean a person in a 
situation of illegal migration or illegal 
employment as defined in subparagraphs (a) and 
(b) above. 
2. This Directive is intended to approximate the 
legislation of the Member States: 
(a) concerning the prevention and suppression of 
illegal migration and illegal employment; 
(b) to mitigate the hardships suffered by illegal 
migrants by reason of their situation, except in 
the case of illegal workers whose bad faith has 
been recognized by the juridical authorities 
concerned. 
Article 2 
1. Member States shall adopt the necessary 
provisions to ensure that the persons referred to in 
Article 1 (1) (a) are duly and accurately informed of 
employment, living and working conditions and of 
the procedures laid down by national regulations 
governing the entry, residence and employment of 
foreign labour and the possible consequences of 
failure to observe such provisions. 
2. The Member States shall endeavour, when 
necessary, to obtain the collaboration of 
non-member States concerned for the purposes of 
circulating in those States information likely to be of 
help in preventing illegal migration and illegal 
employment in the territory of the Member States. 3. Member States shall take the necessary 
measures to ensure that the socio-economic 
categories concerned and public opinion in the 
Member States are aware of the need to combat 
illegal employment and put an end to the resulting 
exploitation. 
Article 3 
For the purposes of preventing and detecting illegal 
migration and illegal employment, Member States 
shall organize adequate control, especially of 
employers and persons or undertakings supplying 
manpower to third parties. 
Article 4 
Member States shall take the necessary measures to 
ensure that: 
(a) sanctions are applied to persons who organize, 
aid and abet or participate in illegal immigration 
and illegal employment within the meaning of 
Article 1 (1) of this Directive; 
(b) the sanctions applicable to the persons referred to 
in subparagraph (a) of this Article shall include 
the possibility of imprisonment in serious cases 
of violation of national legislation concerning 
entry, residence and employment. 
Article 5 
Member States shall take the necessary measures to 
ensure that in the case of deportation of an illegal 
migrant repatriation costs are borne: 
(a) by the employer(s) concerned; 
(b) in the absence of an employer, or in case of his 
(their) default, by any other persons known to be 
guilty of having organized, aided and abetted or 
participated in the act of illegal immigration or 
illegal employment. 
Article 6 
Member States shall take the necessary measures to 
ensure that migrants who have been sanctioned 
according to the provisions of Article 4 may appeal 
against such sentence. Where the sentence is of 
deportation, appeal shall involve a stay of execution. 
22. 4. 78 Official Journal of the European Communities No C 97/11 
Article 7 Article 8 
1. Member States shall take the necessary 
measures to: 
(a) ensure that employers of illegal migrants fulfil all 
the obligations arising from the present or 
previous employment of such workers as would 
be the case for legal employment. These 
obligations concern in particular: 
— remuneration, and where provision is made 
therefor in legislation or collective 
agreements, redundancy payments on expiry 
of a contract and annual leave to which the 
worker is entitled but has not taken, 
— social security contributions and taxes; 
(b) an illegal migrant who is found guilty of illegal 
employment, whether or not he is subject to 
deportation, shall fulfil all the obligations arising 
from employment as in the case of legal 
employment. 
2. Member States shall take measures to ensure 
that migrant workers who are subject to deportation 
shall receive treatment no less favourable than that 
accorded their own nationals as regards credit or 
reimbursement of social security contributions paid 
by such persons and their employers. 
3. Member States shall take the necessary 
measures to ensure that an illegal migrant, whether 
or not subject to deportation, shall be given every 
opportunity to assert his rights and those of his 
family before the proper authorities, have access to 
all possible supporting evidence and, where 
applicable, free legal aid. Member States shall collaborate closely with one 
another to achieve the aims of this Directive. The 
Commission shall assist in such collaboration. 
Article 9 
Member States shall take the necessary steps to 
secure the collaboration of organizations representing 
employers and workers in the adoption and 
execution of measures implementing this Directive. 
Article 10 
1. Member States shall institute the necessary 
provisions in laws, regulations and administrative 
acts to comply with this Directive within 24 months 
of the date of its notification and shall inform the 
Commission thereof without delay. 
2. Once notification of this Directive has been 
effected, Member States shall inform the 
Commission, in sufficient time to enable it to submit 
its comments, of all draft laws, regulations or 
administrative provisions they intend to adopt in the 
field covered by this Directive. 
Article 11 
Within two years of the expiry of the period of 24 
months provided for in Article 10 (1), Member States 
shall forward to the Commission all relevant 
information to enable it to present to the Council, to 
the Parliament and to the Economic and Social 
Committee, a report on the application of this 
Directive. 
Article 12 
This Directive is addressed to the Member States.