Opinion of the European Economic and Social Committee on the Proposal for a Directive of the European Parliament and of the Council providing for sanctions against employers of illegally staying third-country nationals (Own-initiative opinion)
Date: 2008-03-12
Institutions: European Economic and Social Committee
Subjects: employer, foreign national, illegal migration, labour market, migration control, penalty

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5.6
There are two ways in which the damage may be
corrected: either the operator may take the necessary restoration
measures, in which case they will be financed directly by the
operator, or the competent authority may have the measures
implemented by a third party and recover the costs from the
perpetrator of
two
approaches is also possible in the interests of greater effective-
ness.

the damage. A combination of

the

5.7 When there is more than one party liable for
the
damage, the Directive leaves to the Member States to decide
how to apportion the costs, the two main options being either

Brussels, 13 March 2008.

joint and several
liability or apportioned liability. While this
dual system is intended to facilitate adaptation to the legal
systems of the Member States, it should nonetheless be pointed
out that determining the proportion of environmental damage
is extremely difficult, which makes this system difficult to imple-
ment in practice.

Lastly, it should be stressed that the requirement of finan-
5.8
cial security for operators subject to water, soil and biodiversity
legislation helps to make repair more effective, whilst avoiding
the negative consequences of insolvency.

The President

of the European Economic and Social Committee

Dimitris DIMITRIADIS

Opinion of the European Economic and Social Committee on the Proposal for a Directive of the
European Parliament and of the Council providing for sanctions against employers of illegally
staying third-country nationals (Own-initiative opinion)

(2008/C 204/16)

On 27 September 2007 the European Economic and Social Committee, under Rule 29(2) of its Rules of
Procedure decided to draft an own-initiative opinion on the

Proposal for a Directive of the European Parliament and of the Council providing for sanctions against employers of
illegally staying third-country nationals

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the
Committee's work on the subject, adopted its opinion on 21 February 2008. The rapporteur was
Ms Roksandić, the co-rapporteur, Mr Almeida Freire.

At its 443rd plenary session, held on 12 and 13 March 2008 (meeting of 12 March), the European
Economic and Social Committee adopted the following opinion by 118 votes to 56 with seven abstentions.

1. Conclusions and recommendations

implementing the Directive proposed by the European Commis-
sion on ‘Sanctions against employers of illegally staying third-
country nationals’.

1.1
The EESC expresses regret at the fact that the proposed
illegally staying
directive on ‘Sanctions against employers of
third-country nationals’ was not referred to the EESC for an
opinion, although it is stated in the introduction to the directive
that this is so. The proposed directive does not ordinarily come
under one of the areas for which consultation of the Committee
is mandatory; however the Committee believes that it is neces-
sary to consult representatives of civil society organisations in
such instances and related cases, because they concern the regu-
lation of key areas which not only fall within the domain of
freedom, security and justice, but also have an impact on
employment and social policy.

The EESC has decided on its own initiative to draw up
1.2
an opinion on this proposal for a directive. The Committee
believes that organised civil society, and especially the social
partners, has a most important role to play in shaping and

In its opinions to date (1), the Committee has highlighted
1.3
the need for simultaneous action to be taken to create opportu-
nities for legal immigration and to deal with the causes of ‘irre-
gular’ immigration.

(1) See the EESC opinion of 15.12.2004 on ‘Communication from the
Commission to the Council, the European Parliament, the European
Economic and Social Committee and the Committee of the Regions
— Study on the links between legal and illegal migration’, rapporteur
Mr Pariza Castaños (OJ C 157, 28.6.2005).
See the EESC opinion of 9.6.2005 on ‘Green paper on an EU
approach to managing economic migration’, rapporteur Mr Pariza
Castaños (OJ C 286, 17.11.2005).
See the EESC opinion of 15.12.2005 on ‘Communication from the
Commission to the Council and the European Parliament: The Hague
Programme: Ten priorities for the next five years — The Partnership for
European renewal in the field of Freedom, Security and Justice’, rappor-
teur Mr. Pariza Castaños (OJ C 65, 17.3.2006).

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respect

for human rights. However,

The Committee endorses the proposal, because in prac-
1.4
the
tice it promotes
Committee has some doubts about
the proposed directive's
content, the time frame in which the proposal has been made,
and the order in which the legislative proposals have been put
forward. The employment of
immigrants is an issue closely
connected to the operation of the labour market and illegal
employment in general, and therefore cannot be prevented by
punishing employers alone.

1.5
In view of the connection between two different fields of
the European Commission's work, which have a bearing on
immigration at EU level, namely the area of freedom, security
and justice on the one hand, and employment and social policy
on the other, the Committee would highlight the importance of
harmonising existing European Union legislation with the legis-
lation on legal and illegal immigration which is currently in the
pipeline. The Committee believes that the problem of illegal
immigration cannot be solved simply by closing borders and
applying coercive measures.

Legal migration and immigration within and into the EU
1.6
urgently need to be regulated, as do efforts to combat unde-
clared work. The Committee recommends that the Commission
carefully examine the possibility of further activities to combat
undeclared work.

International experience shows that

the fight against
1.7
undeclared work is at
its most effective when based on a
number of parallel and concurrent courses of action. Accord-
ingly, in addition to allowing the legal migration of workers in
those sectors of
the economy with the highest numbers of
illegal immigrant workers, it is necessary to organise informa-
tion and educational campaigns which highlight the impact of
undeclared work. Furthermore,
there should be a policy of
the
uniform sanctions against employers — irrespective of
nationality of the undeclared workers. The proposed directive
should, therefore, be part of a broader package of measures to
combat undeclared work — including among illegal immigrants
— and not represent a fundamental policy instrument, as
proposed by the Commission.

1.8
The Committee would stress the importance of effective
implementation of the directive in Member States, whose task
will not be an easy one because i) the monitoring bodies do not
have enough qualified staff, ii) there are difficulties in dividing
up responsibilities between the bodies concerned and iii) there
are a large number of companies for which monitoring is envi-
saged.

1.9
The Committee believes that those proposals in the direc-
tive which would lead to benefits in practice should be consoli-
dated. The changes and additions proposed by the Committee
are listed under the heading ‘Specific comments’, and are aimed
at securing a more appropriate division of responsibility, as well
as improvements in the situation of undocumented workers. If
these proposals were to be ignored, such workers might be
subjected to even more exploitation.

2. Introduction

2005 (2) and on the Policy priorities in the fight against illegal
immigration of third-country nationals (July 2006) (3). In these
communications,
the Commission proposed to reduce the
factors encouraging illegal immigration into the EU, the most
important being the possibility of finding work. Member States
would introduce similar penalties for employers of third country
them effectively. The European
nationals
Council endorsed the Commission proposal (4)
in December
2006.

and implement

The proposal for a directive was followed up in 2007 by

2.2
the:

— Commission Communication on circular migration and
mobility partnerships between the European Union and
third countries (5);

— Proposal for a Council Directive on the conditions of entry
and residence of third-country nationals for the purposes of
highly qualified employment (6);

— Proposal

for a Council Directive on a single application
procedure for a single permit for third-country nationals to
reside and work in the territory of a Member State and on a
common set of rights for
third-country workers legally
residing in a Member State (7); and the

— Commission Communication on stepping up the fight

against undeclared work (8).

3. Summary of the proposed directive

3.1
The aim of the directive is to make the work offered by
employers less attractive to migrants who do not have the
proper permits (reduce the ‘pull factor’). Building on existing
measures in the Member States, the directive would ensure that
i) all Member States introduce similar penalties for employers of
third-country nationals who do not have the proper residence
permits and ii) these penalties are enforced effectively.

3.2
The Directive is concerned with immigration policy, not
with labour or social policy. Its legal basis is Article 63(3)(b) of
the EC Treaty, and it is designed to reduce illegal immigration
into the EU.

The proposal does not concern legal

3.3
immigration and
employment which conflicts with the residence status awarded
(as in the case of students or tourists) or undeclared work by
third-country nationals.

(2) COM(2005) 669 final.
(3) COM(2006) 402 final.
(4) Communication from the Commission on Policy priorities in the fight
against illegal immigration of third-country nationals — COM(2006)
402 final.

2.1
The proposed directive is one of several legislative propo-
sals put forward by the European Commission in line with its
communications on the Policy plan on legal migration of

(5) COM(2007) 248 final.
(6) COM(2007) 637 final.
(7) COM(2007) 638 final.
(8) COM(2007) 628 final.

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4. Content of the proposal

4.1
The directive prohibits the employment of third-country
nationals staying in the EU illegally. Infringements would be
sanctioned by penalties (which may be administrative in nature)
consisting of fines and, in the case of businesses, possible other
measures, such as exclusion from and recovery of public subsi-
dies and exclusion from participation in public procurement
contracts. Criminal penalties may be imposed in serious cases.

Article 2 sets out the definition of employment for the
4.2
purposes of the directive. Employers are defined as natural and
legal persons, for whom a third-country national is employed to
do paid work.

receive any back pay recovered, including in cases where they
have returned to their country or have been repatriated. Where
a criminal offence is involved, third country nationals are not to
be repatriated until they receive all the back pay due.

4.8 Member States must ensure that every year at least 10 %
of companies established on their territory are subject to inspec-
tions to monitor the employment of illegally resident third-
country nationals. The selection of companies to be inspected is
to be based on a risk assessment which takes into account
factors such as the sector involved and any past record of infrin-
gement.

4.9 Member States must transpose the directive within two
years of its publication in the Official Journal of the EU.

4.3
Employers are obliged i) to check, before employing a
third-country national, whether that person has a legal residence
permit valid for at least the duration of employment and ii) to
inspection.
keep a copy of
Employers are then deemed to have fulfilled their obligation,
unless the document presented is manifestly incorrect. Only
businesses and legal persons are obliged to notify the competent
authorities of both the start and the termination of employment
of third-country nationals within one week at the latest.

that document

for possible

4.4
Employers who do not comply with the ban on
third-country nationals will be
employing illegally resident
punished by effective, proportionate and dissuasive sanctions.
Employers are penalised for each infringement with fines and an
obligation to cover repatriation costs (the employer must pay
such third-country nationals any outstanding remuneration for
their work, as well as any outstanding taxes and social security
contributions). In line with Article 10, under certain circum-
stances an infringement may constitute a criminal offence when
committed intentionally.

4.5 Member States are also to introduce financial penalties
(fines and the costs of repatriating third-country nationals) as
well as other sanctions (temporary exclusions from entitlement
to public funds and from public procurement procedures,
recovery of EU funding already awarded, temporary or long-
term closure of establishments). The liability of legal persons
and possible sanctions against them are also stipulated. Existing
Member State provisions on the liability of legal persons may be
maintained.

4.6 Where the employer is a subcontractor, Member States
are to ensure that both the main contractor and the subcon-
tractor are held jointly liable for the payment of all financial
sanctions and back payments due.

5. General comments

5.1
The proposal for a directive affects two different areas of
the Commission's work, which in the implementation of immi-
freedom,
gration policy are closely intertwined:
security and justice, and employment and social policy. The
Committee is not against the idea, set out in the proposal, to
put pressure on both dishonest employers and illegal organisa-
tions trading in people who have no papers. The Committee
endorses the proposal, because it promotes respect for human
rights.

the area of

The Committee feels that it would be necessary for the
5.2
European institutions to take into account EU institutions' deci-
sion-making and to:

— ensure that the legislation on legal and illegal immigration
which is currently in the pipeline ties in with existing EU
legislation;

— clarify the implications and repercussions, both for people
migrating within the EU and those immigrating into the EU
from third countries.

It is necessary to be quite clear about these delicate issues,
because they concern not only security, justice and competition
policy, but also human rights, and this in turn affects the
market, four freedoms, and workforce, both from a collective
and individual point of view, and also because immigration is
necessary for the EU. In its opinions to date, the Committee has
highlighted the need for simultaneous action to be taken to
create opportunities for legal immigration and to deal with the
causes of ‘irregular’ immigration.

4.7
The employer must reimburse all outstanding contribu-
tions and taxes to the third-country national concerned. In addi-
tion, Member States must put mechanisms in place to ensure
that the recovery procedures are triggered automatically, without
the third-country national concerned having to submit a claim.
A work relationship is presumed to last at least 6 months,
unless the employer can prove differently. Member States must
ensure that such illegally employed third country nationals

5.3
Legal migration and immigration within and into the EU
urgently needs to be regulated. Restrictions on migration in
Member States have caused a number of problems, prevented
the free movement of workers between certain Member States,
and led to some third-country nationals, as well as EU citizens,
being employed in breach of regulations and exploited by their
employers. Steps to combat undeclared work in the EU and in
individual Member States should deal with everyone employed

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in this way on the same basis, irrespective of whether they are
EU citizens or third country nationals. The Committee therefore
urges the Commission to closely examine the possibility of
extending the legal basis of the proposed directive to allow
measures also to be taken against illegal work by any person
who does not have the necessary permits or documents.

The Committee believes that the ‘pull factor’ for migrants
5.4
referred to in the directive, which the latter is aiming to lessen,
is not the possibility of irregular work itself, but rather the
possibility of employment in another country. That is why steps
to simplify the procedures for obtaining a single residence and
work permit will without a doubt help reduce the pull factor.
However, Member States themselves should also contribute to
simplifying procedures.

Employers stress the need to fight illegal work and unfair
5.5
competition, because those employers who employ workers
illegally are creating illegal and unfair competition for other,
honest employers.

5.6
Although implementation of the directive is the responsi-
bility of the Member States, the Commission should be made
aware that this will not be an easy task, because i) there are not
enough administrative monitoring bodies, ii) there are difficul-
ties in dividing up responsibilities between the individual bodies
concerned and iii) there are a large number of companies to be
monitored. The strength of the directive should be in its actual
implementation.

5.7
European institutions should use the same terms as those
used by international and regional organisations and in interna-
tional
law, which as a consequence are internationally recog-
nised, such as ‘irregular’ or ‘undocumented migrant worker’ and
not ‘illegal workers’ or ‘illegal
immigration’. The term ‘illegal
immigrant’ has very negative connotations. The proposed direc-
tive could help exacerbate such notions; it could give rise to
increased discrimination and xenophobia towards all migrant
workers, who might be subjected to inspections on the basis of
their appearance alone.

Notwithstanding any doubts

5.8
regarding the proposed
directive, the Committee believes that the proposals in the direc-
tive which could lead to benefits in practice should be consoli-
dated. These have been listed under
the heading ‘Specific
comments’.

6. Specific comments

6.1
Article 1 — This article should offer Member States
which have already taken steps to regulate irregular immigration
the possibility of maintaining national measures that are more
favourable to workers.

Article 2 — the definitions should be modified as

6.2
follows:

— 2(b):

‘employment’ means exercise of activities which are
in circumstances of
the direction of

remunerated or
economic dependence for and under
another person;

performed

— temporary employment agencies should be added to the
definition of ‘employer’ 2(e) and ‘subcontractor’ 2(f), as the
current definition is unclear. Many workers from third coun-
tries are employed by go-betweens, which includes agencies.

6.3
Article 4(1)(c) — the employer should retain a copy of
residence permits for longer than the period of employment
itself, given that in some sectors employment is generally short
term and the employer often changes.

6.4

Article 5

— In cases where employers have i) fulfilled their obligations in
respect of
illegal employment and ii) checked residence
permits and retained copies as required, and it subsequently
transpires that a third-country national does not have a valid
residence permit after all, the employers still have a duty to
pay any outstanding remuneration and meet
the other
commitments set out in Article 7 of the directive. For this
reason, the following should be added to the end of the
article: ‘This does not affect their duty to pay all outstanding
remuneration and fulfil the obligations set out under Article
7’.

— A provision should be added stipulating that employers
must respect employment procedures laid down by Member
States. It is conceivable that employers might only check
residence permits and ignore the work permits that are a
requirement
in many Member States. Thus undeclared
employment of third country nationals could well grow, in
spite of the fact that employers are complying with the
directive's provisions.

6.5

Article 6

— In the sanctions listed under 2(a) it should be stipulated that
the financial penalties should high enough to cover any gain
made by the employer in relation to each illegally employed
third-country national. Thus the financial penalty would add
up to the amount stipulated for one illegally employed
person, and would rise in line with the number of illegally
employed third country nationals. There is a clear difference
between the gains of private employers who employ
workers illegally as home helps or on farms, and those
employers who illegally employ three, four or more workers
in activities specifically geared to making a profit.

— Provision should be made for

increasing the financial
penalty for employers who continue to employ third
country nationals illegally or who reoffend. This penalty
should be substantially increased each time such illegal
employment is repeated or continued, in order to act as a
deterrent.

— It would be unreasonable to expect employers to cover the
costs of returning each illegally employed third-country
national, as well as the financial penalties. This,
in effect,
would mean shifting the responsibility of individual coun-
tries'
to employers. Employers
should only have to pay these costs where a criminal
offence has been committed, in line with Article 10.

immigration authorities

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6.6

Article 7

— It should also be stipulated that the obligation to pay applies
from the day that the claim for payment is submitted, and
not from the date the claim takes legal effect.

— The rights of workers under
should continue to apply,
they have a residence or work permit.

the employment contract
irrespective of whether or not

— Difficulties could be faced in practice in the payment of
outstanding wages to a worker who has already returned
home; this should be taken into account. Moreover,
it is
necessary to ensure that wages are paid to the right person.

— In addition, it should be made clear that employers must
calculate any outstanding remuneration in accordance with
the laws, regulations, administrative decisions and/or collec-
tive agreements that normally apply to such employment.

Article 8 refers to other measures to be adopted by

6.7
Member States.

— It would be useful to include a compulsory list of such

measures.

— The measure

concerning the
listed under point d),
temporary or permanent closure of establishments that have
been used to commit the infringement, seems unreasonable,
especially since it could also affect legally employed workers.
When implementing this measure, workers employed at the
establishments concerned, and their representatives, should
be consulted.

6.8
Article 9 defines the responsibility of the main contrac-
tors and any intermediate subcontractors for paying sanctions
and back payments. It would be useful here to clarify under
which circumstances this does and does not apply. In some
sectors with long chains of subcontractors, such as the car
industry,
it would prove difficult to hold manufacturers and
subcontractors who produce various parts in different locations
and countries jointly liable. The Committee believes that main
contractors
precautionary
taking
measures, be able to ensure that they are not held liable in this
way.

reasonable

should,

by

6.9

Article 10

— Under this article an infringement constitutes a criminal
offence (in line with Article 3) when committed ‘intention-
ally’. However, since this is difficult to prove, a better defini-

Brussels, 12 March 2008.

tion of criminal offence would be to show that the employer
‘knew’ or ‘could have known’ about the criminal offence.

— With regard to the infringement set out under 1 (a), every
repeat infringement of Article 3 should be deemed to be a
criminal offence.

— In the case of an infringement deemed to be a deliberate
criminal offence, as described in paragraph 1(a), it is impor-
tant to take into account the possibility that legal proceed-
ings will be time-consuming. There is the risk that the provi-
sion will not be applied at all if Member States decide that
determining whether an infringement has occurred should
be subject to a decision by a court or national authority
within a period of two years. Because these processes can be
so time-consuming, and because all legal remedies would be
invoked to lodge an appeal, the provision may not be put
into practice at all.

— In implementing this article in the Member States, a clear
division of competences needs to be stipulated between the
administrative bodies that impose sanctions, and individual
competent courts, in order to avoid potential conflicts over
competences.

6.10

Article 14

— Member States should be required to provide effective
mechanisms that ensure procedures can be carried out
quickly and without major costs.

— Likewise, Member States should guarantee that sanctioning
bodies will provide information on the launch of procedures
to the representatives concerned without delay.

— In paragraph 3, it would be useful to grant special status not
only to third-country nationals who are or have been
subjected to exploitative working conditions and are coop-
erating in criminal proceedings against the employer, but
also to witnesses.

6.11

Article 15

This provision, stipulating that Member States ensure that at
least 10 % of companies are inspected every year,
is to be
welcomed. However, the effectiveness of the proposed directive
will depend on the actual implementation of this provision. In
most Member States, extra staff and financial resources will be
necessary to carry it out. Were this not to be provided, such
additional obligations would undoubtedly give rise to unequal
treatment of those concerned.

The President

of the European Economic and Social Committee

Dimitris DIMITRIADIS

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APPENDIX

to the opinion of the European Economic and Social Committee

The following amendments, which received at least a quarter of the votes cast, were rejected in the plenary session debate
(Rule 54(3) of the Rules of Procedure):

Point 1.7

Amend as follows:

‘International experience shows that the fight against undeclared work is at its most effective when based on a
number of parallel and concurrent courses of action. Accordingly, in addition to allowing the legal migration of
workers in those sectors of the economy with the highest numbers of illegal immigrant workers it is necessary to
organise information and educational campaigns which highlight the impact of undeclared work. Furthermore, there
should be a policy of uniform sanctions against employers — irrespective of the nationality of the undeclared
workers. The proposed directive should, therefore, be part of a broader package ofcoordinated with measures to
combat undeclared work — including among illegal immigrants — and not represent a fundamental policy instru-
ment, as proposed by the Commission.’

Outcome of the vote

For: 64 Against: 101 Abstentions: 9

Point 5.3

Amend as follows:

‘Legal migration and immigration within the and into the EU urgently needs to be regulated. Restrictions on migra-
tion in Member States have caused a number of problems, prevented the free movement of workers between certain
Member States, and led to some third-country nationals, as well as EU citizens, being employed in breach of regula-
tions and exploited by their employers. Steps to combat undeclared work in the EU and in individual Member States
should deal with everyone employed in this way on the same basis, irrespective of whether they are EU citizens or
third country nationals. The Committee therefore urges the Commission to closely examine the possibility of
extending the legal basis of the proposed directive to allow measures also to be taken against illegal work by any
person who does not have the necessary permits or documentsare now on the agenda of the Commission and of
social partners and measures how to combat this negative phenomena are being discussed. The Committee recom-
mends that the measures to eliminate the illegal migration and undeclared work are closely coordinated.’

Outcome of the vote

For: 56 Against: 102 Abstentions: 10

Point 6.6

Add as follows:

‘Article 7

— It should also be stipulated that the obligation to pay applies from the day that the claim for payment is

submitted, and not from the date the claim takes legal effect.

— The rights of workers under the employment contract should continue to apply, irrespective of whether or not

they have a residence or work permit.

— Difficulties could be faced in practice in the payment of outstanding wages to a worker who has already returned
home; this should be taken into account. Moreover, it is necessary to ensure that wages are paid to the right
person.

— In addition, it should be made clear that employers must calculate any outstanding remuneration in accordance
with the laws, regulations, administrative decisions and/or collective agreements that normally apply to such
employment.

— In most Member States EU workers are required to lodge a complaint with the relevant bodies to secure
outstanding payment. The stipulation in Article 7(2)(a), that there is no need for the illegally employed third
country nationals to introduce a claim in order to trigger the necessary procedures to settle outstanding remu-
neration, would bring unjustified distinction between those third country nationals and other EU or legally
employed third country nationals.

— However, the Committee accepts that the Member States may provide illegally staying third-country nationals
with all the assistance they need to reclaim any outstanding remuneration, and that the article should contain a
guarantee to this effect.

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— The Committee believes that the presumption of a work relationship duration of (in this case) six months, as set
out in Article 7(2)(b), may have the effect of stimulating irregular immigration into the EU and introduces unjusti-
fied distinction,
insofar as it puts an irregular worker in a highly advantageous position compared to other
workers. Moreover, this is clearly an inappropriate solution for short- and very short-term work relationships
(seasonal farm work, for example).’

Outcome of the vote

For: 59, Against: 111, Abstentions: 11

Point 6.8

Add as follows:

‘Article 9 defines the responsibility of the main contractors and any intermediate subcontractors for paying sanctions
and back payments. It would be useful here to clarify under which circumstances this does and does not apply. The
main contractor and subcontractors who are not directly employing the illegally staying third country nationals
should be jointly and severally liable to the sanctions mentioned in Article 6 and Article 7 only in case that it should
be proved that they knew that their subcontractor was employing illegally staying third country national. In some
sectors with long chains of subcontractors, such as the car industry, it would prove difficult to hold manufacturers
and subcontractors who produce various parts in different locations and countries jointly liable. The same applies to
the constructions sector. The Committee believes that main contractors should, by taking reasonable precautionary
measures, be able to ensure that they are not held liable in this way.’

Outcome of the vote

For: 57 Against: 106 Abstentions: 8

Point 6.9

Delete as follows:

‘Article 10

— Under this article an infringement constitutes a criminal offence (in line with Article 3) when committed “inten-
tionally”. However, since this is difficult to prove, a better definition of criminal offence would be to show that
the employer “knew” or “could have known” about the criminal offence.

— With regard to the infringement set out under 1 (a), every repeat infringement of Article 3 should be deemed to

be a criminal offence.

— In the case of an infringement deemed to be a deliberate criminal offence, as described in paragraph 1(a), it is
important to take into account the possibility that legal proceedings will be time-consuming. There is the risk
that the provision will not be applied at all if Member States decide that determining whether an infringement
has occurred should be subject to a decision by a court or national authority within a period of two years.
Because these processes can be so time-consuming, and because all legal remedies would be invoked to lodge an
appeal, the provision may not be put into practice at all.

— In implementing this article in the Member States, a clear division of competences needs to be stipulated between
the administrative bodies that impose sanctions, and individual competent courts, in order to avoid potential
conflicts over competences.’

Outcome of the vote

For: 66 Against: 100 Abstentions: 10

Point 6.11

Amend as follows:

‘Article 15

This provision, The effectiveness of the proposed provision stipulating that Member States ensure that at least 10 %
of companies are inspected every year, is to be welcomed. However, the effectiveness of the proposed directive will
depend on the actual implementation of this provision. The Member States must choose which companies to inspect
on the basis of a risk assessment that takes account, alongside other suitable criteria, of factors such as the degree of
the sector's vulnerability to employment of illegally staying third-country nationals, or whether the companies have a
past record in this area. The article should reflect these qualitative criteria, and state that it would be desirable for
Member States to ensure that at least 3 % of the companies thus selected are inspected every year. In most Member
States, extra staff and financial resources willmay be necessary to carry it out. Were this not to be providedWithout
this, such additional obligations would undoubtedlycould give rise to unequal treatment of those concerned.’

Outcome of the vote

For: 65 Against: 105 Abstentions: 8