COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the application of Directive 2009/52/EC of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third country nationals
Date: 2014-05-22
Institutions: European Commission
Subjects: clandestine worker, economic sanctions, employer, fine, foreign national, illegal migration, labour standard, moonlighting, repatriation grant, trafficking in human beings













EUR-Lex - 52014DC0286 - EN











|



52014DC0286

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the application of Directive 2009/52/EC of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third country nationals /* COM/2014/0286 final */









COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN
PARLIAMENT AND THE COUNCIL
on
the
application of Directive 2009/52/EC of 18 June 2009 providing for minimum
standards on sanctions and measures against employers of illegally staying
third‑country nationals
In
2013, 386 230 third-country nationals were found to be irregularly present in
the EU, down from 608 870 in 2008[1].
This decrease can be partly attributed to the economic crisis,
which made it more difficult to find work across large parts of the European
Union (EU).
However, this phenomenon is by nature hard to quantify, since
the majority of irregular migrants remain undetected, and the possibility of
finding work remains a significant incentive to irregular migration into the
EU.
Employment
of third-country nationals who are illegally staying is the result of migrants
seeking a better life meeting demand from employers who are willing to take
advantage of workers ready to undertake low-skilled, low-paid jobs in labour‑intensive
sectors such as construction, agriculture, cleaning and hotels/catering.
Illegal
employment is damaging in many ways, causing a lack of contributions to public
budgets in the form of taxes or social security payments, replacing workers or
non-hiring of workers through legal channels, resulting in individuals having
to work under hazardous conditions without any insurance.
Directive
2009/52/EC[2],
adopted on 18 June 2009, seeks to counter the pull factor of finding work. It
toughens sanctions for illegal employment and
improves detection mechanisms, while providing for
protective measures designed to redress injustices suffered by irregular
migrants.
The Directive forms part of a set of measures taken by the EU to
effectively tackle irregular immigration; other measures include enhanced
cooperation with third countries[3], integrated management of operational
borders, an effective return policy[4] and reinforced legislation to fight
against human trafficking[5]. The Directive
complements recent policy developments in the field of legal migration, with
the Seasonal Workers Directive[6]
being the most recent example of the EU opening legal channels for low-skilled
labour migration, typically in sectors such as agriculture or tourism.
Member States were to transpose Directive 2009/52/EC into their
national legislation by 20 July 2011[7].
The Commission launched infringement proceedings[8]
against 20 Member States[9] for not having done so in time, which
have since all been closed.
Before adopting transposing legislation, Italy and Luxembourg allowed for a period during which employers could declare illegally staying
migrants working for them and, while requiring payment of a fine and fulfilment
of certain conditions, enabled regularisation mechanisms.
All Member States bound by the Directive[10]
now prohibit the employment of irregular migrants and only a few have allowed
an exception for those whose removal has been postponed[11].
Several Member States have decided to go beyond the scope of the Directive[12], applying it also to third-country
nationals who are legally-staying but whose residence permit does not allow
them to perform an economic activity.
This Communication[13] responds to the Commission’s
obligation to report to the European Parliament and the Council on the
application of the Employers’ Sanctions Directive[14].
It provides an overview of the financial and criminal
sanctions that the chain of employers may incur across the EU for illegal
employment (I). It then sets out how protective measures for illegally
employed migrants were enacted in the national legislations (II). It
finally describes how Member States have transposed the mechanisms set out in
the Directive to effectively detect and penalise illegal employment and
provides an assessment of Member States’
inspection reports (III).
I-       Sanctions against the chain of employers of
illegally staying third country nationals
I.1-      Overview
of the financial and criminal sanctions in force in the Member States
a-         Financial
sanctions (Article 5)
Article 5
provides that sanctions for illegal employment shall include financial
sanctions, the amount of which shall proportionally increase with the number of
illegally staying third-country nationals employed.
At the time of
transposition, only BE, BG, LU, FI and LV, had yet to introduce financial
sanctions in national legislation, as the other 19 Member
States bound by the Directive already allowed for such sanctions. However, seven
[15]
have since changed their legislation to amend the calculation method and/or
increase the amount of the fine.
Only CY, FI, HU,
NL and PL have used the option in Article 5(3) for reduced sanctions where the
employer is a natural person (i.e. an individual), employment is for private
purposes, and where no particularly exploitative working conditions are
involved.
Other than SE
and IT, which include the average cost of return in the financial penalty,
Member States require the employer to pay the costs of return, on top of the
financial sanction.
Table 1 on
‘financial sanctions’ shows that Member States fall into two categories as far
as the calculation method for the fine is concerned. In 16 Member States[16],
the amount of the fine increases proportionally with every illegally staying
third-country national employed. Among these countries, the minimum or
fixed amount of the financial sanction per illegally employed irregular migrant
varies from EUR 300 in BE to EUR10001 in ES. Most Member States have also
set a maximum fine which varies from EUR 854 in CY to EUR100 000 in ES for a
natural person. In the remaining eight Member States[17],
the law sets out a general amount for the fine and it is for the judge to
set the precise amount depending on the number of irregular migrants involved.
Among these countries, the maximum amount of the fine varies from EUR500 in LV to EUR500 000 in DE.
This shows that the
amounts of the fines vary considerably among Member States and could raise concerns
that
the level of the financial sanctions does not always outweigh the benefits of
employing irregular migrants. Since there is
no comprehensive empirical information on the effect of sanctions, the
comparison with a minimum wage can serve as an indication, among other factors[18],
to provide an initial assessment of the dissuasiveness and proportionality of
the sanctions. 
For instance,
the maximum penalty per irregular migrant employed in LU is 1.3 times the
monthly minimum wage. In LV, one of the countries that have established an
overall amount for the fine, the maximum financial penalty is 1.7 times higher
than the monthly minimum wage. These figures are in striking contrast to BG,
for example, where the maximum fine per irregular migrant is 24.2 times the
monthly minimum wage, and CZ, where the overall amount for the maximum fine is
584 times the monthly minimum wage[19] for
a natural person. 
b-         Criminal
sanctions (Articles 9 and 10)
Article 9
provides for criminal sanctions for particularly serious cases of illegal
employment, including: 
(i)             
persistently
repeated infringements; 
(ii)           
involving
a significant number of third-country nationals; 
(iii)         
employment
in particularly exploitative working conditions;
(iv)         
where
the employer knows that the worker is a victim of human trafficking; and
(v)           
the
illegal employment of a minor.
Prior to the
Directive’s entry into force, illegal employment of irregular migrants already
constituted a specific criminal offence in ten Member States[20].
Therefore,
14 Member States[21]
had to introduce into their legislation criminal sanctions against these
specific forms of illegal employment. AT, DE, EL and IT have
amended their existing legislation to increase the lengths of prison sentences
or, in most cases, the level of fines.
In BE, FI, FR,
IT, MT, NL and SE, illegal employment constitutes a criminal offence in itself,
with or without the circumstances referred to in Article 9(1).
These circumstances are usually treated as aggravating factors.
The remaining
Member States have in general criminalised illegal employment in all the
circumstances described in Article 9. Few Member
States did not specifically penalise illegal employment in cases of
‘particularly exploitative working conditions’[22] and in
situations where ‘the employer was aware that the worker was a victim of human
trafficking’[23].
Many of them considered that these forms of illegal employment were already
covered by national legislation addressing trafficking in human beings. 
Table 2
highlights considerable differences in the severity of criminal sanctions. For
some Member States, this can raise doubts over the deterrent effect of
penalties. For instance, LV and AT under certain circumstances described in
Article 9(1) penalise illegal employment with prison terms of up to three
months and six months respectively, while the remaining Member States provide
for a maximum sentence of between one and five years in prison. In ten Member
States, imprisonment can be coupled with or replaced by a fine which can vary
from EUR 600 in BE to EUR240 000 in PT for a natural person.
c-         Criminal
sanctions for legal persons (Articles 11 and 12) and other measures
(Article 7)
In accordance
with Article 12(1), all Member States have provided for criminal sanctions
for legal persons responsible for illegal employment under Article 9, such
as a fine, liquidation, limitation of rights and the confiscation of property.
All Member States (except BG, EE, FI, HU, and NL) have also included the
measures set out in Article 7(1) of the Directive in their list of criminal
sanctions for legal persons.
Article 7(1)
provides a list of additional measures to penalise employers responsible for
illegal employment which includes: 
(i)             
the
loss of entitlement to some or all public benefits for up to five years;
(ii)           
the
exclusion from participation in a public contract for up to five years;
(iii)         
the
recovery of some or all public subsidies granted to the employer in the
12 months preceding the detection of illegal employment; and
(iv)         
the
temporary or permanent closure of establishments that have been used to commit
the infringement.
However, these
measures, which can have a strong deterrent effect, have not been fully
transposed by all Member States[24].
In addition, only AT, CY and SK have taken up the option in Article 12(2)
whereby Member States may publish a list of employers that have committed
the criminal offences referred to in Article 9.
I.2-      The
liability of the entire chain of employers (Articles 2(c), 8, 9(2) and 11)
To guarantee the
effectiveness of the prohibition of illegal employment, all Member States
use the wide definition of employment foreseen in Article 2(c) which covers
all activities that are or ought to be remunerated, undertaken for or under the
direction and/or supervision of an employer, irrespective of the legal
relationship 
Moreover,
Article 8 requires that the entire chain of employers be liable to pay the
financial sanctions provided for under Article 5, as in some sectors,
especially those affected by the phenomenon of illegal employment,
subcontracting is widespread.
In
accordance with Article 8(1)(a), Member States’ legislation (except in EE and
LT) envisages that, where the employer is a direct subcontractor, the
contractor should be liable to pay, in addition to or in place of the employer,
any financial sanction imposed under Article 5. In accordance with Article
8(2), the majority of Member States[25]
also ensure that, where the employer is a subcontractor, the main contractor
and any intermediate subcontractor may also be liable to pay fines where they
knew that the employing subcontractor employed irregular migrants.
To
facilitate enforcement of these provisions and to provide legal certainty to
the contractors, Article 8(3) requires that a contractor that has carried out
due diligence obligations will not be liable under Article 8(1) and (2).
However, many Member States[26]
have not defined such due diligence in their national legislation, but they
often refer to general provision of contract/civil law.
Finally, on the
basis of Article 9(2), all Member States ensure that inciting, aiding and
abetting the intentional employment of illegally staying migrants is also
punishable as a criminal offence. In accordance with Article 11, they have
also ensured the liability of legal persons for the criminal offences
referred to in Article 9, when the offence has been committed for their benefit
by any person with a leading position within the legal person, acting either
individually or as part of an organ of the legal person or if there is lack of
supervision[27].
As a result of
the transposition of the Directive, all actors benefiting from illegal
employment can be adequately penalised in the majority of the Member States.
This is not only essential to effectively tackle this phenomenon, but is also
critical to facilitate the exercise of the rights that the Directive grants to
irregular migrants.
II-      Protective measures in favour of illegally
employed third‑country nationals
II.1-     Back‑payment
of salaries and taxes (Articles 6(1) and 8)
Member States
have correctly transposed Article 6(1)(a), which provides for irregular
migrants’ right to be remunerated for the work performed and Article
6(1)(b), which obliges the employer to pay all taxes and social security
contributions that should have been paid, had the third-country national
been legally employed.
To calculate the
amounts due, Article 6(3) assumes that the employment relationship lasted at
least three months, unless the employer or the employee can prove
otherwise. All Member States except EE, ES and RO have introduced this
assumption in their legislation and NL even provides for an assumption of six
months.
 In all Member
States, employers are, in principle, obliged, in accordance with Article 6(1)(c),
to pay any cost arising from sending back‑payments to the country
to which the third-country national has returned or has been returned.
In accordance
with Article 8, Member States[28]
have usually provided that, in addition to employers, direct contractors and
any intermediate subcontractor may also be required to pay any outstanding
remuneration and taxes.
II.2-     Access
to justice and facilitation of complaints (Articles 6(2) to (5) and 13)
To enforce these
rules, access to justice and facilitation of complaints constitute the core of
the Directive’s protective measures designed to redress injustices suffered by
irregular migrants. Yet it is this part of the Directive that could raise
concerns because Member States’ transposition efforts have often resulted in
weak or non-existing mechanisms to facilitate the enforcement of the irregular
migrants’ rights.
Very few Member
States[29]
explicitly transposed the right of illegally employed migrants to make a
claim against their employer for any outstanding remuneration, including in
cases in which they have, or have been, returned[30].
Most Member States merely refer to general provisions concerning the right to
bring a case before civil or labour courts. A limited number of Member States[31]
have made use of the option in Article 6(2)§1(b) of establishing procedures to
recover outstanding remuneration without the need for the third-country
national to introduce a claim.
Article 13(1)
requires Member States to put in place effective mechanisms through which
irregular migrants may lodge complaints against their employers, including
through third parties. Article 13(2) obliges Member States to ensure that third
parties with a legitimate interest in ensuring compliance with the Directive
may act on behalf of or in support of the third-country national in any
administrative or civil proceedings to defend their rights. In several Member
States, trade unions are entitled to lodge complaints on behalf of irregular
migrants and to represent them in national proceedings[32].
More rarely, organisations of migrant workers[33] and public
authorities[34]
with powers of inspection have this role. LU, MT and NL have not yet designated
such third parties in legislation.
Only four Member
States[35]
have put in place specific mechanisms so that irregular migrants can receive
any payments owed, including after they have, or have been, returned (Article
6(4)). For instance, the French Office of Immigration and Integration can
issue enforcement orders to receive the money due on behalf of illegally employed
migrants, and then transfer the money to them. Other countries rely on general
provisions relating to enforcement of judgments.
The Directive
requires that irregular migrants be ‘systematically and objectively’
informed about their rights. A number of Member States[36]
have not made provision for this in their legislation and other Member States[37]
are relying on general administrative guidelines and on the rules relating to
information for those who are subject to administrative proceedings. In
practice, this can mean that Member States rely on information on particular
websites which irregular migrants are unlikely to be aware of or may not have
access to.
Finally, only a
limited number of Member States[38]
have explicitly transposed Articles 6(5) and 13(4), which oblige them to grant permits
of limited duration, linked to the length of the relevant national
proceedings, to third-country nationals involved in criminal proceedings for
the offences referred to under Article 9(1)(c) and (e), and to define the conditions
under which the duration of this permit may be extended until the irregular
migrant has received any back payment.
In general, the
lack of specific mechanisms in many Member States to remedy the difficulties
that irregular migrants may face in having access to justice and enforcing
their rights may be counterproductive to the fight against illegal employment.
Encouraging complaints against employers can play an important role in Member
States’ strategies to detect illegal employment.
III-    Detection of illegal employment and enforcement
of its prohibition
III.1-   Preventive
measures: obligation on the employers (Article 4)
To raise
employers’ awareness and facilitate inspections, all Member States transposed
the preventive measures provided for in Article 4. Third-country nationals have
to hold and present a valid residence permit or other authorisation to stay
prior to beginning employment. Employers have to keep, for at least the
duration of the employment, a copy or record of these documents in case of
inspection, and they also have to notify the relevant authorities within a
specific period when they start employing a third-country national. 
In most Member
States[39],
this process has to be completed a few days before the start of employment or
before the conclusion of the contract[40]
and at the latest on the first day of work[41]. In others,
this notification has to be lodged within a period of a few days[42]
to several weeks[43]
after the start of employment. If they complete this process, employers are
exempt from liability, unless they knew that the document presented was forged[44].
Member States
made only limited use of the option to introduce a simplified notification
procedure when the employer is a natural person and employment is for their
private purposes (DE, IT,LU) and/or to relieve employers of their obligation to
notify where they employ third-country nationals who hold long-term residence
status (AT, CY and EE).
III.2-   Inspections
(Article 14)
In accordance
with Article 14, national laws require relevant national authorities to
conduct
inspections based on an assessment to identify sectors most at risk, so as to
help enforce the prohibition on employing illegally staying third-country
nationals.
Effective and
adequate inspections are indispensable for tackling illegal employment and
ensuring that irregular migrants can exercise their rights. Without proper
inspections, any sanction may remain a theoretical threat.
However, delays
in transmitting inspection reports to the Commission and issues
with the quality of some reports give rise to concern. In 2012, only four
Member States (DE, FR, LV and SK) reported on the inspections carried out in
2011. In 2013, only nine Member States (FI, FR, HU, LT, LV, PL, RO, SK and SI) submitted their reports on time. On 10 October 2013, the Commission
therefore sent pre‑infringement letters to the remaining 15 Member States
to remind them of their obligation. All Member States have since communicated a
report.
Overall
there is scope to improve the reporting. The
information reported is partly incomplete, based on different calculation
methods and definitions and/or simply not in line with the Directive’s
reporting requirements. Consequently, the information from the results of the
inspections is limited and it is difficult to give a comprehensive EU-wide
overview of the inspections carried out and their results. To facilitate the
reporting, already in 2010 the Commission had circulated a reporting template
to Member States. This has recently been updated in order to ensure that Member
States provide comparable data and information which should allow the
Commission to assess the effective enforcement of the Directive.
Identifying the
sectors most at risk is important so that inspections can be a useful
instrument to combat illegal employment. While several Member States (CZ, EE, LT, MT and RO) do not make it clear whether and how sectors at greater risk have
been identified, the reports from other Member States show that the sectors
most affected by illegal employment are the same in most Member States:
construction, agriculture and horticulture, housework/cleaning, catering and
hospitality services.
Table 3 presents
the information communicated by Member States on the inspections carried out in
sectors at risk, complemented where necessary with official figures from
Eurostat on the number of employers and employees. It shows that the number of
inspections carried out in some Member States is unlikely to dissuade an
employer from hiring irregular migrants. In BG, EE, PL, RO and SE, fewer than 1 %
of all employers were inspected in 2012, as compared with 16.98 % in AT,
17.33 % in IT and 28.93 % in SI, for example[45].
This suggests that there are big differences in enforcement efforts between
Member States and may mean that employers who break the law will avoid
detection or prosecution more likely in certain Member States than in others.
IV.    Conclusion and next steps
Following
transposition of Directive 2009/52/EC, all Member
States prohibit the employment of irregular migrants and impose financial,
administrative or criminal sanctions on their employers. However, the severity
of the sanctions as determined by law varies considerably between Member
States. This raises concerns whether sanctions can always be effective,
proportionate or dissuasive and will therefore have to be further assessed.
Some Member
States have yet to implement the protective elements of the Directive in a
satisfactory manner. There remains room for improvement in all areas offering
protection to irregular migrants, be it the right to make a claim against an
employer, effective mechanisms for doing so or something as basic as providing
systematic and objective information on their rights.
Some Member
States are likely to need to make substantial efforts to improve not only their
reporting on inspections, but also the inspections themselves and their
prioritisation efforts through systematic identification of sectors at risk. On
the basis of the data collected for 2012, it seems that much still needs to be
done to ensure that an adequate and effective inspections system is in place.
The lack of such a system calls into serious doubt the effective enforcement of
the prohibition of illegal employment and the efforts of the Member States to
reduce differences in enforcement of the Directive.
As Member States
are obliged to report on inspections each year before 1 July, the Commission
will continue to monitor closely the measures taken by Member States in this
area and take action if necessary. In order to raise Member States’
awareness of these and other potential problems identified in the transposition
of the Directive, the Commission is engaged in bilateral exchanges with each Member State and will launch EU pilot procedures where necessary.
The Commission
will provide support to Member States to ensure a satisfactory level of
implementation of the Directive across the EU. As it has been doing on a
continuous basis since the adoption of the Directive in 2009, the Commission
will invite Member States to discuss the legal transposition and implementation
of several key provisions of the Directive at upcoming meetings. If necessary,
guidelines on the practical implementation of the Directive could also be drawn
up including on the enforcement of the rights of migrants. 
For the time
being, the Commission is not proposing any amendments to the Directive. It will
assess, over time, whether the transposing legislation proves sufficient to
reduce illegal employment and constitutes an incentive to use legal immigration
channels for the benefits of migrants, employers and Member States.
Table 1:          Financial
sanctions
 MS || N/L person (1) || Amount of the financial sanctions || Article 5(3)(2) || Comparison with the law in force before the transposition 
 Minimum || Fixed || Maximum 
 Penalty applied to every illegally employed irregular migrant 
 AT || L/N || €1 000/ €4 000 ||   || €10 000/ €50 000 || N || → 
 BE || L/N || €300 ||   || €3 000 || N || No previous legislation 
 BG || N || BGN 750/1 500 (€383/ €767) ||   || BGN 7 500/15 000 (€3 834 / €7 669) || N || No previous legislation 
 L || BGN 3 000/6 000 (€1 534/ €3 068) ||   || BGN 30 000/60 000 (€15 338/ €30 677) 
 CY || L/N ||   ||   || CYP 500/ 2 000 (€854/ €3 417) || Y || → 
 EE || N ||   ||   || €1 200 || N || → 
 L ||   ||   || €3 200 
 EL || L/N ||   || €5 000/ €10 000 ||   || N || ↑ 
 ES || L/N || €10 001 ||   || €100 000 || N || ↑ 
 FR || L/N || €6 980 ||   || €52 350 || N || ↑ 
 HU || L/N ||   || HUF 500 000 (€ 1 630) ||   || Y || → 
 IT || N || €1 950 ||   || €15 600 || N || ↑ 
 LT || L/N ||   || LTL 3 000/10 000 (€869/ €2 896) || LTL 10 000/ 20 000 (€2 896/ €5 792) || N || → 
 LU || L/N ||   || €2 500 ||   || N || No previous legislation 
 NL || N ||   ||   || €11 250 || Y || ↑ 
 L ||   ||   || €45 000 
 RO || L/N || RON 3 000 (€662) ||   || RON 4 000 (€883) || N || ↑ 
 SE || L/N ||   ||   || SEK 22 200/ 44 400 (€2 477 / €4 954) || N || → 
 SI || N || € 2 000 ||   || € 5 000 || N || → 
 L || € 4 000 ||   || € 12 000 
 Number of irregular migrants taken into account in the determination of the fine 
 CZ || N ||   ||   || CZK 5 000 000 (€182 305) || N || ↑ 
 L || CZK 250 000 (€9 115) ||   || CZK 10 000 000 (€364 606) 
 DE || L/N ||   ||   || €500 000 || N || → 
 FI || L/N || €1 000 ||   || €30 000 || Y || no previous legislation 
 LV || N || €210 ||   || €500 || N || no previous legislation 
 MT || L/N ||   ||   || €11 646,87 || N || → 
 PL || L/N || PLN 3 000 (€720) ||   ||   || Y || → 
 PT || L/N || €2 000 ||   || €90 000 || N || → 
 SK || L/N || €2 000 ||   || €200 000 || N || → 
 *L/N = Legal person/Natural person ** Article 5(3) of Directive 2009/52/CE: "Member States may provide for reduced financial sanctions where the employer is a natural person who employs an illegally staying third-country national for his or her private purposes and where no particularly exploitative working conditions are involved" (Exchange rates (04/04/2014) : 1BGN = €0.511281; 1CYP = €1.70860; 1CZK = €0.0364632; 1HUF= €0.00326012; 1 LTL = €0.289620; 1 PLN = € 0.240083; 1ROL = € 0.224388; 1 SEK = €0.111573)  
Table 2: Criminal
sanctions
 MS || Sanctions (duration of imprisonment and fine where applicable) || Comparison with the law in force before the transposition  
 9(1)a || 9(1)b || 9(1)c || 9(1)d || 9(1)e 
 AT || imprisonment of up to 6 months ||  imprisonment of up to 6 months or fine || imprisonment of up to 2 years || imprisonment of up to 2 years ||  imprisonment of up to 6 months or fine ||  ↓ 
 BE || imprisonment of 6 months to 3 years and/or fine of €600 to €6 000 || No previous legislation 
 BG || Imprisonment of 1 to 5 years and fine of BGN 5 000 (€2 554) to BGN 50 000 (€25 564) ||  Imprisonment of up to 4 years and fine of BGN 2 000 (€1 022) to BGN 20 000 (€10 225) || Imprisonment of 1 to 5 years and fine of BGN 5 000 (€2 554) to BGN 50 000 (€25 564) ||  Imprisonment of up to 4 years and fine of BGN 2 000 (€1 022) to BGN 20 000 (€10 225) || Imprisonment of 1 to 5 years and fine of BGN 5 000 (€2 554) to BGN 50 000 (€25 564) || No previous legislation 
 CY ||  imprisonment of up to 5 years and/or a fine not exceeding €20 000 || No previous legislation 
 CZ || imprisonment of six months to five years ||  - || imprisonment of six months to five years || → 
 DE || imprisonment of up to 1 year or a fine || imprisonment of up to 1 year or a fine || imprisonment of up to 3 years or a fine (serisous cases: 6 months to 5 years) || imprisonment of up to 3 years or a fine || imprisonment of up to 1 year or a fine || ↑ 
 EE || fine of 30 to 500 daily rates (€96 to €1 600) or imprisonment of up to 3 years || No previous legislation 
 EL ||  imprisonment of at least 5 months || imprisonment of at least 6 months || imprisonment of at least 6 months || ↑ 
 ES ||  - || imprisonment of 6 months to 6 years and fine of 6 months to 12 months || imprisonment of 2 to 5 years and fine of 6 to 12 months ||  - ||  - || → 
 FI ||  fine or imprisonment of up to 1 year || → 
 FR || imprisonment of up to 5 years and  fine of up to €15 000 || → 
 HU || imprisonment of up to 2 years || imprisonment of up to 2 years || imprisonment of 1 to 5 years || imprisonment of 1 to 5 years || imprisonment of 1 to 5 years ||  No previous legislation 
 MS || Sanctions (duration of imprisonment and fine where applicable) || Comparison with the law in force before the transposition  
 9(1)a || 9(1)b || 9(1)c || 9(1)d || 9(1)e 
 IT || imprisonment of 6 months to 3 years and fine of €5 000 || ↑ 
 Increase of one third to an half of the sanction ||   || Increase of one third to an half of the sanction 
 LT ||  fine or imprisonment of up to 2 years ||  - ||  fine or imprisonment of up to 2 years || No previous legislation 
 LU ||  imprisonment of 8 days to 1 year and /or fine of €2 501 to €20 000 || No previous legislation 
 LV || Imprisonment of up to 3 months, or fine of up to 100 min. monthly salaries (€32 000) || Imprisonment of up to 3 months, or community service, or fine of up to 100 min. monthly salaries (€ 32 000) ||  Imprisonment of up to 3 months or fine of up to 100 min. monthly salaries (€32 000) || No previous legislation 
 MT || Fine of up to 11,646.87 and/or imprisonment of up to 2 years. || → 
 NL ||  imprisonment of up to 3 years or fine of up to € 78 000 ||  imprisonment of up to 1 year or fine of up to € 78 000 || → 
 PL || imprisonment of up to 12 months and fine  || imprisonment of up to 3 years || imprisonment of up to 12 months and fine  ||  No previous legislation 
 PT || imprisonment of up to 1 year or fine up to 240 days (max. € 120 000) || imprisonment of up to 2 years or fine up to 480 days (max. € 240 000) || imprisonment of 1 to 5 years || imprisonment of 2 to 6 years || imprisonment of up to 2 years or fine up to 480 days (max. € 240 000) || No previous legislation 
 RO ||  - || imprisonment of 1 to 2 years or fine ||  - || imprisonment of 1 and 2 years or fine || imprisonment of 1 to 3 years || No previous legislation 
 SE || a fine or imprisonment of up to 1 year || No previous legislation 
 SI || imprisonment of up to 2 years ||  imprisonment of up to 3 years || No previous legislation 
 SK || imprisonment of up to 2 years || imprisonment of 6 months to 3 years || No previous legislation 
Table 3:
Inspections carried out in 2012
 MS || DIRECTIVE 2009/52/EC || Observations 
 Inspections || Results 
 Absolute number || As percentage of the employers in all sectors (in %) || Number of inspections which detected ISTCN* || Number of ISTCN detected || Share of detected ISTCN in total number of employees in all sectors (in %) 
 AT || 32 765 || 16.98 || 2 948 || 4 490 || 0.11 || All sectors covered. 
 BE || 14 127 || 7.86 || 1 538 || 1 826 || 0.41 || All sectors covered. 
 BG || 119 || 0.12 || 1 || 1 || 0.00003 || All sectors covered. 
 CY || 5 736 || 38.5 || / || 1 340 || 0.35 || Risk sectors covered. 
 CZ || 27 914 || 17.45 || 27 || 46 || 0.00095 || All sectors covered. 
 DE || 122 577 || 6,91 || / || / || / || Risk sectors covered. 
 EE || 79 || 0.36 || 0 || 0 || 0 || Risk sectors covered. 
 EL || 8 704 || 3.35 || 30 || 49 || 0.00138 || Risk sectors covered; Data for 01/08/2012 - 31/12/2012. 
 ES || 53 671 || 6.12 || 5 386 || 5 386 || 0.03145 || All sectors covered. 
 FI || 1 800 || 1.9 || / || / || / || All sectors covered. 
 FR || 1 331 || / || / || 621 || / || Risk sectors covered. Data related to migrants working without work permit, no information on their residence status. 
 HU || 19 080 || 9.72 || / || / || / || All sectors covered. 
 IT || 243 847 || 17.33 || / || 11 499 || 0.05115 || All sectors covered. 
 LT || 1 453 || 5.38 || / || 0 || 0 || All sectors covered. Data for the period from 01/08/2012 - 31/12/2012. 
 LV || 2 648 || / || / || 1 || 0.00012 || All sectors covered. Data for 01/01/2012 -01/05/2013. 
 LU || 3 097 || 43.62 || / || / || / || All sectors covered. 
 MT || 3 831 || 53.07 || 70 || 88 || 0.05167 || Data related to migrants working without work permit. No information on their residence status. 
 NL || 11 181 || / || 776 || 1 123 || / || All sectors covered. Eurostat data for the total number of employers and employees is not available. 
 PL || 2 776 || 0.44 || 61 || 133 || 0.00306 || All sectors covered. 
 PT || 2 305 || 1.09 || / || 10 828 || 0.25 || Risk sectors covered. 
 RO || 916 || 0.82 || / || 22 || 0.00025 || All sectors covered. 
 SE || 414 || 0.25 || / || / || / || All sectors covered. 
 SI || 9 027 || 28.93 || / || 8 || 0.00088 || Risk sectors covered. 
 SK || 39 801 || 57.77 || / || 22 || 0.00095 || All sectors covered. Part of the data does not specify the residence status. 
 ISTCN: Illegally-staying third-country national 
[1] Eurostat, 2013, data not available for NL and EL.
[2] Directive 2009/52/EC of 18 June 2009 providing for minimum
standards on sanctions and measures against employers of illegally staying
third-country nationals, OJ L 168, 30 June 2009, p. 24 (‘Employers Sanctions
Directive’).
[3] Communication on the global approach to migration and mobility,
COM(2011) 743 final, 18 November 2011.
[4] Communication on EU return policy, COM (2014) 199 final, 28 March
2013.
[5] Directive 2011/36/EU of the European Parliament and of the Council
of 5 April 2011 on preventing and combatting trafficking in human beings and
protecting its victims, OJ L 101, 15 April 2011, p. 1.
[6]
Directive 2014/36/EU on the conditions of entry and stay of third-country
nationals for the purpose of employment as seasonal workers, OJ L 94, 28 March
2014, p. 375. 
[7] Article 17 of Directive
2009/52/EC, op. cit.
[8] Article 258 (ex-226) of the Treaty on the
Functioning of the European Union.
[9] AT, BE, BG, CZ, DE, FR, EL, IT, CY, LT, LU, HU, MT, NL, PL, PT, RO,
SI, FI and SE.
[10] All Member States except Denmark, Ireland and the United Kingdom are bound by Directive 2009/52/EC. Croatia’s implementation following its
accession has still to be assessed.
[11] DE, EL, FI, FR, MT, RO and SE (Article 3(3) of Directive
2009/52/EC).
[12] AT, BE, CZ, DE, EE, FR, FI, HU, LT, MT, RO and SE.
[13]
The Communication is based on a study carried out for the Commission.
[14]
Article 16 of Directive 2009/52/EC, op. cit.
[15] CZ, EL, ES, FR, IT, NL and RO.
[16] AT, BE, BG, CY, EE, EL, ES, FR, HU, IT, LT, LU, NL, RO, SE and SI.
[17] CZ, DE, FI, LV, MT, PL, PT and SK.
[18] Other
factors include, for instance, the comparison with sanctions for similar types
of offences as well as the precise definition of the offence in the respective
national law. In order to assess the effectiveness, a collection of empirical
date on actual penalties applied. 
[19] Minimum wages from Eurostat: 
http://epp.eurostat.ec.europa.eu/portal/page/portal/labour_market/earnings/main_tables.
[20] AT, CZ, DE, EL, ES, FI, FR, IT, MT and NL.
[21] BE, BG, CY, EE, HU LT, LU, LV, PL, PT, RO, SE, SI and SK.
[22] RO.
[23] CZ, ES and LT.
[24] BE, EL, BG, FI, LU, CZ, IT and EE.
[25] Except EE and LT.
[26] BG, CZ, DE, EE, EL, ES, HU, IT, LT, MT, PT, RO, SE, SI and SK.
[27] The transposition of the liability of legal persons (companies)
where there was a lack of supervision or checks was found to be problematic
only in LU.
[28] Except EE and LT.
[29] BG, CY, EL and SI.
[30] CY, EL, PL and SE.
[31] BE, FR, HU, MT and PL.
[32] AT, CY, DE, EE, EL, FI, FR, HU, IT, LT, RO, SI and SK.
[33] CZ, FI, HU, LV, and SE.
[34] EL, ES, FI, IT and LT.
[35] BE, EL and FR.
[36] BG, ES, IT, LV, MT, NL, SI and SK.
[37] BE, FI, HU and RO.
[38] AT, DE, EL, ES, HU, IT, LU, SE, SI and SK.
[39] Except FI.
[40] BG, CY, ES, FR, LT, NL and RO.
[41] BE, CZ, EL, IT, LV, MT and PT.
[42] AT, EE, HU, LU, PL and SK.
[43] DE, SE and SI.
[44] Except BG and IT.
[45] Some Member States provided information on inspections in risk
sectors, while others provided information on inspections in all sectors; see
table 3 for more information.