CELEX: 51978PC0086
Language: en
Date: 1978-03-22
Title: AMENDED PROPOSAL FOR A COUNCIL DIRECTIVE CONCERNING THE APPROXIMATION OF THE LEGISLATION OF THE MEMBER STATES, IN ORDER TO COMBAT ILLEGAL MIGRATION AND ILLEGAL EMPLOYMENT

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