On 30 June 2009, Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 concerning “sanctions and measures against employers of illegally staying third-country nationals” (the so-called “Sanction Directive”) was publicized.
The Directive sets some minimum rules for actions and sanctions against employers of illegal immigrants in order to counter, in general, illegal immigration within the Member States.
Responsibility of the employers
It is to be noted that the focus is on sanctions for the employers and not for the illegal employees.
- Employers are obliged to require the third-country nationals to produce a valid residence permit or another authorization. Furthermore, they are obliged to keep at least for the duration of the employment the copies or records available for inspection by the competent authorities of the Member States. In addition they are obliged to notify the competent authorities of the start of the employment of third-country nationals with a period to be laid down.
- Employers who are held liable for employing illegal employees can incur financial penalties. Furthermore, they will be obliged to pay, even retroactively, the minimum wages, and the costs of return (transport) to the home country. With regard to the minimum wages, a presumption will apply that an employment of three months took place, unless the employer proves otherwise. Finally, the employers concerned can be excluded from entitlement to public benefits, aid or subsidies for up to five years.
- New, however, is the fact that the Directive, in case of subcontracting, foresees the joint and several liability of the principal to pay the financial sanctions and the minimum wages. Consequently, Belgian principals who rely on a subcontractor, who employs illegal employees, will be equally liable for the financial sanctions foreseen in the Directive. Even more, the Directive clearly states that Member States can even adopt more stringent liability rules.
The Directive also foresees:
- that certain infringements will constitute criminal offences in certain very serious shortcomings and cases;
- making the filing of complaints easier; and
- an obligation for Member States to establish adequate and effective inspections.
Entry into force?
This Directive has to be transposed into Belgian law at the latest by 20 July 2011 and will be binding upon its entry into force. However, it can be expected that Belgium will not wait until that date to do so. This is because the establishment of the joint and several liability of the principal was one of the preconditions for Belgium to open the entire labour market on 1 May 2009 for all citizens of the new EU Member States that joined the EU in 2004. The former indicates a clear risk for those who decide to rely on a subcontractor who works with illegal employees!