4 Sanctions against employers of illegally
staying third country nationals
| (28656)
9871/07
COM(07) 249
| Draft Directive providing for sanctions against employers of illegally staying third-country nationals
|
| Legal base | Article 63(3)(b) EC; co-decision; QMV
|
| Department | Home Office |
| Basis of consideration | Minister's letter of 16 July 2007
|
| Previous Committee Report | HC 41-xxvii (2006-07), para 3 (27 June 2007)
|
| To be discussed in Council | No date set
|
| Committee's assessment | Legally and politically important
|
| Committee's decision | Not cleared; further information requested
|
Background
4.1 On 27 June we considered this draft Directive, proposed under
Article 63(3)(b) EC,[17]
to provide for common sanctions and measures to be applied in
the Member States against employers of third country nationals
who are staying illegally. We noted that the Government was still
considering whether or not to opt in to this measure under Title
IV EC.
4.2 We had a particular concern with Article 9 of
the proposal which required Member States to ensure that, where
the employer is a subcontractor, the main contractor and any immediate
subcontractor would be made jointly and severally liable to pay
any fines imposed or any arrears of wages, but without prejudice
to the provisions of national law concerning rights of contribution
or recourse. We noted the Minister's explanation that these provisions
appeared to impose far wider liabilities than the current domestic
law.
4.3 We were also concerned by the provisions of Article
10, which required Member States to ensure that infringement of
the rules created by the Directive should be made a criminal offence
when committed intentionally, in circumstances where the infringement
is continuing or repeated, where it involves at least four illegally
employed third-country nationals or "significantly exploitative
working conditions" or the employer knowingly employs a victim
of people trafficking.
4.4 We shared the Minister's concern over this further
attempt to introduce criminal penalties under the EC Treaty, which
we believed to be beyond the competence of the Community, and
considered the provisions of Article 10 to be both highly prescriptive
(arbitrarily settling on infringements involving four illegal
workers as the threshold for criminal liability) and unacceptably
vague (making criminal liability turn on such concepts as "significantly
exploitative working conditions"). We did not consider this
drafting to be at all satisfactory in the context of a Directive
where the Member States had relatively little freedom to adapt
the measure to their own legal systems.
4.5 We held the document under scrutiny pending further
information from the Minister, notably on any decision to opt
in to this proposal.
The Minister's letter
4.6 In his letter of 16 July the Minister of State
for Nationality, Citizenship and Immigration at the Home Office
(Liam Byrne) informs us that the Government is still considering
whether to opt in to this proposal, and comments in detail on
the provisions of Article 9 and 10, as well as on the question
of Community competence to prescribe criminal penalties.
4.7 The Minister explains that Article 9 relates
to the definition of employer and requires, in cases where a financial
penalty cannot be recovered from the subcontracting employer,
that it should be recoverable from other contractors in the chain
of subcontracting, up to and including the main contractor. The
Minister notes our comments and assures us that he is considering
this issue in detail with other departments in government before
taking a decision on whether or not to opt in to this proposal.
4.8 In relation to Article 10, the Minister comments
first on the question of Community competence to prescribe criminal
penalties, noting that in Case C-176/03 Commission v. Council
the ECJ reaffirmed the general principle that "as a general
rule, neither criminal law nor the rules of criminal procedure
fall within the Community's competence" but that the ECJ
also ruled that the Community has some degree of competence to
require Member States to apply criminal law to infringements of
Community rules where this is necessary to ensure their effective
enforcement.
4.9 The Minister further explains that the ECJ limited
its comments to criminal law in the field of environmental protection,
but that since that judgment the Commission has sought to adopt
an "extensive interpretation" of this judgment and,
in addition to this latest instrument, has introduced Community
measures seeking to apply criminal sanctions in other policy areas,
for example in relation to intellectual property.[18]
The Minister explains that, in response, a large majority of Member
States have argued for a much narrower reading and that 19 Member
States have intervened in support of the Council against the Commission
in Case C-440/05, which concerns a challenge by the Commission
to the Council's adoption under the EU Treaty of a measure providing
for criminal sanctions in relation to pollution from ships.
4.10 The Minister also informs us that in its observations
in that case, and in negotiations on proposals recently introduced
by the Commission, "the UK, like many other Member States,
has argued that such competence is limited to the area of environmental
protection, that competence does not extend to national law beyond
the scope of the relevant Community rules and that it does not
extend to setting out detail on the nature of the criminal sanctions
to be applied". The Minister notes that the Advocate General
gave his opinion in Case C-440/05 on 28 June, endorsing a wide
scope of Community policy areas but limiting it to requiring sanctions
that are effective, proportionate and dissuasive, and that the
ECJ is expected to give its judgment in the autumn.
4.11 In relation to our comments on the drafting
of Article 10, the Minister agrees with us that this drafting
requires clarification. The Minister informs us that further comments
are awaited on this point, and that proposals containing criminal
sanctions will not be finalised until after the judgment of the
ECJ in Case C-440/05. With respect to our observation that Article
10 appeared highly prescriptive, and that the involvement of four
illegal workers appeared an arbitrary basis for the threshold
for criminal liability, the Minister comments that the Border
and Immigration Agency currently use similar categories for their
enforcement operations. The Agency would categorise as a "lower
tier operation" one in which there was a realistic expectation
of finding up to three named offenders, with a "middle tier"
operation involving more than three but fewer than twenty offenders.
The Minister comments that "this corresponds with the Directive,
which proposes that four or more illegal workers found should
constitute a more serious offence".
4.12 The Minister concludes by noting the comments
we have made, and indicates that the Government expects changes
to be made to the text of the proposal in the course of negotiation.
The Minister also assures us that we will be informed as soon
as a decision is made on opting in.
Conclusion
4.13 We thank the Minister for his helpful reply
to our questions and for the detailed explanation of the Government's
position on Community competence in relation to the criminal law.
4.14 We are grateful for the Minister's consideration
of our points in relation to Articles 9 and 10 of this proposal,
and for the helpful information on how the Border and Immigration
Agency categorises the seriousness of offences relating to the
illegal employment of workers. We accept that the number of offenders
involved can be a useful means of assessing the seriousness of
an offence, but it still seems to us unusual to make criminal
liability turn on the involvement of a precise number of offenders.
We shall look forward to a further account of negotiations on
these provisions in particular.
4.15 We shall also look forward to being informed
of the Government's decision on whether or not to opt in to this
proposal. We shall hold the document under scrutiny in the meantime.
17 This provides for the adoption of measures on immigration
policy within the area of "illegal immigration and illegal
residence, including repatriation of illegal residents". Back
18
Which we are holding under scrutiny, see (27460) HC 34 -xxxi (2005-06),
para 8 (14 June 2006). Back
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