Legislative update: EC immigration and asylum law attracting and deterring labour migration: The blue card and employer sanctions directives

European Journal of Migration and Law

Volumn 11, Issue 4, 2009, Pages 387-426

  Peers, Steve ^a  

^a UNIVERSITY OF ESSEX   (United Kingdom)

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EID: 70450233532     PISSN: 1388364X     EISSN: 15718166     Source Type: Journal    
DOI: 10.1163/138836409X12501577630786     Document Type: Review

References (323)

1. See respectively COM (2008) 761, 28 Nov. 2008 and COM (2008) 891, 19 Dec. 2008.
2. See COM (2009) 90, 27 Feb. 2009 and COM (2009) 91, 27 Feb. 2009.
3. COM (2009) 102, 4 Mar. 2009.
4. COM (2009) 293, 24 June 2009.
5. For the original proposal, see COM (2007) 638, 23 Oct. 2007.
6. COM (2007) 439, 23 July 2007.
7. COM (2007) 298, 6 June 2007.
8. See s. 3 below.
9. COM (2008) 815, 820 and 825, 3 Dec. 2008.
10. See respectively COM (2009) 66, 18 Feb. 2009 and COM (2009) 67, 18 Feb. 2009.
11. Prior to 2009 the Court had given only judgment in a reference concerning EC immigration and asylum law: Case C-241/05 Bot [2006] ECR I-9627, concerning the Schengen freedom to travel rules.
12. Case C-19/08 Petrosian, judgment of 29 Jan. 2009.
13. Case C-465/07 Elgafaji and Elgafaji, judgment of 17 Feb. 2009.
14. Case C-139/08 Kqiku, judgment of 2 April 2009.
15. See respectively Joined Cases C-175/08 to C-179/08 Abdulla and others and Cases C-261/08 Zurita Garcia and C-348/08 Choque Cabrera (on which an Advocate-General's Opinion was released on 19 May 2009).
16. On the qualification Directive, see Cases C-31/09 Bolbol, C-57/09 B and C-101/09 D.
17. On the family reunion Directive, see Case C-578/08 Chakroun.
18. Cases C-293/08 Commission v Finland (5 Feb. 2009), C-256/08 Commission v UK (30 April 2009) and C-322/08 Commission v Sweden (14 May 2009) all concerned non-transposition of the qualification Directive. Case C-266/08 Commission v Spain (also 14 May 2009) concerned non-transposition of Direc tive 2004/81, on the legal status of the victims of trafficking in persons.
19. Case C-269/08 Commission v Malta, concerning the qualification Directive.
20. Cases C-272/08 Commission v Spain (non-transposition of the qualification Directive) and C-523/08 Commission v Spain (non-transposition of Directive 2005/2071 on third-country national researchers).
21. Case C-482/08 UK v Council.
22. COM (2007) 637, 23 Oct. 2007.
23. [2009] OJ L 155/17.
24. Art. 23(1). All references in this section are to the Blue Card Directive, unless otherwise specified.
25. See Art. 2(c).
26. Art. 3(1).
27. Art. 2(b).
28. The reference to national law definitions of 'employee' suggests a possibly more limited interpretation, however. This part of the definition was added by the Council (compare to Art. 2(b) of the original pro posal).
29. See the case law on payment in the context of EC free movement law, for instance: Case C-3/87 Agegate [1989] ECR I-4459.
30. Art. 2(g). Note that the Commission had proposed that only three years of 'equivalent' professional experience would be sufficient; moreover this alternative would have applied in all Member States, instead of as a derogation (Art. 2(b), original proposal). The references to comparability to educational qualifica tions and relevance of the professional experience were also added.
31. Art. 2(h).
32. Art. 2(i).
33. Art. 3(2)(a) to (c).
34. Art. 3(2)(e) and 3(2), second sub-paragraph.
35. Art. 3(2)(d), (f ) and (j).
36. Art. 3(2)(g), (h) and (i). The exclusions for seasonal workers and posted workers were added by the Council.
37. Art. 3(3). The EC has not concluded any such agreements. The Commission's original proposal did not provide for the Member States to conclude such agreements unilaterally. On the rationale for this provision, see recital 22 of the preamble.
38. Art. 8(4) gives Member States an option to refuse applications 'in order to ensure ethical recruitment in sectors suffering from a lack of qualified workers in the countries of origin'.
39. Art. 3(4). This provision was added by the Council.
40. This is an interpretation of Art. 3(4) a contrario Art. 4(2).
41. See Art. 10(1) of the Directive.
42. This is confirmed (as regards employees) by recital 7 of the preamble to the Directive.
43. Art. 6. An application for a Blue Card may be considered inadmissible on such grounds (Art. 8(3)). Recital 8 in the preamble clarifies that this power may also be used to restrict access to employment for third-country nationals who are already legally resident, for example as students or researchers under other EC legislation, and can moreover could be applied so as to refuse to admit any workers, either to the employment market as a whole or to specific professions, sectors or regions only.
44. Art. 18(7).
45. Art. 4(1).
46. Art. 4(2), referring to: Art. 5(3) in conjunction with Art. 18; Art. 11; Art. 12(1), second sentence; Art. 12(2); Arts. 13-15; and Art. 16(4).
47. The 'compatibility' requiremenThis sometimes found in EC legislation that permits 'more favourable standards'; see, for instance, Art. 3 of the qualification Directive (Directive 2004/2083, OJ 2004 L 304/12). Oddly, this requirement does appear in the preamble to the Directive (recital 7), as regards 'additional rights and benefits which may be provided by national law'.
48. Arts. 2(g), 5(1)(a), (d) and (e) (to an extent), 5(2), 5(5), 6, 8(3), 8(4), 8(5), 10(3), 10(4), 14(2), 14(4), 15(7), 16(5), 18(2), 18(5), 18(7), 19(3) and 19(4). Furthermore: Art. 5(3) provides discretion for Mem ber States to set a salary threshold above 1.5 times the average annual salary; Art. 7(2) gives a range of possibilities for the period of validity of the Blue Card; Art. 8(2) provides for an option of giving priority to (essentially) the local workforce over Blue Card Holders for a period; Art. 9(3) contains optional grounds for non-renewal or withdrawal of a Blue Card; Art. 10(1) provides for options as to whether an employer, an employee, or both, can submit a Blue Card application; Art. 12(1) provides for an option as regards equal access to employment after two years; and Art. 12(3) and (4) alternatively permit restrictions on such equal access if granted. Also, Arts. 2(b), 2(g), 3(2)(c), 5(1)(b), (c) and (d), 8(2), 11(1), 11(3), 12(2), 14(1)(e), (f ) and (h), 14(4), 18(2), 18(4)(b), 18(5) and 19(2) refer to 'national law' as regards some issues.
49. Art. 10(1). The original proposal (Art. 11(1)) did not provide an option to allow either the employer or employee to make applications.
50. Art. 5(1).
51. A 'regulated profession' has the same meaning as EC free movement legislation: see Art. 2(j). This definition was added by the Council.
52. Art. 5(2). This option was added by the Council.
53. Art. 5(3). This is to be calculated in accordance with EU statistical data and national data 'where appropriate': see Art. 20(3). The Commission had proposed instead a threshold of three times the mini mum monthly wage (Art. 5(2), original proposal).
54. Art. 5(5). For the calculation rule, see ibid. This exception was added by the Council. The Commis sion had proposed instead a derogation relating to workers under 30 (Art. 6, original proposal), but this was dropped by the Council.
55. More precisely, group 1 consists of: chief executives, senior officials and legislators; administrative and commercial managers; production and specialized services managers; and hospitality, retail and other services managers. Group 2 consists of science and engineering professionals; health professionals; teach ing professionals; business and administration professionals; information and communications technology professionals; and legal, social and cultural professionals. See http://www.ilo.org/public/english/ bureau/ stat/isco/docs/resol08.pdf, last accessed 25 March 2009.
56. Art. 5(4). This proviso was added by the Council.
57. Art. 5(6), which was added by the Council.
58. Art. 7(1), first sub-paragraph.
59. Art. 7(1), second sub-paragraph, which was Art. 11(3) of the original proposal.
60. Art. 7(2). The Commission had proposed a standard renewable period of two years' validity (Art. 8(2), original proposal).
61. Art. 7(3).
62. Art. 7(4)(a).
63. The Council dropped the Commission's proposal to provide also for the right of transit through other Member States (Art. 8(4)(b), original proposal), but this follows anyway from the Schengen Borders Code (Art. 5(4)(a), Reg. 562/2006 (OJ 2006 L 105/1)). As the preamble points out, the Blue Card residence permit will confer the right of freedom to travel pursuant to the Schengen rules (recital 14).
64. Art. 7(4)(b). Chapter IV of the Directive (Arts. 12-17) is entitled 'Rights'.
65. Art. 8(1).
66. Art. 8(2).
67. Compared to the original proposal (Art. 9(2)), the final version clarifies the definition of the resident third-country nationals who can be given preference, plus adds the power to give preference to long-term residents from other Member States. See also the Council statement on Community preference, adopted alongside the Directive (for the text, see the summary of Council acts for May 2009 (Council doc. 11670/09, 2 July 2009).
68. Art. 8(3) to (5). All three categories were added by the Council, although the power to refuse due to admission quotas was surely implicit in Art. 7 of the Commission's original proposal.
69. In particular, in Arts. 3(4) and 4(2).
70. Art. 9(1).
71. Art. 9(2). The qualification was added by the Council (compare to Art. 10(2), original proposal).
72. The Directive provides a rule on how to evaluate the sufficient resources. However, Member States cannot evaluate this issue during the period of permitted unemployment set out in Art. 13 (discussed below).
73. Art. 9(3).
74. Only the first of these four optional grounds appeared in the Commission's proposal (Art. 10(3), original proposal).
75. Art. 10(1).
76. Art. 10(2).
77. Art. 10(3). This would obviously cover the situation where either the applicant holds a valid short- term visa, or where the applicant has legally entered for a short-term stay and is not subject to a visa obligation because his or her country of origin is on the EU visa 'whitelist'.
78. Art. 10(4), added by the Council.
79. This option is only valid where this restriction (for all third-country nationals or for certain categories of them) existed already at the time of adoption of the Directive (25 May 2009).
80. Art. 11(1).
81. The Commission had proposed a 30 day deadline, with an exceptional possibility of a 60 day decision, without referring to national law as regards the consequences of breaching the rules (Art. 12(1), original proposal).
82. Art. 11(2).
83. The provision for an additional deadline was added by the Council (compare to Art. 12(2), original proposal).
84. Art. 11(3).
85. The original proposal (Art. 12(3)) referred specifically to legal challenges before the courts, but the Council rejected this proposal. It should be noted that the Court of Justice has interpreted an equivalent provision of the family reunion Directive to require a challenge before the courts: Case C-540/03 EP v Council [2006] ECR I-5769.
86. Art. 4(2)(b).
87. Art. 12(1).
88. Art. 12(2);
89. this rule is less stringent than the Commission had proposed (Art. 13(1), original proposal). In accordance with Art. 4(2)(b), this clause is a 'minimum standards' rule. National authorities must reply to applications to change employer within 90 days. Changes affecting the conditions of admission presumably include the situations where Blue Card holders wish to take a different job with the same employer, where their salary is lowered below the level of the salary threshold, or their requirements relating to their existing job are changed. The Directive does not address the possibility that a Blue Card holder's salary will fall below the salary threshold simply because that salary has not increased as fast as the average levels of salaries - as this would not be a 'modification' of the original work contract as such.
90. Art. 12(1), second sentence. In accordance with Art. 4(2)(b), this is a 'minimum standards' rule. The Commission had proposed equal treatment as regards access to employment after two years in all Member States (Art. 13(2), original proposal).
91. Art. 12(2).
92. Again, in accordance with Art. 4(2)(b), this is a 'minimum standards' rule.
93. Art. 12(3).
94. It This not clear when such rules had or have to be 'existing'. By a contrario comparison with Art. 12(4), these two conditions are cumulative, not alternative.
95. Art. 12(4). Again, It is not clear when such rules had or have to be 'existing'.
96. Art. 12(5).
97. The Council dropped the Commission's proposal that Blue Card holders who gained long-term resident status should have equal treatment as regards access to employment and self-employment (Art. 13(3), original proposal), but this clause would simply have repeated the right which already exists in Art. 11 of the long-term residents' Directive (Directive 2003/109, OJ 2004 L 16/44).
98. Art. 13(1).
99. The second possibility was added by the Council (compare Art. 14(1), original proposal). As noted above, the period of validity of the Blue Card will be between one and four years, depending on the Member State (Art. 7(2)).
100. Art. 13(2), referring to Art. 12, discussed above.
101. Art. 13(3).
102. Art. 13(4). This proviso was added by the Council.
103. Art. 4(2)(b).
104. The Directive does not expressly address recognition of qualifications in the context of an application for a Blue Card.
105. See the Annex to Reg. 853/2004 (OJ 2004 L 124/1).
106. Art. 14(1).
107. The Council dropped the Commission's proposal to provide for equal treatment also as regards social assistance, tax benefits and study grants, and widened the qualification relating to free movement (compare to Art. 15(1), original proposal).
108. The Commission's proposal for an option to delay the right to equality in social assistance until the Blue Card holder gained long-term residence status therefore became redundant (Art. 15(3), original proposal). On equal treatment in social security, see the statement by Austria when the Directive was adopted (n. 69 above).
109. Art. 14(2).
110. It is not clear whether the 'specific requisites' can amount to an infringement of the equality rule. The Commission had proposed merely an option for a three-year waiting period before equality as regards study grants and housing benefit (Art. 15(2), original proposal).
111. Art. 14(2), third sub-paragraph.
112. Art. 14(3), added by the Council.
113. Art. 14(4), added by the Council.
114. See the preamble to the Directive (para. 23).
115. It is clear that in the absence of such derogations, the remainder of the family reunion directive will apply (Art. 15(1)).
116. Art. 15(2).
117. The waiting period has also been waived for the family members of refugees (see Art. 12(2), family reunion Directive (Directive 2003/2086, OJ 2003 L 251/12).
118. Art. 15(3), which concerns both the general power to require integration measures in Art. 7(2) of the family reunion Directive, and the specific measures for children over 12 referred to in the last sub- paragraph of Art. 4(1) of the latter Directive. This puts Blue Card holders' family members in the same position as refugees' family members (see Art. 7(2), family reunion Directive).
119. Art. 15(4).
120. Art. 15(5). Under Art. 13(2) of the family reunion directive, the first permit for a family member need only be of one year's duration.
121. Art. 15(6).
122. In accordance with Art. 14(1) of the family reunion Directive, the family members will be entitled to the same access to employment as the sponsor. The delay before application of this provision was added by the Council (compare to Art. 16(5), original proposal).
123. Art. 15(7).
124. Art. 15(8).
125. See the preamble to the Directive (recitals 20 and 21). Again, the LTR Directive (n. 90 above) will apply to Blue Card holders, unless the Blue Card Directive provides otherwise (Art. 16(1)).
126. Art. 16(2).
127. Art. 16(3).
128. This derogates from the rule in the LTR Directive requiring Member States to include in the calculation only absences from national territory of up to six months, adding up to 10 months in total. This rule applies regardless of whether the Blue Card holder has moved within the EC or not. The Commission had proposed a more stringent limit of 16 months (Art. 17(3), original proposal).
129. Art. 16(4).
130. Art. 16(5).
131. The Commission had proposed that this condition would be mandatory (Art. 17(5), original proposal).
132. Art. 16(6).
133. Art. 17.
134. The Commission had not considered that they should be classified as former Blue Card holders (Art. 18, original proposal).
135. Art. 18(1).
136. The Commission had proposed a two-year waiting period (Art. 19(1), original proposal).
137. Art. 18(2).
138. If a Member State prohibits the possibility of work, most of the equal treatment rules are disapplied; if it permits work, then the equal treatment rules are applicable (see Art. 14(4)). The possibility to prohibit employment had been added by the Council.
139. Art. 18(3). The Council added this provision.
140. Art. 18(4).
141. Presumably the rules on readmission and/or temporary unemployment are irrelevant if the Blue Card holder applied from the territory of the first Member State, and/or still held a job in the first Member State, or if the employer in the first and second Member States is the same. The applicant and/or employer may be held responsible for the costs of readmission (see Art. 18(6));
142. the Commission had proposed that this would be a mandatory obligation for the application (Art. 19(4), original proposal).
143. Art. 18(7).
144. Art. 18(5), added by the Council.
145. Art. 20, original proposal.
146. Art. 19(1).
147. Art. 19(2), first sub-paragraph.
148. The Commission had proposed that only the family members could apply for a residence permit (Art. 21(2), original proposal).
149. Art. 19(2), second sub-paragraph. This clause was added by the Council.
150. Art. 19(3). The Council added a reference to a possible visa obligation. Logically a visa requirement should only apply in the event of movement to or from states not yet applying Schengen fully on the one hand to full Schengen states on the other, or between states which do not yet apply Schengen fully.
151. Art. 19(4), added by the Council.
152. See Art. 18(2), referring to the conditions in Art. 5. Moreover, due to the higher than average salary which must be earned by the Blue Card holder, it should not be difficult to aff ord the cost of meeting the accommodation requirement.
153. Art. 19(5), added by the Council.
154. Art. 19(6).
155. Art. 20(1), first sub-paragraph, referring to Arts. 6, 8(2) and 18(6).
156. Art. 20(1), second sub-paragraph.
157. Art. 20(2).
158. Art. 21.
159. Art. 22.
160. Recital 3.
161. Recital 4.
162. Recital 7.
163. See also recital 22, which states that the favourable family reunion rules in the Directive aim to 'attract' highly skilled workers.
164. See also recital 22, which states that the favourable family reunion rules in the Directive aim to 'attract' highly skilled workers. Ibid.
165. Recital 15.
166. Recital 15. Ibid.
167. Recital 17.
168. SEC (2007) 1403, 23 Oct. 2007.
169. See p. 8 of the impact assessment.
170. See p. 9 of the impact assessment, and further Tables 5 and 6. For the projection that this is due to continue in future, see pp. 11-12 of the impact assessment.
171. See pp. 9-10 of the impact assessment.
172. See tables 7, 8, 9 and 16 to the impact assessment.
173. See p. 11 of the impact assessment.
174. See p. 11 of the impact assessment. Ibid.
175. See p. 12 and Table 11, 14 and 15 of the impact assessment report for the statistics on this issue.
176. See the Commission proposal on this issue, currently blocked in the Council (n. 12 above).
177. Pp. 12-13 of the impact assessment, with further references.
178. P. 13 of the impact assessment.
179. P. 13 of the impact assessment. Ibid.
180. P. 14 of the impact assessment, indicating that 1.72% of the EU workforce consists of highly-skilled third-country nationals, as compared to Australia (9.9%), Canada (7.3%), US (3.2%) and Switzerland (5.3%). See further table 2 to the external study (p. 113 of the impact assessment report).
181. Pp. 14-15 of the impact assessment report.
182. Pp. 190-192 of the impact assessment report.
183. P. 15, impact assessment report.
184. P. 16, ibid.
185. P. 17, ibid.
186. P. 18 of the report, note 61.
187. P. 56, ibid.
188. P. 69, ibid.
189. P. 20, ibid.
190. Note 66 on p. 36 of the report, ibid.
191. For the rationale of this part of the proposal, see p. 56 of the report, ibid. It 'would allow the admis sion of young brilliant professionals . . .who, due to their relatively limited professional experience and their position on the labour market, may not be able to fulfil the salary requirements of the main scheme'.
192. P. 55 of the report, ibid.
193. P. 65 of the report, ibid.
194. See S. Peers, 'EU Immigration and Asylum Law Competence and Decision-Making in the Treaty of Lisbon', 10 EJML (2008) 219 at 244-245
195. On the interaction between the EC-Turkey rules and EC immigration law in general, see Peers, 'EU Migration Law and Association Agreements', in: B. Martenczuk and S. van Thiel (eds), Justice, Liberty, Security: New Challenges for EU External Relations, VUBPress 2008.
196. OJ 1996 C 274.
197. COM (2001) 386, 11 July 2001.
198. COM (2007) 249, 15 May 2007.
199. [2009] OJ L 168/24.
200. Draft Fava report, dated 4 July 2008.
201. Art. 17(1).
202. See summary of Council acts for May 2009 (n. 69 above).
203. For the text of the statement, see ibid. Poland also issued a separate more general statement about the role of sanctions in enforcing the Directive.
204. They referred to Cases C-176/03 Commission v Council [2005] ECR I-7879 and C-440/05 Commis sion v Council [2007] ECR I-9097.
205. On this legal issue, see S. Peers, EU Justice and Home Aff airs Law, 2nd edition, Oxford: OUP 2006, pp. 394-396.
206. Art. 1.
207. Art. 15.
208. Art. 8(4). This clause is not subject to the requirement of 'compatibility' with the Directive.
209. Recital 4 in the preamble. Again, there is no reference to 'compatibility' with the Directive here.
210. Compare the Commission proposal for the title and Art. 1 of the Directive. The EP was responsible for the insertion of Art. 15, while the other amendments were made at the Council's behest.
211. Art. 3(3) allows Member States to permit irregular migrants to work if their removal has been post poned. Member States have options, as regards 'household employers', to reduce or waive the levels of obligations and applicable sanctions (Arts. 4(2), 5(3) and 7(2)).
212. Member States also have options as regards a reporting obligation for long-term resident employees (Art. 4(2)), as well as the method of fining employers for breach of the Directive (Art. 5(2)(b)), the mechanisms for employees to obtain back pay owed by employers (Art. 6(2)) and the publication of decisions (Arts. 10(2) and 12).
213. For more on these various options, see the analysis below. Moreover, the Directive refers to 'national law' (or similar phrases) in Arts. 2(c), 2(g), 2(h), 3(3), 6(1), 6(2), 6(5), 8(1), 8(3), 8(4), 9(1), 10(2), 13(1), 13(2) and 13(4).
214. Note that recital 5 of the preamble states that the Directive is 'without prejudice to national law prohibiting the employment of legally staying third-country nationals who work in breach of their resi dence status'.
215. There is no definition of 'self-employment' in the Directive, but see the definition of 'employment' in Art. 2(b).
216. See the definition of 'third-country national' in Art. 2(a); the reference to the Schengen Border Code here (which thereby excludes family members of EU citizens who have moved within the EC, as well as
217. citizens of EEA Member States and their family members) was added at the behest of the Council. Recital 5 of the preamble also states that the Directive does not apply to 'third-country nationals who are in a situation covered by Community law, such as those who are lawfully employed in a Member State and who are posted by a service provider to another Member State in the context of the provision of services.' On the latter category of persons, see also recital 22.
218. See Case C-65/98 Eyup [2000] ECR I-4747.
219. Art. 2.
220. The four new definitions, all added at the Council's behest, concern 'legal person', 'temporary work agency', 'particularly exploitative working conditions' and 'remuneration of illegally staying third-country national' (Art. 2(g) to (j)). Three of the Commission's six proposed definitions were amended: 'third-country national' (see ibid.); 'employment' in Art. 2(c), amended mainly at the behest of the Council (the EP insisted on addition of the word 'supervision'); and 'employer' in Art. 2(e), amended to add a reference to temporary employment agencies at the behest of the Council. The definitions of 'employment' and 'employer' are further clarified in recitals 8 and 9 in the preamble.
221. Art. 3(1). 'Employment' and 'illegally staying' are defined in Art. 2(b) and (c).
222. Art. 3(2).
223. Art. 3(3). This provision was added at the behest of the Council.
224. See Art. 4(1)(a) and (b), discussed further below.
225. Art. 11 of the reception conditions Directive (Directive 2003/2009, OJ 2003 L 31/18).
226. See Art. 10 of Directive 2004/81 (OJ 2004 L 261/19).
227. Art. 4(1).
228. For the definition of 'employer', see Art. 2(e). As noted above, an 'employer' includes a 'temporary work agency'; for a definition of the latter concept, see Art. 2(h).
229. The original proposal would have required that the permit must be valid for the period of intended employment, which would in effect have prevented employers from hiring third-country nationals for periods longer than the validity of their residence permit. The text was amended at the behest of the E P. According to recital 9 in the preamble, this provision should apply to third-country national workers posted by EC companies; this contradicts recital 5, which excludes such persons entirely from the scope of the Directive. As for the position of an employee who is still awaiting a decision on the application for
230. a renewal of his or her recently-expired residence permit when he or she starts work, recital 12 states that to facilitate employers' compliance with their obligations, 'Member States should use their best endeavours to handle requests for renewal of residence permits in a timely manner'.
231. On the last point, the Commission had proposed that employers would also have to notify all termi nation of employment of third-country nationals, and that all notifications would have to be made within one week (Art. 4(2), original proposal). The text was amended at the behest of the Council. Recital 10 in the preamble clarifies that the notifications can take place 'within the framework of other notification schemes', presumably referring inter alia to tax and social security administration.
232. Art. 4(2), first sub-paragraph.
233. The Commission's proposal exempted household employers from the obligation entirely (Art. 4(2), original proposal). The text was amended at the behest of the E P.
234. It is, however, possible, that Member States will, as a matter of national law, extend some or all of these requirements to persons contracting with self-employed third-country nationals.
235. Directive 2003/109 (n. 90 above).
236. Art. 4(2), second sub-paragraph. The original proposal did not include the provision; the text was amended at the behest of the Council.
237. Art. 4(3). This provision combines Arts. 4(3) and 5 of the Commission's proposal, with the addition of the mens rea requirement and the use of the word 'forgery' instead of 'manifestly incorrect'. The text was amended mainly at the behest of the Council.
238. However, this begs the question (raised at the outset) of whether the Directive sets minimum stand ards in respect of all its provisions, or only minimum standards as regards employees' rights. If the former is true, then Member States would indeed be free in principle to insist on strict criminal liability.
239. It is arguable that this explicit wording of the main text conflicts with recital 4 of the preamble, per mitting Member States to establish stricter obligations.
240. Art. 5.
241. For example, see Eyup (n. 191 above).
242. Art. 5(1).
243. Art. 5(2)(a).
244. The precise application of this requirement (ie the exact numbers which will entail higher penalties) is implicitly left to Member States' law. The word 'include' in Art. 5(2) must mean that the list of two measures mentioned in points (a) and (b) is not exhaustive. The Commission had proposed instead 'financial penalties in relation to each illegally employed third-country national'; the text was amended at the behest of the Council.
245. Art. 5(2)(b). It is not clear if the word 'and' means that both sanctions must be applied in individual cases, or rather that both sanctions must be available in national legislation. This word was added during negotiations, at the behest of the Council.
246. This qualification was added during negotiations, at the behest of the Council.
247. Art. 5(3); this option was added during negotiations, at the behest of the EP; the qualification was at the behest of the Council. Arguably the reference to 'financial sanctions' only confers the power to reduce the sanctions which may be applied pursuant to Art. 5(2)(a), rather than the costs of return under Art. 5(2)(b). But the counter-argumenThis that the costs of paying for return also amounts to a financial sanc tion in practice. The definition of 'particularly exploitative working conditions' is set out in Art. 2(i); note that prima facie it appears that even legal working conditions could be covered by this definition.
248. Art. 6(1)(a).
249. Art. 6(1)(b). This includes 'penalty payments for delays and relevant administrative fines'. The refer ence to penalty payments was added during negotiations, at the behest of the Council.
250. Art. 6(1)(c). This provision was added during negotiations, at the behest of the E P.
251. Art. 6(3).
252. The Commission had proposed a six-month presumption, which could have been rebutted by the employer (Art. 7(2)(b), original proposal); this was amended at the behest of the Council (as regards the time limit) and the EP (as regards the possibility of employees rebutting the presumption).
253. Art. 6(1)(a). This elaboration was added during negotiations, at the behest of the E P.
254. Art. 2(j). The relationship between this definition and the wording of Art. 6(1)(a) is not entirely clear.
255. Four weeks' paid holiday or pro rata periods of holiday pay is guaranteed by Art. 7 of Dir. 2003/88 on working time ([2003] OJ L 299/9).
256. A payment in lieu must be made upon termination of employment (Art. 7(2) of the Directive); presumably this will also apply when employment terminates due to the irregular migration status of the employee. Recital 20 of the preamble refers to both holiday funds and social funds as part of back pay.
257. This includes sick pay, maternity pay and pay (or arguably other forms of financial compensation) due from a prior employer due to redundancy, unfair dismissal or insolvency. Some of these issues are addressed by EC legislation (for instance, back pay due following insolvency: see Directive 2008/2094 (OJ 2008 L 283/36)).
258. This is explicit as regards the presumption of three months' back payments (Art. 6(3)).
259. Case C-271/91 Marshall II [1993] ECR I-4367; but see Case C-66/95 Sutton [1997] ECR I-2163.
260. A time limit for bringing a claim can be applied in accordance with Art. 6(2)(a), discussed below.
261. Art. 15.
262. It must always be possible to permit the employee to rebut the presumed period, because preventing an employee from doing this would not constitute a more favourable rule for the third-country nationals concerned.
263. For example, must irregular migrants be included within the calculation of thresholds for application of the collective redundancies directive, or the directive on consultation of employees? See by analogy Case C-385/05 CGT [2007] ECR I-611.
264. On the question of the personal scope of EC social legislation as regards third-country nationals generally, see Guild and Peers, 'Out of the Ghetto? The Personal Scope of EU law', in: S. Peers and N. Rogers (eds), EU Immigration and Asylum Law: Text and Commentary, Martinus Nijhoff 2006.
265. Art. 6(2), which was added during negotiations at the behest of the Council. Recital 16 in the preamble states that 'Member States should not be obliged to involve their missions or representations in third countries in those mechanisms.'
266. Art. 6(2)(a).
267. According to the EC principle of effectiveness, such time limits cannot render the right impossible, and must be equivalent to those applying to comparable claims under national law. For a recent application of these principles, see Case C-432/05 Unibet [2007] ECR I-2271.
268. Art. 6(2)(b). However, the preamble states that if employees are not able to regain back pay from their employer, the State is not therefore liable to pay it (recital 14).
269. It seems obvious also that an employer/employee dispute regarding pay is a civil claim, so Art. 6 ECHR would apply, as would the right to a fair trial pursuant to the general principles of EC law.
270. According to the Court of Justice, costs rules in EC law actions should follow the national rules on costs which apply in comparable cases: Case C-472/99 Clean Car II [2001] ECR I-9687.
271. Art. 6(4).
272. Art. 7(1). During negotiations, a reference to EU funding was added as regards the first point, a refer ence to EC legislation was added as regards the second point, and a reference to withdrawal of licences was added as regards the fourth point. These amendments were made at the behest of the E P.
273. Art. 7(2).
274. The Commission's proposal (Art. 8) simply exempted such employers from these obligations entirely; the text was amended at the behest of the Council.
275. See the definition in Art. 2(f).
276. The entirety of Art. 8 on sub-contractors' obligations was amended considerably as compared to the Commission's proposal (Art. 9, original proposal), at the behest of the EP (as regards 8(1) and (2)) and the Council (as regards 8(3) and (4)).
277. See also the statements by the EP and the Council, Belgium and the Netherlands on Art. 8 (summary of Council acts for May 2009, n. 69 above).
278. Art. 8(1).
279. Art. 8(2).
280. Art. 8(3).
281. Art. 8(4).
282. Art. 9(1).
283. Art. 9(1)(a).
284. The Commission had proposed a more precise definition (Art. 10(1)(a), original proposal); this was amended during negotiations, at the behest of the Council. The EP attempted to introduce objective criminal liability, but this was rejected by the Council. See also the Lithuanian statement on adoption of the Directive (n. 69 above).
285. Art. 9(1)(b).
286. The Commission had proposed a more precise definition (Art. 10(1)(b), original proposal); this was amended during negotiations, at the behest of the Council.
287. Art. 9(1)(c).
288. For the definition of this phrase, see Art. 2(i). The definition which had appeared in Art. 10(1)(c) of the original proposal was amended during negotiations, at the behest of the Council, although the EP amendments are partly reflected in the final text.
289. Art. 9(1)(d). This only applies where the employer was not itself charged or convicted as regards traf- ficking in persons. A reference to EU criminal law measures on this issue was added during negotiations, at the behest of the Council.
290. 'Minor' is not defined in the Directive. This ground for criminal liability was added during negotia tions, at the behest of the E P.
291. Art. 9(2).
292. The Commission had proposed instead liability for inciting or participating in such behaviour (Art. 10(2), original proposal); the proposal was amended during negotiations, at the behest of the Council.
293. Case C-440/05 Commission v Council (n. 181 above).
294. Art. 10(1).
295. Art. 10(2).
296. See also the German statement relating to this clause, issued when the Directive was adopted (n. 69 above).
297. Art. 11; see recital 25 in the preamble.
298. Art. 12, referring to Art. 7. Art. 12 also provides that Member States may publish the list of legal persons convicted of a criminal offence pursuant to the Directive. On the latter point, see also the German statement relating to this clause, issued when the Directive was adopted (n. 69 above).
299. Art. 13(1);
300. this text was elaborated during negotiations, at the behest of the Council. As noted above, all of the obligations in Art. 13 are indisputably minimum standards only (see Art. 15).
301. Art. 13(2). This text was added during negotiations, at the behest of the E P.
302. Art. 13(3). The reference to EC law was added during negotiations, at the behest of the Council.
303. Art. 13(4).
304. This text was weakened during negotiations, at the behest of the Council, although its scope was extended to minors, at the behest of the EP; compare to Art. 14(3) of the original proposal.
305. Art. 6(5). This text was considerably weakened during negotiations (compare to Art. 7(4) of the original proposal), at the behest of the Council. More generally, recital 15 in the preamble states that irregular migrants should not be able to derive a right to stay from the employment or back pay, etc.
306. Art. 14(1).
307. The Commission had proposed a 10% inspection target (Art. 15(1), original proposal); the text was amended at the behest of the Council (the EP had proposed 5%). Recital 29 in the preamble still encourages Member States to set annual targets.
308. Art. 14(2).
309. There is no requirement for the Commission to make these statistics public. The original proposal did not explicitly require inspections to be focussed by sector (Art. 15(2), original proposal); the text was amended at the behest of the Council.
310. Art. 16(1).
311. Art. 16(2).
312. SEC (2007) 603, 16 May 2007.
313. P. 7, impact assessment (ibid.).
314. Ibid.; footnote omitted.
315. P. 8 of the report, referring further to the external study by consultants (footnote omitted).
316. P. 13 of the report.
317. P. 9 of the report. Information on the policy of Cyprus was not available.
318. P. 9 of the report.
319. P. 10 of the report. There is no further information on how this information was gathered.
320. Some of these issues are referred to briefly in recital 30 of the preamble to the Directive (adequate powers to inspect, collection and processing of information, sufficient staff ).
321. P. 10 of the report.
322. P. 11 of the report.
323. Directives 2001/51 (OJ 2001 L 187/45) and 2004/82 (OJ 2004 L 261/24).