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Implementation impacts of the EU directives on foreign employment

- Single Permit Directive, Employers Sanctions Directive

in Germany 

Caritas Association for the Diocese of Osnabrück/Germany e.V.Dr. Barbara Weiser

Stand: 16.09.2014

Note: The views expressed therein reflect the opinion of the author

Single Permit Directive

Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 (Single Permit Directive):

1.Single application procedure for a single permit means a residence permit issued by the authorities of a Member State allowing a third-country national to reside legally in its territory for the purpose of work (Art 4 Para 1; Art. 2c).

Single Permit Directive

Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 (Single Permit Directive):

2. Right to equal treatment (Art. 12) for Third-country workers as referred to in points (b) and (c) of Article 3(1) with regard toworking conditions, including pay and dismissal as well as health and safety at the workplacefreedom of association, membership a Trade Unioneducation and vocational trainingrecognition of diplomas, certificates and other professional qualificationsbranches of social security, as defined in Regulation (EC) No 883/2004advice services afforded by employment offices.

Single Permit Directive

Transposition in GermanyAmendment of statutory pension insurance law: pension based on the employment in Germany will be paid without any shortage to persons living now abroad Other amendment weren‘t considered to be necessary, because the single application procedure and the right to equal treatment as to the labour law, the recognition of diplomas etc. were just implemented in the German legal system.

 

EU Sanctions Directive

Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 (EU Sanctions Directive)The legal position of the illegally employed third-country is strengthened: 1. Claim of remuneration

2. Enforcement of the claim of remuneration

3. Right of residence to enforce the claim of remuneration.

EU Sanctions Directive1. Claim of remuneration (Art. 6; 8)Transposition in Germany

Civil-law claim of remuneration (Art. 98a Para. 1-5 Residence Act) The employer is obligated to pay the agreed level of remuneration to the foreigner employed without work permit For the remuneration shall be presumed that the duration of the employment was three month. The agreed level of remuneration shall be presumed to be the usual remuneration, unless either the employer stipulated with the employee permissibly a lower or a higher remuneration. The liability of the main contractor and any intermediate subcontractor under certain conditions.

EU Sanctions Directive

1. Claim of remuneration (Art. 6; 8)

Conclusions concerning transpositionThe opportunity to provide for more stringent liability rules under national law has not been implemented.

EU Sanctions Directive

2. Enforcement of the claim of remuneration (Art. 6; 13)Transposition in Germany Legal situation prior to transpositionAll employees including persons working without residence permit or work permit could take legal action against the employer, even from abroadThe bringing of action could be affected by a representative of a trade union Access to legal aid and aid for legal counselling The judgement can be enforced in Germany; enforcement from abroad implies appropriate enforcement agreementsAccording to the general administration regulation providing assistance to third-country nationals to lodge complaints shall not be considered as facilitation of unauthorised residence.

EU Sanctions Directive

2. Enforcement of the claim of remuneration (Art. 6; 13)Transposition in Germany

Single amendment after transpositionCompetence of the German industrial court for legal action against the main contractor and any intermediate subcontractor (Art. 98a Para. 6 Residence Act).

EU Sanctions Directive

2. Enforcement of the claim of remuneration Conclusions concerning transpositionMany prospective obstacles to claim for remuneration still exist:Essential imbalance between the employee and the employer (e.g. as to languages skills, information about their rights)Lack of individual protection and security for the employeeLack of evidence that the employee has workedThe expectation that the employee will be condemnedThe court may request the employee to appear personally at the hearingIf a judge became aware of the fact that an employee worked without a residence permit and/or without a work permit, he could notify the aliens department accordingly.So it can be assumed that effective procedures to enforce the claim of remuneration are not widely available in practice.

Related decisions of German courts are not available.

EU Sanctions Directive

3. Right of residence (Art. 13 Para 4; 6 Para 5)Transposition in Germany (Art. 25 Para. 4b Residence Act)a. The residence permit may be granted A foreigner as victim of particularly exploitative working conditions illegal employment of a minor may be or in some cases of the temporary hiring of an employee without permission (Art. 15a Employment Assignment Act)may be granted a residence permit for his presence during the criminal procedure under certain conditions. b. The residence permit may be extended if the employer did not pay the remuneration completely and if it would be a special rigidity to enforce the claim of remuneration from abroad.

EU Sanctions Directive

3. Right of residenceConclusions concerning transpositionThe option to receive a residence permit depends on many factorsDiscretionary decision No legal security of being protected even if the employee appears in court as a witness, because the residence permits is revocableEnforcement after the return is preferential; the extension of the residence permit for the enforcement of the remuneration claim is only liable under extremely difficult conditions.

Contact

Caritasverband für die Diözese OsnabrückMandant 504 Knappsbrink 58 49080 Osnabrück

Norbert Grehl-SchmittTel: +49(0)541/34978-161Fax: +49(0)541-34978-4161ngrehl-schmitt@caritas-os.de

Dr. Barbara WeiserTel: +49(0)541/349698-19Fax: +49(0)541/349698-18 bweiser@caritas-os.de