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Caritas Association for the Diocese of Osnabrück/Germany e.V. Dr. Barbara Weiser Stand: 16.09.2014

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

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Caritas Association for the Diocese of Osnabrück/Germany e.V. Dr. Barbara Weiser Stand: 16.09.2014

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  1. 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

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

  3. 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 inpoints (b) and (c) of Article 3(1) with regard to • working conditions, including pay and dismissal as well as health and safety at the workplace • freedom of association, membership a Trade Union • education and vocational training • recognition of diplomas, certificates and other professional qualifications • branches of social security, as defined in Regulation (EC) No 883/2004 • advice services afforded by employment offices.

  4. Single Permit Directive • Transposition in Germany • Amendment 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.

  5. EU Sanctions Directive Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 (EU SanctionsDirective) The legal position of the illegally employed third-country is strengthened: Claim of remuneration Enforcement of the claim of remuneration Right of residence to enforce the claim of remuneration.

  6. EU Sanctions Directive • 1. 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.

  7. EU Sanctions Directive 1. Claim of remuneration (Art. 6; 8) Conclusionsconcerning transpositionThe opportunity to provide for more stringent liability rules under national law has not been implemented.

  8. EU Sanctions Directive • 2. Enforcement of the claim of remuneration (Art. 6; 13) • Transposition in Germany Legal situation prior to transposition • All employees including persons working without residence permit or work permit could take legal action against the employer, even from abroad • The 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 agreements • According to the general administration regulation providing assistance to third-country nationals to lodge complaints shall not be considered as facilitation of unauthorised residence.

  9. EU Sanctions Directive • 2. Enforcement of the claim of remuneration (Art. 6; 13) • Transposition in Germany Single amendment after transposition • Competence of the German industrial court for legal action against the main contractor and any intermediate subcontractor (Art. 98a Para. 6 Residence Act).

  10. EU Sanctions Directive • 2. Enforcement of the claim of remuneration • Conclusionsconcerning transposition Many 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 employee • Lack of evidence that the employee has worked • The expectation that the employee will be condemned • The court may request the employee to appear personally at the hearing • If 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.

  11. 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.

  12. EU Sanctions Directive • 3. Right of residenceConclusionsconcerning transposition • The option to receive a residence permit depends on many factors • Discretionary decision • No legal security of being protected even if the employee appears in court as a witness, because the residence permits is revocable • Enforcement 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.

  13. Contact Caritasverband für die Diözese Osnabrück Mandant 504 Knappsbrink 58 49080 Osnabrück Norbert Grehl-Schmitt Tel: +49(0)541/34978-161 Fax: +49(0)541-34978-4161 ngrehl-schmitt@caritas-os.de Dr. Barbara Weiser Tel: +49(0)541/349698-19 Fax: +49(0)541/349698-18 bweiser@caritas-os.de

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