The EU employer sanctions directive and what it means for Serbian firms

Directive 2009/52/EC, published in Official Journal L 168 of 30 June 2009, prohibits the employment of third country nationals staying illegally in the Union and sets minimum sanctions for employers who breach that ban. It binds member states, and it reaches Serbian firms working in the Union as contractors or subcontractors.

The point is that the directive attaches fault to a missed check rather than to intent. An employer who ran the check properly is protected; one who did not is liable even in good faith.

Three duties before the first shift

Article 4 lists what an employer must do before a worker starts. First, require the third country national to produce a valid residence permit or other authorisation for their stay. Second, keep a copy or record of that document for at least the duration of the employment. Third, notify the competent authorities designated by the member state of the start of employment.

An employer who meets those three duties is not held liable for an infringement unless it knew the document was forged. That is the only defence the directive recognises, and it is documentary. What the check looks like in practice, country by country, is set out in right to work verification.

Sanctions, back pay and the three month presumption

Article 5 requires financial sanctions that increase with the number of illegally employed workers, plus the costs of return, either recovered from the employer or built into the sanction itself. The amounts are set nationally and vary from state to state, but the logic of scaling per worker is common to all.

Article 6 is the one that surprises. The employer owes outstanding remuneration presumed at least as high as the wage set by minimum wage laws, collective agreements or established practice, together with taxes and social security contributions. On top of that an employment relationship of at least three months is presumed unless the employer proves otherwise. The burden of proof sits with the employer, and the opening arithmetic runs against it.

Article 8 is why this reaches firms that employed nobody unlawfully. The direct contractor may be liable in addition to or in place of the employer, and main contractors and intermediate subcontractors are liable where they knew the subcontractor was employing illegally staying third country nationals. That is why clients in the Union ask suppliers for evidence rather than assurances, as set out in the employer sponsorship compliance chain.

When unlawful work becomes a criminal offence

Article 9 makes the infringement a criminal offence when it is intentional and accompanied by one of these circumstances: the breach continues or is persistently repeated, a significant number of illegally staying nationals are employed at the same time, the working conditions are particularly exploitative, the employer knowingly uses a victim of trafficking, or the person illegally employed is a minor. Article 11 adds liability of legal persons where the offence was committed for their benefit or where a failure of supervision made it possible.

Article 14 explains why checks cluster. Member states plan inspections primarily on a risk assessment and report annually to the Commission on inspections in absolute numbers and as a percentage of employers in each sector. Construction, agriculture and hospitality sit at the top of that methodology year after year, so crews from Serbia on those jobs should plan for a check rather than an exception. The posting rules that sit alongside it are set out in posting workers from Serbia into the EU.

Article 13 adds a channel employers rarely account for. Member states must provide mechanisms through which illegally employed third country nationals can lodge complaints, directly or through trade unions and associations, and in cases of particularly exploitative conditions or the employment of a minor they may grant a residence permit of limited duration tied to the length of the proceedings. In other words, a case can be opened by the worker rather than by an inspector, and it can be opened after the job has ended.

The difference between a clean firm and an exposed one comes down to one folder: a copy of the permit, the date the start of employment was notified, and the working time records. A firm that keeps that folder current clears an inspection without stopping the site. For corridors with subcontracting chains in the Union, our employer desk checks who in the chain carries the liability before a crew travels.