Fighting Labour Exploitation? What does the Employers Sanction Directive actually do?

There is no doubt that severe labour exploitation takes place in EU member states. It often involves third-country nationals (TCNs) being in an irregular residence situation. Be it the landmark cases of Bangladeshi strawberry pickers in Manolada, Greece, irregular migrant workers in southern Italian agriculture or any other instances of everyday exploitation that receive less public attention. Moreover, social and employment protection legislation is still largely a responsibility of the member states. However, the EU has adopted the Employers Sanction Directive (2009/52/EC), which requires Member States to criminalise and sanction employers who hire TCNs in an irregular situation. While the mere legal implementation of the Directive is regularly monitored by the European Union Agency for Fundamental Rights (FRA 2020), little is known about how the Directive contributes to the fight against labour exploitation. This is further complicated by the multiple objectives attributed to the Directive by the Commission in its initial impact assessments. These include reducing irregular migration and the employment of undocumented TCNs. The Commission also sought to ensure fair competition and, finally, to curb exploitative employment. Twelve years after coming into effect, this study aims to assess to which extent the Employers Sanction Directive contributes to curbing exploitative employment of TCNs. The paper examines how member states use the room for manoeuvre left by the Directive and how they prioritise its competing rationales of combatting irregular migration and ensuring fair competition. Through a comparative analysis of member states’ implementation and the implications on the situation of migrant workers, I argue that the Directive has proven to be a toothless tiger. Rather, the reduction of exploitative employment depends on whether member states see it as a domestic priority.