Employer's decision to hire a foreigner without a work permit - Obligation to cover assistance and repatriation costs

Facts

R., a farmer in V., employed L., a national of the former Yugoslavia, without authorization for several months. On December 19, 1989, L. fatally struck his partner, then threw himself against a truck. Seriously injured, he was hospitalized and the hospitalization and treatment costs were covered by the Cantonal Assistance Service of the Canton of Fribourg. On June 2, 1993, this service demanded that R. reimburse the assistance costs for L. based on Art. 55 para. 3 of the Federal Ordinance Limiting the Number of Foreigners (OLE). R. appealed against this decision.

Considerations

The Federal Court examines whether Art. 25 para. 1 of the Federal Act on the Residence and Establishment of Foreigners (LSEE) provides a sufficient legal basis for the Federal Council to enact Art. 55 para. 3 OLE, which imposes on the employer the obligation to cover the costs of assistance and repatriation for foreigners employed without authorization.

The Court considers that Art. 25 para. 1 LSEE confers on the Federal Council an extensive legislative delegation of power in the field of foreigner police, which is not limited to simple implementing provisions but also includes secondary rules intended to supplement the law. However, the obligation contained in Art. 55 para. 3 OLE, which imposes a very heavy financial responsibility on the employer, especially when the worker is not insured, cannot be based on this general delegation.

The Court admits that Art. 55 para. 3 OLE may constitute a sufficient legal basis for imposing on the employer the costs of stay or detention for the…