Thematic feature - implementation of the EU framework equal treatment Directive

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This article examines the Luxembourg situation, as of August 2003, with regard to the implementation and impact of the 2000 EU Directive establishing a general framework for equal treatment in employment and occupation, which seeks to combat discrimination on the grounds of religion or belief, disability, age and sexual orientation.

The EU Directive establishing a general framework for equal treatment in employment and occupation (Directive 2000/78/EC) was adopted in November 2000 (EU0102295F). The Directive seeks to lay down a general framework for combating discrimination, as regards employment and occupation, on the grounds of: religion or belief; disability; age; and sexual orientation. It is to be implemented by the EU Member States by 2 December 2003 (with a possible later deadline for the provisions on age and disability discrimination, if Member States see this as necessary).

A Community Action Programme to combat discrimination 2001-6 was also adopted in November 2000 (EU9912218F). It supports activities combating discrimination on grounds of racial or ethnic origin, religion or belief, disability, age or sexual orientation. Its priorities are: analysis and evaluation, developing the capacity to combat and prevent discrimination, and raising awareness.

In August 2003, the EIRO national centres in each EU Member State (plus Norway), were asked, in response to a questionnaire, to assess how the framework equal treatment Directive is being implemented in each country, and the responses of the state and social partners. The Luxembourg responses are set out below (along with the questions asked).

Existing situation

What was the legislative situation and the policy position of the state as at December 2000 (ie when the Directive was adopted) concerning employment discrimination in the areas of: age; disability; religion or belief; and sexual orientation?

At the time of the Directive's adoption there was no constitutional, legal or regulatory provision of any form in any field combating or prohibiting age-related discrimination against employees, and this is still the case. The explanation for the absence of such provisions may partly lie in the Luxembourg social security system, and in the way it is applied, which has the effect that there are relatively few older workers on the labour market. There is an early retirement scheme for which employees aged 57 may qualify under certain conditions (the normal retirement age is fixed at 65), although its aim is to avoid older workers being made redundant There is also a system offering 'anticipated retirement' (pension anticipée), mostly for people aged between 60 and 65. Furthermore, there is an invalidity pension scheme, which was extensively used between 1985 and 1994, during which time take-up rose by 40%. In an opinion relating to the 1997 draft state budget, the consultative Chamber of White-Collar Workers (Chambre des employés) criticised the fact that the invalidity pension had become the preferred way of ending careers: 'Over the years, legislation that enables workers to retire on an invalidity pension and an attitude that supports a lowering of the qualifying age for the old-age pension have led to what one might call a 'retirement' mentality, with the result that almost 60% of the active population aged 55-60 have already left the labour market.' A tripartite meeting held on 3 May 1999 to take a view on the outcomes of the December 1998 Vienna European Council meeting (EU9812141N), one of whose aims had been to increase employment rates, led the government to examine the issue of early retirement. The trade unions protested vehemently against any attack on the existing early retirement scheme, and were also opposed to a change in the criteria governing the invalidity pension.

The government has increased the maximum age for recruitment to the civil service over the years, but the limit still exists - it stood at 35 before 1995, rising to 40 in that year and again to 45 from 2003.

With regard to discrimination on grounds of disability, religion or belief and sexual orientation, the law of 19 July 1997 amended the Penal Code, prohibiting discrimination, which is defined (in Article 454) as follows: 'Discrimination is any form of discrimination practised between natural persons by reason of their origin, their skin colour, their gender, their sexual orientation, their family situation, their health, their disabilities, their customs, their political and philosophical opinions, their trade union activities, or their real or assumed membership or non-membership of a particular ethnic group, nation, race or religion.'

The law of 26 May 2000 (LU0005137F) seeks to protect employees against sexual harassment.

State response

How has the state responded to the Directive since December 2000 in terms of:

  • legislation concerning discrimination and draft legislation on the grounds of age, disability, religion or belief and sexual orientation (please specify details of title, date and main provisions and exclusions). With respect to age and disability, please specify if the state has opted to take the option of extending the deadline for implementation of the Directive and, if so, on what grounds;
  • broader policy response, consistent with the Action Programme, for example: support for anti-discrimination activities; analysis of the extent and nature of the discrimination; arrangements for monitoring and enforcement; positive action; information and dissemination activities; and promotion of social dialogue and anti-discrimination collective agreements.

Existing anti-discrimination provisions (see above) are not seen as meeting the requirements of the framework equal treatment Directive. The Ministry of Labour and Employment is thus currently finalising a bill to transpose the Directive by prohibiting various forms of discrimination in relation to employment. This bill should be presented to the cabinet in early autumn 2003, and it will then follow the normal legislative procedure. Anything between six months and a year is needed for a law to be finalised. The text of the bill is not yet public, but it is understood that that discrimination on grounds of age and disability is referred to, and that the government is not planning to take up the option of extending the implementation deadline with regard to the Directive's provisions in these areas.

The Ministries of the Family and Justice are currently preparing a bill covering the forms of discrimination dealt with in the framework Directive, but in the wider social context beyond the workplace. The bill is at the same stage of drafting as the text being drawn up by the Ministry of Labour and Employment.

In terms of the broader policy response, in early 2003, the Ministry of the Family launched an information campaign on anti-discrimination that involved awareness-raising through posters and leaflets. Some 5,000 copies each of five separate posters and leaflets have been printed and distributed in public places and workplaces.

Social partner response

What have been the views and policy response of the social partners to (a) the Directive and (b) its transposition into national law? How has social dialogue proceeded on the issues covered by the Directive? Have there been any collective agreements on the issues covered by the Directive since December 2000 in terms of age, disability, religion or belief, or sexual orientation (please give examples, including reasons and bases for introduction)?

The content and the transposition of the Directive have so far stirred little response among the social partners. The social partners will give their opinions through the various consultative Chambers during the legislative process for the laws transposing the Directives. It is not expected that any objections will be raised to the Directive's provisions, as Luxembourg is regarded as a multicultural country, which has a very high proportion of foreign workers, and is generally seen as very tolerant (for example, it likely that Luxembourg will soon make it possible for same-sex couples to marry).

The issue of discrimination on the grounds covered by the Directive is not dealt with in collective agreements. Such matters do not seem to be very prominent on the social partners' agendas, though with some exceptions. For example, the Luxembourg Confederation of Independent Trade Unions (Onofhängege Gewerkschafts-Bond Lëtzebuerg, OGB-L) opened a new 'disabled workers department' in January 2003, which will promote equal opportunities for people with disabilities (LU0302101N).

Impact

What has been the impact of any initiatives in your country in the areas covered by the Directive? Are there monitoring arrangements in place, and if so, what experiences do they report in response to the Directive?

As outlined above, combating discrimination on the grounds covered by the Directive discrimination is not high on the agenda in Luxembourg, as it is thought that levels of tolerance and non-discrimination are already high. The Directives will be transposed a little late, and apparently without much enthusiasm. There is a view among experts that the implementing legislation - as well as the government's current information and awareness-raising campaign on discrimination - will have few tangible effects. (Marc Feyereisen)

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