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Working in Luxembourg –Second Edition - Update October 2006

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Chapter 1212.1. General Introduction

The right to work is enjoyed by every Luxembourg national by virtue of Article 11(4) of the Constitution of1868, as subsequently amended. An exception to this rule was established by the Law of October 28, 1969replaced by articles L.341-1 to L.345-2 of the Luxembourg Labor Code, which prohibit the employment ofchildren aged under the age of 15, whatever the nature of the work. Similarly, articles L.512-1 to L512-14 of theLuxembourg Labor Code prohibit the engagement or continued employment under contract of any person whohas reached the age of retirement and is in receipt of a pension greater than the minimum statutory wage, unlessthat person has specifically applied to the Minister of Labor and Employment for a dispensation, which is grantedonly after seeking the opinion of the Employment department (Administration de l'Emploi (ADEM)).

The engagement of foreign labor is governed by articles L.544-1 to L.544-11 of the Luxembourg Labor Code andthe provisions of the Law of March 28, 1972 on the right of foreigners to enter and reside in Luxembourg, theirmedical examination, and the employment of foreign labor, as subsequently amended.

In order to take up paid employment in Luxembourg, an alien must first satisfy the conditions entitling him/herto enter and reside in the country (for which the local authority is competent) if this person wants also to residein Luxembourg and, in addition, must hold a work permit. For entry and residence there are two categories ofworkers, depending whether they are nationals of another European Union or European Economic Area MemberState or of a non-member country.

Under the provisions of the Grand Ducal Regulation of March 28,1972, on the conditions of entry and residenceof certain categories of aliens covered by international convention, as subsequently amended, a national of anyMember State of the European Union or the European Economic Area needs only to produce a national identitycard, a passport which is current or expired less than five years previously or any other identity documentaccepted to pass the borders in order to enter Luxembourg territory.

If a worker wishes to stay more than three months in Luxembourg, he/she may receive authority to stay byvirtue of being issued with a residence permit for a national of a Member State of the European Union.Application for a permit must be made to the local authority, which is responsible for receiving notifications ofarrival. The permit is valid for five years initially, and on renewal, for ten years. Renewal is automatic.

European Union nationals have not needed a work permit in order to enter paid employment since EEC RegulationNo 1612/68 came into effect on November 8, 1968.

Accordingly, as far as employment is concerned, Luxembourg nationals and the nationals of other EuropeanUnion Member States are treated alike; their equal treatment has been extended to the nationals of the EuropeanEconomic Area Member States.

An alien who is not a national of a Member State of the European Union or of the European Economic Area mayenter Luxembourg territory only on production of a passport and a visa if appropriate.

Under the provisions of the Grand-Ducal regulation of March 28, 1972 on the formalities to complete by aliensin order to stay in the country, as subsequently amended, an alien who is not a national of another MemberState of the European Union must notify the local authority of his/her arrival even if he/she intends to stay forless than three months. For such a visitor, registration in the records kept by hoteliers as required by law issufficient, provided the visit lasts no more than three months and the visitor exercises no gainful activity. Avisitor who wishes to stay for more than three months must also apply for an alien's identity card. However,foreigners who intend to stay in Luxembourg for a foreseeable period of one year or less do not need to applyfor an alien's identity card.

12.2. Work Permits

Please see Chapter 13 for detailed information on work permits.


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12.3. Employer - Employee Relationship

12.3.1. The Contract of Employment

In Luxembourg law, the relationship between employer and employee is in principle an individual one. Theemployer must enter into a written contract with each of his/her employees.The rules for a contract of employment are set out in the Luxembourg Labor Code. These apply to both staffemployees and manual workers.

The Luxembourg Labor Code lays down the minimum rights and responsibilities of each party. The contractmay, in consequence, refer simply to these statutory provisions, or may set out further conditions that aremore favorable to the employee. The contract cannot provide for exceptions to the minimum statutoryrequirements, which are to the disadvantage of the employee; any such clause would be deemed null and void.

Any contract of employment must be in writing and must contain the following details:

• the identity of the parties;• the date the contract begins to take effect;• the place of employment or, if appropriate, the principle that the employee may be employed in various

locations and/or, more specifically, abroad or at the employer's private residence;• the nature of the employment with, if appropriate, a statement of the employee's tasks or functions at the

moment of the contract, without prejudice to any subsequent appointment;• the employee's normal working day or week;• the normal working hours; 1

• the basic salary or wage to be paid, plus any additional payments, together with the frequency at which theemployee's remuneration is to be paid;

• the length of any probationary or trial period;• any exclusions or additional terms.

Reference should also be made in the contract to the statutory provisions, regulations, administrative rules,staff rules or collective agreements under which the length and conditions of the employee's paid holidays aredetermined, and under which any notice of termination must be given by either employee or employer.

Where appropriate, reference should be made to the collective agreements governing employment conditionsof employees.

Additional provisions should cover any possibility of the employee being required to work temporarilyoutside the territory of the Grand Duchy.

A written contract is required regardless of whether the employment is for a fixed term or open-ended. Anindividual written contract must be drawn up for each employee no later than the moment he/she commencesemployment. The contract must be in two copies, one each for the employer and the employee.

In businesses and sectors where collective agreements are negotiated, an individual contract must still bedrawn up for each employee.

If no written contract exists, the employee may use any means to establish the existence and the content ofhis/her contract, irrespective of the nature of the point at issue. The law does not, however, allow this libertyto the employer: the written word is his/her only means of proving the existence and terms of a contract ofemployment.

When either party refuses to sign a contract of employment, the other party may, not earlier than the thirdday following his/her request for a signature, and within 30 days of the employee's commencingemployment, withdraw from the contract without notice and without penalty.

Luxembourg labor law applies to all work performed on the territory of the Grand Duchy.

1 Already mentioned in the following paragraph.


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[ ]2

12.3.2. Classification of Employment Contracts

The Luxembourg Labor Code sets out a classification of contracts of employment, but provides that, inprinciple, such contracts are open-ended. The fixed-term contract of employment is therefore the exception,and may only be used when all the conditions laid down by the law are met.

Fixed-term contract

Article L.122-1 of the Luxembourg Labor Code lays down that a fixed-term contract may only be made inrespect of a specific, short-term task, and that it cannot be made with the aim of filling permanently a jobwhich forms part of the normal, everyday activities of the business.

In the last resort, it is up to the employment tribunal to determine whether the conditions justifying theconclusion of a fixed-term contract of employment have been met.

A fixed-term contract can be concluded for a maximum period of 24 months. The contract can only berenewed twice and provided that a renewal clause is contained in the original contract or in a separatesupplementary agreement.

Any contract concluded in breach of the rules relating to the aims of the fixed-term contract and to itsduration is deemed to be concluded for an indefinite period of time.

The fixed-term contract of employment must be in writing and in two copies and must contain in addition tothe contractual information previously indicated above for all employment contracts the following details:

•the date of the contract's expiry, if this is fixed;•the most important: the object of the contract (i.e. the specific, short term task for which the contract has

been concluded);•the minimum period for which the contract is concluded, if no date of expiry is stated;•the name of the absent employee who is being replaced under the contract, where appropriate;•the length of any probationary or trial period;•a renewal clause, where appropriate,

The fixed-term contract may not be terminated before the completion of its term, except by mutualagreement, in the case of gross misconduct or during the probation period.

If one of the parties fails to observe these rules, the other is entitled to compensation and interest equal tothe remuneration which would have been payable up to the normal termination of the contract, but notexceeding the remuneration which would have been payable to cover the period of notice which would havebeen applicable had the contract been open-ended.

At the term of the fixed-term contract, the employer does not have immediately the possibility to recruitanother person under fixed-term or temporary contract to fulfill a similar position. To do so, the employershould respect a period corresponding to a third of the total duration of employment of the previousemployment contract (renewals included).

Note however that it can be converted into a permanent contract if and where appropriate.

Temporary contract

The employer also has the option to recourse to an employment agency specializing in temporary work(which must be licensed by the Labor and Employment Minister) providing temporary staff and charging afee for this service. The recourse to temporary contracts must be justified by the same aims as for fixed-termcontracts (i.e. specific and non-permanent tasks).

2 Already mentioned in 12.4.


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In this case, the employment contract is not issued by the company but by the temporary employment agency.

In terms of compensation, the temporary employee should earn a similar salary as an internal employee wouldearn for a similar function internally.

In principle, the total duration of a temporary contract cannot exceed 12 months, renewals included, for asame employee and a same position.

In terms of succession of contracts, the same rules apply as for the fixed-term contracts., It can only berenewed twice.

Part-time contract

Part-time employment means that an employee has a special agreement with his/her employer to work anumber of weekly hours inferior to the normal working hours, which is 40 hours per week.

The contract can be permanent or on a fixed-term basis.

According to the legal requirements, the employment contract should specify the agreed working pattern andany subsequent modification must be made by mutual consent.

Any hour worked in addition to the agreed work pattern is considered as overtime.

Student contract

According to the legal definition, a student is a person aged between 15 and 25 currently registered in aschool on a full-time basis.

A student contract is to be completed when the company employs a student to carry out some specific dutiesduring school holidays. The contract has to be signed by the employer representative and by the student. If thestudent is still minor (under age 18) the responsible parent needs to sign as well.

It is to be differentiated from a placement as a trainee (see below). The latter is normally ruled under a traineeconvention between the company, the school and the student and is usually only valid during the academicyear.

The law strictly requires that the employment contract must be made in three copies and that one copy shouldbe sent within 7 days after the starting date of the student to the Labor and Mines Inspectorate.

The student has to be registered at the social security authorities, but only for the accident insurance, a copyof the student contract needs to be attached.

A student contract cannot exceed 2 months per year.

The remuneration for a student has to be at least 80% of the social minimum salary and depends on thestudent's age. The following special rate structure applies to the salaries payable under student contracts:

Age Monthly gross minimum salary(index 100)

Monthly gross minimum salary(index 652,16)3

15 years–17 years EUR 138.3180 EUR 902.0617 years–18 years EUR 147.5392 EUR 962.19Over 18 years EUR 184.4240 EUR 1,202.74

Contrat de stage

3 Please note that from December 1st, 2006 onwards, the index will be increased to 668,46.


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Some schools require their students to do a "stage" (placement as trainee) in a company. During this period noremuneration has to be paid and the social security is guaranteed by the schools/universities. However, the"stagiaires" should be registered for accident insurance.

12.4. Probationary Period

12.4.1. Duration of the Probationary Period

As a general rule a probationary or trial period may be provided for in both open-ended and fixed-termcontracts. A trial period cannot be inferior to 2 weeks. The working practices in Luxembourg are as follows: 6-month trial period for university graduates and a 3-month trial period for junior or administrative positions,Beyond this, the maximum period depends on the level of the employee's qualifications or salary, or both:

•two weeks but not more than three months for an employee whose training qualifications are below the levelof the CATP (certificat d'aptitude technique et professionnelle);

•two weeks but not more than six months for an employee with a CATP, its equivalent, or any higherqualification;•two weeks but not more than 12 months for any employee whose gross monthly starting salary is EUR 536 or

more, index 100 (At October 1, 2005, the index stood at 652.16, giving a gross monthly starting salary of EUR3,495.574). For the purposes of this computation, all bonuses, tips, etc. and any additions to salary are includedat one twelfth of their annual value.

A probationary period of less than one month must be expressed in terms of whole weeks; if of more thanone month it must be expressed in terms of whole months.

If the contract is suspended during the probationary period, the probation is extended by the length of theperiod it was suspended, up to a maximum of one month. The probationary clause cannot be renewed.

12.4.2. Termination During Probationary Period and Periods of Notice

A contract of employment cannot be terminated unilaterally during the minimum probationary period of twoweeks except in the case of gross misconduct.

After completion of the first two weeks' probation, either party may terminate the contract. The contractmust be terminated by registered letter, or by counter-signature of the second copy of the letter oftermination. No reasons for termination need to be given by either party.

One day's notice of termination is required for each week of the probationary period in the event theprobationary period is expressed in weeks. When the probationary period is expressed in months, the noticeto be given is four days per month, with a minimum of 15 days and a maximum of one month.

Length of probationary period Notice required (calendar days)3 weeks 3 days4 weeks* 4 days2 months 15 days3 months 15 days4 months 16 days5 months 20 days6 months 24 days7 months 28 days8 to 12 months 1 month

* The law provides that probation of less than a month must be expressed in weeks and probation of morethan a month must be expressed in months. No provision in law apparently exists for a probationary periodof one month.

4 idem


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If the contract is not terminated in accordance with the foregoing conditions before completion of theprobationary period agreed by the parties, it is deemed to have been concluded for an indeterminate or, ifappropriate, a fixed period, at the time the employment commenced.

12.5. Termination of Employment

12.5.1. Disciplinary Procedure

In case of misconduct of the employee, a company is entitled to recourse to disciplinary action (which mayinclude termination in the most severe cases).

According to the Luxembourg working practices, the management may, in other than the most serious cases,proceed to a first verbal warning addressed to the employee in order to allow him/her to be aware of theproblem caused by his/her attitude, the non-respect of procedures in place, etc.

If the problem persists, then the management may issue a written warning that should be clear and detailed inorder to describe the problem and explain what is expected of the employee.

It is important to document clearly and specifically (and if at all possible with the acknowledgementsignature of the employee} all instances of poor performance or other disciplinary issues to ensureappropriate documentation in the event more stringent legal actions are required.

12.5.2. Dismissal

The two most compelling disciplinary related reasons for dismissal are serious fault (a one-time instance oftotally unacceptable gross misconduct) or repetitive instances of (documented) poor performance or otherunacceptable activities or behaviour.

Serious Offence / Gross Misconduct (Faute Grave)

General

Either party (employer or employee) may terminate the contract, without notice in the case of an open-endedcontract and before its term in the case of a fixed-term contract, in the event of gross misconduct by theother. If the termination is declared unfair, damages and interest are payable by the offending party inaddition to compensation paid in lieu of notice. 5

An employee dismissed for gross misconduct has no claim to severance pay. One should also be aware thatan employee dismissed for serious offence is not entitled to any claim for unemployment benefits.

Definition

Gross misconduct is defined as any conduct that immediately and definitively makes it impossible tocontinue the working relationship.

The following examples might constitute a gross misconduct:

unjustified absences; insults addressed to the employer; insubordination; theft; systematic refusal to observe the company's security rules; falsifying invoices in the name of the employer; doing illicit work for a client of the employer; competing directly or indirectly with the employer; menacing or exercising physical violence vis-a-vis the employer or supervisor.

5 Already mentioned later on under "Employees Protected From Dismissal"


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This list is not exhaustive.

Time limit

The fact or facts used as justification for termination of a contract on the grounds of gross misconduct byeither employer or employee will not be held as valid if this fact or facts has/have been known to both partiesfor more than one month. This time-limit does not apply when criminal proceedings against either party havebeen begun within one month nor does it apply when either party invokes earlier misconduct in the light of afurther incident.

Process

The dismissal for gross misconduct must be notified by registered letter. The employee's countersignature onthe letter of dismissal is equivalent. The dismissal letter must indicate precisely on what grounds thedismissal is based and what facts are considered as gross misconduct.

As the case may be, the dismissal for gross misconduct must be preceded by the preliminary interview (seebelow).

Termination with Notice

Termination with notice is possible only in the case of an open-ended contract. Both employer and employeehave the right to terminate a contract of employment, even against the wishes of the other party, unless whenthe employee is entitled to a legal protection against dismissal (see below). 6

Compulsory preliminary interview

Any employer with 150 employees or more that contemplates dismissing any employee must, beforereaching any decision, interview the employee concerned.

Notice of such interview must be given by registered letter or in writing by hand, duly acknowledged asreceived. The letter or notice must indicate the purpose of the interview, its date, time and place and thepossibility for the employee to be assisted by another employee of his/her choice or a representative of anational trade union to which the company's staff representatives are affiliated.

Dismissal after interview

Dismissal, whether with notice or for gross misconduct, must be done with notification

no less than the day following the interview; no more than 8 days later.

If the employee does not attend after being summoned to interview, the dismissal may be notified

no earlier than the day following the day set for the interview; no more than 8 days later.

Form of dismissal and notice periods

Should an employer wish to dismiss an employee, the announcement and notification of the dismissaldecision must be sent to the employee by registered letter. The employee's countersignature on the letter ofdismissal is equivalent. 7

If it is the employer who terminates the contract, notice must be given as follows, according to the length ofthe employee's service, irrespective of whether it is a staff employee or manual worker:

6 Not necessary.7 Already mentioned in 12.5.3..


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Length of service Notice requiredLess than 5 years 2 months5 to 10 years 4 monthsOver 10 years 6 months

This period of notice can take effect only on the first or the fifteenth of the month Notice received before thefifteenth of the month takes effect on the fifteenth; notice received after the fourteenth takes effect on thefirst of the following month.

Grounds for dismissal

If so requested by the employee, the employer must state the reasons for dismissal. This request by theemployee must be submitted to the company in the form of a registered letter within one month of the date ofthe notification of dismissal. The employer must state his/her reasons in detail within a further month(counting, according to current case law from the date the employer receives the employee's request). Thestatement must be sent by registered post.

Reasons for dismissal must be supported by demonstrable and explicit facts. Such facts include:

• reasons connected with the employee's aptitude;• reasons connected with the employee's conduct; or• reasons arising from the operating needs of the business, establishment or department.

It should be noted at this point that if the employee challenges the reasons indicated, the onus is on theemployer to demonstrate that they are well founded.

Compensation Paid in Lieu of Notice

Whether it is the employer or the employee who terminates the open-ended contract in the absence of grossmisconduct justifying an immediate dismissal or if the notice period has not been respected, compensationmust be paid to the other party in lieu of notice. That compensation is equal to the remuneration payable forthe period of notice, or the missing period of notice.

Severance Pay

Principle

In case of termination at the initiative of the employer for any reason other than gross misconduct, aseverance pay is due unless the employee has worked less than 5 years for the enterprise.

Amount

The rates of severance pay are as follows:

Years of uninterruptedservice

Severance payment –Months ofwages or salary for manualworker

Severance payment –Months ofwages or salary for staff employee

5 but under 10 1 month 1 month10 but under 15 2 months 2 months15 but under 20 3 months 3 months20 but under 25 3 months 6 months25 but under 30 3 months 9 months30 and over 3 months 12 months


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Severance pay is subject neither to income tax nor, since January 1,1988, to social security contributions.

Small businesses option

Instead of paying severance pay, an employer who has fewer than 20 employees may in his letter ofdismissal opt to extend the period of notice. In that case notice is as follows:

Years of uninterruptedservice

Notice period –Months of wagesor salary for manual worker

Notice period –Months of wagesor salary for staff employee

5 but under 10 5 months 5 months10 but under 15 8 months 8 months15 but under 20 9 months 9 months20 but under 25 9 months 12 months25 but under 30 9 months 15 months30 and over 9 months 18 months

Dispensation from Work

If it is the employer who terminates the contract, the employer may advise the employee that the presence ofthe employee at work will not be required during whole or part of the period of notice and is thereforewaived. No reduction in the remuneration or any other benefits that would otherwise have accrued to theemployee may be attributed to this action.

When an employee resigns and requests a dispensation from work, any dispensation agreed by the employeris regarded as a mutually agreed ending of the employment contract. Under these conditions the employer isnot obligated to pay any salary beyond the actual date of the termination of work. In other words, anemployee who resigns and asks to be immediately released from work, or for curtailment of the legal noticeperiod, is not entitled to payment for the notice period that has been waived at the request of the employee.

Unfair Dismissal

The following principles apply equally to dismissal with notice and to dismissal for gross misconduct.

Definition

Dismissal is regarded as unfair, and contrary to social and economic reason, if it takes place for unlawfulreasons, or if it is not well-founded on valid grounds of the employee's aptitude or conduct, or arising fromthe operating needs of the business, establishment or department.

Burden of proof

If the employee challenges the reasons claimed by the employer in support of a dismissal, the onus is on theemployer to prove not only the facts but also their validity and seriousness. The employer is entitled to bringnew evidence before the court additional to that set out in the motivation letter or the letter of dismissal, butnot new reasons.

Damages

If the dismissal is regarded as unfair, the employer will have to compensate the prejudice caused to theemployee, to be estimated by the judge on the basis of the factual circumstances (i.e. time necessary to find anew job considering the employee's age and function and the situation of the employment market).

Employees Protected from Dismissal

There are some circumstances where the right to terminate the contract of employment is temporarilysuspended.


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Protection from dismissal in case of incapacity to work

An employer who has been duly informed of his/her employee's incapacity to work on the first day ofabsence, and who has received the medical certificate in due form at the latest on the third day, is prohibitedfrom notifying the employee of the termination of his/her contract or summoning him/her to interview priorto dismissal.

The employer's right to dismiss is suspended even in cases of gross misconduct, and even if the misconductin question occurred before the employee's incapacity.

The right to dismiss is suspended for a maximum 26 weeks following the date of the incapacity. After theexpiry of this period, the employer recovers his/her right to dismiss the employee, even if the latter is stillsick.

Please note that for the remainder of the month during which the incapacity occurred and the threesubsequent months, the staff employee remains entitled to his/her salary and to any other benefits accruing asa result of his/her contract of employment, whereas the manual worker receives sickness benefits by theCaisse de Maladie des Ouvriers as of the first day of absence.

The employer's right to dismiss is restored if the employee fails to report sick on the first day of absence or ifno medical certificate has been submitted by the end of the third day of the employee's absence.

Protection against dismissal during maternity

An employer may not dismiss a female employee during her pregnancy, or during the twelve weeksfollowing the confinement. This provision does not, however, prevent the termination of a fixed-termcontract on its completion; neither does it give the employee immunity from dismissal for gross misconduct.

In case of pregnancy during the probation period, such period is suspended during the period of protectionagainst dismissal.

Protection against dismissal in case of parental leave

Employees having requested their parental leave may not be dismissed, except for gross misconduct, as ofthe last day to notify the leave to the employer and until the end of the parental leave.

Protection against dismissal for staff representatives

Under most circumstances, staff delegates and their alternates are protected from dismissal throughout theirterm of office. Whatever the grounds, the dismissal is deemed to be null and void (except when the specificprocedure for suspension is made use of).

This protection is extended to former delegates for the six months following the end of their term of office,and to candidates for election to such office for a period of three months following the announcement of theircandidacy.

If the employer, however, believes that the staff delegate or alternate should be dismissed for grossmisconduct, then he may suspend the staff delegate (with pay) and file a petition with the labor court forjudicial termination of the employment contract.

Members of the works council may only be dismissed with the agreement of the council or, in case noagreement may be reached, with the authorization of the labor court. In case of gross misconduct, theemployer may suspend the employee until the court decision.

12.5.3. Resignation

Employees may, of course, resign for personnel and professional reasons subject to the conditions prescribedby law. The resignation has to be notified by registered letter or in writing with the employer's


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countersignature for acknowledgement of receipt. In case of resignation the employee should follow thenotice periods as described below:

1 month if length of service below 5 years; 2 months if length of service between 5 and below 10 years; 3 months if length of service is of at least 10 years or above.

The notice period should also start either on the 1st of the following month or on the 15th of the currentmonth.

12.5.4. Termination by Mutual Agreement

The employment contract, whether open-ended or concluded for a fixed term, may be terminated by mutualagreement between the employer and the employee.

The termination has to be stated in writing in twofold by both parties. In absence of such written statement,the mutual agreement is considered null and void. The validity of the termination by mutual agreement isalso subject to the general principles applicable to contracts and notably to the exchange of free consent.

The parties may freely determine the terms and conditions of the termination of the employment contract.The parties may notably freely agree on the date of termination, without being subject to the legal provisionsrelating to the notice period.

12.6. Collective Labor Agreement

The law on contracts of employment is universal and covers all employer/employee relationships. But thevery specific nature of certain branches of activity, and even of certain firms, has revealed the need for acollective solution to certain problems for all employees in these sectors.

Negotiated agreements

Under articles L.161-1 to L.165-1 of the Luxembourg Labor Code, the following may be party to a collectivelabor agreement:

On the employers' side:

one or more employers' organizations; a specific enterprise; a group of enterprises in the same line of business, or all the enterprises forming an economic and social unit

On the employees' side:

one or more of the representative trade unions.

If an employer is requested to enter into negotiations with a view to a collective labor agreement, he/she isobliged by law to agree to negotiate. If he/she refuses, the case is referred to the National Conciliation Office(Office National de Conciliation).

Whether the collective labor agreement covers a group of enterprises, or a single enterprise, there must beonly one agreement for all manual workers and staff employees. The parties may however decide toconclude separate collective labor agreements for manual workers and for staff employees or only for onecategory. The law permits the exclusion of higher ranking employees (cadres). Thus, a separate collectivelabor agreement may also be concluded for senior management.

On completion, the agreement must be lodged with the Labor and Mines Inspectorate. It may not run for lessthan six months, nor for more than three years.


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The agreement may be terminated only upon due notice given by either party: the law sets this notice at amaximum 3 months. All or only part of the agreement may be terminated in this way.

On expiry of its term, if it has been neither terminated nor revised, it is deemed renewed by tacit agreement,and becomes open-ended, though still subject to termination with notice as described in the precedingparagraph.

General applicability

A collective agreement that is in accordance with the law may be declared applicable to all employers andworkers in the trade, occupation, industry or enterprise concerned.

The declaration that it is of general application is published in the form of a Grand-Ducal Regulation in theMemorial.

12.7. Labor Regulations

In addition to the rules on contracts of employment, Luxembourg has in the public interest adoptedlegislative measures providing further safeguards for those in paid employment.

12.7.1. Remuneration

Social minimum wage

Luxembourg law guarantees a social minimum wage to all employees. At October 1, 2005, the index stood at652,168 and the minima were consequently as follows (EUR 230.53 at base 100):

Age Monthly rate Hourly rate18 and over EUR 1,503.42 EUR 8.6917 but under 18 EUR 1,202.74 EUR 6.9515 but under 17 EUR 1,127.57 EUR 6.52

In addition to the amounts shown in the table, there is a minimum statutory wage for skilled workers of EUR1,804.11.

A worker is deemed to be skilled:

when he/she has a CATP (certificat d'aptitude technique et professionnelle), its equivalent, or a higherqualification;

when he/she has a CCM (certificat de capacite manuelle) plus two years' practical experience in thetrade in question;

when he/she has a CITP (certificat d'initiation technique et professionnelle) plus five years practicalexperience in the trade in question;

when he/she has ten years' experience in the trade in question.

Other wages and salaries

Apart from the social minimum wage scale, wages and salaries are determined by reference to collectiveagreements negotiated at works or industry level, or to individual agreements negotiated between employerand employee.

Indexing

As a rule, wages and salaries increase with the cost of living. As soon as the average cost of living indexcalculated over the last six months exceeds 2,5 percent, the gross remuneration of the following month is



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automatically increased with 2,5 percent.

12.7.2. Hours of Work

Normal working hours

Hours of work are defined in law as the period of time during which the employee is at the service of his/heremployer or employers.

The working practices in Luxembourg is to either work on a fixed-time basis starting the day between 8:00and 9:00 and finishing between 17:00 and 18:00 or on a flexi-time basis. The lunch break is usually onehour.

A supplement (in addition to the regular hourly wage) paid for any work between the hours after 22:00 andbefore 6:00 might be foreseen by a collective labor agreement.

As a general rule, normal working hours must not exceed eight hours per day and 40 hours per week, exceptin certain branches (e.g. transport) where special arrangements exist.

Any employee working for more than six hours in the day is entitled to one or more remunerated or non-remunerated breaks. The daily work period may however only be interrupted by one non-remunerated break.

The Work Organization Plan

These limits may however be exceeded provided always that the average weekly hours over a four-weekreference period do not exceed 40 hours or any relevant collectively negotiated limit. In any case, theduration of work is limited to 10 hours per day and 48 hours per week. The reference period may be reducedor extended up to 12 months by collective labor agreement or with the agreement of the Ministry of Laborand Employment

Five days at the latest before the start of the reference period, and after having consulted the staffrepresentatives (or in the absence of a staff representation, the employees concerned), the employer mustdraw up a plan for the organization of the enterprise's foreseeable work throughout that period and setting outthe rules for the organization of work in case of unforeseen events or force majeure.

The work organization plan must be displayed at the workplace and a copy forwarded to the Labor andMines Inspectorate.

The work organization plan may be replaced by a regulation for sliding work schedule. The sliding workschedule allows the employees to organize their daily working duration and schedule according to theirpersonal needs, within certain limits and taking into account the needs of the service and the interests of theother employees. The average duration of work over the reference period must be equal to the normalduration of work.

Part-time work

Articles L.123-1 to L123-8 of the Luxembourg Labor Code provide for an agreement between employee andemployer on a working week shorter than 40 hours for a regular employment.

When a work organization plan is drawn up, the working time of a part-time worker is calculated over areference period of four consecutive weeks (or another reference period defined by collective laboragreement or with the agreement of the Ministry of Labor and Employment).Working Outside the Normal Working Week

The law provides for two systems of working outside the normal working week: overtime and compensatoryderogations.


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Overtime

Overtime is defined as "time worked in excess of 40 weekly hours." In case a work organization plan isapplicable within the company, overtime is defined as any hour worked beyond the limits fixed by the plan.In case of sliding work schedule, overtime corresponds in principle to the hours worked in addition to thenormal average duration of work at the end of the reference period.

Overtime work is permitted only in those circumstances specially provided for by the law, and subject toprior ministerial consent:

to prevent the loss of perishable goods or to avoid endangering the outcome of work alreadyaccomplished;

to enable special work to be completed (such as the drawing up of inventories and balance sheets); to deal with extraordinary workload; exceptionally, where the public interest so requires.

If the company plans to work overtime, it should introduce a request to do so to the Ministry of Labor andEmployment.

However, in the event of accidents, urgent works and works required as a result of a force majeure, no priorauthorization by the Minister of Labor and Employment is required provided that the overtime does notexceed three days during a month (the Labor and Mines Inspectorate must however be informed about thefact that overtime has become necessary).

Under normal circumstances, the company does not expect the staff to work overtime, although it maysometimes be necessary. Management is expected to organize their team's workload in order to ensure thatthe necessary daily tasks are completed in a normal working day.

The company is bound to keep a record of its overtime.

Executives who are part of the senior management are not subject to the regulation on duration of work andovertime.

Overtime work is compensated on the following basis:

• manual workers: time and a quarter (125%);• staff employees: time and a half (150%);• adolescents: double time (200%).

The notional hourly rate is obtained by dividing the employee's monthly wage or salary by a standard 173hours.

Please note that the rate for paid overtime above is cumulative with other entitlements for pay supplement forwork outside the normal working day. In more specific terms, any employee who works overtime which alsofalls on a Sunday, public holiday or during the night may be entitled to be paid for each of the supplementsapplicable.

Salary supplements for overtime may be replaced by compensatory time-off corresponding to one and a halfhour time-off per hour worked overtime (for both manual workers and staff employees).

Compensatory derogations

Under this arrangement work can continue beyond the normal working day or week provided that theemployee is granted time off equivalent to the excess hours worked.

Hours worked in this way are not subject to any additional remuneration.


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The circumstances concerned by these provisions include sectoral or technical departures from the rule,businesses working around the clock or where work is organized on a team basis and where there is a need tomake up for lost time.

Banking area only overtime compensation rules

overtime from Monday to Saturday is compensated at the rate of 50% (in addition to the basic hourlysalary) or under the form of time-off (per hour of overtime, the employee is entitled to 1.5 hours time-off);

overtime on Sunday is compensated at the rate of 70% (in addition to the basic hourly salary); overtime on a legal holiday is compensated at the rate of 200% (in addition to the basic hourly salary); for hours performed between 22:00 and 06:00 an additional supplement of 30% is paid.

Note that the rates may be cumulative according to relevant circumstances.

Transport

Special provisions apply to hours of work in road transport. Regulation (EEC) 3820/85 of December 20,1985 prescribes driving and rest periods for transport drivers.

The rules apply equally to journeys wholly within the Community and to those that are partly outside it.

12.7.3. Sunday Work

Sunday work is in principle prohibited, but the law recognizes four special categories of exceptions:

1. Workers

The prohibition on Sunday work does not apply to:

• company directors;• senior managers whose presence at the business is essential to ensure the functioning and thesupervision of the business;• commercial travellers and representatives working away from the business's premises.

2. Businesses

a) Businesses excluded by law from the prohibition on Sunday work and authorized by law to employ theirpersonnel on Sundays:

family businesses in which the only workers are the employer's first-degree relatives in theascending or descending line (parents, children, brothers or sisters, parents-in-law, son-in-law, daughter-in-law, brother-in-law or sister-in-law); hotels, restaurants, canteens, bars, and other establishments serving beverages; pharmacies, drugstores, and retailers of medical and surgical appliances; travelling showmen; farms and vineyards; places of entertainment; gas, electricity and water undertakings; transport firms; hospitals and establishments for the sick, the disabled, the homeless and the mentally disturbed,dispensaries, children's homes, retirement homes, children's holiday homes, orphanages, boardingschools; domestic employees; businesses authorized to organize work on a shift basis for round-the-clock work, on the grounds thatthe work cannot be interrupted or delayed for technical reasons.

b) Retail shops


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The law permits up to four hours Sunday work in retail shops, provided always that the establishment isauthorized to open on Sundays under the law on opening hours.

c) Firms exempted by grand ducal regulation from the prohibition on Sunday work

Sunday work without prior authorization is permitted as follows:

activities which are not all year round, or which operate more intensively at certain times of the year; activities meeting a public need principally on a Sunday, or equally every day of the week; activities in the public interest.

A grand ducal regulation is in draft which will list the personnel authorized on the basis of these criteriato work on Sundays.

The law makes no provision for prior authorization for the employment of such personnel, and theemployer must instead submit to the Labor and Mines Inspectorate prior notification of the nature of theSunday work required of his employees, the dates and hours to be worked, the number of employeesconcerned and the nature of their occupation.

3. Occupations

The prohibition on Sunday work is also lifted for certain occupations, regardless of the nature of thebusiness. These include:

surveillance of the business's premises; cleaning, repair and maintenance required for sustained operation; non-productive work on which the following day's resumption of work is dependent; work required to prevent the deterioration of raw materials or products; urgent work that must be accomplished immediately: salvage work, or work to prevent a threatened

accident or to repair accidental damage to the firm's plant, equipment or premises.

4. Adolescents

The Minister of Labor and Employment may grant extended authorization to employ young persons onevery second Sunday in: hotels, restaurants, cafes and tea rooms; clinics and children's homes.

Adolescents may work every Sunday during July and August.

Compensation for Sunday work is as follows:

The employee is entitled to time off as compensation for Sunday work (one day if Sunday work lasted morethan 4 hours, half a day if it lasted 4 hours or less). Furthermore, the employee is entitled to a payment of70% of the normal rate (100% for adolescents under 18) for each hour worked.

12.7.4. Statutory Public Holidays

Articles L.232-1 to L.232-14 of the Luxembourg Labor Code apply to all employees in the private sector.

There are ten statutory public holidays in Luxembourg:

New Year's Day; Easter Monday; 1st of May; s Ascension Day; Whit Monday; 23 June (National holiday);


10023-16964 LU:938161.3 17 27 October 2006

Assumption of the Virgin Mary (15 August); All Saints' Day (1 November); Christmas Day (25 December); Boxing Day (26 December).

If a public holiday falls on a Sunday or a rest day, a compensatory day off must be granted in lieu to be takenwithin three months. The compensatory day off has to be taken and cannot be replaced with financialcompensation. The law specifies that one or more official public holidays can be exchanged for an equalnumber of local or trade holidays.

An employee who has had to work on an statutory public holiday is entitled to receive three times his/hernormal rate of pay for that day, in addition to any payment also due under the law on overtime and Sundaywork.

12.7.5. Annual Leave

Under articles L.233-1 to L.233-20 of the Luxembourg Labor Code all employees in the private sectorreceive a standard period of annual leave. This minimum leave is set at 25 working days, irrespective of theemployee's age.

Additional leave is granted to disabled workers, mine workers and employees whose work does not allowthem an uninterrupted rest period of at least 44 hours per week.

The right to annual leave begins on completion of three months uninterrupted service with the sameemployer.

Annual leave will have to be taken once, at the same time. However, for business reasons, or at theemployee's request, the annual leave period can be split up, provided that one fraction consists of at least 12consecutive working days. In principle, holidays should be taken during the year in which they are earned. Inexceptional cases, untaken annual leave can be transferred to the end of March in the following year.Holidays not taken before this date lapse.The general rule is that the employee decides when to take his/her leave. As an exception, in cases where theestablishment closes for annual holidays, the dates of the holiday must be agreed between the employees'representatives (staff delegation) and the employer and be notified to the employees by the end of the firsttrimester of the relevant year.

An employer may refuse leave if the employee has been absent without good cause for more than 10% of thetime when he/she should have been at work during the previous year. Under the law, absences authorized bythe employer, absences on account of sickness or accident, and absences during a statutory public holiday ora lawful strike are all considered to constitute good cause.

In the event of employment being terminated during the course of the calendar year, the employee is entitledto one twelfth per whole month of work.

Various forms of special leave also exist under the law: education leave; training leave; leave to seek for a job; leave for political purposes; leave for sporting purposes; leave for employees who provide help assistance and fire fighting services on a voluntary basis;; leave for cultural purposes; leave for development co-operation purposes.

Holiday register

Every employer is bound to keep a register of holidays.


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12.7.6. Extraordinary Leave for Personal Reasons

A worker who is obliged to be absent from work for personal reasons is entitled by law to special leave onfull pay. This leave is:

one day before the enrolment for the military service and in the event of the death of a second- degreerelative (grand-parent or grand-child, brother, sister, brother-in-law or sister-in-law);

two days for the father on the birth of a legitimate or recognized natural child; two days in the event of the adoption of a child aged under 16; two days for both parents on the marriage of a child; two days for household removal; three days on the death of the employee's spouse, or of a first- degree relative (parent or child, parent-in-

law, son-in-law or daughter-in-law);six days on the employee's own marriage;9

12.7.7. Maternity Leave

Maternity leave is governed by articles L.331-1 to L.338-4 of the Luxembourg Labor Code. It does notterminate the contract of employment, but merely holds it in abeyance throughout the period of enforcedabsence. The contract comes back into effect when the reason for its suspension ceases to exist.

In case of pregnancy, the employee must inform the social security authorities within the last 10 weeksbefore the presumed date of delivery by sending a medical certificate. A copy of the medical certificateshould be submitted to the company.

The employee is entitled to at least 16 weeks of maternity leave. Note that 8 weeks have to be taken beforethe presumed date of birth. If the birth is taking place before the presumed date, the maternity leave isextended in such a way to ensure that the total number of weeks amounts to 16. If the birth is taking placeafter the presumed date of birth, the maternity leave includes those additional days.

The post-natal maternity leave is extended by 4 weeks in case of breastfeeding, multiple births and prematurebirth.

12.7.8. Parental Leave

The parental leave is meant for parents who wish to take a special leave to educate their child. The parentalleave is of 6 months on a full-time basis or of 12 months if the employee continues to work on a part-timebasis (max. 50%). It is up to the discretion of the employer to accept or refuse this part-time option.However, the employer may not refuse the full-time option.

Parental leave is valid for both parents. However, full-time leave may not be taken at the same time by bothparents. In order for both parents to take the parental leave for the same child, one parent's parental leavemust be taken immediately after the completion of the maternity leave period. The other may be taken at anytime up to the child's fifth birthday. If no parental leave is taken immediately after the maternity leave, one ofthe parents loses his/her entitlement to parental leave.The employee who would like to benefit from this legal advantage immediately after the maternity leavemust introduce a written request to his/her employer, by registered mail with advice of receipt, before thestart of the maternity leave. The employer can neither refuse to grant parental leave nor require that the leavebe taken at a later period.

For the parental leave that does not immediately follow the maternity leave, the parent must advise his/heremployer not less than four months before the proposed start of the leave, by registered letter with advice ofreceipt. The employer is bound to grant this parental leave but may postpone the beginning of the leaveunder specific circumstances that are clearly defined in the relevant legislation (e.g. when the work isseasonal in nature, or in an enterprise with fewer than 15 employees).

9 Not provided for by law.


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To be entitled to the leave, the applicant must be raising at home one or more children aged less than fiveyears and in respect of whom family allowance is paid.

The applicant must have been lawfully and continuously employed at a place of work within the GrandDuchy at the moment of the child's birth.

Paid employees must have been occupied in an enterprise established in the Grand Duchy (for at least 12months prior to the birth) and their monthly working hours must correspond to at least half of the averageworking hours applicable in the company.

During the parental leave, the employment of the employee is protected, but the contract is "on hold". Theemployer is required to keep the employee's job open or, failing that, offer a similar job corresponding to theemployee's qualifications and with at least equivalent remuneration. No holiday entitlement is accrued duringthis period, however seniority is retained and continues to accrue.

The employer's right to give notice of termination of the employee's contract is suspended until the last dayof the period during which the employee is entitled to apply for parental leave, This does not prevent thecontract being terminated for serious misconduct, nor does it prevent a fixed-term contract from coming toan end.

If the contract of employment includes a period of probation, the entitlement to parental leave cannot beginbefore the end of the period of probation,

At the start of the full-time parental leave the employer stops paying the salary and benefits of the employeeand the employee is paid by the National Family Benefits Fund (Caisse Nationale des PrestationsFamiliales). This full-time parental leave is remunerated at a flat rate of EUR 272.68 per month (index 100),and part-time at EUR 136,34 per month. The index stands at 652,16 on October 1, 200510, giving a benefit ofEUR 1,778.31 and EUR 889.15 respectively for full-time and part-time leave.

12.7.9. Leave for Family Reasons

Leave for family reasons is a personal right for anyone who is responsible for a child aged under 15 when,because of serious illness, accident or any other compelling reason, the presence of one of the child's parentsis necessary. A medical note should certify that the state of health of the child requires the presence of oneof his/her parents. This absence, i.e. portion of the employee's salary, is reimbursed to the employer by theCaisse de Maladie des Employés Privés.

The person who receives family allowance in respect of the child is deemed to be responsible for that child.

Leave for family reasons may not exceed two days per child per year. In exceptional cases, this limit may beextended with the approval of the Social Security Medical Supervisory Service (Contrôle Médical de laSécurité Sociale).

The leave can be taken piecemeal (i.e. it does not all have to be taken together).

An employee taking leave for family reasons must, on the day of the leave notify the employer or arepresentative of the employer, either personally or through a third party. A medical certificate must besubmitted to the employer no later than the third day.

Leave for family reasons is treated as sick leave, and the employee is entitled to sickness benefit, except thatthe benefit is not paid by the employer in the case of either workers or salaried employees. The benefit is alsopayable to non-paid employees, for every day of leave for family reasons.

If the employer has been notified of the leave or is in possession of the medical certificate, he/she is notentitled to give notice of termination of the employee's contract during the period of the leave. This does not



10023-16964 LU:938161.3 20 27 October 2006

prevent the contract from being terminated for serious misconduct, nor does it prevent a fixed-term contractfrom coming to an end.


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Chapter 1313.1 Introduction

In simple terms, if a non-European citizen wishes to take up employment in Luxembourg, he/she needs firstto have permission from the Luxembourg Government to work in Luxembourg. This permission is grantedthrough a work permit, which can only be applied for by a company licensed to do business in Luxembourg.11

The fundamental basis on which a work permit is granted is a determination by the Government that thecandidate is needed for the job because it is not possible for the employer to find a European (EU) citizenwith the appropriate skill set to do the job. If the Government believes it is possible to find a EU citizen withthe necessary skills to do the job, a work permit will not be approved. Needless to say, it is easier to get workpermits for professionals and other highly skilled persons than for entry-level candidates.

The specific governmental reference is the Grand Ducal Regulation of May 12, 1972 determining themeasures applicable for the employment of foreign workers in the Grand Duchy of Luxembourg, as amened(the 1972 Regulation) that stipulates that no employer can hire a non-EU employee who is not in possessionof a valid work permit and without having made an application to the Employment department(Administration de I'Emploi (ADEM)) prior to starting work.

This last point is crucial as the Special Advisory Commission will almost automatically turn down a requestfor a work permit when the job position has not first been registered with the ADEM. So as a first handy hinton doing things right, register your job vacancies with the ADEM and check availability on localemployment market before you find a non-EU passport holder that you want to hire into the position. Thiscan accelerate the process once you found the appropriate candidate.

EU nationals are at present people with the following nationalities:

• Austrian• Belgian• British• Cypriot• Danish• Dutch• Finnish• French• German• Greek• Irish• Italian• Luxembourgish• Maltese• Portuguese• Spanish• Swedish

In addition, the following nationals, as their countries are part of the European Economic Area, are alsoallowed to be hired without work permit:

• Icelanders• Nationals from Liechtenstein• Norwegians• Swiss

11 Already mentioned in 13.2.3.


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Please note that the citizens of the accession countries that have joined the EU in May 2004, i.e. Poland, theCzech Republic, Slovakia, Lithuania, Latvia, Estonia, Slovenia and Hungary still require work permits foremployment in Luxembourg during a transitory period (at the latest until May 2011). Before hiring a nationalfrom these countries, please see your Luxembourg lawyer or your work permit application expert.

Furthermore, persons regardless of their defined nationalities, who have been accorded the status of refugeesby the Government of Luxembourg, in accordance with the Geneva Convention of July 28, 1951, areallowed to work and do not require work permits.

Before a foreign worker can begin work, if he/she has no work permit his/her employer must make adeclaration (Déclaration d'Engagement) in duplicate to the ADEM, indicating the job in which the foreignworker is to be employed. This declaration, countersigned by the foreign worker, has the effect of anapplication for a work permit and can be downloaded at www.adem.public.lu/demandeur/permis/index.html.The work permit application form must be completed in 2 original copies and forwarded with the followingsupporting documents:

• A certified copy of the passport (each and every page); a certified copy of all of the diplomas for theschools attended by the perspective employee;

• a letter explaining in detail why this candidate is required by the employer for this specific job;• a copy of the candidate's CV;• a certified copy of the proposed contract of employment signed by the employer and the perspective

employee.

The work permit application must be made before the foreign worker commences work.

The completed application package should be sent to:

Administration de I'Emploi (ADEM)B.P. 2208L-1112 Luxembourg12

13.2 Guidelines

13.2.1 Processing Time

Once all of the above listed documents have been submitted to the Government, the approval commissionstake place generally every two weeks. Therefore final approval will likely take between 3 to 6 weeks toobtain the decision of the responsible government commission and the paperwork authorizing theemployment. In special cases of critical need where time is the essence, please contact the AMCHAMChairman for assistance.

[]1313.2.2 Type of Work Permits

Once a work permit has been granted it applies to one employer for one category of job and for a one-yearperiod only (category A). Later, on the anniversary date of the first year of employment, this permit can berenewed; however, this is not an automatic process but requires a new request.

The renewed work permit can be of category A or B, depending on the situation of the labor market as wellas the terms of the initial request. In the perfect situation of highly skilled persons, the Government is likelyto issue a work permit C after five years, allowing employment for an indefinite period of time with multipleemployers in multiple categories of work.

Under exceptional circumstances, group working authorizations can be granted. The appropriate details ofthis and other work permit issues are addressed in the translation of the 1972 Regulation that follows.

12 Not necessary.13 Not any longer required in practice.


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Note: in case of a renewal, and if conditions of the first requirement have not changed, only the workapplication form needs to be completed in 2 original copies and forwarded to the ADEM.

13.3 1972 Regulation

Following please find a translation of the text of the 1972 Regulation (co-ordinated text containing theGrand-Ducal Regulations of July 29, 1977, June 17, 1994 and April 29, 1999).

Please do note that the French published version of the Mémorial is valid.

[1972 Regulation]

[]14

On the following page there is a free translation of the work permit application form from the original textwhich must be submitted by the prospective employer to the Ministry of Foreign Affairs (ImmigrationServices) through the ADEM. This work permit application form must be accompanied by the supportingdocuments referenced in Chapter 13.1 (introduction of this chapter).

For further information on work permits please contact:

Ministry of Foreign AffairsMinistère des Affaires Etrangères Direction de l'Immigration12-16 Avenue MontereyL-2163 LuxembourgPhone: (+352} 478-6116/6181 everyday from 08,30 to 10.30Fax: (+352) 49 46 39 or mailWebsite: www.mae.lu

If you have any questions regarding work permits you may also contact the AMCHAM Chairman at:

Paul-Michael SchonenbergChairman and CEO AMCHAM Luxembourg6, rue Antoine de Saint-ExupéryB.P. 542L-1432 LuxembourgPhone: (+352) 43 17 56Fax: (+352) 26 09 47 04Website: www.amcham.lu

14 According to the Ministry of Foreign Affairs the procedures regarding the approval of work permits for accompanying spouses and personnel withspecialized banking, finance or IT sills/expertise are exactly the same as for anybody else. Those categories of people are however nearly alwaysgranted the work permits requested.

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