On 30 May 2023, the Luxembourg Parliament (Chambre des députés) filed a draft law (the "Draft Law") amending i) the Labour Code, ii) the law of 29 August 2008 on the free movement of persons and immigration (the "Immigration Law") and iii) the law of 18 December 2015 on the reception of applicants for international protection and temporary protection.
Context
For now, the Labour Code prohibits the employment of illegally staying third-country nationals, i.e. the employment of any person:
- who is not a citizen of the European Union (“EU”) or who does not enjoy the right of free movement within the EU,
- who operates in the Grand Duchy of Luxembourg, and
- who does not meet or no longer meets the residence conditions laid down in the Immigration Law.
This includes, for example, third-country nationals staying in Luxembourg for more than three months but who do not have a residence permit, as required by Article 38 of the Immigration Law.
The Labour Code already imposes a number of obligations on employers who employ third-country nationals (including the obligation to hold a copy of the third-country national's residence permit for the entire period of employment). The Labour Code also provides for a number of sanctions, both administrative and criminal, against employers who fail to comply with the legal requirements.
In this context, the main objectives of the Draft Law are to:
- prohibit, in addition to the employment of illegally staying third-country nationals, the employment of third-country nationals in an irregular situation;
- increase the penalties for employers, with the aim of further dissuading employers from employing third-country nationals who are illegally resident or in an irregular situation.
The Draft Law also suggests amendments to the Immigration Law, with the aim of making Luxembourg more attractive to workers from third countries. Finally, the Draft Law suggests changes to the vacancy declaration process that employers must submit to the Employment Development Agency ("ADEM"), before hiring a third-country national in Luxembourg, again with the aim of facilitating the recruitment of foreign nationals in Luxembourg.
New ban on the employment of third-country nationals in an irregular situation
The Draft Law seeks to insert a new Chapter IV "Prohibition of employment of third-country nationals in an irregular situation" under Title VII "Prohibition of illegal employment and prohibition of employment of illegally staying third-country nationals" of the Labour Code.
According to the Draft Law, a third-country national in an irregular situation is one who is working on the territory of the Grand Duchy of Luxembourg but does not meet, or no longer meets, the conditions inherent in the work permit required by the Immigration Law for any third-country national wishing to work in Luxembourg.
Third-country nationals in an irregular situation are therefore those who are legally resident but do not have a work permit.
Work permits are generally issued to third-country nationals as part of their residence permit. In some cases, however, a work permit must be applied for in addition to the residence permit.
Such a work permit is required (unless otherwise provided for in the Immigration Law) for third-country nationals wishing to stay in Luxembourg for a maximum of 90 days and work as an employed or self-employed person. It is also required for third-country nationals residing in another Member State of the EU and holding a residence permit there, but wishing to work in Luxembourg.
As in the case of the employment of illegally staying third-country nationals, the Draft Law requires employers to hold a copy of the employee's work permit throughout the period of employment.
Increased penalties for employers who employ illegally staying third-country nationals or third-country nationals in an irregular situation
The Labour Code currently provides for an administrative fine of EUR 2,500 per third-country national for any employer who employs one or more illegally staying third-country nationals.
The Labour Code also provides for imprisonment of between eight days and one year and/or a fine of between EUR 2,501 and EUR 20,000 per illegally staying third-country national, if the employment of such an individual takes place in at least one of the circumstances listed in the Labour Code (and detailed below).
As part of a deterrent strategy, the Draft Law aims at raising the threshold for administrative fines from EUR 2,500 to EUR 10,000 per third-country national. The criminal fine would increase from a maximum of EUR 20,000 to a maximum of EUR 125,000 per third-country national, if at least one of the following circumstances is met:
- the offence is persistently repeated;
- the offence relates to the simultaneous employment of at least two illegally staying third-country nationals or at least two third country nationals in an irregular situation;
- the infringement is accompanied by particularly abusive working conditions;
- the offence is committed by an employer who uses the work or services of an illegally staying third country national or of a third country national in an irregular situation in the knowledge that this person is a victim of human trafficking;
- the offence relates to the illegal employment of a minor.
All the increased penalties detailed above will apply both to the employment of illegally staying third-country nationals and to the employment of third-country nationals in an irregular situation.
It should be noted that, as is already the case for the employment of illegally-staying third-country nationals, the Draft Law intends to introduce a presumption that the illegal employment has lasted at least three months. Proof of the contrary can only be made in writing.
Other measures to widen access to the labour market
The Draft Law proposes a number of amendments to the Immigration Law with the aim of making Luxembourg more attractive to workers from third countries, and therefore more competitive.
Firstly, the Draft Law aims at adding an additional exemption from the requirement for a work permit for third-country nationals wishing to stay in Luxembourg for a maximum of 90 days over a period of 180 days and work as an employee or in a self-employed capacity.
To date, the exemption applies (in particular) to people wishing to stay in Luxembourg to provide services within the same group of companies.
It is suggested that this exemption be extended to persons intending to stay in the national territory to provide services on behalf of a company not belonging to the same group. This additional exemption seems necessary insofar as this type of activity reflects a reality in many sectors of the Luxembourg economy.
It is also suggested that the family members of third-country nationals holding a Luxembourg residence permit be given free access to the labour market, solely on the basis of the "family member" residence permit issued. Family members would then no longer be obliged (as is currently the case) to apply for a work permit in addition to their residence permit.
Finally, it should be noted that the Draft Law stipulates that the “ETIAS” travel authorisation (European Travel Information and Authorisation System) will henceforth be a compulsory precondition for entry into Luxembourg territory for third-country nationals exempt from visas for stays not exceeding 90 days over a period of 180 days. This obligation to hold an "ETIAS" travel authorisation will also extend to family members who are third-country nationals of an EU citizen wishing to enter and stay in Luxembourg for a period of up to three months, unless they hold a valid residence permit.
The "ETIAS" travel authorisation will make it possible to assess whether the presence of the third-country national concerned on Luxembourg territory is likely to present a security or illegal immigration risk, or a high epidemic risk.
Simplification of the vacancy declaration process
To date, the Labour Code requires any job vacancy on Luxembourg territory to be declared to the ADEM, in the interests of maintaining full employment on national territory.
This principle remains unchanged under the Draft Law.
The Labour Code also currently states that if, within three weeks of the vacancy being declared, the ADEM has not proposed a candidate to the employer who meets the profile required for the declared position, the employer may request a certificate certifying that it has the right to recruit the person of its choice, including a third-country national. The certificate will be issued within five working days.
On this point, the Draft Law suggests substantial changes, whereas the current system forces employers to wait almost a month before obtaining a decision from the ADEM and being able to hire the candidate of their choice.
On the basis of the Draft Law, it will now be possible for any employer legally established in Luxembourg and authorised to carry out the activity relating to the vacant position to apply for a certificate authorising them to recruit the person of their choice immediately after declaring the vacant position. This request for a certificate must be made, under penalty of forfeiture, before the ADEM closes the vacancy.
From there, several hypotheses can be envisaged:
- if the vacant position appears on the list of professions declared by the ADEM to be in serious shortage, the ADEM will issue the certificate within five working days;
- if the ADEM ascertains, over an initial maximum period of seven working days following the issue of the acknowledgement of receipt of the certificate request, that there are jobseekers registered with the ADEM, available and corresponding to the profile sought, the ADEM has 15 days to submit these profiles to the employer:
- if the profile is rejected by the employer, the latter must provide the ADEM, within one month, with a detailed explanation of the reasons for the rejection, based on an analysis of the candidate's profile in relation to the job description. Failing this, the certificate application will be rejected;
- if, following the employer's refusal, the ADEM comes to the conclusion that no other registered applicant matches the profile sought, the certificate will be issued within ten working days;
- if, over the initial maximum period of seven working days, the ADEM concludes that no registered applicant corresponds to the profile sought, the ADEM issues the certificate within five working days.
Conclusion
The clear aim of the Draft Law is to reinforce in the Labour Code the prohibition of the employment of illegally staying third-country nationals as well as third-country nationals in an irregular situation, while implementing new measures in the Immigration Law aimed at alleviating the labour shortage affecting certain sectors of the economy.
Share on
