Exceptions

• Author: Hoffmann, Tania
• Pages: 24-28

24

4 EXCEPTIONS

4.1 Genuine and determining occupational requirements (Article 4)

In Luxembourg, national legislation provides for an exception for genuine and determining

occupational requirements in accordance with the directive.

The provisions can be found in Article 18 (introducing Article L-252-1(1) in the Labour

Code) of the Law of 28 November 2006 and are formulated in the exact wording of the

directive.

For the public sector, the relevant articles are: Article 1-3(3) of the public sector law of 29

November 2006 on civil service, introducing Article 1 bis (3) to the amended Law of 16

April 1979 establishing the general statute of state civil servants; and Article 2-3(3) of the

public sector law of 29 November 2006, introducing Article 1 bis (3) in the amended Law

of 24 December 1985 establishing the general statute of municipal civil servants.

There is no case law on this issue.

4.2 Employers with an ethos based on religion or belief (Article 4(2) Directive

2000/78)

In Luxembourg, Article 18 of the Law of 28 November 2006 introducing Article L-251-1 in

the Labour Code and Article 1-3(3) of the Law of 29 November 2006 (introducing Article 1

bis (3) to the amended Law of 16 April 1979 establishing the general statute of state civil

servants) provide for an exception for employers with an ethos based on religion or belief.

The wording of the exception is in line with the directive. There is no case law.

4.3 Armed forces and other specific occupations (Article 3(4) and Recital 18

Directive 2000/78)

In Luxembourg, national legislation does not provide for an exception for the armed forces

in relation to age or disability discrimination (Article 3(4), Directive 2000/78).

4.4 Nationality discrimination (Article 3(2))

a) Discrimination on the ground of nationality

In Luxembourg, national law includes exceptions relating to difference of treatment based

on nationality.

The relevant article is Article 2(2) of the Law of 28 November 2006, which provides that

the law does not cover difference of treatment based on nationality and is without prejudice

to provisions and conditions relating to the entry into and residence of third-country

nationals and stateless persons on the national territory, and to any treatment which arises

from the legal status of the third-country nationals and stateless persons concerned.

In Luxembourg, nationality (as in citizenship) is explicitly mentioned as a protected ground

in national anti-discrimination law.

b) Relationship between nationality and ‘racial or ethnic origin’

There is no case law on discrimination matters but it seems conceivable that discrimination

based on nationality may be considered as indirect discrimination based on the ethn ic or

racial background of the discriminated person, and thus enter the scope of the Law of 28

November 2006.