Remedies and enforcement

• Author: Hoffmann, Tania
• Pages: 30-34

30

6 REMEDIES AND ENFORCEMENT

6.1 Judicial and/or administrative procedures (Article 7 Directive 2000/43,

Article 9 Directive 2000/78)

a) Available procedures for enforcing the principle of equal treatment

In Luxembourg, the following procedures exist for enforcing the principle of equal

treatment: judicial and alternative dispute resolution such as mediation.

An individual, acting alone, may lodge a criminal complaint in court. The use of a lawyer is

not required. However, the state prosecutor will decide whether it is worthwhile proceeding

with the case (Article 23-1 of the Criminal Procedure Code). It may take a long time for

the case to be brought to court. Once a criminal complaint has been lodged, individual

victims of discrimination may not use a supplementary private prosecution, but they can

raise a private prosecution following a decision by the state prosecutor to refuse to

prosecute the case. Finding evidence is a crucial problem, which may hinder the proper

prosecution of the author of discrimination.

The victim may also apply directly to the examining judge (juge d’instruction) if he or she

claims to have suffered discrimination; in this case, it is up to the victim to estimate the

extent of the loss and claim damages in criminal proceedings. Often the judge will require

that the claimant pay a guarantee to cover the costs of the court fees.

The victim may also claim damages in a civil court based on the criminal offence. In this

context the shift of burden of proof is applicable.

Complaints of discrimination at work can also be presented to the labour court. According

to the general discrimination Law of 28 November 2006, workers’ associations (i.e. trade

unions) or associations of national significance fighting discrimination and approved by the

Ministry of Justice may support the victim in a court case. Such a right is not granted to

churches according to the law.

It must be noted that the Inspectorate of the Ministry of Labour (l’Inspection du Travail et

des Mines), is competent to oversee compliance with labour law regulations. The

Inspectorate was also given the role of a watchdog in relation to anti-discrimination

legislation under Directive 2000/78/EC.

According to Article 5 of the general discrimination law, victims of discrimination can also

claim damages on the basis of the general discrimination law, outside the field of

employment, before the civil or the administrative courts.

The Law of 6 May 1999 on penal mediation enables the state prosecutor to use mediation,

where it appears that such a remedy is likely to ensure that compensation or damages will

be paid to the victim, or indeed to bring a conclusion to the disturbance resulting from the

offence, or in addition contribute to the rehabilitation of the person committing the offence.

However, such a procedure is non-binding and can only be used prior to any criminal

investigation.

As far as the public sector is concerned, civil servants may bring a case to the

administrative courts if they feel that they have been discriminated against.

Article 33 of the general statute enables civil servants to make a complaint against the

behaviour of another civil servant. Such a procedure is administrative but can lead to the

administrative court if the complaint is rejected by the upper hierarchy. Such a complaint

can lead only to administrative or financial sanctions against the author, rather than to

civil or penal sanctions.