February 2017 - Luxembourg Employment News
The consultation of the criminal record by the employer as of 1 February 2017
By a law of 23 July 2016 published in the Mémorial N°154 of 4 August 2016 (the « Law »), the Luxembourg legislator has profoundly amended as of 1 February 2017 the legal provisions relating to the criminal record, some of these amendments being of a particular interest to any employer.
Until now, the law of 29 March 2013 relating to the organisation of the criminal record had amended the applicable law and suppressed section N°3, so that only sections N°1 and 2 remained. Section N°1 contains all the sentences of a person and section N°2 states all the sentences with the exception of suspended criminal sentences of less than six-months’ imprisonment.
The legal regime introduced in 2013 has raised many difficulties which have justified the present reform. The most problematic issue was that, without a harmonisation within the European Union of the contents of the sections delivered from the criminal records, the situation of a Luxembourg job seeker who possesses a filled section N°2 has become less favourable than that of a French, German or Belgian job seeker who has the same criminal records but whose section does not contain the traffic offences for example.
1. The introduction of five types of sections
The Law modifies the sections by creating five sections with their own purposes.
The respective purposes of the five new sections can be summarized in the following way:
- Section N°1: available to judicial authorities only;
- Section N°2: available to the State’s administrations, local administrations and legal persons governed by public law only, either with the consent of the concerned person who appears on the section as part of his or her relationships with the administration, or for the information of the State on its request;
- Section N°3: intended to be provided to the potential employer (public or private), for the recruitment or management of staff;
- Section N°4: concerns the driving licence, the licence and qualifications of aviation staff, the railway licences and taxi drivers and operators’ licences;
- Section N°5: concerns the field of professional or voluntary activities which involve regular contact with minors (teaching, nursery, school setting etc.)
2. A modified content
The entries in the sections N°2 to 5 have been limited – only the sentences for felonies and misdemeanours are now recorded. Petty offences are recorded only if they have been inflicted with a felony or misdemeanour in the same judgment, due to the relationship of connection or indivisibility between the petty offence and the felony or misdemeanour.
The legal regime of the driving prohibitions (which serve as an accessory penalty in the case of road traffic offenses) is largely modified, with the introduction of a section N°4 which groups the entries of section N°3 and the driving prohibitions. These entries are removed from section N°4 after three years, following the end of the period of execution of the driving prohibition. Section N°4 can only be delivered to the concerned person and to the Minister of Transportation for the investigation of certain requests.
3. The regulation of the employer's request for communication
3.1 The object of the request
The legal regime for the access and the management of the sections by the employer is amended. Thus, for the recruitment of a person, the employer can request that this person provides him or her with section N°3.
The potential employer can also request that the candidate provide section N°4 when the holding of a driving licence is an indispensable condition for the exercise of the professional activity of the future employee and when this requirement is provided for in the employment contract.
A mere clause in the contract stipulating that the driving licence is indispensable without any real justification should not be deemed valid or sufficient to justify the communication of section N°4.
The same is true, under even more restrictive conditions, for section N°5.
3.2 The form of the request
The request must be written and specifically motivated with regard to the specific needs of the position. This request must appear in the job offer.
3.3 Preservation delay
Once the contract has been concluded, the section must be destroyed at the latest one month after the conclusion of the contract.
In the case where an applicant is not hired, the related section must be destroyed without delay by the employer.
It appears that the aforementioned delays start with the decision to hire or refuse to hire the employee, and should therefore not prevent the preservation of the section during the hiring process, which could last up to one month. Conversely, as soon as it certain that a person won’t be hired, his or her section must be immediately destroyed, even though the hiring process has not yet ended.
At the end of the aforementioned preservation delays, neither the extract nor the data contained in the records can be kept, in any form whatsoever.
3.4 The particular case of a new request
For personnel management, the employer can request from its employees the new section N°3 only when provided for by the specific legal provisions (e.g. related to guardianship, financial institutions, etc.).
The employer can also ask for the new section N°3 in the case of a new assignment which justifies a new control of the repute of the employee, in regard with the specific needs of the position.
In the case of a new request, and unless the legal provisions do not allow a longer preservation period, the extract cannot be kept more than two months as from its issuance.
The person who requests the issuance of a section in violation with the substantive and procedural requirements provided for in the Law shall be punished by a term of imprisonment ranging from 8 days to 1 year, and a fine of 251 euro to 5.000 euro.
Non-compliance with the preservation delays provided for in the Law, or with the delays provided for in a specific law, shall be punished by a fine of 251 euro to 3000 euro.
3.6 Entry into force
The Law shall enter into force on 1st February 2017.
However, the Law does not provide any precision on the sections which are requested under the old legal regime and which are still in possession of the employer when the Law comes into force.
Even though one could argue that following the principle of non-retroactivity of the more severe criminal law, the sections obtained before 1st February 2017 should be kept during 24 months, it seems wiser to apply the following reasoning – as the criminal sanctions are not negligible and only backup delays are concerned:
- the requests for communication of a section made before 1st February 2017 are not subject to the new provisions (form, purpose etc.) of the Law. However, regarding the preservation period applicable to sections issued before 1st February 2017, the new provisions are to be applied as from 1st February 2017 (e.g. hiring of a candidate on 25 January 2017, destruction of his or her section on 1st March 2017 at the latest). An even stricter interpretation could lead an employer to suppress all the sections which are in his or her possession on 1st February 2017, since no hiring process is in progress or the latest hiring took place before 1st January 2017.
- Any request for communication of a section made as from 1st January 2017 is subject to the new provisions (form, delays, purpose etc.).