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UNITED
NATIONS
Distr.
GENERAL
CEDAW/C/LUX/1
18 December 1996
ENGLISH
ORIGINAL: FRENCH
COMMITTEE ON THE ELIMINATION OF
DISCRIMINATION AGAINST WOMEN
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER
ARTICLE 18 OF THE CONVENTION ON THE ELIMINATION OF ALL
FORMS OF DISCRIMINATION AGAINST WOMEN
Initial reports of States parties
LUXEMBOURG
CONTENTS
* The present report is being issued as received, without formal
editing.
Page
Article 2: Elimination of discrimination ..............................3
Article 3: National mechanisms to safeguard human rights ..............15
Article 4: Temporary advancement measures .............................19
Article 5: Patterns of conduct ........................................21
Article 6: Exploitation of and traffic in women .......................27
Article 7: Political and public life ..................................31
Article 8: International representation ...............................36
Article 9: Nationality ................................................37
Article 10: Education .................................................38
Article 11: Employment ................................................43
Article 12: Health ....................................................59
Article 13: Economic and social life ..................................64
Article 14: Rural women ...............................................66
Article 15: Equality before the law ...................................69
Article 16: Personal and family rights ................................71
INTRODUCTION
The Convention on the Elimination of All Forms of Discrimination
against Women, which was adopted in Luxembourg by the Act of
15 December 1988, was ratified on 2 February 1989. In accordance with
article 27, paragraph 2, the Convention entered into force for Luxembourg
on 4 March 1989. Luxembourg therefore embarked rather late on the new
course which the United Nations mapped out in 1979 to improve the status of
women, the originality of this step being that it was the first time any
text had been adopted dealing specifically with discrimination against
women.
Having signed the Charter of the United Nations (Articles 1 and 55 of
which are relevant), the Universal Declaration of Human Rights (article 2
of which is relevant), the International Covenant on Civil and Political
Rights (articles 2 and 3 of which are relevant) and the International
Covenant on Economic, Social and Cultural Rights (articles 2 and 3 of which
are relevant), and in its efforts to remove the most glaring and greatest
obstacles to ratification of the Convention, Luxembourg was already
implementing the provisions of the Convention prior to 4 March 1989.
In addition, Luxembourg participates in Community efforts to promote
equality of the sexes. On 22 December 1996, the Council, comprised, for
the occasion, of the Ministers for Social Affairs of the 15 States members
of the Community adopted the fourth medium-term programme of action for
equal opportunities for men and women (1996-2000).
Article 2
States Parties condemn discrimination against women in all its forms,
agree to pursue by all appropriate means and without delay a policy of
eliminating discrimination against women and, to this end, undertake:
(a) To embody the principle of the equality of men and women in their
national constitutions or other appropriate legislation if not yet
incorporated therein and to ensure, through law and other appropriate
means, the practical realization of this principle;
(b) To adopt appropriate legislative and other measures, including
sanctions where appropriate, prohibiting all discrimination against women;
(c) To establish legal protection of the rights of women on an equal
basis with men and to ensure through competent national tribunals and other
public institutions the effective protection of women against any act of
discrimination;
(d) To refrain from engaging in any act or practice of discrimination
against women and to ensure that public authorities and institutions shall
act in conformity with this obligation;
(e) To take all appropriate measures to eliminate discrimination
against women by any person, organization or enterprise;
(f) To take all appropriate measures, including legislation, to
modify or abolish existing laws, regulations, customs and practices which
constitute discrimination against women;
(g) To repeal all national penal provisions which constitute
discrimination against women.
1. Draft constitutional amendment
"Women are citizens to the same degree as men. Political incapacity
of women just because they are women is a flagrant injustice which we must
hasten to remove from our institutions ...". These words were spoken by
the central branch in 1919 on the occasion of the debate in the Chamber of
Deputies on the draft constitutional amendment. The introduction, in 1919,
of women's suffrage - both active and passive - with the amendment of
article 52 of the Constitution, 1/ was the first step towards the
achievement of legal independence for women.
The principle of the equality of men and women before the law, is not
stated expressly in the Constitution, although in 1954 2/ the Chamber of
Deputies did initially consider amending article 11, paragraph 2, of the
Constitution to that end; currently it states that "Luxembourgers are equal
before the law".
In 1956, members confined themselves to voting for a motion which read
as follows: "The constituent assembly notes that the Constitution of
Luxembourg does not acknowledge any difference between men and women before
the law based on sex; it invites the Government and the legislature to
provide for complete equality of the sexes at the legislative level."
However, the Constitution's implicit guarantee of equality between the
sexes conceals weaknesses. In a decision of 16 January 1981, in the
context of a case concerning equal pay, the Arbitral Tribunal on Social
Security dismissed that article saying that "this text is not sufficiently
precise with regard to the equality of the sexes from the standpoint of
remuneration as to give rise to any rights ...".
Although the principle of non-discrimination is already firmly rooted
in a number of international conventions which the Grand Duchy has
ratified, it would nonetheless be useful to have that principle expressly
included in the Constitution in connection with the Constitutional
amendment that is currently being proposed.
The Commission on Institutions and the Constitutional Amendment has
proposed a definition for the principle of non-discrimination.
Article 11 (3), which now states that "the State shall guarantee the
natural rights of the individual and of the family", would be expanded by
adding a second paragraph which would read as follows: "In the exercise of
the rights and liberties provided for under this chapter, no one may be
disadvantaged or favoured on the basis of their sex, ancestry, nationality,
origins or philosophical, religious or political beliefs". 3/
The rights and liberties referred to include, inter alia, the right to
work, freedom of trade and industry, trade union freedoms, the exercise of
a liberal profession, individual freedom, the right to an education,
freedom of expression and freedom of association.
The authors of the text meant to give as precise a definition as
possible for the principle of non-discrimination and drew their inspiration
from the conventions which the Grand Duchy has ratified.
The Council of State opposed the addition of such a paragraph, deeming
it to be too general; it would apply to both nationals and foreigners
without distinction, and would be in contradiction with other provisions of
this same chapter, such as, for example article 11, concerning
admissibility to government employment, the proposed wording of which
treats nationals and foreigners differently, or even article 28 which,
"while guaranteeing foreigners the benefit of public liberties, subjects
them to conditions to be specified under the law." 4/
The Council of State did not comment on the "equality of the sexes"
aspect of this definition.
2. Legislative measures to ensure the proper implementation
of the principle of the equality of the sexes
Civil law
One of the most important applications of the principle of equality of
the sexes is undoubtedly the Act of 12 December 1972 concerning the rights
and duties of spouses, which breaks with the principle of marital rights
over the wife's person and property. Instead of referring to the wife's
duty to obey her husband and seeing the latter as having a dominant role in
family life, the law refers to the participation of the spouses "in
providing moral and material guidance to the family, in the interest of the
latter, contributing to its maintenance, raising the children and helping
to establish them". (article 213 of the new Civil Code). In addition, it
puts an end to the legal incapacity of married women. 5/
This same Act anticipates the reform of marriage settlements which
took place in 1974: it gives each spouse the right - a right which cannot
be waived - to collect his or her wages and salary and the income from his
or her own property and to dispose freely thereof, after having paid the
expenses relating to the marriage. 6/
This picture is complemented by the Act of 4 February 1974 which
reforms the marriage settlement and eliminates discrimination against
married women as regards management of property. 7/
On the whole, the Act of 4 February 1974 put an end to the excessive
powers of the husband over assets of the communal estate and removed all
special reference to wives, referring only to spouses, thereby giving wives
the same managerial powers as husbands. It also did away with dowry
settlements 8/ and, in the provisions governing agreed marriage
settlements, 9/ removed any distinction between husband and wife. Thus a
woman who opts for the settlement based on separate ownership of property
no longer needs to obtain special consent from her husband or authorization
from the courts when wishing to dispose of property that is in her name
alone.
On a slightly different plane, the Act of 4 February 1974 - which was
adopted before the divorce laws were amended - restored equality between
the spouses in respect of grounds for divorce. It provides that either
spouse, without distinction, may file for divorce on grounds of adultery by
the other partner. It thus did away with the situation whereby, in order
for adultery to constitute peremptory grounds for a woman to divorce her
husband, the man had to be keeping his girlfriend in the conjugal home,
whereas any adulterous act on the part of a wife - even an isolated incident -
could be cited by the husband when filing for divorce. 10/
Since the Act of 6 February 1975, the parental authority of the
husband as head of the family, has been replaced by the parental authority
of the father and mother exercised jointly. Parental authority in respect
of a child who is born out of wedlock is exercised, in principle, by the
mother, even if the father has recognized the child. However, the
guardianship magistrate may decide, at the request of either father, mother
or government procurator's office, that it should be exercised by the
father alone or by both father and mother jointly. 11/
With regard to affiliation, the Act of 13 April 1979 made it possible
for a married woman to get around the presumption of paternity of her
husband by registering her child in the civil register under her name
alone, 12/ provided that, in addition, the child has no apparent status
vis-a`-vis the husband. 13/
The Act of 26 April 1979 concerning inheritance rights considerably
improves the position of the surviving spouse; the latter becomes a full
heir and is entitled, together with the descendants, to the estate of the
deceased. However, the surviving spouse is not a compulsory heir and can
be disinherited.
Penal law
The Act of 11 November 1974 abolished those articles of the Penal Code
concerning adultery. As in the case of divorce, women who committed
adultery were treated differently from men who did likewise. In order for
a husband to incur punishment he had to be found guilty of having kept a
girlfriend in the conjugal home, whereas a married woman could be
prosecuted for any kind of adulterous behaviour.
The legislation pertaining to abortion was changed by the Act of
15 November 1978 which dealt with sex education and prevention of
backstreet abortions and regulated the termination of pregnancy, easing the
penalties for abortion. 14/
Law concerning labour and vocational training
A major source of discrimination against women stemmed from the Act of
6 September 1983 concerning access to the Highest Institute of Pedagogical
Studies and Research. 15/ In fact, there were separate rosters for men
and for women seeking to enter the Institute, but since there were a large
number of women candidates the result was that women had to be better
qualified than their male counterparts in order to have access to training.
This discrimination was abolished in 1989.
The specific recognition of equality of treatment in respect of
remuneration was assured by the Grand Duchy regulation of 10 July 1974
which anticipated directive 75/177/EEC and was based both on article 119 of
the Treaty of Rome of 25 March 1957 establishing the European Economic
Community and on ILO Convention No. 100 concerning equal remuneration.
16/
An Act of 8 December 1981 concerning equal treatment of men and women
in respect of access to employment, vocational training and advancement,
and conditions of work implemented directive 76/207/EEC concerning equal
treatment of men and women.
An Act of 17 November 1986 amended the Act of 23 July 1952 concerning
military organization, giving women an opportunity to serve as volunteers
in the army. 17/ This enabled women to apply for a number of jobs which
are filled by army volunteers (for example, non-commissioned officers in
the army, members of military bands, prison guards and officers of the
gendarmerie and police force. 18/
Public sector
From the start, the Act of 22 June 1963 setting forth the salary
regime for civil servants 19/ established that men and women would
receive equal treatment as far as remuneration is concerned.
Discrimination in respect of wages relating to the so-called "head of
household" allowance remained until the adoption of the Act of 20 May 1983,
which replaced that allowance by a "family" allowance.
The public sector also has to abide by the principle of equal
treatment set forth in the Act of 8 December 1981 mentioned above.
Social security
The Act of 15 December 1986 concerning the progressive implementation
of the principle of equal treatment of men and women in respect of social
security amended a whole series of articles of the social security code,
bringing them into line with the principle of equal treatment. 20/
The Act of 27 July 1987 concerning old age, disability and survivors'
benefits completely overhauled the structure of pensions. 21/
Nationality
Since the Act of 26 June 1975 a woman who is a national of Luxembourg
no longer loses her nationality upon marrying a foreigner.
Since the Act of 11 December 1986, a child is a national of Luxembourg
if either his father or mother have that nationality. This Act establishes
full equality of men and women with regard to the transmission of
nationality. 22/
Penalties
The above-mentioned Grand Duchy regulations of 10 July 1974 concerning
equal pay of men and women provides as penalty that the discriminatory
provision shall be automatically invalidated and replaced by the higher
remuneration than that referred to in the invalidated provision. 23/
24/
The Act of 8 December 1981 concerning equal treatment of men and women
in respect of access to employment, vocational training and advancement and
conditions of work provides that an employer, his employees or
representatives, or any other person who disseminates or publishes job
offers or advertisements which are not consistent with the principle of
equal treatment of men and women shall be liable to a fine of [between
10,001 and 100,000] 25/ francs. 26/
Moreover, pursuant to article 6 27/ of this Act, any clause of any
contract, regulation or statute that is contrary to the principle of equal
treatment of men and women in respect of access to employment, advancement,
vocational guidance, training, refresher courses and retraining, or access
to an independent profession and conditions of work shall automatically be
invalid.
In order to protect a worker who reacts to discrimination from
reprisals by his employer, article 8 of the Act of 8 December 1981
characterizes as improper "any dismissal, the primary reason for which is
based on the employer's reaction to:
- a well-founded complaint filed either with the enterprise or
private or public service where he is employed, or with the
General Inspectorate of Labour and Mines; 28/
- an intervention by the General Inspectorate of Labour and Mines;
- legal proceedings designed to enforce the principle of equal
treatment in the areas recovered by the present Act".
The Act thus does not give the judge authority to determine whether
such dismissal is improper. His role is simply, at the request of the
worker, to order the employer to pay damages, 29/ bearing in mind the
injury sustained by the worker on account of his being dismissed. In
ruling on the damages to be paid to the employee, the court may, if the
employee so requests during the proceedings and if it deems that the
conditions for a continuation or resumption of working relations have been
met, recommend that the employer agree to take back the employee to make up
for the improper dismissal. If he agrees to take the worker back without
loss of seniority the employer is released of any obligation. However, if
he refuses to do so, he may be ordered to pay compensation equal to one
month's wages or salary, in addition to the above-mentioned damages.
Similarly, the Act of 3 July 1975 concerning the protection of
pregnant women at work 30/ states in article 14 that any infringement of
the provisions of articles 3, 31/ 4, 32/ 5, 33/ 6, 34/ 7, 35/
and 10, 36/ shall be punishable by imprisonment of between eight days and
three months and a fine of [501 to 50,000] 37/ [francs].
A recent bill, No. 4071, which complements the Penal Code and
classifies racism, revisionism and other behaviours based on discrimination
as illegal, also provides for penalties for a series of behaviours which
fall within the scope of the present Convention. 38/
Thus anyone who makes a malicious charge against an individual on the
grounds of their sex, which charge is likely to attack the individual's
honour or to expose them to public scorn, shall be liable to a sentence of
one month to one year in prison and a fine of 10,001 to 1 million francs.
39/
Such behaviour shall be characterized as intentional defamation if
proof of the charge is not provided even though the law permits the charge
to be proved. It shall be termed defamation if the law does not permit the
charge to be proved. The victim of defamation or intentional defamation
based on considerations of sex (or other discriminatory grounds 40/)
shall not be required to provide evidence of the fact that the charges have
been made public, unlike a victim of defamation or intentional defamation
based on considerations other than those listed in proposed article 454 of
the Penal Code. The penalty provided for is also heavier: the minimum
term of imprisonment is one month instead of eight days, the maximum one
year.
Furthermore, the proposed text of article 454 of the Penal Code reads
as follows: "Discrimination as defined in article 454, when committed
against a natural or artificial person, a group or community of persons,
shall be punishable by imprisonment from eight days to two years and/or a
fine of from 10,001 to 1 million francs, where the discrimination consists
of:
1. Refusing to provide a good or service;
2. Making provision of a good or a service conditional on one
of the elements referred to in article 454, or discriminating in any
other way when providing the good or service, on the basis of one of
the elements referred to in article 454;
3. Indicating in an advertisement an intention to withhold a
good or service or to practice discrimination in connection with the
provision of a good or service, on the basis of one of the elements
referred to in article 454;
4. Obstructing the normal exercise of any economic activity;
5. Refusing to hire, to punish or to dismiss an individual;
6. Subjecting a job offer to a condition based on one of the
elements referred to in article 454."
A separate article 41/ establishes a penalty of imprisonment from
one month to three years and/or a fine of 10,001 to 1,000,500 francs for
discrimination, as defined in proposed article 454 of the Penal Code, by an
individual vested with public authority or entrusted with a public service
mission, in the exercise, or in connection with the exercise, of his duties
if such discrimination consists of:
1. Withholding enjoyment of a right granted under the law;
2. Obstructing the normal exercise of any economic activity.
Pursuant to article 457 of the Penal Code, as proposed, the provisions
of articles 455 and 456 would not apply to discrimination provided for
under a law or a regulation.
Finally, article 457-1 of the Penal Code, as proposed, states:
"A penalty of imprisonment from eight days to two years and a
fine of 10,001 to 1 million francs, or either one of the above
penalties shall be applied to:
(1) Anyone who by speeches, shouts or threats proffered in
public places or meetings, or by written works, printed matter,
drawings, etchings, paintings, emblems, pictures or any other written,
spoken or pictorial aid, sold or distributed, offered for sale or
displayed in public places or meetings, either by posters or notices
displayed for public view, or by any means of audiovisual
communication, incites to the acts referred to in article 455, to
hatred or violence against a natural or artificial person, group or
community on the basis of one of the elements referred to in article
454;
(2) Anyone who belongs to an organization whose goals are to
commit or whose activities involve committing one of the acts provided
for in paragraph 1 of this article;
(3) Anyone who prints or causes to have printed, produces or is
in possession of, transports, imports, exports, causes to have
produced, imported, exported or transported, puts into circulation in
the territory of Luxembourg, sends from the territory of Luxembourg,
gives to the postal service or to any other professional responsible
for distributing mail in the territory of Luxembourg, causes to pass
in transit through the territory of Luxembourg, written works, printed
matter, drawings, etchings, paintings, posters, photographs,
cinematographic films, emblems, images or any other written, spoken or
pictorial aids likely to incite to the acts referred to in
article 455, to hatred or violence against a natural or artificial
person, a group or community, on the basis of one of the elements
referred to in article 454.
The articles listed above shall in any event be confiscated."
This text is likely to be applied especially in regard to incitement
to violence. Thus, for example, this provision may be invoked against
anyone who produces, imports or is in possession of pornographic films
containing scenes of sadism towards one woman or women.
3. Legal protection
Women and men have equal access to the courts of Luxembourg. Under
the Act of 12 November 1971, women have full legal capacity to go to court,
as do men.
With regard to labour legislation, special protection is provided for
both female workers and male workers. All employers, enterprises or
establishments with wage-earning workers are under the supervision of the
General Inspectorate of Labour and Mines. The latter sees to the
implementation of the provisions of statutes, regulations, administrative
rules and agreements governing conditions of work and protection of workers
in the exercise of their trade. 42/
It notes the violations it finds in a report which it places in the
hands of the State prosecutor with a recommendation that he prosecute,
unless it deems that it would be more appropriate to issue a warning or
simply give advice. 43/
There are two mechanisms which are designed to guarantee to all
parties access to the courts.
The reception and legal information service which operates in the
courts and for which there is no charge. It is supplemented by a service
intended specifically for women's rights; it, too, is free of charge.
Legal aid. It is accorded equally to men and to women. In practice,
especially in matters of divorce, more women than men benefit from this
institution: this is a direct consequence of the economic dependence of
many married women on their husbands. Anyone whose income is too low for
them to be able to afford a lawyer can go to the president of the Bar
Association who will assign them counsel. Since such counsel is paid only
a stipend by the State, persons without resources are generally defended by
young trainee lawyers who have little experience.
Although women are thus ensured access to the courts equally with men,
it is just as important that the courts should apply the principle of
non-discrimination between the sexes to the full extent.
With regard to direct discrimination against women, the courts have
found, with regard to remuneration, that discrimination can be said to
exist if male and female workers occupying identical or comparable posts
are, without objective reason, treated differently.
As for indirect discrimination, the Supreme Court of Luxembourg in a
decision of 14 April 1994 found:
"That although citizens of Luxembourg and refugees alike must
have resided for at least 10 years out of the previous 20 years in the
territory of Luxembourg in order to be able to benefit from the
guaranteed minimum income, in practice this requirement creates
inequality of treatment between citizens of Luxembourg and refugees
normally residing in the territory of Luxembourg since the latter can
never or - at least hardly ever - meet that condition as they have had
to flee their country of origin in order to find refuge in the Grand
Duchy;
"That the provision of article 2 (1) of the Act of 26 July 1986
concerning the 10-year's residence requirement, as amended, is not in
accordance with article 23 of the Convention of 28 July 1951 and
cannot be applied to refugees normally residing in the territory of
the Grand Duchy." 44/
Thus the Court agreed in one isolated case with the judicial precedent
of the Court of Justice of the European Communities which in one decision
45/ concerning maternity benefits and residence ruled against Luxembourg
because certain residence requirements under the law were deemed contrary
to the provisions of the Treaty.
It is quite likely that, in following the policy adopted in that
decision of the Supreme Court, the courts will declare discriminatory the
provisions of any regulations and agreements in respect of labour
legislation that require all workers, without distinction, in order to
enjoy a certain treatment, to meet a seemingly neutral requirement that
women workers could hardly ever meet. In fact, the above-mentioned Act of
8 December 1981 states in article 2: "The principle of equality of
treatment for the purposes of the provisions of the present Act implies the
absence of any discrimination based on sex, whether direct or indirect, by
reference particularly to matrimonial or family status". It is less
certain that this broad definition of discrimination would be accepted in
connection with a specific case falling outside the scope of the Act of 8
December 1981 and in which the plaintiff invoked article 11 (2) of the
present Constitution, or the proposed article 11 (3), since these
provisions do not refer specifically to indirect discrimination.
Furthermore, it should be pointed out that the courts in Luxembourg
deem themselves competent to apply the provisions of international treaties
directly, presuming that the provisions are sufficiently precise and
comprehensive. Hence, it is not always necessary for the legislator or the
regulatory power to intervene in order for such provisions to take effect.
Furthermore, it is the practice of the courts of Luxembourg, where there is
a conflict between international rules and domestic rules, to recognize the
international rules that are directly applicable as having primacy.
Article 3
States Parties shall take in all fields, in particular in the
political, social, economic and cultural fields, all appropriate measures,
including legislation, to ensure the full development and advancement of
women, for the purpose of guaranteeing them the exercise and enjoyment of
human rights and fundamental freedoms on a basis of equality with men.
1. The national mechanisms responsible for promoting equality of
opportunity for men and women are as follows:
1.1. Ministry for the Advancement of Women
In February 1995, the Ministry for the Advancement of Women was
established; it takes over the responsibilities of the Department for the
Enhancement of the Status of Women which was under the Ministry of the
Family and Solidarity.
Prior to that time, the Department promoted, at the level of the
Ministry of the Family and Solidarity, actions designed to improve the
situation in the various lifestyles chosen by women. In order to do so the
Department had, as does the Ministry for the Advancement of Women today,
the support of private organizations whose goal it is to assist women in
specific situations. Moreover the Department sought to stimulate and, if
necessary, support and harmonize the initiatives on behalf of women taken
by other actors concerned with equal opportunities - the other ministerial
departments, social partners, women's associations, private associations.
The creation of the Ministry for the Advancement of Women reflects the
Government's wish to demonstrate the importance it attaches to the policy
regarding the advancement of women. At the same time, it was necessary in
order to emphasize that that policy was separate from the family policy.
The powers of the Ministry for the Advancement of Women are both horizontal
and vertical. It thus alternates between reviewing bills prepared by other
ministries which affect the status of women and drafting bills itself.
Among the bills which it will prepare or complete in the near future is one
relating to the introduction of family leave, one concerning sexual
harassment at the workplace and one relating to the designation of a labour
delegate for women in companies of a certain size.
Other specific goals, which do not necessarily require the
intervention of the legislative power, include extending aid to women in
need and strengthening measures to assist in the professional reintegration
of women who so desire it.
The Ministry for the Advancement of Women is assisted in the
accomplishment of its task by the "Interministerial Committee: advancement
of women" which is made of up representatives of all the ministries. It is
responsible for advising the Minister for the Advancement of Women and
proposing concerted actions. The interministerial committee has been in
operation since July 1995 and meets every month and it should make it
possible to mainstream the gender perspective into all national policies.
1.2 The Women's Labour Committee
The Women's Labour Committee has been operating since 1980 and was
made official by the Grand Duchy regulation of 27 November 1984
establishing a women's labour committee. It is an advisory body which is
responsible for considering, either on its own initiative or at the request
of the Government, all matters relating to the professional activity,
training and advancement of women. It is empowered to propose "any actions
which it deems likely to improve the situation of women". 46/
The 20 members of the Committee include:
Four representatives of women's associations proposed by the National
Council of Women of Luxembourg (see below);
Four representatives of employers' professional organizations;
Four representatives of the most representative trade union
organizations at the national level;
Eight representatives of the Government. 47/
Since it was established, the Committee has issued some 30 opinions
which have been widely disseminated. These opinions may be found in the
Parliamentary papers, as can opinions of the business chambers which relate
to a bill.
1.3. The National Council of Women of Luxembourg (CNFL)
The National Council of Women of Luxembourg, which was established in
1975, is a non-profit organization comprising a group of federations,
associations and representative organizations who have as one of their
social aims to defend and advance women's interests. In order to be a
member an association must:
- either be constituted under the laws of Luxembourg,
- or be the women's organization of a political party represented
in the Chamber,
- or be the Luxembourg branch of an organization recognized by the
United Nations or the Council of Europe.
For the time being, CNFL has 11 members.
As noted earlier, CNFL is represented in the Women's Labour Committee
and therefore helps to formulate the latter's opinions. Furthermore, CNFL
follows political, economic and social developments closely and does not
hesitate, on occasion, to communicate its position to the President of the
Chamber of Deputies. 48/
Furthermore, it manages a women's shelter, the Foyer Sud Fraen an
Nout.
With the support of the European Commission, on 8 March 1995, CNFL,
acting in collaboration with the Luxembourg branch of the European network
"Women in Decision Making", launched a campaign to promote a communal
policy of equal opportunities for men and women, which was supported by the
Union of Cities and Communes of Luxembourg (SYVICOL) and the Ministries for
the Advancement of Women, Labour and the Interior. In the brochure
describing this campaign which was distributed to the communal councils of
the 118 communes in Luxembourg, CNFL invited the communes to:
appoint a member of the communal council (the burgomaster, an alderman
or member of the council, either man or woman) who would be
responsible for promoting equal opportunities in his commune;
appoint an advisory commission on equal opportunities at least half of
whose members would be women;
consider establishing an equal opportunities office in the major
communes.
The communal body on equal opportunities thus appointed will take
steps to:
1. Promote balanced participation by women in consultative organs of
the commune and in the various administrative and management
organs;
2. Promote equal opportunities for girls and boys at school and
outside;
3. Promote various types of child-care;
4. Promote the integration of socially disadvantaged women; and
5. Combat all forms of violence against women and children.
The campaign has been relatively successful: some 38 communes have
appointed one or more officials. In order to give the campaign a further
boost the Ministry for the Advancement of Women has undertaken, after
consulting with CNFL and SYVICOL (the union of cities and communes of
Luxembourg), to provide more substantial leadership. Accordingly, it will
present a kind of "practical guide" to measures, from which communes that
wish to embark on a policy of equal opportunities may choose freely,
bearing in mind their specific situation.
1.4. The Liaison, Discussion, Action Group (LIDIA)
The LIDIA group is a kind of parallel women's organization consisting
of 11 sub-organizations. It is a flexible structure that was established
fairly recently; it prepares positions and organizes actions to increase
public awareness regarding equal opportunities in the political, economic
and social areas and, more particularly, in areas relating to women's
employment. It also organizes seminars dealing, inter alia, with matters
relating to the labour market and the individualization of women's rights
in the context of social security.
2. International machinery
The Minister for the Advancement of Women represents Luxembourg at the
various international conferences dealing with the improvement in the
status of women. The Ministry for the Advancement of Women also
participates in the work of the various international committees at the
level of:
The United Nations: Commission on the Status of Women and Economic
and Social Council;
The Council of Europe: Steering Committee for Equality Between Men
and Women (CDEG); and
The Commission of the European Union: Advisory Committee on Equal
Opportunities for Women and Men.
Article 4
1. Adoption by States Parties of temporary special measures aimed at
accelerating de facto equality between men and women shall not be
considered discrimination as defined in the present Convention, but shall
in no way entail as a consequence the maintenance of unequal or separate
standards; these measures shall be discontinued when the objectives of
equality of opportunity and treatment have been achieved.
2. Adoption by States Parties of special measures, including those
measures contained in the present Convention, aimed at protecting maternity
shall not be considered discriminatory.
The Act of 8 December 1981 concerning equality of treatment for men
and women as regards access to employment, vocational training and
advancement, and working conditions provides in article 2 (3) that
"provisions of statutes, regulations or administrative rules concerning the
protection of women, including in respect of pregnancy and maternity, and
measures designed to promote equal opportunities for men and women, in
particular by remedying the de facto inequalities which affect women's
opportunities in the areas referred to in article 1 (employment, training,
advancement, retraining ...) shall not be considered as contrary to the
present Act".
A round-table meeting in April 1995 on the subject of the negotiation
of positive plans of action, in which representatives of the National
Council of Women of Luxembourg, the Women's Labour Committee, various trade
unions and the positive actions unit of the Belgian Ministry of Labour
participated, made it possible to exchange information and experience at
the national and international level.
In October and November 1995, the Minister for the Advancement of
Women organized a series of meetings with representatives of business
chambers, employer and trade union organizations with a view to finding out
which firms would agree to carry out positive actions and encourage
possible initiatives.
Examples of positive actions are the exception rather than the rule:
there are two cases of initiatives taken in the field of the organization
of work and training.
Ateliers Reichert in Holzem
In 1993, Ateliers Reichert, a workshop dealing with fine metals, was
awarded the Women's prize for enterprises 49/ which, at the time was
awarded by the Ministry of Labour, for innovative measures designed to
promote the employment of women. Ateliers Reichert are noteworthy for
their extreme flexibility as regards the organization of work in order to
enable their staff, particularly their female staff members, to reconcile
their family responsibilities with their on-the-job responsibilities.
Unpaid leave is granted, upon request, for family reasons, continuing
training or for additional free time; employees doing certain
administrative tasks are given an opportunity to work at home. In
addition, staff who are having personal problems can have access to social
support.
Fondation J. P. Pescatore
Fondation J. P. Pescatore is an old people's home which offers two
years of training to workers on the bottom rung of the ladder; the training
is related to real opportunities for promotion and social advancement.
Women having no vocational qualification can participate while in training
on the job; the training includes an introductory course comprising a
minimum of 30 hours training and a more advanced course comprising at least
30 hours of theory and technical training, 30 hours of practising what they
have learned, under supervision, and 40 hours of practical training outside
the Fondation; their performance is evaluated on a continuing basis.
People who successfully complete the training are awarded a
certificate by the Fondation; this entitles them to more varied and more
status-enhancing work, the title of senior hostess, a uniform in
recognition of their new status, higher wages and possibilities for
advancement.
Among the three most representative trade unions in Luxembourg only
OGB-L 50/ and LCGB 51/ have a "Women's Department".
In 1993 OGB-L adopted a programme for the advancement of women,
thereby breaking new ground for, as yet, there is no collective agreement
containing a comprehensive plan for measures to promote equal
opportunities.
The Women's Department of LCGB is a recently established department
within the trade union. In 1994, the post of trade union secretary was
given to a woman for the first time. A programme of action will be
proposed to the next congress early in 1996.
Within the context of its campaign to promote a communal policy of
equal opportunities for men and women referred to earlier, the National
Council of Women of Luxembourg has called for the "balanced participation,
in terms of numbers, of men and women in communal advisory organs and in
the various administrative and management organs. 52/
In addition, the Government has assigned the Ministry for the
Advancement of Women the task of preparing a legal framework for the
establishment of a plan to promote the employment of women in the public
sector.
Article 5
States Parties shall take all appropriate measures:
(a) To modify the social and cultural patterns of conduct of men and
women, with a view to achieving the elimination of prejudices and customary
and all other practices which are based on the idea of the inferiority or
the superiority of either of the sexes or on stereotyped roles for men and
women;
(b) To ensure that family education includes a proper understanding
of maternity as a social function and the recognition of the common
responsibility of men and women in the upbringing and development of their
children, it being understood that the interest of the children is the
primordial consideration in all cases.
(a) Elimination of prejudices
The Government of Luxembourg realizes that it is of crucial importance
to change people's outlook and eliminate prejudices, since much
discrimination has its roots in prejudice. At the same time, the
Government is realistic: such changes cannot be imposed from above but
must have popular support. Most women living in Luxembourg are not engaged
in paid employment. 53/ In the light of this information, that is to say
the traditional division of roles, it can be assumed that it will take a
long time for people's outlook to change. However, more and more women are
joining the workforce and this promises to bring about profound changes in
society.
The Government recognizes that the media, while playing an important
role in perpetuating traditional patterns of behaviour, can also be a
powerful force for changing attitudes. Accordingly, the Minister for the
Advancement of Women plans to launch, within the context of a campaign
entitled "Women in the media", a positive effort to promote women by
resorting to collaboration with the organs of the media. The need for such
a campaign was recently confirmed by an illustration that appeared in a
weekly publication devoted to personal ads; it depicted a prehistoric man,
cudgel in hand, standing in front of a kneeling woman and saying
(translated from the German): "A woman should be beaten and, if need be,
killed". The Minister for the Advancement of Women protested to the editor
in question and filed a complaint. An official apology was submitted. The
problem, however, is that such attacks on women's dignity may pass
unnoticed and that absence of any reaction is interpreted as acquiescence.
Accordingly, a consciousness-raising campaign for the media seems very
much in order.
Consciousness-raising sessions have been conducted from time to time
in the past. For example, the Ministry of the Family and Solidarity
published two brochures entitled "Women in the Grand Duchy of Luxembourg".
The first, which was issued in 1992, is subtitled "Demography and
families", the second is subtitled "Equal opportunities for men and women".
The new Ministry for the Advancement of Women will intensify these
consciousness-raising efforts: one leaflet is currently being prepared on
the topic of equality of the sexes in general. Others on specific topics
will follow.
In addition, the Ministry for the Advancement of Women plans to
conduct a survey, in 1996, of women who have no paid employment, with a
view to making known their aspirations, occupations, qualifications, if
any, and their plans for the future. The purpose of this undertaking is to
put a value on their work as homemakers, educators, caregivers and in many
cases, their volunteer work.
There is also a project relating to dissemination of the Convention on
the Elimination of All Forms of Discrimination against Women that is being
prepared. Students in the fine arts section of the Technical Lyce'e of
Arts and Trades were assigned the task of taking photos to illustrate the
text of the Convention; the latter will be presented, with the photos, in a
brochure - or possibly even an extra handbook - which will be used in
civics courses in the secondary schools.
In 1991 the group "Gre'ng Frae"n" 54/ published a brochure on
pornography with a bill concerning the production, propagation and
utilization of pornographic representations prompting discussion of the
image of women in the media.
Regarding, more specifically, patterns of behaviour which involve acts
of violence against women, it seems a good idea to give the legal
background. It applies not only to female victims but to all cases of
violence, whether the victim is a man or a woman.
Sexual assault is covered by articles 372, 373, 375 or 385 of the
Penal Code. 55/
The first provision establishes a penalty of between six months and
five years in prison for indecent assault committed with violence or
threats on persons of either sex, or committed on persons who are not in a
position to give their consent freely or to put up any resistance. It
provides for imprisonment between 5 and 10 years if such an assault is
committed on a child who is under 14.
Indecent assault committed without violence or threats is punishable,
according to this characterization, only if it is committed on, or with the
help of, a person of either sex who is under 16 years of age: the penalty
provided for is imprisonment for one to five years (article 372 of the
Penal Code). Indecent assault committed without violence or threats on a
person aged 16 or over can be punished only as a public act of indecency
(article 385 of the Penal Code) and carries with it a penalty of eight days
to one year in prison and a fine of from [26 to 500] 56/ francs.
In the practice of the courts, indecent assault is defined as "a
physical action contrary to the ordinary sense of decency, committed on
another person against their will". 57/
The violence and threats required under article 373 of the Penal Code
are described, respectively, as an act of physical coercion exercised on a
person and as any means of non-physical coercion through fear of imminent
harm. 58/ A little violence is enough. 59/
A charge of indecent assault on persons who are "not in a position to
give their consent freely or to put up any resistance" is deemed
established when "the assault is committed on persons who, as a result of
machinations and manoeuvres employed by the perpetrator of the assault,
were not in a position to give their consent freely". 60/
Similarly, "absence of consent or inability to resist is sufficient
grounds for applying the first paragraph of article 373". 61/
Just because an individual "knowingly cooperated in the inevitable in
order to lessen the danger resulting from the aggression of the perpetrator
of the rape or indecent assault" they "shall not be considered to have
consented, and the accused who has taken advantage of such a person under
such circumstances shall nevertheless be considered guilty of rape or of
indecent assault". 62/
Indecent assault does not necessarily have to include touching: 63/
the perpetrator does not need to have laid hands on the victim's private
parts.
It is clear from the foregoing that acts of sexual aggression seldom
fall under the more moderate provision of article 385 of the Penal Code,
which provides merely for imprisonment of between eight days to one year
and a fine of between [26 and 500] 64/ francs. In fact, this provision
covers any public act of indecency and is not limited only to indecent
assault on a particular individual. Thus, for example, exhibiting obscene
photographs of a pornographic nature in a public place has been deemed to
be a public act of indecency. 65/
For a long time the only form of sexual penetration characterized as
rape was vaginal penetration by a male organ. Prior to the entry into
force of the Act of 10 August 1992 concerning protection of youth, which
introduced the aforementioned definition, article 375 of the Penal Code
read as follows: "Anyone who has committed the crime of rape, either by
using violence or strong threats, or by ruse or artifice, or by taking
advantage of someone who is not in a position to give their consent freely
or to put up any resistance, shall be punished by imprisonment. If the
crime is committed against a child who is less than 14 years old, the
accused shall be sentenced to hard labour from 10 to 15 years". The term
"rape" was not defined, and although it was possible to adapt the term
"rape" to sociological realities, that is to say to take account of
present-day sexual practices, there was a reluctance to do so; in most
cases the only act characterized as rape was that ultimate violation of the
person which is likely to result in pregnancy. 66/ Oral and anal
penetrations forced on a person, whether male or female, were, at most,
punishable as indecent assaults. The Act of 10 August 1992 concerning the
protection of young people 67/ defines rape as follows: "Any act of
sexual penetration, of whatever nature and by whatever means, committed on
another person, whether by means of violence or grave threats, by ruse or
artifice, by taking advantage of a person who is not in a position to give
their consent freely or to put up any resistance, constitutes rape and
shall be punished by imprisonment."
The presumption of absence of consent when the victims is under the
age of 14, which is provided for in article 375, paragraph 2, was
introduced on the same occasion in the light of a departure from
established practice, 68/ which sought to require that it be determined
in each specific case whether or not a child under 14 had consented to
having sexual relations. Likewise, the age of a victim of indecent assault
without violence or threats, covered by article 372 of the Penal Code, was
raised from 14 to 16 years and article 372 bis of the Penal Code was
repealed. The latter had dealt with indecent assaults committed without
violence or threats by an adult on a person of the same sex under 18; in
other words, where homosexual acts were involved, protection of minors
extended beyond the age of 14 years. In this respect the Penal Code
discriminated therefore both in respect of homosexual perpetrators and in
respect of victims of heterosexual acts who were over 14.
Finally, it should be pointed out that there is no provision dealing
specifically with rape committed by a husband against his wife. For a long
time judicial practice considered that there was no such thing as rape
within marriage, given that sexual relations are one of the aims of
marriage. That is no longer the case; a wife may, indeed, invoke article
375 of the Penal Code, 69/ but often runs into difficulties when it comes
to proving absence of consent.
Ill-treatment of women other than sexual aggression falls within the
scope of provisions concerning homicide and intentional bodily injury, that
is to say, articles 392 and following of the Penal Code.
As far as figures are concerned, in 1994, there were 120 cases
involving public morals reported to the police, of which 28 were rapes, 49
were indecent assaults and 46 were public acts of indecency. It seems that
the real figures are higher: the three family planning centres (located in
Luxembourg, Esch-sur-Alzette and Ettelbruck) were consulted about 242 rapes
during the same period. Although these figures are not broken down
according to the sex of the victim, it is well known that men are seldom
victims of rape. Moreover, the statistics concerning battery are not
broken down according to sex, making it difficult to determine the extent
of the problem of violence against women.
The State of Luxembourg has signed agreements with private
organizations which run women's shelters, whereby these organizations
receive financial support from the State. There are 120 beds available for
women in various situations: battered women, women who have been sexually
abused, pregnant women. The number is constantly being increased in the
light of needs. A shelter for young girls is to open some time in 1996.
An information centre for young girls has been operating since
October 1995. It provides shelter to young girls who have been ill-
treated, either sexually, physically or mentally.
The family planning centres also propose to provide shelter and
support for rape victims, 70/ as well as individual and group therapy.
Private organizations have taken many initiatives: awareness-raising
campaigns, brochures, lectures, colloquiums. In January 1992, several
organizations formed a working group against sexual abuse and launched a
vast campaign against sexual abuse, putting on exhibitions, lectures and
plays. This campaign was very successful and received much press coverage.
In March 1993, the Ministry of Labour launched a campaign against
sexual harassment which was funded jointly by the European Commission. The
basis for this campaign was a survey on sexual harassment in the workplace,
carried out by the Luxembourg Institute of Social and Market Research
(ILRES) and financed by the Ministry of Labour; it found great resonance in
the press and the news media.
On 7 October 1993 the Ministry of the Family, in collaboration with
the Ministry of Justice, the National Council of Women of Luxembourg and
representatives of the women's shelters and of the "Rape info" service of
the Luxembourg Movement for Family Planning and Sex Education, 71/
launched a campaign to combat violence against women. In the context of
this campaign a poster was printed and distributed together with an
information booklet entitled "Breaking the silence" on assistance in the
event of violence towards women. The poster and the booklet (which was
published in three languages, French, German and Portuguese) were widely
disseminated through local government offices, social services, hospitals,
doctors' offices. Training days and information meetings were organized
for State and local police officers. The training of such officers now
includes a segment on women victims of violence.
In April 1995, officials in charge of the PETRA project L-31 72/ the
Chamber of Trades organized a forum on equality of opportunities in
training and employment which included lectures/debates on equality of
opportunity in education and on the promotion of equality of opportunity
between men and women in the workplace.
(b) Family education
The Minister for the Advancement of Women believes that children learn
at a very early age how responsibilities are divided in the home. She
therefore plans to launch pilot projects at the pre-school level where,
using play activities, boys will learn about housework and child-rearing
and girls will learn about technology.
Politicians - both men and women - have spoken repeatedly about the
importance of dividing family responsibilities equally, and this principle
has for several years been outlined also in the information booklets for
families published by the Ministry of the Family. However no large-scale
activity has yet been undertaken on this specific issue.
Article 6
States parties shall take all appropriate measures, including
legislation, to suppress all forms of traffic in women and exploitation of
prostitution of women.
In Luxembourg prostitution as such is not punishable but its outward
manifestation is. Article 382 of the Penal Code was introduced by the Act
of 1 April 1968 which sought to eliminate the official regulations
pertaining to prostitution and to strengthen the fight against prostitution
and procuring; it establishes soliciting as an offence: "Anyone who by
gesture, words, writings or any other means seeks publicly to solicit
persons of either sex with a view to inciting them to prostitution shall be
punished by a prison term of from 8 days to 6 months and a fine of from
[10,001 to 200,000] francs. 73/
That same Act amended article 563 of the Penal Code which establishes
a penalty for certain behaviour in order to punish people "whose attitude
on the public thoroughfare is of a nature to incite to prostitution". The
legislator at the time saw these as "manifestations that were contrary to
public order". 74/
Moreover, the Act of 1 April 1968 did away with the regulations
pertaining to prostitution, as required by article 6 of the Convention for
the Suppression of the Traffic in Persons and of the Exploitation of the
Prostitution of Others which was opened for signature at Lake Success, New
York, on 21 March 1950 and which the Grand Duchy signed on
9 October 1950. 75/ According to the drafters of the bill,
"Considerations of human dignity are incompatible with the maintenance of
such a system of regulation." 76/ They also stated that "By condemning
the prostitutes who are subject to police control and marking them with the
indelible seal of their degradation, the regulations deprive the
unfortunate prostitutes of any opportunity to rehabilitate themselves."
77/
Articles 379 and 379 bis of the Penal Code refer to the exploitation
of prostitution and the traffic in women.
Article 379 bis states:
"A penalty of between six months and three years' imprisonment
shall be imposed on:
"1. Anyone who in order to satisfy another's passions, hires or
seduces a person or leads them astray, even with their consent, for
purposes of prostitution or vice, either in the territory of the Grand
Duchy or in a foreign country;
"The attempt shall be punished by between three months and two
years if the victim was hired, seduced or led astray through
deception, with the assistance of violence, threats, abuse of
authority or any other means of coercion or, if the victim has indeed
engaged in prostitution or vice, the prison term shall be from one
year to five years;
"If two of the above-mentioned circumstances applied, the deed
shall be punishable by imprisonment [from 5 to 10 years];
"2. Anyone who owns, directly or through an intermediary,
manages, directs or operates a brothel;
"3. Any landlord, hotelier, manager of a lodging house, cabaret
owner or, in general, anyone who surrenders, rents or makes available
to another or who tolerates the utilization of all or part of a
building, knowing that the premises surrendered, rented or made
available are being used for the exploitation of the prostitution of
another;
"4. The procurer."
The Act gives a very long list of persons who should be considered
procurers:
"A procurer is anyone who:
"(a) In any way helps, assists or knowingly protects prostitution
or soliciting for purposes of prostitution;
"(b) Anyone who in any way shares the proceeds of the
prostitution of another or receives subsidies from a person engaged in
prostitution;
"(c) Who lives with a person who habitually engages in
prostitution knowing that this is so;
"(d) Who, having frequent contact with one or more persons
engaged in prostitution cannot give proof of resources corresponding
to his lifestyle;
"(e) Who hires, seduces or keeps a person, even an adult and even
with the latter's consent, for purposes of prostitution or hands them
over to prostitution or vice;
"(f) Who acts as intermediary, in any capacity whatsoever,
between persons engaging in prostitution or vice and the individuals
who exploit or remunerate the prostitution or vice of others;
"(g) Who, by threats, pressure, manoeuvres or by any other means,
impedes the efforts of qualified agencies to dissuade, supervise,
assist or rehabilitate persons who engage in prostitution or who are
in danger of doing so."
This extremely broad definition of procuring can be explained by the
fact that it is exceedingly difficult to prove that the proceeds of
prostitution have, indeed, been shared.
Before the entry into force of the Act of 1 April 1968, procuring was
not covered by the Penal Law. It was felt, on the one hand, that procuring
was practically non-existent in Luxembourg and, on the other hand, that it
was not necessary to pass special laws since procurers seldom operated "on
public thoroughfares or in public places to assist in soliciting or in the
practice of prostitution". 78/ The authors of the draft bill which,
after certain amendments, was to become the Act of 1 April 1968, stated,
however, that "even though these individuals do not operate in public
places, the Penal Law must punish them severely for they are nearly all
layabouts who do not earn any income by reputable means, and are therefore
essentially asocial or anti-social elements. They often terrorize the
women who are under their control and make their lives a living hell and
are major obstacles to the rehabilitation of such women. They often assist
white slave traffickers and manage brothels, and many of them have ties to
organized crime." 79/
Minors are given added protection. The last paragraph of
article 379 bis of the Penal Code provides for heavier penalties if the
victim is a minor. In addition, article 379 states:
"A penalty of one to five years in prison shall be imposed on:
"Anyone who, in order to satisfy the passions of another, has
excited, facilitated or encouraged the vice, corruption or
prostitution of a young person under 21 years of either sex, knowing
that the person was under age;
"If, due to his negligence, he was unaware that the individual
was under age, the punishment shall be imprisonment from six months to
three years;
"(...)
"The act shall be punishable by imprisonment from two to five
years if it was committed on a minor under 14 years of age, and by
imprisonment at hard labour if it was committed against a minor under
11 years of age;
"(...)"
In addition, if the guilty party is someone with influence over the
child who has been prostituted or corrupted, whether because they are
authority figures, teachers, officials or ministers of any religion, that
is an aggravating circumstance according to article 380 of the Penal Code.
Pursuant to the Act on the protection of young people of 10 August
1992, a minor who engages in prostitution may be placed in an institution.
Any attempt to commit the acts which are punishable under articles 379
and 379 bis shall also be punishable. Similarly, even if certain acts were
committed outside of the territory of Luxembourg, that does not place the
guilty beyond the reach of the courts of Luxembourg. 80/
If the procurer is found guilty, the court may place him at the
Government's disposal for a minimum of one year and a maximum of five
years. 81/ In addition, the court may forbid anyone who is sentenced to
at least one month in prison, from having or continuing as owner or manager
of a hotel, boarding house or employment agency, or being employed at any
such establishment in any capacity whatsoever for a period of between one
and ten years. 82/
The Act of 10 November 1984 introduced a temporary measure closing the
establishment or any place open to the public which had been used for the
exploitation of prostitution. 83/
Despite the very repressive nature of the legislation, it has proved
impossible to stem the phenomenon of procurement. Collecting enough
evidence to break a ring of traffickers and procurers requires lengthy
investigations, generally lasting several years, particularly since these
rings are usually international rings.
There are no compulsory medical checkups for prostitutes. However,
the service "Aids Berodung" 84/ (see later under article 12) maintains
regular contacts with some prostitutes and it has been suggested that they
should be vaccinated against hepatitis B.
Article 7
States Parties shall take all appropriate measures to eliminate
discrimination against women in the political and public life of the
country and, in particular, shall ensure to women, on equal terms with men,
the right:
(a) To vote in all elections and public referenda and to be
eligible for election to all publicly elected bodies;
(b) To participate in the formulation of government policy and
the implementation thereof and to hold public office and perform all
public functions at all levels of government;
(c) To participate in non-governmental organizations and
associations concerned with the public and political life of the
country.
(a) The rights set forth in article 7, paragraph (a), have long been
enjoyed by the women of Luxembourg.
Article 52 of the Constitution, which specifies the qualifications
required of voters (who are by definition eligible for public office),
states laconically that every voter shall, inter alia, "be a Luxembourger,
man or woman".
The right to vote and stand for public office was extended to women in
May 1919, and at elections held in that same year, a woman was elected to
the Chamber of Deputies for the first time. Following this modest gain, it
was not until 1965 that another woman deputy took her seat in the country's
legislature.
The Elections Act of 31 July 1924, as amended, contains no hint of
discrimination against women. 85/
Article 51 of the Constitution, final paragraph, states that voters
may be invited to make their views known by referendum in such cases and
under such conditions as may be determined by law. No general statutory
instrument has ever been enacted, but at all events women have the same
right to participate as men, since they, too, are voters.
Since the passing of the Act of 12 December 1972, no one may seek to
prevent his or her spouse from holding public office, even in the
likelihood of "serious detriment" to the material or other interests of the
spouse in question or to those of their minor children. 86/
Eligibility of women to serve, or actual service by women, on elected
bodies:
- at the commune level:
Under the Communes Act of 13 December 1988, every commune has a
governing body made up of the communal council and the college of the
burgomaster and aldermen.
In October 1993, 10.3 per cent of the members of communal councils
were women, including 10.2 per cent of the burgomasters, 8.1 per cent of
the aldermen, and 11.0 per cent of the councillors. This represents an
increase of 2.8 per cent over the 1987 elections, after which women
represented only 7.5 per cent of the total.
Luxembourg (the capital) has had a woman burgomaster since 1976.
- at the national level:
The Chamber of Deputies comprises 60 members, of whom 10
(i.e. approximately 16.67 per cent) are women. The number of women in the
Government is substantially different from the number of women with seats
in the House of Deputies, owing to the fact that the functions of a member
of the Government are incompatible with those of a Deputy. From 1989 to
February 1995, for example, the President of the Chamber of Deputies was a
woman. The person in question subsequently gave up that post to become
Minister responsible for three portfolios, namely, National Education and
Occupational Training, Religious Affairs, and Cultural Affairs.
- at the European level:
Luxembourg has six seats in the European Parliament, and following the
elections of June 1994, the country's representation was perfectly
balanced, with three men and three women Members. A change for personal
reasons occurred early in 1995, and as a result there are now four male and
two female Members.
At both the national legislative elections and the European
parliamentary elections of 12 June 1994, just over 25 per cent of all
candidates were women.
(b) From 1912 to 1964, the sovereigns of the Grand Duchy of
Luxembourg were women, namely, Grand Duchess Marie-Ade'lai"de (1912-1919)
and Grand Duchess Charlotte (1919-1964). Nonetheless, this situation could
never have come about had not the Grand Duke William IV, who was the father
of six princesses but had no male offspring, promulgated a family statute
in 1907 whereby his eldest daughter, Princess Marie-Ade'lai"de, was
declared the heir apparent. In the event that she should die without
issue, the younger princesses were to succeed in order of birth. That
statute was ratified by the Chamber of Deputies and acquired the force of
law on 10 July 1907. The fact remains that the family compact of the House
of Nassau of 30 June 1783 is still in force. It specifies that the crown
shall pass to the oldest male descendant in the direct line, to the
exclusion of female descendants, and is referred to in article 3 of the
Constitution. For that reason, the Government of Luxembourg ratified the
Convention on the Elimination of All Forms of Discrimination against Women
subject to the following reservation:
"The application of article 7 shall not affect the validity of
article 3 of our Constitution concerning the hereditary transmission
of the crown of the Grand Duchy of Luxembourg in accordance with the
family compact of the house of Nassau of 30 June 1783, maintained by
article 71 of the Treaty of Vienna of 9 June 1815 and expressly
maintained by article 1 of the Treaty of London of 11 May 1867."
It is conceivable, however, that at some future time the order of
succession to the throne may be altered at the instance of the sovereign,
and in that case Luxembourg would, of course, withdraw its reservation.
The first woman Minister took up her duties in 1969. For some time,
however, the number of women who were members of the Government remained
quite small. The previous Government (1989-1994), which comprised 10
Ministers and two Secretaries of State, at first had only one woman member,
namely the Secretary of State for Health, Social Security, Youth and
Sports. In 1992 a woman was appointed Minister of Agriculture, Viticulture
and Rural Development and Minister in charge of Cultural Affairs. Of the
11 Ministers in the current Government, three are women. Their portfolios
are as follows:
- Family, Advancement of Women, and Handicapped and Disabled
Persons;
- Social Security, Transport and Communications;
- National Education and Occupational Training, Religious Affairs
and Cultural Affairs.
As we have seen, 87/ action to promote an equal-opportunity policy
at the commune level is being taken by the National Council of Women of
Luxembourg with the support of the Ministry for the Advancement of Women.
One of the objectives of that action is to improve the status of women in
society through, among other things, a visible increase in their
participation in local politics.
Women members of the several political parties, especially the
environmentalist party known as De'i Gre'ng, are calling for quotas and
parity thresholds in all areas of decision-making as a means of correcting
imbalances and achieving a democracy that is representative of the entire
population.
- The Council of State
Under article 83 (bis) of the Constitution, the Council of State shall
give its advice on bills and amendments that may be proposed, and on any
other questions referred to it by the Government or by the laws. The
Litigation Committee shall have ultimate authority in administrative
matters.
The Council of State comprises 21 members appointed by the Grand Duke.
At present, the Council of State includes only one woman member.
- The Economic and Social Council
This is an advisory body responsible for examining, either on its own
initiative or at the request of the Government, economic, financial and
social problems affecting a number of economic sectors or the economy as a
whole.
The Economic and Social Council is made up of 35 members and an equal
number of alternates who represent the various sectors of the economy,
possess a high degree of competence in their respective fields and are
completely independent vis-a`-vis professional organizations. There is
only one woman, who is an alternate.
(c) Investigation revealed that as of August 1994, women accounted
for the following percentages of the main political parties and trade
unions:
Political parties: 88/
ADR: 89/ 24.9 per cent
CSV: 90/ 33 per cent
LSAP: 91/ 30 per cent
DP: 92/ 25 per cent
DE'I GRE'NG: 93/ 40 per cent
Both CSV and DP are currently led by women.
Trade unions: 94/
OGBL: 95/ 25 per cent
LCGB: 96/ 24 per cent
FEP-FIT: 97/ 45 per cent
CGFP: 98/ 35 per cent
These figures show that there are not enough women in political and
public life.
The access of women to government employment is guaranteed both by
article 11 of the Constitution, which states in paragraph 2 that
"Luxembourgers shall be equal before the law; they alone shall be eligible
for civil (...) employment," and by the system used in recruiting civil
servants, which is by an anonymous competitive examination.
In terms of statistics, the breakdown of civil service employees
according to sex was as follows as of 22 September 1995. 99/ Officials:
women 22 per cent, men 49 per cent; white-collar workers: women
11 per cent, men 4 per cent; blue-collar workers: women 8 per cent, men
6 per cent.
Overall, women accounted for 41 per cent of all State employees.
Women accounted for 93 per cent of all part-time employees.
Article 8
States Parties shall take all appropriate measures to ensure to women,
on equal terms with men and without any discrimination, the opportunity to
represent their Governments at the international level and to participate
in the work of international organizations.
Women are also eligible, on a footing of complete equality with men,
for the various posts and functions within the Ministry of Foreign Affairs.
Women employees of the Ministry of Foreign Affairs who are pursuing
diplomatic careers have the same opportunity as their male colleagues to
represent Luxembourg at the international level and to participate in the
work of international organizations. The first woman to embark upon a
diplomatic career in Luxembourg did so in 1973, and the first woman
ambassador was appointed in November 1992.
At present, 10 per cent of Luxembourg's diplomats are women.
In view of the recent increase in the numbers of women taking the
exams for the diplomatic service, Luxembourg is confident that there will
be more women employed in that service in the near future.
Within the several committees and commissions of the European Union,
Luxembourg is represented by various technical Ministries, depending on the
subjects involved. Women who work in those Ministries may thus have
occasion to represent Luxembourg abroad without being in the diplomatic
service.
At present, over half of all magistrates in Luxembourg are women.
For the past three years, a large majority of newly appointed
magistrates have been women.
Article 9
1. States Parties shall grant women equal rights with men to
acquire, change or retain their nationality. They shall ensure in
particular that neither marriage to an alien nor change of nationality by
the husband during marriage shall automatically change the nationality of
the wife, render her stateless or force upon her the nationality of the
husband.
2. States Parties shall grant women equal rights with men with
respect to the nationality of their children.
The Constitution leaves it up to the legislature to determine under
what conditions Luxembourg nationality is acquired, retained and lost
(Constitution, article 9).
Nationality in Luxembourg is regulated by the Luxembourg Nationality
Act of 22 February 1968.
Before the Act of 26 June 1975, a woman forfeited her Luxembourg
nationality upon marriage when, under the laws of her husband's country,
she acquired his nationality.
Now, no one who marries a foreigner loses his or her Luxembourg
nationality, unless he or she expressly renounces it by making a formal
declaration to that effect before the Civil Registrar. Such a declaration
may be made only if the person making it can show that he or she possesses
foreign nationality or will acquire or recover it by making the declaration
(article 25, paragraph 2 of the above-mentioned Act of 22 February 1968, as
amended).
The Act of 26 June 1975 included an interim provision expressly
designed to cover cases where, under the old law, a woman had lost her
Luxembourg nationality as a result of acquiring a foreign nationality
through marriage, or because her husband had acquired a foreign
nationality. Where there was no indication on the woman's part that she
had wished to renounce her Luxembourg nationality, she could recover it by
making a formal declaration before the competent Civil Registrar (article
45 of the above-mentioned Act of 22 February 1968, as amended).
The most recent changes to the rules governing Luxembourg nationality
were introduced in an Act promulgated on 11 December 1986.
One of the primary purposes of that Act was to safeguard the principle
of the equality of men and women as it applies to two specific aspects of
nationality, namely the transmission of nationality to children, and the
acquisition of nationality by a foreigner who marries a citizen of
Luxembourg.
In the first place, the Act of 11 December 1986 put an end to a form
of discrimination against men married to citizens of Luxembourg. Before
the passage of the Act, a woman who married a citizen of Luxembourg could
obtain Luxembourg nationality without being required to reside in
Luxembourg. A man who married a citizen of Luxembourg, by contrast, could
acquire Luxembourg nationality only through naturalization - a costlier
procedure -
and after having lived in the country for five years.
Today, any foreigner, male or female, who marries a citizen of
Luxembourg may elect to acquire Luxembourg nationality provided he or she
has lived in the country for three years.
Article 47 of the Act of 22 February 1968, however, contained an
interim provision permitting women of other nationalities to exercise the
option to which they had been entitled under the old law as long as the
stipulated deadline for doing so had not passed.
The Act of 11 December 1986, moreover, gave women the same rights as
men with respect to the transmission of nationality to their children. Any
child born to, 100/ or adopted by 101/ a citizen of Luxembourg,
whether man or woman, automatically has Luxembourg nationality. No
distinction is made between men and women, whereas under the old law a
child's nationality was determined by that of his or her father.
Article 10
States Parties shall take all appropriate measures to eliminate
discrimination against women in order to ensure to them equal rights with
men in the field of education and in particular to ensure, on a basis of
equality of men and women:
(a) The same conditions for career and vocational guidance, for
access to studies and for the achievement of diplomas in educational
establishments of all categories in rural as well as in urban areas; this
equality shall be ensured in pre-school, general, technical, professional
and higher technical education, as well as in all types of vocational
training;
(b) Access to the same curricula, the same examinations, teaching
staff with qualifications of the same standard and school premises and
equipment of the same quality;
(c) The elimination of any stereotyped concept of the roles of men
and women at all levels and in all forms of education by encouraging
coeducation and other types of education which will help to achieve this
aim and, in particular, by the revision of textbooks and school programmes
and the adaptation of teaching methods;
(d) The same opportunities to benefit from scholarships and other
study grants;
(e) The same opportunities for access to programmes of continuing
education, including adult and functional literacy programmes, particularly
those aimed at reducing, at the earliest possible time, any gap in
education existing between men and women;
(f) The reduction of female student drop-out rates and the
organization of programmes for girls and women who have left school
prematurely;
(g) The same opportunities to participate actively in sports and
physical education;
(h) Access to specific educational information to help to ensure the
health and well-being of families, including information and advice on
family planning.
Article 23 of the Constitution states that:
"The State shall ensure that every Luxembourger receives primary
education, which shall be compulsory and provided free of charge.
Medical and social assistance shall be regulated by the law.
The State shall set up free secondary educational establishments
and the necessary courses of higher education.
The law shall determine the means of supporting State education
and the conditions under which it is to be supervised by the
Government and the communes; it shall also regulate all educational
matters and create a system of financial assistance for pupils and
students.
Every Luxembourger shall be free to pursue his studies in the
Grand Duchy or abroad and to attend the universities of his own
choosing, subject to the provisions of the law concerning conditions
of admission to employment and the exercise of certain professions."
The Education Act of 10 August 1912 made education compulsory in
Luxembourg. Every child who reaches the age of six years before 1
September must begin his or her schooling that same year and must receive
instruction for nine consecutive years, i.e. until the age of 15, in the
subjects designated by law.
In 1994, 52.5 per cent of all women in the 25-29 age group had
completed secondary school 102/ (i.e. continued their education beyond
the compulsory age) 103/ as compared with 57.1 per cent 104/ of men
in the same age group; in the 30-39 age group, the corresponding figures
were 46.3 per cent for women 105/ and 57.5 per cent for men; 106/ in
the 40-49 age group, 42.1 per cent for women 107/ and 52.2 per cent for
men; 108/ and in the 50-59 age group, 31.9 per cent for women 109/
and 50.4 per cent for men. 110/
Since 1968, co-education has been the norm at all levels.
1. Pre-school and primary education
When new school curricula were introduced efforts were made to
eliminate sexist stereotypes from school textbooks. The new curricula also
sought to promote egalitarian attitudes and behaviour, develop
communication skills and introduce new information technologies.
In addition, the "Orika" project 111/ for pupils in the sixth year
of primary studies is intended to inform pupils, their parents and teachers
about course options in technical secondary schools. Pupils take
introductory courses in the different technical high schools, which seek to
eliminate stereotypes about the various occupations and to diversify the
vocational choices of girls and boys.
During the initial and recurrent training of pre-school and primary
school teachers, emphasis is placed on the preeminent role of the teacher
in the transmission of sexist conduct and attitudes.
2. Traditional secondary and technical secondary education
The various branches of traditional secondary schooling and the
general and vocational branches of technical secondary education are
compulsory for both girls and boys. In both educational streams,
introductory courses to new technologies have been compulsory for all
pupils since the 1986/87 school year.
However, one result of the existing freedom of choice is that, despite
the considerable efforts being made at all levels, girls continue to attend
traditional training institutions.
Given that students in traditional secondary schools start to
specialize later and given the pre-specialization options that exist, it is
possible to steer young girls into those sectors in which female candidates
have traditionally been less represented.
In the technical secondary schools, technology courses taught from as
early as the lower secondary cycle serve to increase girls' awareness of
less traditional vocational training avenues.
The following initiatives have been taken to make girls, in
particular, more aware of the occupations of the future:
- internships in enterprises;
- "industry and craft weeks" organized by the Ministry of Education
and Vocational Training and by the business chambers;
- free workshops at which women and young girls are introduced to
the information sciences and to mechanical and electrical
engineering;
- information kiosks at international fairs held in Luxembourg;
- PETRA L7 Project: "Technik fir Medercher - Firwat net?"
("Technical vocations for girls - why not?") launched in 1990 by
the Technical Lyce'e of Arts and Trades. The project was aimed
at making girls, their parents and their school milieu more aware
of the occupations of the future, but also, more generally, at
adopting less traditional approaches to training which take
account of real talents and abilities. The Lyce'e carried out an
awareness promotion campaign and organized introductory courses
to technology;
- PETRA L31 project: "Training and insertion". This project to
promote the socio-occupational insertion of young girls into
technical fields, which was introduced by the Lyce'e Technique of
Arts and Trades, served as a complement to the project "Technik
fir Medercher";
- exchange programme with young girls from Germany, Ireland and
France (construction of a solar-powered vehicle);
- PETRA and IRIS (European network of training programmes for
women) project: "Women and technology" - awareness-building
seminar for women (workshops, discussions, consciousness-
raising).
3. Adult training
The aim of lifelong vocational training in Luxembourg, 112/ which
may be organized by the Ministry of Education, business chambers, communes,
or by private associations authorized to do so, is to:
- assist individuals who have a professional qualification to adapt
to technological change and to the needs of the economy;
- give individuals who so desire an opportunity to prepare for the
diplomas and certificates that are the subject of the legislation
governing technical education and to obtain professional
qualifications within a system of accelerated training;
- support and complement, at the initiative of the business
chambers concerned, practical training provided on the job.
Women have the right to benefit from opportunities for continuing
vocational training on an equal basis with men. Women re-entering the
labour market 113/ may take advantage of the opportunities that exist
for training, especially in the field of office automation.
By the Act of 19 July 1991, an adult training service was established
to coordinate the training available to adults in evening classes in
secondary, technical secondary and post-secondary schools and to provide
basic schooling for adults resident in Luxembourg, who indicate their
desire to receive such training.
The diplomas and certificates awarded upon the completion of adult
study programmes confer the same rights as the corresponding diplomas
awarded for daytime classes. Women who abandoned their studies before
obtaining their school leaving diplomas therefore have a chance to resume
their studies during more flexible hours.
4. Future projects and programmes
In its declaration of 22 July 1994, the Government stated that efforts
will be intensified in the field of education and training to encourage
young girls and women who are about to select a course of study and a
vocation to consider a range of more future-oriented occupations.
The following activities are aimed at ensuring equality of treatment
at all stages of an individual's professional life:
- encouraging girls to go into more technical and future-oriented
fields;
- monitoring the progress of girls who have chosen non-traditional
vocations;
- promoting a spirit of enterprise in both girls and boys;
- promoting models of good practice of equality of opportunity.
In this connection, mention should be made of the Leonardo da Vinci
community programme, a vocational training programme based on the
experience with earlier programmes PETRA (initial training), FORCE
(continuing education) and the IRIS network. The LEONARDO programme
includes an "equality of opportunity" component.
For the European year of lifelong education and training, the
Ministries of Education and Vocational Training and for the Advancement of
Women have proposed a campaign on the theme "a vocation for life?" A book
containing the testimonies of women who have changed vocations during the
course of their lives will be part of publicity campaign with posters,
brochures, etc.
In theory, women and men have the same opportunities for participating
in sports. However, women who engage in a professional activity have the
additional burden of family and domestic responsibilities which, even now,
are only rarely shared by men.
The survey to be conducted during 1996 will provide information on the
schedules and recreational activities of women not engaged in any
remunerated activity.
As regards access by women to sex education, mention should be made of
the Act of 15 November 1978 concerning sex education, prevention of
backstreet abortions and regulation of abortions, which introduced
information and sex education into all levels of the educational system.
In addition, as it is required to do under the Act of 15 November 1978, the
Ministry of Family Welfare prepares regular sex education information kits.
Article 11
1. States Parties shall take all appropriate measures to eliminate
discrimination against women in the field of employment in order to ensure,
on a basis of equality of men and women, the same rights, in particular:
(a) The right to work as an inalienable right of all human beings;
(b) The right to the same employment opportunities, including the
application of the same criteria for selection in matters of employment;
(c) The right to free choice of profession and employment, the right
to promotion, job security and all benefits and conditions of service and
the right to receive vocational training and retraining, including
apprenticeships, advanced vocational training and recurrent training;
(d) The right to equal remuneration, including benefits, and to equal
treatment in respect of work of equal value, as well as equality of
treatment in the evaluation of the quality of work;
(e) The right to social security, particularly in cases of
retirement, unemployment, sickness, invalidity and old age and other
incapacity to work, as well as the right to paid leave;
(f) The right to protection of health and to safety in working
conditions, including the safeguarding of the function of reproduction.
2. In order to prevent discrimination against women on the grounds
of marriage or maternity and to ensure their effective right to work,
States Parties shall take appropriate measures:
(a) To prohibit, subject to the imposition of sanctions, dismissal on
the grounds of pregnancy or of maternity leave and discrimination in
dismissals on the basis of marital status;
(b) To introduce maternity leave with pay or with comparable social
benefits without loss of former employment, seniority or social allowances;
(c) To encourage the provision of the necessary supporting social
services to enable parents to combine family obligations with work
responsibilities and participation in public life, in particular through
promoting the establishment and development of a network of child-care
facilities;
(d) To provide special protection to women during pregnancy in types
of work proved to be harmful to them.
3. Protective legislation relating to matters covered in this
article shall be reviewed periodically in the light of scientific and
technological knowledge and shall be revised, repealed or extended as
necessary.
1. (a) The right to work, an inalienable right of women
The Act of 21 May 1948 which amended the Constitution added to article
11 of the Constitution of 17 October 1868 a paragraph 4, which states that
"the law guarantees the right to work and assures to every citizen the
exercise of this right".
One of the instruments which the State of Luxembourg has put in place
to ensure the implementation of this provision is the Department of
Employment, whose task it is to promote optimal use of the labour force, in
a manner consistent with current economic and social policies. 114/ In
fulfilment of its mission, the Department of Employment monitors the
situation and developments in the job market, makes adjustments for supply
and demand and ensures compliance with legislation on the prevention and
reduction of unemployment and the provision of unemployment benefits,
without any distinction based on sex.
Unemployed women seeking work behave differently from their male
counterparts: fewer than half of all unemployed women are registered with
public employment agencies; only 25 per cent of unemployed men are not
registered. 115/ It also appears that women remain on the register of
employment seekers for longer periods than men. 116/
Women account for 37.14 per cent of the active population of
Luxembourg; 59.4 per cent of women of working age are engaged in
remunerated activity. The unemployment rate for men is 3.2 per cent and
for women 4 per cent. The unemployment rate among young people is 6.5 per
cent for men and 7.4 per cent for women. In recent years, 117/ however,
the number of women in employment has been increasing at a higher annual
average rate than the number of men with jobs (6.1 per cent and 1.6 per
cent, respectively, in 1994). 118/
The Government of Luxembourg, like the authorities of the European
Union, is aware of the fact that the situation of women in the job market
is particularly precarious. On 15 December 1995, a seminar on the theme of
"measures to promote employment among groups of particularly disadvantaged
persons in the job market" was organized by the European Commission, the
Ministry of Labour and Employment, the Department of Employment and CEPS
119/, as a follow-up to the Essen summit. These disadvantaged groups are
comprised of young people, the long-term unemployed, elderly workers and
unemployed women.
The distribution of workers by sex is not the same for all
socio-occupational groups. The vast majority of women are employed in the
service sector which includes banks and public administrations: 88.5 per
cent of employed women work in this sector as opposed to 59.2 per cent of
employed men. 120/
Very few women are employed in industry; only 8.2 per cent of women
are employed in industry, as compared with 37.9 per cent of men. 121/
Similarly, women are under-represented at decision-making levels.
Since the elimination in 1989 of the separate rosters for female and
male candidates 122/ for admission to the Higher Institute of
Pedagogical Studies and Research, more women have been entering this
field. 123/
On the subject of working patterns, there is a clear difference
between men and women: 19 per cent of women work part time, while the
proportion of men working part time is insignificant. 124/
By its Act of 26 February 1993 governing voluntary part-time
employment, the legislature of Luxembourg opted for a system of strict
equality of treatment between full-time and part-time salaried workers,
including provisions which guaranteed the same social protection to the two
categories of workers.
In order to provide enterprises with incentives to adopt innovative
measures to promote female employment, a special award was established in
1993 at the initiative of the Ministry of Labour and Employment to reward
those enterprises which have taken action to increase the participation of
women in the labour force, improve the quality of female employment,
develop their potential, including through the strengthening of programmes
to provide education and vocational training, and eliminate or counteract
the negative consequences in women's work.
In 1995, the female enterprise award was won by the enterprise which
had made particularly noteworthy efforts to reintegrate women re-entering
the labour market. In 1996 it will go to an enterprise which has been
particularly supportive of the initial vocational training of young girls.
Women who have interrupted their careers to devote themselves fully to
raising their children and who wish to return to work will be assisted by
various private organizations. 125/ The Ministry for the Advancement of
Women provides funding for a portion of the personnel and operating costs
and support is also provided by business chambers and the continuing
vocational training centres. 126/
Thus, for example, vocational training in office automation, which is
funded jointly by the European Social Fund and the Ministry of Labour, is
directed towards women who wish to re-enter the labour market after an
absence due to the birth and raising of children. These courses are well
attended and their success rate in terms of insertion in the job market is
more than satisfactory.
Another project, "Opportunity 2000", which was selected under the
employment and human resources development initiative of the European
Commission and promoted by the "Initiativ Rem Schaffen", 127/ seeks to
promote the socio-occupational reinsertion of women by increasing their
awareness of vocational opportunities, offering practical courses on how to
prepare re'sume's and how to behave at an interview, guidance for women
pursuing vocational training courses, and making enterprises more aware of
the potential which women represent because of their education, motivation
and experience.
1. (b) Access to employment and jobs
Article 3 (1) of the Act of 8 December 1981 concerning equality of
treatment between men and women in access to employment, training,
occupational advancement and working conditions states that equality of
treatment with respect to conditions of access, including selection
criteria, to jobs or positions in any sector or branch of activity and at
all levels of the occupational hierarchy, must be ensured through
regulatory, administrative and statutory provisions in collective labour
agreements, company rules and regulations and in the statutes of
independent professions, as well as in practice.
Article 3, paragraph 2 of the aforementioned Act of 8 December 1981
prohibits, inter alia:
- employers and all those who advertise or publish offers of
employment from making reference to the sex of the worker or from
using elements which, even without any explicit reference, might
indicate or imply the sex of the worker. In announcements or
publications in which offers of employment are advertised, the
generic description of the worker sought must be followed by the
letters (M) or (F);
- any reference to the sex of the worker, whether salaried or own-
account, in the conditions of access to and criteria for
selection for jobs or posts, whatever the sector or branch of
activity, or any use in these conditions or criteria of elements
which, even without explicit reference to the sex of the worker,
might lead to discrimination;
- the refusal or impeding of access to employment or to
occupational advancement for explicit motives based directly or
indirectly on the sex of the worker.
Any employer who, despite the written order of the Department of
Employment to observe the principle of equality of treatment, continues to
make announcements or offers which violate the principle of equality of
treatment referred to in article 3 of the Act, shall be liable to a fine of
2,501 Lux F to 20,000 Lux F. 128/ This penalty may be increased to up
to twice the maximum amount for repeat offenders. 129/
Article 3, paragraph 2, of the Act permits the Government to provide
by decree of the Grand Duchy of Luxembourg for those cases in which gender
may be mentioned in conditions of access to a job, including, where
relevant, to training leading thereto or to an occupation for which gender
constitutes a determining factor by reason of the nature of the occupation
or the conditions in which it is exercised. To date, however, the
Government has not used the powers granted to it under this Act.
1. (c)* Access to training, refresher training and professional advancement
The above-mentioned Act of 8 December 1981 also enshrines the
principle of equality of treatment between men and women with regard to
access to training, professional advancement, vocational guidance, advanced
training and occupational retraining. 130/
As we have mentioned under article 2, the Litigation Committee of the
Council of State, in its capacity as supreme administrative Court, annulled
a ministerial order denying admission of a female candidate to ISERP.
131/ This refusal, which was based on the fact that there were two
separate rosters, one for female and one for male candidates, was deemed to
be a violation of the general principle of equality of treatment between
men and women in access to training, a principle borrowed from Community
law and incorporated into the law of Luxembourg through the Act of 8
December 1981. The Litigation Committee of the Council of State thus gave
precedence to the Act of 8 December 1981 over the Act of 6 September 1983
concerning access to the Higher Institute of Pedagogical Studies and
Research. 132/
Following this decision, the Act of 6 September 1983 was amended and a
single roster based on identical criteria was introduced (Grand Duchy
regulation of 22 June 1989) with a view to ending this discrimination.
It may be observed that co-education of girls and boys at all levels
of schooling ensures equality of opportunity in access to all forms of
education and all types of training. 133/
*Conditions of employment and dismissal
Similarly, the Act of 8 December 1981 guarantees equality of treatment
with respect to conditions of employment, including grounds for dismissal.
It prohibits, inter alia:
- any reference to the gender of the worker in the conditions of
employment and in the conditions, criteria or grounds for
dismissal or use of any elements which, even without explicit
reference to the gender of the worker, might lead to
discrimination;
- The establishment or discriminatory application of conditions,
criteria or grounds for dismissal on the basis of gender. 134/
Similarly, as already noted under article 2, any dismissal, the
primary reason for which is based on the employer's reaction to a justified
complaint, to intervention by the General Inspectorate of Labour and Mines
or to legal proceedings designed to enforce the principle of equality of
treatment in the areas in question shall be considered improper.
1. (d) Remuneration
Equality of treatment in the area of remuneration is guaranteed by the
Grand Duchy regulation of 10 July 1974 concerning equality of remuneration
between men and women of which mention was made earlier under article 2.
In its first article, the regulation requires all employers to ensure that
men and women receive equal remuneration for the same work or for work of
equal value.
The term "remuneration" includes the ordinary, basic or minimum wage
or salary and any additional emoluments whatsoever payable directly,
whether in cash or in kind, by the employer to the worker and arising out
of the worker's employment. 135/
By way of penalty, provisions of contracts for the hire of services or
collective agreements that stipulate for one or more workers of a given sex
remuneration that is lower than that paid to workers of the other sex for
the same work [or for work] of equal value are void ab initio. The higher
remuneration paid to the latter workers shall automatically be substituted
for the one mentioned in that provision. 136/
In a judgement rendered on 21 April 1982, the Supreme Court of
Justice, ruling on appeal, declared void a provision on bank employees'
labour contracts which gave married male employees the unreserved right to
a domestic subsidy, while allowing the subsidy to married female employees
only under severely restricted conditions. The Court acknowledged the
remunerative nature of this domestic subsidy, since it had been provided
for in the employment contract, in return for work carried out by the
employee.
Since the Act of 20 May 1983 that replaced the previous "head of
family" allowance with a "family" allowance, legislation relating to the
remuneration of public servants no longer makes any distinction between men
and women. 137/
The Grand Duchy regulation of 10 July 1974 concerning equal
remuneration for men and women further stipulates that the different
elements of which remuneration is composed should be established in
accordance with norms that are identical for men and women: the criteria
for professional rating and promotion, as well as all other factors used in
calculating remuneration, particularly methods of post evaluation, should
be identical for workers of both sexes. 138/
In fact, however, the evaluation and rating criteria contained in
several labour contracts continue to favour male workers. Traditionally
masculine criteria such as effort or strength, are given more weight than
criteria which favour women, such as dexterity.
A study undertaken in March 1995 by CEPS/INSTEAD 139/ on income
and living conditions found that the significant differences between the
hourly rates of pay for men and those for women in the private sector have
been greatly reduced since 1984: whereas in 1984, women's average hourly
pay was 70.6 per cent that of men, by 1993, it had risen to 76.3 per
cent. 140/
This may be explained by a structural change in female employment,
women having become progressively better qualified.
The differences in income which continue to exist may be explained in
part by the fact that men's career paths are different from those of women.
Whereas men's careers are linear, women's are marked by gaps, as women
interrupt or curtail their careers for family reasons.
It should be noted that the guaranteed minimum income, which is a
social assistance measure, is paid equally to men and women.
1. (e)* Social security
Directive 79/7 EEC of 19 December 1978 concerning the progressive
implementation of the principle of equal treatment of men and women with
respect to social security became law in Luxembourg with the passage of the
Act of 15 December 1986. The purpose of the latter was to strike from the
social security legislation of Luxembourg all internal measures that were
contrary to the principle of equality of treatment laid down in the
directive.
The Act of 15 December 1986 affirms that the principle of equal
treatment of men and women applies to the social security regulations that
provide coverage in respect of sickness, invalidity, old age, accidents at
work, employment-related illness and unemployment, as well as to
arrangements relating to social assistance where those are designed to
complement or supplement the aforementioned regulations. 141/
Those who drafted the Act examined the basic legislation of the
various branches of social security and considered the various aspects,
namely, material scope, conditions for access, obligation to contribute,
calculation of benefits and conditions relating to duration of and
continued entitlement to benefits, in order to isolate both direct and
indirect discrimination.
Most of the changes thought necessary as a result of this examination
were effected by replacing the terms "wife" and "widow" in the text by
others of a non-gender-specific nature.
Moreover, the law abolished one indirect form of discrimination
against women: the exemption from compulsory health insurance for those
employed in domestic service and not normally working more than 16 hours
per week was abolished, and replaced with exemption from compulsory health
insurance for those only occasionally in paid employment. 142/
Directive 86/378/EEC of 24 July 1986 concerning the implementation of
the principle of equal treatment of men and women with respect to social
security occupational schemes has not yet been translated into national
law. The Government proposes to examine existing employers' organizations
schemes before implementing any law on supplementary pensions.
The issue of survivors' benefits, excluded from the aforementioned Act
of 15 December 1986, was dealt with in the Act of 27 July 1987 concerning
old age, disability and survivors' pensions. This Act extends the right to
a survivor's benefit to widowers, 143/ whereas only widows had
previously had that entitlement: it thereby abolishes a discrimination
which primarily affected widowers, but which also acquiesced in the general
principle of female inferiority.
The Act of 27 July 1987 also contains two significant changes, which
principally benefit women. Firstly, it introduces the concept of a "baby-
year": the first year following the birth of a child (or following the
adoption of a child under four years of age) and devoted to rearing it may,
if the person concerned so requests, count as a period of compulsory
insurance for purposes of old age benefits. That period was extended to
two years by the Act of 24 April 1991. 144/ Contributions are made by
the State. 145/
The "baby-year" begins the month subsequent to the birth or adoption,
or, where appropriate, the month subsequent to the expiry of maternity
benefit (see further on in the same article). The applicant, who may be
either the mother or father, must have been covered by compulsory insurance
in accordance with the Social Insurance Code, article 171, for 12 of the 36
months preceding the birth or adoption. The request for the year to be
taken into account must be submitted within 24 months of the birth or
adoption. 146/
The other major change is contained in article 172, paragraph 4, of
the Social Insurance Code, which provides that "periods during which a
parent was caring for one or more children under six years of age" shall
count as periods of insurance, but solely in order to complete the required
number of contributions in order to be able to draw an old-age pension
early, to get the minimum pension, and in order to get supplementary
allowances. Such periods must not be less than 8 years for the birth of
two children, or 10 years for the birth of three.
*Paid leave
Men and women workers in both the public and private sectors enjoy the
same rights to paid leave. Private sector employees have the right, in
addition to special leave, 147/ to an annual leave of at least 25
days, 148/ while in the public sector, staff have the right to 26 days
annual leave, 149/ in addition to comparable special leave.
1. (f) Protection of health and safety in working conditions
In this sphere, also, men and women are equally protected. In the
private sector the issue is dealt with by the Act of 17 June 1994
concerning the safety and health of employees in the workplace, which
includes general principles, with particular respect to the prevention of
occupational hazards, the protection of health and safety, the elimination
of risk and accident factors, information, consultation, and the
application of these principles. 150/ This Act applies equally to male
and female workers.
In the public sector, the issue is regulated both by the Act of
16 April 1979, establishing the regulations governing civil servants, as
amended, and by the Act of 19 March 1988, concerning safety in State
administrative offices and services, public premises and schools, as
amended. The Act of 16 April 1979, article 32, paragraph 2, states that
"The State shall protect the health of employees in the exercise
of their functions:
(a) By carrying out periodic checks, which take into account the
nature of the employment, of employees' continued physical and mental
well-being;
(b) By ensuring that health regulations are complied with."
The purpose of the aforementioned Act of 19 March 1988 is to ensure
the physical integrity of all those who participate in the professional and
scholastic activities specified in the Act.
Neither the legislation covering the private sector nor that
applicable to the public sector makes any special reference to reproductive
functions. (See further down in the same article for protection of the
pregnant woman.)
*Sexual harassment
Sexual harassment relates both to the right to equal health protection
and to the right to equal treatment with regard to working conditions.
Sexual harassment, most commonly perpetrated against women, frequently has
negative effects on the victim's mental health placing her in a hostile
work environment for reasons linked with her gender. The Ministry for the
Advancement of Women has been given the responsibility of producing a draft
law, with a view to guaranteeing the protection of the dignity of men and
women in the workplace. Preparatory work was begun recently.
2. (a) Ban on dismissing employees on the grounds of pregnancy or marital
status
Article 10, paragraph 1 of the Act of 3 July 1975 concerning:
(1) protection of pregnant women in the workplace; and (2) the amendment of
article 13 of the Social Insurance Code, as amended by the Act of 2 May
1974, prohibits an employer from dismissing a female employee who has been
medically certified pregnant, or who has given birth within the previous 12
weeks.
Should she be dismissed before her pregnancy has been medically
certified, the employee may, within one week of being informed of her
dismissal, produce a medical certificate showing that she is pregnant. The
dismissal will then be void, and the court, at the request of the employee,
may order that she be reinstated. 151/
Pregnancy does not, however, prevent dismissal on serious grounds
arising from some action or misdeed on the part of the employee. 152/
In this respect, judges have shown some leniency towards pregnant
women. In a 19 December 1990 judgement, the Supreme Court of Justice,
ruling on an application for judicial review, refused to characterize
either the rudeness, authoritarianism and aggressiveness of an employee, or
her unjustified two-week absence, as a gross fault, on the basis that her
behaviour was due to her pregnancy, which was well-known to her employer.
In the case of a probationary contract, pregnant women enjoy greater
job security than other employees, even during the period of probation:
153/ even if the employee's abilities or behaviour do not measure up to
the firm's requirements, the employer may not terminate the probationary
contract using the shorter notice in effect during the period of probation.
"The legislator considers that the social and legal protection of pregnant
women takes precedence over the contractual freedom of the employer, since
the latter might be interpreted as giving the employer leave - during the
period of probation - to disengage from the working relationship on the
grounds of the employee's pregnancy". 154/
Any clause which states that a woman's contract shall be terminated if
she marries is void ab initio, as is any dismissal on those grounds.
155/ Any female employee who has been dismissed because she got married
may dispute the validity of the dismissal and demand the continuation of
the working relationship within two months; if she does this, the
employment contract shall remain in force and the employee shall continue
to have the right to receive her full salary. 156/
2. (b) Maternity leave
The Act of 3 July 1975 referred to above exempts pregnant women from
working during the eight weeks prior to the estimated due date upon
presentation of a medical certificate, and during the eight weeks
subsequent to delivery (12 weeks after delivery for mothers breastfeeding
their children, or in cases of premature or multiple births). 157/
While the employee is on maternity leave, the employer is obliged to
keep her position or an equivalent one open for her. 158/
Furthermore, during maternity leave women receive maternity pay
equivalent to their full salary. 159/
2. (c) Reconciling family obligations with work responsibilities
*Care of children and adolescents
Since 1979, the Ministry of Family Affairs has been endeavouring to
develop an infrastructure for the care of children and adolescents
(traditional day-care centres, drop-in day-care centres, day nurseries, and
so on). Due to the great increase in the number of government-supported
projects, the budget set aside for this purpose has soared from under 100
million francs in 1985 to 398,200,000 francs in 1995, and will be set at
420 million in 1996. Since it is as yet insufficient to meet demand, this
effort will have to be sustained over the next few years in order to allow
parents the opportunity to engage in professional activity. The State not
only contributes to the running expenses of government-supported day-care
centres and nurseries but also helps cover the running expenses of private
centres and provides grants to parent groups and associations that organize
child-care, assistance with homework and after-school programmes. It
also gives subsidies to private day-care centres to cover infrastructural
costs. The Ministry of Family Affairs is preparing a bill to regulate
childcare which will include proposals for supporting private undertakings.
The Ministry of Family Affairs finances and coordinates family
placement services which place children in a family either during the
daytime only, or overnight as well. This service is of particular benefit
to single parents (often women) who have irregular working hours. The
Ministry has also made arrangements with a management body for the
provision of a service to provide care in the home for children who are
ill. The "Krank Kanner dohe'm" 160/ service is in great demand, and
there are plans to consolidate the structure in the future.
*"Parental" leave
In the public sector, unpaid leave and part-time work are other ways
of permitting parents to combine their family and professional
responsibilities. Following a period of maternity leave, the employee,
male or female, has the right to request up to two years of unpaid leave,
or to ask to work part-time until the child enters primary school. 161/
The two years of unpaid leave and the first two years of part-time work
following maternity leave count respectively as periods of full service.
In addition, permission to work part time may be granted in order to allow
an employee to care for a child under 15 years old. 162/ In this case,
in respect of any period of part-time work over and above the two years
following maternity leave, time not worked is not taken into account for
purposes of calculating the pension. It is, however, taken into
consideration for purposes of determining entitlement to a pension.
In the private sector, there is, as yet, no parental leave with
guarantee of re-employment. Any woman who, at the end of her maternity
leave, wishes to stay at home with her child, may choose not to return to
work without giving notice. 163/ This option is not open to fathers:
they must give notice as required by law.
A woman who has taken this option is guaranteed by law the right to
request re-instatement during the year following the end of maternity
leave. If she makes such a request, the employer is obligated to give her
priority when filling positions for which she is qualified. 164/
Fathers do not have this right.
Some collective agreements provide for unpaid leave once maternity
leave has terminated, with guarantee of re-instatement after one year.
Others provide for periods of unpaid leave ranging from three months to
three years for family reasons, and give priority for re-instatement. A
bill tabled in 1983, proposing to introduce a system of parental leave for
all employees, has not yet been adopted by the Chamber of Deputies. It is
likely that the parental leave which will be introduced in the private
sector will take the form to which the European social partners agreed last
December in the outline agreement on parental leave. This recognizes that
both mother and father have an individual, non-transferable right to three
months of parental leave in order to care for a child within a determined
age range. The legislators introduced an education allowance in 1988 in
order to give the parent(s) an opportunity to devote themselves partially
or completely to raising one or more young children and to subsidize low-
income parents, enabling the child or children to be raised in reasonable
circumstances.
*Breastfeeding
If they so request, working women must be granted two breastfeeding
periods of 45 minutes each, at the beginning and end of their normal
working hours. If there is only one hour's break in the working day, or if
it is impossible for the woman to feed her child near her workplace, the
two breastfeeding periods may be combined and taken together. 165/
2. (d) Special protection for pregnant women in the workplace
It should be noted that throughout pregnancy and for three months
subsequent to delivery - seven if the woman is breastfeeding - the employer
may not assign a woman to physically demanding work or to work which would
expose her to the harmful effects of noxious substances or radiation, dust,
gas, emissions, heat, cold, humidity, impact or vibration. 166/ Coupled
with this prohibition, the employer is obliged to assign the woman
concerned to other work, at her previous salary. 167/ In cases where a
change of assignment is not possible, the law provides that the woman's
level of remuneration must be maintained, even if her productivity is
reduced. The Ministry of Labour is drafting a bill which would seek to
transpose directive 92/85/EEC concerning the implementation of measures to
improve the security and health of pregnant, recently-delivered and
breastfeeding women in the workplace. This directive will entail certain
specific changes to the aforementioned Act of 3 July 1975, particularly
with regard to exemption from work when a change of position is not
possible.
The act also prohibits pregnant women from working at night, 168/
and from working over-time. 169/
3. Revision of protective measures
Luxembourg is revising its legislation on the protection of women. It
therefore felt it necessary, with effect from 19 February 1983, to denounce
Convention No. 4, concerning Employment of Women during the Night and
Convention No. 89, concerning Night Work for Women Employed in Industry.
Article 12
1. States Parties shall take all appropriate measures to eliminate
discrimination against women in the field of health care in order to
ensure, on a basis of equality of men and women, access to health-care
services, including those related to family planning.
2. Notwithstanding the provisions of paragraph 1 of this article, States
Parties shall ensure to women appropriate services in connection with
pregnancy, confinement and the post-natal period, granting free services
where necessary, as well as adequate nutrition during pregnancy and
lactation.
1. *General remarks
Health policy is deliberately organized in such a way as to allow the
population general access to health care, with no distinction between men
and women. This objective is realized on the one hand by almost total
coverage of the population by the health insurance system in its various
forms (mandatory, continuing or optional), and the granting of subsidiary
rights to family members (spouse, children, parents), and on the other
hand, through free preventive care. During the period 1990-1992 life
expectancy at birth was 79.1 years for women, and 72.6 years for men.
170/
Infant mortality during the period 1981-1985 was as follows: 29 of
10,949 live-born boys died within a year of birth, while 20 of 10,246 live-
born girls died within their first year. For the period 1986-1990, the
figures were 22 deaths per 11,648 births for boys and 17 per 11,103 births
for girls. 171/
*Cancer
In Luxembourg, breast cancer is the leading cause of death among women
between the ages of 35 and 60. 172/ The mortality rate from breast
cancer is increasing particularly in the age groups 45 to 54, 55 to 64 and
65 and over. 173/ 174/
In 10 years, that is to say between 1978 and 1988, mortality due to
breast cancer, taking all ages together, has increased by 34.6 per cent;
175/ the mortality rates in Luxembourg remain steadily above the regional
average for Europe. 176/
For these reasons, in 1992 the Ministry of Health, the Union of Health
Insurance Companies and the Luxembourg League (now Foundation) against
Cancer jointly introduced a programme to systematically screen women for
breast cancer using mammography. All women between the ages of 50 and 65
years who reside in Luxembourg and are affiliated to a Luxembourg health
insurance scheme were invited to have a mammogram. The x-rays are examined
by two radiologists working independently from each other. If they come up
with conflicting diagnoses, they consult one another. Finally, the x-rays
are sent to the woman's personal doctor who informs her of the results and
examines her. Thus far, only 35 per cent of the women who were invited to
participate in the screening programme are doing so. 177/ A further
consciousness-raising campaign has just been launched 178/ and the goal
is to achieve a participation rate of at least 60 per cent. Measures are
also being organized to screen for cancer of the cervix.
*AIDS/HIV infection
HIV infection and AIDS are less common among women than men. Of the
total number of AIDS cases registered between 1984 and 7 December 1995,
only 12.5 per cent relate to women. In the group of people diagnosed with
HIV infection, 20.43 per cent are women. 179/ Screening for AIDS and
HIV infection is done on a voluntary basis and the tests are free of
charge. The results are strictly confidential. There are no large-scale
prevention activities targeting just women. However, women are targeted,
just as men are, by general information activities. There are special
prevention activities for prostitutes since they are a high-risk group;
they are informed about the risks and provided with condoms.
"AIDS Berodung", the AIDS consultation service of the Red Cross which
was set up in 1988 and is regulated by the Ministry of Health, carries out
information activities and provides psycho-social services for people, both
men and women, with AIDS or infected with the HIV virus.
At the international HIV and AIDS film festival which AIDS Berodung,
with the support of the Ministry of Health, organized in Esch-sur-Alzette
from 6 to 8 October 1995, short and full-length films were shown which were
of particular interest to women. 180/
*The Elderly
The measures taken by the authorities to provide for elderly persons
who are infirm, do not include specific measures for women. However, given
the breakdown of the population in the 70 and over age group, it is clear
that more women than men benefit from these measures.
The Government measures include measures to increase both home care
and residential care.
In recent years the number of beds where medical attention is provided
increased by over 50 per cent. At the same time, retirement homes have
been turned into integrated centres providing both day care and around-the-
clock care for the elderly, and they have also been equipped to provide for
the infirm.
The price of bed and board in State establishments is determined in
accordance with an individual's financial position, any deficit being paid
for by the State; the latter also picks up the tab of hospital stays once
health insurance benefits cease.
*Abortion
Whereas, under the earlier provisions of the Penal Code, which dates
from 16 June 1879, abortion was punishable in all cases, the new provisions
introduced in 1978 legalized abortion to some extent and under certain
conditions.
The Act of 15 November 1978 concerning sex education, prevention of
back-street abortion and regulation of abortion states in article 1 that
"the law shall guarantee respect for all human beings from the moment that
life begins" and that "this principle shall not be violated save in case of
necessity and according to the conditions defined by the present Act" and
it abolishes the penalty of imprisonment provided for in the old article
351 of the Penal Code. While abortion is still banned, in principle, it is
punishable only by a fine. 181/
This ban is softened by the statement in the second paragraph of that
same article which states that "where [the woman] is acting under the
influence of a situation of special distress, there shall be no violation".
It is clear from the parliamentary documents that the Government of the
time included that phrase in order "to give the judiciary the possibility
of allowing the woman to go unpunished in cases where it recognized the
precarious nature of the woman's situation". 182/
The provision which has given rise to the most dispute is contained in
article 353 of the Penal Code which states:
"1. However, abortion performed within the first 12 weeks of
pregnancy shall not be punishable:
(a) When continuation of the pregnancy, or the living conditions
which might result from the birth, could endanger the physical or
mental health of the woman;
(b) When there is a serious risk that the child may have a
serious disease, or extensive physical deformities or mental
impairment;
(c) When the pregnancy may be considered to have been the
consequence of an act of rape."
These provisions therefore cover therapeutic or eugenic abortions and
abortion in cases where the pregnancy is the result of a criminal action.
According to the explanatory introduction to the bill "the therapeutic
indication is based on the notion of health, defined not as the absence of
disease but as overall well-being, physical, mental and social". 183/
The abortion can only be performed provided that the woman:
(1) Has seen a gynaecologist or obstetrician and been informed of the
medical risks of the procedure (article 353 (1)d 1 of the Penal Code);
(2) Has given her consent, in writing, such consent not being
required if the woman's life is in danger (article 353 (1)d 2 of the Penal
Code);
(3) Has had time to reflect (one week from the time she sees the
gynaecologist or obstetrician) (see article 353 (2)b of the Penal Code),
unless there is imminent danger to her life.
The following conditions also apply:
(1) The woman must have been legally domiciled in the Grand Duchy of
Luxembourg for a period of three months (article 353 (2)a);
(2) The procedure can be performed only by a doctor who is licensed
to practice the art of healing in the Grand Duchy of Luxembourg, and only
after he or another qualified doctor has certified, in writing, the
existence of one of the grounds justifying termination of the pregnancy;
(3) The procedure can only be performed in a hospital [or any other
establishment certified for that purpose by the Minister of Health - in
fact no other establishment has been certified].
Abortions can be performed later than the first trimester "if two
qualified doctors certify in writing that there is a very serious threat to
the woman's health or life or to that of the unborn child" (article 353 (3)
of the Penal Code).
We do not have any figures regarding the number of abortions performed
in Luxembourg. For one thing, the law does not require that the two
necessary documents (consent of the pregnant woman and written
certification by a qualified doctor of the existence of one of the grounds
justifying abortion) be transmitted to the authorities. For another, even
though abortion expenses are reimbursed by the health insurance
companies 184/ the description of the surgical procedure in question
(evacuation of a gravid uterus by curettage or aspiration prior to 14
weeks; evacuation of a gravid uterus by hysterotomy or the administration
of drugs after 14 weeks of pregnancy) makes it impossible to distinguish
between procedures performed in cases of spontaneous abortion and those
performed when the abortion is induced.
It seems that many women living in Luxembourg who wish to terminate
their pregnancy go abroad to do so as in the past. One possible
explanation for this is that they want to escape social disapproval, since
Luxembourg society is relatively conservative.
The family planning centres which are regulated by the State operate
in the various regions of the country. They offer assistance and
counselling to persons on the various contraceptive methods, on the rights,
help and advantages which are guaranteed by law to families and to single
mothers, on adoption and on the possibilities of a legal abortion.
They are permitted to provide all medical treatment in connection with
sex education to the extent that such treatment can be provided in a non-
hospital environment. The information activities and consultations are
free and medication can be given free of charge to certain persons,
including young people.
Other private organizations also provide counselling in respect of sex
education.
Contraceptives, except for condoms, are covered by the same
legislation as pharmaceutical products: a doctor's prescription is needed
in order to get them and no advertising is permitted. However, they are
not reimbursed under health insurance schemes.
2. Special protection for women during pregnancy
The Act of 20 June 1977 instituted regular check-ups during pregnancy
and in the postpartum period; its aim was: (1) to institute regular check-
ups for pregnant women who were very young; (2) to change the existing
legislation concerning birth benefits. Having regular check-ups is a
requirement in order to receive payment of both the first and second
instalment of the birth benefit (that is to say the prenatal benefit and
the birth benefit itself). 185/ 186/ The attending physician may
request the intervention of a medical-social worker or social worker if the
expectant mother needs special care due to her state of health or her
situation. In 1975, specific legislation was introduced providing for the
protection of pregnant women in the work place. 187/
Persons with insurance are entitled to be cared for by a midwife
during delivery, to medical assistance, to stay in a maternity home or
clinic, and to pharmaceutical supplies and infant formula. 188/
Health education programmes are organized for expectant mothers and
young mothers. Breastfeeding is strongly encouraged.
The maternal mortality rate is low in absolute figures; however, owing
to the small number of births, one maternal death can greatly affect the
statistics: during the past 10 years there have been two maternal deaths -
one in 1987 out of 4,238 births and one in 1990 out of 4,936 births.
189/ The other years there were no maternal deaths although there were
4,603 births in 1988 and 4,665 in 1989. The proportion of births to
mothers under 20 years of age has dropped from 7.8 (1968-1971) to 2.8
(1989-1991) per 100 births.
Article 13
States Parties shall take all appropriate measures to eliminate
discrimination against women in other areas of economic and social life in
order to ensure, on a basis of equality of men and women, the same rights,
in particular:
(a) The right to family benefits;
(b) The right to bank loans, mortgages and other forms of financial
credit;
(c) The right to participate in recreational activities, sports and
all aspects of cultural life.
(a) Family benefits
The maternity benefit
The maternity benefit 190/ is given, in principle, to all women
who are pregnant or who give birth, but since it cannot be drawn
concurrently with any other benefit and given its subsidiary nature, in
practice it is now paid only to homemakers or women who are not affiliated
to a social security scheme by virtue of having a professional activity.
The birth benefit 191/ is given to any woman, without distinction
as to age or nationality, provided that, she goes for the scheduled check-
ups throughout her pregnancy. 192/
The family benefits 193/ are paid to parents in order to
compensate them for the expenses resulting from the child or children. It
is a personal entitlement of the child. Where the parents live together
the benefit can be paid to either parent; it is up to them to decide
jointly which one will receive the family benefits. In practice, in the
absence of any instructions to the contrary, benefits are paid to the
father. In the event of separation or divorce, the benefit will, in
principle, go to whoever has physical custody of the child.
The same is true of the start-of-the-school-year benefit and the
education benefit. The former is given to parents of children aged six or
over and is intended to make up for the expenses they incur at the start of
the school year.
The education benefit is given to anyone who is bringing up one or
more children in their home and devotes themselves primarily to educating
the child or children at home and does not engage in any professional
activity or receive any replacement income. It is also given to the parent
whose income - even though they are engaged in a professional activity or
receive replacement income - when taken together with that of their spouse,
that does not exceed a certain amount.
(b) The right to bank loans, mortgages and other forms of financial credit
In principle, there is complete equality between men and women as far
as the granting of financial credit is concerned. 194/ The conditions
must be the same for men and for women. In practice, however, one often
finds that women who wish to take out a loan are required to provide
additional guarantees. Banks often require that the husband co-sign the
loan.
(c) Right to participate in recreational activities, sports and all
aspects of cultural life
This right applies equally to both men and women.
The training centre for women, families and single parent families has
established a vocation-leisure group. The members are mostly women, who
feel cut off from other parents and who meet for joint outings to
restaurants, the cinema, museums or for group travel.
Article 14
1. States Parties shall take into account the particular problems
faced by rural women and the significant roles which rural women play in
the economic survival of their families, including their work in the non-
monetized sectors of the economy, and shall take all appropriate measures
to ensure the application of the provisions of the present Convention to
women in rural areas.
2. States Parties shall take all appropriate measures to eliminate
discrimination against women in rural areas in order to ensure, on a basis
of equality of men and women, that they participate in and benefit from
rural development and, in particular, shall ensure to such women the right:
(a) To participate in the elaboration and implementation of
development planning at all levels;
(b) To have access to adequate health-care facilities, including
information, counselling and services in family planning;
(c) To benefit directly from social security programmes;
(d) To obtain all types of training and education, formal and non-
formal, including that relating to functional literacy, as well as,
inter alia, the benefit of all community and extension services, in order
to increase their technical proficiency;
(e) To organize self-help groups and cooperatives in order to obtain
equal access to economic opportunities through employment or self-
employment;
(f) To participate in all community activities;
(g) To have access to agricultural credit and loans, marketing
facilities, appropriate technology and equal treatment in land and agrarian
reform as well as in land resettlement schemes;
(h) To enjoy adequate living conditions, particularly in relation to
housing, sanitation, electricity and water supply, transport and
communications.
Women who work in agriculture are either boss or assistant. There are
very few women wage earners in agriculture.
The boss is the person by whom and at whose risk the farm is operated.
The assistant is a relative or person related by marriage who helps the
boss operate his business but is not paid, even though he or she does not
engage in any other remunerated professional activity.
In agriculture there are relatively few women bosses. These are
generally widows, who continue to operate the family business after their
husband dies. Women can, however, acceded to that position on the same
footing as men.
The distinction between assistant and boss is useful primarily for
purposes of the assignment of public aid relating to farmers.
As regards social security benefits, in the past, women married to
agricultural workers were seldom affiliated to the agricultural pension
fund.
The Act of 14 February 1974 changed the situation: such women are
considered to be automatically affiliated to the agricultural pension fund
as long as their husbands practise farming as their main occupation and,
that being so, they are insured with the Agricultural Health Insurance
Fund.
On the level of principles, this Act officially recognizes that
farmers' wives are engaged in an occupation. Furthermore, it has a
concrete financial impact on these women because it provides for them to be
awarded a pension in their own right.
Since the 1987 reform of the pension contribution scheme and the
health insurance reform of 1992, persons who are self-employed in an
occupation that comes under the jurisdiction of the Chamber of Agriculture,
as well as their spouses, blood relatives and relatives by marriage, both
direct and collateral to the third degree inclusive, have automatic health,
old age and accident coverage. However, the spouse, blood relative and
relative by marriage must be at least 18 years of age and provide essential
services to the primary insured, such that those services can be considered
their main activity. 195/
This insurance entitles the primary insured and the assistant to
disability benefits if they are unable to work, and entitles women farmers
to payment of the maternity allowance. 196/ Before the reform of 1992,
non-salaried women were not entitled to replacement income while on
maternity leave, although they did receive the maternity allowance. 197/
Since 1 January 1994 women farmers are entitled to payment of the
maternity allowance during the legal maternity leave or parental leave in
the case of adoption, provided that they have contributed to the compulsory
insurance scheme for at least six months of the year preceding the
leave. 198/ This maternity allowance is determined in the same way as
the disability benefits. The amount of the maternity allowance is based on
the contributions, which are based on the occupational income of the
insured individual. 199/ Occupational income is established
inclusively, based on the production (crops and animals) of the farming
operation during the previous year. 200/
Before the Act of 15 December 1986, which was based on EEC Directive
79/7, wives who were self-employed in an agricultural activity but whose
husbands were engaged in a non-agricultural activity were excluded from
joining the agricultural social security system.
This exclusion had two consequences. Firstly, these women were not
entitled to a pension in their own right. Secondly, they were denied the
status of farmer practising farming as a main occupation, which opens the
door to various types of assistance from the Ministry of Agriculture.
The Act of 15 December 1986 allowed them to join, under certain
conditions relating to the required minimum area for a farm (set at 15
hectares by the Grand Duchy regulation of 29 January 1989).
However, although women agricultural workers are equal to men under
law, in practice, some differences remain.
This can be noted in particular in the area of professional
qualifications. Fewer than 10 per cent of these women are currently
enrolled in agricultural education programmes. Thus it is not surprising
that there are virtually no women in decision-making centres in
agriculture.
This is true in the Chamber of Agriculture as well as the agricultural
unions and the management of agricultural associations and cooperatives.
It is true that the two largest agricultural unions each have a sub-group
for women, and that these groups are represented by a delegate on the
union's executive board, but that does not negate the fact the women
farmers do not have nearly as much decision-making power as men in actions
involving farming as a profession.
Concerning access by rural women to education and health care, see
articles 10 and 12 respectively.
Article 15
1. States Parties shall accord to women equality with men before the
law.
2. States Parties shall accord to women, in civil matters, a legal
capacity identical to that of men and the same opportunities to exercise
that capacity. In particular, they shall give women equal rights to
conclude contracts and to administer property and shall treat them equally
in all stages of procedure in courts and tribunals.
3. States Parties agree that all contracts and all other private
instruments of any kind with a legal effect which is directed at
restricting the legal capacity of women shall be deemed null and void.
4. States Parties shall accord to men and women the same rights with
regard to the law relating to the movement of persons and the freedom to
choose their residence and domicile.
*The second paragraph of article 11 of the Luxembourg Constitution
states, without making any distinction, that Luxembourgers are equal before
the law.
Article 8 of the Civil Code stipulates that "every Luxembourger shall
enjoy civil rights".
Single women have always had the same rights as men and, since the Act
of 12 December 1972 on the rights and duties of spouses, marriage no longer
changes the legal capacity of married women. Article 216 of the Civil Code
expressly recognizes: "Marriage has no effect on the legal capacity of the
spouses, except in application of article 476 (emancipation by marriage);
nevertheless their powers can be restricted by the marital property regime
and by law." Furthermore, article 1123 of the Civil Code states that "any
individual can enter into a contract, if not declared incompetent to do so
under the law". 201/
The husband is no longer the master of the community property nor the
head of the family. Each spouse has the right and ability to enter into
exactly the same legal agreements as his or her partner. 202/
- Men and women receive equal treatment in judicial proceedings.
203/
- Any contract that seeks to restrict the legal capacity of the
wife would run counter to the public order and thus would be null
and void. 204/ However, there is no express provision of the
law to that effect.
- The Constitution guarantees individual freedom; 205/ that
encompasses freedom of movement and applies equally to men and
women.
Men and women have the same right to choose their residence; since the
passage of the Act of 12 December 1972, the joint residence of the spouses
is determined by mutual agreement, or failing that, by a judge. 206/
The family home is especially protected and one spouse may not dispose of
or mortgage the property or any other real right thereto without the
consent of the partner, even if the property belongs to that spouse. Any
such action can be revoked. 207/
Article 16
1. States Parties shall take all appropriate measures to eliminate
discrimination against women in all matters relating to marriage and family
relations and in particular shall ensure, on a basis of equality of men and
women:
(a) The same right to enter into marriage;
(b) The same right freely to choose a spouse and to enter into
marriage only with their free and full consent;
(c) The same rights and responsibilities during marriage and at its
dissolution;
(d) The same rights and responsibilities as parents, irrespective of
their marital status, in matters relating to their children; in all cases
the interests of the children shall be paramount;
(e) The same rights to decide freely and responsibly on the number
and spacing of their children and to have access to the information,
education and means to enable them to exercise these rights;
(f) The same rights and responsibilities with regard to guardianship,
wardship, trusteeship and adoption of children, or similar institutions
where these concepts exist in national legislation; in all cases the
interests of the children shall be paramount;
(g) The same personal rights as husband and wife, including the right
to choose a family name, a profession and an occupation;
(h) The same rights for both spouses in respect of the ownership,
acquisition, management, administration, enjoyment and disposition of
property, whether free of charge or for a valuable consideration.
2. The betrothal and the marriage of a child shall have no legal
effect, and all necessary action, including legislation, shall be taken to
specify a minimum age for marriage and to make the registration of
marriages in an official registry compulsory.
1. (a) In principle, women and men have the same right to enter into
marriage.
Nevertheless, a woman cannot enter into a new marriage until 300 days
have elapsed since her husband's death. This waiting period is cut short
if she gives birth after her husband's death. The widow can request that
the waiting period be shortened simply by writing to the President of the
Circuit Court; the latter will accede to the request if it is obvious, from
the circumstances, that her previous husband had not lived with her in the
past 300 days. 208/
Likewise, a divorced women may remarry as soon as the divorce decree
becomes final, as long as 300 days have elapsed since the presidential
order granting permission to sue for divorce. 209/ This waiting period
is cut short if she gives birth after the order was issued.
A woman's freedom to enter into a new marriage is thus more restricted
than that of a man, but this restriction is intended to protect the
interests of the children conceived during the marriage. 210/
Another difference is found in the minimum age for marriage, which is
lower for women than for men: article 144 of the Luxembourg Civil Code
states that a man cannot marry before the age of 18 while a woman cannot
marry before the age of 16.
(b) The same right freely to choose a spouse and to enter into
marriage only with free and full consent is guaranteed equally to women and
men.
No marriage can take place without the consent of both parties.
211/ In a case where one of the spouses is a minor, the consent of his or
her mother and father is also required. 212/
(c) Men and women have the same rights and responsibilities during
marriage: they must be faithful to, and help and assist one another. As
noted above, 213/ the Act of 12 December 1972 abolished the reference to
a wife's duty to obey her husband. The two spouses are thus true partners,
the law reserving basic decisions to the spouses' common agreement, or to
the earliest petitioner.
The spouses contribute to the marital expenses in proportion to their
respective abilities. They make their contribution through their
professional or domestic work, by what they bring to the marriage and by
levies from their personal property. If one spouse's contribution is
looking after the home, the other is obligated to provide all the
necessities of life, according to his means and status. 214/
The divorce legislation was reformed in 1978 and a provision was
introduced into article 300 of the Civil Code whereby one spouse may be
required to pay alimony to the other, even when both parties were at
fault. 215/ Before the Act of 15 March 1993, in such cases the court
had to take into account the seriousness of the fault of the spouse
requesting alimony. The Act eliminated the reference to the fault of the
spouse requesting alimony, but it does prohibit the partner by whose sole
fault the divorce is granted from receiving alimony.
When one party is solely to blame for the divorce damages can be
awarded to compensate for the material or moral injury the other partner
will sustain due to the dissolution of the marriage. 216/ This is
intended to protect a wife who is financially dependent on her husband
because she was engaged in unpaid activity in the family home.
Also with a view to protecting the wife, the Ministry of Social
Security has drafted a bill providing for the sharing of contributory
pensions in case of divorce, as well as certain measures intended to
complement the pension coverage of a spouse who abandoned or cut back on
her career during the marriage. 217/ Its purpose is to improve the
pension coverage of a divorced spouse by granting her a part of the former
spouse's pension proportional to the length of the marriage, and also to
make it possible for a spouse - divorced or not - who interrupted her
career to build up her own pension.
With regard to adultery as a grounds for divorce, see the discussion
under article 2.
(d) By the fact of their marriage, the partners mutually undertake to
care for, support and raise their children. 218/ The child has the
right to press its claim for support at any time against either father or
mother. Natural children have the same rights as legitimate children, as
long as their blood relationship has been legally established. Likewise,
the child has an obligation to support its father and mother as needed.
219/
Since 1975, the father's authority as head of the family has been
replaced by the parental authority of father and mother exercised
jointly. 220/ Where there is a disagreement between father and mother,
the guardianship magistrate decides. 221/
In the case of divorce, the tribunal ruling on the divorce will award
custody of the children to either of the spouses or to a third party,
depending on what is in the children's best interests. Visitation rights
may be denied to the non-custodial parent only on serious grounds. In a
case of divorce or legal separation, legal authority belongs to the spouse
who was awarded custody of the child. No matter who has custody, the
father and mother retain the right to supervise the care and education of
the children, and are required to contribute thereto commensurate with
their means. If affiliation has been legally established in respect of
only one of the parents, the latter exercises parental authority. When a
natural child has been recognized by both parents, in principle, the mother
alone exercises parental authority. 222/
(e) Although under the law of Luxembourg, men and women are free to
decide on the number and spacing of their children, the sale of
contraceptives, other than condoms, is by medical prescription only and all
advertisement of such products is prohibited. Moreover, they are not
reimbursed by health insurance plans.
(f) If neither the mother nor the father is capable of exercising
parental authority, a guardian will be appointed. The individual right to
choose a guardian, whether a relative or not, falls to the surviving father
or mother. 223/ Nothing prohibits the designation of a woman as
guardian. If the surviving father or mother has not designated a guardian,
the next of kin shall be appointed guardian. 224/ Women and men are
subject to the same conditions for the adoption of a child.
(g) *Choice of a name
A decree issued on 6 Fructidor of the year II (23 August 1794)
stipulates that no citizen can bear any name or surname other than those
found on the birth certificate. The wife does not take her husband's name
on marriage but retains the name she was given at birth. The practice of
wives taking their husband's surname or placing their husband's family name
before their own is only a custom, certainly secular, but without any legal
basis.
Despite these fundamental legal principles, the Electoral Act of
31 July 1924, before it was amended by the Act of 18 August 1995,
stipulated that each voter should be registered in the electoral rolls
under their name, surname and other title, but that married women and
widows should be entered under their husband's family name, followed by
their own surname. Thus, the Act of 31 July 1924 endorsed the secular
custom described above. A judgement of 4 October 1993 handed down by the
magistrate's court of Luxembourg gave rise to a discussion, because it
accepted the applicant's claim, in proceedings brought against the communal
administration, that she should be entered on the electoral rolls for the
communal election only under her own family name. The court explained in
its reasoning that article 9 of the Electoral Act of 31 July 1924
conflicted with the Constitution and with the Convention on the Elimination
of All Forms of Discrimination against Women of 8 December 1979. Other
magistrates' courts advanced different arguments. After much heated
debate, the Act of 18 August 1995 re-established full equality of men and
women with regard to name, at least in law. 225/
As for the choice of surname of children, Luxembourg lodged a
reservation when it ratified the Convention, based on long-standing
tradition whereby children take their father's surname. For so-called
legitimate children, this tradition is not embodied in any law. For so-
called natural children, article 334.2 of the Civil Code states that "a
natural child shall take the surname of the parent with whom his
affiliation is first established. If affiliation is established
simultaneously with both parents the child shall take its father's name.
In such a case, the natural child may take its mother's surname while a
minor, if both parents make a joint declaration to that effect before the
guardianship magistrate ...". 226/
It is not out of the question that Luxembourg might remove this
reservation. But, judging from the deep differences of opinion that have
been expressed regarding whether a married woman should be listed on the
electoral rolls under her maiden name, it is unlikely that this will happen
in the near future.
*Choice of occupation
Each spouse has the right to engage in a profession, industry or trade
without the consent of the partner. 227/ If, however, the partner
believes that this activity may be seriously detrimental to his or her
moral or material interests or those of their minor children, he or she may
appeal to the circuit courts. This possibility of interdiction does not
apply, however, to public offices and duties.
(h) Since the passage of the Act of 4 February 1974 reforming the
marriage settlement regimes, spouses are completely equal with regard to
patrimonial rights during marriage. 228/ The rules of the Civil Code
governing the management of community property provide that each spouse
shall retain sole control of any property he or she contributes to the
marital property 229/ and shall dispose of it freely, except for the
gift or sale of immovable property, business premises or farms, for which
the other partner's consent is needed. 230/ Furthermore, each partner
is responsible for any misrepresentation or fault on their part. 231/
Each spouse had the right to administer and enjoy his or her own property
and may dispose of it freely. 232/
Each spouse has the power to conclude contracts individually for the
purpose of maintaining the home or educating the children. Both spouses
are jointly and severally responsible for these debts, unless these
expenditures are excessive in relation to the family income or obligations
arising from instalment purchases made without the consent of both
spouses. 233/
Each spouse can open any type of deposit or securities account in his
or her own name, without the other's permission. 234/
Each spouse receives his or her own earnings and salary and the income
from his own property and can freely dispose of it after meeting his or her
marital responsibilities. 235/
2. Betrothal and marriage of children
Under Luxembourg law, betrothal does not constitute a contract, but a
juridical event. While the engaged couple are free to break off the
engagement, they must realize that whoever is responsible for the breakup
may be sued for breach of promise and have to pay damages.
The marriage of children under the age established 236/ in article
144 of the Civil Code may be annulled.
Nevertheless, no further action can be taken against the marriage of
children once six months have elapsed since one or both of the partners
attained the required age or if the wife, not having attained that age, has
conceived a child within the six months. 237/
Registration of marriages in an official registry.
A public notice of the couple's intention to marry is posted on the
door of the city hall for 10 days prior to the marriage ceremony. 238/
On the day of the wedding, the mayor, acting as registrar, after
hearing each party in turn declare that they wish to take each other as
husband and wife, 239/ pronounces, in the name of the law, that they are
united in marriage, and issues the marriage certificate immediately.
240/ Notation of the marriage is made in the margin of the birth
certificate of each spouse. 241/
-----
Notes
1/ See below under article 7.
2/ Statement concerning amendment made in the Chamber of Deputies,
29 April 1954.
3/ Parliamentary document No. 3923.
4/ Parliamentary document No. 3923 (i), pp. 6 and 7.
5/ See below under article 15.
6/ Article 224 of the Civil Code.
7/ For further details see under article 16. This Act also introduced a
new type of marriage settlement under ordinary law, that is to say it
applies to couples who have not opted for another settlement in their
marriage contract. The new settlement is that of communal estate
comprising only property acquired after marriage.
8/ Dowry was defined as "property which the wife brings to the husband to
cover the expenses of the marriage" (old article 1540 of the Civil Code).
9/ These are marriage settlements which the spouses opt for in the
marriage contract and which derogate from the communal estate settlement.
They include, for example, the separation of property settlement and the
communal estate comprising all property.
10/ Since the Act of 5 December 1978 which reformed the divorce
legislation there are no longer any peremptory grounds for divorce. As
peremptory grounds for divorce, adultery used to lead automatically to
divorce once proof of adultery was supplied. Since the reform, adultery
committed by either spouse can still be cited by the other when filing for
divorce under the new article 229 of the Civil Code which reads: "A person
may file for divorce on the grounds of abuse, cruelty or injury by one
spouse towards the other where those actions constitute a grave or repeated
violation of marital duties and obligations and make continued conjugal
life intolerable".
11/ Art. 380, para. 2, of the Civil Code.
12/ Art. 313-1 of the Civil Code.
13/ Pursuant to art. 321 of the Civil Code, apparent status vis-a`-vis the
husband is determined by "sufficient evidence of filiation and
relationship" between the child and the husband's family. The following
constitutes evidence:
- The individual has always borne the name of the presumed father;
- The father has always treated him as his child and has always
been treated by him as his father;
- The father, as such, has provided for the individual's education,
support and establishment.
14/ Cf. below under art. 12.
15/ This Institute provides training for primary and pre-school teachers.
16/ Adopted by the Act of 17 May 1967.
17/ Art. 8 of the Act of 23 July 1952 concerning military organization
which stated that "any male citizen of Luxembourg may serve as a volunteer
..." was amended by deleting the word "male".
18/ Art. 14 of the Act of 23 July 1953 mentioned above, as amended.
19/ Art. 2 of the Act of 22 June 1963 setting forth the salary regime for
government officials provides in para. 3: "For equal services, the salary
of a female official shall be equal to that of a male official".
20/ See under article 11 below.
21/ See under article 11 below.
22/ See under article 9 below.
23/ Article 4 of the above-mentioned Grand Duchy regulations.
24/ See under article 11 below.
25/ The schedule of fines has been increased by the Act of 13 June 1994
concerning penalties.
26/ See under article 11 below.
27/ Combined with article 1 of that same Act.
28/ See under the heading "Legal Protection" below.
29/ See article 29 (1) of the Act of 24 May concerning the labour
contract.
30/ See under article 11 below.
31/ Maternity leave.
32/ Ban on night work for pregnant women.
33/ Ban on certain types of work for pregnant women.
34/ Obligation for the employer to provide another assignment at the same
salary.
35/ Ban on overtime for pregnant women.
36/ Ban on breaking a contract with a woman wage-earner who is pregnant,
obligation to hold the job for a woman who is on maternity leave,
prohibition of dismissing a woman because she has married.
37/ This amount should be multiplied by 20 following successive increases
in the schedule of fines.
38/ Decree of the Grand Duchy filed on 3 July 1995.
39/ Article 444, paragraph 2, as proposed in Bill No. 4071, read in
conjunction with article 443 of the Penal Code.
40/ According to the proposed article 454 of Penal Code "any distinction
made between natural persons on the grounds of their origins, sex, family
status, health, handicap, habits, political views, trade union activity, or
on the grounds that they belong or do not belong, or are alleged to belong
or not to belong, to a given ethnic group, nation, race or religion, shall
constitute discrimination" (proposed article 454).
41/ Proposed article 456 of the Penal Code.
42/ Article 1 of the Act of 4 April 1974 reorganizing the General
Inspectorate of Labour and Mines.
43/ Article 18 of the above-mentioned Act of April 1974.
44/ Pasicrisie luxembourgeoise, No. 1/1995 (vol. XXIX), p. 332.
45/ CJCE 20 March 1993 Commission vs. Luxembourg C-111/91 Rec-p 1-817.
46/ Article 2, para. 2, of the Grand Duchy regulation establishing a
women's labour committee.
47/ Article 3 of the above-mentioned regulation.
48/ As in the case of the bill concerning the registration of women on the
electoral lists under their own name (cf. below under article 16).
49/ See below under article 11.
50/ "Onofha"ngege Gewerkschaftsbond-Letzebuerg" which means Confederation
of Independent Trade Unions of Luxembourg.
51/ LCGB which is the abbreviation for "Letzebuerger Chreschtlechen
Gewerkschaftsbond" means Confederation of Christian Trade Unions of
Luxembourg.
52/ Brochure entitled "Promoting a communal policy of equal opportunities
for men and women" published by CNFL early in 1995, p. 6. See also p. 13
of the brochure and the recent leaflet entitled "Can you imagine a world in
which men accounted for 90 per cent of the population and women for 10 per
cent?"
53/ See below under article 11.
54/ "Green Women".
55/ See enclosed texts.
56/ These two amounts, following successive increases in the scale of
fines, should be multiplied by 400.
57/ The High Court of Justice ruling on appeal, decision of 4 June 1987,
No. 197/87.
58/ See in particular the decision of 6 December 1990, No. 170/90 of the
High Court of Justice ruling on appeal in Council Chamber.
59/ Ibid.
60/ High Court of Justice, ruling on an application for judicial review,
decision of 11 July 1963, Pasicrisie luxembourgeoise, No. XIX, p. 155.
61/ Above-mentioned decision of 6 December 1990.
62/ Cf. the judgement of 7 October 1992, docket No. 1161/92, Criminal
Chamber Docket No. 17/92 of the Circuit Court of Luxembourg.
63/ Circuit Court of Luxembourg, judgements of 3 April 1990, docket
No. 590/90 and 4 July 1991, docket No. 1328/91.
64/ This figure should be multiplied by 400, following successive
increases in the scale of fines.
65/ Circuit Court of Luxembourg, 7 July 1988, docket No. 1195/88.
66/ See, for example, Circuit Court of Luxembourg, 19 June 1989, No. 82.
67/ See annexed text.
68/ Decision of 11 March 1991 of the High Court of Justice, ruling on
appeal.
69/ See, for example, the decision of 21 June 1994, No. 223/94(-V) of the
High Court of Justice, ruling on appeal.
70/ The "Rape info" service.
71/ The Luxembourg Movement for Family Planning and Sex Education a.s.b.l.
is formed by three regional family planning centres (Luxembourg, Esch-sur-
Alzette, Ettelbruck).
72/ See below under article 10.
73/ Amount as increased in accordance with the Act of 13 June 1994
concerning the scale of penalties.
74/ Parliamentary document No. 1150, explanatory introduction to the bill.
75/ Luxembourg is also a party to the International Agreement for the
Suppression of the White Slave Traffic, signed at Paris on 18 May 1904; the
International Convention for the Suppression of the White Slave Traffic,
signed at Paris on 4 May 1910; the International Convention for the
Suppression of the Traffic in Women and Children of 30 September 1921; the
International Convention for the Suppression of the Traffic in Women of
Full Age of 11 October 1933.
76/ Parliamentary document No. 1150, explanatory introduction, p. 8.
77/ Ibid.
78/ Parliamentary document No. 1150, explanatory introduction, p. 10.
79/ Ibid.
80/ Article 380, last paragraph of the Penal Code.
81/ Article 379 bis, paragraph 2 of the Penal Code.
82/ Article 381 of the Penal Code.
83/ Article 379 ter of the Penal Code.
84/ The AIDS/HIV consultation service operates with the Luxembourg Red
Cross and is regulated by the Ministry of Health.
85/ See below under article 16.
86/ Civil Code, art. 223, para. 3.
87/ Under article 4 above.
88/ Only parties for which data were available have been included.
89/ "Aktiounskomitee fir Demokratie a Rentegerechtegkeet", Action
Committee for Democracy and Pension Equality.
90/ "Chre"schtlech sozial Volle'kspartei", Social Christian Party.
91/ "D'Sozialisten", Socialist Party.
92/ "D'demokratech Partei", Democratic Party.
93/ The Green Party.
94/ Only trade unions that are representative at the national level have
been included.
95/ Confederation of Independent Trade Unions of Luxembourg.
96/ Confederation of Christian Trade Unions of Luxembourg.
97/ Federation of Private Employees - Independent Federation of Workers
and Executives.
98/ General Confederation of Civil Servants.
99/ 13,287 full-time employees and 2,263 part-time employees, the latter
category consisting mainly of women.
100/ Art. 1, para. 1 of the Luxembourg Nationality Act of 22 February 1968,
as amended.
101/ Art. 2 of the same Act.
102/ Data from 1994 provided by Eurostat on the occasion of the publication
of a brochure on "Statistics in brief: population and social conditions",
1995/12. The data are repeated in less detailed form in table 4, p. 4; see
annex.
103/ Of these 52.5 per cent, 22.2 per cent took a recognized post-
graduation programme, leading to a certificate of higher education,
according to the Eurostat publication referred to in the previous note.
104/ Of the 57.1 per cent, 26.7 per cent have a certificate of higher
education.
105/ Of the 46.3 per cent, 22.2 per cent have a certificate of higher
education.
106/ Of the 57.5 per cent, 26.6 per cent have a certificate of higher
education.
107/ Of the 42.1 per cent, 20.2 per cent have a certificate of higher
education.
108/ Of the 52.2 per cent, 25.1 per cent have a certificate of higher
education.
109/ Of the 31.9 per cent, 16.2 per cent have a certificate of higher
education.
110/ Of the 50.4 per cent, 25 per cent have a certificate of higher
education.
111/ "Orientatioun fir Kanner", orientation course for children.
112/ Under the responsibility of the vocational training service
established by the Act of 4 September 1990.
113/ See article 11 below.
114/ Article 2 (1) of the Act of 21 February 1976 concerning the
organization and functioning of the Department of Employment and
establishing a national employment commission.
115/ Study not yet published by Blanche Lejealle, CEPS, "Women and
unemployment", based on 1994 data.
116/ See table No. 2 under section 3.3, page 9 of the brochure "Under-
employment in the Grand Duchy of Luxembourg", published by the Department
of Employment in March 1995.
117/ Except in 1993 when the annual change in the employment rate for women
was down 1.2 per cent while the rate for men was up 3.1 per cent.
118/ Figures taken from the publication "Employment in Europe, 1995",
published by the European Commission, document COM (95) 396, page 196. (see
attached extract in annex).
119/ CEPS is the Centre for Studies on Population, Poverty and Socio-
economic Policies.
120/ "Employment in Europe, 1995", mentioned above, same reference.
121/ Ibid.
122/ See below in this same article, under the heading "Access to
training, ...".
123/ In view of the fact that the training of pre-school and primary school
teachers lasts three years, the effect of this change was felt beginning in
1992. By way of example, in 1990, 20 men compared with 21 women completed
training as primary school teachers; 3 men compared with 15 women completed
training as pre-school teachers. In 1994, 19 men as opposed to 40 women
completed training as primary school teachers; no men were among the
22 graduating pre-school teachers, who were all women. Source: ISERP
(Institute of Pedagogical Studies and Research).
124/ Situation in 1994. Source: "Employment in Europe, 1995", European
Commission, above-mentioned, page 196, see annexes.
125/ Asbl "Initiativ Rem Schaffen" and "Training Centre for Women, Families
and Single Parent Families" (CCFM), among others.
126/ See article 10 above.
127/ "Return to work initiative".
128/ An amount which must be multiplied by four in accordance with the Act
of 13 June 1994 governing the penalty regime.
129/ Article 9 of the aforementioned Act of 8 December 1981.
130/ Article 4 of the aforementioned Act of 8 December 1981.
131/ Higher Institute of Pedagogical Studies and Research.
132/ Decision of the Council of State of 13 December 1988.
133/ See article 10 above.
134/ Article 5 of the above-mentioned Act of 8 December 1981.
135/ Article 2 of the above-mentioned regulation.
136/ Article 4 of the above-mentioned regulation of 10 July 1974.
137/ The 22 June 1963 law determining the salaries of public servants,
article 2, paragraph 3, provides that: "Female employees shall be entitled
to the same benefits as male employees."
138/ Article 3, paragraphs 1 and 2 of the regulation cited.
139/ Centre for the Study of Population, Poverty and Socio-Economic
Policies.
140/ C.f. the brochure "Revenus - conditions de/vie" CEPS/INSTEAD,
published in March 1995.
141/ Act of 15 December 1986, article 1.
142/ This exemption from compulsory insurance has subsequently been further
modified in the following terms: "persons who work only occasionally
rather than full-time, namely for a pre-determined period which shall not
exceed three months each year, shall be exempt from compulsory insurance."
(Social Insurance Code, article 4, paragraph 1).
143/ Social Insurance Code, article 195.
144/ Social Insurance Code, article 171, paragraph 7.
145/ Social Insurance Code, article 240, last indent.
146/ The two-year period may be extended to four years if, at the time of
the birth or adoption, the applicant is bringing up at least two other
children at home (Social Insurance Code, article 171, paragraph 7, as
amended by the Act of 27 July 1992 reforming health insurance and the
health sector).
147/ The Act of 22 April 1996, article 16, mentioned above, states that
employees are entitled to special leave as follows: "one day prior to
beginning military service and for the death of a blood relative or
relative by marriage of the second degree; two days when wife gives birth,
child gets married or when move house; three days for the death of a
spouse, blood relative or relative by marriage of the first degree; six
days for the marriage of the employee; two days when adopting a child aged
under 16, unless the employee has already been granted the leave provided
for such purposes by the Act of 14 March 1988. All such leave to be taken
on full pay."
148/ The Act of 22 April 1966, article 4, standardizing annual paid leave
for private sector employees, as amended.
149/ The Act of 16 April 1979, as amended, establishing the regulations
governing civil servants, article 28; the Regulation of 22 August 1985
determining the rules governing the leave of civil servants and State
employees, as amended, article 4, (with respect to normal leave); the
aforementioned regulation of 22 August 1985, article 29 (with respect to
special leave).
150/ Above-mentioned Act of 17 June 1994, article 1, paragraph 2.
151/ The Act of 3 July 1975, concerning the protection of pregnant women in
the workplace, article 10, paragraph 1, subparagraph 2.
152/ The aforementioned Act of 3 July 1975, article 10, paragraph 2.
153/ The Act of 24 May 1989 on the employment contract, article 34,
paragraph 4, final subparagraph.
154/ Supreme Court of Justice ruling of 21 April 1995 on an employment
appeal.
155/ The Act of 3 July 1975 concerning the protection of pregnant women in
the workplace, article 10, paragraph 5.
156/ Ibid.
157/ The Act of 3 July 1975 concerning the protection of pregnant women in
the workplace, article 3, paragraphs 1 and 2.
158/ Above-mentioned Act of 3 July 1975, article 10, paragraph 4.
159/ C.f. the Act of 3 July 1975 concerning the protection of pregnant
women in the workplace, article 8, paragraph 1.
160/ "Sick children at home" service.
161/ The Act of 16 April 1979 establishing the regulations governing civil
servants, article 30, paragraph 1, and article 31, paragraph 1.
162/ The Act of 16 April 1979, establishing the regulations governing civil
servants, article 30, paragraph 2, and article 31, paragraph 2.
163/ The Act of 3 July 1975 concerning the protection of pregnant women in
the workplace, article 5, paragraph 4.
164/ Ibid.
165/ Above-mentioned Act of 3 July 1975, article 7, paragraph 2.
166/ Above-mentioned Act of 3 July 1975, article 5, paragraph 1.
167/ Above-mentioned Act of 3 July 1975, article 6.
168/ Law of 3 July 1975 concerning the protection of pregnant women in the
workplace, article 4.
169/ Law of 3 July 1975 concerning the protection of pregnant women in the
workplace, article 7, paragraph 1.
170/ Annuaire statistique du Luxembourg 1994, Statec, 1995.
171/ Figures calculated on the basis of data supplied by the Annuaire
statistique du Luxembourg 1994, Statec, 1995.
172/ Brochure "Sante' pour tous" ("Health for All"), Ministry of Health,
April 1994, p. 50, also figure No. 4, p. 7 of the same brochure (c.f.
annexes).
173/ "Health for All" brochure mentioned above, figures C.6 and C.7, p. 45.
174/ Given that Luxembourg's overall population is small, the mortality
rates in the age groups under 45 and their variations over the years may be
all the more erratic in that the number of deaths in these categories is
low.
175/ C.f. above-mentioned brochure, "Health for All", p. 16.
176/ C.f. above-mentioned brochure, "Health for All", figure C.7, p. 45.
177/ "Bulletin de liaison", published by the Ministry of Health, the Union
of Health Insurance Companies, the Luxembourg Foundation against Cancer,
Europe against Cancer, November 1995 (c.f. annexes).
178/ C.f. the leaflet "Le programme mammographie" published by the
Luxembourg Foundation against Cancer, Europe against Cancer, the Ministry
of Health and the Union of Health Insurance Companies.
179/ C.f. annexes.
180/ C.f. attached poster for the festival.
181/ Article 351, first paragraph, of the new Penal Code states: "A woman
who has an abortion shall be punished by a fine of from [2,501 to 20,000]
francs". This amount should be multiplied by four following a recent
change in the scale of fines.
182/ Parliamentary document No. 2146, p. 22.
183/ Parliamentary document No. 2146, page 16.
184/ Article 13 of the Act of 15 November 1988.
185/ Articles 1 and 5 of the Act of 20 June 1977 mentioned above.
186/ See below under article 13.
187/ See above under article 11.
188/ Article 26, first paragraph of the Social Insurance Code. The term
"persons with insurance" covers not only those who are entitled as
contributors, but also those who have subsidiary rights as the spouse or
child of a contributor.
189/ See "Annuaire statistique du Luxembourg 1994", Statec, 1995.
190/ Prior to being amended by the Act of 31 July 1995, article 1, para. 1
of the Act of 30 April 1989 establishing a maternity benefit read: "Any
pregnant woman and any woman who delivers, provided that she is domiciled
in the Grand Duchy of Luxembourg and that she was legally domiciled there
throughout the year preceding the date of entitlement as provided for in
article 2 below. The maternity benefit is also paid if the woman
does not meet the condition of duration of residence specified above but if
the condition of legal domicile in the Grand Duchy of Luxembourg is met by
her spouse during the three years preceding the aforementioned date. In
the event of adoption of a child who has not yet started primary school,
the benefit is paid for the eight weeks following the date when the
adoption judgement was recorded in the civil registers. [...] The
condition of domicile provided for above must be met by the person or
persons adopting." Paragraph 1 of this article was amended as follows:
"Any woman who is pregnant and any woman who delivers shall be entitled to
a maternity benefit provided that she was legally domiciled in Luxembourg
at the time of the entitlement as provided for in article 2 below."
Article 2 of the Act states: "The benefit shall be paid, upon request, for
up to 16 weeks starting the eighth week prior to the estimated date of
delivery as recorded in a medical certificate ...".
191/ The birth benefit was introduced by the Act of 20 June 1977 which was
designed to: (1) introduce regular medical check-ups for pregnant women
and very young children; (2) modify existing legislation concerning the
birth benefit. An Act of 31 July 1995 eliminated the requirement that the
woman must have been legally domiciled in Luxembourg for at least one year.
The birth benefit is paid in three instalments: the prenatal benefit, the
birth benefit proper and post-natal benefit. The first and second
instalments are paid as soon as the woman can prove that she has had the
required medical check-ups; the third is paid when the child has had
scheduled medical check-ups.
192/ See above under article 12.
193/ Act of 19 June 1985 concerning family benefits and establishing the
National Family Benefit Fund.
194/ Any discrimination against women by banks or financial institutions
will be covered by the Penal Law once bill No. 4071, which is mentioned
under article 2 above under the heading "Penalties" has been adopted.
195/ Article 1, section 1, paragraphs 4 and 5, and article 171, section 1,
paragraphs 2 and 6 of the Social Security Code.
196/ Articles 9 and 12 of the Social Security Code.
197/ See above, article 13 (a) on maternity allowances.
198/ Article 25 of the Social Security Code.
199/ Article 33 of the Social Security Code.
200/ Article 36 of the Social Security Code and Grand Duchy regulation of
24 December 1993.
201/ According to article 1124 of the Civil Code, non-emancipated minors
and adults protected in accordance with article 488 of the Civil Code
(adults who, by their wastefulness, intemperance or idleness are at risk of
ending up in straightened circumstances or compromising the fulfilment of
their family obligations) may not conclude contracts.
202/ For more details, see below under article 16.
203/ See above, article 2, "legal protection".
204/ Under articles 1131 and 1133. Article 1131 states: "An obligation
that is without grounds, or that is based on false or illicit grounds, can
have no effect." Article 1133 states: "The grounds shall be illicit when
it runs counter to good morals or public order."
205/ Article 12 of the Constitution.
206/ Article 215 of the Civil Code. The initial bill provided that,
failing agreement between the spouses, the husband chose the residence.
207/ Ibid.
208/ Article 228 of the Civil Code.
209/ Article 296 of the Civil Code.
210/ Article 342 of the Civil Code defines the legal period of conception
as follows: "The law presumes that the child was conceived during the
period between the three hundredth and the eightieth day, inclusive, before
the date of birth. Conception is presumed to have taken place at some time
during this period. (...)" This article should be read together with
article 312 of the Civil Code which states: "a child conceived during the
marriage has the husband as its father." Accordingly, it assumes the
paternity of the husband.
211/ Article 146 of the Civil Code.
212/ Article 148 of the Civil Code.
213/ See article 2 above, under "Civil Law".
214/ Article 214 of the Civil Code.
215/ According to article 300 of the Civil Code, alimony should meet the
needs of the claimant and be commensurate with the means of the party
required to pay alimony.
216/ Article 301 of the Civil Code, introduced by the Divorce Reform Act of
5 December 1978.
217/ Bill No. 3883, Grand Duchy decree deposited 28 February 1994. See
also bill No. 3935 which seeks to divide the pension in the event of
divorce, under the State civil service pension scheme, as well as the
corresponding amendment to the Act of 22 December 1989 which seeks to
coordinate pension schemes and amend various social security provisions.
This bill provides similar measures for public sector workers.
218/ Article 203 of the Civil Code.
219/ Article 205 of the Civil Code.
220/ Parental authority covers the person and property of the minor. As
for the person, article 371 of the Civil Code states: "A child of any age
must honour and respect its father and mother", while article 372 of the
Civil Code states: "He remains under their authority until his majority or
emancipation."
The father and mother have authority in order to protect the safety,
health and morals of the child. It is their right and their duty to care
for, supervise and educate the child. Article 375 of the Civil Code
states: "During marriage, the father and mother exercise their authority
jointly."
As for the property of the minor, article 382 of the Civil Code
provides: "The father and mother are responsible for the administration
and enjoyment of the property of their minor child." Moreover, article
389, section 1 declares that "the father and mother, whether legitimate or
natural, who exercise parental authority, are the legal administrators of
the property of their non-emancipated minor children", while article 389.5
says that "when legal administration is exercised jointly by the father and
mother, each may carry out alone simple administrative actions. For all
other actions they must act together."
221/ Article 375.1 of the Civil Code regarding the person of the child and
article 389, section 2, of the Civil Code regarding the child's property
respectively.
222/ See article 2 above, under "Civil Law".
223/ Article 397 of the Civil Code.
224/ Article 402 of the Civil Code.
225/ The Act of 18 August 1995 stipulates that married or widowed voters
shall be registered under their father's family name, to which they may
add, if they wish, the notation "husband or wife (widower or widow) of ...
(full name of spouse).
226/ Article 334.3 of the Civil Code stipulates: "Even if affiliation with
the father is established secondarily, the natural child may take the
father's if, during his minority, both parents make a joint declaration to
that effect before the guardianship magistrate (...)".
227/ Article 223 of the Civil Code.
228/ See article 2 above.
229/ The returns and income from individual property which came due or were
realized during the marriage and the product of labour and property
acquired during the marriage become community property. Property which the
spouses owned before they married and property acquired through inheritance
or gift remain individual property.
230/ Articles 1421, 1422, 1424 of the Civil Code.
231/ Article 1421 of the Civil Code.
232/ Article 1428 of the Civil Code.
233/ Article 220 of the Civil Code.
234/ Article 221 of the Civil Code.
235/ Article 224 of the Civil Code.
236/ The age is 18 for men, 16 for women. The Grand Duke may grant a
dispensation for serious reasons, generally if the girl is pregnant
(article 145 of the Civil Code).
237/ Article 185 of the Civil Code.
238/ Article 63 of the Civil Code.
239/ Article 75 of the Civil Code.
240/ Ibid.
241/ Article 76 of the Civil Code.