Resolution CM/ResCSS(2010)11
on the application of the European Code of Social Security and its Protocol
by Luxembourg
(Period from 1 July 2008 to 30 June 2009)

(Adopted by the Committee of Ministers on 29 September 2010
at the 1094th meeting of the Ministers’ Deputies)

The Committee of Ministers,

In the exercise of the functions conferred upon it by Article 75 of the European Code of Social Security (hereinafter referred to as the “Code”), as modified by the provisions of its Protocol (hereinafter referred to as the “Protocol”), and with a view to supervising the application of these two instruments by the Contracting Parties;

Whereas the Code and the Protocol, opened for signature on 16 April 1964, entered into force on 17 March 1968 and since 4 April 1969 have been binding on Luxembourg which ratified them on 3 April 1968;

Whereas, when ratifying the Code and the Protocol, the Government of Luxembourg stated that it accepted, in addition to the parts which must be applied by every Contracting Party (Parts I, XI, XII, XIII and XIV), the following parts of the Code, as modified by the Protocol:

- Part II on “medical care”;

- Part III on “sickness benefit”;

- Part IV on “unemployment benefit”;

- Part V on “old-age benefit”;

- Part VI on “employment injury benefit”;

- Part VII on “family benefit”;

- Part VIII on “maternity benefit”;

- Part IX on “invalidity benefit”;

- Part X on “survivors’ benefit”;

Whereas, in pursuance of paragraph 1 of Article 74 of the Code, as modified by the Protocol, the Government of Luxembourg submitted its 41st annual report on the application of the Code, as modified by the Protocol, for the period from 1 July 2008 to 30 June 2009;

Whereas, in accordance with paragraph 4 of Article 74, that report was examined by the ILO Committee of Experts on the Application of Conventions and Recommendations at its 80th meeting in November and December 2009,

Notes:

I. concerning Part III (Sickness Benefit):

a. Article 18 of the Code, as amended by the Protocol: in its previous resolution the Committee of Ministers requested the government to draw the attention of the social partners who are members of the Administrative Board of the National Health Fund to the need to adapt the statutes of the fund in order to allow, in accordance with Article 18 of the Code, the extension of the maximum duration of health insurance benefit (52 weeks during a reference period of 104 weeks) in specific situations where this is required. The government indicates in this respect that, with effect from 1 January 2009, the social partners added to section 186 of the statutes of the National Health Fund a new clause 4, under the terms of which, at the written request of the insured person, the cash benefit may be granted beyond the limit of 52 weeks for one or more periods of incapacity for work not exceeding in total 14 days a month, with the approval of the medical social security supervisory body;

b. with regard to the replacement, by the law of 13 May 2008, of sickness benefit by the maintenance of wages by the employer for 13 weeks, it previously invited the government to reflect upon the problems relating to the governance of such mixed social security schemes and particularly the problem of discrimination in access to employment against workers who have a record of ill health. In reply, the government indicates that it is taking seriously the considerations made by the committee of experts concerning the risk of the selection of employees on the basis of their medical history and has established a tripartite commission to assess the consequences of the application of the new legislation and to draw conclusions;

II. concerning the coverage of emerging social risks:

a. that the law of 16 March 2009 with regard to palliative and end of life care establishes a right to palliative care for any person in an advanced or terminal phase of a serious and incurable disease, whatever the cause. Palliative care consists of active, continuous and co-ordinated care provided by a pluridisciplinary team respecting the dignity of the patient. It is intended to cover all the physical, psychological and spiritual needs of the person receiving the care and to offer support to those close to them. It includes the treatment of pain and psychological suffering. This care is provided in hospital, in an establishment covered by an agreement, or at home, depending on the laws respecting health insurance and dependency insurance. In the case of persons receiving care at home or in an assistance or care establishment, close collaboration with a hospital is ensured. The state provides appropriate training for medical and care personnel. The law also introduces special leave to comfort a person at the end of their life, known as “compassionate family care leave”, which can be requested by any employee with a parent or child (first degree relative) or a sibling (second degree relative), spouse or registered partner who is suffering in the terminal phase of a serious disease. The length of the leave may not exceed five working days in each case and per year and it can be divided. Where two or more persons share the comfort care for the person at the end of their life, they may each benefit from part-time leave, without the total duration of the leave afforded exceeding 40 hours. Absence for compassionate family care leave is justified by means of a medical certificate certifying the terminal phase of the serious disease from which the person at the end of their life is suffering and the need for the continued presence of the person on leave. The period of leave is assimilated to a period of incapacity for work on grounds of illness or injury and the legal provisions respecting social security and protection of employment are applicable to beneficiaries. The Committee of Ministers notes these developments with the greatest interest. It understands that palliative care is provided and funded in accordance with the laws on health insurance and dependency insurance;

b. that the law of 16 March 2009 respecting euthanasia and assistance for suicide has established a legal framework for acts undertaken by a physician at the explicit and voluntary request of the person concerned consisting of intentionally bringing an end to the life of that person or intentionally assisting them to commit suicide or obtaining the means for that purpose. Any adult person with full capacity may, in anticipation of a time when they can no longer express their will, indicate in writing, in living wills, the circumstances and conditions in which they wish to undergo euthanasia where the physician finds that: they are suffering from a grave and incurable pathological condition or a condition resulting from an accident; they are unconscious; and this situation is irreversible in accordance with the current state of science. Living wills have to be set out in writing, dated and signed by the person concerned. The Committee of Ministers observes that acts of euthanasia and assistance for suicide form part of the emerging issues relating to the end of life and are closely related to the palliative care referred to above. It is no accident that the two laws on care and comfort for persons at the end of their lives were adopted on the same day;

III. concerning governance and organisation of social security:

a. that the Grand Ducal Regulations of 19 December 2008 respecting the accounts and budgets of social security institutions establish rules for uniform accounting by all social security institutions based on a uniform accounting model. Rules are also issued for the preparation of annual accounts and the budget, as well as the distribution of administrative costs that are common to various social security institutions;

b. that the law of 19 December 2008 on co-operation between administrative and judicial services and the strengthening of means for the administration of direct contributions, the administration of registration and public property and the administration of customs and excise, establishes the legal framework for the exchange of data between fiscal administrative services, on the one hand, and the General Social Security Inspectorate, the Common Social Security Centre, the National Family Allowance Fund and the National Solidarity Fund, on the other. One of the primary purposes of co-operation between fiscal administrative services is to guarantee the principle of the equality of citizens and enterprises in relation to taxation. To this effect, the scope of application of the exchange of data has been extended to other state actors/public law entities. These administrative services possess the necessary information to establish correctly and collect the various forms of taxation and dues that are within the responsibility of the fiscal services. The law envisages close co-operation between the Common Social Security Centre, the service administering direct contributions and the service administering registration and public property through the mutual and better-targeted communication of information relating to the debts of enterprises to administrative services, allowing these services to assess, with full knowledge of all the necessary circumstances, whether it is appropriate to initiate bankruptcy proceedings. The Committee of Ministers notes the government’s statement that this exchange of data is undertaken in accordance with the law as amended of 2 August 2002, respecting the protection of the individual in relation to the processing of personal data. It considers that a unified system for the exchange of data between public institutions offers considerable potential for the improvement of governance and the formulation of more effective public policies in all the fields concerned;

Finds that law and practice in Luxembourg continue to give full effect to the provisions of the Code and the Protocol, subject to receiving the information requested below;

Decides to invite the Government of Luxembourg:

I. concerning Part III (Sickness Benefit):

a. Article 18 of the Code, as amended by the Protocol, with a view to assessing the effectiveness of the new clause 4 of Article 186 of the statutes of the National Health Fund, to provide information in its next detailed report due in 2011 on its practical impact and indicate the number of requests for the extension of the benefit received by the fund as from 1 January 2009, as well as the number of requests accepted;

b. to keep it informed of the outcome of the work of the tripartite commission, as well as the labour market measures adopted to reduce the rate of absenteeism of workers, which determines the level of the insurance premium paid by employers to their mutual fund;

II. concerning the coverage of emerging social risks:

a. to indicate the manner in which the administration and funding in each individual case is shared between health insurance and dependency insurance since palliative care includes not only medical care, but also covers all the physical, psychological and spiritual needs of the patient. The Committee of Ministers wishes to know, in particular, whether, in Luxembourg, the development of palliative care is, in the government’s view, reinforcing the development of dependency insurance towards a new branch of social security in response to the recognition by society of the specific risks arising at the end of life.

With regard to the compassionate family care leave, the Committee of Ministers notes that it is assimilated to a period of incapacity for work due to sickness. As the law of 13 May 2008 requires the employer to maintain the wages of employees on sick leave, the Committee of Ministers would like to know whether the new compassionate family care leave is, in practice, financed by the employer;

b. to explain which insurance scheme, health or dependency, will cover acts of euthanasia and assistance for suicide and the respective conditions;

III. concerning governance and organisation of social security:

a. to indicate in future reports the benefits in terms of the operating efficiency and effectiveness of social security institutions that it has observed and assessed on the basis of uniform accounting rules;

b. to explain the extent to which the exchange of data between the fiscal services and social security institutions will serve to improve the administration of the social security system and to develop a policy to combat social fraud, undeclared work and the evasion of social security contributions since, according to the explanations provided in the government’s report, the law of 19 December 2008 appears to offer this potential primarily to the fiscal services in the country.



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