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Regardless of the provisions concerning employment contracts, a request must be made in respect of each posted worker for an A1 form which is available from the Centre Commun de la Securité Sociale (Joint Social Security Centre (CCSS) and information must be obtained from the liaison offices in the Member State where the provision of services is envisaged, regarding the procedure to be followed.

If the worker is called on to perform his or her work for more than a month outside the territory of the Grand Duchy of Luxembourg, the employer must issue to the worker, before his or her departure, a written document which must include at least the following information:

1. the duration of the work to be carried out abroad;
2. the currency to be used for payment of the wage/salary;
3. where appropriate, advantages in cash and in kind linked to expatriation;
4. where appropriate, the conditions for repatriation of the worker.

The information on the matters referred to in points 2 and 3 above may, if appropriate, result from a reference to the provisions of laws, regulations, statutes, administrative rules or collective agreements governing the areas referred to.

In cases of posting of workers within the EU, employers must comply with the working conditions (working time, leave, health and safety, remuneration etc.) in force in the host State.

The conditions concerning posting of workers are governed by Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services, which has been transposed into the national legislation of the various Member States.

The principle underlying that directive is as follows: if a Member State lays down minimum employment conditions, they must also apply to workers posted to that State.  However, there is nothing to prevent an employer from applying more advantageous working conditions for workers, for example those of the Member State of origin (that is to say, the place where the worker normally pursues his or her profession or occupation).

The law of the host country cannot have the effect of depriving workers, during their posting, of more favourable working, remuneration and employment conditions which derive from application of the law of the country in whose territory they normally work or in the territory of which they were recruited.

That is the effect of Article 39(7) of the above-mentioned directive. Where as a whole the rules in the host country are less favourable than those in force in the country of origin, the latter rules shall apply. The essential core of minimum protective rules shall not be an obstacle to the application of more favourable conditions.

Examples

In cases of posting of workers employed under an employment contract governed by Luxembourg law in France, overtime between the 40^th and the 42^nd hour will be remunerated on the basis of the Luxembourg enhanced rate of 40%, which is more favourable than the French rate of 25%.

Yes.

A judgment of the Cour d’Appel (Court of Appeal) decided that the foreign law (that is to say the law of the State to which the worker is posted) and the foreign collective agreement constitute mandatory provisions within the meaning of Article 7 of the Rome Convention of 19 June 1980, in so far as they provide that minimum protective provisions in favour of the worker are to apply to the employment relationship between the parties which is moreover governed by Luxembourg law.

Thus, the provisions of Luxembourg laws or agreements which would conflict with the provisions of foreign laws or agreements, in so far as they would deprive a worker posted abroad of an advantage available to him or her under the latter, the Luxembourg provisions cannot apply in such cases.

In fact, the grant of that advantage cannot be regarded as discriminatory, as compared with a worker working in Luxembourg, since that advantage would be justified by the difference in their situation and the foreign provisions also pursue the aim, in the same way as Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996, of ensuring equal treatment for all workers, whether or not posted, working abroad and for all employers, whether or not established abroad, providing services there.