Social Security (Minimum Standards) Convention, 1952 (No. 102) - Luxembourg (RATIFICATION: 1964)

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Part VII (Family Benefit), Article 44(b) of the Convention. Calculation of benefit. Further to its previous request regarding the level of family benefits, the Committee notes from the Government’s report that the total value of the family benefits provided in 2020 (€489.260.457) amounted for 6,8 per cent of the wage of an ordinary adult male labourer (€58.039,91 in 2020), multiplied by the total number of children of all residents (123 099 children). The Committee takes due note of this information.

Article 68. Suspension of benefit. The Committee takes due note of the Government’s indication that family benefits cease as from the first day of the month following the month in which a child above 18 years of age terminates his or her study.

Part XI (Standards to be complied with by periodical payments). Applying the Convention on the basis of minimum benefits. The Committee takes due note that the Government applies the Convention on the basis of social insurance benefits according to the provisions of Article 65 of the Convention.

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The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.

Repetition

Part VII (Family Benefit). Article 44 of the Convention. Calculation of benefit. The report indicates that the Family Benefits Act of 23 July 2016 made changes in the family policy: the previous rule of the differentiation in the amount of the child benefit according to the number of children in a family was cancelled and replaced by a fixed amount of the family benefit of €265 per child. Consequently, the Committee requests the Government to recalculate the total value of the family benefit in accordance with Article 44 of the Convention.

Article 68. Suspension of benefit. According to the 49th annual report on the application of the European Code of Social Security, the family benefit could be ceased as a result of terminating study at school. The Committee requests the Government to explain how this rule is applied in practice, indicating in particular whether the fact of leaving the school before graduation automatically results in the stoppage of payment.

Part XI (Standards to be complied with by periodical payments). Applying the Convention on the basis of minimum benefits. The Committee recalls that Convention No. 102 can be applied on the force of social insurance schemes providing earnings-related benefits (Article 65) or flat-rate benefits (Article 66), or social assistance schemes providing means-tested benefits (Article 67). Another option consists in applying the Convention on the basis of basic income security guarantees where a social insurance scheme provides a minimum benefit, or a fixed basic amount as part of the earnings-related benefit, or where there is a guaranteed minimum income scheme or a universal social pension. The Committee systemically looks at this option every time when the regular benefit provided by the scheme in question does not attain the level prescribed by the Convention. It observes that the importance of the minimum benefits for the application of the Convention has been growing steadily inasmuch as in many countries the replacement level of regular benefits showed a marked downwards trend, falling below the percentage prescribed by the Convention and, for low-wage earners, even below the poverty line in absolute figures. For the ordinary labourers a guaranteed minimum pension often provides better protection in terms of the Convention, as they retain little chance of earning a higher pension after 30 years of insurance.

According to the Convention, the amount of a guaranteed minimum cash benefit, whichever form it takes, shall not be less than the corresponding benefit calculated in accordance with the requirements of Article 66. For the family of the standard beneficiary, this amount shall be such as to attain, in respect of the contingency in question, at least the percentage of the reference wage of the ordinary adult male labourer indicated in the Schedule to Part XI of the Convention. For other beneficiaries with different family responsibilities, the guaranteed minimum benefit shall bear a reasonable relation to the benefit of the standard beneficiary (Article 66(3)). In all cases, the resulting amount shall be sufficient to maintain the family of the beneficiary “in health and decency” (Article 67(c)) under the conditions of entitlement prescribed by the corresponding Part of the Convention with respect to the qualifying period, age and duration of payment. This adequacy criteria comes forward when the amount of the minimum benefit calculated as percentage of the reference wage of the ordinary labourer falls below the poverty threshold to a point incompatible with living in “health and decency”. With respect to maintaining the family of the beneficiary in conditions of health, the minimum benefit shall be sufficient to cover the required cost-sharing by the beneficiary in the medical care guaranteed to his family under Part II of the Convention in such a manner as to avoid hardship and not to prejudice the effectiveness of medical and social protection (Article 10(2)). Persons on minimum benefit in need of health care should not face an increased risk of poverty due to the financial consequences of accessing the types of health care specified in Article 10(1). With regard to maintaining the family of the beneficiary in conditions of decency, the minimum benefit, together with other statutory social protections, shall allow life in dignity and provide income above the national poverty line or similar income threshold, preventing vulnerability and social exclusion. The entitlement to the minimum benefit shall not be subjected to any additional conditions of a discriminatory nature applied to any member of the family of the beneficiary, and shall not deprive the beneficiary of the acquired social and insurance status, including the rights acquired or in the course of acquisition under the statutory social security schemes. When the legislation makes the provision of social security benefits conditional upon occupational activity, periods during which minimum benefits are paid should normally be taken into consideration for acquisition of the right to other social security benefits. The rate of social insurance contributions or taxation or both applied to minimum benefits shall be determined in a manner which avoids hardship to persons of small means with due regard to social justice and equity (Article 70(1)). The current rates of the minimum benefits in respect of the long-term contingencies shall be adjusted to the cost of living (Article 66(8)). In the light of these explanations, the Committee requests the Government to assess whether and to what extent the existing minimum social security guarantees in Luxembourg comply with the abovementioned requirements of the Convention as to their level and conditions of entitlement, and could be used to give effect to its provisions under each accepted Part of the Convention. For the relevant statistical indicators concerning income, poverty and wages the Government may wish to refer to the ILO technical note.

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Part VII (Family Benefit). Article 44 of the Convention. Calculation of benefit. The report indicates that the Family Benefits Act of 23 July 2016 made changes in the family policy: the previous rule of the differentiation in the amount of the child benefit according to the number of children in a family was cancelled and replaced by a fixed amount of the family benefit of €265 per child. Consequently, the Committee requests the Government to recalculate the total value of the family benefit in accordance with Article 44 of the Convention.

Article 68. Suspension of benefit. According to the 49th annual report on the application of the European Code of Social Security, the family benefit could be ceased as a result of terminating study at school. The Committee requests the Government to explain how this rule is applied in practice, indicating in particular whether the fact of leaving the school before graduation automatically results in the stoppage of payment.

Part XI (Standards to be complied with by periodical payments). Applying the Convention on the basis of minimum benefits. The Committee recalls that Convention No. 102 can be applied on the force of social insurance schemes providing earnings-related benefits (Article 65) or flat-rate benefits (Article 66), or social assistance schemes providing means-tested benefits (Article 67). Another option consists in applying the Convention on the basis of basic income security guarantees where a social insurance scheme provides a minimum benefit, or a fixed basic amount as part of the earnings-related benefit, or where there is a guaranteed minimum income scheme or a universal social pension. The Committee systemically looks at this option every time when the regular benefit provided by the scheme in question does not attain the level prescribed by the Convention. It observes that the importance of the minimum benefits for the application of the Convention has been growing steadily inasmuch as in many countries the replacement level of regular benefits showed a marked downwards trend, falling below the percentage prescribed by the Convention and, for low-wage earners, even below the poverty line in absolute figures. For the ordinary labourers a guaranteed minimum pension often provides better protection in terms of the Convention, as they retain little chance of earning a higher pension after 30 years of insurance.

According to the Convention, the amount of a guaranteed minimum cash benefit, whichever form it takes, shall not be less than the corresponding benefit calculated in accordance with the requirements of Article 66. For the family of the standard beneficiary, this amount shall be such as to attain, in respect of the contingency in question, at least the percentage of the reference wage of the ordinary adult male labourer indicated in the Schedule to Part XI of the Convention. For other beneficiaries with different family responsibilities, the guaranteed minimum benefit shall bear a reasonable relation to the benefit of the standard beneficiary (Article 66(3)). In all cases, the resulting amount shall be sufficient to maintain the family of the beneficiary “in health and decency” (Article 67(c)) under the conditions of entitlement prescribed by the corresponding Part of the Convention with respect to the qualifying period, age and duration of payment. This adequacy criteria comes forward when the amount of the minimum benefit calculated as percentage of the reference wage of the ordinary labourer falls below the poverty threshold to a point incompatible with living in “health and decency”. With respect to maintaining the family of the beneficiary in conditions of health, the minimum benefit shall be sufficient to cover the required cost-sharing by the beneficiary in the medical care guaranteed to his family under Part II of the Convention in such a manner as to avoid hardship and not to prejudice the effectiveness of medical and social protection (Article 10(2)). Persons on minimum benefit in need of health care should not face an increased risk of poverty due to the financial consequences of accessing the types of health care specified in Article 10(1). With regard to maintaining the family of the beneficiary in conditions of decency, the minimum benefit, together with other statutory social protections, shall allow life in dignity and provide income above the national poverty line or similar income threshold, preventing vulnerability and social exclusion. The entitlement to the minimum benefit shall not be subjected to any additional conditions of a discriminatory nature applied to any member of the family of the beneficiary, and shall not deprive the beneficiary of the acquired social and insurance status, including the rights acquired or in the course of acquisition under the statutory social security schemes. When the legislation makes the provision of social security benefits conditional upon occupational activity, periods during which minimum benefits are paid should normally be taken into consideration for acquisition of the right to other social security benefits. The rate of social insurance contributions or taxation or both applied to minimum benefits shall be determined in a manner which avoids hardship to persons of small means with due regard to social justice and equity (Article 70(1)). The current rates of the minimum benefits in respect of the long-term contingencies shall be adjusted to the cost of living (Article 66(8)). In the light of these explanations, the Committee requests the Government to assess whether and to what extent the existing minimum social security guarantees in Luxembourg comply with the abovementioned requirements of the Convention as to their level and conditions of entitlement, and could be used to give effect to its provisions under each accepted Part of the Convention. For the relevant statistical indicators concerning income, poverty and wages the Government may wish to refer to the ILO technical note.

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Part VIII (Maternity benefit), Articles 49 and 52 of the Convention. According to the report, medical care provided in the case of maternity is covered in accordance with the procedures applicable to benefits in kind under health insurance. However, in the case of hospitalization for confinement, cost-sharing in the accommodation fees (€19.44 a day) is not due for the first 12 days. The Committee understands that, with this exception, the rules for the sharing by beneficiaries in the cost of medical care both in hospital and for outpatients, are fully applicable to medical care provided in the case of pregnancy, confinement and their consequences. If that is the case, the Committee requests the Government to indicate the manner in which insured women are guaranteed free prenatal care, care during confinement and postnatal care, and hospital care where necessary, in accordance with Articles 49 and 52 of the Convention, which do not allow any sharing in the cost of such care by the beneficiary throughout the contingency.

Part XII (Common provisions), Article 69. According to the report, entitlement to health care is suspended and cash sickness benefits are not paid while the insured person is under detention. The Committee requests the Government to explain the extent to which these provisions are compatible with the limited cases in which the suspension of benefits is authorized by Article 69 of the Convention.

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Part IV (Unemployment benefit), Article 24 (in conjunction with Article 69(f)), of the Convention. The Committee notes with interest the information supplied by the Government on the scope of a number of judicial decisions which had been supplied previously, as well as on the suspension of unemployment benefit in the event of the dismissal of the insured person on serious grounds. It also refers to the comments which it is making to the Government in the context of a general direct request.

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The Committee notes that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Part IV (Unemployment benefit), Article 24 (in conjunction with Article 69(f)). In response to the Committee's previous comments concerning the practical application of section 14, subsection 1(b), of the Act of 1 June 1987 codifying the unemployment legislation, which provides that no unemployment benefit shall be due in the event of dismissal of the insured person on "serious grounds" (that is to say, any action or misconduct which makes the labour relationship immediately and definitively impossible), the Government has supplied a copy of certain judicial decisions in which the seriousness of the grounds relied upon warranted summary dismissal.

The Committee has taken note with interest of these decisions. It has learned from one of the judgements that habitual absenteeism for health reasons may, according to a consistent body of judicial decisions, constitute grounds for rescission of the labour contract under certain conditions irrespective of any misconduct on the part of the worker. It would be grateful if the Government would indicate whether, in such a case, cancellation of the contract also leads to suspension of unemployment benefit: a situation that would conflict with Article 69(f), which authorises suspension of the benefit only in a case of wilful misconduct. Furthermore, the Committee has noted from another of these judgements that, where a wage-earner is unable to work owing to sickness or an accident, failure to notify his employer the same day and to produce a medical certificate to him within three days in accordance with section 35, subsections 1 and 2, of the Act of 24 May 1989 on the labour contract may afford grounds for his immediate dismissal. The Committee would be grateful if the Government would indicate whether such an omission also leads to suspension of unemployment benefit when it is proved that the omission was not the worker's fault, otherwise than in the case prescribed in subsection 4(2) of the said section 35 in which the worker is admitted to hospital.

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1. The Committee has taken note of the detailed information supplied by the Government in its report and in particular the statistics concerning Part XI (Standards to be complied with by periodical payments), Articles 65 and 66, of the Convention (in conjunction with Articles 56 and 62).

2. Part IV (Unemployment benefit), Article 24 (in conjunction with Article 69(f)). In response to the Committee's previous comments concerning the practical application of section 14, subsection 1(b), of the Act of 1 June 1987 codifying the unemployment legislation, which provides that no unemployment benefit shall be due in the event of dismissal of the insured person on "serious grounds" (that is to say, any action or misconduct which makes the labour relationship immediately and definitively impossible), the Government has supplied a copy of certain judicial decisions in which the seriousness of the grounds relied upon warranted summary dismissal.

The Committee has taken note with interest of these decisions. It has learned from one of the judgements that habitual absenteeism for health reasons may, according to a consistent body of judicial decisions, constitute grounds for rescission of the labour contract under certain conditions irrespective of any misconduct on the part of the worker. It would be grateful if the Government would indicate whether, in such a case, cancellation of the contract also leads to suspension of unemployment benefit: a situation that would conflict with Article 69(f), which authorises suspension of the benefit only in a case of wilful misconduct. Furthermore, the Committee has noted from another of these judgements that, where a wage-earner is unable to work owing to sickness or an accident, failure to notify his employer the same day and to produce a medical certificate to him within three days in accordance with section 35, subsections 1 and 2, of the Act of 24 May 1989 on the labour contract may afford grounds for his immediate dismissal. The Committee would be grateful if the Government would indicate whether such an omission also leads to suspension of unemployment benefit when it is proved that the omission was not the worker's fault, otherwise than in the case prescribed in subsection 4(2) of the said section 35 in which the worker is admitted to hospital.

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1. The Committee takes note of the information supplied by the Government in reply to its previous direct request concerning Part IX (Invalidity benefit), Article 54, of the Convention.

2. Part IV (Unemployment benefit), Article 24 (in conjunction with Article 69(f)). In reply to the Committee's previous comments concerning the application, in practice, of section 14, subsection 1(b), of the Act of 1 June 1987 consolidating legislation on unemployment, the Government indicates that unemployment benefit is refused if, in accordance with the legislation on labour contracts, a contract is terminated without notice for one or more reasons arising out of the action or misconduct of the worker. It adds that, for the purposes of the application of this legislation, "serious grounds" are considered to be any action or misconduct which makes the labour relationship immediately and definitively impossible.

The Committee takes note of this information. It would be grateful if, in its next report, the Government would provide examples of cases where the seriousness of the grounds invoked has given rise to dismissal without notice and, consequently, the refusal of unemployment benefit, enclosing copies or extracts of the relevant judicial decisions, in view of the fact that Article 69(f) of the Convention authorises the suspension of the benefit only in the event of wilful misconduct on the part of the person concerned.

3. Part XI (Standards to be complied with by periodical payments), Articles 65 and 66 (in conjunction with articles 56 and 62). The Committee takes note of the statistical information provided by the Government concerning the amount of invalidity benefit (Article 56) and survivors' benefit (Article 62), recourse being had to Article 66 (Calculation of periodical payments). It notes, however, that the amounts of these benefits have been calculated mainly for situations where the worker - or, as the case may be, the breadwinner - is 40 years of age when the contingency arises. It would be grateful if the Government would provide statistical information on the amount of invalidity and survivors' benefits in cases where the worker - or, as the case may be, the breadwinner - is older when the contingency arises (55 and 60 years of age for each contingency, for example) and has completed a contribution period not exceeding 15 years. Please provide the information required by Titles I, II and IV of Article 65 or - in so far as the minimum benefits are granted in such cases - of Article 66.

Furthermore, the Committee notes from the information provided by the Government in its report under Title I of Article 56 and Article 62 of the report form, that the wage of the standard labourer selected is equal to the legal minimum wage for a worker with dependants whereas, according to the information provided under Title I of Article 44, the minimum legal wage increased by 25 per cent is adopted as the average wage of an ordinary labourer. The Committee would be grateful if the Government would provide information on the reasons for the difference in the definition of the wage of the ordinary male labourer (see, in this connection, the rules laid down in paragraphs 4 and 5 of Article 66 for the definition of the ordinary adult male labourer, which are also referred to by Article 44).

Lastly, the Committee hopes that the Government will have no difficulty in providing the statistical information requested, basing its calculations on amounts which have been updated to take account of the cost-of-living index in force for the period covered by the report. [The Government is asked to report in detail for the period ending 30 June 1991.]