Droit du travail et de la sécurité sociale
Prof. Guy Castegnaro
Exam: mul�ple choice test.
Material allowed at the exam: (a) code de la securite sociale and (b) code du travail.
No notes allowed at the exam.
The course is divided as follows:
• 3 classes of droit de la sécurité sociale.
• 4 classes of droit de travail.
Droit de la sécurité social
Principe d'unicité en matière de sécurité sociale: a person shall only be affiliated to one na�onal social
security system.
Poten�al problems: a person who exercises his professional ac�vi�es in mul�ple jurisdic�ons (e.g., a
person who has concluded an employment contract with different employers located in different
jurisdic�ons) or a person who lives in a jurisdic�on and exercises his professional ac�vi�es in another
jurisdic�on but benefit from telework (“teletravail”).
On 5 June 2023, Luxembourg signed the European framework agreement providing for the social
security threshold for teleworking to be raised from 25% to "less than 50%" (please note that this is
limited to telework). As a result, from 1 July 2023, cross-border workers will be able to telework for
almost half of their working �me, without affec�ng their Luxembourg social security registra�on.
However, to do this, the employee's country of residence must also have signed this framework
agreement.
Without applica�on of the new regula�on, the employee who works 25% or more of the agreed
working �me in his country of residence is subject to the social security legisla�on of his country of
residence. The 25% limit is increased to 50% or more.
All Luxembourg’s border countries have already ra�fied the agreement.
It is important to emphasise that these agreements only cover the social aspects, and that the tax
tolerance thresholds set between countries in bilateral agreements remain applicable.
- When a person simultaneously carries out an ac�vity in the public sector and an ac�vity
in the private sector, he or she is affiliated for health insurance to the public sector health
fund which is competent.
- In the event of accumula�on of different ac�vi�es falling under different public sector
health funds, the competence of the fund is determined based on the occupa�on involving
the highest number of hours.
- In the event of accumula�on of a salaried ac�vity and of a self-employed ac�vity, the
nature of the salaried ac�vity is considered to determine the competence of the fund.
- In the event of combining an ac�vity with a pension, the nature of the ac�vity is taken
into considera�on to determine the competence of the fund.
- The same rules apply in case of trans-borders ac�vi�es. For instance, a person who
qualifies as salaried worker in Luxembourg and self-employed in France will only be
subject to Luxembourg social security and will only pay social contribu�ons in
Luxembourg.
Social security law and labour law are in constant evolu�on. Not only na�onal (and interna�onal)
labour mobility is increasingly becoming the norm rather than the excep�on, but also the way work is
performed is constantly changing.
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,Social security law needs to constantly adapt to the social, financial, and poli�cal situa�on of its
country and region (e.g., European Union).
Social security law and labour law assume a protec�ve role for salaried workers linked to their status
of (a) juridical subordination and (b) economic dependence on the employers.
• Social security law is a branch of law which protects health and safety of salaried workers.
• Labour law is a branch of law which protects the interests of salaried workers.
In Luxembourg, Law of May 13, 2008 introduced a single statute for employees in the private sector
(“statut unique pour les salariés du secteur privé”). Star�ng from 2008 there is no longer any dis�nc�on
between blue-collar workers (“ouvrier”) and white-collar workers.
The introduc�on of the single statute lead – in par�cular – to the amendment of social security
provisions (rather than labour law provisions).
The Law of May 13, 2008 created – effec�ve as of January 01, 2009 – the Na�onal Health Fund (Caisse
nationale de santé - CNS), in charge of managing the health, maternity and long-term care insurance
and resul�ng from the merger of the Union des Caisses de Maladie (UCM) and six health funds which
covered the private sector based on socio-professional category: Caisse de maladie des employés
privés (CMEP), Caisse de maladie des ouvriers (CMO), Caisse de maladie des professions
indépendantes (CMPI), Caisse de maladie agricole (CMA), Caisse de maladie des employés de l'ARBED
(CMEA) and Caisse de maladie des ouvriers de l'ARBED (CMOA).
Currently in Luxembourg – on top of the CNS – the Caisse de maladie des fonctionnaires et employés
communaux (CMFEC), the Caisse de maladie des fonctionnaires et employés publics (CMFEP) and the
Entraide médicale des CFL are in charge of the health insurance of public sector agents and assimilated
(with the excep�on of blue-collar civil servants, affiliated with the CNS).
Social security is at the heart of the Luxembourg and European poli�cs.
The COVID-19 emergency has shown it clearly. E.g., increased protec�on to the salaried workers (not
many layoffs have taken place in Luxembourg and in Europe) and vaccina�on costs covered by the
State. The same did not happened in the US and in many African/Asian countries.
Three pillars of the Luxembourg and European social security:
1) Social security protec�on.
2) Extensive labour law which protects the interests of salaried workers (provisions that covers
individual working rela�ons and collec�ve working rela�ons).
3) Collec�ve nego�a�ons: dialogue between representa�ves of the salaried workers (syndicat,
délégation du personnel, comité mixte d’entreprise etc.) and representa�ves of the employers
(fédérations sectorielles d'employeurs). Collec�ve nego�a�ons lead to collec�ve labour
agreements (“conventions collectives”) which supplement the provisions of labour laws
according to the needs and specific nature of each sector of ac�vity, notably regarding the
organisa�on (e.g., factories requiring 24/7 opera�ons, fixed-hour office work, workers in the
leisure business working on non-working days etc.) and working constraints (e.g., night work
etc.).
Definition of social security law: ensemble de normes juridiques visant à protéger toute une partie de
la population contre les risques sociaux tels que la maladie, l'invalidité, la vieillesse, les accidents du
travail, la perte d'emploi, etc (emphasis on social protec�on).
Social protec�on could be differen�ated into two main branches: social coverage and social aid.
• Social coverage (“couverture sociale”) of people who exercise a profession and need to be
affiliated to the social security of a country.
• Social aid for people who cannot exercise a profession anymore or who have an employment
but do not manage to have a decent standard of living.
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,Together, social coverage and social aid form the social protec�on that could be defined as “toute
intervention d’organismes publics et privés destinée à alléger la charge que représente la survenance
de certains risques ou besoins pour les ménages et les particuliers à condition qu’elle n’ait pas de
contrepartie et ne relève pas de dispositions personnelles” (i.e, any interven�on by public and private
organiza�ons intended to alleviate the burden represented by the occurrence of certain risks or needs
for households and individuals provided that it has no counterpart and does not arise from personal
arrangements).
Members of the insured person’s family also benefit from social protec�on (e.g., insured person’s
children, who are not part of the ac�ve popula�on yet).
The Law of December 18, 2009 reorganizes the social aid.
Ar�cle 2 of Law of December 18, 2009 defines the social aid as aid which “[…] assure aux personnes
dans le besoin et à leur famille l’accès aux biens et aux services adaptés à leur situation particulière,
afin de les aider à acquérir ou à préserver leur autonomie. Elle intervient à titre subsidiaire et peut
compléter les mesures sociales et les prestations financières prévues par d’autres lois et règlements,
que le bénéficiaire est tenu d’épuiser”.
Couverture Universelle de Soins de Santé (“CUSS”): the Luxembourg legislator has gone further and
provided the universal healthcare coverage, which allows access to health insurance to people living
in economic precariousness in Luxembourg. This measure allows them to go to the doctor of their
choice in Luxembourg, to have a CNS card and not to have to advance the costs of the consulta�ons
and pharmacy for prescribed medica�ons (however, only treatments of basic care are covered).
Moreover, beneficiaries of the CUSS must accept social monitoring.
All people who live on the na�onal territory, have no source of income, and cannot receive help from
the social office of their municipality can benefit from CUSS. These are therefore generally people
without an official address or without a residence permit.
CUSS has been ac�vated during the Spring of 2022.
History and origins of social security:
Social security is linked to a need specific to the industrial revolu�on which took place around the
middle of the XIX century with the inven�on of the steam engine in the UK (exploita�on of child labour,
of women labour, abuse, no regula�on of working hours, no safety in the workplace etc.).
Social security as we understand it today did not appear suddenly: there have been several precursors.
Over �me, certain employers started to voluntarily take care of their own employees.
Precursors are iden�fiable in the charitable assistance of the Church or of the aristocracy.
Certain employers have gathered into corpora�ons and have put in place a system of social security
(e.g., in the mining sector, in the mari�me sector etc.).
Over the XIX century several “sociétés de secours mutuels” have been created. Mutual aid socie�es
are non-profit groups of individuals, and their objec�ve is the compensa�on for consequences of risks
faced by their members. Mutual aid socie�es were created in Luxembourg with the Law of July 11,
1891. Thus, mutual aid socie�es were already in place in Luxembourg before the crea�on of the first
insurances (assurance sante, assurance pension or assurance maladie).
At the end of the XIX century, in response to the syndicalist and socialist movements, the German
Chancellor Oto von Bismarck set up a system of social insurance to improve the living condi�ons of
the working proletariat. This system of social insurance – put in place in 1883 – was intended to cover
consequences of three social risks, namely: illness, work accident and old age.
The so-called Bismarckian system has the following characteris�cs: (a) insurance applies compulsorily
to industrial workers whose wages are below a certain threshold, (b) the financial burden is shared
between employers and policyholders, with a State subsidy added to contribu�ons, (c) contribu�ons
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, and cash benefits are propor�onal to the wages and (d) social partners par�cipate in the management
of the system.
In 1901, Luxembourg, which was united with Germany economically by a customs union (“Zollverein”),
was inspired by the German model to set up a public health and accident insurance scheme.
The first social security law concerning health insurance coverage for workers is dated 1901. It was
supplemented by coverage against accidents in 1902, pension insurance in 1911, family allowances in
1947 and finally long-term care insurance (“assurance dépendance”) in 1998.
The Luxembourg social security system is based on the compensa�on concept (“conception
indemnitaire”) inspired by the Bismarckian model. Thus, affilia�on is compulsory for any professional
ac�vity in Luxembourg. Unlike a private insurance system, protected persons are not free to take out
insurance with the public system, this insurance is compulsory. Financing by means of contribu�ons,
based on remunera�on and not on the probability of the occurrence of the risk or the insured value,
is another characteris�c of a system of Bismarckian inspira�on.
Other than Luxembourg, also Austria and the Netherlands’ social security legisla�on have been heavily
influenced by Bismarck’s legisla�on.
A milestone in the social security landscape is the “Social Security Act” of 1935 in the United States of
America, also inspired by Bismarck’s legisla�on (Great Depression: 1929-1939). It is an act to provide
for the general welfare by establishing a system of Federal old-age benefits, and by enabling the several
States to make more adequate provision for aged persons, blind persons, dependent and crippled
children, maternal and child welfare, public health, and the administra�on of their unemployment
compensa�on laws.
A�er the Second World War, alongside the Bismarckian social security system, a second model
appeared, influencing social security regimes. This is the Beveridgian model.
While the Bismarckian system is part of an insurance logic in which benefits are paid to people insured
against risk, the Beveridgian system is based on an assistance logic according to which benefits are
paid to individuals in need, without compensa�on of contribu�ons.
The model that Bri�sh economist Lord William Beveridge presented in the report on health insurance
to the Bri�sh Government in 1942 proposed overhauling the system based on several principles:
- the principle of universality, the right to social security being extended to the en�re ac�ve or
inac�ve popula�on (main difference compared to the Bismarck’s laws, which were addressed
to a certain sector of the ac�ve popula�on i.e., industrial workers). Protected persons are not
defined according to their professional status.
- universality also in that protec�on is extended to unemployment, death, and family
responsibili�es.
- the uniformity of benefits meaning that social security guarantees flat-rate and iden�cal
benefits, whatever the level of previous income and independently of the professional status
of the protected persons, with a view to guaranteeing them a minimum income.
- the principle of unity of management according to which the State manages all social
protec�on. The financing is insured by tax.
In this universal concep�on, the right to social security is no longer based on professional ac�vity and
the contribu�on that each person provides to society, but on individual needs.
European sources:
A�er the Second World War, several elements of concrete European integra�on concerning social
security appeared – notably – with the crea�on of the Council of Europe. It is an interna�onal
organiza�on created in 1949 which today has 47 member States, including the 27 members of the
European Union. The Council of Europe adopted the European Social Charter, signed in 1961 in Turin,
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