Defence of rights and means of recourse
No one can be subjected to reprisals on the basis of protests or refusal with regard to an action or behaviour that is contrary to the principle of equal treatment as defined by the law of 28 November 2006 on equal treatment, or on the basis of reaction or complaint or legal proceedings intended to ensure compliance with the principle of equal treatment. Similarly, no one can be subjected to reprisals for having testified with regard to such actions or for having recounted them.
Any provision or action contrary to the provisions contained in the law, and notably any dismissal in violation of these provisions, is null and void and article L. 253-1 of the Labour code applies.
When a person feels that s/he has been wronged as a result of non-compliance with the principle of equal treatment and establishes, either directly or through a non-profit association having the jurisdiction to do so in compliance with the law of 28 November 2006 or through a trade union that has jurisdiction to do so pursuant to and within the limits of article L. 253-5 paragraph (2) of the Labour code, or within the framework of an action resulting from the collective bargaining agreement or the agreement signed in application of article L. 165-1 of the Labour code in compliance with and within the limits of article L. 253-5, paragraph (1) of the Labour code, before the civil or administrative courts, facts that lead to the presumption of the existence of direct or indirect discrimination, it is incumbent upon the defendant to prove that there has been no violation of the principle of equal treatment.
This paragraph does not apply to criminal proceedings.
Any provision will be considered as null and void if notably contained in a contract, an individual or collective bargaining agreement or in a company’s standing orders, as well as in the rules governing non-profit associations, self-employed professions and organisation of workers and employers, in the event it is contrary to the principle of equal treatment for the purposes of the law of 28 November 2006.
Any non-profit association of national scale having as its statutory activity the struggle against discrimination and that has had a legal personality for at least five years on the date of the events and that has received prior approval from the Minister whose remit includes Justice, can appear before civil or administrative courts for the purpose of exercising the rights assigned to the victim of discrimination with regard to events that comprise a violation of the provisions of the law and that result in direct or indirect damage to the collective interests that it is intended to defend pursuant to its statutory purpose, even if it has not demonstrated a material or moral interest.
However, should the events have been committed against persons considered on an individual basis, the non-profit association cannot primarily exercise the rights assigned to the victim(s) of discrimination unless these people expressly declare their non-opposition, in writing.
For the moment, these non-profit organisations can appear before civil or administrative courts :
“Association de soutien aux travailleurs immigrés” (ASTI), “Centre de liaison, d’information et d’aide pour les associations des projets au Luxembourg” (CLAE) and “Action Luxembourg Ouvert et Solidaire-Ligue des droits de l’homme“ (ALOS-LDH) according to the law of 19 July 1997 (race/ethnic origin);
“Association de soutien aux travailleurs immigrés” (ASTI), “Info-Handicap (Conseil national des personnes handicapées)”, “Chiens guides d’aveugles au Luxembourg”, “Action Luxembourg Ouvert et Solidaire-Ligue des droits de l’homme“ (ALOS-LDH) and CARITAS according to the law of 28 November 2006
and “Conseil national des femmes du Luxembourg (CNFL)” according to the laws of 21 December 2007 and 13 May 2008.