The Law of July 23 2016 Modifying the Law of March 29 2013 on Organising Criminal Record Certificates, the Code of Criminal Procedure and the Criminal Code was published in Memorial A 154 on August 4 2016 and will come into force on February 1 2017. The law stipulates when an employer can request a criminal record certificate during the recruitment process or the course of an employment relationship.
Section 3 of criminal record certificates In certain conditions, an employer can request Section 3 of a potential employee's criminal record certificate, which contains information regarding penalties for criminal and minor offences. Under the law's key changes:
- individual's must be informed of such a request in writing by way of the job offer; and
- the request must be justified by the position's requirements.
Section 3 of a criminal record certificate cannot be kept for more than one month from the date on which the relevant employment contract is signed. If the person is not hired, it must be destroyed without delay.
During the course of an employment relationship, employers can request Section 3 of an employee's criminal record certificate only if:
- specifically allowed by law; or
- the employee is transferred to a different position, the specific requirements of which require a criminal record check.
In this context, the criminal record certificate cannot be kept for more than two months from the date on which it is issued (unless specific legal provisions provide otherwise).
Section 4 of criminal record certificates When a job requires a valid driving licence, employers can request Section 4 of the potential employee's criminal record certificate, which contains information regarding driving convictions. Individuals must be informed of this request in writing by way of the job offer, and it must be justified by the position's requirements. A clause requiring a valid driving licence must also be included in the employment contract.
Section 4 of a criminal record certificate cannot be kept for more than one month from the date on which the relevant employment contract is signed. If the person is not hired, it must be destroyed without delay.
At the end of the above legal timeframes, neither the criminal record certificate nor information regarding it can be kept in any form.
Grand Ducal regulation of July 23 2016 defines the list of authorities and legal persons that can request copies of Sections 2 and 3 of an individual's criminal record certificate under public law with the explicit agreement (written or electronic) of the person in question. The regulation was issued in Memorial A 154 on August 4 2016.
For further information on this topic please contact Guy Castegnaro or Ariane Claverie at Castegnaro by telephone (+352 26 86 82 1) or email ([email protected] or [email protected]). The Castegnaro website can be accessed at www.castegnaro.lu.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.
