Criminal records certificates

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Date:
26 Oct 2016

Newsflash 26.10.2016

By:
Lorraine Chéry

Law of 23 July 2016 modifying the law of 29 March 2013 on organising criminal record certificates, the Code of Criminal Procedure and the Criminal Code.

The law of 23 July 2016 modifying the law of 29 March 2013 on organising criminal record certificates, the Code of Criminal Procedure and the Criminal Code was published in Mémorial A no. 154 of 4 August 2016. It will come into force on 1 February 2017.

This law stipulates the conditions in which an employer can request criminal record certificates during the recruitment process or during the course of the employment relationship.

So under certain conditions, the employer is permitted to request section 3 of a (future) employee’s criminal record certificate, which details certain decisions relating to punishments for criminal and minor offences.

One of the main new features is that the employer’s request must be included in writing in the job offer, and be justified by the requirements of the position. Section 3, which cannot be kept for more than one month after the employment contract is signed, must be destroyed without delay if the person is not hired.

During the course of the employment relationship, the employer will only be permitted to request section 3 if a specific legal provision allows for it, or if the employee is transferred to a different position requiring another criminal records check for the specific requirements of the position. In this context, the criminal record certificate cannot be kept for more than two months after it is issued (unless specific legal provisions mean that it can be kept for longer).

When a job requires a valid driving licence, the employer may also request section 4 of the criminal record certificate, which has specific information about any convictions involving a driving ban. This request must be included in writing in the job offer, and be justified by the requirements of the position. A clause requiring a valid driving certificate must also appear in the employment contract.

Section 4 cannot be kept for more than one month from when the employment contract is agreed and must be destroyed without delay if the person is not hired.

At the end of these deadlines for keeping documents stipulated by law, neither the criminal record certificate nor the information on it can be kept in any form whatsoever.

Law of 23 July 2016 (Mémorial A no. 154 of 4 August 2016)

Grand-Ducal regulation of 23 July 2016 defining the list of authorities and legal persons under public law who can request section 2 or 3 of a criminal record certificate with the written electronic agreement of the person in question.

This Grand-Ducal Regulation, published in Mémorial A no. 154 of 4 August 2016, defines the list of authorities and legal persons under public law who might want to receive sections 2 and 3 of the criminal record certificate of the individuals in question who have made the request and given their explicit agreement (in writing or electronically).

Grand-Ducal regulation of 23 July 2016 (Mémorial A no. 154 of 4 August 2016)