Politically invisible

There were less than 7,000 cross-border workers in 1980, 79,300 in 2000 and over 200,000 today. Initially welcomed with open arms to keep a flourishing economy going, cross-border workers have been feeling the pinch in recent years. They are said to be the cause of congested rush hour traffic, to not make enough effort to learn Luxembourgish, to spend their income in their country of residence and, in short, to be profiteers.

These clichés, assiduously repeated in the comments of news websites, sometimes even transpire in political discourse. For example, the former Minister of the Economy, Etienne Schneider (LSAP), once agreed with the arguments of his colleagues François Bausch and Carole Dieschbourg (déi gréng), who were opposed to the installation of the Fage and Knauf factories, and used discourse that was contemptuous of cross-border workers: "Let me give you an example of a company that would create 100 jobs, 95 of which would be for frontier workers who are paid the minimum social wage. What does this company and its employees still represent in terms of tax revenue?" He went back on these remarks a little later.

More insidiously, discriminatory measures began to appear much earlier. As early as 2005, the Court of Justice of the European Union pinpointed the Grand Duchy concerning the education allowance it had refused to a German border woman. The following year, the Juncker-Asselborn I government claimed to compensate for the de-indexation of family allowances by creating childcare vouchers. "We welcomed the childcare vouchers, but pointed out that many people, especially border workers, could not benefit from them", recalls Sylvain Hoffmann, director of the Chamber of Employees. "I don't know if at the time there was an intention to exclude anyone from the scheme but with the scholarships it became quite clear that this was what the government wanted to do."

Indeed, the most obvious measure remains the reform of family allowances in 2010, abolishing these benefits beginning at the age of children of residents and cross-border commuters alike and replacing them with study grants accessible only to the children of residents. "A system open to all would not be financeable", claimed the Minister for Higher Education at the time, François Biltgen (CSV), while Juncker (CSV) assured a Belgian senator in a letter that rejecting the reform would mean that the Commission would "force us to co-finance the higher education policy or even the youth policy of other Member States, thereby forcing us to backtrack on our own policy in favour of the population for which we are primarily responsible, namely our young residents".

We know what happened next: three rulings by the CJEU overturning the Luxembourg law and thousands of cross-border workers were wronged. Those who had lodged an appeal were finally able to receive the aid they were due, provided they met the criteria imposed, such as the length of time the cross-border parent had worked in Luxembourg. However, not everything has been settled: there remains the question of the non-cumulation of the study grant and the housing aid granted to students by the country where they reside for their studies. This cumulation is authorised for residents but not for cross-border workers. Several hundred cases are still pending while waiting for a possible intervention of the European Commission.

Social and fiscal setbacks

Some cross-border workers also suffer the consequences of the reform of family allowances that came into force on August 1, 2016: they can no longer receive allowances for the child or children of their spouse who does not work in the Grand Duchy. Brought before the social courts, the case was unequivocally judged by the Court of Justice of the EU in April 2020. Unsurprisingly, the Court rejected the Luxembourg reform as discriminatory towards cross-border workers.

However, the latter have great difficulty in winning their case before the social courts. "The Caisse pour l'avenir des enfants has taken up the criterion mentioned by the CJEU – according to which the frontier worker must provide for the care of his or her spouse's child in order to benefit from Luxembourg family allowances – and now systematically asks for proof of the income and expenses of the child's biological parents", reports Pascal Peuvrel, a lawyer at the Court who is very active in defending frontier workers' rights. "It is despicable and it is a restrictive interpretation of the CJEU ruling." He has just appealed to the Court of Cassation in a first case after winning in the first instance before the Conseil arbitral de la sécurité sociale and being rejected on appeal before the Conseil supérieur de la sécurité sociale.

In addition to these setbacks, there are other obstacles that only border workers encounter. "The LCGB is often approached by its cross-border members with questions relating to taxation", says Vanessa Correia, union secretary responsible for social policy at the LCBG, "One concrete example concerns married cross-border commuters who ask for a tax simulation to see whether taxation in tax class 1 or with the overall rate defined on the basis of tax class 2 is more advantageous." This is because since the tax reform announced in 2017, married cross-border commuters no longer automatically benefit from tax class 2.

"Several aspects specific to cross-border workers are added to the problems they share with residents, such as those linked to labour law (dismissal, back pay, etc.)", explains Jacques Delacollette, central secretary in charge of coordinating the cross-border workers' sections at the OGBL. "For example, if a person who has worked in Luxembourg and Belgium is granted an invalidity pension in Luxembourg, he or she has to wait six months for his or her file to be closed in Belgium before receiving the Belgian part – the other way around it takes almost a year. It's unbelievable that this is happening when data is now being transferred so quickly. And it puts people in a bind."

For several years, Belgian border workers also had to endure the excessive zeal of the Belgian tax authorities in tracking down hidden workers. "Some people have got into the habit of paying for their sandwich or a drink every day with their Visa card to keep track of their time in Luxembourg", Mr Delacollette continues. "I know of a recent case: the tax authorities went back five years and asked a border worker for 18,000 euros in arrears. This case had to go to court because the taxman wouldn't take into account the documents."

Border workers in the three bordering countries are also dependent on intergovernmental discussions on telework. "Since the beginning of the pandemic, questions about telework, more specifically about the tolerance thresholds applied by the border countries, and about the coordination rules relating to social security have multiplied", Correia points out. "The tolerance has increased from 24 to 34 days for French and Belgian border workers, but Germany remains at 19 days", adds Delacollette.

This progress was achieved in the wake of the health crisis, during which all employees who were able to do so had to work from home, but it is still considered insufficient. "These agreements are heterogeneous and still remain below the maximum possible 55 days per year that border workers could work without exceeding the 25 percent threshold for social security", says Correia. "This has in particular created a lot of damage in the transport sector at the beginning of 2021, where many drivers have suffered overnight disaffiliation in Luxembourg."

Faced with pressure from the unions, the government is stalling. "We're being asked not to be too militant and to let the political negotiations take their course", says Aleba president Roberto Mendolia. "But in the meantime the problems remain. It should be pointed out that if a border worker connects for 1 hour from home and then goes to work in Luxembourg, this is already counted as a day of teleworking." The subject is not a priority, Delacollette laments. "At the Greater Region summits, politicians say we need to work together, but they forget about it as soon as they get back to their offices."

The trade unions are on the front line in advising and supporting border workers: the OGBL sections and those of its partner LGTB in Arlon received more than 10,000 border workers in 2019 – and that's just at the Belgian border. It must also be said that border workers account for between 40 and 50 percent of trade union members  – while very few are in the management bodies. This has been the case for a long time, but it was not until 2010, when the reform of student grants was discussed, that the unions finally took up the cause of openly defending the interests of border workers. The government ignored this.

Ideas deliberately ignored

"All the problems of border workers are raised repeatedly with politicians, whether during meetings with the various ministers or through representatives of the Economic and Social Council of Luxembourg and that of the Greater Region", Delacollette says. "We will also meet with political leaders in the border countries. But there is always a more urgent problem."

And yet the unions have no shortage of constructive ideas. "It's a shame that there is still no high-speed line between Brussels and Luxembourg", says Mendolia, who did 12 years of carpooling from Liege. "And the road infrastructure is not adapted: with the [post-pandemic] recovery, I hear that the traffic is even worse than before. Why did they stop the northern motorway at Ettelbruck? Why not build a large 'ring' with Arlon and Germany? The solutions exist and involve political decisions such as facilitating teleworking." However, the unions are sidelined when the subject goes beyond the framework of labour law.

So who else can speak for the border workers? The Chamber of Employees has been fighting the battle in its own way for several years and has more and more border workers in its ranks. "We have gone from only 5 cross-border workers in the plenary assembly in 2009 to 7 in 2013 and 17 in 2019", Hoffmann points out. That is 28 percent of the members, "knowing that we have two sectors with very few border workers: the CFL and the pensioners".

"We are the voice of the border workers in the legislative process", he believes. "We work closely with the unions. We are not always on the front line, we act more as a back office by analysing the dossiers as part of our opinions on draft legislation. The unions take over at the political level."

This does not mean that the CSL minces its words in its opinions. Whether it is for the 2017 tax reform that modified the treatment of cross-border commuters or, more recently, for the draft law on family allowances drawn up by the Ministry of Family and Integration, the CLS points out the problematic points. "The CSL is outraged that the legislator could submit a text that is so harmful to social cohesion", which "risks stirring up resentment between residents and non-residents and is profoundly harmful to the country's image", it wrote in this last opinion piece.

"The border phenomenon is automatically included in our reflections on tax and social security projects, and in general we ensure that no measures are taken that are disadvantageous for border residents or advantageous for residents but inaccessible to border residents", says Hoffmann.

The Economic and Social Council (CES) also prides itself on drawing attention to the problems faced by cross-border workers, even if its membership is not representative of this. "It is up to the organisations that appoint the members to ensure that their representatives reflect the diversity of the world of work", says Jean-Jacques Rommes, CES vice-president. The members of this tripartite body are drawn from organisations representing workers (employees and civil servants), those representing businesses, independants and farmers, and finally the administration. "Half of the employees in companies are cross-border commuters, so it can be said that the 'chambres professionnelles' representing companies necessarily represent the interests of cross-border commuters. We are thus the only institution in the country that represents not only Luxembourgers and foreigners, but also border workers."

As a sign of its interest in the border phenomenon, in January 2020, the CES published a noteworthy opinion piece on cross-border work, in which it detailed the scope of this phenomenon and the issues it raises. In particular, it warned of a latent split in the sector and deplored the invisibility of cross-border workers in the public sphere. "These disparities in sectoral representation highlight the need for our political decision-makers to be particularly aware of the need to avoid excessive artificial segregation between resident and even Luxembourg employees and border workers, and to promote, on the contrary, the best possible social cohesion", he argues.

Two years later, Rommes developed the thinking of the committee which drafted this opinion and which he chaired: "We actually have several problems of democratic representation at the level of the whole country. Firstly, because Luxembourgers vote and have a large majority in the civil service, whereas foreigners vote in the private sector. And secondly because we have sectors full of cross-border workers and others with very few. Obviously, in the interest of greater diversity, it would be better to have a little more proportionality in all sectors to avoid an economic risk", as when Luxembourg feared that its neighbours would requisition border workers for their own hospitals.

There is another body that is also supposed to represent border workers: the National Council for Foreigners, created in 1993 and which has had a cross-border workers' commission for at least fifteen years. Entangled in a cumbersome operation – which imposes a quorum of 75 percent for each plenary meeting – and weighed down by the fluctuating attendance of its members, it has had its ups and downs but seems to have got back on its feet in recent years. In particular, it issued an opinion on teleworking from 2019, in which it suggested a threshold of 56 days per year for cross-border workers.

President Munir Ramdedovic does not hide his ambitions. "For the new law on integration, we are going to propose that the CNE should have three border workers, one from each neighbouring country". Until now, only residents were up for election. "Border workers play an important role in the Luxembourg economy. And we are aware that the rights of border workers and residents are not quite the same." As of January, the CNE will appoint three cross-border worker experts who will be able to have a seat within the CNE and even "put subjects concerning border workers on the table".

Politically inaudible

It would therefore be inaccurate to say that the problems encountered by cross-border commuters have no echo among the bodies representing employees, companies or foreigners. However, there is no identified voice speaking for them. This was the observation made by the Chamber of Commerce in 2012 in its note Actuality & Trends No. 12, entitled: "The cross-border influence of the Luxembourg economy: diversity reigns, integration stalls". The professional chamber, whose member companies employ 90,000 people and account for 80 percent of GDP, devoted a whole page to this lack of representation of cross-border workers. "Despite its scale, and in the eyes of the Chamber de Commerce, the public authorities still take too little interest in the cross-border phenomenon", it said at the time, deploring "the fact that cross-border workers are hardly structured as a homogeneous social group".

It suggested that the government should take matters into its own hands and create, for example, a "border commissioner's office which would deal specifically with the problems encountered by border workers". It also mentioned "consultations on issues that directly concern border workers (transport infrastructure, administrative procedures, environment, etc.)." The idea had not been taken up, yet it is still relevant, says Carlo Thelen, director general of the Chamber of Commerce. "A lot of investments have been made since then, in particular the tram, which does not necessarily benefit border workers unless they come from the south to get to Kirchberg, but also the park-and-ride facilities at the border and the tram project to Esch. All this is progressing slowly."

And not all the ideas are unanimous. "The government is thinking about coworking spaces at the borders to save border workers the last ten kilometres to their company, but many members of the Chamber de Commerce have shown mixed interest. Some prefer to have all their employees on site to encourage cross-functional collaboration. Others do it like the Big4." For his part, Carlo Thelen mentions on his blog several companies that would be willing to develop housing on their land to accommodate employees with subsidized rents. "This could both solve the housing problem for employees in general and the mobility problem for cross-border commuters who would no longer be forced to spend hours driving."

It is true that the pandemic has brutally reminded residents – or opened their eyes to the fact – that it is the cross-border workers who keep the Luxembourg economy going, with a vibrant tribute from Prime Minister Xavier Bettel (DP) to the cross-border commuters. Some MEPs even spoke of "heroes". "At the CES we were perfectly aware before the pandemic that border workers are absolutely essential to the country", stresses Rommes, former director of the Association of Banks and Bankers (ABBL) and the Union of Enterprises (UEL). "I believe and hope that the discourse has changed outside as well. It has also put into perspective the rhetoric we used to hear about there being too much growth and border workers clogging the roads."

However, this upheaval did not last as the MPs did not oppose the bill on family allowances promoted by Corinne Cahen (DP), Minister for Family and incidentally also for the Greater Region. The bill is supposed to erase the discriminatory clauses of the 2016 reform, but proposes fundamental changes, leading ultimately to the same result: the exclusion of children of blended families dependent on a cross-borderer. Approved by the Government Council last May, it was tabled on June 1 and is following its legislative course – the Chambers of Employees and Civil Servants have already denounced the continued discrimination against the children of cross-border workers in their respective opinions. "We had hoped that the health crisis would change something, but this bill is going in the wrong direction and cross-border workers will have to go to court again", Delacollette said.

This new failure has led some to imagine another form of representation for cross-border workers. Georges Gondon, from the Belgian association Solidarité Frontaliers Européens, and Pascal Peuvrel, president of the Association des frontaliers au Luxembourg (Afal) on the French side, had already co-founded the Groupement européen d'intérêt économique Frontaliers européens au Luxembourg (European Border Workers in Luxembourg) during the long battle against the reform of the study grants. Gondon wants to go further. "We are seeing the various states turning in on themselves. The states advocate Europe but each one cares about its own electorate. In 2010 Jean-Claude Juncker openly explained that he did not want to export scholarships because it was expensive. Since then, the same logic has continued with the 2016 family allowance reform that excludes non-biological children of cross-border workers." He also criticizes the government's attitude of "stalling" when  cases wait several months to go to court or even to the CJEU.

"I have noticed that we have always confined ourselves to legal work and that we must move on to a political dimension. There is no official structure representing cross-border workers. No one talks about the specificities of cross-border workers such as the organisation of crèches, service vouchers, co-development, incompatibility of transport rates…" Subjects on which cross-border commuters are not heard. "During the CJEU ruling on family allowances, I asked to be received by the minister. In the end, it was the director of the CAE and the minister's first government adviser that I met. They each stated their views but they didn't budge an inch."

The risk of disunity

The next step is to set up an association under Luxembourg law under a cross-border worker banner, with the ambition of becoming the main contact for issues specific to these workers. The model is not unprecedented: in Switzerland, the associations of cross-border workers are regularly received for discussions and even negotiations with the administrations and political representatives of the cantons.

However, the idea does not necessarily please the other employee representative bodies in Luxembourg. "I don't think it's really necessary", says Correia. "Should there be a special council for residents then? This will create more controversy than anything else. For me, the interests of cross-border workers are well defended and represented in Luxembourg through the various trade unions." She stresses that the LCGB's mobilisation at the time of the tax reform had paid off: the Ministry of Finance had modified the threshold of non-luxembourgish income that should not be exceeded for a cross-border worker to remain in tax class 2.

"I don't think that's the solution", says Delacollette. "It is better to bring everyone together and not create a split that will lead to everyone working on their own. He also reminds us that in the eyes of the OGBL, "we should only have one union", in order to "conserve our energy for defending the employees rather than for the social elections" during which each "wants to show that it is better than the others".

Aleba shares the reservations of its counterparts. "A union made up solely of cross-border workers would be shooting itself in the foot", says Mendolia. "And a border union will not have the same political resonance", Jean-Philippe Mansard adds, of the Aleba cross-border workers' commission. The three unions are also highlighting their respective rapprochement with German, Belgian and French unions to better coordinate their fight for cross-border commuters.

The CSL is less political, however, and would not like to see the creation of a chamber or union of border workers. "I think it would be counterproductive", says Hoffmann. "It would create divisions between employees who have the same interests. At the CSL, we never hear that residents are against this or that part of a law. It's really important to stay united."

Finally, the CES is no different. "I think it's a bad idea", says Rommes. "Many of the problems of border residents are problems for everyone. If roads need to be built, that falls under the discussions on the state budget, on regional planning… These are things that should be discussed together and not separately."

The equation is not simple: border workers can certainly suffer from a lack of consideration for their difficulties. Taxation, complicated administrative procedures, discrimination, "these are problems that cross-border workers have to deal with on a daily basis and that residents do not even notice", stresses Delacollette. But do they have more in common with their neighbours in the train or in the traffic jam than with their colleagues at work?

Other issues go beyond this debate and could change the outcome. The demographic evolution of the country may accelerate the political consideration of cross-border workers, as more and more of them are Luxembourgers. "It's sad when a country can no longer accommodate its inhabitants", says Mansard, "It's an exodus. We are creating frontiersmen." He finds himself in that situation. Borderers who, in this case, have the right to vote. And they could become even more numerous if the bill on mortgage loans is adopted, which aims to require a substantial contribution for any property purchase. "The idea is to limit the risk of non-payment, but who can afford to pay 10 or even 20 per cent of the price of a house in cash now that prices are soaring", says Mendolia. "If anything, it would further restrict the number of homeowners and it would force the country to control inflation closely, as is the case in Germany, in order to avoid a surge in rents."

Further, the halt imposed by the pandemic has also caused a shock among cross-border workers. "Some do their calculations and say to themselves that by working close to home, they will have two hours less travel time and a better quality of life for sometimes only 500 euros less." This is good news for Lorraine, Wallonia or the neighbouring Bundesländer, but not for a Luxembourg economy that is always hungry for labour. "Without the cross-border workers, the economy would collapse like a house of cards", says Delacollette.

Whether it likes it or not, the political world has no choice but to take the full measure of this complex but decisive problem for the future of the country – and which will certainly not be solved by continuing to harm one part of the social contributors to the benefit of another.