UPDATE: Luxembourg – Description of the Legal System and Legal Research
By Nicolas Henckes
After starting his career as an M&A attorney with Gibson Dunn & Crutcher LLP in Paris, Nicolas Henckes returned to Luxembourg where he became the Personal assistant to the Governor of the Luxembourg Central Bank. Since September 2005, he has managed the Association momentanée Imprimerie Centrale with regard to the public market of the Luxembourg Official Journal (Mémorial). On this basis, he created Legitech in early 2006 for the same shareholders. Nicolas graduated from HEC Paris, before obtaining a graduate degree (D.E.S.S.) in Business Law from the University Paris XI Law school. He also obtained the CEMS MIM awarded by the European leading business schools. Special thanks to Félix Mgbekonye, lawyer at Legitech.
Published December 2009
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Table of Contents
2.2 Legislative Acts
2.3 Circular Letters
3.3 Case Law
Founded in 963, Luxembourg, officially the Grand Duchy of Luxembourg is a small landlocked country in Western Europe, bordered by Belgium, France, and Germany. The country lies on the linguistic divide between Romance Europe and Germanic Europe, borrowing customs from each of the distinct traditions; hence Luxembourg is trilingual. Under the law of 1984 concerning the use of languages, French is the legislative language, as well as an administrative and judicial language, together with Luxemburgish and German. A good percentage of the population also speaks English.
According to November 2008 figures, Luxembourg has a population of 484,000 people (1/3 of which are foreigners) in an area of 2,586 square kilometers (999 square miles). The country is divided into 3 administrative districts (Luxembourg, Diekirch and Grevenmacher), 12 cantons and 116 communes. It has a highly developed economy, with the second highest Gross Domestic Product per capita in the world (U.S. Central Intelligence Agency 2007 estimate).
Luxembourg became formally independent under the London Treaty of 1839. The country is a founding member of the Benelux (1944), International Monetary Fund (1944), World Bank, (1945), the United Nations (1945), the North Atlantic Treaty Organization (1949), the European Union (1956), and the euro area (1999), reflecting the political consensus in favor of economic, political, and military integration. The city of Luxembourg, the capital and largest city, is the seat of several institutions and agencies of the European Union. It is ranked 14th in the Global Financial Centres Index (GFCI). The Legal Observatory of the Luxembourg Financial Sector provides some legal information on the financial sector (not updated on a regular basis).
Luxembourg is a parliamentary representative democracy headed by a constitutional monarch. The Constitution of 1868 (under general reform at the time of writing), organizes a flexible separation of powers between the executive and the parliament, with the judiciary watching over proper execution of laws. An updated and case-law annotated French version of the Luxembourg constitution is available on Legilux.
The executive power is formally exercised by the Grand Duke and in practice by the Government which he appoints on the basis of a proposal made in general by the leader of the party winning the parliamentary election. The Government consists of the Prime Minister and several other ministers. Legislation voted in the Parliament (see below) only becomes law after formal enactment by the Grand Duke. The Grand Duke has no veto power, but has the theoretic power to dissolve the Chamber of Deputies and reinstate a new one. Such power has never been used in practice. The country’s official website and the Government website contain some further information (in French) on Luxembourg and its legal system as well as on the activities of the executive.
Legislative power is vested in the Parliament (Chambre des députés), a unicameral parliament of sixty members, directly elected to five-year terms from four constituencies (Centre, East, North and South). Proposed legislation and questions to the Government are available on the Parliament’s website.
A second body, the State Council (Conseil d'État), composed of twenty-one ordinary citizens appointed by the Grand Duke on proposal by the Parliament, advises the Parliament and the Government in the drafting of legislation. The opinions of the State Council are published on its website.
The Parliament may delegate part of its legislative power to the Grand Duke (though in practice it is delegated to the Government) in areas where it cannot deal with matters in detail. In such case, a law will set out a legislative framework while details of implementation and application are dealt with by grand-ducal Regulation (Règlement/Arrêté grand-ducal) or Ministerial Regulation (Règlement/Arrêté ministériel).
Enacted legislation is published in the official journal (Mémorial A) available on Legilux. Under Mémorial A are laws, grand-ducal and Ministerial Regulations; Mémorial B contains administrative information and C contains Companies and Enterprises information (also available under a different format on Registre de Commerce et de Sociétés). The Legilux website also contains a more or less updated database of codified legislation, a compilation of laws (Relevé analytique du droit luxembourgeois), administrative acts, rules and regulations governing different sectors, and links to other official websites and sources of official documentation.
In the hierarchy of Luxembourg laws, all rules and regulations must be in compliance with laws and the latter must comply with the constitution (and in some cases with supranational regulations such as those issued by the European Union). The compliance of Luxembourg laws with the constitution is examined by the Constitutional Court when such case is referred to it. Other courts examine the compliance of rules and regulations with national laws when requested to do so. For the domains falling under the competence of the European Union, the European legislative framework prevails over Luxembourg laws.
Circular letters are explanatory notices used by some administrative departments to clarify legislation. They have no legislative value per se. They are notably used by the national regulator of the financial sector: the Commission de Surveillance du Secteur Financier as well as by other administrative departments including:
· the Central Bank of Luxembourg,
· administration in charge of VAT and registration and stamp duties, and
· administration in charge of income taxes
Luxembourg is a civil law country. The court system is a two-tier system organized in the form of a pyramid : one branch, the civil and criminal jurisdiction includes three lower tribunals (justices de paix;, in Esch-sur-Alzette, Diekirch, and the city of Luxembourg), two district tribunals (Diekirch and Luxembourg) and a Superior Court of Justice (Luxembourg), which includes the Court of Appeal and the Court of Cassation. The other branch, the administrative jurisdiction, includes an Administrative Tribunal and an Administrative Court. There is also a Constitutional Court, all of which are located in the capital (Luxembourg). Information on the administrative court system and case law are available on the website of the administrative jurisdiction as well as on the website of the Ministry of Justice. Case law regarding social security legislation is available on the site of the social security administration.
The jury trial was abolished in 1814; since then, all trials are conducted by qualified judges.
Attorneys-at-law are trained under the supervision of the ministry of justice. Detailed information on how to become an attorney-at-law in Luxembourg is available on the website of the Ministry of justice as well as on the website of their professional organization called the Luxembourg and Diekirch Bar. Attorneys-at-law have exclusive right of audience in courts and the monopoly of legal counsel in Luxembourg (except for criminal law where it is possible to defend oneself without an attorney, as well as for minor value civil proceedings). They are essentially self-employed and collaborate in firms of different sizes. Many international law firms have branches in Luxembourg.
The number of case law is very limited and there is still no systematic publication of case-law in Luxembourg. The major published case law reporter and digest is the Pasicrisie luxembourgeoise available on CD-ROM. Case law of the administrative jurisdiction from 2002 are available online and case law of the constitutional court are available on the Legilux website under Mémorial A.
With regard to the foreign origins of some legislation, Luxembourg courts on occasion cite French, Belgian or German case law in their decisions.
In addition to the sites mentioned above, free access websites that provide legal information include:
· Inspectorate of Labour and Mines, who ensures proper enforcement of labor laws and regulations,
· Luxembourg National Library Online, which contains legal treaties, reviews and journals
· Luxembourg Tourist Office, which offers general information on the Luxembourg legal system
Some law firms and accounting firms do also offer legal information on Luxembourg and even some translations into English.
NOTE: Official codified legislation can be found online. Paper copies are dated July 2007 to October 2009, depending on the subject matter and legislative activity on each one of them. Regarding case law, except for administrative court decisions, there is no systematic official publication of decisions. There are only private editors publishing what they were able to gather. There is mainly the "Pasicrisie" which is a non profit organization whose members are all judges. There are details in French on their site regarding case law. There is also the "Journal des Tribunaux luxembourgeois" edited by Larcier, 6 times a year. More details in French in their site for selections of case law. There is also Jurisnews, edited by Promoculture. They do not seem to publish on a regular basis a selection of case law. And there is finally the Bulletin d'information judiciaire (BIJ) available only to attorneys (or to those who are friends or family with an attorney) publishing a selection of case law.
In addition to public free access websites mentioned above are some fee-based legal database websites on Luxembourg:
· Legitax, a regularly updated and hyperlinked database on Luxembourg fiscal law and double tax treaties, containing case law, parliamentary documents, circular letters and comments;
· Legiwork, a regularly updated and hyperlinked database on Luxembourg labor law and social security law, containing case law, parliamentary documents and comments;
· Legicorp regularly updated and hyperlinked database on Luxembourg corporate law (including financial sector), containing case law, parliamentary documents, circular letters and comments.
· Legitech, a Luxembourg editor of law books and databases (the two above);
· Editions Saint-Paul, a Luxembourg editor of law books and also of a CD-ROM on income tax in Luxembourg;
· Jurisedit, a database containing mainly case law (Banking law, commercial law, social security and labour law);
· Portalis, a Luxembourg editor of law books;
· Les Pandectes, a Luxembourg editor of law books;
· Codexonline, a source for general legal information. This site offers non-structured information provided by various authors. Publications on this site are not reviewed by the site owners;
· Bruylant, a Belgian editor of law books and reviews who has some paper references on Luxembourg law;
· Kluwer, a Belgian editor of law books, legal news and databases. It has some paper references on Luxembourg law and also a database product called Luxaccount, mainly aimed at accounting professionals (accounting law, fiscal law, labor law, corporate law, etc);
· Larcier, a Belgian editor of law books and reviews who has some paper references on Luxembourg law and also a database product called Strada that contains some documents on Luxembourg law. Larcier recently launched a new publication series;
· Libuf, an online library specialist in law books; and
· Promoculture, an online library specialist in law books.
· Manuel de droit des sociétés – 2008 – Jean-Pierre Winandy – Editions Legitech (detailed corporate law book)
· Luxembourg - Juridique, fiscal, social, comptable - 8e édition 2009- Jean Schaffner - Editions Francis Lefebvre (general introduction to business law in Luxembourg)
· Précis de droit fiscal – 2006 – Jean-Pierre Winandy – Editions Legitech (introduction to fiscal legislation).
· Précis de droit comptable – 2009 – Denis Colin – Editions Legitech (introduction to accounting law).
· Organismes de placement collectif et véhicules d'investissement apparantés en droit luxembourgeois – Claude Kremer and Isabelle Lebbe – Larcier (detailed fund regulation book).