UPDATE: Luxembourg – Description of the Legal System and Legal Research

 

By Nicolas Henckes

UPDATE by Laurence Raphael

 

After starting her career as a legal adviser at the Publications Office of the European Union in Luxembourg, Laurence Raphael followed this with a term at Arendt LLP Luxembourg. She joined Legitech as the Legal Manager in 2006 and rose through the ranks until becoming its C.E.O in 2013. Laurence holds a graduate degree (D.E.A.) in Public and International law. Special thanks to Nicolas Henckes, former C.E.O. at Legitech, for his collaboration on the previous version of this article.

 

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. Presently he is Secrétaire Général, Union des Entreprises Luxembourgeoises – UEL. 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 for his collaboration on the first version of this article.

 

Published July 2015

(Previously updated on December 2009 and June/July 2013 )

See the Archive Version

 

Table of Contents

1.         Introduction

2.        The Legal System

2.1.          Executive Regulations

2.2.         Legislative Acts

2.3.         Circular Letters

3.        The Court System

3.1.          The Jurisdictions

3.2.         The Legal Profession

3.3.         Case Law

4.        Free Documentation

5.        Fee-Based Legal Databases and Legal Publishers Active on the Luxembourg Market

6.        Bibliography on Luxembourg Law

 

1.      Introduction

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 these distinct traditions; hence Luxembourg is trilingual. Under the law of 1984 concerning the use of languages, French is the legislative language. Together with Luxembourgish and German, French is also an administrative and judicial language. A good percentage of the population also speaks English. 

 

According to February 2011 figures , Luxembourg has a population of 512,000 people (43% of which are foreigners) in an area of 2,586 square kilometers (999 square mi les). In 2015, Luxembourg’s population is estimated at more than 563,000 people with 45% of its residents being foreigners. The country is divided into 3 administrative districts (Luxembourg, Diekirch and Grevenmacher), 12 cantons and 105 communes. It has a highly developed economy, its GDP per capita ranks among the highest in the world and it has the highest GDP per capita in the Euro zone (U.S. Central Intelligence Agency 2013 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 (1957), 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. According to the March 2015 repor t, it is ranked 17 th in the Global Financial Centres Index (GFCI). The Agency for the Development of the Financial Centre, aka “ Luxembourg for Finance promotes the expertise of the financial centre and the diversification of its services abroad and provides some legal information on the financial sector (not updated on a regular basis).

 

2.      The Legal System

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 .

 

2.1.    Executive Regulations

The executive power is formally exercised by the Grand Duke . In practice, the Government which he appoints is made on the basis of a proposal delivered 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 further information (in French, but increasingly also in English) on Luxembourg and its legal system as well as on the activities of the executive.

 

2.2.   Legislative Acts

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 cases, 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 " which is available on Legilux . Under Mémorial A laws, grand-ducal Regulations and Ministerial Regulations are announced; Mémorial B contains administrative information and Mémorial 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.

 

2.3.   Circular Letters

Circular letters are explanatory notices used by some administrative departments to clarify legislation. They have no legal value per se . They are notably used by the national regulator of the financial sector, aka 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 .

 

3.      The Court System

 

3.1.    The Jurisdictions

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 Supreme Court of Justice (Luxembourg), which includes the Public Prosecutor's Office, 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 (see above), all of which are located in the capital (Luxembourg City). Information on the national court organization and case law are available on the website of the Public Prosecutor's Office . 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.

 

3.2.   The Legal Profession

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.

 

Notaries and Bailiffs are professionals who work closely with judges and attorneys-at-law.

 

Prior to 2003, Luxembourg students used to go abroad to study as Luxembourg had no university of its own. Founded in 2003, the University of Luxembourg is the first and only university of the Grand Duchy of Luxembourg. Among others, it consists of a Faculty of Law, Economics and Finance (FDEF), which offers a full curriculum with 2 Doctoral Schools, 8 Master degrees, 3 Bachelor degrees and 3 professional programmes.

 

3.3.   Case Law

The number of case laws is very limited, and there is still no systematic publication for civil and commercial case-law in Luxembourg. The major published case law source is offered by a privately owned legal publisher called Legitech on three fee-based databases ( Legitax , Legiwork and Legicorp ). The historic and semi-official case-law reporter and digest is the Pasicrisie luxembourgeoise available on paper and on CD-ROM (the Pasicrisie is a nonprofit organization whose members are either law professors or judges). Case law is made more and more available online by the Public prosecutor’s office, but it remains limited. For the Cour de cassation , you can find more decisions on Juricaf . Case law of the constitutional court is also available on the Legilux website under Mémorial A.

 

In addition to all these sources, there are also:

 

       the " Journal des Tribunaux luxembourgeois " edited by Larcier Promoculture, 6 times a year. More details in French in their site for selections of case law.

       Jurisnews, also edited by Larcier Promoculture. They do not seem to publish on a regular basis a selection of case law.

       And 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.

 

With regard to the foreign origins of some legislation, Luxembourg courts on occasion cite French, Belgian or German case law in their decisions.

 

4.      Free Documentation

In addition to the sites mentioned above, free access websites that provide legal information include:

 

•       Quality portal

•       Inspectorate of Labour and Mines , which ensures proper enforcement of labor laws and regulations

•       Luxembourg National Library Online , which contains legal treaties, reviews and journals

•       Luxembourg Chamber of Commerce

•       Luxembourg Tourist Office , which offers general information on the Luxembourg legal system

•       Business Portal “ Guichet ” provides citizens with administrative information and procedures based on the national legislation and on the regulations linked to the info sheets

•       Legitech a website that pushes legal information, news and blog (new site by September)

 

Some law firms and accounting firms do also offer legal information on Luxembourg and even some translations into English.

 

5.      Fee-Based Legal Databases and Legal Publishers Active on the Luxembourg Market

In addition to public free access websites mentioned above there are some fee-based legal database websites on Luxembourg along with a list of legal publishers:

 

•       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 , a 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 three above);

•       Larcier Promoculture , a Belgian editor of law books and reviews who has acquired the Luxembourg legal publisher Promoculture in 2012, after acquiring the Belgian legal publisher Bruylant in 2011. They also offer a database product called Strada that contains some documents on Luxembourg law;

•       Editions Saint-Paul , a Luxembourg editor of law books;

•       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;

•       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.);

•       Libuf , an online library specialist in law books;

•       Incidentally, Association luxembourgeoise des juristes de droit bancaire (ALJB) publishes its own finance and banking law review, twice a year, distributed only to its members.

 

6.      Bibliography on Luxembourg Law

Recently (as of December 2014), the research unit in Law of the Faculty of Law, Economics and Finance has launched a free of charge search engine for Luxembourgish legal doctrine called LERIS (Lëtzeburger Rechts Informations System). This database is regularly updated by the researchers.

 

It aims at collecting every (new or classic) bibliographic reference of Luxembourg Law doctrine, published in Luxembourg or abroad. The results can be exported in several forms.

 

Of particular note is the Luxembourg Business Law Book 2014 Editions Legitech (main business, finance and tax laws translated into US English).