: 
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
Read
the Archive Version!
Table of Contents
1. Introduction
2.2 Legislative Acts
2.3 Circular Letters
3.3 Case Law
6. Bibliography on Luxembourg 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.
Notaries
and Bailiffs are professionals
who work closely with judges and attorneys-at-law.
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:
· Standardization Products Security Institute
· 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 Chamber of commerce
· 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).