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Luxembourg (2015)

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  • INTRODUCTION (History, purpose of the review and classification of administrative acts, definition of an administrative authority)

    • 1. Main dates in the evolution of the review of administrative acts

      The creation of a complete administrative jurisdictional order, as characterized today in substantive law, was done by stages.

      In 1839, under the influence of the shift in the prevailing doctrine in Belgium, the autonomy of the administrative dispute relative to the legal dispute was not recognized.

      The idea of instituting an autonomous administrative dispute, reserved for a specialised body, was developed by the second Luxembourg Constitution of November 27, 1856, (article 78) and was implemented, inspired by the Dutch example, by the grand-ducal royal decree of June 28, 1857 (which was replaced by the January 16, 1866, law pertaining to organization of the Council of State), which gave this "council" the name of "Council of State."

      The "Litigation Committee" of the Council of State was thus given the prerogative to exercise full court of law in administrative matters. The rules of procedure were introduced by the grand-ducal royal decree of April 24, 1858, which was replaced by the grand-ducal royal order of August 21, 1866.

      Between 1856 and 1939, the Council of State functioned according to the theory known as “restrained justice,” i.e., it was not vested with its own decision- making capacity, in that it could only draw up draft decisions, which were definitively pronounced by the Head of State. This practice remained in place until the law of July 20, 1939, came into effect, which conferred on the Council of State the capacity for "delegated justice," i.e., the capacity to pronounce its own decisions.

      As of January 1, 1997, the Council of State only maintains its advisory function (reform law of July 12, 1996) with respect to legislative bills, and November 7, 1996, law pertaining to organisation of the administrative courts of law (Memorial A 1996, page 2261) instituted an administrative tribunal and an administrative Court which became functional on January 1, 1997, ensuring exhaustive legal protection on the act of authority of the State.

    • 2. Purpose of the review of administrative acts

      The administration is linked to the law and the legislation. The role of the administrative courts is not general-purpose control of the administration but the protection of private individuals’ rights towards the public authority.

      The administrative law courts see two types of contentious appeals: proceedings for annulment and reversals.

      As such, appeals for annulment and reversal characteristically present themselves above all as a "trial in action".

      The contentious appeal is indeed an objective appeal, whose central issue is to decide whether the contested act is legal. Whatever the outcome of the appeal, it will have been preceded by verification of the legality of the act in question. In the event the appeal is rejected, the legality of the act will have been confirmed. On the contrary, if the judge declares the appeal brought before him/her as well-founded, he/she will restore the legality misjudged by the administrative entity and perpetrator of the contested act.
      It is in the manner of rectifying the legality of the contested act that the fundamental distinction resides between annulment proceedings and reversals on appeal.

      In the context of proceedings for annulment, the judge will be limited to declaring the act as being illegal, and it is up to the administration, to which the matter is referred if necessary for a new demand from the constituent, (to which the matter is referred in turn, by transfer, by the administrative court of law) to enact a new act, by learning the lessons from the court order returned, to make the aforementioned act legal. The judge has no other function than that of judge.

      In the context of reversal on appeal, the judge not only will declare the act illegal, but as well will place him/herself in lieu of the administration to rectify the initial defects of the act. He/she will act at both as judge and administrative authority.

      The position of the constituent is thus more favourable in the context of reversal on appeal, since, in the event of the success of his/her claims; the administrative judge will play a more extensive role.

      However, in the logic of a separation of judiciary and administrative capacities, it is logical that reversal on appeal be limited to cases expressly envisaged by the law.

    • 3. Definition of an administrative authority

      It is a fact that the law of November 7, 1996, on organisation of the administrative courts of law does not include any definition of the concept of "administrative act" nor of “administration.” any more than the earlier legislation.

      First and foremost, the criterion implemented is based on the theory of the organ.

      The State of the Grand Duchy of Luxembourg, as well as the communes, are considered to be administrative entities by nature, on the condition, however, that, for the State of the Grand Duchy of Luxembourg, the capacities exercised concern executive power, and not legislative power (texts voted by the House of Commons, whose dispute is allocated to the constitutional Court) or judicial power.

      Decisions returned by publicly-owned establishments or people exercising prerogatives of judiciary power are also likely grounds for appeal before the administrative courts of law.

    • 4. Classification of administrative acts

      The actions of the administration are distinguished as follows:

      There is a type of act which, although covering all the criteria of an administrative act, is not likely to be a submission for legal settlement: they are the acts of government. In addition, it is advisable to distinguish between individual decisions and acts of statutory character.




      • 21. Preconditions of access to the courts

        In the context of an administrative act in an individual matter, the person responsible always has the possibility (but not the obligation) to make an application for an ex gratia settlement before the introduction of an appeal before the administrative judge, which is addressed to the administration which put forward the first decision.

        The introduction of this appeal is thus not a condition of admissibility of the appeal and the administration is free to answer it, to confirm its earlier decision or to put forward a new decision.

        The introduction of this appeal suspends the initial delay of appeal as a first stage, the details regarding this suspensive delay and its implications go beyond the scope of this questionnaire. In rather rare cases, the Luxembourg system also envisages the possibility of hierarchical appeal which must obligatorily be introduced before filing of the contentious appeal.

        With regard to tax law (direct State taxes), a taxpayer is nevertheless under obligation to submit disputes to the director of Tax Authorities beforehand.

      • 22. Right to bring a case before the court

        Any natural person or legal entity of private or public law, as well as the communes and other communities equipped with administrative autonomy and a legal figure, can lodge an appeal before the administrative court. With regard to legal entities, certain limitations exist concerning their interest to act or a possible system of approval (envisaged by article 7 of the law of 1996).

      • 23. Admissibility conditions

        The condition for admissibility of appeal, whether it is appeal for annulment or reversal, is that the applicant emphasises that his/her rights are infringed upon by an individual administrative act, or by the lawful administrative act in question, or by the refusal or the abstention to enact it. "To assert one’s rights" means that the possibility of violation of subjective right exists at the time of presentation of the appeal. The court of law speaks about an interest to act which must be personal, distinct from the general interest, direct, innate, and current. In addition, this interest must be legitimate.

      • 24. Time limits to apply to the courts

        Action for annulment must in theory be brought about within a three-month delay as from notification of the decision.

        In the context of appeal for reversal, the law fixes a specific time which is often 40 days starting from notification of the individual administrative act.

        The parties must be advised in writing of possibilities of appeal offered, since lack of this notification will prevent deadlines from taking effect.

        The deadline runs from the day which coincides with the notification and expires at the end of the last day. If a deadline expires on a Saturday, a Sunday, or a public holiday, the last day for the deadline will then be the first business day which follows.

        As the deadlines are very often expressed in calendar months, the last day to propose a deadline falls due on the same day and date as the day of the decision from which the deadline ran.

        If a person did not respect the deadline through no fault of their own, the court can grant a release of debarment.

      • 25. Administrative acts excluded from judicial review

        A general principle of law guarantees that all litigations of public law are subject to control by judges.

        A jurisprudence of the Council of State was able to accept that for appeal to be declared admissible, it was not sufficient that it undertake a decision for grievance, but it must not constitute an "act of government" all the same (the "Mangin" decree of January 20, 1876, Pasicrisie volume I, page 113), or, in more current terms, "does not overlook jurisdictional control from the Council of State" (the "Wittgreen" decrees n° 8374 and 8446 of February 19, 1991, by the Council of State).

        Incorporation in Luxembourg law of the original French theory of the act of government ("Laffitte" decree of May 1, 1822, by the French Council of State) was not only carried out with much more reserve than in France, but even more so, saw its field of application restricted over the course of time.

        In that way it was believed that the only type of act which could finally be part of this category of the acts of government were the relations of Grand- Duke with a foreign State (solution drawn from the "Weber" decree of April 26, 1933, published in the Pasicrisie, volume XIII, page 108).

        Setting up a new administrative court of law order did not in any way modify the issue, since the administrative Court also refers to the theory of act of government.

      • 26. Screening procedures

        No procedure for appeal filtering exists, either on first hearing or on appeal; all of this obviously being subject to the admissibility of the appeal.

      • 27. Form of application

        The introductory request for a first hearing must be in writing, containing a summary of the facts and means invoked, and include the subject of the request. No specific formality is required.

      • 28. Possibility of bringing proceedings via information technologies

        It is mandatory that the appeals be submitted at the office of the clerk of the administrative courts in hard copy format. It is not possible to submit the appeals electronically at present.
        However, there are plans for a bill to authorise the electronic submission of subsequent statements of case and documents. This bill is yet to be passed.

      • 29. Court fees

        A deposit is not required on presentation of the request and other appeals. The administrative judge will only make a pronouncement about court expenses in his/her final decision.

      • 30. Compulsory representation

        In order for a petition before the administrative tribunal or an act of appeal to be brought before the administrative Court, representation by an lawyer is an obligation under penalty of inadmissibility.

        One of the rare exceptions exists in the tax field where, upon the first hearing (but not on appeal) the introductory request for a hearing can be signed by the claimant or his/her proxy (another exception can be found regarding elections).

      • 31. Legal aid

        The Grand-ducal ruling of September 18, 1995, concerning legal aid provides that persons considered as having insufficient income as well as persons who live communally with such a beneficiary are those benefiting from a guaranteed minimum income. They are regarded as people whose resources are insufficient, and whose income and means were taken into account to determine the guaranteed minimum income.

        Those persons who, without benefiting from the guaranteed minimum income, but however finding themselves in a situation of income and means such as they would have the right to attribution of the guaranteed minimum income, are also regarded as persons whose resources are insufficient.

        Legal aid includes the cost of lawyer’s fees and all court expenses and is granted by decision of the President of the Bar for the Council of the Order of lawyers.

      • 32. Fine for abusive or unjustified applications

        Abusive and unjustified appeal is not sanctioned by a fine given that the administrative court of law can always grant a compensation for proceedings to a party before the court.


      • 33. Fundamental principles of the main trial

        The fundamental principles which govern the trial and the course of the legal procedure are fixed by the law of June 21, 1999, and, in addition by the New Civil Procedure Code, which is applicable in administrative procedures once the "lex specialis", which is the ruling for proceedings of June 21, 1999, does not expressly derogate from the "lex generalis", which is the New Civil Procedure Code.

        The trial before the administrative court of law can be regarded as governed by the principle for an inquisitorial type of procedure, and the collaboration of parties (the concept “inquisitorial" must nevertheless be approached in a "mild" sense). The claimant is requested to indicate the material elements and evidence which may help motivate the procedure.

        The defendant and the other parties may discuss the conclusions of the claimant and, for their part, present offers of evidence.

        The administrative court of law can urge the parties to establish the facts on the basis of their claims (obligation to participate). If in spite of the participation of the parties, questions that are necessary to making a ruling remain unanswered, the administrative court of law can clarify these facts even without offers of evidence by ordering a visit of the premises, for example (principle of official action).

        The introduction of and the motivation for appeal, as well as the response of the parties, are exercised by means of statements of case (in theory two for each party, the introduction of appeal on this subject being equivalent to the first report) and presentation of the conclusive administrative files which are the subject of oral debates.

        It should nevertheless be specified that the procedure is primarily written and that new methods are not allowed during debates, except for the official method invoked by the administrative court of law.

      • 34. Judicial impartiality

        The members of the administrative courts of law cannot, directly or indirectly, have individual discussions with the parties or their lawyers or defenders about the disputes which are subject to their decision.

        No member can sit on cases connected with the application of legal or lawful provisions, the subject of which he/she has taken part either in its drawing up in whatever capacity, or in the deliberations of the Council of State.

        The members of the administrative courts of law cannot deliberate, sit, or decide on any case in which they themselves, or their immediate family or close relatives up to and including the fourth degree, have a personal interest.

        They cannot sit, decide, or take part in deliberations on cases which they have already known in a quality other than that as a member of the Court or tribunal.

        The members of the administrative courts of law can moreover be challenged for causes according to methods indicated in related provisions for the code of civil procedure.

        Furthermore, members of administrative courts of law cannot exercise a whole series of functions.

      • 35. Possibility to rely on the new legal arguments in the course of proceedings

        During the hearing before the administrative tribunal and the administrative Court, the claimant can invoke new facts as new means of action and defence during the written phase (statement of case).

      • 36. Persons allowed to intervene during the main hearing

        When the administrative court of law concludes it is necessary to order an intervention, it regulates the form and deadlines from which to proceed. Furthermore, people showing an interest in the outcome of the litigation can voluntarily intervene by request, and the other parties are notified. An intervention is no longer admissible once the recording judge has begun his/her report in a public hearing.

      • 37. Existence and role of the representative of the State (“ministère public”) in administrative cases

        The intervention of a public ministry is not allowed by the texts in force.

      • 38. Existence of an institution or a person with a role analogous to the French "Commissaire du gouvernement"

        If the Government representative had quite often played the role of "Government commissioner" within the Council of State before the intervention of the law of 1996, this is no longer the case since the introduction of the new administrative courts of law in 1997.

      • 39. Termination of court proceedings before the final judgment

        Without a court order, the administrative trial ends by a withdrawal or a request for annulment during the hearing. Withdrawal can be made by an act signed by the plaintiff or his/her proxy, and communicated to the opposing party, and third party concerned. It automatically entails forfeiture of appeal and an obligation to pay the expenses of the hearing.

      • 40. Role of the court registry in serving procedural documents

        The clerk's office service for the administrative courts of law transmits the reports from one party to the other party concerned in so far as the State is implicated in a case.

        For the other files, the implicated party must carry out the notification of the introductory request for a hearing through a bailiff and the subsequent reports according to rules specified in the New Civil Procedure Code (thus by a bailiff or transmission from lawyer to lawyer).

      • 41. Duty to provide evidence

        The search for factual elements forming the basis for litigation is incumbent on the parties, who can introduce proposals for evidence given the understanding that the administrative judge is free to order such investigation or measures for an enquiry which he/she considers useful.

      • 42. Form of the hearing

        The oral debates are public. During oral debates, the parties either expose and justify their petitions, or limit themselves to referring to their notes.

        The hearing can take place in camera (in the council chambers) in rare cases such as investigation or at the time of a request tending to obtain a statement of an incurred forfeiture. The oral debates begin with a call for the case and the appearance of the parties by their proxies. The recorder exposes the state of litigation. Only the proxies of parties having left written reports within the legal deadline are granted the possibility of expressing their point of view.

        An additional report can be required by the administrative court of law should it consider not to have been enlightened on the law sufficiently.

        The administrative court of law cannot rule on an officially-raised means without having invited the parties to present their observations beforehand.

        Party to the procedure are the claimant, the defendant, and failing this, a third concerned party.

        The chairman closes the oral debates.

      • 43. Judicial deliberation

        After closure of the oral debates, the judges withdraw to deliberate. Deliberation begins with an assessment of facts and of the legal situation and ends in a vote.

        Aside from judges named to rule on the case, no person has the right to participate at the deliberation.

        Only a legally fixed number of qualified judges according to the distribution of their functions are nominated to rule and deliberate. The deliberation and vote are a matter of secrecy.



      • 51. Authority of the judgment. Res judicata, stare decisis

        The judgement binds only the parties and their beneficiaries, regarding the object of litigation. If the state of the facts and legal situation are unchanged, the administrative authority which succumbed is not authorised to decree a new administrative act towards the person concerned without taking into account the reasons for disapproval of the administrative court of law towards this act.

        This decision does not concern all, but is limited to the hearing in progress and cannot be extended to other hearings in which similar legal difficulties arise.

      • 52. Powers of the court in limiting the effects of judgment in time

        The judge cannot place a time limit on the effects of a judgement he/she has made.

      • 53. Right to the execution of judgment

        The carrying out of decisions by administrative courts of law is regulated by article 84 of the law of November 7, 1996, which is composed as follows:

        When in the event of annulment or of reversal of an administrative decision which is not reserved by the Constitution for a determined body, and following by dint of a judged thing, the court of law having annulled or having reversed the decision has returned the case before the competent authority, which omits taking a decision while conforming to the judgement or the decree, the interested party can, before the expiry of a three-month deadline from the pronounced decree or judgement, complain to the court of law which returned the case in view of charging a special commissioner with taking a decision in lieu and place of the proper authority and at their own expense. The court of law fixes a deadline within which the special commissioner must complete the task.

        The special commissioner nomination denies the competent authority of court of law. The administrative judge does not have power of injunction as regards execution of his/her decision.

        The case of execution of a decision by a private individual is not posed in a Luxembourg administrative legal dispute, since the administrative courts of law are only qualified to analyse the legality or validity of administrative decisions, so as to control action of the administration only.

      • 54. Recent efforts to reduce the length of court proceedings

        The amended law of 21 June 1999 on the procedure of the administrative courts contains provisions that aim to avoid undue delays.

        Thus, following the submission of the application initiating proceedings, the defendant and the third-party concerned should respond by submitting the statement of case within a period of 3 months. Later, the applicant can respond by submitting a statement of case within one month, after the submission of the response, and the defendant and the third-party concerned again have a period of one month to submit a rejoinder.
        Then, the case is pleaded at a hearing of the administrative tribunal, approx. 2 months after the rejoinder has been submitted, and the administrative tribunal gives its ruling approx. a month after the oral arguments.

        On appeal, following the submission of the petition for appeal, the respondent must respond by submitting his/her/its statement of case within one month. Later, the appellant can respond by submitting a statement of case within one month, after the submission of the response, and the respondent again has a period of one month to submit a rejoinder. Then, the case is pleaded at a hearing of the Administrative court, approx. one month after the rejoinder has been submitted, and the ruling is given approx. a month after the oral arguments.

        Consequently, the first proceedings before the administrative tribunal last approx. 8 months and the second proceedings before the administrative court last approx. 5 months.
        In order to avoid the cases being deliberated upon for too long, there being no date indicated for the delivery of the decision when the matter is taken under advisement, a bill, which should be passed shortly, states that the decision should be delivered in a period of 2 months after the matter has been taken under advisement, unless there are exceptional circumstances which should be justified by the reporting magistrate of the case.



      • 57. Existence of emergency and/or summary proceedings

        a) In Luxembourg administrative law, appeal does not have a suspensive effect, except for certain types of decisions rendered regarding right of asylum, restrictively listed by the law, if it is not otherwise ordered by the chairman of the tribunal or replacing judge.

        This stay of execution can be decreed only on the double condition that, on the one hand, execution of the contested decision risks causing the claimant serious and definitive harm, and, on the other hand, the means invoked with the support of the appeal directed against the decision appear serious. The deferment is rejected if the case is ready to be pleaded and decided in the short term.

        The demand for a stay of execution is to be presented by distinct request addressed to the chairman of the tribunal and must meet the conditions planned for any appeal before the administrative courts of law.

        The defendant and interested third party are convened by the clerk's office. The procedure is oral. The case is pled at the hearing to which the parties were convened. The chairman ensures that the defendant and interested third party received the convocation. On justified request of the parties, it can grant a remission.

        The chairman’s ordinance is enforceable as of its notification. It is not susceptible to any grounds for appeal. Its effects cease once the tribunal has decided the main point or a portion of the main point.

        The judge adjudicating in a request with suspensive effect of appeal can no longer decide in the matter.

        b) When a request for annulment or reversal is referred to the administrative tribunal, the chairman or replacing magistrate can provisionally order all necessary measures so as to safeguard the interests of the parties or people who have an interest in solving the case, other than measures having civil laws as subject matter.

        The request is set up as a preliminary enquiry and judged according to the procedure described in item a).

      • 58. Requests eligible for the emergency and/or summary proceedings

        see answer 57.

      • 59. Kinds of summary proceedings

        There are no differing types of summary procedure, with the exception of the distinction raised under items 57, 58a) and 58b) above.

        The legislation for summary procedures is identical for litigations of private individuals and for litigations of communities for public law.


    • 60. Role of administrative authorities in the settlement of administrative disputes

      In the context of an application for an ex-gratia settlement, the administration can always re-examine the legality and appropriateness of an administrative act. In addition, it can always take a new decision during proceedings.

    • 61. Role of independent non-judicial bodies in the settlement of administrative disputes

      Appointed by a law of August 22, 2003, the first mediator of the Grand Duchy of Luxembourg, attached to the House of Commons, took up duty on January 1, 2004.

      He/she is qualified to receive complaints regarding State functions and communes, as well as publicly-owned establishments relevant to the Grand Duchy State and communes.

      Any person or legal private entity may complain to the mediator when suitable steps at the administrative level concerned have been taken beforehand.

      Claims addressed to the mediator do not interrupt deadlines for contentious appeal.

      The mediator cannot intervene in a procedure initiated before a court of law, or call into question the validity of a court order.

      The action of the mediator rests on his/her capacity for persuasion and the possibility of proceeding with publication of decisions made.

      If the administrative authority remains reticent, the mediator will no longer be able to undertake anything at all.

    • 62. Alternative dispute resolution

      In Luxembourg administrative law there is no legally permitted arbitration procedure.