The Legal System and Legal Research in Luxembourg

By Laurence Raphael and Nicolas Henckes

After starting her career as a legal adviser at the Publications Office of the European Union in Luxembourg, Laurence Raphael joined Legitech as the Legal Manager in 2006 until becoming its C.E.O in 2013. She is now Head of Legal Affairs at the Luxembourg Trade Confederation (Confédération luxembourgeoise du commerce), an employers’ organization. Laurence holds a graduate degree (D.E.A.) in Public and International law. Special thanks to Nicolas Henckes, former C.E.O. at Legitech, now Director of the Luxembourg Trade Confederation 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. From 2005 on, he managed the Association momentanée Imprimerie Centrale regarding the public market of the Luxembourg Official Journal (Mémorial). On this basis, he created Legitech in early 2006 for the same shareholders. Starting in 2013, he became the Secretary General of the Union des Entreprises Luxembourgeoises – UEL (National Employers’ Organization). 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 May/June 2020

(Previously updated by Nicolas Henckes in December 2009 and June/July 2013, and by Laurence Raphael in June/July 2015)

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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 January 2019 figures, Luxembourg has a population of 613,814 people (47.5% 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 102 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 according to the U.S. Central Intelligence Agency 2019 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 2019 report, it is ranked 30th 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, the official online legislative database.

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 also in English and German, and increasingly in Luxemburgish) 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 (only in French). The second body is the State Council (Conseil d’État). It is 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 the State Council 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. All Companies and Enterprises information is available on the Luxembourg Business Register website. Before 2016, this information was published under Memorial C in extenso or in extract. Its archives may be consulted on the Legilux website. Since 2016, the paper version of the official journal has been replaced by an electronic publication. This electronic version is now the only authentic instrument and has legal effect. The Legilux website also contains a more or less updated database of codified legislation, a compilation of laws, 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 comply 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:

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 Accident Insurance Association (AAA), a public institution responsible for the prevention and compensation of accidents at work, commuting accidents and occupational diseases.

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, 11 Master degrees, 3 Bachelor degrees and 3 professional programs as well as two Doctoral Schools to over 2,700 students. Academic staff from 18 different nationalities teach at the Faculty, supported by practitioners from the field, visiting scholars and guest professors.

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. Case law is thus spread over various official websites of Luxembourg administrations and/or Ministries. The major published case law source is offered by a privately-owned legal publisher called Legitech on a fee-based database (Lexnow). The historic and semi-official case-law reporter and digest is the Pasicrisie luxembourgeoise available on paper and in electronic format (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 available online and also on the Legilux website under Mémorial A.

In addition to all these sources, there are also:

  • Law reviews published by Legitech and dealing with various legal matters (on subscription only).
  • 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, 4 times a year examines 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.

Regarding 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:

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:

  • Lexnow, a regularly updated and hyperlinked database on Luxembourg fiscal (including double tax treaties), labor and corporate law, containing case law, parliamentary documents, circular letters and comments.
  • Legitech, a Luxembourg editor of law books and database (see 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.
  • Jurisedit, a database containing mainly case law (Banking law, commercial law, social security and labour law).
  • Portalis, a Luxembourg editor of law books.
  • 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

Since 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 (Lëtzebuerger Rechts Informations System). This database is regularly updated by the researchers. It aims at collecting every (new or classic) bibliographic reference of Luxembourg legal doctrine, published in Luxembourg or abroad. The results can be exported in several forms.

Of a particular interest is the Luxembourg Business Law Book – 2015 –Legitech Edition (main business, finance and tax laws translated into US English) (not up to date).