Service of documents: official transmission of legal documents

1 What does the legal term "service of documents" mean in practical terms? Why are there specific rules regarding the "service of documents"?

In Luxembourg, service of documents (in French “notification”) is a general term for the various procedures by which a document is brought to the addressee’s attention.

Service by bailiff (in French “signification”) refers to the specific procedure whereby the document is served in person by a bailiff at the address of the document’s addressee.

Most documents are served by registered letter with a form for acknowledgement of receipt.

Service by bailiff offers more guarantees than service by post. The law therefore requires that the most important procedural documents are served by bailiff.

However, as regards justice of the peace courts, summonses are always sent by registered letter. Depending on the type of procedure, the summons is issued either by the court registry or by a bailiff. In the latter case, therefore, the bailiff also serves the document by post and not in person.

Service by bailiff is usually required to mark the start of time-limits for appeals against court judgments. As an exception, time-limits for appeals against decisions of courts of first instance in relation to leases and labour law start when the judgment is served by the court registry.

2 Which documents need to be served formally?

Most procedural documents must be served before they can be given to the judge.

The law particularly requires the service of documents instituting proceedings that summon the defendant to appear before a judge either in person or through a lawyer.

Judgments must also be served in order to acquire the force of res judicata on expiry of the time-limits for appeal.

3 Who is responsible for serving a document?

In Luxembourg, only bailiffs can serve documents.

In most cases, service by bailiff is essential in order for a case to be brought before a court. Once the judgment has been delivered, a bailiff must again be called upon to serve the judgment on the losing party. This marks the start of the time-limit for appeal. If no appeal is lodged within the time-limit, the judgment becomes final. If the losing party wishes to appeal, the notice of appeal must be served by a bailiff.

However, the law makes certain exceptions to the bailiffs’ monopoly on service. As regards justice of the peace courts in particular, many proceedings are instituted by filing a request addressed to the competent court. The court registry then serves the parties with a summons to the hearing, attaching a copy of the request addressed to the judge. This procedure applies in particular in relation to leases, but also in matters concerning labour law and payment orders.

Summonses are also served by the court registry in certain district court proceedings, in particular those falling under the jurisdiction of the presiding judge of the court.

Lawyers are not authorised to serve documents directly on litigants. They must use a bailiff in order for the service to be valid. However, the situation changes once the trial has started and each party is represented by a lawyer. From this point onwards, procedural documents as well as documentary evidence can be validly exchanged using the procedure for service between lawyers, which in this case involves no specific formalities. It is customary for lawyers to instantly acknowledge receipt of a document served in this way.

4 Address inquiries

4.1 Under Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters, does the requested authority in this Member State on its own initiative, try and establish the whereabouts of the addressee of the documents to be served if the addressee no longer resides at the address known to the requesting authority?

In Luxembourg, the receiving agencies designated under Article 2(2) of Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters are the bailiffs with territorial jurisdiction.

Bailiffs are required by law to serve documents on the addressee in person or at the latter’s home address, or at the registered office of the addressee.

In order to carry out their tasks, bailiffs are authorised to access the following information:

• Natural persons:
  • Surname, forenames
  • Home address
  • Date of birth

This information can be found in the register of natural persons, to which bailiffs therefore have access in order to carry out their tasks.

• Companies:
  • Name
  • Trading name
  • Registered office
  • Trade register number

With regard to companies registered in the trade and companies register, this information is publicly available and therefore freely accessible.

4.2 Do foreign judicial authorities and/or parties to judicial proceedings have access to registers or services in this Member State enabling the establishment of the person’s current address? If yes, which registers or services exist and what procedure must be followed? What fee, if any, should be paid?

Foreign judicial authorities and/or parties to judicial proceedings cannot access the register of natural persons in order to discover the address of a natural person.

With regard to companies registered in the trade and companies register, the basic information (registered office, trading name, trade register number) is available to the public free of charge. Access to more detailed information is subject to a fee.

4.3 How do the authorities in this Member State deal with a request sent under the Council Regulation (EC) No. 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters aimed at discovering a person’s current address?

To discover the current address of a natural person in relation to a request sent under Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters, the requested judicial authority searches the national register of natural persons. In the case of legal persons, the database of the trade and companies register (Registre de Commerce et des Sociétés – RCS) is searched.

5 How is the document normally served in practice? Are there alternative methods which may be used (other than substituted service referred to in point 7 below)?

• Summary of the procedure for service by post

Most documents are served by registered letter with a form for acknowledgement of receipt.

If the postal worker finds the addressee at the address, he asks him to sign the acknowledgement of receipt, which is then returned to the sender. If the addressee refuses to sign the acknowledgement of receipt, the postal worker records this refusal and the document is regarded as having been served.

If the addressee cannot be found, but another person accepts the registered letter, the postal worker records this person’s identity on the acknowledgement of receipt. In most cases, service of a document on a third party is not as good as service on the addressee.

If no one can be found at the address, but it is correct, the postal worker leaves a notice in the letterbox asking the addressee to collect the letter from the post office within a time-limit specified in the notice. The document is then regarded as having been served, even if the addressee does not go to the post office.

If the address cannot be found, the postal worker returns the letter to the sender and reports that the document has not been served. In this case, a new address must be provided by the applicant. If the addressee has no known address, the applicant can waive serving the document by post and ask a bailiff to serve this, if necessary with a record of the search.

This procedure for service of documents applies only if the addressee is resident in Luxembourg. If the addressee is resident abroad, the document must be served by bailiff.

• Summary of the procedure for service by bailiff

Service by bailiff involves the document being served on the addressee in person at any place where the bailiff finds him.

The bailiff usually goes to the addressee’s home address. However, the document can be served at any place where the bailiff finds the addressee, for example at his place of work.

The document is regarded as having been served in person when the copy is delivered into the hands of the addressee. In the case of a legal person, the document is regarded as having been served in person when the copy is delivered to its legal representative, attorney or any other person authorised for this purpose. In the case of service at an address for service, the document is regarded as having been served in person when the copy is given to the agent.
If the addressee accepts the copy, the bailiff records this in the notice of service. In this case, the document is regarded as having been served on the date when it was given to the addressee.

If the addressee refuses to accept the copy, the bailiff records this in the notice of service. In this case, the document is regarded as having been served on the date of presentation to the addressee.

If the bailiff finds the addressee at his address, he gives him a certified copy of the document. He draws up a record of service of the document, which is attached to the original document. Both the latter and the record of service are then returned to the person initiating the service.

No alternative methods may be used other than substituted service referred to in point 7 below.

6 Is electronic service of documents (service of judicial or extrajudicial documents through remote means of electronic communication, such as e-mail, internet based secured application, fax, sms etc.) permitted in civil proceedings? If so, for which types of proceedings is this method foreseen? Are there restrictions with regard to the availability/access of this method of service of documents depending on who the addressee is (legal professional, legal person, company or other business actor, etc.)?

Electronic service of documents is not permitted by the New Code of Civil Procedure (Nouveau Code de Procédure Civile).

7 'Substituted' service

7.1 Does the law of this Member State allow for other methods of service in cases where it has not been possible to serve the documents to the addressee (e.g. notification to the home address, to the bailiff office, by postal service, or by poster advertising)?

Service by bailiff to home address

If the document cannot be served on the addressee in person, the copy is delivered to the latter’s home address. If the addressee does not live there or has no home address, the copy is delivered to his main residence. In the case of a legal person, the document is served at its registered office or administrative establishment.

The copy is given to anyone there, provided that this person accepts the document, states his surname, forenames, capacity and address, and gives a receipt. It is delivered in a sealed envelope bearing only the surname, forenames, capacity and address of the addressee, with the bailiff’s stamp over the envelope’s seal.

The copy cannot be given to a child under the age of 15 or to the person having requested service of the document.

The bailiff leaves, either at the home address or main residence of the addressee or at the registered office or administrative establishment of the legal person, in a sealed envelope, a dated notice advising that the copy has been delivered and giving the details of the person to whom the copy has been given.

The bailiff also encloses a copy of the document on unstamped paper. The same applies in the event of service to an address for service.

In all these cases, the document is regarded as having been served on the date of delivery of the copy.

According to Article 161 of the New Code of Civil Procedure: “Service to a home address is defined as service to the address under which the addressee is registered in the population register”.

Article 164 of the New Code of Civil Procedure states that: “Documents shall be served:

1° on the State, at the Prime Minister’s offices;

2° on public institutions, at their offices;

3° on municipalities, at the municipal offices;

4° on companies, non-profit associations and public utilities, either at their registered office or on their manager.”

Service by bailiff depositing a copy of the notice of service

Paragraph 6 of Article 155 of the New Code of Civil Procedure provides that: “If the document cannot be served as stipulated above and if it is apparent from checks made, to be noted in the document by the bailiff, that the addressee lives at the address indicated, the bailiff shall deposit there a copy of the document in a sealed envelope, also enclosing a notice informing the addressee that no one could be found at the address indicated or that the persons present refused to accept the copy of the document.

The document shall be regarded as having been served on the date of this deposit. On the same day or no later than the first working day thereafter, the bailiff shall send, by ordinary post, a copy of the document and the notice mentioned above to the address indicated in the document.”

Service by bailiff to unknown address

Article 157 of the New Code of Civil Procedure provides for this method of service where the addressee has no known home address or residence or no known registered office, by stating that: “Where the person on whom the document must be served does not have a known home address or residence, the bailiff shall draw up a record of service precisely detailing the steps taken to find the addressee. The record of service shall state the nature of the document and the requestor’s name.

On the same day or no later than the first working day thereafter, the bailiff shall send the copy of the document and a copy of the record of service by registered letter with a form for acknowledgement of receipt to the addressee at the addressee’s last known address. The same formality shall be carried out by ordinary post on the same day.

The copy of the record of service sent to the addressee shall inform the latter that he may obtain a copy of the document within three months from the offices of the bailiff or may authorise any person of his choice for this purpose.”

Paragraph 3 of Article 157 of the New Code of Civil Procedure states that: “The above provisions shall apply to the service of a document involving a legal person that no longer has a known establishment at the place indicated as the registered office by the trade and companies register.”

Other forms of service by bailiff

Paragraph 4 of Article 157 provides, inter alia, that: “Where a document instituting proceedings or an equivalent document has been served according to the above provisions and where the defendant does not appear, the judge hearing the case may, where applicable, order publication of a notice in a Luxembourg or foreign newspaper.”

Article 158 of the New Code of Civil Procedure adds that: “If the addressee of the document has not been found or if it is not proven that he has been effectively informed, the judge may order, on his own initiative, all additional steps, except for the provisional and protective measures needed to safeguard the applicant’s rights.”

Service by registered letter with a form for acknowledgement of receipt

Where the document is issued by the court registry, it is served by registered letter with a form for acknowledgement of receipt. If the addressee has no known address, the document is served by bailiff.

7.2 If other methods are applied, when are the documents deemed to have been served?

Where the document is served by bailiff, the notice of service must indicate the date of service, which corresponds to the date when the notice of service is given to the addressee or delivered to the addressee’s home address, or to the date when the document is deposited at the addressee’s home address.

Where the document is served by post, Luxembourg applies a double date system.

As a result, the date taken into account with regard to the sender differs from the date taken into account with regard to the addressee.

With regard to the sender, it is the date of sending that is treated as the date of service.

7.3 If another method of service is the deposit of the documents in a particular place (e.g. at a post office) how is the addressee informed of that deposit?

As regards service by bailiff depositing a copy of the notice of service, see above: Service by bailiff depositing a copy of the notice of service.

As regards service by post by registered letter with a form for acknowledgement of receipt, see below: Question 3.3.

7.4 If the addressee refuses to accept service of the documents, what are the consequences? Are the documents regarded as effectively served if the refusal wasn’t legitimate?

Where the document was served by bailiff, the addressee cannot refuse to accept this, except on the ground indicated in Articles 5 and 8 of the aforementioned Regulation (EC) No 1393/2007 (requirement for translation).

Where the document was served by post, the addressee cannot refuse to accept a document served by registered letter with a form for acknowledgement of receipt.

However, the addressee of a document served by registered letter with a form for acknowledgement of receipt can subsequently contest the validity of this service by proving that neither his home address nor his residence nor his address for service was at the address indicated on the registered letter. Service by bailiff therefore offers more legal certainty than service by registered letter with a form for acknowledgement of receipt. This is because, in the event of service by bailiff, the latter checks the address of the addressee in the national register of natural persons or at the population office of the municipal authority. Furthermore, the date of service by registered letter cannot be proven with any certainty if the addressee has not dated and signed the form for acknowledgement of receipt on (first) presentation of the registered letter at his home address, residence or address for service. Conversely, the date of service by bailiff is always indicated on the notice of service.

Moreover, the addressee refusing to accept the document in no way affects the validity and date of service, whether by bailiff or by post.

8 Postal service from abroad (Article 14 of the Service Regulation)

8.1 If the postal service delivers a document sent from abroad to an addressee in this Member State in a situation where acknowledgment of receipt is required (Article 14 of the Service Regulation), does the postal service deliver the document only to the addressee himself/herself or may it, in accordance with national rules of postal delivery, deliver the document also to another person at the same address?

Article 8.1 of the General conditions of provision of the services offered within the scope of the universal postal service provides that: “Registered items shall be delivered, not only to the addressee and his attorney, but also:

• at the home address, to any adult accepting the letter on behalf of the addressee;
• at the post office, to any adult presenting the corresponding non-delivery receipt.

8.2 Under the rules of postal delivery in this Member State how can the service of documents from abroad, under Article 14 of the Service Regulation No. 1393/2007, be effected if neither the addressee nor any other person authorised to receive the delivery (if possible under national rules of postal delivery – see above) has been reached at the address of delivery?

Postal items are delivered to the address indicated, except where there is an obvious error (examples: street name incorrectly spelt, incorrect residence number, post code obviously incorrect, etc.).

If the addressee cannot be reached at the address indicated, the registered item will not be delivered.

Postal items that could not be deposited in the addressee’s letterbox or that could not be given to an authorised person during the postal worker’s call are held for the addressee at his local post office for the period set by the postal company and indicated in the non-delivery notice deposited in the addressee’s letterbox. Once that period expires, items are returned to the sender, if known.

8.3 Does the post office allow a specific period of time for collection of the documents before sending the documents back as undelivered? If yes, how is the addressee informed that there is mail for him to collect at the post office?

Postal items that could not be deposited in the addressee’s letterbox or that could not be given to an authorised person during the postal worker’s call are held for the addressee at his local post office for the period set by the postal company and indicated in the non-delivery notice deposited in the addressee’s letterbox. Once that period expires, items are returned to the sender, if known.

9 Is there any written proof that the document has been served?

If the document is served by post, the form for acknowledgement of receipt serves as proof. If the document is served by bailiff, the latter draws up a record of the steps taken. The bailiff is a judicial officer and his record is valid as proof unless forgery is proven.

10 What happens if something goes wrong and the addressee does not receive the document or the service is effected in violation of the law (e.g. the document is served on a third person)? Can the service of the document nevertheless be valid (e.g. can violations of the law be remedied) or must a new effort to serve the document be made?

If the procedural rules for the service of documents are violated, the service may be declared invalid.

However, invalidity due to a procedural error can be pronounced only if this error is proven to have adversely affected the addressee.

It is for the judge to decide on this point.

Where the document could not be served on the addressee in person and the addressee has not appeared, the judge may ask the applicant to re-serve the document. This formality allows any doubt to be removed as to why the party concerned has failed to appear.

In proceedings in which the parties are normally summoned by the court registry, the judge may also ask the applicant to have the document served by bailiff if there are any doubts as to the validity of the summons served by registered letter.

Lastly, the judge may deliver an inter partes judgment against a party who has failed to appear at the hearing only if it is proven that said party has been served in person. If this is not the case (e.g. if the summons was delivered to another person at the address), the judgment is given by default and may therefore be set aside.

11 Do I have to pay for service of a document, and if so, how much?

Service by the court registry is free of charge. For service by bailiff, the latter receives a fee according to a tariff set by grand-ducal regulation.

Related links

Legilux (Luxembourg’s online law website)

Registre de Commerce et des Sociétés (Trade and Companies Register)