Member State law - Luxembourg
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In this section you will find an overview of the different sources of law in Luxembourg.
Sources of law
International sources of law
The Grand Duchy of Luxembourg is bound by international, multilateral or bilateral treaties. In addition to the obligations which these commitments impose on the Luxembourg State in its relations with other States, some of these treaties are a source of rights for individuals (e.g. EU citizens can rely directly on freedom of movement on the basis of the European treaties.
These are international treaties and agreements between the Grand Duchy of Luxembourg and foreign States. Examples include the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 or the BeNeLux Treaty signed in The Hague on 3 February 1958 and 17 June 2008 respectively and binding Belgium, the Netherlands and Luxembourg.
The Community law
Community law contains the European Treaties as such and the rules of secondary legislation contained in acts adopted by the institutions of the European Community and of the European Union: Directives, decisions, regulations, opinions and recommendations.
National sources of law
Constitutional value rules
The Constitution of the Grand Duchy of Luxembourg was promulgated on 17 October 1868. The constitutional system established in 1868 closely resembles the system of the Belgian Constitution of 1831. Despite numerous differences in detail, the articles of Belgian constitutional law can be consulted without reservations as regards the general principles. Despite the numerous constitutional revisions that have taken place since its enactment, the present Constitution still largely corresponds to the text enacted in 1868.
The Luxembourg Constitution is a Constitution of the rigid type, i.e. its amendment requires the observation of a special procedure which is more complex than the ordinary legislative procedure. A revision of the Constitution requires two successive votes of the Chamber of Deputies (Parliament) with a majority of at least two-thirds of the votes of the Members of the Chamber of Deputies, as proxy votes are not allowed. An interval of at least three months shall separate the two votes.
If, during the two months following the first vote, more than a quarter of the members of the Chamber of Deputies or 25 000 voters so request, the text adopted at first reading by the Chamber of Deputies shall be submitted to a referendum. Then, there shall be no second vote and the revision shall be adopted only if it secures a majority of the valid votes cast.
The rules of legislative value
The law is defined as the standard passed by the Chamber of Deputies promulgated by the Grand Duke. Except where a constitutional provision or a rule of international law restricts its freedom, the Luxembourg legislature itself decides on the guidelines which it intends to give to administrative law.
The rules of regulatory value
It is clear that the law cannot regulate all the issues even in the last detail. Furthermore, the use of the relatively complicated legislative procedure is not always appropriate, for example when it comes to legislating in a matter where the standard needs to be frequently amended.
This is where the Grand Ducal Regulation is adopted, which is the implementing rule of the law. Indeed, the Luxembourg Constitution instructs the Grand Duke of the Mission to ‘(make) the regulations and decrees necessary for the execution of the laws’.
What are, if any, other sources of law and what is their value?
The admission of the case-law as one of the sources of law is not without difficulty. Luxembourg law does not, in fact, know the ‘precedent rule’ applied in Anglo-Saxon legal systems and judges are generally not bound by judicial decisions in other cases, even quite comparable. It is, moreover, forbidden for judges to give their opinion by means of a general provision and their judgment must therefore always be confined to the specific case before them.
In practice, however, the production of a case law in a comparable case has an undeniable impact in a case. Moreover, when a text lends itself to interpretation, the power of the judge is undoubtedly more important because it is possible for him to shape the law by interpreting it.
- International case-law
The Grand Duchy of Luxembourg recognises the direct authority of a number of international courts, including the European Court of Human Rights in Strasbourg.
- European case-law
Under Article 267 TFEU, the case-law of the Court of Justice of the European Union is binding on the national courts by means of a reference for a preliminary ruling which allows national courts, before taking a decision, to request the Court of Justice to resolve the problems raised by the application of Community law which individuals may rely on before them.
- National case-law
As a general rule, judicial decisions issued at the end of civil and commercial proceedings only have the force of res judicata: these decisions are binding on the parties to the dispute, but they do not change the arrangement of the law.
This is also true for most of the decisions taken by the administrative courts. By way of exception, where the General Court or the Administrative Court is seised of an action against a regulatory act, a judgment or a judgment shall be of general application and shall be published in the Mémorial, the Official Journal of the Grand Duchy of Luxembourg.
Judgments handed down by the Constitutional Court have also general application and are published in the Mémorial.
The general principles
The rules laid down in the case-law include, in particular, the category of general principles of law, which are defined as ‘rules of law which are binding on the administration and the existence of which is affirmed by the courts as a court’.
The hierarchy of norms
Under national law, sources of law are prioritised. The Constitution is the source of the highest duty, followed by law and regulations.
In the absence of any constitutional provision, the position of Luxembourg law on the relationship between international law and domestic law stems exclusively from case-law.
The Luxembourg case-law on this point was developed from the beginning of the 1950s from the beginning of the s when the Cour de cassation first of all and then the Council of State put an end to the position previously held that a review by the Court of the conformity of laws with international treaties was impossible because of the separation of powers.
According to the reference decision of the Council of State of 1951, “an international treaty incorporated in the internal legislation by an approving law is a law of a higher standard that has an origin more than the will of an internal body. It follows that, in the event of a conflict between the provisions of an international treaty and those of a subsequent national law, international law must prevail over national law’ (Conseil d’Etat, 28 July 1951, Pas. lux., p. 263).
The wording of that decision is, of course, very broad, since the judgment makes no distinction that the international standard overrides the will of any internal body. However, the Luxembourg courts have never explicitly ruled in favour of the primacy of international standards on the constitution.
It should be noted, however, that in the 1956 revision of a draft Government text which provided that ‘the rules of international law form part of the national legal order. They shall take precedence over the laws and other national provisions.” The commentary on the articles had made it clear that the latter had to include constitutional provisions.
However, the Council of State implicitly accepted that priority in an opinion of 26 May 1992 on the draft law on the approval of the EU Treaty. Indeed, it states that “it must be borne in mind that, according to the rule of the hierarchy of legal norms, international law takes precedence over national law and that, in the event of a conflict, the national law in favour of the Treaty is not exercised by the courts. As it is important to avoid a contradiction between our national law and international law, the Conseil d’Etat insists that the relevant constitutional review should take place within the useful period to prevent such a situation of incompatibility.” The Grand Duchy of Luxembourg therefore seems to be engaged on a resolutely internationalist path.
This is undoubtedly a technical consequence of the absence of a review of the constitutionality of laws in Luxembourg. The Constitutional Court verifies the conformity of laws to the Constitution. it cannot be referred to a question on the conformity with the Constitution of a law approving an international treaty.
In the legal order of Luxembourg, laws which would be unconstitutional may be declared unconstitutional by the Constitutional Court. This Court may be seised by a judicial or administrative court in Luxembourg when, in the context of a procedure before that court, the question of constitutionality is raised. Direct referral is not possible.
An action for annulment is also possible against unlawful regulatory acts before the administrative court with the possibility of an appeal to the Administrative Court. However, that action is admissible only within a period of three months from the date of publication of the regulation. If, after the expiry of that period, the legality of a regulatory act is discussed before a judicial or administrative court, that court retains the possibility of disregarding the legislative text in favour of the law, but, unlike direct action possible within three months of publication, that decision will not have the authority of general authority.
Arrangements for the ‘entry into force on national territory of rules contained in supranational instruments
The Luxembourg Constitution is particularly brief when it regulates the procedure for the approval of international treaties, since it merely lays down that ‘the Treaties shall not have effect before it has been approved by law and published in the forms laid down for the publication of laws’.
The Grand Duchy is a country with a monist tradition. In other words, it is the Treaty itself which applies in the same way as an internal rule of the Grand Duchy without it being necessary to transpose it into one form or another.
Therefore, the content of the law of approval is very brief and generally confines itself to a single article, according to which ‘is approved’ of a given treaty. That law has no legislative content. The law of approval approves, but it does not transpose; it has no purpose other than to authorise the Government to ratify the Treaty.
This law is passed by Parliament under the ordinary procedure. Voting normally takes place by an absolute majority, unless the Treaty contains a delegation of powers (see below). Since the 1956 revision, the Luxembourg Constitution contains an express provision allowing powers to be delegated to international organisations by treaty. Article 49a of the Constitution states that “the exercise of powers reserved by the Constitution to the legislative, executive and judicial branches of the European Union may be temporarily assigned to institutions of international law by treaty”. Article 37 (2) of the Constitution provides, however, that such treaties must obtain the approval of the Chamber of Deputies under conditions of a significantly reinforced majority.
Unless expressly provided for, the vote of an approval law shall not have the effect of placing a treaty in force in the Luxembourg internal order. The law of approval is a prerequisite for its entry into force, but only after ratification. It is also considered in Luxembourg that even after the approval by the Chamber of Deputies, the executive authority retains its discretion to ratify the text and that the exercise of this power is outside the control of the judge.
The entry into force of a treaty under national law is usually subject to three conditions. (1) the Grand Duchy has ratified the Treaty, (2) the Treaty is in force at international level and (3) the text of the Treaty has been published in its entirety in the Luxembourg Mémorial, in the same way as a law.
It must be pointed out that the publication of the Treaty (imposed by Article 37 of the Constitution) is a separate requirement from the requirement to publish the law of the Treaty. It is true that, in most cases, the two conditions are met at the same time, that is to say, the text of the Treaty is published in the Mémorial immediately after that of the law. However, the two acts are not the same and the publications could be separated since the Treaty does not form an integral part of the law of approval.
The Luxembourg Constitution does not contain any specific provisions governing the transposition into Luxembourg’s domestic order of European secondary standards.
The normal instrument for implementing European directives is the law adopted by the Chamber of Deputies in accordance with the ordinary majority.
While it is in principle that European directives must normally be transposed into Luxembourg law by means of a law, recourse to formal law is not necessary where the directive concerns a matter already governed by Luxembourg law. In that case, transposition may be effected by means of a Grand Ducal Regulation adopted on the basis of the general power to implement the laws which the Government draws from Articles 33 and 36 of the Constitution. It is then formally the Luxembourg law that the Grand Duke executes, even if the content of the regulation is based in reality on the European Directive.
Recourse to the legislative procedure may still be avoided where the subject harmonised by the Directive has been the subject of an enabling law by which the Parliament grants the Government the power to resolve by means of simple regulations of matters which normally fall within the remit of the law.
Such ‘enabling laws’ are adopted annually by the Chamber of Deputies since 1915 and the Government thus has extensive regulatory powers in the economic and financial fields which, even in the absence of an express reference to Europe, would undoubtedly have allowed it to transpose many European directives.
However, the transposition of European directives is now governed by a specific enabling law of 9 August 1971, as amended by a law of 8 December 1980, the purpose of which is confined to authorising the government to implement and penalise the European Community’s economic, technical, agricultural, forestry, social and transport directives. By way of derogation from the ordinary regulatory procedure, the Grand Ducal regulations in question must have received the assent of the parliamentary committee of the Chamber of Deputies.
The procedure for the adoption of the Grand-Ducal regulations is characterised, like the legislative procedure, by the obligation on the Government to submit its draft text to the opinion of the Conseil d’Etat and the Chambers of Commerce. Unlike the legislative procedure, however, the regulatory procedure allows the government simply to avoid such consultations on the grounds that it is urgent to adopt the measure recommended. However, the latter is denied to the Government when it intends to transpose a European directive by means of a Grand-Ducal regulation. The Law of 9 August 1971 supplements the ordinary regulatory procedure by requiring, on the one hand, mandatory consultation of the Council of State and, on the other, the assent of the parliamentary committee of the Chamber of Deputies.
In either case, the text of the Grand Ducal Regulation is adopted in the Council of Ministers and then signed by the Minister of the spring and submitted to the Grand Duke for promulgation. The Grand Ducal Regulation will enter into force after its publication in the Mémorial.
Procedures for bringing national rules into force
In Luxembourg, laws and regulations shall enter into force only after publication in the Official Gazette of the Grand Duchy of Luxembourg.
Authorities intended to adopt rules of law
The Luxembourg Constitution declares that ‘The Grand Duke does the Treaties’. It adds, however, that ‘the Treaties shall not have any effect before it has been approved by law and published in the forms laid down for the publication of laws’.
It should be noted that approval is required for all international treaties, regardless of their purpose, and that such approval is to be given in the form of a law. The latter was inserted in 1956 at the express request of the Council of State, which considered that ‘such consent shall be placed on the procedure for preparing the law, since the Constitution only covers that single procedure which is applicable to all the expressions of intent on the part of the Chamber of Deputies in any material respect’.
The Government’s right of initiative is known as a “government initiative” and it is carried out through the presentation of “draft laws”.
The right of initiative of the Chamber of Deputies is referred to as the ‘parliamentary initiative’ and is exercised through the presentation of ‘proposals for legislation’.
Those drafts or proposals for legislation are then submitted to various opinions of the bodies concerned (professional chambers), but above all to the opinion of the Council of State. After receipt of the opinion of the Council of State, the draft or bill is returned to the Chamber of Deputies.
Process for the adoption of these rules of law
The Chamber of Deputies is a single Parliament.
In order to mitigate the risks of a unicameral system, the Luxembourg constituent provided that any draft law must in principle be subject to two votes, at least three months apart.
However, the Constitution provides that a second vote may also be required (qualified as a ‘second constitutional vote’) ‘if the Chamber of Deputies, in agreement with the Council of State, sitting in public session, decides otherwise’.
The Council of State plays a very original role here, which is closer to the role played by the second legislative chambers in other States (and in particular the role played by the House of Lords in England). It is the first time ahead of parliamentary debates. The Constitution requires the opinion of the Council of State to be taken in respect of any project or proposal for a law. The Council of State then intervenes a second time after the first vote in the Chamber of Deputies to decide, in public session, whether or not to grant the second vote.
In practice, the vast majority of laws are thus exempted from the second vote. The Council of State has adopted a policy according to which exemption is granted in almost all cases, with the sanction of refusal being reserved for the most serious cases. Any obstacles to exemption are most often eliminated during the preliminary procedure.
It must also be pointed out that the power of the Conseil d’Etat is not a real power of veto, which would be difficult to reconcile with the fact that the Conseil d’Etat is an unelected body. The members of the Council of State are appointed by the Grand Duke. In the event of a vacancy, the substitutes shall be appointed as replacements, the first: directly by the Grand Duke, the second: on a list of three candidates proposed by the Chamber of Deputies and the third: a list of three candidates proposed by the Council of State. The Council of State can only delay the vote of a two month law, and thus allow a further period for reflection on the legislator.
The Grand Duke is not only at the beginning of the legislative procedure (for draft legislation), but also after the final vote on the text of the law by the Chamber of Deputies. The Luxembourg Constitution provides that “The Grand Duke promulgate the laws within three months of the chamber’s vote”.
Grand Ducal Regulations
According to Article 2 of the Law of 12 July 1996 on the reform of the Council of State, no draft regulation adopted for the implementation of the laws and treaties may be submitted to the Grand Duke until after the Council of State has given its opinion.
However, the Government may derogate from this general rule in cases of urgency (to be assessed by the Grand Duke on the basis of a report duly substantiated by the prime minister) and thus dispense with seeking the opinion of the High Corporation. The use of such an emergency procedure is, however, deemed to be limited to exceptional cases.
Furthermore, if a law formally requires the Council of State to be referred to the Council of State for its opinion on the regulations made pursuant to that law, the urgency procedure cannot be used under any circumstances. This is also true for amendments to a draft regulation for which the High Corporation has already issued a first opinion.
As in the case of the laws, the Council of State shall draw up its opinion on draft regulations in the form of a reasoned report comprising general considerations, a review of the text of the project and, where appropriate, a counter project.
The examination by the Council of State shall cover the substance and form of the draft rules and the conformity of the latter with a higher-ranking rule of law.
The Legilux site is the legal portal of the Government of the Grand-Duchy of Luxembourg on the Internet.
It allows access to Luxembourg legislation either in the form of a gross text of the Mémorial A or in the form of coordinated texts, which are largely contained in Codes and Reports of Reports of Legislation.
The website is divided into three main areas:
- The Legislative Area consists of publications on Luxembourg legislation and various publications and coordinated texts.
- The administrative area of the Group, ‘Administrative’ publications. These are mainly the Mémorial B, as well as the Official Directory of Administration and Legislation.
- The Societies’ Area, Mémorial C has been replaced, since 1 June 2016, with a list of the publications available on the website of the Trade and Companies Register (RCS). the archives of the Mémorial C, from 1996 to the last Mémorial C published on 27 July 2016, will remain accessible under the Societies’ Area.
Is access to the databases free of charge?
Yes, access to databases is free of charge.
This is a machine translated version of the content. The owner of this page accepts no responsibility or liability whatsoever with regard to the quality of this machine translated text.
Last update: 22/10/2019