Jurisdiction of the courts - Luxembourg

If you want to initiate legal proceedings in civil or commercial matters, you will have to identify the court that is competent to deal with your case or, in other words, has jurisdiction. If you use the wrong court or if there is a dispute over the question of jurisdiction you run the risk of a considerable delay in the proceedings or even of a dismissal of your case because of a lack of jurisdiction.

TABLE OF CONTENTS A. Should I apply to an ordinary civil court or to a specialised court?  B. Where the ordinary civil courts have jurisdiction how can I find out which one I should apply to?  I. Is there a distinction between lower and higher ordinary civil courts and if so which one is competent for my case?  II. Territorial jurisdiction (Does the court of city/town A or of city/town B have jurisdiction for my case?)  1. The basic rule of territorial jurisdiction  2. Exceptions to the basic rule  a) When can I choose between the court in the place where the defendant lives (court determined by the application of the basic rule) and another court?  b) When do I have to choose a court other than that in the place where the defendant lives (court determined by the application of the basic rule)?  c) Can the parties themselves attribute jurisdiction to a court that would not be competent otherwise?  C. Where specialised courts have jurisdiction how can I find out which one I have to address?  I. Is there a distinction between lower and higher ordinary civil courts and if so which one is competent for my case?  II. Territorial jurisdiction (Does the court of city/town A or of city/town B have jurisdiction for my case?)  1. The basic rule of territorial jurisdiction  2. Exceptions to the basic rule

 

A. Should I apply to an ordinary civil court or to a specialised court?

In Luxembourg, the ordinary court for civil and commercial matters is the District Court. There are two judicial districts and consequently one District Court each in Luxembourg and Diekirch.

The District Court has jurisdiction in all civil and commercial matters for which the law does not confer jurisdiction on another court.

Unlike the situation in other countries, there are no specific courts for commercial matters, which are dealt with by specialised divisions of the District Court. But commercial matters are dealt with by a simplified procedure.

Special courts are responsible mainly for:

• small claims: if the claim is not worth more than €10 000, the local court will have jurisdiction. There are three local courts, in Luxembourg, Esch-sur-Alzette and Diekirch, each with jurisdiction for a specific territory. But it is not always easy to determine the value of a case, either because there are several aspects to it or because it is difficult to put a figure on the claim. In case of doubt, it is best to consult an advocate;
• employment cases: the Employment Court has jurisdiction in cases concerning contracts of employment. There are three Employment Courts, at Luxembourg, Esch-sur-Alzette and Diekirch, each with jurisdiction for a specific territory. Each of the Employment Courts has separate sections for disputes between employers and manual and non-manual workers;
• leases: jurisdiction in disputes concerning leases lies with the local courts, whatever the value of the dispute. If the dispute concerns the amount of the rent, the rents commission organised in each district must be consulted before the case goes to the local court;
• disputes between neighbours: most disputes between neighbours concern rights of way or boundary disputes and are in the jurisdiction of the local court. But if the case becomes more serious and damages are applied for, then the amount of the claim is the decisive factor – above €10 000, the District Court has jurisdiction;
• social security cases: the law confers jurisdiction in social security cases on the Social Security Arbitration Board. The Board sits in Luxembourg and its jurisdiction extends throughout the country;
• cases concerning custody of minors: if custody of a minor is disputed in divorce proceedings, the case will come before the District Court, usually in urgent proceedings. Outside or after divorce proceedings, jurisdiction will lie with the Youth and Guardianship Court in Luxembourg or Diekirch, as the case may be;
• problems of excessive debt: the local court has jurisdiction in such cases.

B. Where the ordinary civil courts have jurisdiction how can I find out which one I should apply to?

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I. Is there a distinction between lower and higher ordinary civil courts and if so which one is competent for my case?

The local courts have jurisdiction in civil and commercial matters where the claim (excluding interest and costs) is worth no more than €10 000. Above that, the case goes to the District Court.

The District Court has jurisdiction in any event in cases that cannot be valued in money’s worth, such as many family cases.

II. Territorial jurisdiction (Does the court of city/town A or of city/town B have jurisdiction for my case?)

1. The basic rule of territorial jurisdiction

As a rule, the court for the defendant’s place of residence has jurisdiction. The purpose of this is to give the defendant a degree of protection as it will be easier for him to defend himself in the court nearest home.

If the defendant is a natural person, this means the court for his domicile or residence. For a body corporate such as a company or an association, it will be the court for the place where it has its registered office. Sometimes a company’s main establishment will be separate from its head office. In such cases it is possible to sue in the court for the place where the main establishment is. For major firms with several branches, the action can be brought in the court for one of the branches.

2. Exceptions to the basic rule

a) When can I choose between the court in the place where the defendant lives (court determined by the application of the basic rule) and another court?

Contracts: the claimant can bring an action either at the place where the defendant is resident or, depending on the nature of the contract, the place where the goods are to be delivered or the services are to be performed.

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In cases in tort/delict and in civil proceedings joined to a criminal prosecution: the claim may be presented in the court for the place where the defendant lives or the court for the place where the loss was suffered or the harmful act occurred.

Real property: the claimant can sue in the court for the place where the property is situated.

b) When do I have to choose a court other than that in the place where the defendant lives (court determined by the application of the basic rule)?

Divorce: the court for the place where the family lives has jurisdiction. If the spouses live apart, the court for the place where they last lived together has jurisdiction.

Succession: the court for the place where the deceased last lived.

Leases: the court for the place where the property is situated.

Employment cases: the court for the place where the work is done. But in certain cases where the employer brings an action against an employee living in another Member State, the court for the place where the employee lives has jurisdiction.

c) Can the parties themselves attribute jurisdiction to a court that would not be competent otherwise?

Luxembourg law allows “choice-of-forum” clauses whereby the parties to a contract designate a specific court to settle their disputes.

Such clauses are particularly interesting in the event of a dispute between parties living in different countries. They make it possible to ascertain in advance which court will have jurisdiction in a given case. The validity of such clauses as between Member States of the European Union is governed by Council Regulation (EC) No 44/2001 of 22 December 2001.

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There can also be a choice-of-forum in purely domestic cases. Section 18 of the New Code of Civil Procedure allows the parties to bring a dispute before the local court where it theoretically does not have jurisdiction in view of the value of the claim or the territorial rules. The parties’ agreement may be express or simply implicit in the fact that the defendant enters an appearance without protest.

A choice-of-forum clause is valid only if it is actually accepted by both parties. Evidence of their agreement must be supplied in accordance with the usual rules.

The parties’ freedom to determine a court is sometimes restricted by the law. For instance, the Consumer Legal Protection Act provides that clauses calculated to deprive the consumer of his right to take action in the ordinary courts are null and void.

C. Where specialised courts have jurisdiction how can I find out which one I have to address?

I. Is there a distinction between lower and higher ordinary civil courts and if so which one is competent for my case?

The special courts organised by Luxembourg law (Employment Court, Local Court sitting in rental cases, Administrative Court, Social Security Arbitration Board) hear all the cases assigned to them at first instance, without any distinctions as to the value of the dispute.

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For example, the local court usually has jurisdiction only in cases where the amount at stake does not exceed €10 000, but that limit does not apply where it is hearing a dispute concerning a lease.

II. Territorial jurisdiction (Does the court of city/town A or of city/town B have jurisdiction for my case?)

1. The basic rule of territorial jurisdiction

Although jurisdiction basically lies with the court for the place where the defendant lives, there are exceptions where the special courts are concerned.

For example, the competent employment court is generally the one for the place where the work is done rather than the place where one of the parties lives. Likewise, a dispute concerning a lease must be brought before the court for the place where the rented property is situated.

The problem does not arise for the Administrative Court or the Social Security Arbitration Board as they have jurisdiction throughout the Grand Duchy.

2. Exceptions to the basic rule

The special courts enjoy only the jurisdiction expressly conferred on them, and as a rule it is not possible for the parties to choose a court other than the one designated by the law.

Jurisdiction is regarded as a matter of public policy (in employment matters, for instance), which means that even if the parties do not raise the question of its jurisdiction the court must raise the question of its own motion.

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Last update: 21-04-2006