The Grand Duchy of Luxembourg is bound by international, bilateral or multilateral treaties. In addition to the obligations imposed on the state of Luxembourg in its relations with other states, some of these treaties are sources of law for members of the public (e.g. citizens of the European Union can directly exercise the freedom of movement on the basis of the European treaties).
These include international treaties and agreements entered into by the Grand Duchy of Luxembourg and foreign states. By way of example, one may refer to the European Convention on Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, or the Benelux Treaty signed in The Hague on 3 February 1958, which binds Belgium, the Netherlands and Luxembourg.
Community law includes the European treaties in themselves (notably the Treaty of Rome of 25 March 1957, the Maastricht treaty of 7 February 1992, the Treaty of Amsterdam of 2 October 1997 and the Treaty of Nice of 26 February 2001) and the secondary legislation in the form of acts adopted by the institutions of the European Communities and the European Union: directives, decisions, regulations, opinions and recommendations.
The Constitution of the Grand Duchy of Luxembourg was promulgated on 17 October 1868. The constitutional system established in 1868 closely resembles the Belgian Constitution of 1831. Despite many differences of detail, works on Belgian constitutional law can be consulted without reservation with regard to the general principles. Despite the many constitutional amendments that have taken place since promulgation, the current Constitution still very much corresponds to the text of 1868.
The Luxembourg Constitution is an entrenched Constitution, meaning that amendments require a special procedure that is more complex than the usual legislative procedure. An amendment to the Constitution requires two successive votes of the Chamber of Deputies by a majority of at least two-thirds of the members. Voting by proxy is not permitted. There must be an interval of at least three months between the two votes.
If within two months of the first vote, more than a quarter of the members of the Chamber of Deputies or 25,000 voters make a petition, the text adopted at first reading by the Chamber is put to a referendum. In this case there is no second vote and the amendment is passed if it receives a majority of those votes that are valid.
Statutes are enacted by the Chamber of Deputies then approved and promulgated by the Grand Duke. The Luxembourg legislature is sovereign in determining the direction of administrative law, except where its freedom is restricted by the Constitution or a rule of international law.
According to the Luxembourg Constitution, legislative power belongs jointly to the Grand Duke and the Chamber of Deputies. No statute can exist without the joint consent of the two branches of the legislative power.
Legislation obviously cannot regulate all matters in the finest details. Moreover, recourse to a relatively complicated legislative procedure is not always opportune if, for example, one wishes to legislate in a matter where the rule is subject to frequent amendments.
This is where Grand-Ducal regulations are used, as the means by which legislation is implemented. The Luxembourg Constitution gives the Grand Duke the task of “(making) the necessary regulations and orders for the implementation of statutes, whilst never being able to suspend the statutes themselves nor to dispense with their implementation”
The use of case law as a source of law is not without problems. Luxembourg law does not recognise the rule of precedent applicable in Anglo-Saxon legal systems, and judges are not generally bound by judicial decisions given in other cases, even if they are comparable. Judges are not allowed to make judgments of a general disposition and the judgment must always be confined to the actual case before them.
In practice, earlier court decisions in comparable cases are bound to be taken seriously. Moreover, if a statute is open to interpretation, the judge’s power is undeniably greater because he has the power to make law through the interpretation of it. It is sometimes the case that no legal measure provides rules that can apply to a specific case. In such case, since he cannot avoid giving judgment, the judge will formulate a general rule that will allow him to give judgment.
The Grand Duchy of Luxembourg recognises the direct authority of several international courts, including the European Court of Human Rights at Strasbourg.
By virtue of Article 234 of the Treaty establishing the European Community, the case law of the Court of Justice affects national courts through requests for preliminary rulings that allow national courts, before giving a ruling, to ask the Court of Justice for a solution to the problems posed by the application of Community law on which the parties to a case may be relying.
The general rule is that judgments given in civil and commercial cases are binding only in the case concerned: decisions are binding on the parties but they have no effect on the construction of the law.
This is also true for the majority of decisions given by the administrative courts. By way of exception, where an administrative court or the Administrative Appeal Court hears an appeal against a regulatory act, the judgment or order will have general effect and will be published in the “Mémorial”, the official gazette of the Grand Duchy of Luxembourg.
The decisions of the Constitutional Court are also binding and are published in “Mémorial”.
Among the rules emerging from the case law, particular reference should be made to the general principles of law, defined as “rules of law that are binding as administrative authorities and formally declared in the Decisions of the courts”.
In internal law, the sources of law fall within a hierarchical structure. The Constitution is the highest source of law, followed by statutes and regulations.
Since there are no constitutional provisions on the subject, the relationship between international law and internal law in Luxembourg is governed by rules that originate wholly in case law.
The law here has developed since the 1950s when first the Court of Cassation and then the Council of State put an end to the position that had hitherto been upheld, which was that because of the doctrine of separation of powers, it was impossible for a judge to make a ruling on the conformity of statutes with international treaties.
According to the relevant decision of the Council of State from 1951, “an international treaty incorporated into internal legislation by a ratification statute is a superior law in essence, as its origin is higher than the decision of an internal organ. It follows that if there is a conflict between the provisions of an international treaty and those of a national statute enacted subsequently, international law must prevail over the national statute” (Council of State, 28 July 1951, Pas. lux. t. XV, p. 263).
The wording of this decision is clearly very broad because it affirms without reservation that the international provision takes precedence over the decision of any internal organ. However, the Luxembourg courts have never ruled that international rules take precedence over the Constitution.
It will be noted however, that in 1956 a Government Bill which provided that “The rules of international law are part of the national legal system. They shall take precedence over national statutes and other legal measures” was rejected as part of a constitutional reform exercise. The accompanying commentary had clearly stated that this formula was intended to include the provisions of the constitution.
However, the Council of State made an implied concession of primacy in an opinion of 26 May 1992 on the EU Treaty ratification bill. It considered that “it was appropriate to bear in mind that according to the hierarchy of rules of law, international law takes precedence over national law and that in the event of conflict the courts disapply internal law in favour of the Treaty. As it is desirable that there be no contradiction between our national law and international law, the Council of State demands that the necessary amendment to the Constitution be made in good time so as to avoid such a situation of incompatibility”. It would appear that that Grand Duchy of Luxembourg has clearly set out on the path of internationalism.
Without doubt, this state of affairs is a technical consequence of the absence of constitutional review of statutes in Luxembourg. The Constitutional Court, established in 1999 to verify that enacted laws comply with the Constitution, cannot be consulted over whether a statute ratifying an international treaty is compatible with the Constitution.
The Luxembourg Constitution is particularly succinct in the way it regulates the procedure for ratifying international treaties, as it merely states that “treaties shall have no effect until they have been ratified by statute and published in the manner prescribed for the publication of statutes”.
The Grand Duchy is a country with a monistic tradition. In other words, it is the treaty itself that applies in the same way as an internal statute of the Grand Duchy without it being necessary to transpose it in one form or another.
The ratification act is therefore very short and will generally consist of a single section by which a particular treaty “is hereby approved”. The act has no legislative content. The act of ratification approves, but does not transpose; its sole purpose is to authorise the Government to proceed to ratify the treaty.
The statute is passed by Parliament by the ordinary procedure. Voting is normally by absolute majority, unless the treaty involves a delegation of powers (see below). As a result of the amendment made in 1956, the Luxembourg Constitution contains an express provision allowing powers to be delegated by treaty to international organisations. Article 49a of the Constitution states that “the exercise of powers reserved by the Constitution to the legislature, executive and judiciary may be temporarily devolved by treaty to institutions of international law”. Article 37(2) of the Constitution states that treaties of this kind must be ratified by the Chamber of Deputies by significantly higher majorities.
Unless expressly provided for, a vote to approve a ratification act does not have the effect of bringing the treaty into force as part of internal Luxembourg law. The ratification act is an indispensable condition but entry into force only occurs after the ratification itself. In Luxembourg the view is that even after approval by the Chamber, the Executive still has the right to ratify the text and that exercise of this power is not subject to judicial review.
A treaty’s entry into force as part of internal law is subject to three conditions : (1) the Grand Duchy must ratify the treaty, (2) the treaty must be in force at international level and (3) the text of the treaty must have been published in the “Mémorial” in the same manner as a statute.
It should be noted that the publication of the treaty (required by article 37 of the Constitution) is a separate requirement from the requirement to publish the act ratifying it. It is true that in most cases the two requirements are dealt with at the same time, in that the text of the treaty is published in the “Mémorial” immediately after the statute. But the two acts should not be confused and publication of each can occur separately, as the treaty is not an integral part of the ratification act.
There is no provision in the Luxembourg Constitution regarding the transposal of European provisions into internal Luxembourg law.
The usual instrument for implementation of European directives is the statute passed by ordinary majority in Parliament.
While as a matter of principle, European directives must normally be transposed into Luxembourg law by means of a statute, recourse to a formal statute is not necessary when the directive concerns a matter that is already governed by a compatible Luxembourg statute. In such a case, transposal can occur by means of a regulation from the Grand Duke based on the general power to implement legislation conferred on the government by Articles 33 and 36 of the Constitution. The Grand Duke is thereby formally giving effect to Luxembourg law, even if the content of the regulation is in reality inspired by the European directive.
Legislation can also be avoided if the matter harmonised by the directive is already covered by enabling legislation whereby Parliament empowers the Government to make simple regulations in matters that are normally dealt with by statute.
Enabling legislation has been passed annually by the Chamber of Deputies since 1915 and the Government also has wide regulatory powers in the financial and economic fields which, even in the absence of a specific reference to Europe would doubtless allow it to transpose numerous European directives.
Transposal of European directives is currently governed by a specific enabling statute dated 9 August 1971, as amended on 8 December 1980, which merely empowers the Government to execute and authorise directives from the European Communities in matters relating to economics, technology, agriculture, forestry, social affairs and transport. As an exception to the standard regulatory procedure, the regulations in question must have received the assent of the working committee of the Chamber of Deputies.
In the procedure for adopting Grand-Ducal regulations, as in the legislative procedure, the government is required to submit the draft text to the Council of State and the Chambers representing professional groups. Unlike the legislative procedure, the regulatory procedure allows the government to avoid such consultations by designating the measure in question as urgent. This option is not available to the Government if it intends to transpose a European directive by means of a regulation. The Act of 9 August 1971 complements the standard regulatory procedure by requiring compulsory consultation of the Council of State and the assent of the working committee of the Chamber of Deputies.
In either case, the draft of the Grand-Ducal regulation is approved by the Council of Ministers, then signed by the relevant Minister and submitted to the Grand Duke. The regulation comes into force after its publication in the “Mémorial”.
Article 37 of the Luxembourg Constitution provides that “The Grand Duke makes treaties”. However, it also adds “treaties shall have no effect until they have been ratified by statute and published in the manner prescribed for the publication of statutes”.
It will be noted that ratification is required for all international treaties, irrespective of their purpose, and that this ratification must be given by statute. This last specification was inserted in 1956 following a specific request from the Council of State which felt that “assent is tied to the preparation of law, as the Constitution only recognises the single procedure that applies to all expressions of the Chamber’s will, whatever the matter”.
According to the Luxembourg Constitution, legislative power belongs jointly to the Grand Duke and the Chamber of Deputies and no statute can exist without the joint consent of the two branches of legislative power (article 46 of the Constitution).
Each of the two branches of legislative power has the right to introduce legislation. If the initiative comes from the Grand Duke, the item is referred as a “projet de loi” (Government Bill) ; if the item originates from the Chamber, it is described as a “proposition de loi” (Private Member's Bill) .
The Luxembourg Parliament is a single-chamber Parliament.
So as to reduce the risk of impulsiveness inherent in a unicameral system, the Luxembourg system requires all draft legislation to be the subject of two votes, at least three months apart.
Article 59 of the Constitution provides that a second vote (referred to as the “second constitutional vote”) may be dispensed with “if the Chamber, in agreement with the Council of State, decides otherwise in public session”.
The Council of State plays a very original role here, similar to that played by second legislative chambers in other countries (and particularly the role filled by the House of Lords in England). It first intervenes before parliamentary debates, as article 83a of the Constitution requires the opinion of the Council of State to be heard in respect of every Government or Private Member's Bill. The Council of State intervenes again for a second time after the first vote of the Chamber to decide, in open session, whether it approves dispensing with the second vote.
In practice, most statutes are passed without a second vote. The Chamber grants itself a dispensation having voted for a statute, which is only normal. The Council of State has adopted a policy whereby dispensation is given in almost every case, with refusal only occurring in the most serious cases. Potential obstacles to a dispensation are more often than not eliminated during the preliminary procedure.
It should also be emphasised that the power available to the Council of State is not a real power of veto, a power that would be difficult to reconcile with the fact that the Council of State is not a democratic body (the members of the Council of State are appointed by the Grand Duke. In the event of a vacancy, replacements are appointed in turn; the first is appointed by Grand Duke directly, the second from a list of three candidates submitted by the Chamber and the third from a list of three candidates submitted by the Council of State). The Council of State can only delay a vote on a law by two months, to as to give the legislature more time to consider.
The Grand Duke intervenes not only at the beginning of the legislative procedure (for draft legislation) , but also after the final vote on the legislation taken in the Chamber. Article 34 of the Luxembourg Constitution states that “the Grand Duke assents to and promulgates statutes. He shall make his decision known within three months of the vote taken in the Chamber”.
The only condition required by the Constitution for formal validity of Grand-Ducal regulations is the requirement for ministerial countersignature.
The Constitution is however complemented by other documents, in particular the institutional legislation of the Council of State which, unless a state of urgency is invoked, requires the Grand Duke to submit the regulatory text to the Council of State for its opinion.
Moreover, the Grand-Ducal decree promulgated on 9 July 1857 on the organisation of government stipulates that any measure put before the Grand Duke must have been subject of discussion at a meeting of the Council of Ministers. Failure to comply with this rule will make the regulation void.
In the Grand Duchy of Luxembourg, statutes and regulations only enter force after having been published in “Mémorial, Journal officiel du Grand Duché de Luxembourg”.
In the legal system of Luxembourg, the Constitutional Court can declare that statutes which contravene the Constitution are unconstitutional. This Court can be consulted by any judicial or administrative court in Luxembourg where the question of constitutionality is raised in proceedings in which that court is itself involved. The Court cannot be petitioned directly.
An appeal for annulment is also possible in respect of illegal regulatory acts before the administrative court with the right of appeal to the Administrative Appeal Court. This option is only admissible within three months following publication of the regulation. If the three months have elapsed and the legality of a regulation is questioned in a judicial or administrative court, then that court has the right to set aside the regulation in favour of the statute, but unlike the direct action which can be taken during the three months after publication, this decision will not have general authority.
Last update: 05-11-2009