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In Luxembourg service of documents (in French “notification”) is a general term for the various procedures by which a document is brought to a person’s knowledge.
Service by bailiff (in French “signification”) refers specifically to the procedure whereby the document is delivered by bailiff to the residence of the person concerned.
Most notifications are by recorded delivery against acknowledgement of receipt.
Service by bailiff is more reliable than notification by post. The most important documents (documents instituting proceedings, judgments, notices of appeal, etc.) are therefore required by law to be delivered by bailiff.
However, for matters concerning the Court of First Instance, summonses are always sent by recorded delivery. Depending on the type of procedure, the summons is served either by the court registry (e.g. in matters relating to leases) or by bailiff. In this case, therefore, the bailiff serves the document by post instead of delivering it in person.
Personal delivery by bailiff is usually required for the time limit for appeals against court judgments to begin to run. As an exception, the time limit for appeal against decisions of courts of first instance in matters relating to leases and labour law starts when the judgment is notified by the court registry.
Most notices of court proceedings must be served before they can be dispatched to the judge.
Specifically, the law requires documents instituting proceedings that call on the defendant to appear before a judge personally or through a lawyer to be formally served.
Judgments must also be served in order to acquire the force of res judicata.
Under Luxembourg law, service by personal delivery can be carried out only by a bailiff.
In most cases, service by bailiff is necessary for a case to be brought to court. Once judgment has been handed down, the bailiff must serve the judgment on the losing party. This is when the time limit for appeals begins to run. 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 bailiff.
However, there are certain exceptions to the bailiffs’ monopoly on service of documents by personal delivery.
In matters relating to the Court of First Instance, for example, many court proceedings are instituted by a petition addressed to the court in question. The court registry serves the parties with a summons to a hearing, attaching a copy of the petition addressed to the judge. This procedure applies in particular to matters relating to leases, but it is also followed for matters relating to labour law and payment orders.
Summons are also served by the court registry in certain district court proceedings, in particular those coming under the jurisdiction of the president of the court.
Lawyers are not authorised to serve documents directly; they must employ a bailiff. However, once the proceeding has started and each party is represented by a lawyer, notices of court proceedings and documentary evidence can be exchanged between lawyers using the service procedure, which in this case involves no specific formalities. It is customary for the lawyer to acknowledge receipt immediately of a document served in this way.
Most documents are served by recorded delivery against acknowledgement of receipt.
If the postal worker finds the addressee at home, 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 postman records the service of the document as having taken place.
If the addressee is not at home but another person accepts the recorded delivery, the postal worker enters this person’s name in the acknowledgement of receipt. In most cases, service of a document on a third party is not as valid as service on the person concerned.
If there is nobody at the address but the address is correct, the postal worker leaves a note in the letterbox asking the addressee to collect the letter from the post office within a specified time limit. The document is then considered to have been served even if the addressee does not go to the post office.
If the address cannot be verified, the postal worker returns the letter to the sender and advises him that the document has not been served. In this case, a new address must be provided by the person serving the document. If the addressee has no known address, the claimant can ask a bailiff to serve the document, if necessary with an affidavit of attempted service.
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.
Service by bailiff means personal delivery of the document to the addressee by a bailiff.
The bailiff usually goes to the addressee’s home. However, the document can be delivered at any place where the bailiff finds the addressee, for example the place of work.
If the bailiff finds the addressee at home, he gives him a certified copy of the document. He draws up a report of service of the document, which is attached to the original document. Both the document and the report are then returned to the person serving the document.
If the addressee is not at home, the document can be delivered to any other person present, including minors over the age of 15. The bailiff states in his report that the document has been delivered. If the document is delivered to a third party, it should be in a sealed envelope to ensure that the third party cannot read it without opening the envelope.
If the addressee is not at home but the address is correct, the bailiff leaves a copy of the document and a transit advice note in the letterbox in a sealed envelope. He then sends the addressee a second copy by normal delivery at the latest on the first working day following his visit. The bailiff draws up a report of these procedures, which is attached to the original document served.
If the bailiff finds nobody at home and there is doubt regarding the address (e.g. if there is no letterbox), he makes enquiries to verify where the addressee may be. The result of these inquiries is recorded in an “affidavit of attempted service”.
If the document is sent by recorded delivery, the acknowledgement of receipt serves as proof. If the document is served by bailiff, the bailiff draws up a report of the procedures he has carried out. The bailiff is a professional officer. His report serves as proof unless forgery is proved.
If the formal requirements for the service of documents are violated, the service may be declared null and void.
Service of the document can be pronounced null and void on the grounds of a technicality only if this technicality has adversely affected the addressee.
It is for the judge must decide on this point.
If it has not been possible to serve the document on the addressee in person and the addressee has not appeared, the judge may ask the person serving the document to reserve it. This is in order to clear up any doubt as to why the party concerned has failed to appear.
In procedures in which the parties are normally summoned by the court registry, the judge may also ask the person serving the document to serve it by bailiff if there are doubts as to the validity of the service carried out by recorded delivery.
Lastly, the judge may not hand down a judgment considered to be against the party who has failed to appear at the hearing unless it has been established that the party has been notified in person. If this is not the case (e.g. if the summons was delivered to another person at the address), the judgment is handed down in absentia and the party has the option of asking to have his case retried.
Service by the court registry is free. Under Luxembourg law there is a fixed charge for bailiff service.Top
Last update: 19-07-2006