Luxembourg law provides for rapid debt recovery by means of the “provisional order” procedure.
Important note: procedures exist both before the Justices of the Peace (for debts below €10 000) and before the District Court (for amounts in excess of €10 000). The answer given here relates only to provisional orders given by the District Court. The procedure before the Justice of the Peace is reviewed in procedures relating to small claims.
The “provisional order” (ordonnance sur requête) procedure relates to money claims where the principal sum (excluding interest and costs) exceeds €10 000.
The provisional order procedure is only available in relation to debtors domiciled in Luxembourg.
Recourse to the provisional order procedure is only possible for money claims evidenced in writing. A provisional order cannot for example, be used to obtain a rapid judgment for payment of damages and interest.
There is no upper limit in provisional order proceedings instigated before the district court.
Use of the provisional order procedure is optional. The creditor can also commence proceedings before a trial judge or summary proceedings in order to obtain an enforceable instrument.
There is no specific procedure available to allow a creditor to obtain an order for payment against a debtor domiciled in another Member State. However – insofar as the Luxembourg courts have jurisdiction – the creditor can bring summary proceedings to require the debtor to make an interim payment. The judge will allow such a claim if he considers that the debt cannot seriously be challenged.
A creditor who wishes to obtain a provisional order for an amount in excess of €10 000 must, unless he can prove that a valid choice of court clause applies, petition the president of the district court having jurisdiction in relation to the debtor’s place of domicile. There are two District Courts in the Grand-Duchy of Luxembourg, at Luxembourg and at Diekirch.
The ordinary rules of jurisdiction apply.
A claim for a provisional order should be sent to the registry of the district court. According to article 920 of the New Code of Civil Procedure (NCPC), it must – on penalty of nullity – contain the names, first names, occupations and domicile or residence of the claimant and defendant, a statement of claim and the grounds on which the claim is based.
There is no standardised form. It is not necessary to instruct a lawyer in order to make a claim for an order for payment.
The article requires the creditor to identify the purpose of his claim (in other words, the amount claimed) and to set out his reasons (i.e. the reason for which the debt is due). The exposition can be summary, but a statement of grounds must be given. The scope of the explanation provided will vary in relation to the complexity of the file. If the documents are self-explanatory, the explanation can be summary.
On the other hand, the creditor must support his claim by producing documentation and it is clearly on the basis of such documents that the judge will decide whether the claim is admissible or not.
Article 920 of the New Code of Civil Procedure states “the claim shall be accompanied by any documents which may serve as evidence of the claim and the amount, and to establish that the claim is well-founded”.
Only the submission of “documents” is permitted; the creditor cannot – at this stage in any case – volunteer to prove that the claim is well-founded by other means, for example by calling witnesses.
Article 921 of the New Code of Civil Procedure requires that the file be examined by a magistrate. The latter will reject the application if he believes that the existence of the debt has not been sufficiently proven by the explanations provided.
Although there is no specific provision, the rejection must – like any judicial decision – be accompanied by a rationale.
It is not possible to appeal against a rejection order. However, this does not prevent the creditor from bringing other proceedings, before a trial judge or a judge in summary proceedings.
According to article 922 of the NCPC, a debtor on whom an order for payment has been served has (15) days to dispute the order.
The dispute notice is made by written declaration filed at the court registry by the interested party or his representative. It must contain at least summary details of the grounds on which it is based and any document which supports the dispute notice should be attached.
The clerk enters the dispute notice on the court register, an acknowledgement is issued to the declarant and the claimant is informed.
It should be noted that even though there is a time limit of 15 days for filing a dispute notice, in reality it is possible to do so for as long as the creditor has not applied for an enforceable instrument. Given that it is rare for a creditor to ask for such an instrument before 15 days have elapsed, the debtor frequently has more time than the period provided for by law, but without the certainty which applies during the first 15 days.
The debtor’s dispute notice suspends the procedure, which means that the immediate issue of an enforceable instrument is not possible. However, certain effects of the notification continue, for example, interest will continue to accrue from the date on which the debtor is notified of the order.
The judge examines the dispute notice. If the dispute notice is deemed to be well-founded, the judge indicates this by means of an order (accompanied by rationale), and rules that the earlier order made in application of article 922 is void. If the dispute notice is only partially justifiable, the judge makes an order in respect of that part of the debt which has been established. If the dispute notice is rejected, the judge rules against the debtor.
It is important to note that within the framework of this procedure, the judge can make a ruling without hearing the parties publicly. Article 926 of the NCPC gives the judge the power to cause the parties to attend a hearing, but there is no obligation to hear pleadings in open session.
If the debtor has not filed a dispute notice within 15 days of the notification, the creditor can ask the court to issue an enforceable instrument.
The application is made by written declaration at the court registry by the creditor or his representative and a note is made on the court register.
The judge allows the request if he is satisfied that the procedure has been followed correctly and makes the order enforceable.
If the order has been served on the debtor personally, the enforceable instrument shall have the effect of an order after trial and cannot be challenged except by making an appeal within 15 days of the date of service. However, if it has not been possible to serve the conditional order on the debtor personally, the enforceable instrument shall have the effect of an order by default and is open to challenge for up to 8 days from the date of service.
Last update: 28-06-2006