Meeting of the working group Independence and Effectiveness in Beaulieu sur mer 17th and 18th October 2010
Answers to the questionnaire
To what extend do you apply EU law ?
To some extent (directives have been implemented into Luxembourgish law)
2. To what extend do you set aside rules of domestic law, if necessary, to give full effect to EU law ?
To some extent (e.g. CJEU case law)
3. Do you apply EU law even if neither of the parties in a case before you has relied on EU law ?
Usually not. (Only if a person has put forward arguments which obviously are based on EU law, but without indicating the references of EU law).
Article 41 Right to good administration
41.2 a The right of every person to be heard before an individual measure is taken.
According to Luxembourg procedural law, the government agency must inform the person concerned, he intends to withdraw or change a decision or, if he intends to take a decision without any initiative of the concerned person.
The person concerned may communicate his consideration about the intended changes within eight days and has the right to ask to be heard personally.
41.2 b The right of every person to have access to his or her file
This right is guaranteed by the Luxembourg procedural law, but only when asked for.
41.2 c The obligation of administration to send all the documents to the complainant ?
Every administrative decision must be based on legal grounds.
The decision must give a specific justification, by indicating the legal reason and the factual circumstances upon which it is based, only if it :
Does not grant an application or a claim
changes a previous decision
answers on application for reconsideration
differs from an advisory opinion
According to the Luxembourg procedural law, a brief indication of the legal grounds and facts is sufficient.
Article 47 Right to an effective remedy and to a fair trial
47.1 The right to an effective remedy before a tribunal
There are no time limits for the administration to decide upon an application of a party.
However, if the administration has not replied to an application within three months, the application is deemed to be rejected (“silence of the administration”) and the party is allowed to appeal to the administrative court.
Usually it is not necessary to appeal to a higher administrative authority before being entitled to appeal to a court, except in some matters, like in fiscal matters, the claimant must apply first to the director of the tax administration.
Luxembourg has a court of first instance : the “tribunal administratif” and a court of appeal the “Cour administrative”.
47.2 The right of a fair hearing.
Luxembourg respects the right for everyone to get a fair and public hearing within a reasonable time by an independent and impartial tribunal. Everyone is given the possibility of being advised, defended and represented, as a public financial assistance is granted to people who can’t afford their defense by themselves or to apply to a court.
There exist two types of remedies in the Luxembourg procedural law : the proceedings on annulment (recours en annulation) and the proceedings for reversing (recours en reformation).
Prcedural law grants the right to introduce a proceeding on annulment against every type of administrative decision. In fact, it is the ordinary law remedy which can be introduced in all circumstances, even if the legal text does not specially mention any remedy. The submission of a proceeding for reversing however is limited and it can only be lodged if a legal text provides so.
The mission and the competence of the administrative judge depend on whether a proceeding on annulment or a proceeding for reversing is referred to him.
If a proceeding on annulment is referred to the administrative courts they are confined to decide on the legality of the case. They are neither allowed to control the advisability of the decision, nor can they substitute their own decision to the administrative decision. They can only control the administrative authorities’ competence, and check whether it has not exceeded its power to decide, or if it has not violated the law. As a consequence the administrative courts will annul the administrative decision.
But if a proceeding for reversing is referred to the administrative courts, they can appreciate the appropriateness and suitability of the administrative decision, by controlling the facts of the case referred to them and can therefore substitute the administrative decision by their own decisions.
If necessary the courts nominate an external independent expert, as they do not rely on experts working for the administration.
There is a two party system before Luxembourg administrative courts. Usually the individuals are represented by a lawyer, whereas the administration is represented by a representative of the government.
The administrative courts mostly limit themselves to the arguments put forward by the parties.
Chapter I General aspects
Having no council of judiciary or any other kind of independent authority, the main point and the principle having the biggest impact in this chapter for Luxembourg is the fact that every country is supposed to have a council of judiciary. Concerning the creation and the organization a lot of questions remain unresolved by this recommendation (cf chapter IV).
Chapter II External independence
What is meant by “an appropriate working relationship” between judges and institutions and public authorities ?
Should a judge be able to participate in the development of legal texts and laws ?
Concerning the communication between the courts and the public, Luxembourg recently got a spokesperson who does press and communication services for the judicial courts however the administrative courts do not have such a spokesman.
Chapter III Internal independence
Chapter IV Councils for the judiciary
As mentioned above Luxembourg does not have any council of judiciary. However the question of such a council is very much discussed on the political level and it is likely to be introduced soon. The introduction of a council of judiciary will need a constitutional revision.
The recommendation fixes general guidelines for the introduction of a council of judiciary but it is not very clear about the mission, the organisation and the functioning of a council of judiciary.
Which could be the missions of such a council ? Could it intervene in the selection/nomination, the promotion and disciplinary actions of judges ?
According to the recommendation not less than half the members should be judges elected by their peers, but what about the other half, how should it be composed and shouldn’t members of the executive and legislative powers or politicians be excluded ?
Chapter V : Independence, efficiency and resources
Chapter VI : Status of judges
Chapter VII Duties and responsibilities
Chapter VIII Ethics of judges