Questionnaire - Luxembourg

Luxembourg, August 25, 2009

Meeting of the working group Independence and Effectiveness

in Beaulieu sur Mer on 9th and 10th October 2009

Questionnaire on fastening of procedures before administrative courts and possible tensions with fundamental rights: Answers from Luxembourg

ad question 1:

There are no statistics available on this subject in Luxembourg. Generally speaking, except in very rare cases, the time limits set down by the European court on Human Rights have not been exceeded by Luxembourg administrative courts. The only exceptions might concern complex administrative cases in a branch of law with which the judge was not familiar, which had as a consequence that the judge not only had to examine the complexity of the case but also to make himself familiar with the branch of law in which he did not work on a daily basis.

ad question 2 :

Administrative Court (first instance)
Evolution of the number of judgments made by the administrative court of first instance during the last years:

* the number of judges during these years was not always the same due to leaves granted for family reasons

2) Supreme Administrative Court

Evolution of the number of judgments made by the supreme administrative court during the last years:

(* only judgments made by the chambers)

These abstract figures do only partially reflect the increase of the work of the judges at these two instances since the complexity of the cases introduced with both courts is increasing from year to year in specific technical branches of law, as for example in fiscal law, in competition law, public procurement law etc.

ad. question 3.1 :

The figures under question 2 give indications about the average number of judgments made by one single judge. The number of cases registered each year by both courts follows more or less the evolution of the number of judgments made by them.

Since 1st of January 2009, the administrative court of first instance is composed by 10 judges and the supreme administrative court is composed by 5 judges.

ad. question 3.2 :

From a legal point of view, the number of judges during the last five examined years has not changed, the only changes in the number of judges working at the administrative court of first instance were due either to the promotion of a judge to the supreme administrative court or to leaves granted on personal grounds i.e. motherhood. It has however to be noted that during the examined period five new judges have been appointed to the administrative court of first instance and that since there does not exist any specific training for the lawyers who would like to become an administrative judge, these newly appointed judges will have to do their own training beside their normal work in collaboration with their colleagues. This situation has of course as a consequence an increase of the amount of work to be done by all judges at the court.

There was no increase in the number of judges during the examined years at the supreme administrative court, the number of judges having remained the same since the creation of the court on 1st of January 1997.

ad. question 3.3. :

At the level of the administrative court of first instance, it is generally felt that there is a lack of staff. In fact, since the complexity of the cases is increasing from year to year, there would be an advantage to have more specialized judges in specific branches of the law. However, this will only be possible in case there will be an increase in the number of judges. Such an increase would indeed create the possibility to have specialized chambers. For the time being, this is difficult to realise since there are only 3 chambers and since all the cases have to be dealt with in chambers.

The judges don’t have any assistance.

ad. question 3.4 :

No. However, it has to be noted that since the judges don’t have any assistance, they have to do all the preparational work of their judgments themselves, inter alia the researches and the writing of the draft judgments.

ad. question 4 :

Not applicable. Both administrative courts of the Grand-Duchy of Luxembourg have competence over the whole territory of the country.

ad. question 5.1 :

All cases are dealt with in chambers at first and at second instance, with the exception of summary proceedings which are dealt with by a single judge. Of course, the fact that the cases are judged in chambers might be considered to be a source of delay. However, the actual system gives mainly a guaranty of the quality of the judgments rendered. For the time being, it is not intended to change the actual system.

ad. question 5.2 :

There is no specialisation of courts in Luxembourg nore of judges. However, the administrative court of first instance tries, since the 1st of January, 2009, to have some specialisations inside the chambers, that means that specific cases belonging to specific branches of law are only dealt with by one specific chamber. However, this new system concerns only a limited number of branches of law but it is the general feeling among the judges that this system could avoid delays. As it has already been said before, specialized chambers dealing with only one branch of law would have the preference of many judges. For example, there could be one chamber dealing only with fiscal law matters, another one with aliens, one for public procurements and one for building permits and all other matters of urban plans. This is however not possible for the time being since there are only three chambers which have mainly competence for all branches of administrative law including fiscal matters and aliens.

ad question 6.1 :

No, the contrary is true since the laws applicable for administrative litigation fix very strict delays for the parties to introduce their written documents. In other words, the procedural rules fixed by the Luxembourg laws help reducing the delays.

ad. question 6.2 :

According to Luxembourg law, even so the proceedings are mainly in written form, all cases are orally heart by the court and no exception to this rule is provided for by the applicable laws. This system does not cause unnecessary delays and it gives the judges the possibility to ask specific questions of law or of fact to the parties represented at the oral hearing. The oral hearing also gives the parties the possibility to insist more specifically on specific subjects or questions of fact which they deem important. Until now, it was not felt that the system of oral hearings should be abolished.

It is not the aim of such oral hearings to take evidence and only in very rare cases the court asks for witnesses to come to the oral hearing in order to get evidence from them. Experts nominated by the court give their opinion in writing to the court and normally there is no necessity for them to come to the oral hearing.

Concerning summary proceedings, only the request presented to the president of the court has a written form. All other parties concerned by the case give their opinion only orally to the president during a formal hearing at the court.

ad. question 6.3

The use of witnesses and experts in order to accelerate proceedings should not be encouraged since it might in most cases be a cause of delay. According to Luxembourg law, the parties participating in a case have to bring to the judge the proof of the facts they consider as being useful to the solution of the case. Witnesses may be heard by the courts themselves, but this is only very rarely the case. In some rare cases, witnesses are heard by the administration. Generally speaking, the role of witnesses in administrative litigation is not very important and only in very rare cases witnesses have an important role during these litigation procedures. One of the exceptions might for example exist in cases where the reality of family life has to be proved, in case foreigners want to get the right to reside in Luxembourg for family reasons for example.

On a regular basis, the administrative courts nominate experts of their own. These experts should be independent from all the parties involved in the case and more specifically they should not be civil servants or have other links with the administration. In some cases, the courts may refer to the expertises ordered by the administration, in case the conclusions of these technical documents are not challenged by any other party. The experts used by the administration are usually civil servants except in cases the administration does not have experts in a specific technical area in which case they use independent experts.

The experts nominated by the administrative courts are persons specialized in specific technical areas in which the court does have no expertise. Concerning the costs of the experts, at a first stage, the costs have to be beared by the claimant and after the judgment has been rendered by the court, the party who looses the case has to finally pay for all costs of the litigation procedure including the costs of the experts. There might only exist some very rare exceptions to this rule which have to be specially motivated by the court in its judgment. Parties enjoying legal aid have their costs covered by the State. These costs include of course the costs of the experts.

ad. question 6.4 :

No. No.

ad. question 6.5 :

a): Generally, and except if specific laws provide for a specific type of complaint which may be addressed to the administrative jurisdictions, these may only verify the legality of the administrative decision (“Recours en annulation/proceedings for annulment”). However, specific laws concerning specific areas of law give the administrative jurisdictions the competence to verify in addition the opportuneness of the administrative act that means that in these cases the administrative court may replace the appreciation made by the administration of the facts submitted to it by its own appreciation. This type of proceedings are called “Recours en réformation” and in case the court does not agree with the appreciation made by the administration or if it estimates that the administrative decision is unlawful, it may replace the decision of the administration by a new decision, this possibility being excluded in case only proceedings for annulment may be introduced at the administrative courts, since in these cases the administrative decision may only be quashed, the file being in this case sent back to the administration in order for it to take a new decision in accordance with the reasoning made by the court in its decision.

b) No restrictions of judicial review are existing between the two levels of the administrative justice.

ad. question 6.6 :

We do not see for the time being any necessity to change procedural rules in order to help accelerating procedures.

In case witnesses would not appear before court, the facts which they should explain to the court would not be proved sufficiently and in this case the court could not take them into consideration in its judgment. Probably, no other consequence would result from this situation which however never happened until now before a Luxembourg administrative court.

In case experts are in delay to deliver their expertise, either the court will give them another delay by a specific jurisdictional decision or the court will nominate a new expert in replacement of the former one.

ad. question 7.1 :

No.

ad. question 7.2 :

In some very rare areas of law, the legislator fixed specific time limits within which administrative decisions should be taken. In addition, specific very strict delays are laid down by law in order for the administrative courts to issue their judgment within a specific short delay. This is the case for foreigners residing illegally on the territory of the country which are detained on the basis of an administrative order in a place which still is very similar to a prison (“Rétention administrative”). The only other cases where such strict delays exist concern immigration cases, and more specifically specific types of administrative decisions concerning refugees.

ad. question 7.3 :

If the delays imposed by law to the courts are not followed, there will be no direct consequence except perhaps an action introduced by the parties which suffered a prejudice at the civil courts in order to get damages.

Concerning the administrations, the fact that they do not respect the delay within which they should issue their decision might, according to specific laws result in a positive decision, although unwritten. This is then specifically provided for by law. In all other cases, the fact that the time limits are not followed by the administration might also result in damages which a civil court might agree on, in case a specific complaint is made to them by the relevant parties. Moreover, there exists a general legal rule according to which, in case the administration does not answer to a request filed with it in a delay of three months, there exists an implicit, unwritten decision of refusal which may be challenged at the administrative courts.

ad question 8 :

No new system of remuneration for judges has been introduced in Luxembourg. The only differences which exist between the individual salaries for judges are made on the basis of the length of time they exercise their functions and they also depend on the level in the hierarchy to which they have been appointed by the head of State.

ad. question 9 :

The presidents of the respective courts do not have any responsibilities concerning the salaries for judges.

ad. question 9.1 :

The respective presidents of the courts do not have any means to fasten procedures.

ad. question 9.2 :

No.

ad. question 9.3 :

Not applicable .

ad. question 9.4 :

There may be disciplinary measures against a judge who is responsible for the undue delay. We do not see on which basis a judge could be prosecuted.

ad. question 10 :

National procedural laws do not provide for any legal remedies in case of undue delays. However, on the basis of a law made in 1988 concerning the liability of the State, one could imagine that in case undue delays for rendering a judgment have caused a prejudice to a party, this party might sue for damages against the State in order to have its prejudice repaired. No such cases are however known until now in Luxembourg.

These legal remedies should be compatible with the independence of judges.

ad. question 11 :

The judges are remunerated according to very strict and precise regulations which are based mainly on the length of time they exercise their job as a judge and on the level in the hierarchy to which they have been appointed by the head of State, the supreme administrative court having to give its opinion for the jobs in the highest levels of the hierarchy.

The lowest salary for an administrative judge is approximately 5.564 .- €, and the highest salary, being the salary of the president of the supreme administrative court, is approximately 11.456.- €, these figures being gross amounts, the net amounts depending on the personal and the family situation of the judge.

ad. question 12 :

No.

ad. question 13 :

We think that “bonus systems” and “individual subjective salaries” are to be considered as being incompatible with the judges’ independence.