The administrative jurisdictions comprise the Cour administrative (administrative Court of second instance - appeal matters) composed by 5 judges and the Tribunal administratif (administrative Court of first instance) composed by 9 judges.
In order to be appointed as an administrative judge in Luxembourg, it is necessary having obtained a complete law degree (master) and after a probation period of 3 years in a law office the final probation exam (examen de fin de stage judiciaire).
The members of the Cour administrative are appointed by the Grand-Duc upon advice of the Cour administrative and must have 30 years accomplished.
The President and the 2 Vice-presidents of the Tribunal administratif are appointed by the Grand-Duc upon advice of the Cour administrative, whereas the other members of the tribunal are appointed by the Grand-Duc without such an advice. In practice the various candidates are selected on their professional background and have to pass an interview lead by the President of the tribunal.
The members of the Tribunal administratif must have 25 years accomplished.
What are the terms of this procedure?
There are no mandatory terms, the selection/appointments are made upon vacancy of a judges position in a short delay (1 – 2 months).
Is there specific professional background such as previous work record in the administration or general legal training included?
In order to be admitted it is of benefit having gained experience as a lawyer or in a public administration or as a judge in another court, but there does not exist any legal requirements in this respect.
What are the possible contents examined during this procedure?
It is of course of advantage to demonstrate during the interview and via the curriculum vitae strong skills in public law, as well as in other areas of law (civil law etc.).
Who makes the decisions in the course of the selection/appointment procedure and who selects and appoints the aforementioned decision –makers?
Does the law provide for judicial remedies against decisions concerning appointment/selection?
As the selection or non-selection decision is an administrative decision, it can be challenged by a claim precisely before the Tribunal administratif.
Does there exist any difference in the way the selection/appointment of judges of the civil/penal courts takes place?
The career of the civil/penal judges is completely different. The probation exam after the probation period of 2 years is considered as a selection exam. Most of the civil/penal judges practice as trainee judges (attachés de justice) during the probation period of 2 years.
Is it possible for “external candidates” to be appointed as judges at different court levels and instances?
Such a possibility does not exist in the Luxembourg system.
Are those legal provisions concerning the ways of selection/appointment of judges constitutionally entrenched?
Only article 35 of the Luxembourg Constitution states that the Grand-Duc is the competent authority to proceed to the nomination of civil functions, including judges.
Describe in brief the conditions of service and tenure (security of tenure, suspension and removal, transfers etc.) of the judges:
Is the term of judicial appointment for life?
Yes, until retirement age (65 years accomplished).
Is it possible to extent the term of service of judges beyond retirement age? In this case who has the power to take the decision?
Is it possible to appoint temporary judges?
Is it possible for the judge to be removed or transferred and under what specific terms?
The judges may be removed for incapacity reasons (mental or physical) or for disciplinary reasons by a decision of the Cour administrative.
A transfer to another office or court is not possible without the consent of the person concerned.
Where does the power of removing or transferring judges from one office to another lie?
See above 2.4.
Is it possible to transfer between the different divisions and types of courts?
In theory it is possible, but practically such a transfer was never made.
Is it possible to transfer to government administration and back?
Yes, in theory it is possible with the consent of the candidate, but with the risk to loose length years of service as an administrative judge.
Does a transfer to the administration have a career-promoting effect?
Is incompetence a ground for removal of a judge from the bench?
No, only under the aspect of disciplinary reasons.
Financial security (salaries, remunerations, pensions etc.)
Who decides about judges’ salaries?
The law indicates the salary and the salary increases based on the length of service and the degree of the function.
In what way and under what conditions are the salaries of judges increased? Are they accompanied by annual cost-of-living adjustments?
See above 3.1; there is a cost-of-living adjustment but not on an annual basis depending on the inflation (index).
Is there a need for executive approval or executive decision to initiate the increase?
Yes, the cost-of-living adjustment is decided by the Government.
Is it possible for the judges to initiate judicial proceedings against the State with regard to their remuneration and which are the competent courts in this case?
In theory yes, the competent court would be the Tribunal administratif, but this was never seen in practice.
Is there a uniform salary scheme for all courts, divisions and types?
Career prospects (promotions etc.)
Describe briefly the ways in which the promotions of judges are made. What kind of procedures are to be applied in this context?
The administrative judges are promoted to the next rank upon vacancy of this rank by a decision of the Grand-Duc upon notice of the President of the Tribunal administratif or the Cour administrative.
The different ranks are judge, first judge, vice-president, first vice-president and president for the Tribunal administratif and conseiller, first conseiller, vice-president and president for the Cour administrative..
Indicate the competent body for the promotions and the criteria applied thereto.
See under 4.1.
Are judges of the administrative courts promoted to the Supreme Administrative Court and under what conditions (seniority etc.)?
There is no Supreme administrative Court in Luxembourg. Of course, judges from the Tribunal administratif can be promoted to the Cour Administrative.
Can judges accept any government assignment after retirement?
Yes, in theory it is possible.
Standards of conduct (professional and service Code, public activities, law-related activities etc.)
Can a judge be involved in law-related activities (arbitration, law practice, writing books)?
Yes, except law practice.
Can a judge be involved in business activities?
Is the judge entitled to sideline employment?
Is there a Code of conduct of judicial behaviour?
No, there is no special written code of conduct.
Is there a Commission on Judicial Conduct or any other body to supervise the behaviour of a judge?
The Cour administrative is the judicial body concerning the discipline of the judges.
Describe the restrictions - if there are any - on judges’ right to express their views?
The judges can not express themselves about pending trials and political opinions and in general must behave in a manner that does not demonstrate a lack of impartiality.
Inspection of judges and disciplinary proceedings
Who is in charge of the inspection of judges and in what way is this inspection conducted?
The Presidents of the Tribunal administratif and the Cour Administrative are in charge of the inspection of judges with respect to the discipline and the quality of work.
Are there specific criteria for the evaluation of the performance of judges?
There are no specific criteria for evaluation, but of course the judge has to evacuate his work with best possible quality and within a reasonable period of time.
Who holds the legal power to initiate disciplinary proceedings against the judge?
The President of the tribunal administratif or the President of the Cour administrative by themselves or upon request of the Minister of Justice.
Who decides the disciplinary tribunal and its composition? Is it permanent or ad hoc?
On a permanent basis, the Cour administrative.
Is there a legal remedy against the decisions of the disciplinary body provided for by law?
There is no legal remedy.
Is there a special procedure for investigating and prosecuting a judge?
There is a hearing held by the Cour administrative.
Indicate who is responsible for the central administration of administrative jurisdiction
The president of the Cour administrative under the supervision of the Minister of Justice.
Individual and collective independence of the judiciary
Is it possible for sanctions (of any kind) to be imposed on a judge based upon the content of his/her decision?
Can a judge face disciplinary charges solely on the basis of the substance of his/her ruling? Is this the case when a judge declines to follow a supreme court’s decision?
No, and he/she runs no risk if he/she declines to follow a supreme’s court decision.
Do you think that accountability of judges threatens judicial independence?
In Luxembourg, there is no accountability procedure.
Can a judge be held liable in civil actions for his/her judicial acts (e.g. be sued for damages for actions taken in his/her judicial capacity)?
Not personally, the victim can only initiate a civil action in order to claim damages against the Luxembourg State for malfunctioning of a court .
Are judges immune from prosecution in other courts for their judicial acts?
No, except for acts in their capacity as an administrative judge.
Can criminal charges be brought against a judge for actions on his/her duties?
In theory, yes.
Do judges face sanctions for “decisional conducts”?
Yes, under the aspect of their discipline.
Judicial administration at the Court level (division of work among judges and assignment of cases etc.)
Is the division of work among judges and the assignment of cases to each judge or panel done according to a predetermined rigid plan or is it flexible and may be changed easily?
The assignment of cases is very flexible and decided by the Presidents of the respective chambers.
Who is in charge of case assignment?
The presiding judge.
Self - administration of justice
Is judicial administration effected through independent judicial self-governance?
Describe briefly how the governing body/committee is elected?
No such governing body/committee exists under Luxembourg law.
Is there any restriction for the members of the above body to participate in other syndicalistic bodies?
Human, financial and material resources necessary for the performance of judicial functions
Who is responsible for the administrative staff employed in the courts?
The President of the Cour Administrative, except for their appointment (Grand-Duc or Minister of Justice).
Who is competent to make available the necessary funds for the performance of justice?
The Minister of Justice.
Who has the power to execute and spend the budgetary allocations?
The President of the Cour administrative.
Have there been cases of executive pressure on judges in any form?
Can judges be members of the Government?
Is it allowed for judges to participate in administrative bodies having decisive or consultative competences?
Only in bodies with consultative competence or committees preparing drafts of legislation, and only in cases where these committees have competences in areas which could not come in conflict with the judges work or concerning areas of law he/she has to apply as an administrative judge.
Do the administrative courts have the power to challenge administrative acts of general character (presidential decrees etc.)?
Yes, directly or indirectly if the lawfulness of such an act is challenged.
Relations with the legislature (retroactive legislative reversals of cases etc.)
Can the legislature override a decision of a court if they disagree with the way the latter has applied or interpreted a law?
The legislature can never override a court decision, but can of course issue a law with a different solution for the future.
Have there been retroactive legislative reversals of court decisions?
Has there been legislation abolishing courts with results of statutory removal of judges and if so, how was it received?
Can judges be members of the legislature?
Do the administrative courts have the power to challenge laws?
The administrative courts can challenge the constitutionality of laws in submitting the case to the Constitutional Court.
Interest representation of administrative judges
Are judges organised in associations for furthering their rights and interests?
Yes, in an association called “ALMA” (Association Luxembourgeoise des Magistrats Administratifs).
Are there separate professional representations for administrative judges, or a joint association of judges?
It is a separate professional representation.
What are the specific activities of the aforesaid association? Describe them in brief.
The association protects in general the interests of the administrative judges, promotes the science of administrative law and the training of the judges.
Do judges have the right to strike or to hold a demonstration?
A strike is forbidden, no demonstration was held until now.
Is criticism of judges, judicial decisions and judicial conduct in the press existent, frequent, rare? What are the relevant grounds for this? Could you give major examples?
Judicial decisions of public interest are frequently commented in the press, but harsh critics are rare.
Are trials open to T.V.?
Basically it is not forbidden, but it never happened in an administrative court.
Do you think that press reporting and commenting on judges, courts, judicial decisions and matters pending before the courts poses a challenge to judicial independence?
No, it promotes transparency and strengthens the acceptance by the public of the decisions rendered.
The administrative judge and the public opinion
Do you think that a judge’s engagement in politics or speaking his/her mind in favour of a political party compromises the public confidence in the judiciary?
Of course, it would compromise the independence of the judge and the confidence of the public, that’s way political engagement is forbidden.
Are there institutions that favour strong public opinion in defence of the independence of the judiciary?
Judges and politics
Is it allowed for judges to become member of political parties?
It is not forbidden but not specifically allowed.
Are there any major restrictions for judges with regard to their political activities? What are the consequences in case of breach?
Judges can not express publicly their political opinions and can not be elected.
Otherwise they have to resign as a judge.
Are there any other restrictions for judges as far as their public activity is concerned?
No, except in case his/her public activities may influence his/her independence and impartiality.
Have there been cases where political leaders attacked the judges and criticised their decisions?
Political leaders sometimes do not agree with the issue of a case but they do not criticise the institution in itself or the credibility of the system.
The judge and his work
Describe briefly the kind of the initial training and the qualifications of an administrative judge prescribed by law and his further education and/or formation, inter alia in European law, emphasizing more particularly the aspects which might help the judge to improve the efficiency of administrative justice.
The candidate administrative judge must have obtained a law degree comprising at least four years of law studies accomplished either at a French or a Belgium university and he/she must then attend during approximately 6 months specific courses on Luxembourg law organised by the University of Luxembourg and pass an exam in order to verify his/her knowledge about Luxembourg law. These Luxembourg law courses are common to all legal professions in Luxembourg, that means that all lawyers or judges, whether intending to work for the ordinary courts or for the administrative jurisdictions, have to pass the before-mentioned exam on Luxembourg law if they want to exercise one of these professions in Luxembourg. After this Luxembourg law exam, the persons intending to become an administrative judge, as well as those intending to exercise the profession of a lawyer or of an ordinary judge in Luxembourg, have to accomplish a trainee period during 2 years and at the end of this period they have to pass a general exam on all main legal matters. On the bases of the results obtained at this exam, the trainee may postulate for a job as an administrative judge. Once appointed as administrative judge, there is no further trainee period to be accomplished by the candidate.
It has to be stressed that there does not exist a specific training or further education for administrative judges in Luxembourg and since the candidate who wishes to become an administrative judge, needs not to be a trainee judge neither with the ordinary jurisdictions nor with the administrative jurisdictions, he/she needs not attend specific courses dealing more particularly with the functioning of a jurisdiction.
The administrative judges may participate on a voluntary bases in seminars or other conferences held by specialised training institutions in Luxembourg or abroad and special arrangements have been made with the Ecole Nationale de la Magistrature in Paris and the Richterakademie in Germany to facilitate the participation of Luxembourg judges, and more specifically of Luxembourg administrative judges, to attend seminars organized by these institutions. Luxembourg administrative judges are also encouraged to attend seminars organized by the Academy of European Law situated in Trier (Germany).
Do you think that a higher salary paid to the judge and, more specifically, other (material) advantages which may be granted to him in consideration of the output might help to improve the efficiency of administrative justice?
The judge, generally speaking, and more particularly an administrative judge, should be granted an appropriate salary in order to guarantee his/her independence. This salary should be laid down by law and it should not depend on the number of judgments or amount of work accomplished by the judge. It has to be insisted in this respect on the fact that not only the number of judgments pronounced by a judge during a specific period of time is important but also the quality of the work done by him/her.
Please indicate the number of administrative judges in your country and compare it to the population being under their jurisdiction (an average number can be indicated per country).
The number of administrative judges in Luxembourg is 9 judges for the administrative court of first instance (tribunal administratif) and 5 judges for the administrative court of second instance (Cour administrative), that means 14 judges per 460.000 people living in Luxembourg, this means an average of one administrative judge per 32.857 inhabitants.
Please indicate the number of legal or other assistants (including clerks, secretaries …) working for the administrative jurisdictions, indicating more particularly the average number per judge working at an administrative court.
At the administrative courts, there are no qualified legal or other assistants who might help the judges with their legal work. Five clerks and 3 secretaries are working for the administrative jurisdictions. The proportion of administrative judges to non-judge staff is: 1: 0,57. It also has to be insisted in this context that the widespread use of computers leads to a constant reduction of secretarial staff.
Describe briefly the working conditions of an administrative judge in your country, emphasizing more particularly the technical means which are at his/her disposal, as well as legal or other assistants helping him/her in his/her duties, his/her access to libraries and data bases, access to internet and so on…
All administrative judges have at their disposal a computer and most of them are using it also in order to prepare their judgments. Moreover, all computers have access to internet and specialised data bases comprising an in-house data base including all administrative judgments made by both courts, access to a data base managed by parliament and including all laws since second world war and of cause data bases managed by the European Court of Justice and the European Court of human rights of Strasbourg. There do not exist any kind of legal or other assistants helping the judge in his/her legal duties, except the clerks being responsible for the management of the files and of the records. A library including the basic books and specialised literature from Luxembourg, Belgium, France and Germany is at the disposal of the administrative judges.
Describe briefly the internal working regulations of an administrative court and more particularly the way in which the work is distributed among the judges, the person in charge of the distribution of the work to be done by the respective judge and of the control of his/her work, indicating inter alia the criteria according to which the way of distribution is decided as well as the criteria according to which the work of the administrative judge is controlled, as well as the possible sanctions which may be taken against the judge who does not fulfil the legal or internal requirements concerning the quality of his/her work. Describe in this context internal control procedures (if there are any).
Except for the urgent matters introduced as summary proceedings, dealt with by the president of the court of first instance or a judge designated to act as his deputy, all other proceedings are dealt with by chambers composed by 3 judges.
The files introduced at the administrative courts of first or second instance are first of all registered in a record held by a clerk and then submitted to the president of the court who distributes them among the chambers (there are two chambers at the court of first instance and also two chambers at the court of second instance). Inside the chamber, the president of the chamber distributes the work among his/her colleagues and the judge to whom a file is transmitted, will prepare it in detail, together with his/her colleagues from the chamber, before the hearing will take place. He/she is also in charge of preparing a draft judgment after the hearings, which will be submitted to his/her colleagues for comments and discussions, before the finalisation of it.
There are no legal or other rules laid down or other criteria according to which the files are distributed among the chambers or to specific judges inside the chamber. These distributions decided on the one hand by the president of the court and on the other hand by the president of the chamber should have as a general aim to distribute the work so as to guarantee an equal treatment between the judges.
The general rule existing for all judges, including the administrative judges, is that he/she is totally independent concerning the organisation of his/her work and there are no means to influence or control the work of a judge, except in case of serious fault committed by a judge in which case he/she risks to be submitted to disciplinary proceedings.
Judgments of the lower court (that means administrative court of first instance) are controlled by the administrative court of second instance, in case an appeal is lodged with this court.
Decisions of a chamber are approved by a majority, that means by at least two out of three judges. The presiding judge does not have a vote which is more important then the votes of his colleagues.
There do not exist any internal control procedures concerning the quality of work or the quantity of judgments made by individual judges or chambers.
There does not exist any kind of specialisation among the judges which means that every judge may be allocated any kind of files introduced with the court independently of the matters in dispute and the authority having taken the relevant administrative decision against which a claim is introduced with the court and the different legal fields.
The jurisdictional procedures
Describe briefly the access to administrative justice, indicating more particularly whether the complaint or file has to be introduced by a lawyer or any other professional and the conditions under which the plaintiffs may have access to legal assistance. Can you also indicate whether the procedures are accomplished only on a written basis or whether also oral hearings take place, indicating in which cases such oral hearings are organised and the persons who, at these occasions, are allowed to make oral submissions to the court.
At the administrative courts of first and second instance, all complaints have to be introduced by a lawyer, except, mainly, for legal actions taken against decisions of the fiscal authorities, in which case there is no obligation to introduce the file by a lawyer, as far as the court of first instance is concerned. In this case, a lawyer is only required in case an appeal is made against a judgment at the administrative court of second instance. Registered auditors may also introduce a complaint made at the court of first in fiscal matters.
All plaintiffs may have access to legal assistance in case they fulfil the conditions laid down by the specific law. In this case, the lawyer will be reimbursed directly by a state authority.
The proceedings at the two administrative courts (first and second instance) are essentially made on a written basis and oral hearings have to take place for all complaints made but during these oral hearings, the plaintiffs or their representatives may only give explanations about their written means and arguments and they are normally not allowed to submit new legal means to the court. In case the plaintiffs are obliged to have their complaint introduced by a lawyer, it is only the lawyer who is allowed to make oral submissions to the court.
An important exception to the above-described rules exists in case summary proceedings are introduced with the administrative court of first instance (no such proceedings may be introduced with the court of second instance): In this case, only the complaint itself has to be written down on a deed to be filed with the court, the means and arguments of the other parties involved in these proceedings are allowed to submit them only on an oral basis.
Although the plaintiffs may ask for assistance at the respective courts, there does not exist a specific department or specialised civil servants working with the courts who are specifically trained to provide such assistance to the plaintiffs. Generally, the main assistance given to the plaintiffs or, more frequently, their lawyers concerns procedural matters and typical administrative formalities.
Describe briefly the different types of procedures which can be introduced at an administrative court, insisting inter alia on the differences existing between those procedures.
Except the summary proceedings which may be introduced with the administrative court of first instance, there are two main types of contentious proceedings:
proceedings for annulment (recours en annulation), in which case the court is only competent to verify the lawfulness of an administrative decision, the existence (reality) of the facts on the basis of which the decision has been taken and the proportionality of the decision
proceedings for reforming (recours en réformation), in which case the court has the same competences and the same powers than the administrative authority being the author of the administrative decision against which the complaint is introduced with the court, that means that the court also can appreciate the opportuneness of the decision without however being authorised to appreciate the political opportuneness of such administrative act. In case the court decides that the decision has not been taken in accordance with applicable laws and regulations, it not only can decide to cancel the administrative decision but it can take a new decision instead of the decision of the administrative body.
Except in case it is otherwise provided for by law, only proceedings for annulment may be introduced with the administrative courts.
Generally, the administrative court of second instance has the same competences and powers as the court of first instance and it can not only decide on legal matters but it can also analyse the facts on the basis of which the administrative decision has been taken. Some restrictions to this principle have been made by a recent law of 5 May 2006 concerning asylum which has also made an important exception to the general rule according to which an appeal may be introduced with the administrative court of second instance against all judgments made by the court of first instance.
Describe briefly the different steps of the procedures to be followed at an administrative court of your country, starting with the date the file is introduced until the date the judgment is pronounced, insisting more particularly on the deadlines which may have to be respected by the parties in order to introduce written notices, briefs, pleadings, statements as well as on the deadlines to be respected by the judge to pronounce the judgment.
After the introduction of a file, strict deadlines have to be observed by the other parties (the governmental or other public authority which has taken the decision and interested parties) to submit their written notices in order to answer the legal means addressed against the administrative decision. At a first stage, the author of the administrative decision and the third parties to which the complaint has been notified have a delay of 3 months in order to submit to the court and to the other parties their written statements. At a second stage, the plaintiff may reply to these written statements by another written notice to be submitted to the court and the other parties within a delay of one month. Finally, the author of the administrative decision and the third parties may submit to the court and to the other parties a final written statement.
These delays are legally prescribed and have to be strictly observed. Exceptions may only be made in case the parties have been specifically authorised by the court. This means that principally no more than two written statements may be made by each of the parties. New written statements may only be made pursuant to an authorisation obtained by the court, which is generally the case when new legal means produced by the court itself or if new facts appear in the course of the proceedings, in which case the court normally authorises the parties to produce another written statement on these new elements. Abridgment or prolongation of these terms may be decided by the court according to strict rules defined by the law and upon request by one or more of the parties.
According to the law, the administrative authority has to submit the administrative file to the court, with which the complaint has been lodged, within a specific time frame so that all other parties may consult it.
After the last written statement has been submitted to the court and/or after the expiration of the terms provided for by the law, the representatives of the parties are invited to participate in an oral hearing in order to decide whether the case is sufficiently prepared in order to be presented to the court. If this is the case, the case is postponed to another oral hearing fixed at a date being one, two or three weeks later, on which date the case will be presented by the representatives of the parties to the court. No new legal means may be presented to the court at this stage, except means which may be considered by the court to be of “public order” that for example means based on the constitution or on human rights. All cases have to be discussed at the court during a public hearing. At the end of the pleadings, the court decides to take the case into private consultation. Neither the law nor any other regulation provides for a time limit within which the judgment has to be pronounced. The administrative courts do their best efforts to pronounce the judgments within reasonable delays which should not exceed 5 weeks. On the date the judgment is pronounced, the written document is available to the parties and it includes not only the operating part of the judgment but also the written grounds. On the date the judgment is pronounced during a public hearing or at the latest the day following the day of the pronouncement, the judgment is notified by the court to the parties.
Exceptions to the above-mentioned rules exist in specific urgent matters concerning inter alia cases where the plaintiff, being a foreigner residing illegally on the territory of the country, is detained in a specific centre reserved for such foreigners and in cases dealing with specific types of asylum procedures.
Similar procedures to those described here-above also exist at the administrative court of second instance, the procedures to be followed at this court being more or less the same than those which have to be followed at the administrative court of first instance, with the exception however that the first reply (written statement) to be produced by the other parties except the plaintiff is fixed at one month instead of three months.
Concerning summary proceedings, the president of the administrative court of first instance, being the only court competent for this kind of proceedings - no appeal can be introduced against decisions taken by the president in these matters -, the oral hearings which have to take place during a public session of the court, are normally held within a few days after the day the complaint has been introduced with the court. The judgments pronounced in these matters are delivered to the parties in very urgent matters, concerning generally foreigners who shall be removed from the national territory, on the day the oral hearings have taken place and in other matters, in the next days following such oral hearing. No appeal may be introduced against such judicial decisions taken by the president of the court or his/her representative.
Describe briefly the internal organisation of an administrative court, and indicate whether the judges are working in chambers or if they are acting as individual judges, as well as the criteria according to which a case is dealt with either by a chamber or by an individual judge.
All cases, except summary proceedings, are dealt with by a chamber consisting of three professional judges. No summary proceedings may be introduced with the administrative court of second instance.
Which kind of procedures do apply in case an urgent matter of any kind is introduced with an administrative court? Indicate also what kind of decisions may be taken by the judge dealing with this kind of urgent matters.
What kind of interim measures or measures of suspensive effect may be granted by
your Court upon the receipt of a complaint?
a) suspension of the administrative act complained against,
aa) becomes effective when served to the parties,
bb) may also have retroactive effect,
b) my Court may order any interim measure deemed necessary when the interests
of justice so require.
What are the legal criteria for a decision to give an order of suspensive effect or
order an interim measure?
a) Does the prospective outcome of the proceedings have any relevance?
b) Please give a short description of the content of the legal provisions concerned.
After a complaint has been introduced with the administrative court of first instance, the plaintiff may, after having introduced such complaint, introduce summary proceedings in order to obtain a provisional decision until the chamber to which the complaint has been attributed by the president of the court has issued its judgment.
The president or his/her representative may either suspend the administrative decision or order provisional measures.
The decisions taken by the president of the court or by his/her representative become effective as soon as notified to the parties but they cannot have any retroactive effect.
In case the plaintiff can prove irreparable and important damage in case no provisional measures will be decided by the court and his/her legal means are considered to be serious by the president, he/she will decide upon provisional measures. This means that the prospective outcome of the proceedings have a relevance in this respect.
The request addressed to the president in order to obtain summary proceedings has to be introduced on a written basis addressed to the court and notified by the plaintiff himself/herself to all other interested parties or author of the decision, except in case the author of the decision is a governmental authority, in which case the written request is notified to the competent governmental body by the court itself. No other written statements have to be submitted to the court or to the other parties before the public oral hearing will take place. Normally, such oral hearings take place either within a very short delay, for example within one hour in case a foreigner is supposed to be removed from the territory within short delays or within a few hours up to a few days. During the oral hearings, all parties represented will submit orally or, if they wish to do so, on a written basis, their legal means and arguments to the president of the court who will decide within either a few hours or a few days and notify his/her written decision within the same delay to the parties, including not only the operating part of the judgment but also the judgments’ written grounds.
No appeal may be introduced at the administrative court of second instance against the judgments pronounced by the president of the court during summary proceedings.
No summary proceedings may be introduced at the administrative court of second instance.
Indicate the types of control the administrative court may exercise over the activities of the administration or over the decisions taken by it: is it a control only of the legality of its decisions or can the judge also control whether the discretion was used by the authority in the spirit of the law? Is the judge allowed to take a decision instead of the administrative authority? Do there exist other types of control procedures?
As indicated under 2.2 here-above, two types of complaints may be introduced with an administrative court: the “recours en réformation” and the “recours en annulation”. Except these two different types of control procedures, as described under 2.2., there do not exist other types of controls the administrative courts can have over the decisions taken by the administration.
Generally, the judge is not authorised to investigate himself/herself the facts of a case. Only in exceptional circumstances, he/she may investigate the facts himself/herself or appoint an expert to give his/her opinion about the reality of certain facts.
In case the administrative judge is competent to analyse the matter submitted to him/her under the form of a “recours en réformation”, he/she (chamber) is authorised by law to take a decision instead of the administrative authority without however taking into consideration or controlling the political criteria on which the administrative decision might be founded.
Not only in case the judge (chamber) has been submitted a case which he/she (chamber) is competent to analyse as a “recours en réformation”, but also in case the judge (chamber) is only competent to analyse a case under a “recours en annulation”, he/she has always the right to control whether the discretion granted by the law has been used by the authority objectively and in accordance with the intention of the law, this control being however reduced in the context of the “recours en annulation” in which case the judge may only verify whether the authority has not acted in violation of the principle of proportionality.
Indicate the delays of the procedures introduced with an administrative court, starting from the date of introduction of a complaint until the date the judgment is pronounced (average delays).
Is there any remedy against undue length of the proceedings for the parties of the
proceeding before courts? Is this
a) a remedy provided by law (please give a quotation of the legal provision)
b) a remedy of informal character (please give a short indication of its content).
What may be the result of such a remedy?
a) actual acceleration of an individual proceeding
b) payment of just satisfaction
c) reduction of a penalty imposed
d) disciplinary measures against individual judges
Which authority is responsible to deal with such a remedy?
a) the president of the Court
b) a supervising judicial body
c) an administrative authority
On average procedures last
at the first instance administrative court: 7-8 months
at the administrative court of second instance: 5 months
Law does not provide for remedies in case of undue length of the proceedings and there does not exist any kind of remedy of informal character.
Which kind of means are at the disposal of the administrative judge (or the parties) in order to provide for a correct execution (enforcement) of the judgment. Does the judge have the possibility to give injunctions to the administration? Do there exist specific procedures which the parties may use in case the administration does not voluntarily execute the judgments?
The administrative judge (chamber) is not authorised to give any injunctions to the administration.
In case the judgment is not executed by the public authority, the plaintiff may address a new request to the court having pronounced the relevant judgment in order to have a special commissioner appointed by the court, who may either be a member of the chamber having pronounced the judgment or a high civil servant who will be responsible to take the appropriate decision, in execution of the judgment, on behalf of the public authority concerned.
Which kind of new technologies are at the disposal of the administrative judge and do the procedures to be followed at the administrative court provide for the possibility to use standard forms or electronic transmittal techniques (for example, are the parties allowed to introduce the briefs by way of mail or other electronic transmittal systems) ?
Although computers with access to internet and to the above-mentioned data bases are standard, it is for the time being not allowed to submit any legal actions, submissions, documents or other written statements to the court by electronic means except normal letters addressed to the clerk of the court in order to receive information about the state of his/her file or to inform him/her and the court about actions which should be taken by the court in order to fix a specific date for the public oral hearings. For the time being, the laws and rules of procedure do not allow parties to introduce their written statements or requests by fax, only original documents signed by the lawyer or, if authorised, by the parties themselves are accepted by the courts.
It has to be added that no standard forms, prepared by the courts or provided for by any laws or regulations, can be used by the plaintiffs in order to introduce their requests, complaints or other written statements.
Do the administrative courts in your country possess central computer systems to which all judges are linked, and comprising inter alia data bases, general information, laws, procedural acts, access to electronic files and so on
The courts possess one central computer system to which all judges, clerks and secretaries are linked and which comprises inter alia a central data base including all judgments pronounced by the two courts and summaries as well as keywords about the most important decisions taken by the courts. Since it is not possible to have electronic files, the central computer system cannot be used by the judges or the clerks to have a direct access to the files, to the procedural acts included in them or the stage of instruction of the file.
A general data base containing the applicable laws since world war 2 is at the disposal of the judges at the parliament.
Indicate whether you think that the facilities used by the administrative courts and the means put at the disposal of these courts by the State are appropriate and, if this is not the case, indicate the problems you have noted in this context and the possibilities to remedy.
The facilities used by the two administrative courts and the means put at their disposal by the state could be considered to be appropriate, especially compared to those means and facilities put at the disposal of the ordinary courts which should however be transferred to new buildings within the next few years.
Indicate the total amount of money spent by the State to ensure the functioning of administrative justice, compared to the total amount of the State budget
Total amount of money spent by the state to insure the functioning of administrative justice: 2.753.678 €, total amount of the state budget (expenses): 8.011.578.321 €.
Do there exist alternatives to the contentious proceedings, for example mediation, arbitration procedure and so on in your country?
In Luxembourg, there do not exist alternatives to the contentious proceedings in order to avoid litigation at the administrative courts, except possible interventions by the ombudsman in order to facilitate arrangements to be made between governmental or other public authorities and the citizens. These possible interventions by the ombudsman do however not suspend the delays within which proceedings may be introduced at the administrative court.
Which kind of effective legal remedies can be used against a judgment of an administrative court of first instance?
An appeal may be introduced by one of the parties which has lost its case at the administrative court of first instance. Such appeal may only be introduced at the administrative court of second instance ( Cour administrative).
Do the administrative courts in your country have a person in charge of the relations with the press (press speaker)?
For the time being, the Luxembourg administrative courts do not have a person in charge of the relations with the press. However, this proposal is being discussed at the court.
Do the administrative courts in your country prepare annual reports about their activities? Is this report available to the public? To whom/ or to which body this report is it addressed?
The administrative courts (first and second instance) prepare a common annual report about their activities. This report is addressed to the minister of Justice and published, together with the reports of the other jurisdictions and authorities being under the supervision of the minister of Justice, in a brochure which is available to the public. These reports are written in rather general terms and contain more specifically general statistics about the cases dealt with by the two courts during the previous year.
Does there exist a possibility to access by internet or by any other means the judgments pronounced by the administrative courts and other documents which might be relevant for the public/parties?
The judgments pronounced by the administrative court of first instance are available on the website of the administrative jurisdictions as soon as they are pronounced by the court. In addition, once a year, the administrative courts make available to the public summaries about the most important decisions pronounced by the courts.
Finally, each individual may get from the respective court a copy of a judgment in case of specific interest.
Do the parties of the case pending at an administrative court have the possibility to get information, by electronic or other means, about their file and the state of the proceedings
The parties of a case pending have access to the files at any stage of the proceedings until the end of the oral hearing and the beginning of the private deliberation of the judges. They are in particular entitled to consult the files submitted to the court by the administration. They may also get copies of the documents included in the files, except if the relevant documents are difficult to copy (for example plans, maps and so on). There does not exist any electronic mean for the parties to get information about their case pending at the court. The parties or their representatives may also get oral information about their case from the clerk of the respective chamber dealing with their case.
Do the administrative courts of your country have the possibility to exchange information or experience with other national or international courts or with courts situated in other countries and, if this is the case, could you give more information about this kind of exchanges?
For the time being, Luxembourg administrative courts do not have the possibility, from a formal point of view, to exchange information or experience with other national or international courts or with courts situated in other countries. The only contacts existing for the time being are personal contacts between individual judges.
Control of the activities of the administrative courts
2.1 Do the administrative courts prepare statistics about affairs settled during the judicial year, about the stock of affairs pending and about the number of affairs dealt with by individual judges?
The statistics prepared every year still are very general and they mostly concentrate on the number of affairs dealt with by the chambers during the past year, in consideration of the area of law the case is dealing with.
2.2 Do the administrative courts possess electronic systems to ensure the follow-up of the affairs pending (e.g. electronic file system…)?
No such electronic systems exist in Luxembourg
2.3 In your country, are there mutual or internal evaluations (on periodical basis) of the quantity and quality of the work to be done by the court? Which is the body which is competent to prepare this kind of evaluations, are they done by the court itself or by any other bodies, authorities or courts? Do there exist control procedures of the judicial work done by the administrative judges and, if this is the case, by which kind of authorities (national or international) are these procedures accomplished?
No such evaluations exist in Luxembourg.
2.4 Which kind of sanctions may be taken against individual judges in case of misbehaviour or in case the work to be done by judges has not been delivered in certain delays
No such sanctions exist except in case disciplinary measures are taken against a judge in case of important faults committed in the execution of his/her functions.
2.5 Do there exist compensation procedures in case of errors committed by the court or individual judges or in case of delays in the proceedings? If this is the case, could you briefly describe the kind of compensation procedures which may be used by the victims of such errors or delays.
In case decisions (judgments) taken by the administrative courts lead to damages, the victim may introduce proceedings at the civil courts in order to get compensation in case it can prove that there was a malfunctioning of the court. The victim has to prove during these civil litigation procedures that a damage has occurred to it and that this damage has been directly caused by the court.
2.6 Do there exist possibilities for the public or the parties to introduce complaints against the way the administrative courts work
There do not exist specific legal possibilities for the public or the parties to introduce complaints against the way the administrative courts work except the appeal which may be introduced at the administrative court of second instance against a judgment pronounced by the court of first instance and the above-mentioned civil litigation procedures in order to get damages.
Do there exist studies about the feed-back of “customers” (in a broad sense of meaning) of administrative justice, on the bases of inquiries made among the public, the parties or their lawyers, about the functioning of the court?
For the time being, no such studies exist.
There are no apparent malfunctions in the administrative judicial system in Luxembourg. The main reason is that the administrative jurisdictions only exist under the current system since January 1, 1997 with a sufficient number of judges and administrative staff.
Could you indicate which, in your opinion, might be possible remedies?
Have you noted whether effective measures have been introduced in recent times to improve the system in your country?
The most effective measure has been introduced by article 5 of the Law, dated June 21, 1999 concerning the procedure in administrative courts and concerns the procedure delays.
After a claim has been filed (within a period of 3 months after having taken knowledge of the challenged administrative act), the defendant party has a 3 months period at his disposal to file a written reply (mémoire en réponse).
The claimant then has another 1 month period at his disposal to file an answer to the reply of the defendant party (mémoire en réplique) and the defendant party has a final 1 month period at his disposal to reply to the arguments of the claimant (mémoire en duplique).
As the procedure is exclusively written, all the arguments are known after a maximum delay of 5 months after the claim has been filed and a judgment can be rendered, after a public hearing, approx. 1 month later.
As these delays are compulsory, a judgment is normally rendered within a delay of 6 months to 1 year after the claim has been filed.