In Luxembourg, the main actor of enforcement is the judicial officer. Provided with a enforceable title which fulfils the conditions of its enforcement (see E-note 1), the creditor can approach the authorised judicial officer for the implementation of the enforcement measure.
The judicial officers are public officials (i.e. they establish official deeds which can be questioned only by way of forgery).
Moreover, judicial officers are ministerial officials (i.e. independent professionals who exercise one (or several) public service functions under authorisation of the State). They are independent professionals, who do not receive any orders from a government body, but whose activity is controlled – a posteriori – by their supervisory ministry (Ministry of Justice) represented by the Public Prosecutor.
The exercise of the profession of a judicial officer is strictly controlled by a set of legislative and regulatory texts, constituting a statute, which defines the activities of the function as well as how these activities are carried out. The main text which defines the statute of the profession is the amended law of December 4, 1990 on judicial officers.
1. What are the judicial officer’s activities?
The different fields of activities of the judicial officer are defined by the article 13 of the law of December 4, 1990.
This text differentiates between the main activities and the related activities.
The two types of main activities of the judicial officer must be distinguished: those exercised monopolistically and those that they share with other professions.
The 1st article of the law dated 4 December 1990 provides that judicial officers alone can carry out the following activities:
- service of documents;
- enforcement of judgements.
The inference of this monopoly is that, without exception, the judicial officers are liable to cooperate when legally required. The exception consists of prohibition to draw up a formal document for one’s parents and relatives by marriage.
Service of Proceedings
The service (“notification”) is the formality by which a person is officially informed of the contents of an act or by which he is summoned to appear before of a court, or finally, by which he is given knowledge of the contents of a decision of justice.
The service made by a process through a judicial officer (“signification”) consists of the judicial officer notifying the recipient of a document.
In certain cases, the law enforces this particular mode of service (summons, service of the judgment and order).
The main interest of the service through a judicial officer compared to simple service of document (“notification”) lies in the probative value of the delivery of the act to the addressee. Since the act was served on the addressee through a judicial officer, the addressee is presumed to have acknowledged of its content. Moreover, the proof of service, like any documents from the judicial officer, is an official document which can be questioned only by forgery (complex proceedings).
The legal certainty of this means of transmission is also reinforced by the hierarchy of the methods of delivery imposed by the law upon the judicial officer.
In fact, the law provides that the service must be “personal”, i.e. the document to be served must be directly delivered by the judicial officer to the hands of the recipient. The service in person can be carried out anywhere (article 654 CPC).
It is only under the assumption where personal service proves to be impossible (it is the judicial officer’s responsibility to mention in his report the circumstances characterising such impossibility), that subsidiary means of service are provided:
- Service at domicile or residence with a copy submitted to any person present on the premises – the said person must have accepted the delivery (article 155 – subsection 4 – new Code of civil procedure) ;
- If nobody can or wants to receive the document at the domicile, the judicial officer will leave a copy and a notice in the letter box. In addition, the judicial officer will sent by ordinary mail a copy of the act and notice (article 155 – subsection 6 – new Code of civil procedure).
- Service by Minute of Attempted service: if the peron upon whom the process must be served does not have any known domicile, residence or place of employment, the judicial officer will send the document to be served and the minute of attempted service to the last known address (article 157 – new Code of civil procedure).
By virtue of article 13 of the law dated 4 December 1990, the judicial officers alone are authorised to proceed with the compulsory enforcement of judgments or protective seizures, i.e. to proceed with all the coercive measures provided by the law in order to recover a sum or to render an asset of the debtor unavailable.
From the moment that it is required by a creditor, the judicial officer must provide his assistance and proceed with the recovery of the debt for which he has been appointed.
The creditor has the free choice of measures to ensure the recovery of the debt : the type of measure (protective measures or enforcement) and the type of the property (movable or immovable property) are left with his discretion, in the respect of the principles of necessity and proportionality of the measure. The execution of these measures cannot exceed what it is necessary to obtain the payment of the debt. The judicial officer in charge of enforcement is responsible for conducting the execution operations.
The judicial officer has a wide range of measures allowing him to enforce the enforceable title and recover : Seizure of furniture from the debtor for selling; Seizure of debt from the debtor ; Seizure of buildings, Eviction, etc…
competitive sector activities
Excluding activities strictly reserved for the judicial officer, the latter can also intervene in other matters, in conjunction with other professions.
By virtue of the article 13 of the law dated 4 December 1990, the judicial officer can proceed with an out-of-court settlement of any debts. In this regard, the judicial officer, appointed by a creditor who does not have an enforceable title, can implement non-coercive measures aimed at recovering the debts from the debtor with the debtor’s agreement and without seeking redress through the courts.
The judicial officer will indicate to the debtor the period beyond which , the creditor can take legal action, if the debtor has not settled his debts
Legal or voluntary sales
Judicial officers can proceed at premises, with estimates and legal or voluntary public sales of furniture and tangible household property.
The finding is a legal act which allows a party to constitute a proof, whether it is during a proceeding or outside any dispute.
The judicial officers are authorised by law to proceed, at the request of a judge or an individual, with any observation of acts, without deducing themfrom any resulting factual or legal consequences (this is the difference between a finding and anappraisal). The finding entered into minutes is a sort of neutral “photography” allowing the establishment of the proof of existence of a material situation given at a given time.
The judicial officer’s activity is incompatible with the exercise of any other profession.
2. Which judicial officer must be selected?
In accordance with the article 13 subsection 5 of the Law of December 4th, 1990, the judicial officers can act in the fullest extent of the judicial district for which he is appointed. Within this jurisdiction, the choice of the bailiff belongs to the citizen.
To choose a judicial officer, it is advisable to proceed in the following way:
- Select in the EJE directory, the country “Luxembourg”;
- Indicate the name of the city or the zip code of the addressee of the act or the place of residence of the debtor.
- Choose a judicial officer among the proposed list.
- The judicial officer will pass on in case of error the act or the request to a territorially competent colleague;
- You can always address a judicial officer, even not territorially competent, so that he can help you in the implementation of measures of execution.
3. How and and who pays the judicial officers?
Cost of intervention
The cost of establishing and issuing the acts of the judicial officers is generally fixed by a list provided by a decree of the Grand-Duke calculated regarding several rates and regularly amended.
Regarding the particular case of the service of a document from another country, particularly in the context of the Regulation (EC) No 1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters, Luxembourg has provided a unique fixed fee of 138 euros. The judicial officer of Luxembourg, which is required to carry out the service of an act in the territory of the Grand Duchy to an addressee, residing in Luxembourg, in accordance with the regulation (EC) N° 1393/2007, then charge a flat rate of 138 euros.
The amount of fixed fee for each deed is 60 euros.
Moreover, the judicial officer can claim:
- charges corresponding to transportation and advance charges ;
- quarter of he fixed fee by copy served;
- potentially, process servers’ issue fees ;
- potentially, file management charges.
Ad valorem duty payable by the debtor
When the judicial officers have received mandate to recover or receive the amounts payable by the debtor by virtue of a legal decision, a deed or a enforceable title, an ad valorem duty is allocated calculated as per the following brackets:
- 3 % up to € 2500 ;
- 2 % from € 2 501 to € 5000 ;
- 1 % from € 5001 to € 10 000 ;
- 0.5 % beyond € 10 001 .
This duty is calculated on the sums effectively received or recovered.
Charging of expenses
The charging of expenses differs according to whether the judicial officer intervenes outside any legal proceeding (1), in accordance with a legal proceeding (2) or still withinn the context of the execution (3).
Outside the legal proceedings
The cost of intervention of the judicial officer, according to an out-of-court settlement or execution of an affidavit which will not be ordered by the judge, is payable by the plaintiff.
According to legal proceedings
The charges incurred according to proceedings, such as service charges or findings ordered by the judge, are paid by the plaintiff. The main rule requires that the judgment declares that the charge of these expenses is borne by the loser, by way of expenses. However, sometimes the judge departs from this rule and each party incurs his own expenses.
According to the civil enforcement procedure
The civil enforcement charges are payable by the debtor. In case of insolvency of the debtor, the enforcement costs are borne by the creditor.
4. Discipline and responsibility of the judicial officer
By the controlled nature of the judicial officer’s function, the latter is subjected to a strict code of ethics, which are controlled by the Public Prosecutor.
The judicial officer’s responsibility must be viewed according to whether it is engaged with regard to his client (1) or vis-à-vis the debtor (2).
Judicial officer’s responsibility with regard to his client
The judicial officer, by virtue of the contract appointing him as agent which binds him to his client, is responsible on contractual grounds for the execution of this mandate.
To this effect, the judicial officer is liable to his client for several contractual obligations:
- Obligation of care, diligence and vigilance: the judicial officer must correctly execute the task for which he has been appointed. He must not show any negligence in the execution of the operations (for example, late notification of a deed) and will be responsible in the event of non-execution, incorrect execution or continued delayed execution.
- Obligation of council: the judicial officer must only inform his client and guide him towards the most appropriate proceedings for the latter.
- Obligation of regularity of the pleadings: the judicial officer must essentially deliver an act which is fully effective. It concerns an obligation of result, which thus prevents the judicial officer from being exempted from his responsibility due to an action of his client.
Judicial officer’s responsibility vis-à-vis the debtor
The judicial officer is the guarantor of the balance and respect of the rights of the creditor as well as the debtor. Thus, his general duty of information, care or diligence is also applicable with regard to the debtor as the judicial officer is the guarantor of the rights of the recipient, particularly in terms of service.
The debtor who considers having undergone a prejudice in accordance with a service of the judicial officer, can demand compensation before the Public Prosecutor.