The formal notice is the act by which the creditor expresses his will to demand performance of the services due and, failing this, to draw the legal consequences of non-performance.
The formal notice must include :
Although article 1146 of the Luxembourg Civil Code requires this in the case of claims for damages, it should be noted that the law of 18 April 2004 on payment periods, which transposed Directive 2000/35 EC into national law, unified the system of late payment interest.
This law stipulates that formal notice is no longer required in order for late payment interest to be charged, and distinguishes between the following different situations:
The judicial phase of debt collection in the Grand Duchy of Luxembourg may be initiated using different procedures, depending on the specific circumstances of the dispute.
The main factors to be taken into consideration in order to determine the most appropriate legal procedure in Luxembourg for debt recovery are :
This simplified procedure is reserved for claims involving a sum of money not exceeding EUR 10,000. These cases fall within the jurisdiction of the Justice of the Peace.
The application is made by a declaration made to the clerk's office of the Justice of the Peace containing, under penalty of nullity :
Any documents (contracts, invoices, etc.) substantiating the existence, amount and validity of the claim should be attached to the application.
the basis of this request, the President of the Justice of the Peace issues an order to pay within fifteen days of notification.
Following this order, two situations may arise:
In this case, either party may request that the matter be brought to a hearing at which the justice of the peace, in a reasoned judgment, will confirm or reject the conditional payment order.
The convicted party may, however, exercise the usual remedies against this decision, i.e. opposition and/or appeal.
The writ of summons is the standard procedure for initiating proceedings in respect of all claims up to EUR 10,000.
It is issued by a bailiff to the debtor, whether he is in France or abroad.
The summoned defendant is required to appear on a fixed date.
Unlike the payment order procedure, the summons procedure necessarily involves appearing at a hearing to obtain a judgment.
This is the simplest and most effective procedure for recovering a debt in Luxembourg. It has the advantage of dispensing with the need for the creditor to use a bailiff to initiate proceedings and also enables the debtor to state his position before the pleadings.
By analogy with the payment order procedure, the debtor must be domiciled in the Grand Duchy of Luxembourg.
The procedure is initiated by means of an application lodged at the registry of the Tribunal d'Arrondissement with a view to being granted an advance on a claim exceeding EUR 10,000.
This application must contain the following information :
On the basis of the information provided, the judge will issue an order to pay the amount claimed into the hands of the creditor, failing which to lodge a counterclaim within a period of fifteen days.
Following the objection, the parties may request that the case be set down for a hearing so that they can discuss the merits of the claim before the judge.
The order, which is provisionally enforceable, may be appealed and/or opposed.
The writ of summons is the standard form of initiating proceedings for claims exceeding EUR 10,000.
It is delivered by a bailiff to the debtor, who must appoint a lawyer to represent him in the proceedings.
This procedure makes it possible to obtain a judgment in disputes that require an examination of the merits and where debtors generally present defences and contest the merits of the claim.
The civil enforcement procedures available under domestic law have certain shortcomings when it comes to pursuing debt recovery from debtors domiciled abroad. With this in mind, and with a view to creating a genuine ‘European judicial area’, the European Union has begun to introduce Community procedures to facilitate the cross-border recovery of debts.
This Community regulation came into force on 21 January 2005 and covers the following situations:
This Regulation applies to judgments, court settlements and authentic instruments relating to uncontested claims.
A claim is deemed to be uncontested:
This regulation makes it possible to apply to the court registry of a Member State to issue a European enforcement order, which will enable the creditor to dispense with the exequatur procedure.
This Community regulation applies to civil and commercial matters in cross-border disputes, whatever the nature of the court. It does not cover tax, customs or administrative matters, nor the liability of the State for acts or omissions in the exercise of State authority (‘acta jure imperii’), and has been applicable since 12 December 2008.
It has created a genuine European order for payment procedure for the recovery of liquidated and payable pecuniary claims, enabling proceedings to be brought against a debtor domiciled in a Member State without recourse to exequatur.
This Community regulation applies in civil and commercial matters in cross-border disputes, whatever the nature of the court, where the amount of a claim does not exceed EUR 2,000 at the time the claim form is received by the competent court, excluding interest, costs and disbursements.
It came into force on 1 January 2009.
