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Recognition and enforcement procedure
What is the formal procedure for seeking recognition and enforcement of a foreign judgment?
According to EU Regulation 1215/2012 of 12 December 2012 on the jurisdiction, recognition and enforcement of judgments in civil and commercial matters, foreign judgments rendered in the European Union are recognised on the production of:
- a copy of the decision;
- a certificate; and
- where necessary, translations of both documents.
These judgments are immediately enforceable without any special procedure.
Foreign judgments subject to a treaty can be recognised and enforced once the requirements provided by the treaty are respected.
Foreign judgments not subject to any treaty or EU law are subject to the conditions set out in Article 678 of the New Code of Civil Procedure (NCPC) and Articles 2123 and 2128 of the Civil Code. Those judgments will be granted legal effect in Luxembourg only after being submitted to the exequatur procedure. The court will verify whether the foreign judgment respects the following requirements regarding the ease of enforcement:
- The original judge had jurisdiction to make a decision according to Luxembourg private international law.
- The original judge had jurisdiction to make a decision according to its own procedural law.
- The foreign court applied the law as designated by Luxembourg’s conflict of laws provisions.
- The foreign procedure rules have been respected.
- The defendant had proper notice of the proceedings.
- The decision does not contravene any Luxembourg public policy rules.
- The foreign decision contains an order that can be executed.
What is the typical timeframe for the proceedings to grant recognition and enforcement?
The timeframe for the proceedings to grant the recognition and enforcement depends on whether the foreign decision is:
- an EU decision;
- a foreign decision which is subject to a treaty; or
- a foreign decision which is not subject to a treaty or EU law.
Decisions rendered in an EU member state fall under Articles 679-685 of the NCPC and are recognised and immediately enforceable in Luxembourg.
Foreign decisions which are subject to a treaty fall under Article 680 of the NCPC. In order to have legal effect in Luxembourg, such decisions must be submitted to the simplified exequatur formalities (ie, the applicant must file an ex parte partition with the president of a district court, who will grant an order if all conditions are respected).
Foreign decisions which are not subject to a treaty or EU law fall under Article 678 of the NCPC and must be submitted to the exequatur formalities in order to be recognised and enforced in Luxembourg. The foreign judgment must be submitted to a district court and a prosecutor must determine whether the public interest will be jeopardised. This written proceeding demands filing of briefs between the parties’ attorneys. The recognition and enforcement of foreign judgments which are not subject to any treaty or EU law generally takes a few months, making it a relatively long process.
What fees apply to applications for recognition and enforcement of foreign judgments?
Proceedings for recognising and enforcing foreign judgments are not subject to initial court fees.
According to Article 238 of the NCPC, procedural costs encompass:
- fees resulting from preliminary investigations;
- bailiff fees;
- clerk fees;
- expert fees; and
- the costs set out in the Grand-Ducal Regulation of 21 March 1974 concerning the rights and emoluments awarded to lawyers and solicitors, as amended.
Procedural costs do not include lawyers’ fees.
Procedural compensation is set out in Article 240 of the NCPC and includes all lawyers’ fees excluding any procedural costs. Parties must request procedural costs during the proceedings.
Applicants in proceedings for recognising and enforcing a foreign judgment need only pay lawyers’ and bailiffs’ fees.
Luxembourg’s low legal fees make it an attractive jurisdiction for recognising and enforcing foreign judgments.
Must the applicant for recognition and enforcement provide security for costs?
Applicants need only pay lawyers’ and bailiffs’ fees.
Are decisions on recognition and enforcement subject to appeal?
In principle, recognition and enforcement decisions can be subject to appeal.
According to Article 682 of the NCPC, defendants may appeal judgments authorising the execution of a foreign judgment which is subject to a treaty or EU law provided that exequatur procedures are followed:
- within one month of the notification of the decision if the applicant is domiciled in Luxembourg; or
- within two months if the applicant is domiciled abroad.
Appeals are introduced by writs served by a court bailiff.
In accordance with Article 683 of the NCPC, applicants may also appeal against a decision rejecting the execution of foreign judgments which are subject to a treaty or EU law provided that exequatur procedures are followed within one month of the notification of the decision of refusal.
Appeals must be filed within one month from the notification of the decision if the applicant is domiciled in Luxembourg or within two months if they are domiciled abroad.
How does the enforcing court address other costs issues arising in relation to the foreign judgment (eg, calculation of interest, exchange rates)?
Under EU regulation, in order to enforce a judgment from one EU member state in another, applicants must provide the competent enforcement authority with a certificate issued by the court of origin, certifying that the judgment is enforceable and containing an extract of the judgment and (if applicable) relevant information regarding the recoverable procedural costs and the calculation of interest.
Enforcement against third parties
To what extent can the courts enforce a foreign judgment against third parties?
A person domiciled in an EU member state may be sued as a third party in an action on a warranty or guarantee or in any other third-party proceedings, in the court of the original proceedings unless these were instituted solely with the object of removing them from the competent court’s jurisdiction.
Luxembourg courts can therefore enforce foreign judgments against third parties.
Partial recognition and enforcement
Can the courts grant partial recognition and enforcement of foreign judgments?
Under Article 685 of the NCPC, foreign judgments may be partially enforced.
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