LUXEMBOURG Law and Practice Contributed by: Elisabeth Omes, Stephen De Ron and Lorenzo Cappelli, Elvinger Hoss Prussen
• the judgment has been formally served on the debtor by a bailiff ( huissier de justice ). However, some judgments are provisionally enforce - able ( exécutoires par provision ), meaning that they may be enforced immediately, notwithstanding the possibility of appeal. Under Luxembourg law, provisional enforcement may apply: • where the court expressly orders it; or • where specific statutory provisions provide for immediate enforcement. Where provisional enforcement has been ordered, an appeal does not automatically suspend enforcement. Enforceable Titles Although not strictly a category of judgments, domes - tic judgments form part of the category of enforceable titles which permit compulsory enforcement through • judgments declared provisionally enforceable; • payment orders that have become enforceable; • judicial settlements; • enforceable notarial deeds; and • certain foreign judgments and arbitral awards that have been recognised or declared enforceable in Luxembourg (noting, however, that foreign judg - ments and arbitral awards provide a legal basis for attachment proceedings even before their recogni - tion (exequatur) is requested in the country). For the purposes of simplicity, the concept of “enforce - able judgment” set out hereafter will refer to enforce - able judgments resulting from judicial proceedings. Appeal An appeal involves bringing a case before a higher court, where different judges reconsider the case. In principle, there is a 40-day deadline for lodging an appeal. According to Article 588 of the New Code of Civil Procedure ( Nouveau Code de Procédure Civile – NCPC), an appeal will have suspensive effect if the a bailiff. They include: • final court judgments;
judgment does not order provisional enforcement in cases where such enforcement is permitted. In some cases, the provisional enforcement can also be ordered during the appeal proceedings, before a decision on the merits is rendered. 2.2 Enforcement of Domestic Judgments Final domestic judgments or other enforceable titles may be applied in Luxembourg if the debtor, having been served with the judgment or other enforceable title, has failed to comply voluntarily with the obliga - tions imposed therein. Enforcement proceedings are governed primarily by the New Code of Civil Procedure and are carried out by a bailiff, who has the exclusive statutory authority to enforce judgments. Role of the Bailiff As stated, bailiffs have the exclusive statutory author - ity to enforce court decisions or orders. In particular, they are empowered to take all coercive measures provided for by law to enable creditors to recover sums owed or to render the debtor’s property una - vailable. To commence the enforcement process, the creditor must provide the bailiff with the enforceable title. Enforcement may take various forms including, inter alia, the attachment of bank accounts, seizure of movable goods/assets, and eviction from residential premises. Main Enforcement Measures Attachment of bank accounts (saisie-arrêt) One of the most frequently used enforcement mecha - nisms is the attachment of bank accounts or funds held by a third party – most commonly a bank – on behalf of the debtor. The principal difficulty is that the creditor may not know which bank holds the debtor’s assets, making it difficult to identify the appropriate third party in the hands of which the attachment is made.
282 CHAMBERS.COM
Powered by FlippingBook