LUXEMBOURG Law and Practice Contributed by: Fabio Trevisan and Laure-Hélène Gaicio-Fievez, BSP
5. Discovery 5.1 Discovery and Civil Cases
The key criteria for voluntary intervention are that the intervener must be a third party with a legitimate interest in the case, and they must be someone who could have filed a third-party opposition against the eventual decision. Involuntary intervention, on the other hand, occurs when an existing party to the proceed- ings compels a third party to join. This interven- tion must be initiated through a formal sum- mons. The target for involuntary intervention is a third party who has an interest in opposing the final judgment and who could also have filed a third-party opposition against the prospective decision. 4.5 Applications for Security for Defendant’s Costs Pursuant to Article 257 of the NCPC, defend- ants may require that a bond be provided by the foreign plaintiff if the latter is not located in an EU member state, in a member state of the Council of Europe or in a state with which Lux- embourg has entered into an international con- vention that exempts such a guarantee. Subject to this exception, there are no rules allowing the defendant to order the plaintiff to pay a sum of money as security for the defendant’s expenses. 4.6 Costs of Interim Applications/ Motions There are no specific costs for interim applica- tions or motions. 4.7 Application/Motion Timeframe The timeframe will depend on the complexity of the case as there are no rules providing a specif- ic timeframe. However, some procedures allow the plaintiff to obtain a decision fairly quickly (eg, under Article 933(2) of the NCPC, a creditor can obtain a court order requiring the debtor to pay a sum of money rather quickly).
Under Luxembourg law, there is no discovery procedure in civil proceedings. Instead, the legal framework operates on an adversarial basis, obliging each party to timely and voluntarily submit essential evidence to substantiate their claims or defences. In the pre-trial stage, a potential claimant has the option to gather specific documents or evi- dence via summary proceedings. The presiding summary judge has the authority to mandate the production of a particular document before the filing of a lawsuit. However, this is not an avenue for fishing expeditions; the claimant must clearly specify the required documents, such as a copy of an email exchanged between specified par- ties on a given date. Additionally, claimants may collect written wit- ness statements prior to any lawsuit. During the lawsuit, the judge may ask the par- ties to clarify their position on relevant factual matters prior to closing the evidential phase. In doing so, parties are allowed to provide testi- monial evidence to bolster their respective posi- tions. 5.2 Discovery and Third Parties The holder of a pertinent document, whether an opponent or a third party, may be compelled to produce it during the proceedings. To initi- ate this, a formal request can be made to the court, specifying the necessity of the particular document for substantiating one’s position. As stated in 5.1 Discovery and Civil Cases , fishing expeditions are not permitted.
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