LUXEMBOURG Law and Practice Contributed by: Fabio Trevisan and Laure-Hélène Gaicio-Fievez, BSP
The idea is that the judge hearing the application for interim measures merely orders an investiga- tive measure. Ordering an investigative measure does not decide anything on the merits of the dispute. There is an important limitation under Article 350 of the NCPC: proceedings must not already be brought on the merits. Probationary summary proceedings are preventive summary proceed- ings – ie, before any trial. Under Article 932 of the NCPC, the judge may also order in summary proceedings all measures which are not seriously contested or which are justified by the existence of a dispute. Article 933 allows the judge to implement provi- sional or reinstatement measures necessary to prevent immediate harm or to terminate a clear violation of the law. In addition, the judge may order seizure meas- ures, in particular in the event of difficulties relat- ing to the enforcement of a judgment, such as protective seizures or garnishments. 6.2 Arrangements for Obtaining Urgent Injunctive Relief In case of emergency, an ex parte petition may be filed. In such circumstances, a decision can be rendered within 48 to 72 hours. If the normal procedure should be followed, it can take from a couple of weeks to a few months. 6.3 Availability of Injunctive Relief on an Ex Parte Basis In specific situations, a judge may render a deci- sion without an adversarial debate, a departure from the established adversarial principle and rights of defence. This is, however, implicitly
allowed under Article 66 of the NCPC: “Where the law permits or requires that a measure be ordered without a party’s knowledge, the party shall have an appropriate remedy against the decision adversely affecting it.” 6.4 Liability for Damages for the Applicant If a defendant deems an action brought against them to be abusive, they can seek damages based on tort law, specifically Article 1382 of the Civil Code. Importantly, claims can only be made for actual damages suffered, such as law- yers’ fees; punitive damages are not recognised in Luxembourg. 6.5 Respondent’s Worldwide Assets and Injunctive Relief Luxembourg law does not provide for the possi- bility of injunctive relief against worldwide assets of a respondent. 6.6 Third Parties and Injunctive Relief Third parties may be ordered to produce docu- ments or preserve assets, shares, and so on. They can also be ordered to refrain from trans- ferring these items to a party or from undertaking certain actions requested by one of the parties. 6.7 Consequences of a Respondent’s Non-compliance If a party fails to comply with an injunction, the judgment typically stipulates fines ( astreinte ). Moreover, the judge who initially issued the order is also competent to handle issues related to its enforcement.
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