An evolving legal framework regarding the use of cannabis in Luxembourg : towards a possible legalisation of recreational cannabis to the same extent as therapeutic cannabis ?

ARTICLE

REAL, Avocats à la Cour

 

Luxembourg is one of the first countries in Europe to have recently adopted a law aiming to authorize the use of cannabis for medical purposes, with the aim to reduce the pain and suffering from certain patients.

 

The law of July 20th 2018 modifying the law of February 19th 1973 on the sale of medical substances and the fight against substance abuse decriminalized the use of hemp (cannabis) or any products derived from the same plant if such use was prescribed and obtained for medical purposes.

 

The new article 30-2 of the aforementioned law foresees that « every doctor authorized to exercise his or her profession in Luxembourg is authorized to prescribe medicinal cannabis to a patient if the following conditions are fulfilled :

  1. The patient must suffer from a severe illness in an advanced or terminal face, or from an illness whose symptoms have a prolonged negative impact on his or her quality of life if those symptoms can be minimized through the administration of medicinal cannabis,
  2. The doctor must have previously undergone special training on cannabis pharmacology, its various forms, therapeutic indications and side effects, as well as on the modalities and scientific aspects of its prescription ».

 

Three months after the introduction of medical cannabis, Luxembourg’s Health Minister Etienne Schneider outlined that over 120 patients had been treated through the use and prescription of this substance.

 

Furthermore, the Luxembourgish Government announced in its coalition agreement of December 2018 that a wider legislation on the use of cannabis for recreational purposes could be adopted.

 

Concerning this matter, a petition on the recreational use of cannabis demanded, in addition to the law allowing such use, that coffee shops be opened where customers would be free to legally consume cannabis as it is currently practiced in the Netherlands.

 

If such a legislation were to be passed, Luxembourg would be the first country in Europe to legalize this substance in its entirety through a legally coherent framework.

 

The principal objectives of the coalition agreement are to decriminalize, or even to legalize under conditions that remain yet to be determined, the production, the sale, the possession and the recreational use of cannabis on national territory for adult residents. It equally aims to reduce the market pertaining to illicit trade and the psychological and physical dangers linked to such trade. The fight against crime related to the illegal supplying of cannabis is amongst the highest priorities of the Government.

 

The Government announced its intention to introduce a « residential clause » in the new law, exclusively allowing the selling of cannabis to residents and thereby suggesting that the use of recreational cannabis would be reserved to residents too.

 

As the law on legalizing the use of cannabis is currently being drafted, only the future will tell if Luxembourg is to follow the example set by Canada, who legalized the cultivation, sale and use of cannabis in October 2018.

Real, Avocats à la Cour : Criminal court case

During the trial that was held on April 23rd, 2019, I was honoured to represent a young woman who became a victim of sexual assault in September 2016 in Luxembourg. I hope that my support will allow to end the silencing of victims of sexual abuse, even if only a little bit. It is a battle we must fight together. 

A September night turned into a nightmare for a 18 year-old girl:

On a September night in the year 2016, a young eighteen-year-old girl was riding the train on her way to the children’s home she had been placed in, coming back from visiting her mother. On the route from Rodange to Luxembourg station, a thirty-two-year-old man stepped into the same train compartment. He then allegedly exposed his private parts and invited the young girl to sit next to him. He proceeded to inappropriate and unwanted sexual touching. When she escaped, he presumably followed her until she could find help in the capital’s main train station. She lodged a complaint on the same night.

The law firm REAL Avocats à la Cour defended the victim during the trial on April 23rd, 2019. The State’s Attorney requested a sentence of 15 months with probation. A judgment is awaited on May 21st, 2019.

The articles published in the Luxemburger Wort on April 23rd, 2019 outline the facts of the case.

https://www.wort.lu/de/lokales/gericht-mann-soll-18-jaehrige-im-zug-sexuell-belaestigt-haben-5cbf477fda2cc1784e342a8f

https://www.wort.lu/de/lokales

 

The major changes of the family law reform applicable as of the 1st November 2018

REAL, Avocats à la Cour

 

ARTICLE 1

The guarantees deriving from the institution of a family court judge: between simplification, rapidity and reduction of procedural costs for the family’s best interests

 

The family law reform operated by the Law of 27 June 2018 assigned a number of competences, that may be embraced under the concept of « family law », to one single judge, namely the family court judge, hereafter referred to as the « judge ».

 

These competences, initially dispersed between different jurisdictions including the « juge de paix », a « chambre civile du tribunal d’arrondissement », the president of the « tribunal d’arrondissement », the juvenile judge or the guardianship judge are nowadays incorporated in the Article 1007-1 of the new Code of Civil procedure.

 

The judge has herewith jurisdiction for all the procedures relating to marriage, including for example disputes about the spouses’ respective rights and duties. He has also jurisdiction for all the divorce related procedures and among other things for both provisional measures (former « référé-divorce ») and the ruling on divorce’s merits. Another significant litigation matter operated under the judge concerns parental authority, namely the disputes regarding the execution of the terms and conditions of parental authority, regardless of whether the parents are married, divorced, separated or simply living together. All the powers that were usually exercised by the guardianship judge with regards to minors are equally assigned to the judge. The same observation applies to claims requesting the extension of a person’s eviction notice following a case of domestic violence, matter which was formerly assigned to the president of the « Tribunal d’arrondissement ».

 

The purpose of gathering all the family law matters in the hands of a unique family court judge is to allow the said judge to follow a family, as far as possible, through all the procedures that may occur. This gathering allows the judge to have a global vision of the family and it finally puts an end to the scattering of attributions between the different jurisdictions.

 

The new procedure applying to the judge was driven by the willingness to simplify the actual procedures while upholding each parties’ rights. As such, the innovation by which provisional measures (former « référé-divorce ») as well as the ruling on divorce’s merits now lies within the competences of one unique judge allows for greater efficiency and reactivity but it also facilitates all the steps of the procedures for the litigants.

 

The legislator chose the mean of a « requête » to petition the court rather than the said classical procedure in civil matters consisting of an « assignation » requiring the bailiff to intervene. A « requête » will have the non-negligible advantage of preventing the parties to engage expenses, considering that the « service du greffe » will deal with the parties’ convening for all the family law matters.

 

The legislator also took into account the fact that the litigation in family law issues intrinsically concerns complicated family situations and that it is in the family’s best interests, and particularly for children, to have quick judicial responses to the arising disputes. The setting of affairs before the judge is therefore confined in restricted time frames.

 

Another purpose of the new law is to strengthen the judge’s conciliatory role. The parties are indeed as of now obliged to personally appear in front of the judge. The procedure before the family court judge will mainly be oral and will take place in the presence of the parties and their attorneys where appropriate. Having a general mission of conciliation of the parties, the judge will have to consult each of the parties in order to get an overall view of the dispute opposing them and to collect their different point of views.

 

The legislative provisions as modified by the institution of a family court judge will solve faster and more efficiently the litigation in family law matters and therefore allow the said litigation to be alleviated and the parent-child relationships to be preserved subsequently to the couple’s separation.

ARTICLE 2

The law of 27 June 2018 reforming family law: Introduction of an accelerated procedure concerning divorce for irremediable break down of relationships

  

The law of June 27th, 2018, instituting a family court judge, reforming divorce and parental authority, entering into force on November 1st, 2018, considerably amends the legal basis for divorce applications.

 

The former legal grounds on which a divorce application could be based on, namely divorce on the grounds of fault (former Article 229 of the Civil Code), divorce for separation of more than three years (former Article 230 of the Civil Code) and divorce for separation of more than five years in case of illness (former Article 231 of the Civil Code) are indeed abolished.

 

In accordance with the new Article 229 of the Civil Code, divorce may now only be pronounced in two cases: either by mutual consent or for irremediable break down of relationships.

 

The purpose of the new legal basis for divorce applications as established by the law of June 27th, 2018, is to remedy the shortcomings detected in former litigation disputes regarding not only the particularly lengthy divorce proceedings but also the abuses arising from the difficulties, possibly even the impossibility of divorcing in the absence of evidence of a fault or the spouse’s consent to divorce (A).

 

The reform of divorces by mutual consent as operated by the law of June 27th 2018 reveals in contrast a loss of efficiency in terms of rapidity to put an end to the parties’ union and nowadays seems to morph into a procedural complexity (B).

 

A – The merits of a divorce for irremediable break down of relationships : celerity and simplification of divorce proceedings

 

The reform provides that a divorce for irremediable break down of relationships can be claimed, via an attorney, either unilaterally by one of the spouses or by both spouses jointly if an agreement is found regarding the principle of divorce.

 

After filing a unilateral or joint divorce petition, the parties are subsequently summoned by the clerk within 15 days following the filing of the said petition, the notice of appearance being of 8 days. The court hearing is then fixed within one month from the date of expiry of the aforementioned appearance notice.

In case of agreement between the parties on the principle of divorce, it is relevant to underline that the divorce can be pronounced in a substantially faster time lapse since it can be pronounced as of the fixing of the first court hearing.

 

Elseways if no agreement can be found between the parties on the entirety of the divorce’s consequences or on eventual accessory measures, the family court judge can rule separately and later on that subject, without affecting his decision to grant the divorce or not.

 

Another non-negligible element, which comes out of the new legal basis for divorce, is henceforth the possibility, on the same basis as the Portuguese or French law, to be able to divorce in the absence of a mutual will of the spouses and more specifically without having to prove the evidence of a fault of the absent spouse or the unwillingness of the spouse to divorce.

 

If remarkable steps forward can be noticed regarding the divorce proceedings for irremediable break down of relationships, the same observation can unfortunately not be made in terms of non-litigated divorces (B).

 

B – The reformed divorce by mutual consent: towards a complex and decelerated procedure ?

 

The new procedure of divorce by mutual consent requires to refer the matter to the Court through a joint divorce petition filed with the clerk by attaching the divorce settlement agreement drafted by either an attorney or a notary, the legally required documents as well as the establishment of an inventory of the spouses’ joint property subject to property division.

 

Following the filing of a divorce petition, the clerk will also convene the parties in a time lapse of 15 days. It should however be pointed out that the legislator omitted to mention the time limit to be provided for the fixation of the court hearing, so that the parties are not in any way assured to benefit from a short delay for the fixation of their first court hearing before the family court judge.

 

Furthermore, once the family court judge will have personally convened the parties in order for them to confirm their willingness to divorce, the judge will carry out an analysis of the content of the divorce settlement. He shall also review that none of the clauses contained in the said settlement are contrary to the children’s best interest and that the settlement does not disproportionally restrict the spouses’ interests.

 

If the judge considers the divorce settlement to be jeopardising the children or the spouses’ interests, the parties will be given 6 weeks time to modify the clause(s) and present a new divorce settlement. New debates regarding the said settlement will be fixed at a later court hearing posteriorly to the aforementioned six weeks period.

 

If a new divorce settlement is not provided to the Court in the given deadline, the application filed for a divorce by mutual consent will be declared null and void by judgement.

 

Adversely, if the new divorce settlement is provided to the court on time, the judge may either declare the modified settlement to be appropriate and therefore grant the divorce or conversely rule the settlement to be inadequate so as to issue a committal for trial in front of three judges, the said panel having then the opportunity to approve the settlement or render a judgement rejecting the divorce to be granted.

* * *

It must therefore be concluded that unlike the institution of a new legal basis for divorce for irremediable breach of relationships, the legislator fixed new procedural rules in terms of divorce by mutual consent which tend to complicate the regime as it existed until now, with the risk, in fine, to result to a divorce that will be granted belatedly as if it had been based on the irremediable breach of relationships.

 

The downturn and the future practical applications of the new procedural rules set by the reform will demonstrate whether the concerns regarding slowness and complexity are justified.

 

In any case, recourse to divorce for irremediable breach of relationships can be favourably welcomed by both spouses who both agree on the principle of divorce and are willing to see their divorce be expeditiously granted.

ARTICLE 3 

The family law reform instituting the principle of joint parental authority: the pursuit of equality for all the parents independently of their legal status

 

The parental authority reform was becoming essential due to the new forms of parenting and the necessity, repeatedly mentioned by the Constitutional Court, to put the parents on an equal footing and this regardless of their matrimonial status.

 

The legislator indeed observed that the legal provisions that existed prior to the law of 27 June 2018 did no longer reflect the reality of the Luxembourg society, since marriage is nowadays largely competing with other forms of unions. In addition, the former provisions of the Civil Code regarding parental authority has already been declared unconstitutional by a Constitutional Court’s judgement dated 26 March 1999.

 

The parental authority reform enshrines the general principle of joint parental authority (1). The legislator also ensured to regulate parental authority in cases of parental separations (2).

 

  1. The principe of joint parental authority established as a general rule

 

The law of 27 June 2018 expressly introduced the principle that parents, regardless of whether they are being married or not, jointly exercise the parental authority in relation to their child. The very notion of parental authority has also been defined in the new Article 372 of the Civil Code as being a set of rights and duties aimed at meeting the child’s best interest.

 

The former rules applying to the allocation of parental authority considerably varied depending on the parents’ matrimonial status. Both parents indeed jointly exercised parental authority whenever the children were born during their marital union. Unless the parents made a joint declaration before the guardianship judge or a court decision ordering a joint parental authority, such parental authority could in accordance with Article 380 of the Civil Code only be exercised by the mother when the child was born out of wedlock, even if both parents had recognised the child.

 

The Constitutional Court declared the legal provisions to be contrary to Article 11(2) of the Constitution in the above-mentioned judgement.

 

The principle of joint parental authority operated by the new law nowadays requires both of the parents to consent to all usual and unusual acts relating to parental authority. A parent’s consent is however presumed when the other parent takes a decision, which is qualified as a usual act. Such presumption does yet only apply regarding usual acts. Indeed both parents’ consent must be given with regards to non-usual acts, so that a parent’s consent cannot be presumed in that case.

 

In case of disagreement between the parents regarding a decision that needs to be taken, a parent is free to refer the case to the family court judge who will have to rule on the case depending on the child’s best interests.

 

The corollary of the principle of shared parenthood consists in the fact that a parental separation shall in no way affect the principle of joint parental authority. The principle applies to parents, regardless of them being married, divorced, separated or in a registered partnership. The law has introduced a uniformed system concerning the execution of terms and conditions applying to parental authority.

 

In case of a parental separation, the child’s right to maintain a family link with both of his parents is recognised whereas each parent has the obligation to maintain personal links with the child. This rule applies not only to the parent with whom the child ordinarily resides but also to the other parent to whom the parental authority or the child’s habitual residence has not been granted.

 

  1. Parental authority in case of parental separation

 

The new law wishes to promote the parties’ agreements especially in case of separation, this in line with the concept of joint parenthood. The parents may formalise their agreement regarding the terms and conditions of joint parental authority in a settlement, which can, at their demand, be accredited by the family court judge.

 

A major innovation now consists in the introduction in the Civil Code of a possibility of an alternating residence, allowing the residence of the child to be alternatively fixed at each of the parent’s residence. This innovation shall however only be limited to cases where both parents agree with such possibility.

 

The alternating residence does not require a strictly equal distribution of time that the child has to reside at each of the parent’s residence. It however supposes a certain geographic proximity between the parent’s respective residences as well as a good understanding between the former spouses, in the common child’s best interests.

 

If the exercise of a joint parental authority in cases of post-separation of spouses is the principle, the family court judge can however assign the exercise of such parental authority to only one of the parents when the child’s interests require to do so. The parent who does not or partially exercise such parental authority retains, in theory, a right of access and accommodation, except if serious reasons are opposed.

 

Regarding the exercise of the rights of access and accommodation, the legislator intended to dedicate a practice, which currently already exists, by which the rights of access can be exercised at a meeting place or in the presence of a third party but only if it respects the child’s best interest or when the child’s return suggests a danger.

 

Furthermore, in order to prevent international abductions of children or in cases of non-return of children following the exercise of a parent’s rights of access and accommodation, the legislator has introduced the possibility for the family court judge to order in exceptional circumstances, an inscription in the child’s passport mentioning that the child is prohibited from leaving the Grand-Duchy of Luxembourg’s territory without both of the parent’s consent.

 

The legislator also decided to expand the scope of people who are able to apply for rights of access, or even rights of accommodation to third parties who are not necessarily members of the child’s family.

 

Based on the parental authority reform, it must be pointed out that the parents are now put on an equal footing, and this regardless of their status with the primary goal of adapting the law to the evolution of society and in particular to the diversified forms which a family can nowadays take.

ARTICLE 4 

Another innovation of the Law of 27 June 2018: Accreditation ; a pledge of security for the parties in order for their agreements to be executed

 

A large number of parents address the consequences of their separation in an agreement in which they will beforehand and by mutual agreement have determined the different terms and conditions regarding notably the exercise of parental authority, the designation of domicile as well as the rights of access and accommodation of the common child(ren) or even the common child(ren) support.

 

To that extent, the family law reform operated by the law of 27 June 2018 has introduced a considerable innovation with regards to non-contentious procedures since the accreditation of an agreement concluded between unmarried parties as well as the accreditation of divorce settlements are henceforth expressly provided in the law.

 

Regarding unmarried parties, the new Article 377 of the Civil Code specifies that the parents can refer to the Court for the accreditation of their agreement in which they organise the exercise of parental authority, designate the domicile and the child’s residence, the rights of access and accommodation as well as the contribution to the child’s maintenance and education.

 

To do so, the parents assisted where necessary by their attorney, will have to file a joint petition in accreditation of their agreement. The clerk will summon the parties within 15 days from the filing of the petition and the court hearing regarding the accreditation of the agreement will be fixed within one month. The State’s Council Office shall have the possibility to attend the hearing and can at the hearing and if appropriate conclude verbally or through previous written submissions.

 

Such innovation will have the considerable advantage of obtaining a legally enforceable decision, thus opening the possibility for a potential future conviction of the parent who does not properly execute the measures of the agreement (for example through an attachment made by a court bailiff in order to get payment of a child support).

 

Furthermore, divorce settlements from married couples will hereafter also be accredited by the Court. It will thus form an integral part of the judgement of divorce. This will facilitate the recognition as well as the execution, not only within the country but also in foreign countries, of decisions granting a divorce, but also of all the measures contained in the parties’ divorce settlement as accredited by the Court and notably those regarding parental authority and rights of access and accommodation of the children.

 

The divorce settlement will be regarded as a « judgment » within the meaning of international or European Regulations such as the Council Regulation (EC) n°2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgements in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) n°1347/2000.

 

However, with the previous legislation about divorce by mutual consent, the Court did simply confirm the elements specified in the parties’ divorce settlement. As a consequence, should one of the parties not respect the settlement, then the other party necessarily had to initiate a new proceeding (for example before the « Justice de Paix » in order to get a judgment condemning the party to the payment of a child support) in order to get an enforceable title in that matter.

 

This new provision introducing the accreditation by the Court of agreements that parents or spouses have reached together shall be highly welcomed, since such a possibility denotes a security for the parties in order for their agreements to be immediately executed in the event of non-compliance of the measures it contains.

 

 

 

 

The family law reform instituting the principle of joint parental authority: the pursuit of equality for all the parents independently of their legal status

ARTICLE

REAL, Avocats à la Cour

 

The parental authority reform was becoming essential due to the new forms of parenting and the necessity, repeatedly mentioned by the Constitutional Court, to put the parents on an equal footing and this regardless of their matrimonial status.

 

The legislator indeed observed that the legal provisions that existed prior to the law of 27 June 2018 did no longer reflect the reality of the Luxembourg society, since marriage is nowadays largely competing with other forms of unions. In addition, the former provisions of the Civil Code regarding parental authority has already been declared unconstitutional by a Constitutional Court’s judgement dated 26 March 1999.

 

The parental authority reform enshrines the general principle of joint parental authority (1). The legislator also ensured to regulate parental authority in cases of parental separations (2).

 

  1. The principe of joint parental authority established as a general rule

 

The law of 27 June 2018 expressly introduced the principle that parents, regardless of whether they are being married or not, jointly exercise the parental authority in relation to their child. The very notion of parental authority has also been defined in the new Article 372 of the Civil Code as being a set of rights and duties aimed at meeting the child’s best interest.

 

The former rules applying to the allocation of parental authority considerably varied depending on the parents’ matrimonial status. Both parents indeed jointly exercised parental authority whenever the children were born during their marital union. Unless the parents made a joint declaration before the guardianship judge or a court decision ordering a joint parental authority, such parental authority could in accordance with Article 380 of the Civil Code only be exercised by the mother when the child was born out of wedlock, even if both parents had recognised the child.

 

The Constitutional Court declared the legal provisions to be contrary to Article 11(2) of the Constitution in the above-mentioned judgement.

 

The principle of joint parental authority operated by the new law nowadays requires both of the parents to consent to all usual and unusual acts relating to parental authority. A parent’s consent is however presumed when the other parent takes a decision, which is qualified as a usual act. Such presumption does yet only apply regarding usual acts. Indeed both parents’ consent must be given with regards to non-usual acts, so that a parent’s consent cannot be presumed in that case.

 

In case of disagreement between the parents regarding a decision that needs to be taken, a parent is free to refer the case to the family court judge who will have to rule on the case depending on the child’s best interests.

 

The corollary of the principle of shared parenthood consists in the fact that a parental separation shall in no way affect the principle of joint parental authority. The principle applies to parents, regardless of them being married, divorced, separated or in a registered partnership. The law has introduced a uniformed system concerning the execution of terms and conditions applying to parental authority.

 

In case of a parental separation, the child’s right to maintain a family link with both of his parents is recognised whereas each parent has the obligation to maintain personal links with the child. This rule applies not only to the parent with whom the child ordinarily resides but also to the other parent to whom the parental authority or the child’s habitual residence has not been granted.

 

  1. Parental authority in case of parental separation

 

The new law wishes to promote the parties’ agreements especially in case of separation, this in line with the concept of joint parenthood. The parents may formalise their agreement regarding the terms and conditions of joint parental authority in a settlement, which can, at their demand, be accredited by the family court judge.

 

A major innovation now consists in the introduction in the Civil Code of a possibility of an alternating residence, allowing the residence of the child to be alternatively fixed at each of the parent’s residence. This innovation shall however only be limited to cases where both parents agree with such possibility.

 

The alternating residence does not require a strictly equal distribution of time that the child has to reside at each of the parent’s residence. It however supposes a certain geographic proximity between the parent’s respective residences as well as a good understanding between the former spouses, in the common child’s best interests.

 

If the exercise of a joint parental authority in cases of post-separation of spouses is the principle, the family court judge can however assign the exercise of such parental authority to only one of the parents when the child’s interests require to do so. The parent who does not or partially exercise such parental authority retains, in theory, a right of access and accommodation, except if serious reasons are opposed.

 

Regarding the exercise of the rights of access and accommodation, the legislator intended to dedicate a practice, which currently already exists, by which the rights of access can be exercised at a meeting place or in the presence of a third party but only if it respects the child’s best interest or when the child’s return suggests a danger.

 

Furthermore, in order to prevent international abductions of children or in cases of non-return of children following the exercise of a parent’s rights of access and accommodation, the legislator has introduced the possibility for the family court judge to order in exceptional circumstances, an inscription in the child’s passport mentioning that the child is prohibited from leaving the Grand-Duchy of Luxembourg’s territory without both of the parent’s consent.

 

The legislator also decided to expand the scope of people who are able to apply for rights of access, or even rights of accommodation to third parties who are not necessarily members of the child’s family.

 

Based on the parental authority reform, it must be pointed out that the parents are now put on an equal footing, and this regardless of their status with the primary goal of adapting the law to the evolution of society and in particular to the diversified forms which a family can nowadays take.

 

The guarantees deriving from the institution of a family court judge : between simplification, rapidity and reduction of procedural costs for the family’s best interests

ARTICLE

REAL, Avocats à la Cour

 

The family law reform operated by the Law of 27 June 2018 assigned a number of competences, that may be embraced under the concept of « family law », to one single judge, namely the family court judge, hereafter referred to as the « judge ».

 

These competences, initially dispersed between different jurisdictions including the « juge de paix », a « chambre civile du tribunal d’arrondissement », the president of the « tribunal d’arrondissement », the juvenile judge or the guardianship judge are nowadays incorporated in the Article 1007-1 of the new Code of Civil procedure.

 

The judge has herewith jurisdiction for all the procedures relating to marriage, including for example disputes about the spouses’ respective rights and duties. He has also jurisdiction for all the divorce related procedures and among other things for both provisional measures (former « référé-divorce ») and the ruling on divorce’s merits. Another significant litigation matter operated under the judge concerns parental authority, namely the disputes regarding the execution of the terms and conditions of parental authority, regardless of whether the parents are married, divorced, separated or simply living together. All the powers that were usually exercised by the guardianship judge with regards to minors are equally assigned to the judge. The same observation applies to claims requesting the extension of a person’s eviction notice following a case of domestic violence, matter which was formerly assigned to the president of the « Tribunal d’arrondissement ».

 

The purpose of gathering all the family law matters in the hands of a unique family court judge is to allow the said judge to follow a family, as far as possible, through all the procedures that may occur. This gathering allows the judge to have a global vision of the family and it finally puts an end to the scattering of attributions between the different jurisdictions.

 

The new procedure applying to the judge was driven by the willingness to simplify the actual procedures while upholding each parties’ rights. As such, the innovation by which provisional measures (former « référé-divorce ») as well as the ruling on divorce’s merits now lies within the competences of one unique judge allows for greater efficiency and reactivity but it also facilitates all the steps of the procedures for the litigants.

 

The legislator chose the mean of a « requête » to petition the court rather than the said classical procedure in civil matters consisting of an « assignation » requiring the bailiff to intervene. A « requête » will have the non-negligible advantage of preventing the parties to engage expenses, considering that the « service du greffe » will deal with the parties’ convening for all the family law matters.

 

The legislator also took into account the fact that the litigation in family law issues intrinsically concerns complicated family situations and that it is in the family’s best interests, and particularly for children, to have quick judicial responses to the arising disputes. The setting of affairs before the judge is therefore confined in restricted time frames.

 

Another purpose of the new law is to strengthen the judge’s conciliatory role. The parties are indeed as of now obliged to personally appear in front of the judge. The procedure before the family court judge will mainly be oral and will take place in the presence of the parties and their attorneys where appropriate. Having a general mission of conciliation of the parties, the judge will have to consult each of the parties in order to get an overall view of the dispute opposing them and to collect their different point of views.

 

The legislative provisions as modified by the institution of a family court judge will solve faster and more efficiently the litigation in family law matters and therefore allow the said litigation to be alleviated and the parent-child relationships to be preserved subsequently to the couple’s separation.

 

 

Another innovation of the Law of 27 June 2018 : Accreditation ; a pledge of security for the parties in order for their agreements to be executed

ARTICLE

REAL, Avocats à la Cour

  

A large number of parents address the consequences of their separation in an agreement in which they will beforehand and by mutual agreement have determined the different terms and conditions regarding notably the exercise of parental authority, the designation of domicile as well as the rights of access and accommodation of the common child(ren) or even the common child(ren) support.

 

To that extent, the family law reform operated by the law of 27 June 2018 has introduced a considerable innovation with regards to non-contentious procedures since the accreditation of an agreement concluded between unmarried parties as well as the accreditation of divorce settlements are henceforth expressly provided in the law.

 

Regarding unmarried parties, the new Article 377 of the Civil Code specifies that the parents can refer to the Court for the accreditation of their agreement in which they organise the exercise of parental authority, designate the domicile and the child’s residence, the rights of access and accommodation as well as the contribution to the child’s maintenance and education.

 

To do so, the parents assisted where necessary by their attorney, will have to file a joint petition in accreditation of their agreement. The clerk will summon the parties within 15 days from the filing of the petition and the court hearing regarding the accreditation of the agreement will be fixed within one month. The State’s Council Office shall have the possibility to attend the hearing and can at the hearing and if appropriate conclude verbally or through previous written submissions.

 

Such innovation will have the considerable advantage of obtaining a legally enforceable decision, thus opening the possibility for a potential future conviction of the parent who does not properly execute the measures of the agreement (for example through an attachment made by a court bailiff in order to get payment of a child support).

 

Furthermore, divorce settlements from married couples will hereafter also be accredited by the Court. It will thus form an integral part of the judgement of divorce. This will facilitate the recognition as well as the execution, not only within the country but also in foreign countries, of decisions granting a divorce, but also of all the measures contained in the parties’s divorce settlement as accredited by the Court and notably those regarding parental authority and rights of access and accommodation of the children.

 

The divorce settlement will be regarded as a « judgment » within the meaning of international or European Regulations such as the Council Regulation (EC) n°2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgements in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) n°1347/2000.

 

However, with the previous legislation about divorce by mutual consent, the Court did simply confirm the elements specified in the parties’ divorce settlement. As a consequence, should one of the parties not respect the settlement, then the other party necessarily had to initiate a new proceeding (for example before the « Justice de Paix » in order to get a judgment condemning the party to the payment of a child support) in order to get an enforceable title in that matter.

 

This new provision introducing the accreditation by the Court of agreements that parents or spouses have reached together shall be highly welcomed, since such a possibility denotes a security for the parties in order for their agreements to be immediately executed in the event of non-compliance of the measures it contains.

 

 

 

 

 

The law of 27 June 2018 reforming family law: Introduction of an accelerated procedure concerning divorce for irremediable break down of relationships

ARTICLE

REAL, Avocats à la Cour

 

The law of June 27th, 2018, instituting a family court judge, reforming divorce and parental authority, entering into force on November 1st, 2018, considerably amends the legal basis for divorce applications.

 

The former legal grounds on which a divorce application could be based on, namely divorce on the grounds of fault (former Article 229 of the Civil Code), divorce for separation of more than three years (former Article 230 of the Civil Code) and divorce for separation of more than five years in case of illness (former Article 231 of the Civil Code) are indeed abolished.

 

In accordance with the new Article 229 of the Civil Code, divorce may now only be pronounced in two cases: either by mutual consent or for irremediable break down of relationships.

 

The purpose of the new legal basis for divorce applications as established by the law of June 27th, 2018, is to remedy the shortcomings detected in former litigation disputes regarding not only the particularly lengthy divorce proceedings but also the abuses arising from the difficulties, possibly even the impossibility of divorcing in the absence of evidence of a fault or the spouse’s consent to divorce (A).

 

The reform of divorces by mutual consent as operated by the law of June 27th 2018 reveals in contrast a loss of efficiency in terms of rapidity to put an end to the parties’ union and nowadays seems to morph into a procedural complexity (B).

 

A – The merits of a divorce for irremediable break down of relationships: celerity and simplification of divorce proceedings

 

The reform provides that a divorce for irremediable break down of relationships can be claimed, via an attorney, either unilaterally by one of the spouses or by both spouses jointly if an agreement is found regarding the principle of divorce.

 

After filing a unilateral or joint divorce petition, the parties are subsequently summoned by the clerk within 15 days following the filing of the said petition, the notice of appearance being of 8 days. The court hearing is then fixed within one month from the date of expiry of the aforementioned appearance notice.

 

In case of agreement between the parties on the principle of divorce, it is relevant to underline that the divorce can be pronounced in a substantially faster time lapse since it can be pronounced as of the fixing of the first court hearing.

 

Elseways if no agreement can be found between the parties on the entirety of the divorce’s consequences or on eventual accessory measures, the family court judge can rule separately and later on that subject, without affecting his decision to grant the divorce or not.

 

Another non-negligible element, which comes out of the new legal basis for divorce, is henceforth the possibility, on the same basis as the Portuguese or French law, to be able to divorce in the absence of a mutual will of the spouses and more specifically without having to prove the evidence of a fault of the absent spouse or the unwillingness of the spouse to divorce.

 

If remarkable steps forward can be noticed regarding the divorce proceedings for irremediable break down of relationships, the same observation can unfortunately not be made in terms of non-litigated divorces (B).

 

B – The reformed divorce by mutual consent : towards a complex and decelerated procedure ?

 

The new procedure of divorce by mutual consent requires to refer the matter to the Court through a joint divorce petition filed with the clerk by attaching the divorce settlement agreement drafted by either an attorney or a notary, the legally required documents as well as the establishment of an inventory of the spouses’ joint property subject to property division.

 

Following the filing of a divorce petition, the clerk will also convene the parties in a time lapse of 15 days. It should however be pointed out that the legislator omitted to mention the time limit to be provided for the fixation of the court hearing, so that the parties are not in any way assured to benefit from a short delay for the fixation of their first court hearing before the family court judge.

 

Furthermore, once the family court judge will have personally convened the parties in order for them to confirm their willingness to divorce, the judge will carry out an analysis of the content of the divorce settlement. He shall also review that none of the clauses contained in the said settlement are contrary to the children’s best interest and that the settlement does not disproportionally restrict the spouses’ interests.

If the judge considers the divorce settlement to be jeopardising the children or the spouses’ interests, the parties will be given 6 weeks time to modify the clause(s) and present a new divorce settlement. New debates regarding the said settlement will be fixed at a later court hearing posteriorly to the aforementioned six weeks period.

 

If a new divorce settlement is not provided to the Court in the given deadline, the application filed for a divorce by mutual consent will be declared null and void by judgement.

 

Adversely, if the new divorce settlement is provided to the court on time, the judge may either declare the modified settlement to be appropriate and therefore grant the divorce or conversely rule the settlement to be inadequate so as to issue a committal for trial in front of three judges, the said panel having then the opportunity to approve the settlement or render a judgement rejecting the divorce to be granted.

 

* * *

 

It must therefore be concluded that unlike the institution of a new legal basis for divorce for irremediable breach of relationships, the legislator fixed new procedural rules in terms of divorce by mutual consent which tend to complicate the regime as it existed until now, with the risk, in fine, to result to a divorce that will be granted belatedly as if it had been based on the irremediable breach of relationships.

 

The downturn and the future practical applications of the new procedural rules set by the reform will demonstrate whether the concerns regarding slowness and complexity are justified.

 

In any case, recourse to divorce for irremediable breach of relationships can be favourably welcomed by both spouses who both agree on the principle of divorce and are willing to see their divorce be expeditiously granted.

 

A reversal of the current system operated by the Bill of law of 28 March 2018: the maintenance of parents’ parental authority in the event of the legal placement of their child

 

ARTICLE

REAL, Avocats à la Cour

  

In the Grand Duchy of Luxembourg, every minor is entitled to be represented by a children’s lawyer whose role is to defend the interests of the child, whether in the context of divorce proceedings (summary proceedings or divorce on the merits), before the Guardianship Court or in matters of youth protection.

 

Drawing on its experience in representing and assisting minors at all stages of the proceedings, the law firm REAL, Avocats à la Cour, has examined in more detail the Bill of law of 28 March 2018 (the “Bill”) establishing a youth protection system and amending the Law of 7 March 1980 on the organisation of the judicial system, as amended, in order to study the significant progress planned in this area.

 

In this respect, Article 21 of the Bill defines in more detail the task of the minor’s lawyer by making a distinction between the minor who is not capable of discernment and the minor who is capable of discernment.

 

Thus, this article provides that when the minor is not capable of discernment, the lawyer must ensure that the rights of the minor are respected. The following paragraph then states that when the minor is capable of discernment, the lawyer will have more of the role of spokesperson. His task is to listen to the minor, to advise him, explain the consequences of the decisions to be taken by the judge or the juvenile court and then to relay the minor’s words to the court. In all cases, the lawyer must continue to ensure that the rights of the minor are respected and to act in the best interests of the minor.

 

The Bill also has the advantage of providing for a complete recast of the current Law of 10 August 1992 on youth protection.

 

In this respect, it intends to emphasise, in the same way as French law, the primary objective, which is the maintaining of the minor in his or her family environment.

 

More specifically, Article 12 of the Bill contains an important amendment in the area of youth protection and aims to reform Article 11 of the Youth Protection Law by specifically addressing the problem of parental authority in the event of placement of a minor outside the parents’ home.

 

As a reminder, Article 11 currently states that:

 

“If the minor is placed outside the parents’ home (…) they shall retain only visiting and correspondence rights. The juvenile court or the judge shall determine the methods and may even, if the interests of the child so require, decide that the exercise of one or all of these rights shall be suspended.  

As for the minor himself, all the other attributes of parental authority shall be transferred to the person or institution to whom the minor is entrusted, with the exception of the right to consent to the adoption and marriage of the minor.

 

The Court of Appeal ruling in civil matters, decided, in a judgment of 18 February 2009 (List no. 34367), that the transfer of parental authority will not only occur in the event of final placement but also in the event of interim custody.

 

The question of whether or not there should be an automatic transfer of parental authority in the event of placement has been the subject of difficult discussions for decades.

 

The automatic transfer of parental authority should not be confused with the withdrawal of parental authority. The parents of a child in care retain the right to be informed and consulted on all important decisions concerning their child, even if the final decision rests with the person or institution receiving the child.

 

However, this situation makes no difference between parents who lose so much interest in their child that they no longer have contact with the child and parents who, at the time of placement, are unable to ensure the safety and wellbeing of their child without, however, losing interest in his or her fate.

 

Such parents often view the transfer of parental authority as a sanction against them even if this is not the purpose of this legal provision.

 

In previous efforts resulting in the Bill of law 5351, the “Youth Protection”interdepartmental working group analysed, in its Opinion of June 2002, the advantages and inconvenience of the automatic transfer of parental authority. At the time, this working group concluded that the principle should be maintained.

 

The present Bill was also preceded by significant work and discussions within a new working group. During these discussions, it was stressed that the automatic transfer of parental authority leads, for some parents, to a strong demotivation to collaborate with the institution or even to a disengagement from the life of their child.

 

This obviously makes the pedagogic work for family reintegration more difficult.

 

With a view to making parents more responsible, it was decided to completely change the current system by establishing the principle of maintaining the parental authority of parents in the event of the legal placement of their child.

 

However, one of the attributes of parental authority, namely the right to determine the child’s place of residence, is manifestly incompatible with a legal placement decision, the place of residence of the minor being determined judicially. Consequently, this attribute of parental authority is no longer exercised by the parents of a minor placed in care.

 

This reversal was taken into account in the Opinion 04/2011 delivered by the Consultative Commission on Human Rights of the Grand Duchy of Luxembourg (the “CCDH”).

 

The CCHR had in fact already pointed to this problem relating to the transfer of parental authority in matters of interim custody, considering that it was not excluded, in such a case, that parents would simply have their responsibility removed and that any decision concerning the child would be out of their hands.

 

The Commission even considered that this was an infringement of their right to be parents and to care for their children, as provided for in Articles 8, 9 and 10 of the European Convention on Human Rights. It therefore noted that it was entirely possible to remove part of the parental authority and to transfer only certain attributes to the institution receiving the child, such as the right to decide on the child’s residence.

 

Such a change has been accounted for in the current Bill.

 

This change also, however, risks making the practical organisation of the life of the minor placed in care more complicated for the institution or person receiving the minor. Furthermore, the maintenance of parental authority in favour of the parents requires a permanent exchange of information and active collaboration and good faith on the part of all the parties involved.

 

The Bill therefore provides an exception to the general principle of maintenance of parental authority by stipulating that where it appears, during legal placement, that the maintenance of parental authority in favour of the parents is not in the interests of the child, the judge may decide to transfer parental authority to the person or institution receiving the minor.

 

This decision must, however, be preceded by a meeting at which “the person or institution to whom the minor is entrusted as well as the person, guardian or guardians of the minor” are heard or to which they are at least convened.

 

This includes situations particularly where collaboration is no longer possible, for example because parents are unreachable or refuse to make necessary administrative or medical decisions or procedures in the best interests of the child. Also conceivable is the situation where parents make decisions that are clearly contrary to their child’s best interests.

 

Were this Bill to be passed definitively in the future, it would be up to the child’s lawyer, taking into account the best interests of the minor, to encourage the minor to remain in his or her family environment or, alternatively and in exceptional circumstances, to ensure that a transfer of parental authority takes place in favour of the receiving institution.

 

 

 

 

Current case law on a non-competition clause in franchises: Protection of the commercial agent in relation to the free performance of his activity

Article

REAL, Avocats à la Cour

 

In the context of a matter handled by the law firm REAL, Avocats à la Cour, the Court of Appeal of and in Luxembourg, by judgment dated 3 May 2018, handed down decisive case law in the field of non-competition clauses, the nature of which is to protect the commercial agent concerning the free exercise of his activity.

 

a) The non-competition clause regime under Luxembourg law

 

The non-competition clause is a contractual stipulation the purpose of which is to prevent one party from competing with another party by exercising a similar professional activity during or after the expiry of the contractual relationship.

 

Restricting the ability of the person, under the obligation to abstain, from freely exercising an activity, adversely affects fundamental freedoms, the freedom of entrepreneurship and the freedom of work.

 

It is accepted that in order to be valid, a non-competition clause must be limited either in time or in space (or both), it must be intended to protect the legitimate interests of the beneficiary of the clause, it must not place the person bound by the obligation in a situation which no longer permits him to exercise his profession normally and it must be proportional (Encyclopédie Dalloz. Répertoire de droit commercial, Concurrence, no. 100 et ss).

 

The requirement of proportionality, which is assessed in relation to the subject matter of the contract, balances the legitimate interest of the creditor of the non-competition clause, exposed to the competitive risks that represent the debtor, and the adverse affect on the free exercise of the debtor’s professional activity, the nature and duration of the relationship between the parties being assessed in this respect.

 

As regards franchising, the validity of non-competition clauses has been accepted insofar as they are essential to protect the know-how transmitted and the assistance provided by the franchisor and that they are appropriate for preserving the identity and reputation of the network. The creditor may have a legitimate interest in protecting its know-how or confidential information, protecting itself against a risk of misappropriation by its customers or, in the particular case of franchising, protecting the common identity and reputation of the network.

 

In the absence of specific provisions provided for by our legislation, the Luxembourg courts refer to the French provisions concerning non-competition clauses in the field of franchises, the recent franchise legislation (Law of 6 August 2015, known as the “Macron” law), taking care to specify that the clause must be indispensable for the protection of “substantial, specific and secret know-how transmitted within the framework of the contract”. It is important that the know-how has a certain consistency (Jurisclasseur Concurrence-Consommation, fascicule 111: clause de non-concurrence – validite, no. 49).

 

b) Overview of the evolution of case law and the current position of the Court of Appeal of and in Luxembourg

 

The case-law could have held that non-competition clauses “may be regarded as inherent to the franchise insofar as they ensure the protection of the know-how transmitted, which must benefit only the members of the network, and allow the franchisor time to reinstall a franchisee in the exclusive zone; that such clauses must, however, remain proportionate to the objective they pursue” (Cons. Conc., déc. No. 97-D-48, 18 juin 1997).

 

The non-competition clause must not have the effect of preventing the agent from performing any professional activity (Cass. Com. 4 juin 2002, Bull. civ. IV, no. 98, JCP 2003, II. 10164).

 

In this respect, French case law had already been able to consider as invalid a non-competition clause preventing a commercial agent, in the event of breach of her contract, from exercising any professional activity, “as long as she has training and professional experience as a medical representative, and that she is prohibited for two years from all activities, whether paid or not, in the field of the manufacture and marketing of dietetic products throughout France”. (Cour d’appel de Rennes, 15 février 2011).

 

With regard to the case dealt with by the law firm REAL, Avocats à la Cour, it must be noted that Luxembourg case law has aligned itself with French case law by striking out a non-competition clause in the context of a commercial consultancy contract on that basis.

 

In this particular judgment delivered on 3 May 2018 (CSJ, judgment No. 90/18 – II – CIV), the Second Chamber of the Court of Appeal, sitting in civil matters, found that the non-competition clause, by prohibiting the commercial adviser for a period of 12 months from engaging in any activity as a real estate agent, directly or indirectly, on his own account or through an intermediary, had the effect of depriving the subject of the non-competition clause of the possibility of normally exercising his professional activity and thus constituted an excessive and unjustified restriction on his freedom of work.

 

In that judgment, the Court also found that the competitive risk was minimal in view of the strong position of the franchisee in relation to the situation of the commercial adviser on the Luxembourg market and in view of the very limited period during which the latter had worked with the company (in this case less than three months).

 

It also noted that no element of the case had led to the transfer of specific and substantial know-how by the company to the commercial adviser with regard to the exercise of the activity of a real estate agent.

 

With regard to those elements, it was in view of the disparity between the adverse effect on the fundamental principle of freedom to pursue a professional activity, on the one hand, and the legitimate interests it protects, on the other hand, that the Court of Appeal found that the clause, in this particular case, appeared disproportionate and should be struck out.

 

Conclusion:

 

The analysis of this judgment handed down by the Court of Appeal of and in Luxembourg on 3 May 2018 (CSJ, judgment no. 90/18 – II – CIV) has made it possible to underline the importance of the role and the necessary intervention of the judge in the fight against unfair contract terms in order to correct the excesses that the principle of the binding force of contracts can generate, for the purpose of protecting the weaker parties to the contractual relationship.

 

 

Draft Law on the execution of criminal sentences: Will Luxembourg’s criminal justice system finally have a judge specifically dedicated to the enforcement of sentences?

ARTICLE

REAL, Avocats à la Cour

When the Tribunal d’arrondissement or the Court of Appeal pronounces a criminal sentence, this sentence must subsequently be executed and enforced by the public prosecutor’s office. In fact, the execution of the sentence is a generic expression which covers the execution of the penal sentence, the application of the sentence and also post-sentencing.

The application of the penal sentence covers more precisely the last phase of the trial and gives a true meaning to the judicial activity which has already taken place. What, indeed, would be the point of an unenforced or unexecuted sentence?

In Luxembourg, a draft law n°7041 on the execution of sentences was proposed on August 31st 2016 with the aim of reforming and modernizing the system of execution of sentences. At a press conference on September 22nd 2016, the Minister of Justice, Mr Félix Braz, presented the broad outline of this reform, namely the major innovation of the introduction of a sentence enforcement chamber competent to rule on appeals lodged by convicted people against decisions taken by the state attorney general and his delegate in the enforcement of sentences.

Although this reform, long-awaited in the crucial field of the execution of sentences, is welcome, it is clear that certain points could still be improved, compared to our European neighbours, particularly France, which has an established and appropriate system for the enforcement of sentences.  In particular, as expressed by the Advisory Commission on Human Rights (the “CCDH“) in its opinion n°02/2017 and by the Luxembourg Association of Criminal Lawyers in its opinion of October 13th 2017, the reform does not take into account the main criticism of the current system of the execution of sentences, which is that decisions on the adjustment of sentences, both custodial and non-custodial adjustments, are taken by the prosecutor who initiated the proceedings against the person who has been sentenced, and not by a judicial body.

The European Court of Human Rights has, in fact, declared in a judgment that a member of the public prosecutor’s office cannot be qualified as a judge or magistrate and cannot be authorized to exercise judicial functions (Medvedyev v. France judgment of March 29th 2010 and Moulin v. France judgment of December 15th 2010).

From this perspective, it would seem that the best solution for the current system to comply with such requirements would be to entrust the execution of sentences to a single judge, whose decisions could be appealed in front of the Court of Appeal. Such solutions would also solve the problem, raised by the CCHR, that the current draft law aims to create a recourse action in front of the Court of Appeal against decisions taken by the public prosecutor or by the director of the prison service, which are not to be considered as judicial decisions.

It’s important to note here that France was subject to a strong legislative and regulatory inflation, which resulted in the creation of a special judicial department for executing sentences.  In fact, France has a judge dedicated specifically to this matter: the judge responsible for the execution of sentences, whose role is to set the terms of the custodial sentences by directing and by controlling the execution and the enforcement of sentences.

Moreover, the main purpose of this judge is to reintegrate convicted people.  In addition to that, judgments made by the judge responsible for the enforcement of sentences or by a court specifically dedicated to this purpose (composed of three judges) may be appealed in front of a special chamber. Appeal judgments held by this special chamber would then be subject to an appeal in front of the Cour de Cassation.

Unlike the French model, the draft law would not guarantee the principle of the double degree of jurisdiction, as laid down in Article 5§4 of the European Convention on Human Rights.

The establishment of a judge who alone would be competent to apply and enforce criminal sentences will thus enable Luxembourg to finally comply with the standards of the European Court of Human Rights, creating a better separation of powers between the prosecution and the judiciary.

The draft law n°7041, combined with the prison administration draft law (n°7042), is therefore undeniably a major step forward in the crucial area of ​​the enforcement of sentences by reintegrating the convicted person into society. However, it is only a small step towards creating an established judicial department for the enforcement of sentences.