Any act by an administrative authority which constitutes a decision liable to adversely affect a citizen may be the appealed.
Various possible remedies are available to people affected by a decision of a State body, a commune or a public institution.
Some of the explanations below, which are based on hypothetical scenarios, are of limited use and only partially represent or simplify reality. In all cases, it is strongly recommended that you consult a professional advisor before drawing conclusions about your actual legal situation.
A specific document is available for more information on the means of appeal before the administrative courts.
Who is concerned
Anyone who believes that they have been adversely affected following a decision made by the Luxembourg authorities may challenge the administrative decision.
Before bringing an action before the administrative courts, persons who disagree with an administrative decision that adversely affects them always have the option of filing an internal appeal (or 'non-contentious appeal') with the administration to have it modify its initial position with regard to the applicant.
The non-contentious appeal itself is not subject to any time limit: it can be filed at any time.
However, to ensure that the option of bringing a legal action before the Administrative Tribunal is not lost if the non-contentious appeal is unsuccessful, the non-contentious appeal should be filed before the expiry of the time limit for appeals to the Administrative Tribunal (3 months from the date of notification of the decision, or from the day on which the applicant became aware of the decision).
As a matter of fact, if the non-contentious appeal was brought before the end of the time limit for a judicial appeal, it suspends the time limit that applies to judicial appeals. A new time limit for bringing the case before the Administrative Tribunal begins to run from the notification of the decision taken following the non-contentious appeal.
If no response is made to a non-contentious appeal, the time limit for a judicial appeal is not, however, indefinitely suspended: if more than 3 months have elapsed since the filing of the non-contentious appeal without a new decision, the time limit for bringing a legal appeal begins at the end of the 3-month period.
As a general rule, appeals before the Administrative Tribunal must be filed within 3 months of the day on which notice of the decision was given to the applicant, or on the day on which the applicant became aware of the decision.
- A person applies for a building permit, but the permit is refused by the mayor. Since the notice of refusal is, in principle, sent to the applicant by registered letter, the time limit for taking action starts from the day of notification by letter.
- A building permit is granted. However, the neighbours were not necessarily notified of this decision by the mayor. For them, therefore, the time limit for bringing legal proceedings begins on the day the building permit is posted on the building site.
The procedure before the administrative courts is a written procedure. It is subject to strict deadlines.
As a result, at the first instance, the investigation of the case lasts 7 months. Then the Tribunal hands down its judgment. In appeal proceedings before the Administrative Court, the court generally hands down its judgment within 5 months of the judgment of the lower court (first instance).
How to proceed
Non-contentious appeals are filed with the person who took the contested administrative decision or their hierarchical superior. It need not be in any specific format and need not be drafted by a lawyer.
A civil servant was denied promotion by ministerial decision. The civil servant then sends a registered letter to the relevant minister, requesting that the latter reconsider their position.
In the case of decisions taken by the social security institutions, there are specific internal appeal procedures for each branch of the social security system—which may be classified as amicable remedies—prior to any legal proceedings phase.
Judicial appeals must be made in writing.
Except in the case of direct tax matters, any application before the Administrative Tribunal must be signed by a barrister (court lawyer).
The possibility to challenge an administrative decision is not exclusive to whom the act is addressed. However, not everyone is authorised to challenge an administrative decision: the third party must be personally affected by the administrative act.
The purpose of appeals before the administrative courts is:
- to seek the annulment of the contested decision: the judge merely declares the act illegal and it is the administration's responsibility to decree a new act, drawing lessons from the judicial decision issued; or
- The reversal of the administrative decision in cases expressly provided for by law (e.g. foreign nationals' or civil servants' litigation matters, etc.). A reversal goes further than an annulment in that administrative judges do not, as the case may be, merely annul the contested decision but replace it with their own decision by acting in the stead of the administration and redressing the initial defects of the act.