To ensure access to legal redress for people without sufficient funds, the Luxembourg government provides them with free and full legal assistance to defend their interests in Luxembourg.
This assistance is provided by the Bar Councils of Luxembourg and Diekirch, and includes the right to be assisted by a lawyer and any other ministerial officer, such as a notary or a bailiff, whose assistance may be necessary.
Legal assistance is granted both in judicial and extrajudicial matters, with respect to both litigation and non-contentious matters, and whether the person in question is the plaintiff or the defendant. It applies to any matter brought before a judicial court or administrative court. Legal assistance may be requested during the proceedings for which it is sought; if granted, it will be backdated to the date on which the proceedings were commenced.
It covers all expenses relating to the cases, procedures or actions for which it is granted.
Who is concerned
The following are eligible for legal assistance:
- Luxembourg nationals;
- foreign nationals with a Luxembourg residence permit;
- nationals of a European Union (EU) Member State;
- foreign nationals with the right to the legal assistance as received by Luxembourg nationals pursuant to an international treaty;
- third-country nationals illegally staying in Luxembourg for the purpose of recovering their remunerations due pursuant to the Labour Code.
It should be noted that legal assistance may be granted both to adults and to minors.
In cross-border disputes, a person domiciled or usually resident in Luxembourg may receive legal assistance for purposes of obtaining legal advice, including help in preparing an application for legal assistance in another EU Member State.
Moreover, a foreign national domiciled or resident in another EU Member State, with the exception of Denmark, may also receive legal assistance in Luxembourg for cross-border disputes. However, such litigants must apply to the competent authority in their home country, which will forward the information to the Luxembourg Ministry of Justice.
Legal assistance may also be granted to any foreign national with insufficient resources to pursue proceedings concerning asylum, entry into Luxembourg, temporary or permanent residency, or deportation.
Defining insufficient resources
Whether applicants for legal assistance have insufficient resources is measured by reference to their total gross income and the applicant's total wealth and the members of their household (note, though, that only adult members of the household are taken into account).
The resources of persons living in the same household as the applicant are not taken into account:
- in the case of adversarial proceedings between spouses or between persons usually living in the same home; or
- if there is a divergence of interests between spouses or persons usually living in the same home that necessitates a separate assessment of their resources.
Applicants are deemed to have insufficient resources if they are recipients of the social inclusion income (REVIS).
Persons who live in a household with a recipient of the REVIS, whose income and wealth are taken into consideration for purposes of determining the REVIS, are also deemed to have insufficient resources.
Persons who, while not recipients of the social inclusion income, nevertheless have a level of income and wealth such that they would be entitled to the REVIS if they satisfied the other legal conditions for eligibility are also deemed to have insufficient resources.
The same is true of persons domiciled or residing in another EU Member State and who can prove that they would be unable to pay the costs of a dispute in Luxembourg due to the difference in cost of living between their country of residence and Luxembourg.
Refusal of legal assistance
The following are precluded from legal assistance:
- a person whose lawsuit is manifestly inadmissible, groundless, unfair, or disproportionate to the costs that would be incurred;
- a person entitled to reimbursement, by a third party, of the costs to be covered by legal assistance (such as from legal aid, a union, etc.);
- the owner, keeper or driver of a motor vehicle, for disputes relating to such a vehicle;
- a merchant, manufacturer, artisan or professional, for a dispute relating to their professional activity.
How to proceed
Submitting the application
Application for legal assistance must be made using the questionnaire available from the Central Social Assistance Service or on the website of the Luxembourg Bar; it must be signed by the applicant and addressed to the President of the Bar Association in the competent jurisdiction (Diekirch or Luxembourg).
In the case of persons in police custody or accused of a crime, the lawyer or investigating judge forwards the application to the President of the Bar Association.
The questionnaire to be completed requires the following information:
- the applicant's identity (last name, given names, date and place of birth, occupation, address, marital status and nationality);
- the nature of the dispute for which legal assistance is requested;
- the applicant's family status;
- the applicant's financial condition.
Applicants may also indicate the name of their preferred lawyer(s) to provide legal assistance or, if applicable, the name of their current lawyer.
Documents to be submitted with the application
Persons applying for legal assistance must attach a number of exhibits and documents to their application. Applications for legal assistance will not be processed if the necessary documents are not attached.
The following documents must be attached to the application:
- a copy of the applicant's ID card;
- a certificate of registration with the Joint Social Security Centre (Centre commun de la Sécurité sociale - CCSS) for the applicant as well as the other members of their household;
- for the applicant and each member of the household: a payslip (or a certificate of income from the CCSS), proof of REVIS, unemployment, pension or other income covering the last three months and indicating gross amounts (bank statements are not sufficient);
- a certificate of non-receipt of payments from the National Solidarity Fund for each member of the household, if the household does not receive anything from the Fund;
- if the household receives or pays maintenance or support, a document indicating the amount of support for the current month and the amount actually paid or received (bank statements for the last 3 months, for example);
- a certificate of real-estate ownership or non-ownership issued by Luxembourg Inland Revenue for each member of the household;
- where applicable, supporting documentation for ownership of real estate located abroad;
- documents showing ownership of movable assets (cash, savings, stocks, bonds, etc.);
- if the household rents the home, a copy of the lease agreement and receipts for the rent for the past three months;
- if the household is making mortgage payments, proof of the monthly payments;
- income showing income from immovable and movable property;
- a copy of the legal protection insurance contract;
- a document proving affiliation to a trade union, the Luxembourg Consumer Protection Association, etc.;
- documents concerning the matter in question.
Persons under arrest must attach to their application:
- their detention certificate;
- documents concerning the matter in question.
Refugees and asylum seekers must attach the following to their application:
- a copy of an identity document (if available);
- an attestation stating that an application for international protection has been filed for each person covered by the application, or a document attesting to the filing of an application for regularisation of residency status in Luxembourg;
- in the event of placement in an immigration detention centre, an document certifying that placement;
- documents concerning the matter in question.
Procedures for implementing legal assistance
Once the applicant is confirmed to have insufficient resources, the President of the Bar Association or the bar association member delegated for that purpose notifies the applicant of the acceptance or rejection of the application for legal assistance, by ordinary post if the application is accepted or by registered letter if the application is rejected. The Bar Association representative appoints the lawyer chosen by the applicant, or, if the applicant has not chosen or the President of the Bar Association deems the choice to be inappropriate, a designated lawyer.
Notaries and bailiffs are appointed automatically by the court hearing the case in connection with the legal assistance.
If the legal assistance is approved during the proceedings, expenses incurred by the applicant will be reimbursed.
Expenses not covered by legal assistance
If the beneficiary of the legal assistance is ordered to pay costs, such costs will be paid by the State.
In criminal matters, legal assistance does not cover costs and fines issued against the defendants.
In civil matters, legal assistance covers neither procedural compensation nor indemnities for vexatious and frivolous proceedings.
The President of the Bar Association will revoke the benefit of legal assistance granted to the applicant, even after the trial or conclusion of the case for which it was granted, if the benefit was obtained through inaccurate statements or in light of inaccurate documents.
The President of the Bar Association may also revoke the benefit of assistance if the applicant's financial condition improves such that the applicant no longer meets the conditions for insufficient resources.
A decision to refuse the benefit of legal assistance following provisional acceptance has the same effect as a revocation.
Revocation of the benefit of legal assistance results in immediate reimbursement of any type of aid the applicant has received.
The applicant may appeal to the disciplinary and administrative committee of the Bar Association against decisions refusing or revoking legal assistance. The appeal must be filed with the chairman of the disciplinary and administrative committee by registered letter within 10 days of notice of the decision by the President of the Bar Association.
The decision of the disciplinary and administrative committee may, in turn, be appealed to the disciplinary and administrative board of appeals. Appeals must be filed within 15 days.