In principle, employers must pay employees' remuneration in full at the end of each month and provide them with a payslip showing how it has been calculated.

The Justice of the Peace may, by order, authorise a creditor to apply an attachment of earnings on the employee's salary. The employer must then deduct a certain amount from the employee's salary in order to pay it to the creditor to repay the employee's debt.

Who is concerned

There are 3 parties involved in an attachment of earnings procedure:

• the distrainer: the person to whom the employee is indebted, and who initiates the attachment of earnings procedure;
• the distrainee, i.e. the employee who is indebted to a third party, and on whose earnings the attachment is made;
• the third-party distrainee, i.e. the intermediary who enacts the attachment of earnings, in this case, the employer.

Prerequisites

An attachment of earnings may be applied to any remuneration paid to a person who works for one or more employers, regardless of the amount and nature of their remuneration, the form and nature of their contract or their status.

The following can be attached:

• salaries and amounts due as remuneration;
• salaries and allowances of civil servants and public employees;
• pensions and annuities arising from social security legislation, excluding the end-of-year allowance;
• full unemployment benefits ;
• sickness and maternity benefits.

How to proceed

Procedure for the attachment of earnings

Filing an application for the attachment of earnings

If an employee fails to honour their financial commitments (examples: (e.g. acknowledgement of debt, order to pay maintenance, etc.), the creditor may lodge a petition with the justice of the peace for an attachment of earnings order.

The attachment of earnings order makes it possible to block, in the hands of the employer, a portion of the debtor's (employee's) salary in order to allow for the repayment of the debt.

This procedure does not require the help of a lawyer and the files tend to be processed reasonably quickly.

The judge may convene the distrainer (seizing creditor) and the distrainee (seized debtor) within 8 days of the introduction of the application to a hearing to discuss the merits of the case and to reach a settlement, if possible.

Refusal of the attachment of earnings

The judge may refuse the attachment only after having summoned the parties before him. (see 'Filing an application for the attachment of earnings' above). The refusal of attachment is notified to the distrainer by registered letter.

The distrainer can lodge an appeal against this decision. The appeal must be lodged:

• within 15 days of the notification of the refusal; and
• by way of petition to the district court.

Authorisation of the attachment of earnings

If the justice of the peace authorises the attachment, they will notify the third-party distrainee (employer) by registered letter of a certified copy of the order authorising the attachment. The order validates the attachment of earnings.

The distrainee (employee) and the distrainer (creditor) are informed by registered letter that the attachment order has been notified to the employer.

The authorising order states the amount that applies to the attachment of earnings.

Conservatory phase

During the so-called conservatory phase, i.e. the phase between the notification of the authorisation of the attachment to the employer and the judgment validating the attachment, the employer must:

• provide the court, within 8 days of receiving notification of the authorisation to proceed with the attachment, with:
  • either an affirmative declaration, confirming to the magistrate that the person in question is indeed an employee of theirs, and stating:
    • the net monthly remuneration of the employee concerned;
    • any attachment of earnings already in progress;
  • or a negative declaration, specifying the date when the person in question left their employ. If the employer does not make a declaration or makes a false declaration, they may be held by the court as the debtor of the unpaid attachments and ordered to pay them to the distrainer;
• provisionally deduct the legally attached amount from the employee's net salary;
• retain these deductions pending the judgment validating the attachment.

Judgment of validation, nullity or release of the attachment

Authorisation issued on the basis of an enforcement order

If the authorisation was issued on the basis of an enforcement order which has the force of res judicata, produced by the distrainer, the latter may petition the court to validate the attachment order.

Validation can only be requested if the distrainee (employee) has not lodged a challenge against the order authorising the attachment. The challenge must be lodged within one month of the notification of the authorisation order. The challenge must be made by letter to the court clerk.

The parties are summoned to a hearing within 15 days of the introduction of the challenge by the distrainee to discuss the merits of the challenges . The time between the summons and the hearing is 8 days.

Following this hearing, the judge will rule on the validity, nullity or release of the attachment.

In the absence of a challenge by the distrainee (employee), the judge will grant the distrainer's request and validate the attachment order.

The judgment is notified to the parties by the court clerk.

Authorisation without prior enforcement order

If the authorisation order has not been issued on the basis of an enforcement order that has the force of res judicata, the distrainee (employee), the distrainer or the third-party distrainee (employer) may request that the parties be convened to a hearing by letter addressed to the court clerk.

The parties are summoned to a hearing within 15 days of the request being made. The time between the summons and the hearing is 8 days.

Following this hearing, the judge will rule on the validity, nullity or release of the attachment.

The judgment is notified to the parties by the court clerk.

Enforcement phase

After the judgment validating the attachment is handed down, i.e. when the judge has confirmed that the employee owes the requested amounts, the employer must:

• continue to deduct the attached amounts from the worker's salary;
• pay those monies to the creditor, along with sums already withheld, until the debt is paid in full.

Calculating the attachable share of a salary

The attachable share of a salary is determined on the basis of net monthly earnings broken down into 5 earnings brackets that are set by Grand Ducal regulation. For each earnings bracket, an attachable portion is defined by law as shown in the table below:

When several attachment of earnings orders have been made on the same salary, the justice of the peace determines the seizable amounts in proportion to the amounts owed.

Some debts can be recovered by seizing the amount due on the unattachable portion of salaries. More particularly, this is the case for child maintenance payments that are owed for the month in question.

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