Last updated more than 5 years ago
Many companies have a problem recovering debt in their daily business life.
Faced with a debtor who is reluctant to honour his debts, the creditor has at his disposal judicial and extra-judicial (amicable settlement) procedures to secure what is owed to him.
When the amicable settlement is unsuccessful, the creditor must initiate a legal proceeding which will depend on the amount of the dispute and the complexity of the case.
Debts of EUR 10,000 or less come under the jurisdiction of the magistrate's court of Diekirch, Esch-sur-Alzette or Luxembourg (depending on the domicile of the debtor).
There are 2 possible types of procedure:
- payment order (rapid procedure);
- summons (procedure on the merits).
Who is concerned
All creditors (natural or legal persons) with a claim on a person or company (debtor) may initiate debt recovery proceedings against said party.
For debts of EUR 10,000 or less, the creditor may:
- request a conditional payment order when the cause and the amount of the debt are clearly defined in a contract;
- or officially bring the debtor before the court magistrate by means of a summons in a more complex case (e.g. if the amount of the claim cannot be calculated accurately) or if the claim is disputed.
The amount of the debt to be taken into account includes accrued interest due on the date of the request.
Should a single creditor have multiple claims on the same debtor, the claims concerning the same cause may be added together to determine the amount and, consequently, the competent court.
- a lawyer;
- their spouse or partner;
- their direct relatives (parents, grandparents, great-grandparents, children, grandchildren, great-grandchildren, etc.);
- their collateral relatives up to and including the third degree (brother, sister, uncle, aunt, nephew, niece, brother-in-law, sister-in-law, etc.);
- people exclusively in their personal employ or the employ of their company.
Before he initiates a debt recovery procedure, the creditor must ensure that he is not dealing with a debtor in bankruptcy.
If that is the case, the creditor must submit a declaration of claim to the clerk of the competent district court (depending on where the debtor's registered office is located).
Payment deadlines/Late payment interest
Transactions between professionals or with a public authority
As regards transactions between professionals or with a public authority, the creditor may, in the case of late payment, claim late payment interest and a flat fee of EUR 40 to compensate for recovery costs without a reminder or a formal demand being necessary.
He may also claim reasonable compensation for all other recovery costs exceeding this amount.
The debtor's payment is overdue:
- as from the day following the payment due date or the end of the payment deadline agreed upon by contract;
- or failing this, 30 days after the date:
- of receipt of the invoice;
- of receipt of the goods or provision of the services if the date of the invoice is uncertain or if the debtor receives the invoice before the goods/services;
- of acceptance or verification of conformity of the goods/services, should such a procedure be provided for in the contract or by law and where the debtor receives the invoice on or before the date of acceptance/verification.
Transactions with a consumer
As regards transactions with a consumer, late payment interest starts to accrue as from the third month following the date of receipt of the goods, completion of the works or provision of the services. Late payment interest can only be claimed if:
- an invoice was issued within a month of receipt of the goods by the client, of completion of the works or of provision of the services and;
- the professional has expressly stated on the invoice that the legal rate of late payment interest will be applied where necessary.
If, in spite of several reminders from the creditor in the form of visits, phone calls, letters or dunning letters to the attention of the debtor, the latter still refuses to pay his debts, the creditor may send the debtor a formal demand as a last resort before initiating any legal proceedings.
The creditor may:
- either serve the formal demand by bailiff;
- or address the formal demand by registered letter with acknowledgment of receipt directly to the debtor.
If the debt is guaranteed by a surety, the formal demand also has to be addressed to the person (natural or legal) who acts as surety.
The formal demand must make mention of:
- a formal order to pay addressed to the debtor;
- the legal proceedings considered by the creditor should the debt not be paid;
- the exact extent of the debtor's obligation;
- a final deadline for the debtor to pay (recommended clause).
If the formal demand is unsuccessful, the creditor may initiate legal proceedings in order to recover the debt.
How to proceed
Request for a payment order
The creditor addresses a request for a payment order (1 original + 4 copies) to the magistrate's court with jurisdiction for the debtor's head office or domicile (Esch-sur-Alzette, Luxembourg or Diekirch).
The request must be accompanied by supporting documents (1 copy only) proving the existence and amount of the debt and establishing its validity (e.g. order form, invoice, reminder, financial statement, etc.).
Payment order/Order of dismissal
Once the request has been submitted to the magistrate's court, the court magistrate may:
- either dismiss the request, if he does not consider it to be justified, by means of an order of dismissal, which cannot be appealed against. The creditor may, however, make a claim against the debtor via a summons;
- or instruct the debtor to pay the amount claimed by means of a conditional payment order if he considers the request to be justified. The court clerk notifies the debtor of the conditional payment order and sends a copy to the creditor. This notification interrupts the limitation period and interest to be paid by the debtor shall start to accrue.
In the 15 days following notification of the conditional payment order, the debtor may:
- either pay the creditor the amount claimed. In this case, neither the creditor nor the debtor need take any further action;
- or lodge an objection if he deems that all or part of the amount is not due.
Declaration to the court clerk
The debtor may lodge an objection simply by making a written or verbal declaration to the clerk of the magistrate's court that issued the conditional payment order, stating his reasons for objecting to the amount due.
In this case, the creditor and the debtor may request that the parties be summoned to a hearing in open court to deliberate on the validity of the debt.
Appearance in open court
The court clerk summons the parties to the hearing. The procedure before the court magistrate is solely a verbal procedure. The parties are therefore obliged to appear or to be represented in order to present their arguments (written observations addressed directly to the court will not be taken into consideration).
If the debtor does not appear in court, the judgment will be handed down without him being able to put forward his arguments.
If the creditor does not appear in court, the debtor may request that a judgment be handed down on the validity of the debt, unless the magistrate decides to postpone the case for a subsequent hearing.
If none of the parties appear in court, the magistrate may automatically cancel the case by means of a decision which cannot be appealed against. Prior to this, he must send the parties (or their representatives) a final notice of hearing.
On the day of the judgment, the court magistrate hands down a reasoned judgment.
If the objection is valid, the conditional payment order shall be considered null and void.
If the objection is partially valid, the court magistrate shall order the debtor to pay the part of the debt recognised as valid.
If the objection is rejected, the court magistrate shall order the debtor to pay.
Should the debtor be ordered to pay, the judgment handed down shall serve as an order for execution of payment on the part of the debtor.
If the debtor does not pay and does not lodge an objection, the creditor has 6 months, as from the notification of the conditional payment order to the debtor, to request that the conditional payment order be made enforceable.
This is done by simply making a written or verbal declaration to the clerk of the magistrate's court that issued the conditional payment order.
Once the 6-month period has elapsed, the conditional payment order shall be considered null and void, meaning that the creditor will have to initiate a new procedure if he wishes to bring a new claim against the debtor.
The enforcement order issued by the court magistrate has the same effect as a judgment by default and enables a judicial mortgage to be entered.
Summons to appear in court
The creditor submits his request to a court bailiff who notifies the debtor of the summons. The deadline for appearance in the magistrate's court is 8 days.
On the day of the hearing, the court magistrate first hears the case from both parties before he:
- either orders the debtor to pay the debt;
- or rejects the creditor's claim if he decides that the claim is not justified.
If one party disagrees with the decision, he can appeal against it within a period of 40 days following the notification of the judgment.
Cost of the procedure
The cost of the summons mainly consists of the court bailiff's fees, plus the lawyer's fees if one was consulted.
The court bailiff's rate, which is set by a Grand-Ducal regulation, consists of:
- a fixed fee of EUR 60;
- travel expenses;
- in the case of further consultation of the bailiff: EUR 60/hour;
- a percentage of 0.5% to 3% of the recovered amount.
The cost of the appeal is EUR 1,250.
Forms / Online services
Modèle de mise en demeure
Modèle de mise en demeure - recouvrement de créance