[Author’s note: my first of many visits to the Grand Duchy of Luxembourg was at the age of five or six, with my parents. In college, I had a chance to visit on my own, and fell in love with the place all over again, concluding that Lux City is Europe’s best-kept secret. Really a neat corner of the world, and highly sophisticated—especially in the legal and financial industries.]
Serving process in Luxembourg is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter. Some background is in order, if you’re so inclined, before we cut to the chase.
- The roadmap to the overall process—the recipe to our Secret Sauce.
- The structure of the Convention itself is discussed in this four-part series.
- And an absolutely critical note: the Hague Service Convention does not pertain to subpoenas. Repeat after me—you can’t just SERVE a subpoena abroad. You have to file a Hague Evidence Request. Dramatically different from serving a summons or notice.
Now, for the chase scene (or more accurately, here’s how it’s done in Luxembourg):
Article 5 Service
- Translate the documents. Luxembourg’s declaration to Article 5(3) requires it and, although the defendant may speak flawless English, omitting translated documents will prompt the Central Authority to reject your request. Fortunately, the Authority will accept translations into either French or German, so savings can occasionally be realized by chance. If a Luxembourg party’s co-defendant is in France, southern Belgium, or western Switzerland, only one translation is necessary. Likewise with a co-defendant in Germany or eastern Switzerland (although the preferred language is still French).
- Fill out a USM-94. Be very careful about ensuring that it is complete and concise, and make sure that it is signed by a court official or an attorney. If it is not, make sure that the person signing is commissioned by the court.
- Send to the Central Authority.
- Sit tight. It will likely 2 months from submission to receive proof of service.
Article 10 alternative methods
- Mail service is available, depending on where you are, but it’s a bad idea anyway. If you do select this route, pay particular attention to the venue court’s rules about how mail service is initiated—in federal cases, adhere strictly to FRCP 4(f)(2)(C)(ii).
- Luxembourg also allows direct access to a huissier de justice,* the judicial officer who serves process in local actions and Article 5 requests. This method avoids having to wait for processing by the Central Authority, often cutting wait time by a couple of months, but finding a huissier without speaking French can be a challenge.
Pretty straightforward options in this tiny dukedom, but choosing the right one can be tricky. Luxembourg’s declarations and Central Authority information—as well as those of all the other countries in the treaty—can be found here.
Bonus practice tip… if you’re defense counsel, always question the validity of service effected on your overseas client. The plaintiff may not have done it correctly.
* The huissier is a specialized professional in the civil law system. A qualified attorney, whose practice is limited to procedural matters on behalf of the court, the huissier not only serves process, but is also tasked with executing judgments. A rough analog in common law systems: a combination between a bailiff and a sheriff, but with the same level of training as a practicing attorney. The huissier’s counterpart in Dutch-speaking jurisidctions: the gerechtsdeurwaarder. In German-speaking areas: the deurwaarder (although, to be sure, this won’t help much, as Germany, Switzerland, and Austria all prohibit access to judicial officers for service requests).