|I. ADMINISTRATIVE ENFORCEMENT
|Which administrative mechanisms are available to enforce the UCP Directive?
In Luxembourg, Directive 2005/29/EC is implemented by the law on unfair commercial practices dated April 29, 2009 (hereafter the Law).
The general enforcement of this Act is handled by the “Ministry responsible for consumer protection”, i.e. currently the Ministry of the Economics.
Since January, 2007 a “Commissaire” has been designated to take care of consumers’ rights.
Please note that the ministry responsible for consumer protection can only act if there is a breach of the collective interest of consumers. For an individual complaint, he will pass the case, with the complainant's consent, to the Luxembourg Union of Consumers in respect of national disputes, or to the European Consumer Centre EIG in respect of cross-border disputes.
The law grants specific powers to:
- the CSSF (http://www.cssf.lu/) which is the national authority for the supervision of financial sector.
- the Commissariat aux Assurances (http://www.commassu.lu/) which is the national authority for the supervision of the insurance sector.
- the Ministry of Health (www.ms.etat.lu)
|Who can file administrative complaints?
An administrative complaint can be filed by every natural or legal person.
|Do any specific procedural requirements apply to filing administrative complaints?
The complaint can be sent directly to the competent authority
1) by letter :
Ministère de l’Economie et du Commerce Extérieur
Direction de la réglementation des marchés et de la consommation
2) by email : email@example.com
3) or by fax : ++ 352 22 16 07
|Do the administrative authorities have an obligation to investigate the complaint?
The administrative authorities are required to investigate every complaint they receive except anonymous complaints.
|Are there any specific requirements regarding the provision of evidence to the competent authorities?
The law does not contain such requirement. However, we recommend that the complaint letter should describe the problem as exhaustively as possible and be supplemented by any pertinent document illustrating the facts and proving the arguments put forward.
|II. ENFORCEMENT THROUGH COURT ACTION|
|Which court actions are available to enforce the UCP Directive?
Chapter 3 of the Law provides for a specific cease-and-desist procedure, handled by the judge presiding the commercial chamber of the District Court (“Magistrat présidant la Chambre du tribunal d’arrondissement siégeant en matière commerciale”). In addition, a general claim for civil damages can be filed before the competent civil courts.
The Public Prosecutor (le procureur d’Etat) can file a criminal complaint.
|Who can start a court action?
A court action can be started by
- every natural or legal person, professional group, organization which fulfils the requirements of the law dated December 19, 2003 on the conditions for approval of organizations entitled to issue proceedings in order to protect the collective interests of consumers,
- the ministry responsible for consumers,
- the “CSSF” or the “Commissariat aux assurances”.
|Can court actions be initiated by competitors?
Yes, however the applicant must prove his direct and legitimate interest in order to initiate “a cease and desist” procedure.
|Can the case be handled through an accelerated procedure?
The “cease and desist” procedure follows a procedure which is similar to summary proceedings (procedure de référé) which should be not too much time consuming. The case may be handled through an accelerated proceedings called “référé extraordinaire”.
|Are there any specific requirements regarding the provision of evidence to the court?
The law does not contain any provision on this matter. Consequently the general rules of evidence as laid down in the Luxemburg Civil code and “Nouveau Code de Procédure Civile” apply. Article 10 of the Law sets forth that the plaintiff needs not to prove evidence of loss or real damage. He also needs not to provide evidence of intent or negligence by the defendant.
According to Article 10 of the Law, in case of misleading or comparative advertising, the judge may require the advertiser to provide evidence of the accuracy of information contained in the advertisements. If the proof is not or not sufficiently provided by the advertiser, the judge may consider the data as inaccurate.
|What are the possible civil sanctions and remedies for the infringement of the UCP provisions?
The sanction that results from this procedure is an order for cessation of the infringement.
The judge can also order the publication of his judgment (see infra). Please not that the trade permit (“autorisation d’établissement”) may also be revoked if the person has been found guilty of a criminal offence in connection with unfair commercial practices or unfair competition laws.
|What are the possible criminal sanctions for the infringement of the UCP provisions?
The criminal sanctions are :
- a fine from 251 EUR to 120.000 EUR for carrying out certain misleading or aggressive commercial practices (Articles 3 to 7 and Article 9 of the Law).
- a fine from 251 EUR to 120.000 EUR for the non-compliance with a cease and desist decision.
|What are the possible administrative sanctions for the infringement of the UCP provisions?
Administrative authorities cannot impose fine or order injunction.
|What are the contractual consequences of an administrative order or a judgement relating to an unfair commercial practice on an individual transaction?
If a competent court comes to the conclusion that the vendor has carried out an aggressive or misleading commercial practice, the consumer will be able to prove mistaken consent and thus his contract will be declared void.
|How can consumers get redress/compensation (e.g. through collective actions)?
Luxembourg law does not allow collective actions for civil complaints (class actions).
Consumers can file a claim for civil damages in civil Courts, even if they have not initiated the cease and desist procedure before the judge presiding the commercial chamber of the district court. Such claim is subject to the general rules of Luxemburg tort law (article 1382 of the Civil code).
|Can the administrative authorities or the courts require the publication of their decisions?
The judge can order that his judgment be published either on the inside or outside of the establishment of the defendant or in a newspaper, at the expense of the defendant, provided that the court decision is final and can non longer be appealed.
|IV. OTHER TYPES OF ENFORCEMENT|
|Are there any self-regulatory enforcement systems in your jurisdiction that deal with aspects of the UCP Directive?
The Council of the Advertising industry of Luxembourg (CPL) and the Committee for Ethics in Advertising (CLEP) were recently established.
The role of the CPL is the promotion, the defence of the advertising and its freedoms as well as the implementation of a code of ethics.
|Are there any mediating services that deal with aspects of the UCP Directive (e.g., an ombudsman)?
For alternative resolution of consumer disputes, Luxembourg has notified to the European Commission the following bodies:
1. Commission de surveillance du secteur financier (CSSF)
Adresse : 110 route d'Arlon, LU-2991 Luxembourg
Tél : + 352 262 51
E-mail : firstname.lastname@example.org
Website : www.cssf.lu
The “Commission de surveillance du secteur financier” (CSSF) is entitled under the terms of article 58 of the law of 5 April 1993 on the financial sector as amended, to intervene with respect to disputes between professionals of the financial sector subject to its supervision and their customers with a view to helping the parties to reach an amicable settlement. Pursuant to article 41-10 of the above law, the CSSF is also empowered to deal with disputes as regards cross-border transfers between originators and their institutions or beneficiaries and their institutions. The CSSF intervenes under the terms of article 58 in its capacity as public authority. It aims to settle the complaints received on an amicable basis in accordance with the powers conferred on it by law. The CSSF does not act as a judge or an arbitrator passing a mandatory judgment, nor as an “ombudsman”, who, by definition, is a person charged with defending the citizens’ rights against public authorities. If the CSSF concludes that the customer's complaint is totally or partly justified, it addresses a reasoned opinion to the professional. At the same time, it invites the parties to contact each other in order to settle their dispute in the light of the CSSF's reasoned opinion.
2. Commission luxembourgeoise des litiges de voyages (CLLV)
Adresse : 55 rue des Bruyères, LU-1274 Howald
Tél : +352 496 022403
Fax : + 352 494 957
Website : www.ulc.lu/
If CLLV fails to reconcile the parties, it will deliver a written reasoned opinion. It is not legally binding, but its moral authority should be sufficient
to end the proceedings.
3. Bureau d'arbitrage de la Fédération des Garagistes du Grand-Duché de
Adresse : 2 Circuit de la Foire Internationale, LU-1016 Luxembourg
Tél : +352 424 5111
Fax: +352 424 525
E-mail : email@example.com
Website : www.fegarlux.lu
The arbitration office only deals with disputes relating to the provision of repair services.
4. Centre de Médiation du Barreau de Luxembourg (CMBL)
Adresse : 1-7 rue St Ulric, BP 361, LU-2013 Luxembourg
Tél : +352 467 2721
Fax : +352 225 646
E-mail : firstname.lastname@example.org
The mediator appointed by the CMBL is neither a judge nor an arbitrator. He helps the parties to find their own solutions.