Luxembourg, 2018-05-18

We have already discussed seizures in Luxembourgian law in our article from 1 August 2016, when we introduced and explained the different types of seizures. Following up on this article, we report the following about a case of the Luxembourg case law including an international conflict component.

The judgment of the 18^th Civil Chamber of the Luxembourgian district court from 9 November 2017 is unique in the area of Luxembourgian seizures.

For a better understanding of our jurisdiction we at first again explain the difference between civil monetary claim at a third-party debtor and criminal seizure (I), before we go into more detail on the above-mentioned jurisdiction (II).

1) Difference between civil monetary claim (saisie-arrêt) and criminal seizure (saisie pénale)

If the court deems a claim undisputed, in the case of a civil seizure, a creditor may, by means of a claim, confiscate the debtor’s funds or monetary claims owed to a third party (mostly the employer or a bank). An enforcement order against the debtor is not yet necessary. However, this has to be submitted at the latest when the seizure is validated.

As a consequence of the criminal seizure, the debtor loses the power of disposition on seizable assets. Depending on completion of criminal proceedings against the debtor, the confiscated funds are collected or given back to the suspect.

2) Jurisdiction from 9 November 2017

As part of a Belgian criminal judgment, the amount of 384,000 euros, which was on the defendant’s accounts at the Banque de Luxembourg, was confiscated by the prosecution (confisqué).

Under civil law, this Belgian judgment awarded the victim an amount of one million euros plus interest.

This judgement was legally declared by the damaged party in Luxembourg by an exequatur proceeding. This enabled the injured party to initiate a civil seizure procedure (saisie-arrêt) on the accounts of the convicted party, as well at the Banque de Luxembourg.

From this date, the accounts at the Banque de Luxembourg were seized in the amount of 384,000 euros from the criminal point of view, as well as from a civil law perspective in the amount of one million euros (plus interest 1,540,000 euros).

In parallel, the Belgian state obtained, as well by an exequatur proceeding, the legal force of the Belgian judgment in Luxembourg.

Article 31 of the Luxembourgian criminal code allows the injured party to file an application for allocation on the confiscated accounts (fonds confisqués), if there are legitimate and reasonable demands.

The verdict from 9 November 2017 and by the validation judgement of the civil seizure procedure, the damaged party was paid out the amount of 380,000 euros as well as the civil seized amount of one million Euros plus interest.

Despite criminal seizure, in this specific case the injured party obtained the adjudged compensation at civil level.

Author: Anne-Marie Schmit, Attorney at law

ETUDE ANNE-MARIE SCHMIT