The constitutional reform, which aims to establish a Council for the judiciary and strengthen the independence of the Prosecutor’s Office, is being finalised. On 20 October 2021, the Parliament adopted at first reading the revised text of Chapter VI (on Justice) of the Constitution. As mentioned in the 2021 Rule of Law Report, this revision aims at establishing a new Council for the judiciary and, more generally, to strengthen judicial independence. As regards the Council for the judiciary, the draft text, as adopted at first reading, outlines the main competencies of the future Council, namely the selection of magistrates before their appointment by the Grand Duke and deciding on the initiation of disciplinary proceedings against magistrates. The specific conditions under which these powers will be exercised, as well as the composition, organisation and the other competencies of the Council, are to be determined by law. As regards the strenghtening of independence of the Prosecutors’ Office and the judiciary as a whole, the adopted draft enshrines the independence of judges and prosecutors. The judges are independent in exercising their functions, while the Prosecutor’s Office is independent in the exercise of individual investigations and prosecutions, without prejudice to the Government's right to give direction on criminal policies. This independence is also reflected in the legislative amendments of the Criminal Procedure Code and the Criminal Code, which would remove the power of the Minister of Justice to give instructions to prosecutors in individual cases.

The level of perceived judicial independence in Luxembourg continues to be very high both among the general public and companies. Overall, 77% of the general population and 76% of companies perceived the level of independence of courts and judges to be ‘fairly or very good’ in 2022 . According to data in the 2022 EU Justice Scoreboard, no significant changes can be identified in the evolution of the perceived level of independence since 2016. The perceived judicial independence among companies has increased since 2021 (71%), but is lower in comparison with 2016 (80%).

The justice system contains two separate branches of courts: ordinary courts with jurisdiction in civil and criminal matters and administrative courts hearing cases of administrative law. The ordinary branch includes three Justices of the Peace, two District Courts with general jurisdiction, a Court of Appeal and a Court of Cassation. The administrative branch is composed of an Administrative First-instance Court and an Administrative Court of Appeal. The Constitutional Court is part of the judiciary and rules on the compliance of laws with the Constitution. Candidate judges are selected by a committee composed exclusively of judges and subsequently formally appointed by the executive. For posts at the Supreme Court and the Administrative Court of Appeal, judges are appointed by the executive on the advice of the Supreme Court or of the Administrative court, respectively. The Prosecution service is independent but prosecution is exercised under the authority of the Minister of Justice. The two Bar Associations are independent and represent lawyers established in Luxembourg. Each Bar Association has an Assembly , a Bar Council , a President of the Bar and for the whole profession, a Disciplinary and Administrative Council . Luxembourg participates in the European Public Prosecutor’s Office (EPPO).

A draft constitutional revision has been presented with the aim to introduce a direct right for citizens to put forward legislative initiatives. Since the publication of the 2021 Rule of Law Report, no action has been taken to address the concerns regarding the regularity and the extent of consultation of stakeholders, other than the ones required by law, in the decision-making process. A series of COVID-19 pandemic related measures were challenged before the Constitutional Court. The draft law on NGOs, which intends to simplify the procedures for their creation and governance, is being discussed in Parliament.

Luxembourg continued strengthening the regulatory safeguards for the independence and effectiveness of the media regulator as the Audiovisual Media Services Directive (AVMSD) was transposed. Moreover, the competences and resources of the regulator have been further increased. A revised press aid scheme, covering online news media, has been adopted making it technologically neutral. The framework for the protection of journalists remains robust. Concerns remain about the lengthy procedures for access to official documents for journalists, who request that a fast-track option is introduced for their profession. A draft law to reinforce the independence of Radio 100.7 public service media has been presented to the Parliament.

All authorities involved in the fight against corruption are cooperating well although there remain challenges as regards human resources in the prosecution services dealing with economic and financial crime. Some progress was made in the area of asset declarations and lobbying as regards Members of Parliament and a transparency register will be set up. The Codes of Conduct for members of the Government and its advisers were strengthened, but not all public sectors have a code of conduct. Room for improvement also remains as regards the regulation of conflicts of interest and revolving doors. The impact of the new rules on political party financing could not yet be determined since elections are only expected to be next year. Legislation to protect whistleblowers is still limited to specific sectors, but the Government adopted a draft law in January 2022 to strengthen the protection of whistleblowers and transpose EU legislation. There were no corruption cases reported related to the COVID-19 pandemic in the past year.

Luxembourg's justice system has maintained its very high level of perceived judicial independence and continues to operate efficiently. The Constitutional reform, which aims to establish a Council for the judiciary and strengthen the independence of the Prosecutor’s Office is being finalised. New legislative amendments seek to align the composition of the future Council for the Judiciary with European standards. Those amendments also specify the powers of the Council for the Judiciary regarding appointments, promotions, retirement and secondment of magistrates, and introduce a new disciplinary regime. Despite certain progress with the digitalisation project covering administrative courts, shortcomings remain regarding the digitalisation of justice overall. A new draft law that would make legal aid more accessible was tabled in Parliament.

New legislative amendments have been tabled aligning the composition of the future Council for the judiciary with European standards. In October 2021, the Ministry of Justice decided to split the draft law on the organisation of the future Council for the judiciary in two separate draft laws: one on the organisation of the future Council (draft law on the composition) and one on the status of magistrates (draft law on the powers of the future Council). On 15 October 2021, the new draft on the composition was tabled in Parliament. It aims to address the concerns raised by the 2020 and 2021 Rule of Law Reports and to align the composition with relevant Council of Europe standards, which recommend that at least half of the members of such councils should be judges (magistrates) elected by their peers . The latest draft legislation envisages a composition of nine members: six magistrates elected by their peers, among which the President of the Supreme Court, the President of the Administrative Court of Appeal, the State Prosecutor General are ex officio candidates, one lawyer elected by their peers, and two persons elected by the Parliament based on their education or experience. This new structure, if adopted as provided in the latest draft, would comply with the Council of Europe recommendation. On 31 May 2022, the Council of State published their opinion on these new legislative amendments. The Council of State approved of the new composition but also expressed some concerns, which would be subject to further debates and amendments at the Parliament.

New legislative amendments are set to establish rules common to all magistrates including a new disciplinary regime. On 20 December 2021, the Ministry of Justice tabled the second part of the draft law for the concerning the future Council for the judiciary, which deals with its powers. In particular, this new draft law contains rules common to all magistrates (judges and prosecutors) with regard to recruitment, training, appointment (including promotions), secondment, ethics, discipline and retirement. On the appointment procedure for magistrates, the future Council would be the sole institution responsible for this, being guided by criteria for the appointment set in the law. At the end of the procedure, the Council would present the selected candidates to the Grand Duke, who would appoint them without having a power of veto. The decision for appointment would be susceptible to a judicial review regarding its legality. On secondments, the draft law does not envisage any secondments of judges without their consent. On retirement, the age and conditions would remain unchanged. On the new disciplinary regime for magistrates, the future Council would play a major role, as it would have the prerogatives to initiate a disciplinary investigation concerning a magistrate and to launch the proceedings before the disciplinary courts; it would have the possibility to appeal the decision of the first instance disciplinary court. The draft law creates two new disciplinary courts – a Disciplinary Tribunal (first instance court) and a Disciplinary Court (a second instance court). Both the Tribunal and the Court would be composed of three effective members and six alternates, all of whom would be magistrates but none of them would be prosecutors. The Grand Duke would appoint the members of both the Tribunal and the Court after proposal of the Council for the judiciary. The Grand Duke would not have a power of veto and would be obliged to appoint all proposed candidates. The draft law also introduces a list of actions that could provoke a disciplinary action, none of which would allow for launching a disciplinary proceeding based on the contents of a magistrate’s decision. Furthermore, the draft law lists the possible sanctions for disciplinary offences, all of which would be susceptible to an appeal before the second instance disciplinary court. The magistrates against whom there is a disciplinary proceeding before the disciplinary courts would have the right to be assisted by a lawyer. In general, the current draft seems to be in line with the relevant European standards, in particular as regards the more sensitive areas of the appointment of magistrates (including promotion) and the disciplinary regime. On 31 May 2022, the Council of State published their opinion on these new legislative amendments. The Council of State approved of the new regimes created by the draft law but also expressed some concerns, which would be subject to further debates and amendments at the Parliament.

Quality

Despite progress with the digitalisation project covering administrative courts, shortcomings remain regarding the digitalisation of justice overall. In February 2022, the first conceptual phase of the JANGA sub-project was concluded. This is the most advanced part of the “paperless justice” project that encompasses 13 sub-projects. JANGA as the first sub-project concerns the digitalisation of all exchanges and archives for administrative courts. The authorities expect to launch the functionalities by the end of 2022. Furthermore, the temporary legislative changes made to adapt the procedures for criminal, civil and commercial cases during the COVID-19 pandemic and to allow the use of electronic tools would remain in force even after the pandemic. It is unclear whether they will be consolidated under new legislation or integrated in the future revision that will incorporate the functionalities introduced under the “paperless justice” project. Nevertheless, the changes allow only for limited use of electronic tools in the courts. Further shortcomings could be observed in the area of digital tools to initiate and follow proceedings. Currently, in civil and commercial cases it is only possible for the courts to serve documents electronically to citizens and businesses and to send electronic acknowledgement of receipt proving the submission of documents. However, it is not possible to receive comprehensive information on or pay court fees online, nor it is possible to access the electronic files of closed or ongoing cases. Despite the progress achieved, the scope of available online tools and digital solutions remains limited, while the “paperless justice” project aims to be completed only by 2026.

A new draft law aims to make legal aid more accessible. On 27 January 2022, the Ministry of Justice and the President of the Luxembourg Bar presented a draft law on legal aid. This more detailed and comprehensive legislation would replace the existing article of the Law on the Profession of a Lawyer and the Grand-ducal regulation on legal aid. The new draft law expands the scope of application of legal aid to persons who do not hold the Luxembourgish nationality but reside in Luxembourg and allows for partial legal aid. Due to the introduction of partial legal aid, the new draft law would ease the requirements for acquiring legal aid, which are currently limited to people only with income below the social inclusion income It would include also people in specific situations (for instance people in bankruptcy). The draft law is currently pending in Parliament and undergoing stakeholder consultations.

Efficiency

The courts continued to perform efficiently despite some challenges with the clearance rate potentially due to the COVID-19 pandemic. Despite the effects of the COVID-19 pandemic and the increase of the estimated time needed to resolve a case, efficiency continues to be consistently high, although the length of proceedings is significantly longer at second and third instances . The number of pending cases remains low, with the exception of criminal cases . However, the clearance rate has fallen below 100% which is potentially due to the effects of the COVID-19 pandemic. Therefore, this difference would probably be of temporary nature . Finally, for the first time, data are available as regards the length of court proceedings and the number of pending cases in administrative courts . The estimated time needed to resolve administrative cases at first instance is high in comparison to other EU Member States; in the absence of earlier data, it is not possible to establish trends.

II.Anti-Corruption Framework

The institutional framework to prevent and fight corruption has not changed since the 2021 report. Luxembourg has no specific anti-corruption strategy, nor an anti-corruption agency; it has a legal and institutional anti-corruption framework broadly in place. The Ministry of Justice is the main authority in charge of overall anti-corruption matters, including policy coordination. Within the Ministry of Justice, an intergovernmental committee, the Corruption Prevention Committee (COPRECO), acts as a consultative forum and supports the overall national policy to fight corruption. There is no specialised anti-corruption prosecution authority although the Economic and Financial section of the Prosecution service has specific competences to investigate criminal cases of economic and financial nature, including corruption cases. The Court of Auditors is indirectly involved in the fight against corruption through its controls on the use of public funds.

The perception among experts and business executives is that the level of corruption in the public sector remains low. In the 2021 Corruption Perceptions Index by Transparency International, Luxembourg scores 81/100, ranks 4h in the European Union and 9th globally . This perception has been relatively stable over the past six years. The 2022 Special Eurobarometer on Corruption shows that 36% of respondents consider corruption widespread in their country (EU average 68%) and 9% of respondents feel personally affected by corruption in their daily lives (EU average 24%). As regards businesses, 43% of companies consider that corruption is widespread (EU average 63%) and 38% consider that corruption is a problem when doing business (EU average 34%). Furthermore, 40% of respondents find that there are enough successful prosecutions to deter people from corrupt practices (EU average 34%) , while 54% of companies believe that people and businesses caught for bribing a senior official are appropriately punished (EU average 29%) .

The number of reported corruption cases opened over the past year as well as convictions decreased. Whereas 28 cases were opened in 2019 and 29 cases in 2020, 22 cases were opened until the end of 2021. The success rate of prosecutions went down: of five judgments on the merits in 2021, there was only one conviction, compared to two convictions on four judgments on the merits in 2020 and four convictions on five judgments on the merits in 2019 , but it is not evident to infer conclusions from comparing data that consists of low numbers. The number of offences of corruption contained in the police databases is much lower but remained stable in comparison to last year, with five offences in 2020 and four in 2021.

Challenges remain as regards human resources in the prosecution services dealing with economic and financial crime, sometimes resulting in delays in prosecution of corruption. The Prosecution service numbers 43 prosecutors and among them, one third are employed in the area of the fight against economic, financial and corruption offences . As outlined in the 2021 Rule of Law report , only a limited increase of resources was granted, also due to the absence of appointable persons. The latest available annual report from the Prosecution service confirms the lack of resources, particularly in its Economic and Financial section. Nevertheless, the Prosecution service has confirmed that it treats all cases, although sometimes with delays . Delays in the investigation of corruption cases, which are by nature complex and technical, entail the risks that evidence can no longer be uncovered and assets no longer recovered, as well as the expiry of the statute of limitation, effectively barring prosecution.

The Government aims to ensure that members of the Government can be held criminally liable for offences, including corruption. Under the current Constitution, only the Parliament has the right to bring charges against members of Government. Under one of the projects of the Constitutional revision, members of the Government would be criminally liable for acts committed by them in the exercise of their duties, even after their term of office has ceased. However, only the Public Prosecutor’s Office may bring and direct proceedings for such act. The Office should assess the appropriateness of prosecuting members of the Government if they are accused of facts by individuals and thereby protect them from potential false and/or politically motivated allegations.

The Corruption Prevention Committee (COPRECO) met once in the last year and a half. Although COPRECO is required by law to meet at least twice a year, it did not meet in 2021, neither in person nor online, reportedly due to the COVID-19 pandemic and staff changes. After an 18-month break, a meeting took place on 30 March 2022, which informed participants on several ongoing assessments of the Luxembourg anti-corruption framework by international bodies and the state of play of legislation in progress or adopted in Luxembourg . Signatories of the UN Convention against Corruption are required to ensure the existence of an independent body that oversees and coordinates preventive anti-corruption policy. Insofar as COPRECO could be considered as such a body, there are no indications it has carried out any oversight or coordination over the past year.

Some progress was made in the area of asset declarations and lobbying as regards members of Parliament. On 14 September 2021, the Parliament amended its Code of Conduct , which strengthens the rules on the declaration of assets and extra-parliamentary work and activities such as participation in boards or committees of companies. In contrast to what GRECO recommended , and what applies to people taking up adviser posts in the Government, the new asset declaration regime for Members of Parliament does not cover assets of family members and spouses. Furthermore, on 9 December 2021, a new transparency register was created in law . Members of Parliament have to declare all contacts with registered lobbyists and must reject a request for meeting with unregistered persons seeking to influence the legislative work of Members or the Chamber’s decision-making process . The data of lobbyists and contacts will be made public in an easily accessible form on the website of the Parliament. The register is an important tool to prevent corruption through transparency, but it still has to be made operational and will be evaluated one year after its entry into force . No progress was made with regard to the introduction of an effective system of monitoring and sanctions concerning breaches of the Code of Conduct for members of Parliament.

The Codes of Conduct for members of the Government and its advisers were strengthened, but not all public sectors have a Code of Conduct. The Government adopted on 24 March 2022 a new Code of Conduct for Members of Government and another one for the Government advisers. These codes include rules on gifts, revolving doors, conflict of interests and lobbying. They address loopholes that GRECO identified in relation to previous drafts from 2019, by making clear, for example, that the obligation to register the data falls upon the advisers or the secretariat of the Members of Government present at the interview. The Ethics Committee can give its opinion on the application of the Code of Conduct for members of the Government at the request of the Prime Minister . The Prime Minister did not submit any case to the appreciation of the Ethics Committee in 2021 and the Committee did not meet between January and September 2021 . The General Police Inspectorate (IGP) has adopted a charter highlighting the values of independence, objectivity, transparency and integrity. As reported by Luxembourg for the 2021 Rule of Law Report, the work on a code of conduct for the IGP is still in progress and the Government plans to complete this in the second half of 2022 . There is no code of conduct for municipalities and local governments , which constitutes an important gap.

Since next elections are in 2023, it is not yet possible to evaluate the impact of the 2020 law on political party financing. As mentioned in the 2021 Rule of Law Report, the law on political party financing, as amended in December 2020, introduced an obligation for all candidates for national and European elections to declare all donations exceeding EUR 250. The rules only apply during elections and the next elections, according to the constitutional fixed-year term, are scheduled to be held in 2023. It is therefore too early to evaluate if the changes have made the framework more effective.

Whistleblower protection legislation currently in place is still limited to specific sectors such as private and public labour law and new legislation to address these gaps is in preparation. On 10 January 2022, the Government adopted a draft law aiming to transpose the Whistleblower Directive. The scope of the draft is broader than the EU Directive and aims at ensuring whistleblowers are better protected against retaliation (including by assuming that retaliation occurs due to the whistleblowing, thereby reversing the burden of proof). The draft law provides for the creation of a reporting office, under the authority of the Minister of Justice. The tasks of the office would be to inform and assist any person wishing to report a violation of the law, to raise awareness of the legislation on whistleblower protection, to inform the competent authorities of failures to comply with the obligations to set up internal channels, and to draw up recommendations on any matter relating to the application of the law .

While corruption related to the COVID-19 pandemic remained a risk, there were no such cases in 2021. Although corruption has been noted as a growing threat in relation to government support schemes , no specific measures have been adopted so far . The Police and Prosecution have not seen the abovementioned risk materialise in terms of cases during 2021 . As part of its audits, the Court of Auditors routinely controls if the regulation on public procurement is being respected. It did not detect any irregularities or suspicions of corruption in 2021 .

III. Media Pluralism and Media Freedom