Global Legal Group

Please note that the title of the guide has been slightly amended for 2011

Please note that question 9.2 is new for this year's edition

1 Environmental Policy and its Enforcement

1.1 What is the basis of environmental policy in Luxembourg and which agencies/bodies administer and enforce environmental law?

In 1999, the Luxembourg government endorsed a National Plan for Sustainable Development, which is the legislative framework for environmental issues and a policy of sustainable development. A list of eight environmental indicators was drawn up in order to measure the progress and improvements made or to be made in order to protect the environment. These indicators are: 1. the degree of pollution of the river; 2. the reduction of the greenhouse gas emissions; 3. the improvement of the quality of the air; 4. the plan for a sustainable land settlement; 5. the promotion of a sustainable and eco-aware agriculture; 6. a sustainable forest management; 7. the protection of the biodiversity and the natural habitat; and 8. a sustainable waste management.

As from 1996, all the laws and regulations on environmental issues are compiled in the Environmental Code ("Code de l'Environnement"). It covers different areas, like air/noise, water, waste, classified establishments, nature protection, and energy. The promotion and implementation of the environmental policy is headed by the Department of Environment of the Ministry of Sustainable Development ("Département de l'Environnement du Ministère du Développement durable et des Infrastructures") and its two main administrations: the Administration of the Environment ("Administration de l'Environnement") and the Administration of Nature and Forests ("Administration de la Nature et des Forêts"). Other governmental bodies in charge of environmental issues are the Administration of Water Management ("Administration de la gestion de l'eau") (under the authority of the Ministry of Interior – "Ministère de l'Intérieur et à la Grande Région") and the Health and Safety Inspectorate ("Inspection du travail et des mines" - ITM) (under the authority of the Ministry of Employment – "Ministère du Travail et de l'Emploi").

On a local level, the municipalities are in charge of implementing a sustainable environmental policy, especially in the field of waste management.

The police and the customs authorities, as well as officials from the different environmental administrations, are entitled to monitor the compliance with environmental law and to investigate and report any breach of such laws.

1.2 What approach do such agencies/bodies take to the enforcement of environmental law?

The Luxembourg government focuses its actions on public sensitizing and information on the importance of the environmental issues. For that purpose, the Luxembourg government has put in place a certain number of subsidies and developed a financial support programme for renewable energies or rational use of energy.

In addition to such incentives, environmental law is enforced through monitoring, control and repressive measures.

The authorities and administrations in charge of the enforcement of environmental law may access and visit all facilities, premises and establishments that fall within the scope of the different environmental acts and regulations, day and night without prior notification. They may request the production of documents concerning the establishments or the manufacturing processes, take samples of products, materials or substances and seize the products, substances or other objects.

1.3 To what extent are public authorities required to provide environment-related information to interested persons (including members of the public)?

Pursuant to the Law of 25 November 2005 on the freedom of access to environment-related information, the public authorities are required to supply the public with all environment-related information.

In that respect a special website, accessible without charge, has been created and provides useful information on environment related issues.

For further or more specific information, any individual or corporation may contact directly the Ministry which has to provide an answer without unreasonable delay.

Private organisms managing or detaining environment-related information for the account of the public authorities are under the same obligations.

2 Environmental Permits

2.1 When is an environmental permit required, and may environmental permits be transferred from one person to another?

Permits are required in the different areas of environmental law:

Pursuant to article 10 of the Law of 17 June 1994, as amended, concerning the prevention and the management of waste, Ministerial authorisation is required for:

  • establishments or companies collecting and/or transporting waste;
  • establishments or companies in charge with the elimination or the valorisation of waste for the account of third parties; and
  • for the setting-up and exploitation of an infrastructure eliminating or valorising waste.

Within the framework of the nature protection Law of 19 January 2004, a ministerial authorisation is required before building in a green zone ("zone verte"), as well as before starting any works likely to alter the water system or to adversely affect the water fauna and flora or the water quality.

The Law of 23 December 2004, on the greenhouse gas emission allowance trading scheme, provides that every facility conducting an activity which produces and discharges greenhouse gas is subject to a permit from the authorities.  The permit contains, among other things, the name and the address of the operator of the installation. Any change in the name of the operator shall be notified to the authorities and the permit has to be updated. The Minister allocates allowances to every installation. These allowances can be transferred, as outlined under question 9.1.

The Law of 10 June 1999 on classified establishments requires prior authorisation at the national and/or local level for the different categories of classified establishments. Under this Law a classified establishment is defined as any industrial, commercial or small-scale public or private establishment, any installation, any activity or related activity and any process, whose existence, operation or use may potentially pollute or endanger the safety and/or salubrity of the public, or the health and safety of workers and the human and natural environment. The classified establishments are divided into four classes and two sub-classes according to their danger or polluting potential (Class 1 establishments shall be authorised by the Minister responsible for employment and by the Minister responsible for the environment; Class 2 establishments shall be authorised by the mayor; Class 3 establishments shall be authorised either by the Minister responsible for employment or by the Minister responsible for the environment; Class 4 establishments are subject to the requirements established by grand-ducal regulation). Any modification to a classified establishment has to be notified to the competent authority. The authority has discretion to determine what is a substantial or non-substantial modification. In case of a substantial change, a new authorisation is required. In case of a non-substantial modification, the existing authorisation will be updated.

2.2 What rights are there to appeal against the decision of an environmental regulator not to grant an environmental permit or in respect of the conditions contained in an environmental permit?

In case the competent administration fails to answer within the prescribed time limit or rejects an application, the applicant may take legal action before the administrative courts.

Before taking legal action, Luxembourg grants the applicant to introduce an extrajudicial petition before the competent administration ("recours grâcieux").

2.3 Is it necessary to conduct environmental audits or environmental impact assessments for particularly polluting industries or other installations/projects?

The Luxembourg laws relating to the environment impose audits and environmental impact assessments, in order to make sure that industries and other polluting installations: 1) comply with the regulations in force; 2) comply with the conditions of the authorisation; and 3) do not pollute beyond what has been authorised.

The aim of such audits and impact studies is to guarantee a high level of environmental protection by preventing any major accidents involving toxic substances and by limiting as far as possible the consequences of polluting industries or installations for the human beings and the environment.

For the sake of illustration we may mention: 1) article 8 of the Law of 10 June 1999 on classified establishments specifically provides for an environmental impact assessment; 2) article 15 of the Law of 23 December 2004 on greenhouse gas emission allowance trading scheme; and 3) article 14 of the Law of 17 June 1994, as amended on the prevention and management of waste, specifically provide for a regular surveillance procedure.

2.4 What enforcement powers do environmental regulators have in connection with the violation of permits?

Violation of permits is a criminal offence. Administrative sanctions are also applicable.

The legal penalty for such violation is a fine and/or imprisonment for the company and/or its managers.

In case of breach of the authorisation's conditions or in case of operation of an establishment without authorisation, the courts may either grant a grace period for the operator to comply with the authorisation's conditions or order the closure of the concerned establishment.

These sanctions may be accompanied by a periodic penalty payment ("astreinte").

When the operator does not observe the conditions of the permit, the authorities may also - by a justified decision - withdraw the permit.

3 Waste

3.1 How is waste defined and do certain categories of waste involve additional duties or controls?

The Law of 17 June 1994, as amended on the prevention and management of waste, defines waste as being any substance or object listed in annex 1 of the Law, or generally any movable good which is abandoned or which is intended to be abandoned by its owner or for which the owner has the obligation to dispose. The Law considers as waste any products and substances intended for valorisation until these products or substances, as well as the secondary resources or energy recovered from the operation of valorisation, are reintroduced into the economic cycle.

As a matter of principle, waste producers have a general duty to reduce the production and the noxiousness of waste as much as possible, by using adapted production proceedings and clean technologies.

Depending on the category of waste, the duties and controls change:

  • Waste that cannot be valorised or composted has to be incinerated or unloaded to a dump.
  • Problematic waste from households has to be unloaded at a special storage facility.
  • Inert waste (i.e. waste from construction or demolition works) has to be collected selectively and brought to the regional recycling centres in order to be adequately treated.
  • Medical waste has to be collected separately and treated in specific centres.  A waste prevention and management plan has to be submitted by the persons in charge of hospitals to the administrative authorities.
  • Industrial waste has to be disposed according to a waste prevention and management plan, which was submitted by the persons in charge of establishments prior to producing such waste and approved by the competent administrative authorities. In a waste reduction perspective, an industrial waste recycling exchange is organised at national level. The remaining industrial waste has to be treated in specific facilities.

3.2 To what extent is a producer of waste allowed to store and/or dispose of it on the site where it was produced?

The holder of waste is obliged to either:

  • transfer the waste to a private or public collector or to a company which is duly authorised to perform valorisation or elimination operations; or
  • assure itself of the collection, valorisation or elimination of waste in compliance with the Law.

If the establishment or company is collecting and transporting waste either in minimal quantities stemming from its own production or with the intent to valorise or eliminate it in the confines of its production site, it is not required to apply for a permit but only to register with the competent administration.

3.3 Do producers of waste retain any residual liability in respect of the waste where they have transferred it to another person for disposal/treatment off-site (e.g. if the transferee/ultimate disposer goes bankrupt/disappears)?

Pursuant to articles 29 to 32 of the Law of 17 June 1994 on the prevention and management of waste, the producer of waste is liable for the damage caused by the waste irrespective of his fault, provided that the victim proves that his damage is in relation to the waste of the producer.

If the damage is caused jointly by the producer's waste and the inappropriate storage by the transferee/ultimate disposer, the producer and ultimate disposer are jointly liable.

The only possible exemption from liability for the producer is to prove that the damage is the result of circumstances beyond his control ("force majeure"). Partial or total exemption is possible provided that the damage has been caused - in part or in whole - by the victim or by a person under its responsibility.

3.4 To what extent do waste producers have obligations regarding the take-back and recovery of their waste?

The producer of waste has a general duty to prevent and reduce the production and noxiousness of waste. He has to valorise the produced waste as much as possible by reusing or recycling it. The ultimate waste has to be eliminated in an ecologically appropriate way.

The 2010 national general plan for waste management ("Plan général de gestion des déchets 2010") stresses that producers of waste like packaging, unused vehicles, electronic and electric equipment and batteries have the responsibility to put in place a selective collection system for the different kinds of waste and to valorise the waste collected.

If the producer of waste transfers his waste to a third person he has to pay the valorisation or elimination fees.

4 Liabilities

4.1 What types of liabilities can arise where there is a breach of environmental laws and/or permits, and what defences are typically available?

From a civil law perspective, the company is liable for the damage caused by itself, as well as for the damage caused by its agents.

Pursuant to article 29 of the Law of 17 June 1994 on the prevention and management of waste, the producer of waste is liable for the damage caused by the waste irrespective of his fault, provided that the victim can prove that his damage is in relation to the waste of the producer.

For all other matters the general principles of articles 1382, 1383, 1384 and 544 of the Civil Code apply.

Exemption of liability (partial or total) is only possible if the damage has been caused by the fault of the victim itself or by the fault of a third party or if the damage results from a force majeure event.

From a criminal law perspective, the Luxembourg environmental law provides for criminal sanctions in case of breach of environmental laws or permits. Since the Law of 3 March 2010 introducing criminal liability for companies, corporate entities may be charged as well as their managers.

The Ministers, their representatives or the mayors in charge may also impose administrative measures and sanctions in case of breach of environmental law.  They may grant a grace period, within which the establishment in breach has to comply with the legal provisions. They may also, after giving formal notice, suspend all or part of the operation or works or close the establishment.

4.2 Can an operator be liable for environmental damage notwithstanding that the polluting activity is operated within permit limits?

Pursuant to article 32 of the Law of 17 June 1994, as amended, on the prevention and the management of waste, the waste producer cannot be exempted from his liability by claiming that he operated under a permit established by the public authorities.

The general principles of liability as referred to above remain applicable.

4.3 Can directors and officers of corporations attract personal liabilities for environmental wrongdoing, and to what extent may they get insurance or rely on other indemnity protection in respect of such liabilities?

Under Luxembourg criminal law, directors and managers may incur personal criminal liability based on environmental wrongdoing.

Even if they have subscribed to an insurance or provided financial guarantees to cover the damages caused by an accident or pollution (i.e. article 8 of the Law of 17 June 1994, as amended, on the prevention and management of waste; article 13.6 of the Law of 10 June 1999 on classified establishments), this will not prevent the directors or managers (nor the companies) from seeing their criminal liability engaged in case of environmental wrongdoing.

4.4 What are the different implications from an environmental liability perspective of a share sale on the one hand and an asset purchase on the other?

In case of a share sale the operator does not change, since the corporate entity remains the same (only the shareholder of the entity changes). In this case, the authorisations issued to the corporate entity will remain in place.

On the contrary, in case of an asset purchase, the operator changes and the authorisation must be updated or a new authorisation has to be requested if the asset purchase entails a substantial modification.

4.5 To what extent may lenders be liable for environmental wrongdoing and/or remediation costs?

The general principles of civil law liability apply. The victim has to prove that the damage suffered is in direct relation with the lender's fault.  However, depending on the situation, lenders may be held liable even without having committed any fault (e.g. in the framework of article 29 of the Law of 17 June 1994, as amended, on the prevention and management of waste, if the lender is the producer of the waste, or pursuant to the framework of article 1384 and article 544 of the Civil Code).

5 Contaminated Land

5.1 What is the approach to liability for contamination (including historic contamination) of soil or groundwater?

Luxembourg has adopted the polluter pays principle (principe du "pollueur-payeur"). According to this principle the authorities will always try to find the person who is responsible for the pollution.

If the contamination is caused by waste, the producer of the waste is liable for the damage.  The operator shall bear the costs of remediating and making safe the establishments, including the costs of experts and analyses in the event of an accident or an incident related to the operation.

Most of the legal texts on environment protection provide that the polluter shall provide financial guarantees or take insurance to cover the costs of the decontamination of the site in case of closing-down of the activities or in case of accidental pollution.

In any case, pursuant to article 16 of the Law of 17 June 1994, as amended, on the prevention and management of waste, if the responsible party for the contamination cannot be identified or if the responsible party is insolvent and not covered by any insurance or financial guarantee, the public authorities will ultimately cover the costs of the decontamination.

5.2 How is liability allocated where more than one person is responsible for the contamination?

From a tort law perspective, where more than one person is responsible for the same damage, the principle of joint and several liability applies (e.g. article 31 of the Law of 17 June 1994, as amended, on the prevention and management of waste). A recourse action between co-responsible parties is always possible in order to determine which part of the damages is to be supported by each responsible party.

From a criminal law perspective, if more than one person has committed the offence, every participating party will be punished for the offence either in his capacity as author, co-author or accomplice.

5.3 If a programme of environmental remediation is 'agreed' with an environmental regulator can the regulator come back and require additional works or can a third party challenge the agreement?

The authorisation or permit issued by a public authority may be amended or supplemented by such authority if this is duly reasoned.

In case of pollution or shutdown of an establishment, the regulator can impose conditions and measures of decontamination not provided for in the initial authorisation.

If additional measures are required by the regulator or public authority, they have to be implemented.

Any person who has a legitimate interest as well as associations of national importance active in the area of environmental protection for at least three years, and recognised as such by the Minister responsible for the environment, may challenge the above decisions.

5.4 Does a person have a private right of action to seek contribution from a previous owner or occupier of contaminated land when that owner caused, in whole or in part, contamination; and to what extent is it possible for a polluter to transfer the risk of contaminated land liability to a purchaser?

The polluter pays principle (principe du "pollueur-payeur"), enacted in environmental Law, provides that the person or company responsible for the contamination has to pay for the damages, even if the polluter is no more the owner or occupier of the contaminated land.  A person may therefore claim damages from a previous owner or occupier who has caused the contamination of the land.

Even if it is possible for the seller-polluter to stipulate in the contract that the costs of decontamination are supported by the purchaser, the polluter remains in any case liable vis-à-vis the victim.

5.5 Does the government have authority to obtain from a polluter, monetary damages for aesthetic harms to public assets, e.g., rivers?

The Luxembourg environmental laws do not specifically provide for monetary damages for aesthetic harms.

However according to the general principle of civil law, any harm of whatever nature may be indemnified.

Aesthetic harms caused to public assets opens therefore the right to claim for damages which will be assessed by the competent courts.

6 Powers of Regulators

6.1 What powers do environmental regulators have to require production of documents, take samples, conduct site inspections, interview employees, etc?

The environmental public authorities have very large monitoring powers in order to check that the operators fully comply with the environmental laws and regulations and meet the operating conditions.

Articles 23 and 24 of the Law of 10 June 1999 on classified establishments, as amended, as well as articles 25 to 27 of the Law of 17 June 1994, as amended, on the prevention and management of waste, provide that senior law-enforcement officers, police officers, customs and excise officers, and civil servants from the competent administrative authorities, may visit, during the day and even at night and without prior notification, the installations, premises, land, facilities and means of transport as regulated by the Law. An exception exists for installations which are occupied for residential purposes.

They may request the production of documents concerning the establishment, the related activity and the manufacturing process, if these documents are relevant for the investigation.

They may also take samples, products, materials, substances or objects for analysis purposes.  A receipt shall be issued in return for the samples and/or objects taken.

Finally, they may seize substances and/or objects in relation to the activities of the establishments, as well as related documents.

The people in charge of the establishments or the operator shall facilitate the investigations of the environmental regulators and authorities.

7 Reporting / Disclosure Obligations

7.1 If pollution is found on a site, or discovered to be migrating off-site, must it be disclosed to an environmental regulator or potentially affected third parties?

According to article 8 of the Law of 17 June 1994, as amended, on the prevention and management of waste, the operators of waste management sites and facilities are required to notify to the administration of environment every incident or accident affecting the well functioning of the installation and creating a potential risk for human beings or the environment.

Article 14 of the Law of 28 November 2008, on the management of waste from the extractive industries, specifically provides that any accident likely to be harmful for the environment, and to present adverse effects for the human health across the national borders, has to be reported to the affected EU Member State(s).

In case of danger for human life, the non-disclosure of the pollution may also result in a criminal offence for voluntary or involuntary homicide.

7.2 When and under what circumstances does a person have an affirmative obligation to investigate land for contamination?

The laws on the environment systematically impose impact assessment studies before granting a permit. In case of accidents or incidents or in case of shutdown of an establishment, the administrative authorities require that the site and land be analysed by experts for any potential contamination.

Before engaging in any real estate projects, it is also recommended to refer to the register of potentially contaminated sites held by the administration of environment and eventually to conduct investigations on a voluntary basis.

7.3 To what extent is it necessary to disclose environmental problems, e.g. by a seller to a prospective purchaser in the context of merger and/or takeover transactions?

Any transaction has to be negotiated and executed in good faith. Any substantial problem known by the seller has to be disclosed to the other party. If this is not the case the transaction may be declared void for having misled the contracting party on a substantial quality of the object of the agreement ("erreur").

The parties to an agreement also have a general obligation of information. If the seller deliberately retains from the prospective purchaser important information on environmental problems affecting the facility subject of the deal, this behaviour may be qualified as wilful misrepresentation ("dol") and lead to the annulment of the agreement.

However the purchaser also has the duty to behave as a reasonable person ("bon père de famille") and to perform a due diligence according to the market practice.

8 General

8.1 Is it possible to use an environmental indemnity to limit exposure for actual or potential environment-related liabilities, and does making a payment to another person under an indemnity in respect of a matter (e.g. remediation) discharge the indemnifier's potential liability for that matter?

In accordance with article 32 of the Law of 17 June 1994, as amended, on the prevention and management of waste, the liability of the polluter may not be limited or excluded vis-à-vis the victim by a limitation or exemption of liability clause. The producer is not entitled to invoke the fact that he was granted an authorisation from the public authorities.

It is only possible to stipulate by contract that the financial consequences of the pollution are to be supported by the contracting party. Yet, such a stipulation does not waive the general liability of the polluter.

8.2 Is it possible to shelter environmental liabilities off balance sheet, and can a company be dissolved in order to escape environmental liabilities?

From a civil law point of view, the existing accounting principles require that every important financial risk is covered by sufficient funds. In case of non-compliance the company or its manager, as the case may be, might see its responsibility engaged for mismanagement.

In case of bankruptcy or insolvency of the company, the decontamination costs will be borne by the public authorities. To avoid this takeover of charges, there is a growing tendency to impose to establishments carrying out potentially polluting activities to provide proof of an insurance covering their civil liability or a financial guarantee in case of defective functioning of the establishment or accidental pollution caused by the activities or in case of shutdown.

From a criminal law point of view, even in case of bankruptcy of the company the managers can always be taken to court on the grounds of their fraudulent actions.

8.3 Can a person who holds shares in a company be held liable for breaches of environmental law and/or pollution caused by the company, and can a parent company be sued in its national court for pollution caused by a foreign subsidiary/affiliate?

Under the Luxembourg law, depending on the corporate structure of the company, a shareholder may not be held responsible for breaches of environmental law and/or pollution caused by the company except if the shareholder has, by its personal fault, caused the damage.

In criminal law, the same assertion applies. However, if the shareholder is the manager or director of the company, he can be held liable at the same time as the company.

A parent company cannot be sued in its national court for pollution caused by a foreign subsidiary, as the subsidiary is a different legal entity. If the foreign entity who has caused the pollution is a branch of the parent company, the latter can be sued according to the EU rules of jurisdiction and applicable law.

8.4 Are there any laws to protect "whistle-blowers" who report environmental violations/matters?

Operators and control organisms have an obligation to report any environmental violations/matters.

However Luxembourg law does not provide for any particular protection to "whistle-blowers". They may be sued if the denunciation is slanderous or libellous.

8.5 Are group or "class" actions available for pursuing environmental claims, and are penal or exemplary damages available?

The concept of class actions does not exist in Luxembourg law.

However, associations of national importance, active in the area of environmental protection for at least three years and recognised as such by the Minister responsible for the environment, are entitled to defend the collective interest of environmental protection and to take legal action on behalf of the parties claiming damages.

9 Emissions Trading and Climate Change

9.1 What emissions trading schemes are in operation in Luxemburg and how is the emissions trading market developing there?

In accordance with the EU Directive of the European Parliament and the Council of 13 October 2003, establishing a scheme for greenhouse gas emission allowance trading and the Kyoto Protocol, Luxembourg has implemented a system of exchange of greenhouse gas emission quotas in its Law of 23 December 2004 as amended.

The aim of the Law is to reduce the greenhouse gas emissions by providing conditions which are economically efficient and competitive.

As of 1 January 2005, every facility in the energy, mineral, steel or other sector must be granted an authorisation to emit greenhouse gas.

Pursuant to article 10 of this Law, the Minister in charge of the environment establishes together with the administration for environment and the concerned sectors a five year national plan determining the total quantity of quotas and the process of allocation of the quotas to the different operators.

Under certain conditions, the Minister may authorise the operators to use credits from joint implementation projects and clean development mechanisms called 'Emission Reduction Units' (ERU) and 'Certified Emission Reductions' (CER).

The national plan (containing the quantity of quotas and the total use of ERU's and CER's) is addressed to the European Commission.

Luxembourg has submitted its second national plan for the period 2008 – 2012.

It is possible to transfer quotas between persons in the EU, as well as between persons in the EU and persons in third countries mutually recognising the quota system. Quotas can also be returned or cancelled.

Every transfer involving an operator located in Luxembourg has to be notified immediately to the administration. The administration keeps a register listing all the quotas allocated, detained, transferred or cancelled.

The tendency is that the number of quota allowances and ERUs/CERs is greater than or equal to the verified emissions.

The Law of 3 August 2010 has integrated the aviation sector into the scheme for greenhouse gas emission allowance trading.

9.2 What is the overall policy approach to climate change regulation in Luxemburg?

Luxembourg has set itself very ambitious goals to reduce its CO2 emissions and its energy consumption:

  • A national action plan on CO2 reduction and a national plan for sustainable development have been enforced.
  • Awareness raising campaigns are organised to sensitise companies and households.
  • Public subsidies are allocated to private persons in order to promote the rational use of energy and to develop the use of renewable energies.
  • A financial aid scheme has been put in place to promote vehicles with low CO2 emissions and electrical household appliances with low energy consumption.
  • A more efficient public transportation network is being planned with the aim to confine the very high gas emissions from vehicles.
  • A partnership for climate ("Partenariat pour le Climat") has been initiated by the government to launch the dialogue between representatives of the government, municipalities, NGOs, trade unions and employers. This partnership shall issue a catalogue with concise measures intended to reduce emissions and energy consumption.
  • Luxembourg is also supporting and financing many ecological projects outside of its borders.

10 Asbestos

10.1 Is Luxemburg likely to follow the experience of the US in terms of asbestos litigation?

A grand-ducal regulation of 30 June 1989 implements EC Directive 87/217 of the Council of 19 March 1987 on the prevention and reduction of the pollution of the environment by asbestos. To the best of our knowledge, no case has been brought by a victim of asbestos before the Luxembourg courts. Consequently, we do not think that Luxembourg is likely to follow the experience of the US in terms of asbestos litigation.

10.2 What are the duties of owners/occupiers of premises in relation to asbestos on site? 

As of March 2001, it is forbidden in Luxembourg to use any materials containing asbestos.

According to the grand-ducal regulation of 15 July 1988 as modified, the owner/occupier must keep the quantity of particles of asbestos contained in the air underneath certain thresholds. If these thresholds cannot be met, adequate measures must be taken to protect the workers, i.e. protection clothing, information on the risks, delimitation of the area.

Without prejudice to the foregoing and the general principles of liability, Luxembourg law does not specifically require private owners to proceed to an asbestos expertise before renting or selling an accommodation; neither does it impose decontamination of sites containing asbestos which have been installed before 2001.

11 Environmental Insurance Liabilities

11.1 What types of environmental insurance are available in the market, and how big a role does environmental risks insurance play in Luxemburg?

The trend is to impose to operators conducting activities which are potentially polluting for the environment to cover their liability by an appropriate insurance.

Luxembourg insurance companies propose such specific insurance to cover decontamination and expertise charges as well as liability for accidental pollution (usually within the framework of the civil liability insurance).

11.2 What is the environmental insurance claims experience in Luxemburg?

To the best of our knowledge there is as of this date no published case in relation to an environmental insurance claim.

12 Updates

12.1 Please provide, in no more than 300 words, a summary of any new cases, trends and developments in Environment Law in your country.

With the Law of 3 March 2010, Luxembourg finally introduced the criminal liability for companies.  Not only the managers, but also the companies themselves may now be held liable for criminal offences. The criminal sanctions applicable to companies are the fine, special forfeiture, exclusion from public procurement proceedings ("marchés publics") or the winding-up of the company.

The general plan for the management of waste ("Plan général de gestion des déchets"), voted by the government on 19 January 2010, puts forward practical details for a coherent management of waste at the national level, aiming at a global prevention of waste and the selection of waste from its sources in order to ensure the quality of the process.

On 26 November 2010, the Luxembourg government has adopted a national plan for sustainable development ("Plan national pour un développement durable" - PNDD). This plan elaborates ways to achieve the goals set forth for the reduction of greenhouse gas emissions and energy consumption. It also proposes measures to protect the biodiversity and the groundwater.


Brief promotional information of law firm / department:

Founded in 1994. Up to the year 2000: built up a strong reputation in litigation and advisory services to local clients. Subsequent years to 2010: the firm turned towards international clients and cross-border business. Today, it advises local and multinational companies from all industry sectors, leading institutional investors, prestigious private equity houses and numerous other businesses.

Boasting some 25 lawyers of six different nationalities, the multilingual, flexible and accessible team is pro-active, responsive and offers personalized legal services of the highest quality.

François Collot

Partner of KLEYR | GRASSO | ASSOCIES, François Collot advises local and international clients in commercial law matters, deals a lot with advising high profile real estate and construction clients and has a strong experience in public procurement procedures. Other fields of his expertise include commercial litigation and leasing; consumer law, unfair competition; labour and social law, employment. He has been a member of the Luxembourg Bar since 1995

Anne Mertens

Associate of KLEYR | GRASSO | ASSOCIES, Anne Mertens is active in commercial law matters and real estate and constructions. Anne has a Maîtrise from the University of Paris I Panthéon-Sorbonne and she holds a Master's Degree in Human Rights and Democratisation She has been a member of the Luxembourg Bar since 2010.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.