Case No. 52577C / 52578C before the Administrative Court of Luxembourg, dated 16 July 2025, is a stark illustration of one of the persistent flaws in Luxembourg’s administrative litigation: excessive formalism.

While the dispute concerned tax assessments with significant financial consequences, the Administrative Court chose to hide behind a procedural pretext — namely, the incorrect identification of the company’s representative bodies— to avoid addressing the substance of the case. In other words, form prevailed over law, and the taxpayers were sacrificed on the altar of procedure.

To summarize the case, two entrepreneurs, full of enthusiasm and ingenuity, had created a company whose activity consisted of transforming aircraft parts into artistic furniture. Diligent in managing their business, they engaged an accountant to ensure proper tax monitoring of their operations.

However, the tax authorities, failing to grasp the economic reality of this activity — which mainly involved attending aeronautical trade shows across Europe — considered that the directors’ travel expenses fell under the personal portion of car costs when calculating corporate taxation. Consequently, these expenses were re-added to the company’s taxable base, resulting in a tax adjustment, further aggravated following an initial administrative claim.

The company then filed an administrative review with the director of the tax administration through its directors. Aware that this adjustment would endanger their personal finances, the directors subsequently, individually, brought proceedings before the administrative judge against the director’s decision to reject their appeal.

Under the Grand Ducal Decree of 21 August 1866, which allows taxpayers to directly access the administrative judge in tax matters without legal representation, they acted alone and did not realize that the contested decision concerned the company itself.

The Luxembourg Administrative Tribunal (Tribunal administrative), without clearly inviting the appellants to regularize the procedure on behalf of the company or recalling the essential procedural information that the director should have provided, dismissed their appeals for lack of standing. Luxembourg Higher Administrative Court (Cour administrative) upheld this judgment, disregarding the absence of legal representation and the clear imbalance between two lay litigants and an administration highly experienced in administrative litigation, referred to in doctrine as its “specific law”.

This decision exemplifies the excessive formalism characteristic of Luxembourg’s administrative procedure. The critique is reinforced by Bill No. 8186, submitted on 28 March 2023, which proposed introducing a new inadmissibility sanction for mere formal errors at the stage of amicable appeals to the administration—a prospect deemed absurd, given that most citizens do not possess specialized legal knowledge.

The Luxembourg Bar Association, in fact, issued a strongly negative opinion on this bill on 19 July 2023, recalling that the Grand Duchy had already been condemned several times by the European Court of Human Rights for violations of the right of access to a tribunal due to excessive formalism.

In the case of Ghrenassia v. Luxembourg (7 December 2021), the ECHR noted as an aggravating circumstance the absence of a specialized bar before the Court of Cassation for the appeal procedure. In Kemp and Others v. Luxembourg (24 April 2008), the Court held that dismissing an appeal for a simple technical defect in the drafting of pleadings constituted excessive formalism contrary to the right of access to a judge.

In reality, such excessive formalism amounts to a distortion of the rule of law. The purpose is not to ensure legal certainty but to close the courtroom door to those who dare to challenge the administration.

Certainly, formalism is not objectionable in itself: it is necessary in any procedure to ensure equality of arms, prevent dilatory tactics, and protect against judicial arbitrariness. However, it must be remembered that formalism only makes sense as an instrument in the service of justice, as a means rather than an end.

For example, the French Court of Cassation and the Conseil d’État repeatedly emphasize that formalism must not become a tool to deny access to a judge. They censure courts that, through excessive strictness, transform minor irregularities (a missing signature, submitting paper instead of electronic filings, failure to inform of the right to remain silent in disciplinary matters) into an insurmountable procedural obstacle.

Reforms promoted by French judges have been well received by the government, which issued, for example, the decrees of 25 February 2022 (No. 2022-245) and 29 December 2023 (No. 2023-1391), which significantly relaxed formal requirements for civil appeal procedures.

The ECHR naturally holds the same standard: a fair trial does not allow procedure to be a trap.

If Luxembourg still wants to claim compliance with European rule-of-law standards, it must break free from this formalistic straitjacket and reaffirm an obvious truth: justice exists to resolve disputes, not to set procedural traps.