On 11 November 2021, the Higher Administrative Court (Cour administrative) issued a judgment on an appeal lodged by a taxpayer against a judgment of the Lower Administrative Court (Tribunal administratif) that deemed a case lodged before it as inadmissible due to the fact that it was filed by a trainee lawyer (Avocat) registered on List II of the Luxembourg Bar.
As a general rule, only a fully qualified lawyer (Avocat à la Cour) registered on List I or V of the Luxembourg and/or Diekirch Bar is permitted to lodge a case before the Administrative Courts. By exception, and in tax matters only, a taxpayer may himself lodge his application against a decision of the Director of the Luxembourg tax authorities or, as the case may be, against a tax assessment before the Lower Administrative Court. Also by way of exception, the taxpayer may be represented by a chartered accountant (expert-comptable) or an external auditor (réviseur d’entreprise) in lieu of a qualified lawyer. The above mentioned exceptions merely apply to applications before the Lower Administrative Court. Before the Higher Administrative Court, a qualified lawyer registered on List I or V of the Luxembourg and/or Diekirch Bar remains the only person permitted to represent a taxpayer.
In the case at hand, a trainee lawyer registered on List II of the Luxembourg Bar filed a case before the Lower Administrative Court against a decision of the Luxembourg tax authorities confirming the merits of a recourse in warranty (appel en garantie).
While trainee lawyers were previously listed as persons exceptionally authorised to lodge applications before the Lower Administrative Court in tax law alongside chartered accountants and external auditors on behalf of taxpayers, a change in the law in 2011 had the effect to exclude trainee lawyers from that list. As the Higher Administrative Court pointed out in its decision, such list of authorised persons has not been amended to intentionally exclude trainee lawyers, but the deletion rather results from an “oversight” by the legislator. However, the strict interpretation of an exception and the strict reading of a clear text must prevail over the interpretation of the intention of the legislator. Consequently, a trainee lawyer may continue to assist a fully qualified lawyer before the Administrative Courts but is not permitted to file a court case for and on behalf of a taxpayer.
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