The Council of State originates from the Constitution of 1856. The task of the Council of State is to issue an opinion on all government and parliament bills and draft regulations, as well as give its opinion on any other questions referred to it by the Grand Duke or by law.Until 1996, the Council of State also acted as the administrative court.
The Council of State is made up of 21 councillors, at least 11 of whom must hold a higher education degree in law. This number does not include the person of the heir to the Crown who may be part of the Council of State.The councillors are appointed by the Grand Duke. When the seat of a Councillor of State needs to be filled, the replacement shall be carried out alternately and in the following order by:
a) a candidate proposed by the government;
b) a candidate proposed by the Chamber of Deputies;
c) a candidate proposed by the Council of State;
To be appointed as a member of the Council of State, one must be a Luxembourg national, enjoy civil and political rights, reside in the Grand Duchy and be over 30 years of age. Nevertheless, the Hereditary Grand Duke may be appointed to the Council of State as soon as this title has been conferred upon him.
State Councillors are appointed for a mandate of 12 years.
When a candidate is appointed, the distribution of the political parties in the Chamber of Deputies but also a balanced representation between women and men is taken into account.
In principle, the opinion of the Council of State is requested by the government before a government bill is presented to the Chamber of Deputies. This opinion is presented in the form of a reasoned report.
In urgent cases, a government bill may be referred to the Chamber without the Council of State having been previously consulted for its opinion. Nevertheless, in this case, the Chamber must be advised of the opinion of the Council prior to casting a definitive vote.
The President of the Chamber may directly refer amendments to current government bills to the Council of State.
If the Chamber has already carried out an article by article vote for a government bill and if the Council of State has not yet submitted its opinion on some of the articles, the Council of State must issue its opinion within a time frame of three months at the most from the date that the provisions were passed on to the Council. If there is no opinion within this time frame, the Chamber may proceed to vote on the law as a whole.
In order to rectify some of the disadvantages of Luxembourg's unicameral system, the Constitution also gives the Council of State a true right of suspensive veto for legislative matters. The Council then steps out of its purely consultative role.
In principle, all government bills and parliament bills must undergo two successive votes by the Chamber on the law as a whole. There must be an interval of at least three months between the two votes. Nevertheless, Parliament may exempt itself from the second vote, but this exemption becomes effective only with the agreement of the Council of State, which in practice is most often the case. From time to time the Council of State must refuse to exempt a law from a second vote, in particular when it feels that the text voted on is incompatible with constitutional order, with the standards of international law or European Union law or with the general principles of law. There will then be an interval of at least three months between the first and second constitutional vote by the Chamber.
The Council of State's remit in regulatory and administrative matters
In principle, draft regulations implementing laws and treaties may only be submitted to the Grand Duke once the Council of State has been consulted for its opinion.
In urgent cases, to be assessed by the Grand Duke, and if the law does not formally require it, the government may however waiver the Council's opinion.
The government may request the opinion of the Council of State on any matter. This opinion is presented in the form of a reasoned report, containing general considerations, an examination of the text of the government bill, and where applicable, a counter-proposal. The Council of State's examination also checks the compliance of a regulation with respect to any higher legal rule.
Procedure within the Council of State
It is up to the committees created within the Council of State to examine government bills and parliament bills, draft grand-ducal regulations, the related amendments as well as requests for opinions submitted to the Council of State.
They are authorised to call the government's attention to the opportunity of new laws or regulations, or modifications to make to existing laws and regulations.