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The year in review
No offer of transferable securities may be made to the public in Luxembourg without the prior publication of a prospectus approved by the CSSF or a competent foreign authority.
Depending on the type of offer and the securities offered, different regimes apply. The Prospectus Regulation, which applies in its entirety across all EU Member States since 21 July 2019, together with related Level 2 delegated acts and Level 3 guidance, provides for an EU prospectus regime. Public offers that are not covered by the Prospectus Regulation are governed by Part III, Chapter 1 of the Prospectus Act applying to alleviated prospectuses. The main difference between the two regimes is that only public offers made under the Prospectus Regulation can benefit from the European passport for securities. Part III, Chapter 1 is used for public offers made only within the territory of Luxembourg.
Generally, a prospectus or an alleviated prospectus must contain all the information that enables prospective investors to make an informed assessment of the contemplated investment. The contents and format of a prospectus governed by the Prospectus Regulation are determined by the European Commission Regulation (EU) 2019/9804 (Regulation 2019/980). Part III prospectuses are drafted based on Regulation 2019/980 if they are used for a public offer or based on the rules and regulations (ROI) of the Luxembourg stock exchange (LxSE) if they are used for an admission to trading.
Where the offer to the public is made in Luxembourg only and Luxembourg is the home Member State of the issuer, the prospectus must be drawn up in English, German, French or Luxembourgish (the four languages accepted by the CSSF). Multi-language prospectuses are also generally accepted. Where an offer to the public is made in more than one EU Member State including Luxembourg and Luxembourg is the home Member State of the issuer, the prospectus must be also drawn up in a language accepted by the competent authorities of each of those EU Member States. Alternatively, at the choice of the issuer, the prospectus may be drawn up in a language customary in the sphere of international finance. The language of a document incorporated by reference does not need to be the same as that of the prospectus (the person applying for approval to ‘passport’ the prospectus must, however, ensure compliance with the language regime of the host Member State), provided that the language of the document incorporated by reference is one of the four languages accepted by the CSSF, and that the readability of the prospectus is not compromised.
The Prospectus Regulation provides for exemptions from the obligation to publish a prospectus for certain offers.5 In addition to these, the Luxembourg legislator has made use of the possibility to opt for additional exemptions offered to the EU Member States under the Prospectus Regulation. Accordingly, the Prospectus Act exempts from the obligation to draw up a prospectus, offers to the public with a total amount not exceeding €8 million.6 However, prior notification of such exempted transactions to the CSSF is required, and, for public offers below €8 million but equal to or higher than €5 million,7 the Prospectus Act requires the publication of an information note. Furthermore, the obligation to publish a prospectus does not apply to offers to the public of certain types of securities (such as, under certain conditions, securities offered or allotted (or to be allotted) to existing or former directors or employees by their employer, whose securities are already admitted to trading on a regulated market, or by an affiliated undertaking).
On 19 July 2019, the CSSF published Circular Letter 19/724 outlining the technical procedures regarding submissions of documents to the CSSF. Circular Letter 19/724 was amended in February 2021 to take into consideration the launch of an electronic platform to submit the prospectuses for approval.8
The admission to trading of securities requires the prior publication of a prospectus in accordance with the Prospectus Regulation. The regime applicable for admissions to trading varies, to a great extent, depending on the market on which the admission to trading is sought. Issuers can either request an admission to trading on the regulated market (within the meaning of Directive 2014/65/EU of 15 May 2014 on markets in financial instruments (MiFID II)) of the LxSE or on the Euro MTF market. Depending on the type of securities for which an admission to trading on the regulated market is sought, the Prospectus Regulation or Part III, Chapter 2 of the Prospectus Act is applicable. As has been seen, only prospectuses approved under the Prospectus Regulation can benefit from the European passport for securities. The competent authority for the approval of a listing prospectus under the Prospectus Regulation is the CSSF, whereas the LxSE governs the approval of the alleviated prospectuses under Part III, Chapter 2 of the Prospectus Act.
The Euro MTF market is the LxSE’s alternative market. It is not considered as a regulated market in the sense of the MiFID II. For admissions to trading on the Euro MTF market, Part IV of the Prospectus Act applies and essentially refers to the ROI as regards the relevant provisions for the content and format of the prospectus to be produced. A prospectus that is drafted in accordance with Regulation 2019/980, however, is also acceptable for a Euro MTF listing prospectus. Euro MTF prospectuses are approved by the LxSE. The Euro MTF market is a multilateral trading facility (as defined in the MiFID II) and not just a listing venue. The main advantage for an issuer in seeking admission to trading for its securities on the Euro MTF market is that the stringent disclosure, transparency and reporting obligations under the Transparency Act do not apply. The Market Abuse Regulation does, however, apply to the Euro MTF market. The Euro MTF market is eligible for the Eurosystem operation and eligible for investments made by Luxembourg investment funds (UCITS). At the time of writing, more than 37,000 securities are admitted to trading on both markets of theLxSE. With more than 34,100 listed debt securities, the LxSE is the number one ranked stock exchange for international bond listings.
The Luxembourg Stock Exchange also features a third listing venue: Securities Official List (SOL). An admission to SOL is a pure listing without admission to trading. The listed securities will appear on the Official List of the Luxembourg Stock Exchange. The admission to SOL is subject to the compliance with a specific rulebook that provides for lower requirements in terms of disclosure and documentation than the Prospectus Act or the Prospectus Regulation. In addition thereto, neither the Transparency Act nor the Market Abuse Regulation applies to SOL.
At the end of 2018, the Luxembourg Stock Exchange launched two professional segments available on the regulated and the Euro MTF markets, to which only professional investors have access, and thus provides issuers with some advantages in terms of compliance with MiFID II and PRIIPs obligations, as well as certain disclosure obligations under the Prospectus Regulation.
The Luxembourg Act of 6 April 2013 on dematerialised securities (the Dematerialisation Act) has modernised Luxembourg securities law by introducing a complete legal framework for dematerialised securities to keep pace with market developments.
The Dematerialisation Act draws on the French, Swiss and Belgian regimes. However, in contrast to these regimes, the dematerialised form of securities will exist in addition to the traditional bearer and registered forms of securities. Dematerialised securities will thus constitute a third type of securities, and an issuer will be free to choose from the three.
The Dematerialisation Act lays down the legal framework for the dematerialisation of securities, which are either equity or debt securities issued by Luxembourg joint-stock companies or common funds or debt securities issued under Luxembourg law by foreign issuers. The Dematerialisation Act does not provide for compulsory dematerialisation but for compulsory conversion if an issuer so decides. Dematerialisation will be achieved by the registration of the securities in an account held by a single body (a settlement organisation or a central account keeper).
The Dematerialisation Act is at the forefront in the field of dematerialisation as it has closely aligned the Luxembourg regime with the Unidroit Convention on substantive rules for intermediated securities dated 9 October 2009, as well as, to a certain extent, the works of the European Commission in relation to the future securities law directive.
The Luxembourg framework on dematerialisation offers greater flexibility and choice for issuers and market participants, increases the speed of transfers by eliminating operational complexities and the risks inherent in the handling of physical securities, and reduces settlement and custody costs.
The Dematerialisation Act was amended on 21 January 2021 to confirm that dematerialised securities may be issued natively in a distributed ledger technology (DLT) environment. The Dematerialisation Act provides that a securities issuance account (recording the initial issuance of dematerialised securities) may be maintained and the registrations of such securities may be carried out within, or through, secured electronic registration mechanisms, including distributed electronic ledgers or databases.
This amendment enables dematerialised securities to exist entirely in a DLT environment as native tokens that can also be settled in a fully-fledged DLT environment.
The Luxembourg Act on the Immobilisation of Bearer Shares and Units (the Immobilisation Act) came into force on 18 August 2014. The Immobilisation Act purports to adapt Luxembourg legislation to the recommendations of the Financial Action Task Force and the Global Forum on Transparency and Exchange of Information for Tax Purposes in terms of identification of holders of bearer shares and units. At any time, the availability of information regarding the identity of bearer shareholders or unit holders must be guaranteed while still preserving the confidentiality of such information towards third parties and other shareholders or unit holders. The new regime applies to bearer shares and units, irrespective of whether they are listed or issued by Luxembourg companies or contractual funds. Bearer shares and units must be deposited with a depositary established in Luxembourg that is subject to anti-money laundering requirements. A transitional period of six months is provided for bearer shares and units that were issued prior to the entry into force of the Immobilisation Act. Depositaries and directors and managers of companies and management companies of contractual funds that fail to comply with the requirements may incur civil or criminal sanctions. The Immobilisation Act also applies to companies that have issued registered shares where the share register is not held at their registered office or where otherwise the share register does not comply with the requirements of the Luxembourg Act of 10 August 1915 on Commercial Companies, as amended (the Companies Act). Criminal sanctions will be imposed in the event of a breach of the relevant legal provisions applying to share registers.
In August 2019, Luxembourg implemented the second shareholders’ rights directive9 and introduced new obligations for companies whose shares are admitted to trading on a regulated market established or operating in an EU Member State, and for intermediaries, institutional investors, asset managers and proxy advisers that are interacting with them. Accordingly, the Luxembourg Act of 24 May 2011 relating to the exercise of certain shareholder rights at general meetings of listed companies (the Shareholder Rights Act) has been amended in particular to require that the listed companies establish a remuneration policy for directors, submit it to the non-binding advisory vote of the shareholders and publish it on their website. To help shareholders monitor the application of the remuneration policy, listed companies must also produce an annual remuneration report (to be published on their website), describing how the remuneration policy has been implemented and giving an overview of the remuneration granted to each individual executive.
The listed companies must further submit ‘material’10 transactions with related parties for approval to the management body of the company and publicly disclose such transactions no later than at the time of the conclusion of the transaction.
The Shareholder Rights Act, as recently amended, also fosters shareholders’ transparency by giving the right to listed companies to request any intermediary in a chain of intermediaries to provide information on the identity of their shareholders and by requiring shareholders that are institutional investors and asset managers to develop and publicly disclose an engagement policy (that is, a policy describing how they integrate shareholder engagement in their investment strategy). The institutional investors and asset managers must, on an annual basis, publicly disclose how their engagement policy has been implemented. Institutional investors must further disclose on their website certain elements of their equity investment strategies and of their arrangements with their delegated asset managers and how their equity investment strategies and arrangements take into account and contribute to the medium to long-term performance of the relevant listed companies.
For the first time, proxy advisers are required to make available on their website their code of conduct (or explain why they do not have one) and, if applicable, report on its implementation each year. Additionally, they must disclose at least once a year certain information in connection with the preparation of their research, advice and recommendation of votes.
The Companies Act has been modernised: a number of existing practices have been incorporated into law and a series of new mechanisms and instruments have been introduced. From a capital markets perspective, the attractiveness of private limited liability companies as issuance vehicles has been increased by allowing them to carry out public offers of debt securities. Other requirements that have raised concerns, including the requirement for audit reports in the context of convertible debt securities issuances, have been removed. The Companies Act now also allows for the issuance of shares with different nominal values and provisions on tracker shares have been embedded into the Luxembourg Civil Code.
Since 3 July 2016, the Market Abuse Regulation (Regulation (EU) No. 596/2014) (the Market Abuse Regulation) has replaced the initial market abuse act from 2006. Simultaneously, various implementing and regulatory technical standards adopted by the European Commission have come into effect. The Market Abuse Regulation is complemented by Directive 2014/57/EU on criminal sanctions for market abuse (CSMAD). The CSMAD, together with certain provisions of the Market Abuse Regulation, have been implemented into Luxembourg law by the Luxembourg Act of 23 December 2016 on market abuse. The most important change is the application of the market abuse rules to a wider scope of trading venues: those rules now also apply to multi-lateral trading facilities (MTF) and organised trading facilities (OTF), as further defined in MiFID II.
The Market Abuse Regulation prohibits any person who possesses inside information from using that information by acquiring or disposing of, or trying to acquire or dispose of, for his or her own account or for the account of a third party, either directly or indirectly, financial instruments to which that information relates. This also includes the cancellation or change of an order placed, before the person in question had the relevant information. The Market Abuse Regulation further requires issuers to make public inside information that directly concerns them. Inside information means information of a precise nature, which has not been made public, relating, directly or indirectly, to one or more issuers or to one or more financial instruments and, which, if it were made public, would be likely to have a significant effect on the prices of those financial instruments or on the price of related derivate financial instruments.
Information is likely to have a significant effect on price if it is information of a kind that a reasonable investor would be likely to use as part of the basis of his or her investment decisions. Information shall be deemed to be of a precise nature if it indicates a set of circumstances that exist or that may reasonably be expected to come into existence, or an event that has occurred or that may reasonably be expected to occur, where it is specific enough to enable a conclusion to be drawn as to the possible effect of that set of circumstances or event on the prices of the financial instruments.
Inside information given to a specific third party need not be disclosed to the public where there is a duty of confidentiality between the issuer and that third party (imposed by law, regulation, statute or contract).
The protection of investors requires public disclosure of inside information (unless the issuer is entitled to delay the disclosure of inside information) to be as fast and as synchronised as possible between all investors. A delayed disclosure of inside information must be notified to the relevant national competent authority. Inside information (which must be in the French, English or German language) must be notified through mechanisms that allow reasonably efficient broadcasting of such information to the public. Neither the Market Abuse Regulation nor its implementing technical standards provide a definitive set of mechanisms and means of publication to be used but they contain a list of mandatory information to be included in any announcement of inside information. In addition, issuers are required under the Market Abuse Regulation to post all published inside information on their respective websites for a period of at least five years.
In addition to the prohibitions on insider dealing, the Market Abuse Regulation incriminates market manipulation. Stabilisation measures, buy-back programmes and market soundings must also be analysed in light of the market abuse regime.
The Transparency Act (which implemented the European Directive 2004/109/EC of 15 December 2004, as amended by Directive 2013/50/EU, on the harmonisation of transparency requirements into Luxembourg law) applies to issuers for which Luxembourg is the home Member State and whose securities are admitted to trading on a regulated market (thereby excluding the Euro MTF market).
Directive 2013/50/EU of the European Parliament and of the Council of 22 October 2013 has been transposed into Luxembourg law by an act of 10 May 2016, which extends the definition of ‘issuer’ to clarify that issuers of non-listed securities that are represented by depositary receipts admitted to trading on a regulated market also fall within the scope of the Transparency Act. Furthermore, the law amends a number of definitions (including the definition of home Member State) and introduces new administrative sanctions. The rules on the disclosure of major shareholdings have been reinforced and the scope of financial instruments linked to shares that are covered by these requirements has been broadened. Finally, it is interesting to note that the quarterly financial reporting obligations and the requirement to notify new loan issuances have been removed.
Issuers falling under the scope of the Transparency Act are mainly obliged to publish annual financial reports, half-yearly financial reports and, if applicable, an annual report on the payments made to governments. The Transparency Act also complements the Market Abuse Regulation by defining the methods of disclosure of inside information falling within the definition of regulated information for issuers having their securities listed on the regulated market.
The above publication requirements in respect of the annual financial reports and half-yearly financial reports do not apply to an issuer that issues exclusively debt securities admitted to trading on a regulated market, the denomination per unit of which is at least €100,000 (or its equivalent in another currency).
The Transparency Act distinguishes between regulated information and unregulated information. Issuers of securities admitted to trading on a regulated market are required to disclose, store and file regulated information (such term being defined in CSSF Circular Letter 08/337, as amended). In other words, an issuer is required to publish regulated information, store the regulated information with the officially appointed mechanism (OAM) for the central storage of regulated information (in Luxembourg, the LxSE has been appointed as OAM) and file the regulated information with the CSSF by using electronic web application called ‘Reporting of Information concerning Issuers of Securities’ (eRIIS).11
Article 17 of the Transparency Act sets out additional ongoing disclosure requirements relating to general meetings and the exercise of voting rights that are applicable to an issuer of debt securities, and that aim at ensuring equal treatment for all holders of debt securities that are in the same position.
Equal treatment is one of the two key legal aspects to be assessed by an issuer that intends to buy back its debt securities. Abiding by the provisions on market abuse is the second.
Historically, the CSSF favoured an extensive interpretation of the principle of equal treatment. By reference to the very wording of the relevant legal provision (that is, equal treatment must be ensured ‘in respect of all the rights attaching to those debt securities’), the CSSF considered that the right of a holder of debt securities to participate in an offer by, or on behalf of, the issuer to buy back the debt securities is, in principle, a ‘right attaching to’ the debt securities.
The CSSF now adopts a narrower reading of the notion of equal treatment to bring it in line with the practice applicable on other relevant markets. In short, the CSSF considers that the words ‘rights attaching to’ debt securities do not include the right to receive an offer to buy the securities made by or on behalf of the issuer. Thus, an offer can lawfully be made to some but not all holders of a series of debt securities and the issuer may propose different terms to different investors. This possibility is also of importance for exchange offers, to which the CSSF’s position also applies.
Regulation (EU) 236/2012 of the European Parliament and of the Council of 14 March 2012 on short selling and certain aspects of credit default swaps (the Short Selling Regulation), as amended by Delegated Regulation (EU) 2022/27 of 27 September 2021 regarding the adjustment of the relevant threshold for the notification of significant net short positions in shares, is directly applicable in the Member States of the European Economic Area (including Luxembourg). The Short Selling Regulation lays down a common regulatory framework for all EEA Member States with regard to the requirements relating to short selling of shares and debt instruments and certain aspects of credit default swaps. In Luxembourg, the Short Selling Regulation is complemented by the Luxembourg Act of 12 July 2013 on short selling of financial instruments and implementing the Short Selling Regulation (the Short Selling Act), as well as the CSSF Circular 12/548, as amended by the CSSF Circulars 13/565 and 22/798 (CSSF Circular 12/548). The Short Selling Regulation imposes (among others) obligations on natural or legal persons to notify to the relevant competent authority (that is, in Luxembourg, the CSSF) and, as applicable, disclose to the public, net short positions that reach or fall below the relevant notification thresholds specified in the Short Selling Regulation, in relation to the issued share capital of companies that have shares admitted to trading on a trading venue, and in relation to issued sovereign debt and uncovered positions in sovereign credit default swaps.
The CSSF has developed a web-based platform12 for the notifications and disclosures of net short or uncovered positions covered by the Short Selling Regulation. Exemptions for market-making activities and primary market operations, as permitted under the Short Selling Regulation, can be applied for by sending a notification of intent form (set out in the CSSF Circular 12/548) to the CSSF by post or by email.13
The Short Selling Act also clarifies and extends the powers of the CSSF over, and with respect to, natural and legal persons that are subject to the Short Selling Regulation but that are not otherwise subject to the prudential supervision of the CSSF. In particular, the Short Selling Act provides to the CSSF:
The Luxembourg Act of 5 August 2005 on financial collateral arrangements, as amended (the Collateral Act 2005), provides for an attractive legal framework for security interests, liberalised rules for creating and enforcing financial collateral arrangements, and protection from insolvency rules. It applies to any financial collateral arrangements and covers financial instruments in the widest sense as well as cash claims and receivables.
The Collateral Act 2005 also provides for transfers of title by way of security and recognises the right of the pledgee to re-hypothecate pledged assets. It enables the pledgee to use and dispose of the pledged collateral. Contractual arrangements allowing for substitution and margin calls are expressly recognised by the Collateral Act 2005, and are protected in insolvency proceedings in which security interests granted during the pre-bankruptcy suspect period can be challenged.
The Collateral Act 2005 was amended in May 2018 (implementing the MiFID II) to exclude inappropriate use of title transfer collateral arrangements. Accordingly, credit institutions and investment firms must not, in connection with the provision of investment services, conclude a transfer of title by way of security with retail clients (as referred to therein) to guarantee the obligations of such clients.
Credit institutions and investment firms must properly consider, and be able to demonstrate that they have done so, the use of transfers of title by way of security in the context of the relationship between a client’s obligations to the credit institution/investment firm and the client assets subject to a transfer of title by way of security.
When considering and documenting the appropriateness of the use of a transfer of title by way of security arrangement, credit institutions and investment firms shall take into account all of the factors set out in Article 13-1 of the Collateral Act 2005.
When using transfers of title by way of security, credit institutions and investment firms shall further highlight to professional clients and eligible counterparties the risks involved and the effects of any transfer of title by way of security on the client’s financial instruments and funds.
When implementing a transfer of title by way of security of, or a pledge (with a right of use) over, financial instruments, the conditions with respect to the re-use of financial instruments received as collateral as set out in Article 15 of the Regulation (EU) 2015/2365 of the European Parliament and of the Council of 25 November 2015 on transparency of securities financing transactions and of reuse and amending Regulation (EU) No. 648/2012 should also be considered where applicable.
Under the Collateral Act 2005, financial collateral arrangements are valid and enforceable even if entered into during the pre-bankruptcy suspect period.
The Collateral Act 2005, which was amended in 2011 with a view to enhancing the attractiveness of Luxembourg as an international finance centre, confirms that the insolvency safe-harbour provisions also apply to foreign law-governed collateral arrangements entered into by a Luxembourg party, which are similar (but not necessarily identical) to a Luxembourg financial collateral arrangement. Furthermore, receivables pledges are validly created among the contracting parties and binding against third parties as from the date of entering into the pledge agreement. The Collateral Act 2005 also modernises the appropriation mechanism by allowing the collateral taker to appropriate the pledged assets (at a price determined prior to or after the appropriation of the asset) and to direct a third party to proceed with the appropriation in lieu of the collateral taker.
More recently, the Collateral Act 2005 was amended in July 2022 with a view to the modernisation and clarification of various enforcement-related and other provisions of the Collateral Act 2005. The adopted changes, which are in line with the creditor-friendly spirit of the Collateral Act 2005, are mainly of a technical nature. Most of these technical amendments merely confirm a well-established market practice on these points and are consistent with the approach taken by Luxembourg practitioners over recent years. The relevant changes also include the introduction of a new definition of ‘negotiation platform’, which refers to ‘a regulated market, a multilateral trading facility or an organised trading facility’. The term encompasses Luxembourg, European and third-country negotiation platforms. The Collateral Act 2005 accordingly extends the enforcement methods to refer to: (1) a sale of the pledged assets on the negotiation platform on which they are admitted to trading; and (2) out-of-court appropriation at the market price if the financial instruments are admitted to trading on a negotiation platform.
According to the Collateral Act 2005, set-off between assets (financial instruments and cash claims) operated in the event of insolvency is valid and binding against third parties, administrators, insolvency receivers and liquidators, or other similar organs, irrespective of the maturity date, the subject matter or the currency of the assets, provided that set-off is made in respect of transactions that are covered by bilateral or multilateral set-off provisions between two or more parties.
Articles 141 and 143 of the Luxembourg Act of 18 December 2015 relating to, among others, the recovery, resolution and liquidation of credit institutions and certain investment firms, as amended (the BRR Act 2015) dealing with netting, will come into play where credit institutions are a party to the relevant agreement and affect the enforceability of netting without prejudice to the application of Articles 34-1, 66, 67 (as applicable) and 69 of the BRR Act 2015.
Furthermore, termination clauses, clauses establishing connection between assets, close-out netting provisions and all other clauses stipulated to allow for set-off are valid and binding against third parties, administrators, insolvency receivers and liquidators, or other similar organs, and are effective notwithstanding:
Set-off made by reason of enforcement or conservatory measures or proceedings, including one of the measures and proceedings set out in (a) and (b) above, is deemed to have occurred before any such measure or proceeding applies.
With the exception of provisions on over-indebtedness, Luxembourg law provisions relating to bankruptcy, and Luxembourg and foreign provisions relating to reorganisation measures, liquidation proceedings, attachments, other situations of competition between creditors or other measures or proceedings set out in (a) and (b) above, are not applicable to set-off contracts and do not affect the enforcement of such contracts.
According to Article 208 of the BRR Act 2015, the Collateral Act 2005 shall apply without prejudice to Part I of the BRR Act 2015 and Part IV of the Banking Act 1993. As a result, Articles 10, 11, 13, 14, 18, 19 and 20 (1) to (3) of the Collateral Act 2005 shall not apply to:
Luxembourg has, over previous years, become an important hub for issuers of high-yield bonds, which are often admitted to trading on the LxSE. For structuring reasons, it is often not the parent entity of a group that issues the high-yield bonds but a dedicated Luxembourg special purpose finance vehicle that is a direct or indirect subsidiary of the parent entity. To strengthen the credit rating of the high-yield bonds, the issue is usually guaranteed by the parent and all or some of its subsidiaries.
Under applicable Luxembourg law, a guarantor needs to be described as if it were the issuer of the guaranteed bonds. This implies that detailed financial information needs to be given in respect of each guarantor; however, the guaranteeing subsidiaries may be located in jurisdictions where there is no requirement, for instance, to produce annual accounts, or where the accounts are not prepared in English, French or German. Providing this information in respect of all guaranteeing subsidiaries in an acceptable form may be burdensome and costly. Following requests from the industry, the CSSF accepts that the individual accounts of the guaranteeing subsidiaries are replaced by the consolidated financial statements of the group (to which the guaranteeing subsidiaries belong), provided that:
The LxSE generally follows the CSSF approach when approving prospectuses for high-yield bonds but tends to apply a more flexible approach regarding the above thresholds provided that the interests of investors are, in the opinion of the LxSE, adequately protected.
The Luxembourg Act of 5 April 1993 on the financial sector, as amended (the Banking Act 1993) implements the CRD IV Package (as defined below) into Luxembourg law. The CRD IV Package consists of two main sets of legislation, which both deal with prudential requirements applicable to credit institutions and certain investment firms and which include capital adequacy requirements.
Regulation (EU) No. 575/2013 of the European Parliament and the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms, as amended (the CRR), together with its implementing and delegated regulations, correspond to the first set of legislation and are directly applicable in all EU Member States. In the event of conflict between the provisions of the CRR and the provisions of national legislation, the provisions of the CRR will prevail. CSSF Regulation No. 18-03 (repealing CSSF Regulation No. 14-01) on the implementation of certain discretions contained in the CRR deals with the discretions left under the CRR and used under national legislation. In addition, a number of CSSF circulars further clarify, or endorse EBA guidelines in relation to the interpretation of certain principles under the CRR.
The CRR must be read along with Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 concerning the access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, as amended (the CRD IV, and together with the CRR, the CRD IV Package), implemented into Luxembourg law by the Banking Act 1993, together with the relevant implementing and delegated regulations in relation to CRD IV. The provisions of the Banking Act 1993 are further complemented by the following CSSF Regulations: CSSF Regulation No. 15-01 (on the calculation of institution-specific countercyclical capital buffer rates), CSSF Regulation No. 15-02 (relating to the supervisory review and evaluation process that applies to ‘CRR institutions’ (as defined in the Banking Act 1993)), CSSF Regulation No. 15-04 and its subsequent regulations (in particular, currently applicable CSSF Regulation No. 20-03) (on the setting of a countercyclical buffer rate), CSSF Regulation No. 15-05 (on the exemption of investment firms qualifying as small and medium-sized enterprises from the requirements to maintain a countercyclical capital buffer and capital conservation buffer), CSSF Regulation No. 16-01 (on the automatic recognition of countercyclical capital buffer rates during the transitional period) and CSSF Regulation No. 21-04 (repealing CSSF Regulation No. 20-07) (concerning systematically important institutions authorised in Luxembourg). In addition, CSSF Circular 15/620, CSSF Circular 15/622 and CSSF Circular 15/625 provide further details on the CRD IV as implemented into Luxembourg law.
The CRD IV Package was updated on 7 June 2019 by Directive (EU) 2019/878, amending the CRD IV as regards exempted entities, financial holding companies, mixed financial holding companies, remuneration, supervisory measures and powers and capital conservation measures (the CRD V) and Regulation (EU) 2019/876, amending the CRR as regards the leverage ratio, the net stable funding ratio, requirements for own funds and eligible liabilities, counterparty credit risk, market risk, exposures to central counterparties, exposures to collective investment undertakings, large exposures, reporting and disclosure requirements (the CRR II and, together with the CRD V, the CRD V Package). The new CRD V Package implements, among other things, the Financial Stability Board’s total loss absorbing capacity standards for global systemically important banks into EU law, by adapting the existing regime relating to the specific minimum requirements for own funds and eligible liabilities. The CRR II is directly applicable in Luxembourg whereas the CRD V has been implemented into Luxembourg law by the Luxembourg Act of 20 May 2021.
Finally, the CRD IV Package and CRD V Package have been further modified by Directive (EU) 2019/2034 of the European Parliament and of the Council of 27 November 2019 on the prudential supervision of investment firms (the IFD) and Regulation (EU) 2019/2033 of the European Parliament and of the Council of 27 November 2019 on the prudential requirements of investment firms (IFR and, together with the IFD, the IFD Package). The new IFD Package regime introduced new prudential requirements specifically for investment firms, which are separate from the CRD V Package requirements (these continue to apply solely to the credit institutions, the definition of which, however, slightly evolved to include systemically important investment firms) and involve distinct methods of application and calculation. The IFR is directly applicable in Luxembourg whereas the IFD has been implemented into Luxembourg law by the Luxembourg Act of 21 July 2021.
In Luxembourg, derivative contracts are regulated under the European Market Infrastructure Regulation (EU) No. 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories, as amended (EMIR), and its various implementing and delegated Commission regulations, which are legally binding and directly applicable in all Member States.
The Luxembourg Act of 15 March 2016, as amended, transposing, inter alia, EMIR, lays down the powers of supervision, intervention, inspection, investigation and sanction granted to the CSSF and the Luxembourg Insurance Commission as national competent authorities for the implementation of EMIR.
EMIR was recently amended14 following a review by the European Commission’s regulatory fitness and performance programme (REFIT) and negotiations between the European legislators. EMIR (in its REFIT form) entered into force on 17 June 2019.
In Luxembourg, EMIR is further complemented by the CSSF Circular 13/557 of 23 January 2013, which merely clarifies certain provisions of EMIR, the CSSF Circular 19/723 clarifying the MiFID II definitions of ‘commodity derivatives’ used in EMIR, the CSSF Circular 20/739 concerning the orientations of the European Securities and Markets Authority (ESMA) for reporting obligations under Regulation (EU) 2015/2365, which have an impact on certain EMIR obligations, and the CSSF Circular 20/761 on liquidity risks arising from margin calls. The purpose of EMIR is to introduce new requirements to improve transparency and reduce the risks associated with the derivatives market. As such, EMIR applies to all financial counterparties (FCs) (which, following changes made by the EMIR Refit, includes a subcategory of small FCs (SFCs)) and non-financial counterparties (NFCs) (further split into: (1) non-financial counterparties above the ‘clearing threshold’; and (2) non-financial counterparties below the ‘clearing threshold’) as defined under EMIR (regardless of whether they cross the clearing threshold or are subject to the clearing obligation, as applicable) that enter into derivative contracts. EMIR also applies indirectly to non-European counterparties trading with European counterparties or, under certain conditions, to non-European counterparties trading with each other where such trade has a direct, substantial and foreseeable effect within the European Union. All FCs and NFCs above a certain clearing threshold (or subject to the clearing obligation) have to clear OTC derivative contracts with a central counterparty (CCP) authorised or recognised under EMIR pertaining to a class of OTC derivatives that has been declared subject to the clearing obligation by the European Commission. Contracts not cleared by a CCP are subject to operational risk management requirements and bilateral collateral requirements. EMIR requires counterparties entering into OTC derivative contracts to, under certain circumstances, post initial and variation margin. Since 1 September 2022, counterparties that have (or belong to a group that has) an average aggregate notional amount of non-centrally cleared OTC derivatives that is above €8 billion and that cannot benefit from one of the available exemptions under EMIR are required to post initial margin. EMIR further establishes common organisational, conduct of business and prudential standards for central counterparties, as well as organisational and conduct of business standards for trade repositories.
EMIR also requires FCs and NFCs to report details of their derivative contracts, whether traded OTC or not, to a trade repository.
With regard to a trade entered into between an FC and an NFC that is below the clearing threshold, the FC is, as of 18 June 2020, solely responsible and legally liable for reporting on behalf of both counterparties (although the NFC may opt to undertake this reporting), whether traded OTC or not, to a trade repository. With regard to trades entered into by investment funds, managers of alternative investment funds (AIFs) and UCITSs are, as of 18 June 2020, responsible and legally liable, for the reporting obligations of the UCITSs or AIFs under their management. Furthermore, counterparties to intragroup trades made between an FC and an NFC that is below the clearing threshold (and under certain conditions relating to group governance) may be exempt from reporting the trades to the extent that they notify their competent authorities of their intention to apply this exemption (competent authorities may oppose this exemption within three months of receiving the notification).
In a case where the CSSF refused to approve the appointment of an individual as a bank manager, who subsequently claimed damages from the CSSF based on the CSSF’s wrongdoing, the Constitutional Court held in a judgment dated 1 April 201115 that the statutory in tort liability regime applicable to the CSSF, which presupposes a gross negligence by the CSSF and deviates from the ordinary civil liability, which allows damages to be sought for wrongdoing, is not contrary to the constitutional principle of equality before the law. Therefore, a plaintiff must establish that the damage that he or she has suffered is caused by the CSSF’s gross negligence to seek the CSSF’s liability and claim damages.
Luxembourg courts consistently confirm the efficiency of Luxembourg financial collateral arrangements established by the Collateral Act 2005. For instance, it was held that:
Luxembourg companies are subject to corporation taxes at a combined tax rate (including corporate income tax, municipal business tax and the solidarity surcharge) of 24.94 per cent in the municipality of Luxembourg for the fiscal year ending 31 December 2022. They are assessed based on their worldwide profits, after deduction of allowable expenses and charges, determined in accordance with Luxembourg general accounting standards (subject to certain fiscal adjustments and to the provisions of applicable tax treaties). Ordinary Luxembourg companies (LuxCos) are subject to a wealth tax at a rate of 0.5 or 0.05 per cent, assessed on the estimated realisation value of their assets on the wealth tax assessment date, after deduction of any business-related debts. LuxCos are in any event subject to a Luxembourg minimum wealth tax. This minimum wealth tax is also applicable to Luxembourg companies that are subject to the Luxembourg Act of 22 March 2004 on securitisation, as amended (the Securitisation Act 2004) (LuxSeCos).19
LuxCos carrying out a financial activity are assessed based on an arm’s-length profit margin. This profit is expressed as a percentage of a LuxCo’s indebtedness. Thus, a LuxCo will always realise an arm’s-length profit on the financial transactions entered into, in light of the functions performed and the risks taken, and in accordance with general market conditions. Luxembourg Law of 23 December 2016 clarified the concept of the arm’s-length principle by introducing a new Article 56 bis into Luxembourg’s income tax law.20 In addition, the Luxembourg direct tax administration issued Circular LIR 56/1-56 bis/1 on 27 December 2016 (the Circular), replacing circulars LIR 164/2 and 164/2-bis, which sets the Luxembourg tax framework for intra-group financing transactions. The clarification in Luxembourg of formal transfer-pricing rules for intra-group financial transactions was expected by the financial sector and strengthens the overall tax transparency of Luxembourg. The Circular endorses the Organisation for Economic Co-operation and Development (OECD) Transfer Pricing Guidelines21 for multinational enterprises and tax administrations and keeps Luxembourg in line with international standards in the area of transfer pricing. Furthermore, OECD has recently released Transfer Pricing Guidance on financial transactions, which, among others, provides guidance to the tax administrations to assess the nature of a purported loan and determine whether it can indeed be regarded as loan for tax purposes or if it should be qualified as some other kind of payment (such as contribution to equity capital).22 The impact of the new guidance on the Luxembourg transfer pricing regulation needs to be monitored. The Circular also clarifies the process for applying for an advance pricing agreement (APA). In this context, it should be noted that the general legal framework and the procedural formalities applying to APA filings are set out in the Luxembourg general tax law23 and a Grand Ducal regulation.24 If a LuxCo enters into an intra-group financing transaction coming within the scope of the Circular, it has to comply with a number of requirements set out in the Circular (such as substance requirements, minimum equity at risk and transfer-pricing report). The Circular also confirms that, as of 1 January 2017, the Luxembourg tax administration would no longer be bound by APAs issued for the tax years post 2016, which were based on rules applicable before the introduction of the new Article 56 bis into the Luxembourg income tax law.
The obligations assumed by a LuxSeCo towards its investors (holding equity or debt securities) and any other creditors are considered tax-deductible expenses. Therefore, a financial transaction entered into by a LuxSeCo, if properly structured, should not give rise to any corporation taxes subject to, among others, the interest limitation rule. The Luxembourg tax administration does not require a LuxSeCo to realise a minimum profit margin.
Management services rendered to LuxSeCos are exempt from VAT. This is not the case for management services that are provided to LuxCos.
Both LuxCos and LuxSeCos benefit from the wide network of tax treaties entered into by Luxembourg from a Luxembourg standpoint.
In the field of tax evasion and tax avoidance, Luxembourg ensures to comply with its European and international engagements by adopting instruments impacting international tax planning and structuring in Luxembourg.
In this context, Luxembourg signed the OECD’s multilateral convention, which entered into force on 1 August 2019, to implement tax treaty-related measures to prevent BEPS.25
In addition, the Act of 21 December 2018 implemented into Luxembourg tax law the provisions of the Anti-Tax Avoidance Directive (ATAD I).26 Its main provisions consist of the interest limitation rule, the controlled foreign companies rule, the hybrid mismatches rule, the exit tax provisions and the general anti-abuse rule.
On 29 May 2017, the Council adopted a second Anti-Tax Avoidance Directive (ATAD II).27 This Directive amends ATAD I by setting up a dissuasive regime regarding hybrid mismatches with third countries and broadening its scope to cover hybrid PE mismatches, hybrid transfers, imported mismatches, dual residence mismatches and reverse hybrid mismatches. The Act of 20 December 2019 implemented into Luxembourg tax law the provisions of ATAD II. The rules are applicable in Luxembourg as of 1 January 2020, except for the reverse hybrid mismatches rule, which are applicable as of 1 January 2022.
On 25 March 2020, Luxembourg adopted an act28 implementing EU Directive 2018/8222729 (DAC6) as regards mandatory automatic exchange of information in the field of (direct) taxation, in relation to reportable cross-border arrangements. DAC6 introduces a mandatory disclosure regime for potentially aggressive tax planning arrangements and subsequent automatic exchange of the disclosed information between EU Member States.
DAC6 lists a series of characteristics or features that indicate a potential risk of tax avoidance (i.e., ‘hallmarks’). DAC6 imposes an obligation on intermediaries located in the European Union such as tax advisers, accountants, lawyers, banks and financial advisers who are involved in the design, marketing or the implementation of arrangements that include one of the hallmarks to file a report on the relevant transaction with their local tax authorities. If the intermediary is located outside the European Union or is bound by legal professional privilege, the obligation to report may pass to the relevant taxpayer.
Insolvency situations are governed by a set of rules that have been elaborated by courts and legal literature around the cardinal principle of pari passu ranking of creditors. Under the applicable Luxembourg law, it is possible for a company to be insolvent without necessarily being bankrupt. If a company fails to meet the two cumulative tests of bankruptcy – the cessation of payments and the loss of creditworthiness – it is not deemed bankrupt. The judgment declaring the bankruptcy, or a subsequent judgment issued by the court, usually specifies a period not exceeding six months before the day of the judgment declaring the bankruptcy. During this period, which is commonly referred to as the suspect period, the debtor is deemed to have already been unable to pay its debts generally, or to obtain further credit from its creditors or third parties. Payments made, as well as other transactions concluded or performed, during the suspect period, and specific payments and transactions during the 10 days before the commencement of that period, are subject to cancellation by the Luxembourg court upon proceedings instituted by the Luxembourg insolvency or bankruptcy receiver.
Luxembourg insolvency proceedings have, inter alia, the following effects:
The foregoing does not apply in the following cases:
Special insolvency regimes apply to, among others:
BRR Entities may be subject to specific, pre-insolvency, resolution proceedings as foreseen under the BRR Act 2015 (implementing the BRRD), whereby resolution authorities can use exorbitant resolution powers in relation to resolution tools (such as the bail-in tool) to absorb losses or recapitalise BRR Entities, individually or their group as a whole, or both.
Article 120 et seq. of the BRR Act 2015 provides for actual insolvency proceedings applicable to professionals of the financial sector in the form of special reprieve from payment and liquidation regimes.
Reprieve from payment may be applied for if the global performance of an undertaking’s business is compromised, in the event that the undertaking is unable to obtain further credit or fresh monies or no longer has any liquidity, whether there is a cessation of payments, or in the event that a provisional decision has been taken to withdraw the undertaking’s licence. In these circumstances, the CSSF may request the court to apply reprieve from payment proceedings to the undertaking. The reprieve from payment cannot exceed six months, and the court will lay down the terms and conditions thereof, including the appointment of one or more persons responsible for managing the reorganisation measures and supervising the undertaking’s activities.
A petition for liquidation may be filed either by the Luxembourg public prosecutor or by the CSSF. This will typically occur in a situation where the reprieve from payment cannot cure the undertaking’s difficult financial situation, where the undertaking’s financial situation is so serious that it can no longer satisfy its creditors or where the undertaking’s licence has been permanently withdrawn. The court will appoint a judge-commissioner and one or more liquidators. The court may decide to apply bankruptcy rules in respect of the liquidation and, accordingly, fix the suspect period (which may date back no more than six months before the date of filing the application for reprieve from payment). The court as well as the judge-commissioner and the liquidators may decide to vary the mode of liquidation initially agreed upon. The liquidation procedure is terminated when the court has examined the documents submitted to it by the liquidators and the documents have been reviewed by one or more commissioners. Voluntary liquidation by an entity is possible only where the CSSF has been notified thereof by the undertaking one month before notice is given to hold the extraordinary general meeting of the shareholders called to consider the voluntary liquidation. As a matter of principle, Luxembourg credit institutions do not file for voluntary liquidation but tend to first surrender their banking licence to the CSSF/ECB to then enter into a liquidation process as a regular company.
The LxSE was incorporated on 5 April 1928 as a société anonyme and the first trading session took place on 6 May 1929; in November 2000, it entered into a cooperation agreement with Euronext. The LxSE is managed by a board of managers appointed by the general meeting of the LxSE’s shareholders.
The LxSE is the competent body for all decisions and operations relating to the admission of securities, their suspension, withdrawal and delisting, the maintenance of its official list, for the transfer of securities from one market to another and for all the continuing obligations of issuers. It is the operator of the regulated market denominated LxSE and of the Euro MTF market. The main activities of the LxSE are listing, trading, distribution of financial reports for the investment funds industry, trade reporting and data vending.
The LxSE primarily specialises in the issue of international bonds (for which it is ranked first in Europe), with more than 26,000 debt securities listed. The LxSE maintains a dominant position in European bond issues, with the majority of all cross-border securities in Europe being listed in Luxembourg. More than 110 countries list at least some of their sovereign debt in Luxembourg, while Luxembourg is also a market for debt from large organisations such as the European Bank for Reconstruction and Development, the European Investment Bank, the European Union and the World Bank. The LxSE’s main equity index is called the LuxX Index, which is a weighted index of the 10 most valuable listed stocks by free-floated market capitalisation. During the past years, the LxSE diversified its product base by developing its business linked to green/sustainable finance; since 2016, the LxSE operates a dedicated platform for green, social and sustainable securities (the Luxembourg Green Exchange), which became the world’s leading listing venue of green bonds.
Clearstream Banking, SA in Luxembourg is one of the major European clearing houses through which more than 2,500 banks, financial institutions and central banks worldwide exchange financial instruments. It is wholly owned by Clearstream International SA, which is a wholly-owned subsidiary of the Deutsche Börse Group. Clearstream Banking ensures that cash and securities are promptly and effectively delivered between trading parties. It also manages, administers and is responsible for the safekeeping of the securities that it holds on behalf of its customers. Over 300,000 domestic and internationally traded bonds, equities and investment funds are currently deposited with Clearstream Banking. Clearstream Banking settles over 250,000 transactions daily and is active in 59 markets.
Clearstream Banking is often described as a bank for banks. Basically, its duty is to record transactions between the accounts of different participants in Clearstream Banking, and use that data to calculate the relative financial positions of the participants in relation to each other.
LuxCSD, a new central securities depository for Luxembourg, is jointly (50-50) owned by the Luxembourg central bank and Clearstream Banking. LuxCSD provides the financial community with central bank money settlement services as well as issuance and custody services for a wide range of securities including investment funds.
LuxCSD was designated a securities settlement system by the Luxembourg central bank, which is a requirement to operate under the protection of the Settlement Finality Directive, and has received European Central Bank approval for its Securities Settlement System being eligible for use in the collateralisation Eurosystem credit operations.
Currently, no Luxembourg-based rating agency exists.
The Luxembourg Act of 27 July 2003 relating to trust and fiduciary contracts, as amended, recognises trusts that are created in accordance with the Convention on the Law Applicable to Trusts and on their recognition made at The Hague on 1 July 1985 and that are legal, valid, binding and enforceable under the law applicable to trusts.
In adopting the Securitisation Act 2004, Luxembourg has given itself one of the most favourable and advanced pieces of European legislation for securitisation and structured finance transactions. According to the Securitisation Act 2004, securitisation means a transaction by which a Luxembourg securitisation undertaking (in the form of a LuxSeCo or a fund managed by a management company) acquires or purchases risks relating to certain claims, assets or obligations assumed by third parties, and finances the acquisition or purchase by issuing financial instruments or contracting loans, the return on which is linked to these risks.
The Securitisation Act 2004 distinguishes between regulated and unregulated securitisation undertakings. A securitisation undertaking must be authorised by the CSSF and must obtain a licence if it issues securities to the public on a continuous basis (these two criteria applying cumulatively). Both regulated and unregulated securitisation undertakings benefit from all the provisions of the Securitisation Act 2004.
A securitisation undertaking, which may be set up in the form of a corporate (either as a tax opaque structure or as a tax transparent structure) or in the form of a securitisation fund, can be financed by the issue of any type of financial instruments or by way of loans.
The Securitisation Act 2004 does not contain restrictions as regards the claims, assets or obligations that may be securitised. Securitisable assets may relate to domestic or foreign, moveable or immoveable, future or present, tangible or intangible claims, assets or obligations. It is also accepted that a securitisation undertaking may, under certain conditions, grant loans directly. Very advantageous provisions for the securitisation of claims have been included in the Securitisation Act 2004. Actively managed CDOs and CLOs can be structured via Luxembourg securitisation vehicles.
To enable the securitisation of undrawn loans or loans granted by the securitisation undertaking itself, the Banking Act 1993 exempts such transactions from a banking licence requirement. Furthermore, transactions that fall within the scope of the application of the Securitisation Act 2004 (such as credit default swaps) do not constitute insurance activities that are subject to Luxembourg insurance legislation.
The Securitisation Act 2004 allows the board of directors of a securitisation undertaking to set up separate ring-fenced compartments. Each compartment forms an independent, separate and distinct part of the securitisation undertaking’s estate and is segregated from all other compartments of the securitisation undertaking. Investors, irrespective of whether they hold equity or debt securities, will only have recourse to the assets encompassed by the compartment to which the securities they hold have been allocated. They have no recourse against the assets making up other compartments. In the relationship between investors, each compartment is treated as a separate entity (unless otherwise provided for in the relevant issue documentation). The compartment structure is one of the most attractive features of the Securitisation Act 2004, as it allows the use of the same issuance vehicle for numerous transactions without the investors running the risk of being materially adversely affected by other transactions carried out by the securitisation undertaking. This feature allows securitisation transactions to be structured in a very cost-efficient way without burdensome administrative hurdles. It is important to note that there is no risk-spreading requirement for compartments. It is hence possible to isolate each asset held by the securitisation undertaking in a separate compartment.
The Securitisation Act 2004 also expressly recognises the validity of limited recourse, subordination, non-seizure and non-petition provisions. The Securitisation Act 2004 also provides for a complete set of rules for subordination that apply among various types of financial instruments issued by securitisation undertakings.
Rating agencies are very comfortable with transactions structured under the Securitisation Act 2004 as legal counsel can usually issue clean legal opinions.
From a tax perspective, there is full tax-neutrality for securitisation undertakings (for further information, see Section II.iv).
The CSSF has published an FAQ document setting out guidelines regarding transactions that a securitisation undertaking may enter into. Although these guidelines only apply to securitisation undertakings regulated by the CSSF, the tax administration tends to apply these guidelines to unregulated securitisation undertakings as well to decide whether their transactions qualify as securitisation transactions. The CSSF has confirmed in the FAQ, by reference to a frequently asked question document published by the European Commission on 25 March 2013,30 that an issuer that exclusively issues debt instruments does not constitute an AIF and, hence, does not fall within the ambit of Directive 2011/61/EU on alternative investment fund managers (AIFMD). In addition, according to the CSSF, securitisation undertakings issuing structured products that provide a synthetic exposure to assets (for instance, shares, indices, commodities) based on a set formula and that acquire underlying assets or enter into swap arrangements only with a view to hedging their payment obligations with regard to investors in the structured products may, subject to the criteria set out in guidance issued by the ESMA, be considered as not being managed according to an investment policy and would, hence, fall outside the scope of the AIFMD.
It is interesting to note that an email address31 has been created to discuss queries concerning the Securitisation Act 2004 with the CSSF. At the European level, from 1 January 2019, Regulation (EU) 2017/2402 of 12 December 2017, which lays down a general framework for securitisation and creates a specific framework for simple, transparent and standardised securitisation (the Securitisation Regulation), is applicable. Among the key obligations under the Securitisation Regulation are as follows:
However, the Securitisation Regulation and the Securitisation Act 2004 define securitisations differently. The Securitisation Regulation defines a securitisation transaction as a transaction or scheme where the credit risk associated with an exposure or a pool of exposures is tranched, while the definition of the securitisation transaction under the Securitisation Act 2004 is broader and does not require the tranching and transformation of credit risk. Consequently, not all securitisation transactions under the Securitisation Act 2004 would fall under the Securitisation Regulation.
The Luxembourg Act of 8 December 2021 on the issuance of covered bonds (the Covered Bonds Act) entered into force on 8 July 2022 and overhauled the Luxembourg covered bonds regime by: (1) allowing universal banks to issue covered bonds in Luxembourg and no longer restricting access to banks specifically authorised as covered bond banks; and (2) implementing the European covered bonds regime set out under Directive (EU) 2019/2162 and Regulation (EU) 2019/2160.
A covered bond is a debt security issued by a specialised covered bond bank or a universal credit institution and guaranteed by a cover pool specifically allocated to these securities. Covered bonds are structured as safe investments granting a dual recourse to holders, by way of an ordinary claim against the credit institution’s general estate and a privileged claim against the cover pool allocated to the covered bonds.
Banks issuing covered bonds are subject to the prudential supervision of the ECB or, as applicable, the CSSF and the specific supervision of an approved special statutory auditor appointed by the CSSF upon recommendation of the bank that supervises the coverage assets in respect of covered bonds. Specialised covered bond banks limit their principal activities to the issuance of covered bonds, while universal credit institutions issuing covered bonds undertake this activity on an ancillary basis.
Six types of covered bond may be issued under Luxembourg law:
In addition, the coverage assets may include derivatives entered into with eligible counterparties for hedging purposes only (under certain circumstances). Counterparties of derivative contracts benefit from the dual recourse to the issuing bank and the cover pool.
Banks issuing covered bonds benefit from a derogation in the bankruptcy legislation whereby creditors have direct access to the bank’s assets in cases of insolvency. The coverage assets may not be attached or seized by creditors of banks issuing covered bonds other than the holders of the covered bonds.
Luxembourg banks issuing covered bonds may either be subject to reprieve from payment or liquidation proceedings under the BRR Act 2015. As from the commencement of any of these proceedings, one or more ad hoc managers appointed by the district court will manage the outstanding covered bonds and the coverage assets. The covered bonds and the corresponding coverage assets will not be affected by the above proceedings, in that the coverage assets underlying and securing covered bonds will be segregated in a specific estate compartment from all other assets and liabilities of the bank. Covered bonds may not be accelerated in the event of reprieve from payment or liquidation proceedings. Reprieve from payment proceedings may also be opened in respect of any of the estate compartments established for each category or type of covered bond.
The Luxembourg Act of 12 July 2013 (which implements the AIFMD) has modernised the Luxembourg limited partnership regime by reference to the Anglo-Saxon limited partnership, which is a popular investment vehicle for structuring venture capital or private equity investments.
There are three types of partnerships in Luxembourg: the common limited partnership (CLP), an intuitu personae partnership with legal personality; the newly introduced special limited partnerships (SLP), an intuitu personae partnership without legal personality; and the partnership limited by shares (SCA), a joint-stock company with partnership features.
Only technical adjustments have been made to the SCA regime as the SCA has already benefited from an attractive regime with respect to the level of protection and control granted to the initiator of the structure. The SCA has already been widely used in investment structures.
The regime applicable to the CLPs has been thoroughly overhauled to encourage the use of this type of investment vehicle. Furthermore, a new type of investment vehicle, the SLP, which benefits from a favourable structural and tax regime, has been introduced. The SLP is an intuitu personae partnership that has no legal personality and that is subject to few statutory provisions. Most of its features may be freely determined in the limited partnership agreement entered into between the unlimited partners and the limited partners.
The key points of the new limited partnership regime (for CLPs and SLPs) are as follows:
By revamping its partnerships regime to address the current needs of market players, Luxembourg has further strengthened its position as one of the top European jurisdictions for the domiciliation of investment structures.
The Luxembourg government discusses the possibility to introduce the notion of a trust similar to the English trust or the Dutch Stichting into the Luxembourg legal framework with a view to strengthen, among others, the Luxembourg wealth management sector. Discussions inspired by the works of the Haut Comité de la Place Financière (an advisory body to the government in matters concerning the financial sector) are currently ongoing at a national level.
The Luxembourg government is proposing to overhaul the Luxembourg insolvency regime with a view to its modernisation. Bill 6539 (the Insolvency Bill) is currently pending in Parliament providing for a legal framework prioritising (where practicable) the preservation or reorganisation, or both, of a debtor’s business as opposed to the liquidation thereof. The proposed amendments include:
EU Member States were further bound to implement the Restructuring Frameworks Directive (2019/1023) by July 2021 (subject to the extension option set out therein). The Luxembourg directive implementation will be provided for in the above wider insolvency law reform.
Even though the exact timing for the implementation of the insolvency reform remains uncertain, it is more likely than not that the related amendments will be adopted in the course of 2022.
In view of the number of outstanding legal issues raised by the Insolvency Bill, as amended, and the related discussions that still need to take place with all the actors involved, the legislator decided to split the Insolvency Bill into two separate bills; namely, Bill 6539 A on the protection of undertakings and modernising bankruptcy law; and Bill 6539 B on the creation of a procedure for administrative dissolution without liquidation.
The purpose of the administrative dissolution without liquidation procedure is to eliminate empty shell companies; in other words, commercial companies with no employees and no assets that perform activities contrary to criminal law or that seriously contravene the provisions of the Commercial Code or the laws governing commercial companies, including in matters of business licence. The new procedure, which is mainly administrative, will permit the fast elimination of empty shell companies and reduce the cost associated with the opening of a formal judicial liquidation procedure.
The Bill of Law 8055 (the Blockchain Act III) is currently under parliamentary process. The Blockchain Act III aims to: (1) implement specific definitions from Regulation (2022/858) on a pilot regime for market infrastructure based on DLT; and (2) clarify the Luxembourg Act dated 5 August 2005 on financial collateral arrangements, as amended. The intention of the legislator is to allow for further implementation of the use of DLT by the market by expressly extending the possibility to record financial collateral arrangements on financial instruments issued via, registered in and transferred through a DLT platform.
The Blockchain Act III is a continuation of the Luxembourg Act of 1 March 2019 (the Blockchain Act I) and the Luxembourg Act of 22 January 2021 (the Blockchain Act II), which respectively recognised the use of DLT in the context of the circulation of securities and the issuance of dematerialised securities using DLT.
This initiative is, once again, another step taken towards the lawful recognition of DLT in the Luxembourg financial sector, thus creating a broader safe legal environment for financial actors to leverage new opportunities offered by this technology.
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