Depending on the activities carried out by the company, this latter may need to apply for an authorization in respect of the activity envisaged (Business License). There are mainly two state bodies concerned by the procedure: The “Ministère des Classes Moyennes”(http://www.mcm.public.lu/fr/index.html) and the Commission de Surveillance du Secteur Financier (« CSSF » www.cssf.lu).
No authorisation required
The SOPARFI, SPF and under certain conditions Securitisation Vehicles are not required to obtain any specific agreement to carry out their activities. A SOPARFI can furthermore provide management services to affiliated undertakings without the need to obtain any licence.
Authorisation from the Ministère des Classes Moyennes
Companies willing to carry out any commercial activities should apply for an authorisation from the Ministère des Classes Moyennes.
Must be joined to the application:
- The application form duly filed with a stamp of 24 EUR or a copy of the wiring instruction for the 24 EUR
- An affidavit / declaration of honour
- A copy of the passport or identity card
Forms can be found on the website of the Ministère des Classes Moyennes
For the purpose of applying for a business license, the following documents will be required
- A copy of the degree(s) obtained in the field of the business envisaged or for some cases, a training certificate in that activity
- A CV
- A certificate of non bankruptcy
- An extract of the criminal record
CSSF authorisation and supervision
The prior approval of the CSSF is required for
- Specialised Investment Funds
- Securitisation Vehicles in some circumstances
Among the documents to submit are :
- Private Placement Memorandum
- An affidavit / declaration of honour
- Dated and signed CVs of the managers/directors
- Contracts with third parties (Management agreement, central administration agreement, etc. )
- The name of the custodian bank
- Engagement letter of the auditor
The setting up of any corporation in Luxembourg follows a general process which can be summarized as follows, i.e.:
As a preliminary step before going further with the process, we have the legal obligation to “know our customer”. This means that we have to know details about your project as well as to collect legal documents ascertaining your identity (i.e. passport or identity card). This is always done in the strictest confidentiality as we are bound by the professional secrecy.
The availability of the name of the company to be incorporated should be checked.
We will draft and submit to you the draft of articles of association of your company based on the choice of the legal form and specificities of your project such as different classes of shares or restriction on the transfer of shares, etc. The articles of association may be drafted in French, German or English but in this latter case, they should be translated into French or German.
Companies are not restricted to work with any specifc bank in Luxembourg. We may assist you with the bank opening process in Luxembourg or even abroad as the case may be. Banks also have their own due diligence process which needs to be complied with. We will help you preparing the file and assist you with the application.
The amount of the share capital should be wired to the bank account of the company prior the appointment with the notary. The minimum share capital for an S.A. is 30.000 EUR and 12.000 EUR for an S.à r.l. (see more details at the forms of companies)
For a corporation, the deed of incorporation must be signed in front of a Notary to give existence to the company. For that purpose, a set of documents needs to be forwarded to the Notary including power of attorneys (if any), draft of the articles of association and some due diligence information. We draft and collect all those documents in due time, and will set up the file for further transfer to the Notary.
At the same time we arrange the meeting with the Notary, the bank will issue and send directly to the Notary a certification to confirm the account of the company was credited of the amount corresponding to the share capital provided in the articles of association.
The deed of incorporation is signed in front of the Notary who then issues a certificate of incorporation addressed to the bank to confirm funds received for the payment of the capital subscription may now be used by the company for its own purpose if the bank opening process has fully be complied with (receipt of all originals, compliance committee validation)
This is automatically done by the notary after the signature of the deed. The Company will receive its identification number from the Public Registry.
Since 2019 the implementation of new transparency measures deriving from EU Anti Money Laundering Directive imposes the filing with a the Luxembourg Registry of Beneficial Owners (« RBO ») of some information on the beneficial owners of Luxembourg entities.
The law refers to the definition of economic beneficiary given in a previous law (law of 12/11/2004, as subsequently amended), which definition is that a stake in the shareholding (direct or indirect) of up to 25 per cent of the shares plus one is a sign of beneficial ownership.
A restriction of access to the information is possible where such public access would expose the beneficial owner to a disproportionate risk (fraud, kidnapping, …) or where the beneficial owner is a minor or otherwise incapacitated.
After the filing to the Trade register, the deed is published at the Electronic Registry of Companies and Associations called “RESA”.