On 10 May 2016 the Luxembourg Parliament adopted draft bill no. 6624 on the reform of the publication regime relating to companies and associations, abolishing the publication requirements in the official gazette in the form we know them today (the “Publication Reform”).
The Publication Reform provides for a new and fully electronic register, the RESA (Recueil Electronique des Sociétés et Associations). It will enter into force on 1 June 2016.
Although the Publication Reform is a great step towards more simplicity, transparency and speed, it is now time for all Luxembourg entities subject to official registration and publication with the official gazette to rework their publication procedures.
Time waits for no man
For Luxembourg entities filing publications, one of the major benefits of this simpler procedure is that it will take less time for their resolutions to become binding on third parties.
To comply with the new legal provisions, publications filed with the RESA will have to be published within 15 days of their filing, instead of a maximum time of two months under the former regime, which required a transfer of the information to be published from the Trade and Companies Register RCS (Registre de Commerce et des Sociétés) to the State Ministry – Central Legislation Service (Ministère d’Etat – Service central de législation) – hosting the Mémorial C.
In practice, as the RESA will be hosted directly at the RCS, one can expect publication to be much faster with the RCS becoming the one-stop shop for the publication of legally required documents.. Documents will be filed in a standardized format and, as the procedure is fully computerized, no more manual intervention will be required.
Thereby, the legislator aims to achieve instant publication of the documents filed at the RCS.
However, according to the intention of the legislator and the language of the relevant provisions, entities will have the option to defer publication for up to 15 days after filing. Further, an exception to this rule is provided for the publication of convocation notices to general meetings, which may also be published at a later date in compliance with the legal requirements, as the case may be, on an individual basis.
Registration compliance made easy
Another major improvement is that, under the Publication Reform, entities subject to Luxembourg law and registered with the RESA which are shareholders or managers of another entity registered with the RESA will only have to publish their registration number. As other details will not be published, this will significantly lighten the regulatory burden of companies that make changes that had to be registered under the former regime (such as a change of their legal form, name or registered office). After the Publication Reform, it will be sufficient for these entities to update their own RESA and RCS files, to which all the files (whether RESA or RCS) of the other concerned entities will simply refer and the relevant information will be gathered on an individual basis.
Also, it is envisaged that there will be free-of-charge publication and consultation of all available publications (including excerpts of the RCS and filed documents, such as annual accounts or consolidated articles of association which were subject to fees under the former legal publication regime).
Late filing fees
Although that with the actual draft of the implementing Grand Ducal regulation the government intends to establish a late filing fine, this provision raised concerns for the State Council, which sees a conflict with the constitution following its opinion 50.393 on the said draft regulation. We will keep you informed about this question.
FCPs to be registered with the RCS
To ensure centralized access to their data, all Luxembourg mutual funds (fonds communs de placement, “FCP”) will have to be registered with the RCS, which will become the central source of publicly available information on FCPs.
Existing FCPs will have to be registered with the RCS until 1 December 2016.
Filings that have been submitted to the competent State Ministry – Central Legislation Service before 1 June 2016 will still be published with the Mémorial C.
The final deadline for publications in the Mémorial C will be 31 August 2016, as all pending filings will have to be published by this date.
The Mémorial C will be kept publicly accessible via the web portal of the RCS.
In view of a modernization of the legal publication regime, the Luxembourg legislator has adopted the draft bill no. 6624 to unify, simplify and centralize the legal publication process for companies and associations, as well as the underlying legal provisions, for the purpose of timing, transparency and cost-efficiencies.
The Publication Reform follows two other acts (the law of 31 December 2002 referred to as RCS lawand the law of 20 April 2009 on electronic filing with the RCS) which together form a large legislative reform project aimed at modernizing the publication régime.
On 10 May 2016, in the first constitutional vote, the draft bill was passed unanimously by the Chamber of Deputies, which also has introduced a request for the granting of an exemption from the second constitutional vote by the Council of State, which will be decided on in the 24 May 2016 session. As the actual text of the draft bill is in broad compliance with the amendments proposed by the Council of State, there are good reasons to believe that this request will be accepted.
After its promulgation, the law will then be published in the – very much alive – Mémorial A to enter into force on 1 June 2016.