The Luxembourg law dated 12 July 2013 concerning alternative investment funds managers has not just implemented into national law the AIFM Directive 2011/61/EU of the European Parliament and of the Council of 8 June 2011 but it has also introduced a new vehicle form in the Luxembourg companies law dated 10 August 1915 (the “Company Law”), i.e. the special limited partnership (“société en commandite spéciale”, the “SCSp”).
To date, only two types of limited partnership were provided by the provisions of the Company Law: the common limited partnership (“société en commandite simple”) and the partnership limited by shares (“société en commandite par actions”).
With the SCSp, Luxembourg intends to strengthen the competitiveness of its financial platform by introducing a legal vehicle inspired by the Anglo-Saxon limited partnership.
Key features of this vehicle are notably the absence of legal personality and the tax transparency regime.
In this context, the SCSp could be attractive for those who want to benefit from tax transparency and for limited partners who seek confidentiality (the name of the latter and the amount of their contribution are not included in the information accessible to the public, as they do not need to be disclosed or published).
In addition, the SCSp also offers multiple benefits in terms of flexibility (i.e. voting rights, transfer of partnership interests, profit allocation/loss sharing, kind of contribution, agreement of new partners, etc.). Indeed, most of the provisions of the Company Law are not mandatory but only applicable unless the partnership agreement provides otherwise.
Despite the absence of legal personality, the SCSp has its own estate, distinct from the ones of the general and limited partners, including the assets contributed by the latter. The registration of the assets is made in the name of the SCSp. As a consequence, creditors of the SCSp may address their claims only against the assets of the SCSp and not against the limited partners of the latter.
Finally, it should be noted that an SCSp may be transformed into another kind of commercial company form with legal personality.
Overall, and as set out above, the SCSp is especially suitable for private equity investments funds.