In 2017 the Court of Appeals confirmed a change in position regarding the enforcement of awards annulled in the seat of arbitration. This decision broke with the court's earlier interpretation – which had favoured enforcement and been standard practice since 1999 – and solidified its new approach of denying enforcement when an award does not produce effects in its jurisdiction of origin.
By way of the Law of 20 July 2018, Luxembourg has finally implemented the EU Payment Services Directive (PSD 2). As the PSD 2 is a full harmonisation directive, most of Luxembourg's PSD 2 provisions are identical to the legal framework implemented across the European Union. Nonetheless, EU member states were given scope to decide on certain topics and the Grand Duchy seized the opportunity to define its own rules.
EU Regulation 655/2014, which established a European Account Preservation Order (EAPO) procedure, aims to facilitate the collection of claims in civil and commercial matters by introducing a uniform EU procedure for identifying and freezing funds held in a debtor's bank accounts in another member state. This increased transparency is a particularly new development for Luxembourg, which recently introduced a straightforward EAPO enforcement procedure that is in line with its existing enforcement measures.
A recent Luxembourg District Court judgment has confirmed the well-established, flexible and creditor-friendly environment offered by the Collateral Act. The court ruled that the enforcement of a pledge cannot be set aside, except in the case of clearly established fraud. The main takeaway from the decision is the confirmation of the possibility offered by the act to enforce a pledge without any payment default and in case of a breach of a financial covenant.
The Luxembourg financial sector regulator (CSSF) recently published a number of circulars in order to streamline its regulation of IT outsourcing in the financial sector and introduce specific rules for the use of cloud services. In doing so, the CSSF has defined the conditions under which financial service providers may outsource activities without infringing the regulatory principles of central administration and sound governance.
EU Regulation 655/2014 recently became fully applicable, making it possible for creditors in Luxembourg to obtain a preservation order for the bank accounts of a debtor situated in another EU member state and vice versa. The regulation introduces a certain degree of transparency at the EU level with regard to debtors' assets, which is greater than that provided under existing Luxembourg law.
The new Markets in Financial Instruments (MiFID) Act, which transposes the Markets in Financial Instruments Directive and implements the EU Markets in Financial Instruments Regulation, was recently voted into law. Most issues relating to markets in financial instruments are covered by the first part of the act, while the provision of investment services will continue to be governed by the Financial Sector Act, as amended by the second part of the MiFID Act.
Following the adoption of Bill of Law 7022, the new Act on Market Abuse recently entered into force. The act significantly increases the administrative and criminal penalties for infringements of market abuse provisions and designates the Luxembourg financial sector regulator as the competent authority for the purposes of the EU Market Abuse Regulation. It also extends the definition of 'regulated information' provided for in the Act on Transparency Requirements for Issuers.
The Labour Court of Appeal issued a number of notable decisions in 2018. For example, it held that the high level of freedom enjoyed by a senior manager with regard to the organisation of their work must be exercised within the limits of their relationship of subordination with their employer. Further, it held that the burden of proof of overtime falls on the employee who requests payment, and that the release of an employee from their duties during their notice period cannot lead to a reduction in their remuneration.
Following recent amendments to Article L 222-9 of the Labour Code, the monthly minimum social wage for a non-qualified employee paid per month has been fixed – as of 1 January 2019 – at €254.31 (with the index value of 100 weighted for the cost of living as of 1 January 1948). Thus, as of 1 January 2019 the new gross amounts of the monthly minimum social wage and the applicable legal thresholds and ceilings have been amended.
Bill 7381 modifying Article L 222-9 of the Labour Code was recently submitted to the Chamber of Deputies. The bill aims to amend the minimum social wage rates to reflect the average salaries of 2016 and 2017. If the bill is passed, the minimum social wage would increase by 1.1% as of 1 January 2019. The Governing Council has also decided to increase the social inclusion income and the income for those with severe disabilities by the same amount.
The Court of Appeal recently considered the conditions under which employers can access their employees' workplace correspondence and use such correspondence as evidence in court. This judgment confirms the current jurisprudential trend under which employers may occasionally access their employees' computers, including their work emails. Further, any document which concerns only professional data will, in principle, constitute a lawful means of proof.
The new Law on the Organisation of Luxembourg's National Commission for Data Protection and the General System for Protecting Data has, among other things, modified the Labour Code. The key changes introduced in this regard concern the processing of personal data in order to monitor employees, notifying employees of personal data processing, requesting advance compliance opinions and the co-decision system.
The Council of Government recently came to an agreement on the status of British citizens living in Luxembourg in the event that the United Kingdom leaves the European Union on 29 March 2019 without a withdrawal agreement. According to the statement, answers to questions concerning the situation of British nationals living in Luxembourg, as well as Luxembourg nationals living in the United Kingdom, are available online.