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.
Luxembourg recently adopted a number of legislative reforms aimed at modernising the rules applicable to commercial companies, including a number of reforms which could affect their restructuring and insolvency. Although the main purpose of these changes is to modernise the rules applicable to commercial companies and the relevant publication formalities, they may also prove useful in the framework of corporate restructuring and the prevention of insolvency.
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.
Following the recent enactment of the act modernising the Company Law 1915, Luxembourg law now officially recognises the possibility for companies to be wound up by means of a simplified procedure. Although a simplified procedure had previously existed in notarial practice, it lacked a clear legal basis. The new procedure is an unquestionably useful tool which will further enhance Luxembourg's business-friendly reputation.
The Luxembourg financial sector regulator (CSSF) recently published frequently asked questions clarifying the criteria that it considers when assessing whether to accept an external expert as a regulated entity's internal auditor. The CSSF also confirmed that the criteria are assessed proportionately, and that it may request further information or interview the relevant parties when determining whether outsourcing an internal audit is possible.
The Luxembourg financial sector regulator has issued Circular 15/631, which provides guidance on the definition and treatment of dormant accounts. According to the circular, professionals should maintain regular contact with their clients and monitor client relationships with vigilance. They must also set out rules to determine clearly when a relationship has become inactive and when an account has become dormant.
The number of companies declared bankrupt in Luxembourg has increased tremendously since 2009, mainly due to the existing legislation, which is obsolete and no longer suited to modern financial challenges. As such, a bill has been introduced to provide customised tools to help distressed companies to continue their activities and protect stakeholders, notably by favouring restructuring over liquidation.
Persons exercising key functions in credit institutions are now subject to specific approval by the Luxembourg financial regulator, the Commission de Surveillance du Secteur Financier (CSSF). The CSSF recently published guidelines on the new prudential approval procedure, which applies to directors, authorised managers and persons in charge of internal control functions.
The proliferation of bitcoin users goes hand in hand with the emergence of operators providing bitcoin-related services – enabling, for instance, the exchange of bitcoins for conventional official currencies. In the absence of EU legislation to curb the risks of bitcoin use, the Luxembourg financial regulator has clarified the way in which it intends to deal with bitcoin-related service operators.
The Chamber of Deputies recently voted in favour of a law introducing a right to claim back intangible and non-fungible movable assets from a bankrupt company. The law provides greater certainty as to the consequences of the bankruptcy of a cloud services provider regarding the data that it holds, and contributes significantly to Luxembourg's strong reputation as a centre of excellence for IT outsourcing.
A bill has been introduced to Parliament that provides for a right to reclaim intangible and non-fungible movable assets from a bankrupt company. The bill is intended to allow for the recovery of data from a bankrupt provider of distance IT services or cloud computing solutions. The law will provide greater certainty as to the consequences of the bankruptcy of a cloud computing provider for the data in its possession.
Recent legislation has amended the Collateral Act. The act has always been a lender-friendly implementation of the EU Collateral Directive and, in general, it remains favourable to creditors in insolvency situations and other contexts. However, all stakeholders should be aware of the insolvency aspects of collateral arrangements, as well as the other mechanisms available for insolvency protection.
Recent legislation has amended the Collateral Act. The act has always been a lender-friendly implementation of the EU Collateral Directive and, in general, it remains favourable to creditors in insolvency situations and other contexts. However, all stakeholders should be aware of the insolvency aspects of collateral arrangements.
Parliament has passed a new law which amends the Collateral Act. It seeks to enhance the legal security of the creditor's position when taking collateral, and to ensure that such collatoral is effective and bankruptcy-remote. Among many other measures, it introduces two new means of perfecting pledges over financial assets.
Excessive risk taking, incentivised by inappropriate remuneration policies, has led to the failure of many institutions. Luxembourg's financial regulator has addressed the issue with circulars that implement the EU Third Capital Requirements Directive. They explain how the proportionality principle applies to remuneration policies and when institutions may disapply certain remuneration obligations.
Including: Initiating bankruptcy; Directors' liability; Consequences; Suspect period; Effects on employment contracts; Preferred claims.
The Supervisory Authority of the Financial Sector has implemented the European Commission's recommendation on remuneration policies in the financial sector. The regulator's circular on the subject affects members of a bank's administration and management bodies, as well as certain categories of employee whose professional activities have a material impact on the bank's risks.
The passing of the Payment Services Act has implemented the EU Payment Services Directive in Luxembourg. Payment services providers include credit institutions, e-money institutions and payment institutions - a new classification that takes in supermarkets, retailers and public transport companies. The act also makes significant changes to the supervisory structure for such services.
Banks in Luxembourg and around the world have prioritized liquidity risk and risk exposure and have taken steps to improve the quality of their risk management. The Supervisory Authority of the Financial Sector has issued a circular that implements the Committee of European Banking Supervisors' principles on liquidity risk management provisions and the prudential supervision of liquidity risk.