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.
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 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 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 Luxembourg Stock Exchange (LuxSE) recently introduced a new specific platform for green financial instruments: the Luxembourg Green Exchange (LGX). Although joining the LGX is optional and green securities can be listed on the LuxSE and recognised as green regardless of whether the issuer chooses to join the LGX, having securities admitted to the LGX will increase investor confidence as to their green nature.
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 Luxembourg Bankers' Association recently signed the new Collective Bargaining Agreement (CBA) for Bank Employees 2018-2020 with the Luxembourg Association of Bank and Insurance Employees and the trade unions representative of the financial sector. Given the number of changes and their level of impact, the CBA will be introduced gradually over the next three years.
Under the Labour Code, part-time employees may exceed the daily and weekly work limits set out in their employment contracts without necessarily qualifying for overtime. However, certain conditions apply. The Court of Cassation recently considered the legal rules which apply in this regard.
A new bill that was recently submitted to the Chamber of Deputies aims to modify several articles of the Labour Code which concern social elections in order to make certain administrative processes paperless within the context of social dialogue. According to the bill, making certain processes paperless will result in a clear simplification of administrative tasks for managing directors and the Inspectorate of Labour and Mines.
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.
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 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.
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.