Our law firm has a proven track record of advising private clients on the legal, regulatory and tax structuring of their cross-border wealth, whether for the purposes of preservation and protection, growth or intergenerational transmission.
Praxio partners and lawyers have long-standing experience with major European-based family offices. They understand the specific practical needs of private clients and family offices, and deliver expert regulatory advice and guidance concerning their structures in Luxembourg. As lawyers for private clients, we believe our role is to simplify and resolve issues, and not to act as theoretical legal technicians who remain aloof from their clients’ concerns.
The law of 10 August 1915 regarding commercial companies, as amended, as well as the law of 24 May 2011 on the exercise of certain rights of shareholders at meetings general information of listed companies, as amended (the “Laws”), provide the rules concerning the holding of shareholders’
meetings and other meetings of board of directors and other corporate organs.
The Laws provide corporate organs meetings to be held by physical meeting or by any telecommunication means on the condition that such option be explicitly provided in the articles of associations of companies.
Article 1 of the Regulation authorises companies and other legal persons to hold their meetings in particular their shareholders’ meetings and boards of directors remotely. In this context, the physical attendance of members is not required.
A company may, notwithstanding any provision to the contrary in the articles, regardless of the expected number of participants in its general meeting, hold any general meeting without a physical meeting, and require its shareholders or members and other participants in the meeting to attend the meeting and exercise their rights exclusively:
By the use of one of these possibilities, the shareholder/manager will be deemed present for the calculation of the quorum and the majority.
Furthermore, notwithstanding any provision to the contrary in the articles of association, annual general meetings of companies and other legal persons may be convened on a date within six months after the end of their financial year or on any date prior to 30 June 2020.
The Regulation entered into force on 20 March 2020 with immediate effect.
You can have an access to the text of Regulation here.
In the case at hand, the taxpayer, a Canadian pension fund holding indirect interests of less than 1% of the shares in various German resident companies received dividends. The dividends were subject to a 25% withholding tax (reduced to 15% according to the double tax treaty between Canada and Germany).
The fund introduced a request for the refund of the 15% tax withheld. The request was denied by the German tax authorities.
The ECJ ruled that Germany’s tax treatment was incompatible with EU law on two grounds:
The ECJ concluded that German tax treatment of dividend distributions to pension funds infringed EU law. The court observed that the higher withholding tax burden on a cross-border payment compared to the combined withholding tax and corporate income tax liability resulting from a payment to a domestic pension fund resulted in less advantageous treatment. Indeed both pension funds are subject to two different taxation regime in respect of dividends received. In the case of a non-resident pension fund, the tax on income from capital on such dividends becomes definitive. Conversely, dividends paid to resident pension funds are incorporated in the pension fund’s balance sheet, which is subsequently used to determine the taxable profit, on which corporation tax will be charged at the rate of 15%. When that tax
becomes payable, the tax on income from capital can be set off in its entirety against the amount due.
As a consequence, non-resident pension funds are treated less favourably than resident pension funds which constitutes a restriction on the free movement of capital. Furthermore, the Court noted that resident and non-resident pension funds are in a comparable situation. the German legislation does not only provide for different tax regimes depending on the residence of the fund, but its application may also lead to the full exemption of the dividends paid to resident funds.The German courts must consider whether the Canadian fund added the dividends received to its pension reserve, either voluntarily or based on Canadian law. If the fund did so, the ECJ stated that there was no justification for the difference in treatment.
The Court then examined whether the restriction can be justified by overriding reasons in the public interest. The Court considered and rejected possible justifications based on the need to ensure a balanced allocation of taxing rights, the need to safeguard the coherence of the German tax system, and the need to ensure the effectiveness of fiscal supervision.
This clause allows a derogation from the prohibition on all restrictions existing on December 31, 1993 to the free movement of capital between Member States and third countries, where such capital movements involve direct investment, establishment, the provision of financial services or the admission of securities to capital markets. In the case at hand, the ECJ ruled that since the fund held interests of less than 1% in the German companies, it held a portfolio investment rather than a direct investment and portfolio investments do not fall within the scope of the standstill clause.
On 8 August 2019, Bill 7467 (the “Bill”) was presented to the Luxembourg Parliament. The object of this Bill consists of amending Law of 12 November 2004 on the fight against money laundering and terrorism financing (the “AML Law”) in line with the provisions of the EU Directive 2018/843 of 30 May 2018 (the “5th AML Directive”) (which amends Directive (EU) 2015/849 of 20 May 2015 (the “4th AML Directive”) on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing and Directives 2009/138/EC and 2013/36/EU).
The Bill was approved on 26 July 2016 by the Luxembourg Government Council, which announced that the implementation of the 5th AML Directive into national legislation was one of the Governement’s priorities. According to the press release of the government’s meeting, the implementation into domestic law of the 5th AML Directive will strengthen the measures already in force to fight against money laudering and terrorist financing.
In addition to the planned adaptations in the AML Law, other national laws relating to the organisation of regulated professions will be amended by the Bill, such as:
The main purpose of the Bill is to strengthen the measures for the combat against money laundering and terrorist financing within the national legal framework based on the precise recommendations of the Financial Action Task Force (FATF). FATF is the inter-governamental body setting the standards and promoting the effective
implementation of legal, regulatory and operational measures to combat money laundering, terrorist financing and other related threats to the integrity of the international financial system.
The Bill focuses on several new provisions to be implemented. Firstly, it proposes to extend the scope of the AML Law in order to include service providers engaged in exchange services between virtual currencies as well as custodian wallet providers. Furthermore, it also intends to lower the thresholds to identify the purchasers of prepaid cards in order to limit their use. As such, the changes proposed in the Bill aim to prevent the risks associated to the use of virtual currencies and allow a more efficient monitoring of the use of such currencies.
Secondly, the Bill strengthens and harmonizes the treatment of third countries identified by the European Commission as “high-risk countries”. Indeed, the Bill proposes to improve the safeguards for business relationships and transactions to and from high-risk third countries. As such, when dealing with high-risk cases, the Bill requires relevant professionals to apply enhanced due diligence measures to manage and mitigate risks taking into account recommendations expressed by the FATF, especially in cases where such recommendations do not have equivalent provisions in the EU Directives.
This is essential in order to reduce legal uncertainty for professionals which may result from divergent interpretations regarding their obligations in terms of anti-money laundering and financing of terrorism.
Thirdly, the provisions proposed by the Bill also have an impact on the supervisory authorities and self-regulatory bodies whose powers are currently only partly harmonised. Indeed, the Bill introduces further harmonization of the role of these authorities and bodies which fulfil similar tasks required by law and international standards in the fight against money laundering and terrorist financing. Considering the importance of cross-border activities in Luxembourg, this Bill aims at strengthening the capacity of the supervisory authorities to cooperate on an international basis with their foreign counterparts by proposing a legal framework in accordance with the principles established by Directive (EU) 2018/843 and the FATF recommendations in this regarddar.
This Bill is part of the continuous evolution of the preventive framework for the fight against money laundering and terrorist financing in the Grand Duchy of Luxembourg.
Pursuant to the IV and V AML Directive, Luxembourg adopted a central register in which ultimate beneficial owners (“UBO”s) of concerned entities registered with the RCS shall be identified.
Most of the Luxembourg entities registered with the RCS are concerned. It applies to all Luxembourg civil and commercial companies including limited liability companies (S.à r.l.), joint-stock companies (S.A.), common limited partnership (S.C.S.) and partnerships limited by shares (S.C.A.). The RBE requirement to register does not apply to (European) economic interests groupings, Luxembourg branches of foreign entities and certain types of entities which are in fact rarely used in Luxembourg, including temporary commercial companies (sociétés commerciales momentanées) and to participation commercial companies (sociétés commerciales en participation).
A UBO is a natural person who ultimately owns or controls the legal entity and/or natural persons on whose behalf a transaction is executed or the business relationship is entered into. Natural persons behind intermediaries also qualify as UBOs.
In the case of companies, this includes any natural person who ultimately owns or controls the company through direct or indirect ownership of a sufficient percentage of the shares or voting rights or ownership interest in that company, including through bearer shareholdings, or through control via other means. A person may be considered as a UBO based on the ownership criterion and/or on the control criterion.
A direct or indirect shareholding of more than 25% held by a natural person in a Luxembourg company is an indication that the ownership criterion is met. This does not mean that a person ho owns a shareholding of 25% or less is automatically not a UBO, since that person may exercise actual control via other means.
A case by case analysis is then needed to determine who is UBO.
This does not mean that a person who owns a shareholding of 25% or less is automatically not a UBO, since that person may exercise actual control via other means. A case by case analysis is then needed to determine who is UBO.
If, after having exhausted all possible means and provided there are no grounds for suspicion, no UBO can be identified, or if there is any doubt whether the persons identified are UBOs, information has to be provided with respect to the natural person(s) holding the position of senior management official (dirigeant principal).
Listed Companies must only file the name of the regulated market on which their securities are admitted to trading.
What are the obligations to which Luxembourg entities will be subject?
The registration must be done electronically via www.lbr.lu. It shall include supporting documents that will not be available for consultation.
Luxembourg entities will have to collect information, file it with the RBE, keep it up to date and disclose to national authorities upon request.
The registration should have place within one month following the moment when the concerned entities have become or should have become aware of the event or circumstances requiring the registration with the RBE.
The information will be kept in the RBE during a period of five years after the date on which the relevant Luxembourg entity has been deregistered from the RCS.
The registration fees are 15 €. However, the subscriptions made until the end of the transition period (1st September 2019) are free of charge.
Any person will have a right to access such information (except for the exact private or professional address and identification number of the UBOs) without having to demonstrate a legitimate interest. This results from the 5th EU antimoney laundering Directive, which was adopted in May 2018 and partially implemented in Luxembourg through the RBE Law. The information will be freely available via www.lbr.lu.
However, a Luxembourg company required to file information with the RBE may request that access to such information be limited exclusively to the national authorities (for instance the Luxembourg tax authorities), credit and financial institutions, as well as notaries acting in their professional capacity. Such request must be duly motivated and addressed to the RBE manager (the Luxembourg Business Registers which also maintains the RCS). The limitation of access will be granted only in exceptional circumstances, where access to information available in the RBE could expose the UBO in question to a disproportionate risk, a risk of fraud, kidnapping, blackmail, violence, intimidation, or in case the UBO is either a minor or legally incapable.
Luxembourg professionals such as lawyers and banks will have 30 days to notify to the RBE manager if they determine that information filed in the register is incomplete or erroneous.
Failure to comply with the obligations specified in the RBE Law, is subject to a fine between EUR 1,250 to EUR 1,250,000 for legal entities and their representatives, as well as for the UBO who has failed to provide all necessary information to the concerned entity.
An upcoming law establishing a register for UBO of fiduciary arrangements is yet to be finalised ( the draft law n°7216B).
Such registre des fiducies is subject to largely the same regime as the RBE. Fiduciary agents (such as trust companies) subject to any fiduciary arrangements need to obtain, hold, keep up-to-date and upload information in the registre des fiducies.
According to the bill of law of August 2018, the information to be filed must comprise:
As an alternative to the identification of each beneficiary on an individual basis, it is possible to identify a class of
beneficiaries.
The authorities (the CSSF and administration de l’enregistrement et des domaines) supervise the performance of these new requirements for fiduciary agents and may impose administrative sanctions, including a fine or a temporary prohibition on exercising a professional activity
IMPRESSUM Praxio Law & Tax is a Luxembourg business law firm with legal, regulatory and tax experts. We advise businesses with respect to all issues and questions related to Tax structuring, Merger & Acquisition, Business Law, Corporate Finance, International Tax Structuring, Tax Compliance, Tax Litigation, Investments Funds, Banking Finance/Capital Markets. Our core markets are private equity and asset management, venture capital, capital markets, real estate, high net wealth and family offices
