The law of 14 July 2023, transposing Directive (EU) 2019/1151 20 June 2019 amending Directive (EU) 2017/1132 (the "Directive") as regards the use of digital tools and processes in company law (the "Law") was published in the Luxembourg Official Gazette (Journal Officiel) on 18 July 2023 and entered into force on 1 August 2023.
The Law introduces a legal framework for establishing authentic instruments in electronic form (except for wills), as well as a notarial electronic exchange platform, as part of the national digitisation strategy of the Grand Duchy of Luxembourg and the digitalisation of the notarial profession.
1. Scope of application
The main purpose of the Law is to facilitate the incorporation of companies by the use of digital technologies. The Law creates the possibility for the parties to pass notarial deeds in electronic form, with or without physical appearance of the parties.
The Law will enable:
the online incorporation of companies;
the improved exchange of information via the system for the interconnection of commercial and company registers; and
easier access to information relating to branches.
2. Notarial deeds and instruments in electronic form
Parties will now be able to pass notarial deeds in electronic form, which was already available for documents under private seal. This possibility applies broadly to all "documents of title and authentic instruments", except for wills, which require the physical presence of the testator. Examples of the deeds in electronic form include various modifications to the articles of association, i.e. increase of decrease of the company’s capital, change of company’s form, etc.
The documents in electronic form will have the same evidentiary value as documents in paper form.
The Law allows, in particular, companies like public limited company (société anonyme, “SA”), limited liability company (société à responsabilité limitée, “SARL”) and partnership limited by share (société en commandite par actions, “SCA”) to be incorporated by electronic notarial deed without the physical appearance of the parties, whereas previously these companies needed to be constituted by notarial deed in the presence of the founders or their proxy holders.
For online incorporation, the parties can use standard articles of association provided by the Chamber of Notaries.
Authentic instruments in electronic form can be drawn up either in the presence of the parties or remotely.
The following procedures would usually be followed when an authentic instrument is adopted remotely:
the parties connect to the notarial electronic exchange platform;
identification of the parties including by way of audio-visual means;
use of electronic signatures (e.g. qualified electronic signature) by the notary and the founders;
parties can also arrange for an online payment for cash contributions to the account opened by the company that is undergoing the formation process.
The notary can refuse to draw up a notarial deed for the constitution of SARLs, Sas or SCAs remotely in these two cases specified by the Law:
when the notary has reasons to suspect identity fraud, non-compliance with the rules on the legal capacity of a party or the power of representation of a company by a party to the authentic instrument; and
when the company's share capital is fully or partially paid up in kind.
3. Registration of branches
The Law introduces requirement for Luxembourg and EU branches of companies governed by Luxembourg law to have a separate registration number. Such branches are assigned a registration number by the administrator of the trade and companies register (“TCR”), who creates an individual file for them, using the information contained in the TCR database.
This change will be implemented without any intervention by the Luxembourg company, based on the information available to the TCR. Therefore, this new obligation will not impose any direct burden on the Luxembourg company concerned.