Luxembourg Legal Publication Regime Becomes Fully Digitalized: RESA Replaces the Mémorial C

Publication of corporate documentation in accordance with Luxembourg law¹ will become fully digitalized. Luxembourg corporate entities – including investment funds – will benefit as instant publication results in savings of time and expense. 

A bill of law,² which will enter into force in a matter of weeks, modernizes the legal publication process and also will have an immediate impact on the fund industry by creating a new requirement for Luxembourg common funds (fonds communs de placement, “FCP”) to be registered with the Luxembourg Trade and Companies Register (Registre du Commerce et des Sociétés, “RCS”). 

Digitalization and instant publication 

With effect from 1 June 2016, all publications regarding Luxembourg companies and associations will appear in electronic format (.pdf) in the newly created electronic gazette RESA (Recueil Electronique des Sociétés et Associations) hosted on the RCS website, instead of being published in the Mémorial C (Recueil des Sociétés et Associations). 

This digitalization of the legal publication regime ensures an immediate and automatic publication of all corporate documentation. RESA will be updated automatically every calendar day (including weekends and public holidays). 

Whereas currently the waiting time for publication with the Mémorial C is estimated at between four to five weeks, the date of publication in RESA will correspond to the date of filing of a document with the RCS. However, it will be possible to choose a fixed date for publication within 15 calendar days following the date of filing the document. The publication of convening notices for annual, ordinary and extraordinary general meetings will also become more efficient. Indeed, when filing the notices with the RCS the applicant can immediately book the dates for the two³ legally required publications at one time. 

In addition, certain publications will be fully automatized. For example, in connection with the appointment of a new board member, it will be sufficient to complete a form on the RCS platform and a publication in RESA will occur automatically, without the need to file any further documents for publication purposes. 

Publication in RESA, as well as inspection of certain documentation published in RESA, will be free of charge. 

Finally, the RCS has indicated⁴ that, in addition to RCS extracts issued electronically, hard copy RCS extracts, signed manually and printed on securitized paper, will be made available upon request. This change should resolve issues regarding the availability of original RCS extracts.

The Mémorial C will cease to be edited by 31 August 2016. All archives published in The Mémorial C will remain available for inspection through a link on the RCS website. 

Registration of Luxembourg FCPs 

Currently, Luxembourg FCPs do not have their own RCS identification number; their management regulations are maintained in the file of their Luxembourg management company at the RCS. The management regulations of a Luxembourg FCP managed by a foreign management company are currently not filed with the RCS and are therefore not available for inspection. 

Under the new regime, each FCP will have its own file and RCS identification number starting with the letter “K” (ex: K123). Luxembourg and non-Luxembourg management companies will be required to register the Luxembourg FCPs that they manage and file their management regulations with the RCS. 

This new registration obligation applies immediately in relation to FCPs created on or after 1 June 2016. FCPs created before 1 June 2016 must be registered with the RCS before 1 December 2016 – the management company must file with the RCS the latest coordinated version of the FCP’s management regulations and complete a form that will be made available on the RCS website. 

To facilitate the filing process, the RCS has issued a brochure setting out the applicable filing formalities. 

To highlight the importance of this bill, the CSSF has issued today a press release indicating that the bill would apply to FCPs and including a cross reference to the aforementioned brochure.

Extra fees for late filing of annual accounts 

The new law introduces a progressive scale of extra fees⁵ for late filing⁶ of annual accounts with the RCS by Luxembourg companies and partnerships.⁷ The extra fee regime will take effect on 1 January 2017. 

A gradual reform 

The new law constitutes a third step in the reform and reorganization of the RCS – following the 2002 optimization of basic services provided by the RCS⁸ and the 2009 systematization of electronic procedures, rationalization of the registration process and digitalization of the archives.⁹ Further changes to the Luxembourg corporate environment are under way. 

Footnotes 

_{1) Under Luxembourg corporate law, instruments of incorporation, certain amendments thereto and other information concerning Luxembourg companies need to be made public through an official gazette.
2) Bill of Law N°6624 reforming the publication procedure for companies and associations, adopted by the Luxembourg Parliament on 10 May 2016.
3) Convening notices for annual, ordinary and extraordinary general meetings must be deposited with the RCS and published twice in RESA (as well as in a Luxembourg newspaper), with a minimum interval of eight days, and at least eight days before the meeting.
4) RCS Circular 16/01 dated 24 March 2016 on the main amendments of the legal and regulatory provisions applicable to the trade and companies register.
5) If the annual accounts are filed with up to a one-month delay, the filing fees will amount to EUR 50 (excluding tax). If the annual accounts are filed with a delay of between one and four months, the filing fees will increase to EUR 200 (excluding tax). For the filing of annual accounts with a delay of more than four months, the RCS will charge a filing fee of EUR 500 (excluding tax).
6) The annual accounts must be filed with the RCS within one month of their approval (i.e., no later than seven months after the end of the financial year of the relevant entity).
7) Such additional fees are without prejudice to the existing criminal sanctions laid down in article 163 of the law of 10 August 1915 on commercial companies, as amended.
8) Law of 19 December 2002 on the trade and companies register and the accounting and annual accounts of undertakings.
9) Law of 20 April 2009 on the electronic filing to the trade and companies register and the Grand-Ducal Regulation of 22 April 2009.}