As previously developed in the first and second parts on the new Luxembourg mobility law, the transposition of the Mobility Directive should have been realised before 31st January 2023. Some Member States like Germany or The Netherlands have transposed the Directive in time. France and Belgium were a little late in the game by transposing the Directive into their national law in May and June 2023 respectively. The transposition was finally realised in the Grand Duchy in February 2025, effective 1st of April.
The fact that Luxembourg was the biggest latecomer already created a quite long intermediary transitional period resulting from the fact that other countries were implementing their process through th e Directive requirements whereas the Luxembourg notaries and authorities were not prepared to produce the requested documentation. Such situation was resulting in some mismatches but even if Luxembourg players were still applying their usual process, notably for conversions, it was possible to meet the requirements of the other European countries.
Now that the transitional period will end, the Law will only apply to European cross-border mergers, demergers and conversions (all referred as “Restructuring”) for which the plan (merger, demerger or conversion, as the case may be), are published on or after 1st April 2025, meaning that all Restructurings for which the plan was published beforehand (meaning the process was started) will remain subject to prior rules. Still working on the old process and new Directive requirements in order to realise the effectiveness of the Restructuring in both countries.
The practical aspects mainly lead us to further develop the new roles assigned to two majors Luxembourgish players in corporate law:
the notary(ies) who become somehow the guardian of the legality of the Restructuring: being now additionally in charge of the control of all procedures and formalities required under the Law, resulting in either:
the issuance of a preliminary certificate (for each Restructuring involving a Luxembourg company), or
a confirmation stating that all legal requirements have been fulfilled if the company that results from the Restructuring is subject to Luxembourg law.
the Luxembourg Trade and Company Register (“RCS”): which must communicate to its foreign counterpart the publication of the accomplishments of the Restructuring.
Taking the conversion of a French company into a Luxemburgish entity as an example. France, the company's country of origin, transposed the Directive already in 2023, while Luxembourg, the country of destination, only just adopted the Law.
The conversion work was first carried out in France applying French corporate rules, formalities and procedures arising from the Directive and allowing to obtain the preliminary certificate from the Greffe du Tribunal, which was allowing the conversion process. Then the notarial deed was passed in Luxembourg and taking into account that the Directive was not applicable yet, the notary only delivered the notarial deed at a first stage.
However, beyond the approval of the conversion by the shareholder in front on the Luxembourg notary (evidenced by the notarial deed) and the registration of the conversion with the RCS, the French legal authorities required to be provided with:
a confirmation from the Luxembourg notary stating that all legal requirements have been fulfilled in Luxembourg; and
the information directly transferred by the administrator of the RCS stating that the company was registered with the RCS, through the Business Register Interconnection System ("BRIS"), the European Central Platform which connects the business registers of each Member State,
in order to complete the conversion (and then, deregister the company from the French register), in accordance with the Directive.
Neither the notary nor the RCS being under a legal obligation to issue such confirmation, it was necessary to find a way to obtain equivalent documents which could be accepted by the French authorities in order to obtain the deregistration of the entity in France. After discussions the RCS accepted, without going through the BRIS process, to issue a letter directly to the Greffe du Tribunal in France and the notary issued a certificate confirming that under Luxembourg laws all requirements were met.
The Law being now applicable for any process started as from 1st April 2025, these issues should gradually disappear as most of the European countries transposed the Mobility Directive and the formalism required should be the same in both countries.
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