Luxembourg implements the European digitalisation directive

Overview

The Digitalisation Law provides in this context a legal framework that shall enable the use of digital tools and processes in Luxembourg company law by modification of:

the Luxembourg civil code (the “Civil Code”);
the law of 9 December 1976 on the organisation of the notarial profession, as amended (the “Notarial Law”);
the law of 10 August 1915 on comercial companies, as amended (the “Company Law”); and
the law of 19 December 2002 on the register of commerce and companies (the “RCS”) and the accounting and annual accounts of companies, as amended (the “RCS Law”).

Authentic instruments in electronic format

Pursuant to the new article 1371-1 of the Civil Code, deeds and authentic instruments as well as copies thereof may be drawn up in electronic format under the conditions and forms laid down by the laws and regulations, provided that:

the person who received or drew them up can be duly identified;
the technical process used to draw them up guarantees the integrity of their content from the moment when they were created in their final form; and
the technical process used to create them enables them to be represented in a manner intelligible to human beings.

Deeds and authentic instruments in electronic format and copies thereof in electronic format shall be valid as originals provided they meet the aforesaid requirements.

Process and electronic notarial exchange platform

With the exception of wills, and notwithstanding any provisions to the contrary, all notarial deeds may be received, subject to the agreement of the notary, in electronic format in accordance with the provisions of the Notarial Law.

For the drawing up of deeds and authentic instruments, the notaries are required to use the notarial electronic exchange platform provided by the Chambre des Notaires; otherwise, the concerned document is null and void. This electronic notarial exchange platform is a computer system enabling notaries, inter alia, to draw up authentic instruments in electronic format, collect the parties' electronic signatures, obtain data from public authorities, and transmit data to public authorities. The notarial electronic exchange platform shall guarantee the integrity and confidentiality of the data that is processed on it.

The deed may be drawn up and signed in electronic format in the presence of the parties or remotely via the said notarial electronic exchange platform, the access to which is managed by the notaries under their responsibility. When drawing up a document in remote electronic format, the notary may require the use of videoconferencing or other technological means offering a real-time audiovisual connection.

For the instruments of incorporation of a société anonyme, a société en commandite par actions, or a société à responsabilité limitée, the notary may refuse to draw up a document in remote electronic format only where the company's share capital of the company includes a contribution in kind or where there is reason to suspect falsification or usurpation of identity or non-compliance with the rules relating to the legal capacity of a party or to the power of representation of a company by a third party to the deed. The notary may then require the physical presence of that party in order to remove the suspicion. The requirement of physical presence shall not be systematic.

For documents drawn up in electronic format and signed remotely, the notary may require the parties to use a qualified electronic signature within the meaning of Article 3(12) of Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC.

The notaries are responsible that the parties signing a deed in electronic format use a process that enables them to affix an electronic signature or a signature visible on the notary's screen.

Authentic instruments in electronic format are entered in the register (répertoire) with the words "electronic authentic instrument" and are also archived in paper format, bearing the notary's seal and signature with the express mention that this document replaces the electronic original.

Incorporation of companies online

A société anonyme, a société en commandite par actions or a société à responsabilité limitée may forthwith be incorporated by way of notarial deed in electronic format without physical appearance in accordance with the provisions of the Notarial Law. The incorporation online may be carried out by means of standard articles of association made available free of charge by the Chamber of Notaries.

The capital may be paid up in cash online into an account opened in the name of the company to be incorporated with a credit institution established in a EU Member State by means of a widely available online payment service which can be used for cross-border payments, which allows the identification of the person making the payment and which is provided by a financial institution or a payment service provider established in a EU Member State. Proof of payment may also be provided online.

Registration of branches

Pursuant to the amended RCS Law, branches set up in the Grand Duchy of Luxembourg by commercial and civil companies, economic interest groupings and European economic interest groupings under Luxembourg law as well as branches set up in the territory of a EU Member State by companies incorporated under listed in Annex II to Directive (EU) 2017/1132 of the European Parliament and of the Council of and of the Council of 14 June 2017 on certain aspects of company law (such as sociétés anonyme, sociétés en commandite par actions or sociétés à responsabilité limitée) are required to register with the RCS to obtain a specific file and registration number.

Branches set up in the Grand Duchy of Luxembourg by commercial and civil companies, economic interest groupings and European economic interest groupings that have previously been registered with the RCS are given a registration number by the administrator of the company register. The administrator will compile a file for them, using the information contained in the contained in the RCS database.

Entry into force