Harmonisation in sight for cross-border mergers, divisions and migrations
With the Directive (EU) 2019/2121 of the European Parliament and of the Council of 27 November 2019 amending Directive (EU) 2017/1132 as regards cross-border conversions, mergers and divisions, the so-called "Mobility Directive", the Luxembourg legislator is working on its transposition into national law. On 27 July 2022, the draft law was published (draft law n°8053/00 amending 1) the amended law of 10 August 1915 on commercial companies 2) the amended law of 19 December 2002 on the register of commerce and companies as well as the accounting and annual accounts of undertakings for the purpose of transposing the Mobility Directive).
The new provisions on European cross-border mergers and divisions have been isolated in a specific section of the Luxembourg company law by introducing the new concepts of "European cross-border merger" and "European cross-border division" to delimit their scope. The choice was therefore made to create a special regime derogating from the general law on both internal and cross-border mergers and divisions. As regards cross-border conversions (cross-border transfers of registered offices), the concept of "European cross-border conversion" has been introduced.
In addition to the transposition of the new European provisions, and still with a view to giving Luxembourg company law the means to withstand regulatory competition from other Member States and other attractive company law jurisdictions, this draft law also intends to open up both internal and cross-border mergers, divisions and contributions to special limited partnerships (société en commandite spéciale (SCSp)). SCSp's were originally excluded from the benefit of these operations because of their lack of legal personality. However, their legal status allows them to enjoy all the attributes that legal personality confers, i.e. a company name, a domicile, a nationality and a certain form of assets. In order to further enhance the attractiveness of this corporate form, the legislator has deemed it appropriate to give it the possibility of carrying out these reorganisation operations without first going through a futile transformation into a limited partnership (société en commandite simple (SCS)), which itself enjoys legal personality. This modification should reinforce the attractiveness of the SCSp, which has already met with great success since its creation in Luxembourg.