Dissolution / Voluntary Liquidation in Luxembourg – Company Law / Commercial Law



Luxembourg: Dissolution / Voluntary Liquidation in Luxembourg

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This guide provides an overview of the two options identified in Luxembourg company law1 for the voluntary liquidation of an unregulated Luxembourg company, highlighting the main differences between the two procedures.

Terminology

In Luxembourg law, the notion of “dissolution” refers to the decision to terminate the legal existence of the company, which, according to the procedure adopted by the shareholder (s), may also be followed by the “liquidation” of the company. society. Liquidation refers to the process by which the company’s assets are realized, its liabilities settled, and any available residue distributed to shareholders.

The two types of Luxembourg voluntary liquidation

Company law identifies two types of procedures:

  • The “long” dissolution (that is to say the dissolution followed by the liquidation)
  • Simplified or “shortened” dissolution (ie dissolution without liquidation)

Generally, but not definitively, the assets of a company must exceed its liabilities in order to follow a voluntary liquidation procedure.

Long dissolution with liquidation

  • The long procedure requires three shareholders’ meetings.
  • All annual financial statements due at the time of liquidation must be approved by the shareholders and filed with the Luxembourg trade register (RCS) before the dissolution and the start of the liquidation.
  • During the first general meeting, which must be held in the presence of a Luxembourg notary, the shareholder (s) decide to dissolve the company (i.e. to end its legal existence) and to appoint a liquidator. A currently dated unaudited balance sheet of the company is filed.
  • The liquidator represents the company as soon as it is dissolved and the directors are dismissed from their functions. If a legal person is appointed as liquidator, a representative of the liquidator, who must be a natural person, must be appointed in the notarial deed. The notary will file the details of the appointment of the liquidator (with description of his powers) with the RCS and the notarial deed will be published in the Luxembourg electronic register of companies and associations (or RESA).
  • The liquidator is responsible for carrying out the liquidation and is usually invested with broad powers to realize the assets and settle the liabilities of the company.
  • On the basis of the balance sheet used at the first general meeting or, where applicable, an updated balance sheet, the liquidator may make one or more early liquidation distributions, provided that he is satisfied that the company will be in able to meet all of its debts, following any distribution.
  • When the liquidation is complete, that is, once the assets have been realized and all liabilities, actual and contingent, have been settled, the liquidator prepares a liquidation report, supported by liquidation accounts, which are tabled at a second general meeting.
  • During this second meeting, the shareholder (s) appoint a Luxembourg auditor to report on the liquidation.
  • The liquidation auditor examines the liquidator’s report and accounts and, if satisfied, issues an audit review report, which is tabled at the third general meeting.
  • During this final general meeting, which may (but not necessarily) take place in the presence of a Luxembourg notary, the liquidation is closed and the liquidator and the auditor are released. The shareholder (s) shall specify where the books and records of the company will be kept for a period of five years after the close of the liquidation.
  • The notice of conclusion of the liquidation is filed with the RCS and the liquidation becomes final from this second publication and the company is deemed to no longer exist except for certain passive powers.
  • The duration of the process depends (among other things) on the assets and liabilities of the company at the opening of the liquidation, but the liquidation can usually be finalized within a few months.

Abridged dissolution

  • This procedure requires a single shareholders’ meeting, held in the presence of a Luxembourg notary. At this meeting, the sole shareholder declares that the company has ceased all its commercial activities and that all the responsibilities of the company (including the costs of dissolution) have been paid or duly foreseen. The sole shareholder irrevocably undertakes to pay any contingent or other unknown or unpaid liabilities of the company. An unaudited balance sheet of the company which is currently dated is submitted to the notary attesting to the financial situation of the company and the absence of civil liability.
  • As soon as the act of dissolution is signed before the notary, the company ceases to exist. Dissolution entails the full transmission of all the assets and liabilities of the company to the sole shareholder, as of right. The dissolution is not accompanied by a liquidation process.
  • Prior to dissolution, all annual financial statements of the company due at the time of dissolution must be approved by the shareholder and filed with the RCS.
  • As a prerequisite for dissolution, the company must obtain and provide the Luxembourg notary with three certificates, obtained from the Luxembourg authorities, confirming that the company has fulfilled its obligations relating to the payment of social security contributions as well as direct and indirect taxes. . Authorities can only issue certificates if all company tax returns (direct and indirect) due at the time of application have been filed, assessed and all amounts due, including advances, have been paid.
  • Pursuant to the provisions of the Luxembourg Civil Code, a creditor of a dissolved company may, within 30 days of the publication of the notarial deed of dissolution of the company, ask the president of the district court, sitting in emergency, to order the lodging of a surety. provided for his debt. The court can only dismiss the claim if the collateral is not needed given the net worth of the sole shareholder.

Key differences

  • The simplified procedure can only be implemented if there is only one shareholder.
  • Under the simplified procedure, dissolution is not followed by a liquidation process. The assets of the company are not realized but are transferred, as of right, to the sole shareholder. If an unknown or unpaid liability materializes after the dissolution of the company, the sole shareholder will be liable.
  • As part of the detailed procedure, the liquidator must deal with all actual and contingent liabilities of the company and settle or make adequate provisions before distributing the remaining assets and closing the liquidation. Otherwise, he may be held responsible for any fault in the execution of his mandate, in accordance with the provisions of company law.
  • The short procedure can be faster than its long counterpart. However, the speed of the simplified dissolution largely depends on how quickly the company can obtain the three mandatory certificates.
  • Dissolution in short form may also be more cost effective than procedure in long form.

Footnote

1. The Luxembourg law of August 10, 1915 on commercial companies, as amended.

Originally posted Mar 25, 2021

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought on your particular situation.

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