Established in 1923 - Wildgen, Partners in Law...Taking into consideration the different Luxembourg...
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Transcript of Established in 1923 - Wildgen, Partners in Law...Taking into consideration the different Luxembourg...
Established in 1923
Copyright © 2013 | Wildgen, Partners in Law
Wildgen, Partners in Law, whose origins go back to
the 1920’s, is today one of the largest and best-
known law firms in Luxembourg.
Since the 1980’s, Wildgen has focused its activity on
business, corporate, tax, and financial law,
undergoing significant development together with the
upsurge in the Luxembourg financial market.
While remaining fully independent, Wildgen boasts
a wide network of foreign correspondents and
contacts, and collaborates with experts worldwide.
Wildgen is fully-committed to the success of its
clients and stresses the values of the profession in a
modern world: a sense of ethics and integrity, pro-
activity and responsiveness, a multilingual and
multicultural staff, and the utmost flexibility in meeting
our clients needs and adapting to the ever-changing
market.
Wildgen offers a wealth of experience and a strong,
long-standing track record in advising on cross
border transactions.
Over the years, Wildgen has acquired a strong client
base in Europe, C.I.S, U.S.A, Middle East, and Asia.
It represents a number of multi-national corporate
institutions, investment (mutual) funds, pension
funds, private equity funds, leading banking and
financial institutions, and insurance service providers.
Wildgen’s lawyers assist clients with regard to all
legal matters in the following practice areas:
Administrative Law, Aviation and Maritime,
Banking and Financial Law, Capital Markets,
Corporate Finance, Corporate Law, Employment
and Pensions, Insurance Law, Investment Funds,
IP/TMT, Islamic Finance, Litigation and
Arbitration, Real Estate, Securitisation, Tax,
Private Equity and Venture Capital.
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Table of Contents
PRACTICAL AND LEGAL IMPACTS OF THE NEW LUXEMBOURG AIFM LAW ...................4
NEW TAX TREATIES VOTED BY THE LUXEMBOURG PARLIAMENT ................................6
NEW LAW ON INTANGIBLE AND NON-FUNGIBLE MOVABLE ASSETS OF BANKRUPT
COMPANIES ...................................................................................................................9
ADMINISTRATIVE COOPERATION IN THE FIELD OF TAXATION ...................................10
INTRODUCTION OF A DOMAIN NAME FREEZING PROCEDURE BY THE .LU DOMAIN
NAME REGISTRY ...........................................................................................................11
WILDGEN‘S NEWS........................................................................................................12
CONGRATULATIONS TO OUR NEWLY-PROMOTED ......................................................13
LUXEMBOURG BIOTECH VENTURE LOUNGE AWARDS ................................................14
NEW BROCHURE ..........................................................................................................14
UPCOMING EVENT .......................................................................................................15
Copyright © 2013 | Wildgen, Partners in Law
Practical and Legal Impacts of the New
Luxembourg AIFM Law
Funds Practice Group – July 2013
Implementation of the Directive 2011/61/EC of the European Parliament and of
the Council of 8 June 2011 on alternative investment fund managers into
Luxembourg law.
As announced within our previous newsletter as of 12 September 2012, Luxembourg
has implemented the Directive 2011/61/EC of the European Parliament and of the
Council of 8 June 2011 on alternative investment fund managers (the “AIFM
Directive”).
The draft Law n°6471 has finally been adopted by the Luxembourg parliament on 12
July 2013 (the “Law”) and has been published on 15 July 2013 in the Luxembourg
Official Gazette (Mémorial). It comes into force the day of its publication in line with the
official transposition deadline set on 22 July 2013 in the AIFM Directive.
Amendments to Luxembourg Laws
The Law foresees major amendments to several existing Luxembourg laws; the main
amendments in particular are going to have an impact on the Luxembourg financial
centre and will affect:
The Law of 10 August 1915 on commercial companies, as amended (the
“Company Law”),
The Law of 15 June 2004 relating to the company in risk capital (“SICAR”), as
amended (the “SICAR Law”),
The Law of 17 December 2010 concerning Undertakings for Collective
Investment (“UCI”), as amended (the “UCI Law”),
The Law of 13 February 2007 on Specialised Investment Funds (“SIF”), as
amended (the “SIF Law”) – which was already amended in March 2012 in
order to implement few elements of the AIFM Directive,
The Law of 5 April 1993 on the financial sector, as amended (the “PSF Law”),
The Law of 13 July 2005 on institutions for occupational retirement as pension
savings company with variable capital and pension savings associations
(“SEPCAV/ASSEP”), as amended (the “SEPCAV/ASSEP Law”).
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The New Regime and its consequences on Luxembourg laws
In principle the Law follows the main pillars of the AIFM Directive. Pursuant to the
regime introduced by the AIFM Directive, all AIFMs to AIFs with assets exceeding the
above mentioned thresholds introduced by the Law (and being exactly the ones
already provided for by the AIFM Directive) need to be authorised as AIFMs. The
detailed requirements governing the authorisation and supervision as well as ongoing
organisational requirements of AIFMs have been defined by the Law, including the
details relating to the European passport.
Taking into consideration the different Luxembourg laws, amended by the Law, and to
summarise in brief, the regulated vehicles such as SIFs, SICARs and UCIs governed
by Part II of the UCI Law with more than one investor qualify as AIFs, subject to the
specifications detailed in the amendments to the respective laws and regulations
applicable to said entities. With regard to SOPARFIs, - as stated above - a qualification
as an AIF will depend on the structural details of each of such unregulated vehicle.
By amending the Luxembourg law of 5 April 1993 on the financial sector, the Law
(laying down the mandatory appointment of an independent depositary by the AIFs)
provides a new category of professional of the financial sector (“PSF”), that will enable
non-credit institutions to act as a depository for AIFs whereby these AIFs need (inter
alia) to be closed-ended (5 years period) and will not (in general) be allowed to invest
in financial instruments.
By amending the Company Law, the Law:
1. brings up-to-date the existing partnership (Société en Commandite Simple,
the “SCS”) in view of making it more appealing to investors who are
familiarised with the UK partnership pattern, and
2. introduces a new company form, the new special limited partnership (Société
en Commandite Spéciale, the “SCSp”) which will allow more flexibility. Thus,
Luxembourg now follows countries like Scotland, England, Jersey and
Guernsey which already provide the private equity market with such a kind of
tax transparent and tailor-made vehicle.
If not already done, any concerned market players will need to analyse their current
structures in order to implement this new regime.
Impact of the Law on the main Luxembourg laws as well as its practical consequences
have been summarised in a dedicated brochure, viewable on our website and available
on demand.
The article is available on our website
Copyright © 2013 | Wildgen, Partners in Law
New Tax Treaties voted
by the Luxembourg Parliament
Laurent Mahaux (Director) - July 2013
Draft law 6501 has been voted by the Luxembourg Parliament. This Law of 14 June
20131 implements new tax treaties with:
Germany,
Kazakhstan,
Macedonia,
Seychelles,
Tajikistan,
Laos, and
Sri Lanka,
and protocols to existing tax treaties with:
Canada,
South Korea,
Italy,
Malta,
Poland,
Romania,
Russia, and
Switzerland
These new instruments contain provisions for the exchange of information that are in
line with Article 26 of the OECD Model Convention.
New tax treaty between Germany and Luxembourg
Under the new treaty, the reduced withholding tax for dividends is lowered to 5% (10%
under the current treaty) when the parent company holds 10% of the share capital of
the paying subsidiary. The standard rate of 15% for portfolio and partnership dividends
remains unchanged. For interests, the treaty provides for a 0% withholding rate
whereas royalties are subject to a reduced withholding tax of 5%.
1 Loi du 14 juin 2013 portant approbation de conventions fiscales et prévoyant la procédure y applicable en matière d'échange de
renseignements sur demande (Mémorial A, n°114, p. 1696) http://www.legilux.public.lu/leg/a/archives/2013/0114/a114.pdf#page=2
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The new treaty attributes the taxing rights to the source State for capital gains on
disposal of shares of Real Estate companies deriving more than 50 % of their value
directly or indirectly from immovable property situated therein.
Investment funds such as SICAV, SICAF or SICAR are expressly entitled to treaty
benefits, namely they can take advantage from the reduced withholding tax rate for
interest and dividends. Contractual investment funds such as FCP are also entitled to
treaty benefits provided that they are held by persons resident in the country where the
FCP is established.
The Luxembourg tax authorities have issued a newsletter on this tax treaty following
the publication of the approving law2.
Protocol to the tax treaty between Luxembourg and Russia
The protocol provides beneficial withholding tax rates which should place Luxembourg
on the short list for Russian investors or investments located in Russia, i.e.:
Dividends
Max. 5% (10% under the current treaty) withholding tax when the parent
company, holds 10% of the share capital of the paying subsidiary with an
investment of at least EUR 80,000 or the equivalent in ruble
Standard withholding tax of 15% in other cases.
NB: in Luxembourg, a domestic full withholding tax exemption on dividends
distributed to a Russian company should generally apply under domestic law
subject to participation threshold and holding period requirements
Interests
0% withholding tax
Royalties
0% withholding tax
2 Available on http://www.impotsdirects.public.lu/archive/newsletter/2013/nl_15072013/index.html
Copyright © 2013 | Wildgen, Partners in Law
The treaty attributes the taxing rights to the source State for capital gains on disposal
of shares of Real Estate companies deriving more than 50 % of their value directly or
indirectly from immovable property situated therein.
The provisions of the new tax treaty between Germany and Luxembourg and of the
protocol to the tax treaty between Luxembourg and Russia should in principle be
applicable as from 1 January 2014.
For more information, please refer to our dedicated page, regularly updated with
the latest information on the Luxembourg tax treaty network.
The article is available on our website
New law on intangible and non-fungible movable
assets of bankrupt companies
Emmanuelle Ragot (Head of IP/TMT) - June 2013
UPDATE - The Law of 9 July 2013 which modifies the Article 567 of the Code of
Commerce and which has a provision in relation to cloud computing has been
published in Mémorial A 1241 of 18 July 2013.
This Law enters into force on 22 July 2013.
This Law lays down a right to claim back intangible and non-fungible movable assets
from a bankrupt company.
For additional information on this topic, please feel free to consult our previous article
on "Cloud computing et services financiers" 3 (in French).
For any assistance, or should your wish to be provided with an English version of this
article, please contact Emmanuelle Ragot, Head of IP/TMT.
The article is available on our website
3 http://www.wildgen.lu/publications/articles/cloud-computing-et-services-financiers
Copyright © 2013 | Wildgen, Partners in Law
Administrative cooperation
in the field of taxation
Laurent Mahaux (Director) & Jérémie Ferrian (Junior Associate) - June 2013
The law dated 29 March 2013 relating to administrative cooperation in the field of
taxation (the “Law”) aims at (i) transposing Council Directive 2011/16/EU into
Luxembourg law and (ii) strengthening administrative cooperation between
Member States in the field of taxation. The Law also abrogates amended law
dated 15 March 1979 concerning the international administrative assistance in
the field of direct taxation.
The important new elements introduced by the Law are the following:
substantial extension of the scope of administrative cooperation;
information to be exchanged on request now includes information held by
banks and other financial institutions;
introduction of an automatic and mandatory exchange of certain information;
setting of timeframe for the communication of information;
introduction of other types of administrative cooperation;
use of standardised forms, formats and channels of communication; and
introduction of the rule of communication between the central offices.
The application of administrative cooperation is not anymore limited to direct taxes but
has been extended to all types of duties and taxes, except for value added tax,
customs and excises duties, and social contributions as administrative cooperation in
these fields is governed by other legal provisions.
The article is available on our website
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Introduction of a domain name freezing
procedure by the .lu domain name registry
Emmanuelle Ragot (Head of IP/TMT) – May 2013
A domain name freezing procedure will be introduced by the .lu domain name
registry from 11 June 2013.
In a nutshell, a claimant will be able to introduce a request to DNS- LU (Restena) in
order to freeze a .lu domain name. The consequence of such request will consist of the
impossibility for the holder of the “freezed” domain name to trade it to someone else
and as such should encourage Parties to find a settlement.
For additional information on this topic, please contact Emmanuelle Ragot, Head of
IP/TMT.
The article is available on our website
Copyright © 2013 | Wildgen, Partners in Law
Wildgen‘s News
WILDGEN’S NEWS
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Congratulations to our newly-promoted
WILDGEN, Partners in Law, a leading Luxembourg business law firm, is
delighted to announce its latest career moves. Mevlüde-Aysun Tokbag and
Jackye Elombo were elected to partnership and 5 Directors and 5 Senior
Associates were appointed.
Mevlüde-Aysun Tokbag, who specialises in banking & finance and investment funds,
is elected Partner 7 years after she joined the firm. Registered at the Luxembourg and
German Bars, she promotes the firm in Luxembourg and beyond by providing her
expertise to international clients.
The WILDGEN’s litigation team welcomes Jackye Elombo as a new Partner. She has
a strong background in dispute resolution and business litigation. She also provides
her experience in contract law and labour law to national and international clients.
WILDGEN commercial and dispute resolution practice group is strengthened with
Florence Piret and Eric Perru as Directors. Florence has a strong focus on banking
litigation while Eric Perru specialises in civil law, commercial law and debt recovery.
Carmine Reho, who specialises in corporate law and investments funds, has been
appointed Director as well as Isabelle Charlier, who specialises in corporate law and
maritime law, and Laurent Mahaux, tax expert.
The 6 lawyers which have been appointed Senior Associates are part of the
WILDGEN’s corporate practice group.
Pierre Metzler, Managing Partner comments: “Our law firm embraces the values of
unity, entrepreneurship and respect. Through these nominations we want to highlight
our young talents and reward them for their work, skills and knowledge acquired over
the years. They will need this expertise in their new position”.
Copyright © 2013 | Wildgen, Partners in Law
Luxembourg Biotech Venture Lounge Awards
Following the Biotech Venture Lounge organised on 13 June 2013 in Luxembourg and
sponsored by LPEA, Tenzig Partners, CatCap, Corporate Finance and WILDGEN, we
are pleased to announce that Root Lines Technology has been awarded “Best start-
up from the Biotech sector”. As such, this start-up will benefit from cutting-edge legal
support and services from our firm to help them develop their activities on both national
and international levels.
Emmanuelle Ragot, Head of IP/TMT at Wildgen and speaker at the event comments:
“This event was a great opportunity for the selected start-ups to get introduced to
investors but also for the promotion of the Luxembourg environment in this sector. I will
be honoured to assist Root Lines Technology in their future development as I am
already pleased to assist on legal matters related to IP and biotechnologies, Alexander
Crawford, CEO of Théracule, who got the second prize. Congratulations to all of them!”
Root Lines Technology, is aiming at becoming a European leader and a partner of
choice for the Life Sciences Industry players for cost-effective production of high grade,
high-value biomolecules while Theracule S.à r.l is a provider of personalised drug
discovery and orphan drug development for genetic forms of epilepsy and
neurodegenerative diseases.
New Brochure
JULY 2013 | THE LUXEMBOURG AIFM LAW - PRACTICAL & LEGAL IMPACTS
This brochure aims to provide information on the most
important practical and legal impacts on the Luxembourg
fund sector introduced by the AIFMD.
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Upcoming Event
6 SEPTEMBER 2013 | ENERGY LAW GROUP - THIRD ENERGY EVENT
The Energy Event, organised on a biennial basis by the Energy Law Group,
brings together leading energy industry practitioners, regulators, bankers and
lawyers from all over Europe who will attend to discuss some of the industry’s
most compelling issues in a private and secluded environment.
Discussions will be held in small private meeting groups and will allow free exchange of
thoughts. The conference will start on 6 September 2013 at 10.00 am and will conclude
with a festive dinner at the Orangerie Schönbrunn on that day.
David and the ELG members would be delighted to welcome and meet you at this
event.
Should you be interested in attending the Third Energy Event, please feel free to
contact us at [email protected] or +352 40 49 60 312.
Copyright © 2013 | Wildgen, Partners in Law
69, boulevard de la Pétrusse
L-2320 Luxembourg
Tel: +352 40 49 60 1
Fax: +352 40 44 09
www.wildgen.lu
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comprehensive statement of the law. Therefore, WILDGEN can not accept any liability for any errors, omissions or opinions contained herein and for the implementation of the principles set out without its active involvement.
