New formalities to be carried out at the Luxembourg Trade and Companies Register

On 1 October 2021, the Luxembourg Business Registers (LBR) released a public notice that replaced a previous notice published on 2 August 2021, informing the public about certain changes relating to formalities to be carried out at the Luxembourg Trade and Companies Register (RCS) commencing on 31 March 2022.

In anticipation of the imminent implementation of these changes, on 18 January 2022, the LBR published an explanatory note on the new formalities, particularly focusing on the registration of natural persons.

On 4 March 2022, the LBR notified the public that the implementation date of the new formalities had been postponed.

However, once a new date is set, the new formalities, as set out in the explanatory note of 18 January 2022, are expected to be implemented.

New formalities

All entities registered with the RCS will be subject to the below new formalities:

• The existing RCS requisition forms, in PDF format, will be replaced by forms to be completed directly online in HTML format
• All natural persons (no matter the capacity in which they act, eg manager, director, shareholder, auditor, etc) registered within the file of a registered entity with the RCS will have to communicate a Luxembourg national identification number (LNIN) to the RCS
• The LNIN will not need to be communicated in the case of:
  • Natural persons, who are judicial representatives, appointed in the context of a procedure registered in the RCS
  • Natural persons who are agents of a company governed by foreign law, which has opened a branch in the Grand Duchy of Luxembourg
• Persons not having such a LNIN will be given one when they register with the RCS
• Luxembourg addresses communicated to the RCS will be checked against the information contained in the Luxembourg National Register of Localities and Streets (Registre national des addresses - RNA)

Registration of the LNIN for natural persons

Where the natural person already has a LNIN, (eg Luxembourg residents) this number will be communicated in the field of the new HTML requisition form, to be specially provided for this purpose, in addition to the usual identification information (ie surname, first names, date and place of birth). No supporting document concerning the LNIN will need to be attached.

If the natural person does not have a LNIN, (eg the director or shareholder of a Luxembourg company resident abroad) the creation of this number must be requested as part of the procedure to be carried out with the RCS.

In order to create the LNIN, the following information must be entered in the requisition form:

• Surname
• First names (as on supporting document)
• Date, place and country of birth
• Gender
• Nationality
• Private home address (number, street, postal code, locality, country)

The information relating to the gender, nationality and private address of the natural person is not registered in the RCS but in the National Register of Natural Persons. The information is therefore communicated to the RCS only for the purposes of creating the LNIN.

Supporting documents must also be attached to the request as proof.

• To prove the identity of the person, for whom a LNIN is to be created, one of the following valid documents must be transmitted for control purposes:
  • A national identity card
  • A passport
• To prove the private residential address (if this information does not appear on the identity document), one of the following documents will need to be sent for control purposes. The documents must not be older than six months:
  • A certificate of residence issued by the municipality (or an official document from the regional authority competent for confirming home addresses
  • A declaration of honour from the person concerned, stamped or countersigned by the regional authority responsible for confirming residential addresses, an embassy, a notary, a police statio
  • If none of these documents can be produced, a water, electricity, gas, telephone or internet access bill

In the context of the above, the following documents will not be accepted by the RCS: criminal record, application for registration on the electoral lists, lease contract, tax statement, bank statement, insurance contract, “Amazon…” invoice, residence permit, etc.

For documents that are not drawn up in French, German, Luxembourgish or English, a translation (simple, not sworn) will also need to be provided.

If a natural person already registered with the RCS before the implementation date (once communicated) does not have a LNIN, an application for registration will have to be submitted to the RCS and the LBR will issue the LNIN upon acceptance of the application.

The application for a LNIN may be submitted either together with a filing request made with the RCS (new registration or filing to modify information relating to an existing person or entity), or, independently from a filing procedure, through a special service offered on the RCS portal which will become available.

This new service will be available free of charge during a certain transitional period (duration yet to be confirmed by LBR), in order to allow all persons and entities registered with the RCS to update their files.

It should be noted that the LNIN registered with the RCS will not be communicated to any third parties, will not appear on documents issued by the RCS, will not appear on pre-filled requisition forms, and will not be publicly available.

Once a LNIN is created, only the natural person concerned will be notified by mail at the private residential address communicated when the relevant application was filed with the RCS; the applicant who acted on behalf of the natural person concerned may also receive the LNIN, if the natural person concerned provides his express authorisation.

Once the filing formalities become mandatory, if the LNIN of a natural person registered in the file of an entity has not been communicated to the RCS, the entity wishing to make a filing with the RCS will have to obtain the missing LNIN before being able to file.

Control of Luxembourg addresses

In addition to the above filing formalities, the RCS will start checking the Luxembourg addresses communicated to it against the information contained in the RNA.

All Luxembourg addresses to be registered with the RCS will be affected by this control, ie the address of the registered office of a registered entity, as well as the address of the persons and entities registered in the RCS, residing in Luxembourg.

Therefore, when a filing request is created on the RCS portal, the Luxembourg address/es indicated on the requisition form will automatically be checked for consistency with the information in the RNA and must match such information.

Once the applicant completes the postal code, the name of the street corresponding to that postcode registered with the RNA will be automatically completed. If the street numbers are also listed there, the applicant will have to complete the relevant field.

In the event of inconsistency, an error message will be displayed on the form so that the applicant can check the information provided and correct it.

Should the address to be registered not appear in the RNA, the applicant will have to manually complete all the information relating to the address, and the RCS will check this information directly with the RNA.

In view of the fact that the registration of the LNIN for natural persons will eventually become mandatory and to avoid delays with RCS filings that may be time-sensitive, affected parties should consider collating the necessary information and supporting documents, so that they are in a position to obtain the LNIN wherever necessary, once the relevant electronic tools and forms are made available by the LBR. Harneys Luxembourg would be happy to advise you on the process and to assist you in any of the steps involved.