Agefi Luxembourg - mars 2026

Mars 2026 5 AGEFI Luxembourg Banques / Assurances By Guillaume SCHAEFER, Counsel & Clément BOURDON, Senior Associate, DLA Piper Luxembourg T he Directive (EU) 2019/2121 (the Mobility Directive) was transpo- sed in Luxembourg in February 2025 by the law of 17 February (the Mobility Law). The Mobility Directive sought to facili- tate corporate mobility bet- ween EUMember States while increasing the pro- tection available for sha- reholders, employees and creditors, aiming to har- monize cross-border corporate reorganizations in the European Union. Ayear later, however, the practical picture ismore nuanced. The Mobility Law has made processes much more formalistic than they used to. Rather than reducing legal and administrative steps, it has increased them. This now requires better anticipation fromcompanies, as the timeline to be observed for certain disclosures has been extend- ed and additional formalities must be fulfilled. In addition, the primary goal of the Mobility Directive, i.e. the harmonization of national legis- lations, is not met as the EU Member States retained some freedom in the implementation of the Mobility Directive. After a year of practice, a number of practical limitations have arisen. Creditors’ rights: navigating divergent frameworks Creditors’ rights provide one of the examples of the timelinemisalignment betweenMember States. Pursuant to theMobilityLaw, creditorsbenefit from a three-month period following the publication of the commondraft termswith the Luxembourg offi- cial journal ( Recueil électronique des sociétés et associa- tions (RESA) ) during which they may request ade- quate safeguards (theMobility Directive did not set any specific period, leavingMember States the free- domtodetermine it). This periodhas no suspensive effect on theoperation itselfwhichmay, inprinciple, be completedandbecomeeffectiveevenbefore such periodexpires. Similarly, other jurisdictions, suchas Germany, also grant a three-month period to credi- torstorequestadequatesafeguards,butprovidethat the operation cannot be completed until that period has fully elapsed, as the registration file must con- firmwhether safeguards were requested. This difference creates a structural imbalance: even when Luxembourg’s law would permit earlier completion, the timing of a cross-border operation is ultimately dictated by the strictest procedural framework involved. As a result, Luxembourg’s relatively flexible and efficient system is never determinative on its own. The intended harmonization of the Mobility Directive is, to some extent, only partial: Luxembourg’s framework may be modernized and technically sound, but its effectiveness contin- ues to depend on the slowest or most demanding rules provided by some jurisdictions. Report for shareholders and employees TheMobilityLawhas introduced the obligation for the management to prepare reports for the atten- tion of the shareholders and the employees, explaining and justifying respectively the legal and economic aspects of the operation, as well as its implications for employees. These reports shall be made available electronically to the shareholders and the employees. This provision reflects the growing reliance on digital platforms for commu- nication and document management. However, the Mobility Law does not specify how electronic availability should be ensured (whether via intranet, cloud storage, email, or other channels). This ambiguity has prompted debate among prac- titioners. On the one hand, flexibility allows com- panies to choose themost appropriatemethod for their circumstances. On the other hand, the lack of clear guidelines can lead to uncertainty, partic- ularly in cases where stakeholders are dispersed across different countries or have varying levels of access to digital resources. Ultimately, the obligation remains an obligation of result: companiesmust take all reasonablemeasures to ensure that stakeholders can access the report, but the precisemethod is left to their discretion. In addition, while the production of the report for the attention of the shareholders may be waived, the report for the attention of the employees is mandatory unless the company and its sub- sidiaries do not employ staff other than members of the administrative body. This means that the exemption only applies if none of the entities con- cerned (including direct or indirect subsidiaries) employ staff outside their management bodies. In practice, if applied literally, this exemption is rarely applicable. Indeed, most Luxembourg com- panies have foreign subsidiaries with employees. As a result, the exemption is often renderedmoot, and thismay lead to an odd situationwhere a Luxembourg holding company Luxembourg holding company must pre- pare a report for employees it does not directly employ. To the best of our knowl- edge, no aligned position has been yet adopt- ed by practitioners on this point and a clarifi- cation of the scope and application of the exemptionwouldbewelcomed, inpar- ticular to ensure that it achieves the reduction of formalities for com- panies having no employees. Dissolution without liquidation: still a separate regime? An additional point of uncertain- ty created by the transposition of the Mobility Directive into Luxembourg law concerns dissolutions without liquidation. Before the entry into force of theMobility Law, this procedure - where a Luxembourg company is dis- solved and its assets and liabilities are automati- cally absorbed by its sole shareholder - was treated as a distinct corporate process, separate from the legal framework governing simplified mergers. Practitioners have questioned whether a dissolu- tion without liquidation of a Luxembourg entity into its parent located in the European Union should fallwithin the scope of the newcross-border merger regime introduced by the Mobility Law. This raises the legitimate question of (i) whether a dissolutionwithout liquidation, which operates on exactly the same principle as a merger (i.e . ipso jure transfer of all assets and liabilities) must now com- plywith the procedural requirements applicable to European cross-bordermergers andbe treated as a functional equivalent of a simplifiedEUmerger, or (ii)whether it continues tobenefit fromits own sep- arate and lighter corporate regime. Conclusion Although the Mobility Directive was designed to harmonize cross-border corporate mobilitywith- in the EU, its first year of application shows that this ambition remains largely unmet. Far from creating a clear and predictable framework, the implementation has revealed significant differ- ences betweenMember States in both procedures and administrative requirements. In several respects, Luxembourg’s transposition has rein- forced these divergences, highlighting both the MobilityDirective’s lack of detail and the national discretion exercised in its application. The implementation of the Mobility Directive: One year after All about boosting your business Since 1926 and for many years to come .