In 2017 the Court of Appeals confirmed a change in position regarding the enforcement of awards annulled in the seat of arbitration. This decision broke with the court's earlier interpretation – which had favoured enforcement and been standard practice since 1999 – and solidified its new approach of denying enforcement when an award does not produce effects in its jurisdiction of origin.
By way of the Law of 20 July 2018, Luxembourg has finally implemented the EU Payment Services Directive (PSD 2). As the PSD 2 is a full harmonisation directive, most of Luxembourg's PSD 2 provisions are identical to the legal framework implemented across the European Union. Nonetheless, EU member states were given scope to decide on certain topics and the Grand Duchy seized the opportunity to define its own rules.
EU Regulation 655/2014, which established a European Account Preservation Order (EAPO) procedure, aims to facilitate the collection of claims in civil and commercial matters by introducing a uniform EU procedure for identifying and freezing funds held in a debtor's bank accounts in another member state. This increased transparency is a particularly new development for Luxembourg, which recently introduced a straightforward EAPO enforcement procedure that is in line with its existing enforcement measures.
A recent Luxembourg District Court judgment has confirmed the well-established, flexible and creditor-friendly environment offered by the Collateral Act. The court ruled that the enforcement of a pledge cannot be set aside, except in the case of clearly established fraud. The main takeaway from the decision is the confirmation of the possibility offered by the act to enforce a pledge without any payment default and in case of a breach of a financial covenant.
The Luxembourg financial sector regulator (CSSF) recently published a number of circulars in order to streamline its regulation of IT outsourcing in the financial sector and introduce specific rules for the use of cloud services. In doing so, the CSSF has defined the conditions under which financial service providers may outsource activities without infringing the regulatory principles of central administration and sound governance.
EU Regulation 655/2014 recently became fully applicable, making it possible for creditors in Luxembourg to obtain a preservation order for the bank accounts of a debtor situated in another EU member state and vice versa. The regulation introduces a certain degree of transparency at the EU level with regard to debtors' assets, which is greater than that provided under existing Luxembourg law.
The new Markets in Financial Instruments (MiFID) Act, which transposes the Markets in Financial Instruments Directive and implements the EU Markets in Financial Instruments Regulation, was recently voted into law. Most issues relating to markets in financial instruments are covered by the first part of the act, while the provision of investment services will continue to be governed by the Financial Sector Act, as amended by the second part of the MiFID Act.
Following the adoption of Bill of Law 7022, the new Act on Market Abuse recently entered into force. The act significantly increases the administrative and criminal penalties for infringements of market abuse provisions and designates the Luxembourg financial sector regulator as the competent authority for the purposes of the EU Market Abuse Regulation. It also extends the definition of 'regulated information' provided for in the Act on Transparency Requirements for Issuers.
Bill 7381 modifying Article L 222-9 of the Labour Code was recently submitted to the Chamber of Deputies. The bill aims to amend the minimum social wage rates to reflect the average salaries of 2016 and 2017. If the bill is passed, the minimum social wage would increase by 1.1% as of 1 January 2019. The Governing Council has also decided to increase the social inclusion income and the income for those with severe disabilities by the same amount.
The Court of Appeal recently considered the conditions under which employers can access their employees' workplace correspondence and use such correspondence as evidence in court. This judgment confirms the current jurisprudential trend under which employers may occasionally access their employees' computers, including their work emails. Further, any document which concerns only professional data will, in principle, constitute a lawful means of proof.
The new Law on the Organisation of Luxembourg's National Commission for Data Protection and the General System for Protecting Data has, among other things, modified the Labour Code. The key changes introduced in this regard concern the processing of personal data in order to monitor employees, notifying employees of personal data processing, requesting advance compliance opinions and the co-decision system.
The Luxembourg Bankers' Association recently signed the new Collective Bargaining Agreement (CBA) for Bank Employees 2018-2020 with the Luxembourg Association of Bank and Insurance Employees and the trade unions representative of the financial sector. Given the number of changes and their level of impact, the CBA will be introduced gradually over the next three years.
Under the Labour Code, part-time employees may exceed the daily and weekly work limits set out in their employment contracts without necessarily qualifying for overtime. However, certain conditions apply. The Court of Cassation recently considered the legal rules which apply in this regard.
Luxembourg recently adopted a number of legislative reforms aimed at modernising the rules applicable to commercial companies, including a number of reforms which could affect their restructuring and insolvency. Although the main purpose of these changes is to modernise the rules applicable to commercial companies and the relevant publication formalities, they may also prove useful in the framework of corporate restructuring and the prevention of insolvency.
Following the recent enactment of the act modernising the Company Law 1915, Luxembourg law now officially recognises the possibility for companies to be wound up by means of a simplified procedure. Although a simplified procedure had previously existed in notarial practice, it lacked a clear legal basis. The new procedure is an unquestionably useful tool which will further enhance Luxembourg's business-friendly reputation.
The number of companies declared bankrupt in Luxembourg has increased tremendously since 2009, mainly due to the existing legislation, which is obsolete and no longer suited to modern financial challenges. As such, a bill has been introduced to provide customised tools to help distressed companies to continue their activities and protect stakeholders, notably by favouring restructuring over liquidation.
The Chamber of Deputies recently voted in favour of a law introducing a right to claim back intangible and non-fungible movable assets from a bankrupt company. The law provides greater certainty as to the consequences of the bankruptcy of a cloud services provider regarding the data that it holds, and contributes significantly to Luxembourg's strong reputation as a centre of excellence for IT outsourcing.
A bill has been introduced to Parliament that provides for a right to reclaim intangible and non-fungible movable assets from a bankrupt company. The bill is intended to allow for the recovery of data from a bankrupt provider of distance IT services or cloud computing solutions. The law will provide greater certainty as to the consequences of the bankruptcy of a cloud computing provider for the data in its possession.