During the state of crisis, contractual mortgages can be granted by notarial deed on the basis of authentic powers of attorney (before a notary) or private written agreements.
A notary is a public officer who has been delegated certain specific tasks by the State, characterised by impartiality, independence and with a high specific professional qualification.
A notary has a dual role. On the one hand he acts as an advisor to persons who consult him on commercial and civil matters. On the other hand he draws up notarial deeds (also called authentic deeds), that concern legal operations or facts and declarations that have legal consequences.
In the Grand Duchy of Luxembourg, notaries can be freely chosen. Each of the notaries in the country has the same rights and powers and can therefore draw up notarial deeds that are valid for the entire territory of the Grand Duchy.
Notaries can assist future entrepreneurs throughout the process of creating a business, in particular when drawing up the memorandum of association.
Who is concerned
All future partners/shareholders who wish to create a business for which a notarized deed is a legal obligation must seek the assistance of a notary to help them with the legal aspects of setting up their company.
For all other entrepreneurs that are not under an obligation to draw up a notarial deed, consultation of a notary is optional.
Before requesting the intervention of a notary, we strongly advise that future entrepreneurs develop a precise idea of their business project and that they gather the necessary information about the business permits required and about the main advantages and drawbacks of the different company forms.
The notary can also give advice on some of these aspects.
How to proceed
At the beginning of the business creation process, the notary can assist as an advisor on the choice of the legal form of business. Generally speaking, he advises on which supporting documents are required in respect of professional qualification and proof of integrity.
While the future entrepreneur collects the necessary documents, the notary draws up the draft statutes.
After presentation and verification of the supporting documents and permits required for carrying out a commercial activity, and after consultation with the future partner/shareholder, the notary finalises the statutes.
Although it is mandatory to have a notary draw up the articles of association with regard to businesses such as SA, SE, SECA, SARL and 'single-person' SARL, the founders of other types of companies are free to consult a notary or not for this.
For any entrepreneur who calls on the services of a notary to draw up the articles of association of their company, the notary will also handle the subsequent administrative formalities with respect to registration and publication, namely:
- lodging with the Trade and Companies Register (RCS) for the purpose of publication in the electronic compendium of companies and associations (Recueil électronique des sociétés et associations - RESA).
- registering the legal person with the Trade and Companies Register.