Special limited partnership (SCSp)

The special limited partnership (SCSp) is a relatively new entity. It operates similarly to a limited partnership. The SCSp, which was inspired by the limited partnership and is not yet widespread in Luxembourg, serves as an additional investment vehicle suited to investment funds.

An SCSp is a commercial company. The main difference between the SCSp and the SCS is that the SCSp does not have a legal personality.

Who is concerned

To form an SCSp, a minimum of 2 partners is always required, with at least one general partner and one limited partner. A general partner may simultaneously be a limited partner unless otherwise stipulated in the SCSp partnership agreement.

A legal person may be a partner.

The SCSp does not have a legal personality separate from that of its partners.

Prerequisites

Any person wishing to set up a company to do business in Luxembourg must have the authorisations/approvals required to carry out the activity.

Before setting up an SCSp, you must ensure that the general partners are authorised to do business as traders. This requirement does not apply to limited partners.

Costs

Setting up an SCSp entails certain costs, including:

  • the cost of publication in the Trade and Companies Register (registre de commerce et des sociétés - RCS);
  • any costs related to the issuance of administrative authorisations;
  • notary costs, if a notary's services are used (this is not legally required);
  • auditor costs, if an auditor's services are used (this is not legally required).

How to proceed

Deed of incorporation

An SCSp may be created through a private deed known as a partnership agreement.

Two original copies of the partnership agreement must be drawn up.

There is no legal requirement to have the agreement drawn up by a notary.

The deed of incorporation – in this case, the partnership agreement – must contain at least:

  • the company name and the address of its head office;
  • the company's purpose;
  • a description of each partner's contributions.

The deed of incorporation must be filed with the RCS in the form of an extract.

Company name

The SCSp must have a company name that is established in its deed of incorporation. It may be a distinct name or the name of the business's purpose.

The name must be different from that of any other existing company.

To find out if the company name is available, contact the RCS.

Head office

The address of the SCSp is located at its head office (centre of administration), which is assumed to be the same as the registered office specified in the partnership agreement.

Duration

The SCSp may be established for a limited duration or an unlimited duration.

Conversion

The SCSp may change its corporate form in the course of its lifetime through a decision by the partners.

This change will give rise to the creation of a new legal personality.

Dissolution

The SCSp is automatically dissolved at the end of the duration specified in the deed of incorporation.

It may be dissolved by the shareholders by majority vote representing three quarters of the ownership interests, unless specified otherwise in the partnership agreement.

If provided for in the partnership agreement, the sole general partner may be replaced in the event of:

  • death;
  • dissolution, legal incapacity;
  • revocation, resignation, impediment;
  • bankruptcy;
  • other situations of adversity affecting the general partner.

The general partner will be replaced pursuant to the terms of the partnership agreement or, if the partnership agreement is silent on this matter, by the president of the district court (tribunal d’arrondissement) at the request of any interested party.

Any voluntary dissolution must be accompanied by the following administrative certificates:

The company may also be dissolved through a legal ruling due to unlawful activities.

Capital

In an SCSp, the capital is made up of ownership shares. There is no minimum required capital.

The partnership agreement must specify:

  • the amount of the share capital; or
  • the value of the contributions provided by each general partner or limited partner.

The contributions have the following characteristics:

  • they may be in cash, in kind or "in industry" (services, know-how, etc.);
  • they may be made over time;
  • the terms and conditions for doing so are provided for in the partnership agreement: they need not be valuated by an auditor;
  • the contributions need not be made at the time of formation.

An SCSp may issue debt securities.

The distribution of dividends is governed by the partnership agreement, which may provide for unequal distribution rules.

If the partnership agreement is silent on this matter, the dividends will be distributed proportionally.

Form of ownership shares

The ownership shares must be registered shares.

Transfer of ownership shares

The terms and conditions of transfers of ownership shares are provided for in the partnership agreement.

Under penalty of nullity, ownership shares may only be transferred, subdivided or pledged in accordance with the terms and conditions provided for in the partnership agreement.

If the partnership agreement is silent on this matter:

  • for limited partners' ownership shares: transfers of limited partners' ownership shares for a reason other than death, subdivision or pledging require the approval of the general partner(s);
  • for general partners' ownership shares: transfers of general partners' ownership shares for a reason other than death, subdivision or pledging require the approval of the partners, who decide by majority vote representing three quarters of the ownership shares, and the approval of the general partners.

The SCSp must provide notification of and agree to any transfers and subdivisions.

The partnership agreement may govern the terms and conditions of the buyback of ownership shares by the management or partners.

Structure of the management bodies

General meeting of partners

The partners' decisions are taken at the general meeting. The partnership agreement may contain special provisions regarding the operation of the SCSp. If it does not, the following provisions apply.

The general meeting decides on:

  • amendments to the partnership agreement;
  • any change in the SCSp's nationality;
  • the conversion or liquidation of the SCSp.

These decisions require a majority vote representing three quarters of the ownership shares. The partners' voting rights are determined based on the proportion of ownership shares held.

The general meeting approves the annual financial statements on a yearly basis.

The general meetings are convened by the manager or at the initiative of the partners representing more than half of the ownership shares. Decisions at general meetings are validly taken by majority vote.

The general meeting may be replaced by a written consultation in which each partner receives the text of the decisions to be taken. In that case, votes will be cast in writing.

The information that the partners must be provided with is limited to the information specified in the partnership agreement.

Daily management of the SCSp

The SCSp is managed by one or more managers, who may or may not be general partners.

The manager(s) is/are appointed in accordance with the rules provided for in the partnership agreement.

If the partnership agreement is silent on the appointment of managers, all of the general partners can bind the company.

The manager must not be a trader.

The manager represents the company with regard to third parties, as well as in all courts, as plaintiff or defendant.

Liability

General partners are jointly and severally liable for the company's obligations.

Limited partners are only liable to a limited extent, determined by their ownership interests, which may or may not be represented by instruments as provided for in the partnership agreement. Under no circumstances may they perform any act of management with regard to a third party, or participate regularly in acts of management with regard to third parties. Should they do so, they will lose the benefit of their limited liability.

However, acts relating to the exercise of their rights as limited partner are not affected by this restriction. Managers who are not general partners are representatives and are liable for their misconduct only in carrying out the mandate entrusted to them. They may validly bind the SCSp.

The restrictions on a manager's powers are not binding on third parties, even if they are published. Nonetheless, it is possible, through the partnership agreement, to assign responsibility to one or more managers to represent the company, either alone or jointly, in acts or in court. This clause is then binding on third parties, subject to publication in the RCS.

The SCSp is bound by the acts undertaken by a manager, even if they surpass the corporate purpose, unless the SCSp can prove that the third party involved knew, or could not have been unaware of the fact that these acts surpassed the corporate purpose, given the circumstances (the publication alone of the partnership agreement does not constitute sufficient proof).

Obligations

Maintenance of a register

An SCSp must keep a register that contains:

  • a complete, certified and up-to-date copy of the company's partnership agreement;
  • a list of all the partners, who must be clearly identified;
  • details on the ownership shares held by each partner;
  • references to any transfers of ownership shares.

In theory, any partner may view this register.

Required disclosures relating to the SCPs' assets, or other formalities relating to its pooled assets, are made in the name of the SCSp.

Oversight of the SCSp

The law does not require any oversight by internal auditors.

An audit of the financial statements by an approved statutory auditor is required only for SCSps:

  • in which the limited partners are SAs (public limited companies), SARLs (private limited liability companies), SCAs (partnership limited by shares) or companies in any other comparable legal form; or
  • if, on the balance sheet closing date, after 2 consecutive financial years of operation, 2 of the 3 following criteria are exceeded:
    • balance sheet total: EUR 4.4 million;
    • net turnover: EUR 8.8 million;
    • average number of full-time employees: 50.

Legal publications

The company must apply for registration with the RCS through the Luxembourg Business Registers.

The formality of registering the company with the RCS requires the disclosure of the following information about the company:

  • the exact names of the joint partners;
  • the company name or corporate name;
  • the corporate purpose;
  • the registered office;
  • the names of the managers and their signing authority;
  • the duration of the company.

It is not necessary to list the limited partners by name.

In addition, the SCSp must file the following information with the RCS:

  • subsequent amendments to the deed of incorporation;
  • information on the appointment of managers, transfers of managerial duties and, where applicable, their deaths;
  • an extract of the deed specifying the terms and conditions of liquidation and liquidators' powers;
  • certain legal decisions;
  • where applicable, information on the dissolution of the company.

Accounting aspects

The SCSp must maintain accounts that are appropriate to the nature and scope of its business.

It is not required to produce or file annual financial statements (balance sheet, profit and loss account and the annex).

Tax aspects

The SCSp is subject to the following taxes and fees:

  • a fixed registration fee;
  • property tax;
  • business tax;
  • net wealth tax (if the shareholder is an opaque entity);
  • personal income tax;
  • as a fiscally "transparent" entity, an SCSp is not taxable as such;
  • VAT; the frequency of returns depends on the following criteria:
    • if the annual turnover excluding taxes is less than EUR 112,000: VAT returns must be filed annually;
    • if the annual turnover excluding taxes is between EUR 112,000 and EUR 620,000: VAT returns must be filed quarterly;
    • if the annual turnover excluding taxes exceeds EUR 620,000: VAT returns must be filed monthly.

Who to contact

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