Foundations

Foundations are legal persons engaged in charitable, social, religious, scientific, artistic, educational, sporting or tourism-related activities.

Foundations do not seek material gain. They are mainly funded through income from their capital holdings, grants, subsidies, donations and bequests.

Who is concerned

Anyone can set up a foundation, provided they satisfy the applicable conditions.

Preliminary steps

Setting up a foundation is subject to approval by Grand-Ducal decree.

The instrument of establishment must be an authenticated instrument.

The application must be submitted to the Minister of Justice. Approval is required for the foundation to exist as a legal entity and, thus, as a legal person.

A foundation may be established by will. In that case, the will must be submitted to the Minister of Justice for approval.

How to proceed

Filing an application

Applications to the Minister of Justice may be made on plain paper.

If the foundation is being established by will, the testator may appoint a testamentary executor to deal with the formalities.

A foundation must have articles of association, which must specify:

  • the goal(s) of the foundation;
  • the name of the foundation and the address of its head office, which must be located in Luxembourg;
  • the names, addresses, nationalities and occupations of the administrators;
  • how subsequent administrators are to be appointed;
  • what is to become of the foundation's property should the foundation cease to exist.

If the founder has made no provisions as to how the articles of association may be amended, they may only be amended with the approval of the Minister of Justice and a majority of the serving administrators.

Supporting documents

The application for approval must be accompanied by:

  • the will; or
  • in the case of an authenticated statement:
    • a draft copy of the memorandum of association of the foundation;
    • a 3-year financial plan;
    • a statement precisely explaining the foundation's goals and the concrete projects it intends to undertake.

Administration

The foundation is managed by a Board of Directors, comprising at least 3 administrators. The scope of their powers is defined in the articles of association. The administrators have the power to bind the foundation and represent it in legal proceedings.

The conditions governing the replacement of administrators must be specified in the foundation's articles of association. The latter may provide that administrators who cease to perform their role:

  • be replaced by serving administrators;
  • be replaced by appointment of:
    • a public authority;
    • a public establishment;
    • another foundation;
    • an association;
    • a company existing as a legal person;
    • private individuals.

Obligations

The foundation's various legal instruments, including invoices, notices, publications and other documents issued by the foundation, must bear:

  • the name of the foundation;
  • the word "fondation", legibly and in full, immediately before or after the name;
  • the full address of the foundation's head office;
  • the words "Registre de commerce et des sociétés, Luxembourg", or the acronym "RCS", followed by the foundation's registration number.

Being registered with the RCS does not mean that the foundation is a commercial entity.

The foundation may only own buildings that are necessary in order to pursue its mission.

The foundation must submit its accounts and budget to the Minister of Justice every year, within 2 months of the close of its financial year. The foundation's administrators are duty-bound to fulfil this requirement.

Liability

The foundation may be held liable, under civil law, for faults committed by its administrators and representatives.

The Minister of Justice ensures that the foundation's property is used for the purpose for which the foundation was established.

Donations and gifts

Donations to the foundation exceeding EUR 30,000 must be approved by the Minister of Justice by ministerial decree.

Nevertheless, donations may be provisionally accepted pending ministerial approval. In that case, the donation will take effect on the day approval is granted. Approval will not be granted unless the donor's identity can be established.

Ministerial approval will be granted only if the association satisfies the following criteria:

  • its articles of association comply with the legal requirements applicable to foundations;
  • its articles of association have been filed with the RCS for publication;
  • changes to its articles of association have been filed with the RCS for publication;
  • all annual financial statements since its establishment have been filed with the RCS.

When applying for approval for a bequest, the following documents must be submitted with the application:

However, ministerial approval is not required to accept donations made inter-vivos – i.e., when the donor is still alive – by wire transfer from a credit institution authorised to do business in a Member State of the European Union or the European Economic Area.

Donations, bequests and other gifts to a foundation must not be prejudicial to the rights of third parties with a legitimate interest, such as:

  • creditors;
  • founders', donors' or testators' statutory heirs.

Disputes – third parties' rights

Third parties with a legitimate right – such as creditors and founders', donors' or testators' statutory heirs – whose rights have been infringed may bring legal action to have the donation annulled.

The civil court for the district where the foundation's head office is located shall have jurisdiction over the matter.

Sanctions

A foundation which fails to make the necessary filings with the RCS may not assert its legal personality against third parties. On the other hand, third parties may bring legal action against the foundation.

The administrators of the foundation may be dismissed:

  • for negligence or mismanagement;
  • if they fail to fulfil their legal or statutory obligations;
  • if they make use of the institution's property other than for the purposes for which it is intended, or for purposes contrary to public order.

Applications to have (an) administrator(s) dismissed must be filed:

  • with the district court having jurisdiction for the area where the foundation's head office is located;
  • by an interested third party or the public prosecutor.

If the application is approved, the court may appoint other administrators.

The foundation may then be dissolved if it is subsequently unable to provide the services for which it was established.

Applications to dissolve a foundation must be filed:

  • with the district court having jurisdiction for the area where the foundation's head office is located;
  • by an interested third party or the public prosecutor.

If the application is approved, the court will appoint one or more liquidators, who will settle the foundation's debts. The remaining assets will then be distributed as provided for in the articles of association. If such a distribution proves to be impossible, the court may authorise the liquidators to transfer the assets to the Minister of Justice, who will endeavour to make use of them for a purpose approximating that for which the foundation was established, as closely as possible.

Publications

The foundation's annual financial statements and budget must be filed with the RCS within 2 months of the closing date of the financial year, and published in the Electronic Compendium of Companies and Associations (Recueil électronique des sociétés et associations – RESA).

The articles of association and subsequent amendments thereto must be filed with the RCS, after approval by the Minister of Justice. The filed details are published in the RESA. A copy of the Minister's approval must be enclosed with the filing.

Who to contact

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