When creating a business, the entrepreneur chooses a legal form that corresponds to their business project.
This form is not definitive and the entrepreneur may decide to change it later in order to adapt to their current activity.
Changing the legal form of a company may be beneficial for:
The legal form of civil companies and commercial companies can be changed if the company's articles of association do not forbid doing so.
If there are no provisions in the articles of association prohibiting such a change:
can be transformed into any one of the other types of company, with the exception of an SE and an SARL-S.
An SA incorporated under Luxembourg law may be transformed into an SE if it has had a subsidiary incorporated under the law of another Member State of the European Economic Area for at least 2 years.
An SE headquartered in Luxembourg may be transformed into an SA incorporated under Luxembourg law. The decision to transform the company may only be taken:
Transformations involving an SE and a European Cooperative Society (société coopérative européenne - SEC) are subject to specific requirements.
A financial statement summarising the company's asset and liability position must be drawn up no later than 6 months prior to the transformation. The company's annual financial statements can be used to fulfil this requirement.
The partners and holders of other securities carrying voting rights may decide not to include the report on the company's financial statement.
Depending on the situation, when the company's net assets are less than the share capital specified in the financial statement, the amount of the difference and the company's share capital after the transformation must be mentioned. That capital may not exceed the net assets specified in the financial statement.
The additional reports mentioned below are required when changing the legal form of:
The report setting out the reasons for the transformation must be produced by the company's management body.
The corporate auditor’s role is to produce a report on the company's financial statement summarising to its asset and liability position, mentioning in particular whether or not the net assets have been overestimated.
In situations where the net assets are less than the capital specified in the financial statement summarising the company's asset and liability position, the report must also mention the amount of the difference.
The report setting out the reasons for the transformation must be included on the agenda for the meeting which is to rule on the transformation. The financial statement summarising the company's asset and liability position, or the last set of annual financial statements, as appropriate, must be appended to the report.
By unanimous decision, the partners and holders of other securities carrying voting rights may decide to forego this report.
All partners are entitled to receive the following, free of charge, 15 days prior to the meeting:
The decision to transform the company must be taken by the general meeting (GM).
The company's articles of association may contain special provisions that apply in the event of a change in legal form.
If the articles of association do not contain such special provisions, the following rules apply as a bare minimum:
If there are several classes of shares or units, and the change in legal form will alter the respective rights attached to them, then the required conditions of quorum and majority must be satisfied for each such class, in addition to the following requirements:
If the attendees do not collectively represent half of the company's capital, but the other conditions have been met, a new meeting may be called, as allowed for in the articles of association, by announcements:
This call to meeting must include the agenda, and specify the date and outcome of the previous meeting.
The second meeting may validly deliberate regardless of the proportion of the capital there represented.
At both meetings, resolutions can only be validly made if they are passed by at least 2/3 of the votes cast. The votes cast do not include those attaching to shares whose holders have not taken part in the vote, or cast a blank or spoiled ballot.
The agreement of all the partners to change the legal form of the company is required in:
The agreement of all partners is also required when the legal form is being changed to a:
If a company's articles of association specify that its legal form cannot be changed, the same conditions apply to a decision to change that provision.
In SCOPs, all partners are entitled to resign during the course of the business year, from the calling of the GM to rule on whether to change the company's legal form. The resignation must be notified to the company by registered letter, posted at least 5 days prior to the date of the meeting. It will only take effect if the proposed change in legal form is approved.
Partners must be informed of this option in the notice calling the meeting.
The company's articles of association must be changed immediately once the decision to change the legal form is made. The new articles of association must be decided upon in accordance with the same conditions of quorum and majority as are required for the transformation to a new legal form.
Failing this, the decision to change the company's legal form will be void.
When the legal form of a company is changed, the rights of third parties are protected.
If the transformed company becomes a:
the provisions regarding the specification and oversight of contributions in kind, and the liability of the founders or managers in the event of an increase in capital or the incorporation of the company by means of subscriptions, do not apply.
If the company being transformed is:
the partners and members of the management bodies of these companies remain liable, jointly or severally as applicable, to interested parties, in spite of any stipulation to the contrary, for the overestimation of the net assets appearing in the financial report.
If the company being transformed is:
the partners and members remain liable, jointly or severally as applicable, to third parties for the company's undertakings until notice of the change in legal form is published in the RESA.
If the transformed company becomes:
the partners and members remain liable, jointly or severally as applicable, to third parties for the company's undertakings made prior to the date of transformation.
The deed of transformation must be published in its entirety, and the new articles of association must be published at the same time, either in full or as extracts, depending on the legal form of the company.
The transformation has no effect with respect to third parties until the required documentation has been published in the RESA.
If an authenticated instrument is not provided where such an instrument is required, the transformation shall be null and void.
The absence of a report setting out the reasons for the transformation, or of an auditor's report, where required, shall invalidate the decisions made by the general meeting.
Transformations do not entail the dissolution of the company, or the creation of a new legal personality.
Ongoing contracts are automatically transferred to the company in its new form.
Employment contracts remain binding.
Model of memorandum of association for a Luxembourg SA
Modèle de statuts - SA
Modèle d'un acte constitutif d'une société anonyme de droit luxembourgeois
Démarche en ligne
Muster einer Gesellschaftssatzung einer SA