Disclosure Requirements - Luxembourg
Disclosure Category: 3
Background and legal basis
Luxembourg law has implemented transparency principles of disclosure to the supervisory authorities and to the issuers of the identities of the shareholders in the following legal texts:
- the law of 19 May 2006 implementing Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids, as amended (“Takeover Bids Law”);
- the law of 11 January 2008 implementing the EU directive 2004/109/EC on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market, as amended (“Transparency Law”);
- the law of 21 July 2012 on mandatory squeeze-out and sell-out of securities of companies currently admitted or previously admitted to trading on a regulated market or having been offered to the public (“Squeeze-out Law”);
- the law of 6 April 2013 on the dematerialised securities (“Dematerialisation Law”).
Obligation of information and notification for approval concerning bids as set out in the Takeover Bids Law
The Takeover Bids Law is applicable to takeover bids for the securities of companies governed by the laws of a Member State of the European Union or the European Economic Area (hereinafter referred to as a “Member State”) where all or some of those securities are admitted to trading on a regulated market in one or more Member States.
For the purpose of the Takeover Bids Law, “takeover bid” or “bid” shall mean a public offer (other than by the offeree company itself) made to the holders of the securities of a company to acquire all or some of those securities, whether mandatory or voluntary, which follows or has as its objective the acquisition of control of the offeree company in accordance with national law.
Decision to make a bid shall be notified to the Luxembourg supervisory authority, the Commission de Surveillance du Secteur Financier (the “CSSF”), before such decision is made public by the offeror.
The CSSF is competent to supervise a bid if the offeree company has its registered office in Luxembourg and if the securities of that company are admitted to trading on a regulated market in Luxembourg.
The offeror is required to draw up and make public in good time an offer document containing the information necessary to enable the holders of the offeree company’s securities to reach a properly informed decision on the bid. Before this document is made public, the offeror shall communicate it to the CSSF for approval within ten (10) Luxembourg working days from the day on which the bid has been made public.
The CSSF notifies its decision concerning the approval of the offer document within thirty (30) Luxembourg working days following the submission of the draft offer document.
If there are reasonable grounds for the CSSF to consider that the document submitted is incomplete or that additional information is necessary, the CSSF shall inform the offeror within ten (10) Luxembourg working days following the day the offer document has been submitted for approval. In this case, the time delay set out above (that is, the thirty (30) Luxembourg working days period) only runs from the date on which the offeror provides the required information.
The offer document shall be drawn up in a language accepted by the CSSF (Luxembourgish, French, German, or English).
In the event of a bid for which the CSSF is not competent, the offer document shall be recognised in Luxembourg, subject to its approval by the competent authority and a translation into Luxembourgish, French, German or English language, where the securities of the offeree company are admitted to trading in Luxembourg, without it being necessary to obtain the approval of the CSSF. The CSSF may require the inclusion of additional information in the offer document only if such information is specific to the Luxembourg market and relates to the formalities to be complied with to accept the bid and to receive the consideration due at the close of the bid as well as to the tax arrangements to which the consideration offered to the holders of the securities will be subject.
For further information, please refer to the translation in English language of the Takeover Bids Law (on the CSSF’s website).
Obligation to report threshold crossings as set out in the Transparency Law
Any holder (natural or legal person) of securities, of certificates representing securities or of financial instruments giving an entitlement to vote in a company incorporated in Luxembourg and listed in Luxembourg or in any other EU member state, must notify the company issuing the securities and the CSSF of any acquisition, transfer or similar operation concerning such shares or rights that causes its holding to reach, exceed or fall below the 5%, 10%, 15%, 20%, 25%, 33 1/3%, 50% and 66 2/3 % thresholds.
Notification to the issuer
The notification of the proportion of voting rights, where that proportion reaches, exceeds or falls below the thresholds provided above, as a result of events changing the breakdown of voting rights, shall be addressed to the issuer’s registered office.
It shall be effected promptly, but not later than four (4) trading days after the date on which the shareholder:
(a) learns of the acquisition or disposal or of the possibility of exercising voting rights, or on which, having regard to the circumstances, should have learned of it, regardless of the date on which the acquisition, disposal or possibility of exercising voting rights takes effect; or
(b) is informed about the event mentioned in Article 8 (2) of the Transparency Law (i.e. a shareholder shall notify the issuer of the proportion of voting rights, where that proportion reaches, exceeds or falls below the aforesaid thresholds, as a result of events changing the breakdown of voting rights, and on the basis of the information disclosed).
Such notification requirements are also applicable to a natural person or legal entity to the extent it is entitled to acquire, to dispose of, or to exercise voting rights in any of the following cases or a combination of them:
(i) voting rights held by a third party with whom that person or entity has concluded an agreement, which obliges them to adopt, by concerted exercise of the voting rights they hold, a lasting common policy towards the management of the issuer in question;
(ii) voting rights held by a third party under an agreement concluded with that person or entity providing for the temporary transfer for consideration of the voting rights in question;
(iii) voting rights attaching to shares which are lodged as collateral with that person or entity, provided the person or entity controls the voting rights and declares its intention of exercising them;
(iv) voting rights attaching to shares in which that person or entity has the