Without prejudice to the provisions of point 3 of Article 60-2, of the Code de Commerce, the provisions of the Law of 4 April 1886 on court-approved compositions and arrangements with creditors aimed at preventing bankruptcy, as amended, and the provisions of the Grand-Ducal Decree of 24 May 1935 supplementing the legislation relating to stays of payment, court-approved compositions and arrangements with creditors aimed at preventing bankruptcy and bankruptcy following on from the setting-up of a controlled management scheme, shall not apply to insurance undertakings.
Article 56
1. The district court for commercial matters, referred to hereafter in this Chapter as “the court”, shall have sole competence for applying the measures referred to in Articles 59 and 60 in regard to a Luxembourg undertaking, including its branches in other Member States.
2. Any decision taken pursuant to Articles 59 and 60 in regard to a Luxembourg undertaking, including its branches in other Member States, shall be effective throughout the Community according to the law of Luxembourg if the decision is effective in the Grand Duchy of Luxembourg.
3. In exercising their powers pursuant to the law of Luxembourg, the executive bodies of an insurance undertaking subject to the stay of payment scheme and the liquidators of an undertaking placed in judicial liquidation shall respect the law of the Member State on whose territory they plan to take action, particularly in regard to the procedures applicable to realisation of the assets and the information provided to salaried workers. The said executive bodies or liquidators shall not resort to the use of force or settle any dispute. Article 56-1
1. Collective reorganisation or liquidation measures decided by the administrative or judicial authorities of a Member State in which a non-Luxembourg Community undertaking has its registered office shall be fully effective in Luxembourg without any other formality according to the legislation of the home Member State. This rule shall also apply when the law of Luxembourg makes no provision for such measures or makes their implementation subject to conditions which are not met.
The measures shall be effective in Luxembourg as soon as they become effective in the State in which they were applied.
2. When the Commissariat is informed of a decision to adopt a reorganisation measure or of the opening of a collective liquidation procedure against a non-Luxembourg Community undertaking, it shall arrange disclosure thereof through publication in the Mémorial.
3. The administrator of a reorganisation measure, the liquidator or any duly empowered authority or person in the home Member State shall request registration of the reorganisation measure or the decision to open a collective liquidation procedure in the Trade and Companies Register in Luxembourg. The mandatory provisions of the law on the Trade and Companies Register shall apply.
4. The appointment of an administrator of a reorganisation measure or a liquidator is established in the Grand Duchy of Luxembourg upon presentation of a certified copy of the decision appointing him or by any other certificate issued by the competent authorities of the home Member State accompanied by a translation in one of the official languages of Luxembourg. No legalisation or similar formality is required. 5. Administrators of a reorganisation measure and liquidators are empowered to exercise in the Grand Duchy of Luxembourg all the powers that they are empowered to exercise in the territory of the home Member State. Persons tasked with assisting or, where applicable, representing, them in connection with the implementation of the reorganisation measure or the collective liquidation procedure, in particular with reference to the solving of any problems encountered by creditors in Luxembourg, may be appointed in Luxembourg pursuant to the legislation of the home Member State.
6. In exercising his powers pursuant to the legislation of the home Member State, the administrator of a reorganisation measure or the liquidator shall respect the law of Luxembourg if he intends to take action in the Grand Duchy of Luxembourg, particularly in relation to the procedures applicable to realisation of the assets and the information provided to salaried workers. The said executive bodies or liquidators shall not resort to the use of force or settle any dispute.
Article 56-2
1. Collective reorganisation or liquidation measures decided by the administrative or judicial authorities of a non-Member State in which a third-country undertaking has its registered office and which, according to the law of that State, are effective in Luxembourg, shall be fully effective in Luxembourg without any other formality according to the legislation of the home Member State. This rule shall also apply when the law of Luxembourg makes no provision for such measures or makes their implementation subject to conditions which are not met
The measures shall be effective in Luxembourg as soon as they become effective in the State in which they were applied.
2. Notwithstanding point 1, if the Commissariat so requests, the court shall be competent to take the measures referred to in Articles 59 and 60 in regard to the Luxembourg branch of a third-country undertaking. Only the Commissariat shall be competent to request the court to take such measures if it considers this necessary to protect the interests of the Luxembourg branch’s creditors.
3. Any decision taken pursuant to Articles 59 and 60 relative to a Luxembourg branch of a third-country undertaking is effective only for the assets and liabilities relating to transactions undertaken in Luxembourg. 4. When a third-country undertaking operating in the Grand Duchy of Luxembourg is the subject of a collective liquidation procedure, the receivers or liquidators shall not be permitted to invoke rights over the property forming the separate assets referred to in Article 39 in the Grand-Duchy of Luxembourg until the obligations indicated therein have been fully discharged.
Article 57
All deeds and other documents likely to inform the court concerning the requests referred to in Sections 2 and 3 of this Chapter shall be exempted from the formality of stamping and registration.
The fees of the administrators and the liquidators and all other expenses incurred pursuant to Sections 2 and 3 of this Chapter shall be met by the undertaking concerned. Notwithstanding Article 39, the fees and expenses may be deducted from the separate assets.
Article 58
1. Without prejudice to Articles 58-1 to 58-8 hereunder, the decisions and the proceedings, and their effects arising from application of the provisions of Sections 2 and 3 of this Chapter, shall be governed by the laws, regulations and administrative provisions of Luxembourg.
2. The following are also governed by the laws, regulations and administrative provisions of Luxembourg: a) the property covered by the divestiture and the situation of the property acquired by the insurance undertaking or in respect of which ownership was transferred to it following the adoption of the reorganisation measure or the opening of the collective liquidation procedure;
b) the respective powers of the insurance undertaking and the liquidator or the person entrusted with the management of the reorganisation measures;
c) the conditions under which compensation may be invoked against third parties;
d) the effects of adopting a reorganisation measure or a collective liquidation procedure for the contracts in force which the insurance undertaking is a party to;
e) the effects of adopting a reorganisation measure or a collective liquidation procedure for individual proceedings, with the exception of the cases in progress, as envisaged in Article 58-8;
f) the debts to be produced as liabilities of the insurance undertaking and the situation of the debts arising after the adoption of the reorganisation measure or the opening of the collective liquidation procedure; g) the rules on the production, verification and admission of the debts;
h) the rules of distribution for the proceeds of the realisation of the assets, the ranking of the debts and the rights of the debtors who were partially paid off after the adoption of the reorganisation measure or the opening of the collective liquidation procedure by virtue of a right in rem or the effect of compensation; i) the conditions and the effects of the closure of the reorganisation measure or the collective liquidation procedure;
j) the rights of the debtors after the closure of the reorganisation measure or the collective liquidation procedure;
k) the charge for the fees and expenses of the reorganisation measure or the collective liquidation procedure;
l) the rules on the nullity, cancellation or unenforceability of legal acts detrimental to all the creditors.
3. Without prejudice to Articles 58-1 to 58-8 hereunder, the decision concerning the application of a reorganisation measure or the opening of a collective liquidation procedure against a non-Luxembourg undertaking, the reorganisation or liquidation procedures concerning the said undertaking and their effects
shall be governed by the laws, regulations and administrative provisions of the said undertaking’s home Member State.
Article 58-1
Notwithstanding Article 58, the effects of the adoption of reorganisation measures or the opening of a collective liquidation procedure for the contracts and rights referred to hereunder shall be governed by the following rules:
a) contracts of employment and working relationships shall be governed exclusively by the law of the Member State applicable to the contract or to the working relationship;
b) a contract giving entitlement to use or purchase real property is governed exclusively by the law of the Member State on whose territory the property is situated;
c) the insurance undertaking’s rights over an item of real property, a vessel or an aircraft subject to registration in a public register are governed by the law of the Member State under whose authority the register is kept.
Article 58-2
1. The adoption of reorganisation measures or the opening of a collective liquidation procedure shall not affect the rights in rem of a creditor or a third party over tangible or intangible property, movables or immovables - both specific property and assemblages of unspecified property whose composition is subject to change - belonging to the insurance undertaking and which, upon the adoption of such measures or the opening of such a procedure, is situated in the territory of another Member State.
2. This shall apply, inter alia, to:
a) the right to realise, or arrange realisation of, the property and to be paid off from the proceeds or the income from such property, in particular by virtue of a pledge or a mortgage;
b) the exclusive right to recover a debt, in particular by virtue of the pledging or assignment of such debt by way of guarantee;
c) the right to claim the property and/or claim restitution thereof from whoever may be holding it or using it against the wishes of the claimant;
d) the right in rem to receive the income from a property.
3. The law governing the constitution of the right in rem determines the real nature of that right within the meaning of this Article.
4. A right registered in a public register which is binding on third parties and enables a right in rem to be established within the meaning of point 1 shall be treated as a right in rem.
5. Point 1 shall not impede the actions for nullity, cancellation or unenforceability referred to in point 2, l), of Article 58.
Article 58-3
1. The adoption of reorganisation measures or the opening of a collective liquidation procedure against an insurance undertaking purchasing a property shall not affect the rights of the vendor founded on a reservation of title when, upon the adoption of such measures or the opening of such a procedure, the said property is situated in the territory of a Member State other than the State of adoption of such measures or of the opening of such a procedure.
2. The adoption of reorganisation measures or the opening of a collective liquidation procedure against an insurance undertaking selling an item of property after delivery of the said property shall not constitute a ground for rescission or cancellation of the sale and shall not impede the purchaser’s acquisition of title to the property sold when, at the time of adoption of such measures or of the opening of such a procedure, the property was situated in the territory of a Member State other than the State which adopted such measures or opened such a procedure.
3. Points 1 and 2 shall not impede the actions for nullity, cancellation or unenforceability referred to in point 2, l), of Article 58.
Article 58-4
1. The adoption of reorganisation measures or the opening of a collective liquidation procedure shall not affect a creditor’s right to request that his debt be offset against the insurance undertaking’s debt when such offsetting is permitted by the law applicable to the insurance undertaking’s debt.
2. Point 1 shall not impede actions for nullity, cancellation or unenforceability referred to in point 2, l), of Article 58.
Article 58-5
1. Without prejudice to Article 58-2, the effects of a reorganisation measure or of the opening of a collective liquidation procedure on the rights and obligations of the participants in a regulated market shall be governed exclusively by the law applicable to the said market.
2. Point 1 shall not impede the bringing of an action for nullity, cancellation or unenforceability referred to in point 2, l), of Article 58 for failure to take account of payments or transactions pursuant to the law applicable to the said market.
Article 58-6
Point 2, l), of Article 58 shall not apply when a person having benefited from a legal transaction prejudicial to the general body of creditors has shown that:
a) the said transaction is subject to the law of a Member State other than the home Member State, b) the said law does not permit any challenge to the transaction concerned in the case in issue. Article 58-7
When, through a transaction concluded after the adoption of a reorganisation measure or the opening of a collective liquidation procedure, the insurance undertaking sells, for a consideration.
a) an item of real property;
b) a vessel or an aircraft subject to registration in a public register, or
c) transferable securities or shares whose existence or transfer entails registration in a register or in an account required under the law, or which are placed in a central depositary governed by the law of a Member State, the validity of the said transaction shall be governed by the law of the Member State on whose territory the real property is situated or under the authority of which that register, that account or that system is maintained.
Article 58-8
The effects of the reorganisation measures or the collective liquidation procedure on a pending case relating to an item of property or a right which the insurance undertaking has been divested of shall be governed exclusively by the law of the Member State in which the case is pending.
Section 2: Stay of payment