Clarifications on TCSP's registration requirements under the AML Law

The registration requirements for trust and company service providers (“TCSPs”) resulting from the Law of 12 November 2004 on the fight against money laundering and terrorism financing, as amended (“AML Law”), have given rise to much uncertainty. The National Prevention Committee seeks to bring clarity through the TCSP Guidelines published in October 2021.

Under Article 1(8) of the AML Law, a TCSP is defined as “any natural or legal person which by way of business provides any of the following services to third parties:

1. (a) forming companies or other legal persons;
2. (b) acting as or arranging for another person to act as a director or secretary of a company, a partner of a partnership, or a similar position in relation to other types of legal persons;
3. (c) providing a registered office, business address, correspondence or administrative address or business premises and other related services for a company, a partnership or any other legal person or arrangement;
4. (d) acting as, or arranging for another person to act as a “fiduciaire” in a “fiducie”, a trustee of an express trust or an equivalent function in a similar legal arrangement;
5. (e) acting as, or arranging for another person to act as, a nominee shareholder for another person”.

According to Article 7-2(1) of the AML Law, TCSPs shall register with the supervisory authority or self-regulatory body that is competent for each one of them.

The TCSP Guidelines apply to non-financial sector TCSPs since, in accordance with Article 7-2(2) of the AML Law, financial sector TCSPs, already authorised and supervised by the CSSF or the CAA to perform the activity of TCSP, are exempted from the Article 7-2(1) registration requirement.

Non-financial sector TCSPs include the professionals under the AML/CFT supervision of the Administration de l’enregistrement, des domaines et de la TVA (Registration Duties, Estates and VAT Authority), the Institut des réviseurs d’entreprises (Institute of Statutory Auditors), the Ordre des experts-comptables (Order of Professional Chartered Accountants), the Ordre des avocats de Luxembourg (Luxembourg Bar Association) and the Ordre des avocats de Diekirch (Diekirch Bar Association).

According to the TCSP Guidelines, a natural or legal person must register as a TCSP when it (i) provides one or more services listed in letters a) to e) of Article 1(8) of the AML Law, (ii) for another natural person, legal person or legal arrangement, (iii) in the course of a business relationship, by written or oral agreement.

Inspired by FATF’s publications, the TCSP Guidelines also provide relevant explanations on the concepts used in Article 1(8) of the AML Law and practical examples to illustrate the scope of entities subject to AML Law’s registration requirements. For instance, natural persons sitting on the board of a company in their own name and on their own behalf are not TCSPs.