Key takeaways
Remote working and central administration
The CAA reiterates that in accordance with Article 51 of the amended law of 7 December 2015 on the insurance sector, any Luxembourg insurance or reinsurance undertaking must have a solid central administration in Luxembourg, including their "decision-making center" and their "administrative center" and that the central administration, which broadly encompasses the functions of direction and management, execution and control, allows the undertaking to have control of all of its activities.
On that basis, the use of remote working must not in fact, result in the daily management and decision-making and control process of an undertaking established in Luxembourg being ultimately carried out outside Luxembourg. An undertaking established in Luxembourg must at all times be able to justify its compliance with the legal requirement to have its central administration in the Luxembourg territory.
In particular, the authorized manager of the undertaking must justify a physical presence in Luxembourg allowing it to effectively direct and manage the undertaking daily, efficiently and permanently. Therefore, the authorized manager and the Key Functions Holders must carry out the main part of their professional activities at the undertaking's registered office in Luxembourg. Thus, apart from exceptional crisis situations, the CAA expects authorized managers to organize their potential recourse to remote working in such a way that it does not contravene the aforementioned provisions.
Finally, the CAA considers the offices of the branches as assimilated to the premises of the undertaking, i.e., visits to branches located abroad are not considered remote working.
The CAA further reiterates that each undertaking is responsible for ensuring that its organization of remote working complies with the legal and regulatory framework applicable to professional secrecy and data protection and the rules laid down by the Luxembourg Labor Code or the country of registration of the employees of its branches, where applicable. Employers will therefore have to review and adapt their teleworking policy to ensure compliance with the aforementioned requirements.
Electronic signature
The CAA requires in particular the notification signed by the authorized manager of the requests listed in Annex 1 to the circular and thus considers it necessary to specify its requirements as to the types of signatures accepted. The CAA requires a qualified signature instead of a handwritten signature. The CAA further reiterates that the use, by undertakings, of electronic signatures instead of handwritten signatures makes it necessary to set up an internal organization specifying the identity and functions of the persons authorized for this type of signature, as well as compliance with specific technical characteristics for reliability purposes.
In addition, any entity using or intending to use electronic signatures in its communications with the CAA must make a declaration concerning its internal organizational arrangements for electronic signatures and the technical characteristics used by means of the standard questionnaire attached in Annex 2 to the circular.
The questionnaire must be signed within 30 days of the entry into force of the circular by undertakings already using electronic signatures. Undertakings wishing to use electronic signatures in the future must send the CAA this form duly signed 30 days before the first electronically signed shipment.
For further information on what these developments mean for you or your organization, please get in touch with your usual Baker McKenzie contact.
