Legal requirements and authorisation procedure for mortgage credit intermediaries
The legal requirements that must be met and the procedure that must be followed in order to obtain an authorisation as mortgage credit intermediary are laid down in Articles L. 226-23 to L.226-31 of the Law of 23 December 2016 transposing Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014 on credit agreements for consumers relating to residential immovable property and amending Directives 2008/48/EC and 2013/36/EU and Regulation (EU) No 1093/2010; and amending the Consumer Code (“Law of 23 December 2016”).
An authorisation as mortgage credit intermediary may, in general, be granted to natural or legal persons in the form of a public entity or a commercial company.
Central administration and infrastructure
An applicant, which is a legal person, shall prove that its central administration and its registered office are located in Luxembourg. An applicant, who is a natural person, shall prove that he/she effectively conducts business in Luxembourg and that his/her central administration is in Luxembourg.
Professional standing and experience
In order to be authorised, a natural person established as a mortgage credit intermediary, and where the mortgage credit intermediary is established as a legal person, the members of the board of directors or natural persons performing equivalent tasks within a mortgage credit intermediary which is a legal person but does not have a board of directors shall produce evidence of professional standing and possess the appropriate level of knowledge and competence in relation to mortgage credit agreements as referred to in Article L. 226-38 of the Law of 23 December 2016.
Professional standing is assessed on the basis of the extracts from the police record and of any other evidence showing that the persons concerned are of good repute and offer every guarantee of irreproachable conduct, as referred to in Article L. 226-25(1) of the Law of 23 December 2016.
Where a mortgage credit intermediary is a natural person managed by a single person, the authorisation shall be subject to the production of evidence by the applicant to the CSSF that this natural person has taken alternative arrangements to ensure a sound and prudent management.
Where authorisation is granted to a mortgage credit intermediary established as a legal person, the persons referred to above shall be at least two in number (cf. Article L. 226-25(4) of the Law of 23 December 2016).
Professional indemnity insurance
Authorisation is conditional on the mortgage credit intermediary holding professional indemnity insurance covering the territories in which it offers services, or any other comparable guarantee against liability arising from professional negligence. For a tied mortgage credit intermediary, the insurance or comparable guarantee can be provided by the creditor for which the tied mortgage credit intermediary is empowered to act.
The authorisation as a mortgage credit intermediary is granted by the Minister responsible for the CSSF, i.e. the Minister of Finance, upon written application and following an investigation of the application file by the CSSF. The CSSF verifies whether the conditions laid down in the Law of 23 December 2016 are fulfilled.
In order to simplify administrative burdens, the CSSF encourages applicants to first transmit their application files to the CSSF before filing the formal application request with the Minister of Finance. As specified hereafter, the applicant should use the application form for authorisation as mortgage credit intermediary.
The authorisation is granted for an unlimited period of time provided the mortgage credit intermediary complies at all times with the applicable legal requirements. Upon receipt of the authorisation, the mortgage credit intermediary may immediately start to carry on business.
Before transmitting the application to the CSSF, the applicant may contact the CSSF to request information on the qualification of an activity, on the need for an authorisation, on the status requested, on the application documentation for the authorisation file or any other important question relating to the applicant’s project. The applicant may also request a meeting to present the project and to discuss certain aspects of it.
Examination of the file by the CSSF
In order to speed up the verification process, the applicant shall submit a detailed and complete file to the CSSF by using the application form for authorisation of mortgage credit intermediairies published hereafter.
The complete application file shall be submitted to the CSSF in paper form and shall, in addition, be transmitted in electronic form to firstname.lastname@example.org.
Formal analysis by the Minister of Finance
The application file submitted to the Minister of Finance shall be signed by the initiators of the project and all the relevant annexes shall be enclosed. The annexes and, in particular, the declarations of honour and the extracts from the police records must be original documents. Please ensure that all information contained in the annexes are up-to-date and that the extracts from the police records are not older than three months.
The decision of the Minister of Finance will be notified to the applicant within six months following receipt by the Minister of Finance of the application file. Should the application file be incomplete, the applicant will be notified of the decision of the Minister of Finance within six months following receipt of the missing information. All decisions on an application request shall be motivated in fact and in law.
A decision shall be taken within 12 months, at the latest, of the receipt of the application. If no decision is notified within 12 months, it means that the application has been refused.
The decision of the Minister of Finance may be appealed against and referred to the Tribunal administratif (Administrative Court), which deals with the substance of the case. The appeal shall be filed within one month, or else shall be time-barred.