LUXEMBOURG Law and Practice Contributed by: Ana Nicoleta Andreiana, Christophe Boyer, Noémi Gémesi and Tom Hamen, Loyens & Loeff
9.4 Independent Outside Advice In Luxembourg, it is common for boards of directors to engage independent external advisers when con- sidering takeovers or business combinations. These advisers typically include legal counsel, financial advisers and sector-specific consultants, especially in regulated industries like energy and infrastructure. Their role is to help the board fulfil its fiduciary duties by providing expert analysis and support throughout the transaction process. It is customary (albeit not mandatorily required by law) for financial advisers to provide a fairness opin- ion as part of their service, especially in public M&A. A fairness opinion is an independent evaluation that assesses whether the price and terms of a proposed transaction are fair from a financial perspective. This opinion assists directors and supervisory boards in making informed decisions and properly discharging their duties.
conflicts of interest arise, the conflicted director must abstain from deliberations and decisions. In some cases, especially in larger or listed companies, boards may choose to delegate certain tasks to a smaller group of independent directors, but this remains the exception rather than the rule. 9.3 Role of the Board In private M&A, the board is typically expected to be actively involved in negotiations. It may engage direct- ly with the buyer or seller, structure the transaction, and take defensive or strategic actions to protect the company’s interests. The board’s role is hands-on and often central to shaping the deal. In contrast, in public M&A, particularly in regulated markets, the board’s role is generally more limited. It is expected to assess the offer and issue a recommen- dation to shareholders for or against the proposed transaction. Minority shareholders holding at least 10% of voting rights may initiate legal action against directors for breaches of duty under Article 444-2 of the Company Law. Such actions are rare but possible, especially if shareholders believe the board failed to act diligently or transparently.
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