The Government of Malta has recently published Bill No. 233 which proposes a number of amendments to the Companies Act (Chapter 386 of the Laws of Malta). The amendments primarily relate to clarifying the qualifications for persons to act as directors of Maltese companies (including specifically inserting as a disqualification the lack of a company service provider’s (CSP) licence in cases where one is required) and introducing new address requirements for companies and their officers.
In terms of additional requirements introduced by the draft law, the following stand out:
- documents required to be delivered to the Malta Business Registry (MBR) for registration which contain the name and residence of a person now must include that person’s date of birth (or registration number in case of a body corporate) rather than an identification number;
- a company’s M&A will now need to contain the electronic mail address of the company apart from the registered office in Malta and this will also need to be included in the company’s annual return each year;
- the annual return will also need to indicate the principal trading activity of the company;
- Companies will need to keep a register containing the names, residential addresses and e-mail address of all its officers and shareholders and to notify any changes therein to the MBR within 14 days of recording such changes accompanied by the relevant statutory form – (penalties proposed are the same as the ones for keeping the register of members);
- company directors may choose to indicate a ‘service address’ in the company’s memorandum of association rather than their ‘residential address’ but the latter would still need to be given to the company in light of the new register that is to be kept;
- prospective directors of private companies will now need to give their consent to acting as directors by signing the memorandum of association or a consent form. This practice is already being applied in the case of public companies;
- all prospective directors will now also be required to submit a signed declaration to the MBR, stating that they are unaware of any circumstances which would disqualify them from acting as directors in terms of the Act or in another member state.
Coupled with the imposition on companies of these new requirements, the bill also grants certain additional powers to (and in some cases duties of) the registrar including:
- the power to not register changes in officers or shareholders if the information required by the Act with regards to the register of addresses was not submitted or he is not satisfied that the company has provided accurate and up-to-date information on its officers and shareholders;
- before registering any returns notifying a change in director, secretary or legal representative, the power to require such information as he deems necessary to ascertain the correctness of such returns or to ascertain that the requirements of the act have been complied with;
- the power to inform a company of any circumstances disqualifying a person from acting as its director, including where applicable, the absence of a CSP licence, thereby requiring the company to submit the removal to the MBR within 14 days of the initial notification and failing that, the duty to file a court application for the removal of the director in question;
- the power to refuse the appointment of a director where such person would be disqualified from acting in any other member state;
- before registering a new company or return, the duty and power to take all necessary measures to ascertain an individual’s identity and the correctness of the information submitted to him;
- the duty to provide competent authorities and subject persons as defined in the Prevention of Money Laundering and Funding of Terrorism Regulations with full access to the MBR website including the provision of an application programming interface; and
- the duty to deal with any aspects of online formation of companies, online registration of branches and online filing of documents and information.
We will keep you updated once the bill passes through Parliament . In the meantime, speak to us if you require further clarifications - info@emcs.com.mt
