Amendment to Maltese Companies Act Introduces New Requirements
Recent amendments to the Maltese Companies Act (Act LX of 2021) have continued to develop on the principles of transparency of information on companies, their members and officers. Service providers and company officers must be aware of these new requirements and all the information that must be provided to the Registrar of Companies (“the Registrar”) on the coming into force of these new rules.
The introduced changes are the following:
Where a document submitted to the Registrar needs to state the name and address of a person, such address may be either the residence or service address. Companies are now also required to include the date of birth of natural persons and the company registration number in the case of bodies corporate.
The Memorandum of the company must now list the email address of the company. It is not yet clear whether the email address to be provided must be an account in the company’s name or whether one of the directors’ email address can be provided. Further guidance on this matter is expected from the Malta Business Registry (MBR).
The requirement to list the email address of the company has also led to a change in the Annual Return that is to be submitted to the MBR on an annual basis. This is now required to list the email address of the company together with the principal area of its trading activity.
The requirement of a new register of the residential addresses of all officers and shareholders has also been introduced. This must include the following particulars: (a) Name of all shareholders and officers; (b) Usual residential address of each officer and shareholder, provided that if the address is the same as the service address there only needs to be one entry; (c) The electronic mail address of each shareholder and officer. Directors shall be required to deliver this register to the Registrar within 14 days of any recorded change; officers will therefore need to ensure that an updated copy of this register is submitted whenever there is a change in members or company officers as well as whenever there is any change in their personal details. We await further guidance from the MBR as to whether this new requirement will have any impact on the Beneficial Ownership forms that are to be submitted to the MBR when there is a change in the details of the Beneficial Owners and Senior Managing Officials. If the directors fail to comply with this requirement, they shall have a month to remedy the situation, after which penalties will be incurred. The Registrar may also refuse to register any change in officers or shareholders if this register is not submitted or if it does not believe the information provided is up to date and correct.
A significant change with regards to the appointment of new directors has also been introduced, effectively extending the requirement that was previously only applicable to public companies. All new directors, without distinction, will now be required to submit their explicit written consent prior to their appointment. Furthermore, upon being appointed director, that person must declare to the Registrar whether he is aware of any circumstances which may give rise to his disqualification from appointment under the provisions of the Companies Act or the laws of another Member State. We await further guidance from the MBR on the form to be used to submit such declaration. Where the Registrar becomes aware that an officer of a company is disqualified or does not hold an MFSA CSP licence (if required), the Registrar shall inform the company and request it to remove the director and report back within 14 days. If the company does not comply, the Registrar is empowered to file a court application requesting the removal of such officer at the company’s expense.
The Registrar has also been bestowed with additional powers. It has the right to request information and documents to ascertain an individual’s identity and the correctness of information, and to provide competent authorities and subject persons full access to the MBR website. CSPs and other subject persons await to see whether this will lead to access to any other additional information to help in their obligations. It may also issue procedures and guidance in relation to these new requirements.
This Amending Act is expected to come into force following official notice in the Government Gazette. In the meantime, we await further guidance from the MBR on whether active companies will be allowed a transitory period to prepare the new register of residential addresses which will ultimately need to be submitted to the MBR.
This article was written by Dr Cherise Abela Grech and Legal Trainee Ms Jodie Arpa.