Author: Nicola Fenech Conti
Legal Notice 19 of 2017
On the 11th January 2017, EC Regulation 2157/2001 on the Statute for a European Company (SE) (‘EC Regulation’) was implemented into Maltese law through Legal Notice 19 of 2017 entitled ‘Transfer of Registered Office of a European Company (SE)’ (‘Legal Notice’).
The purpose of this EC Regulation was to facilitate the expansion of companies at community level. It contains rules on the transfer of the registered office of a European Company, also referred to as a Societas Europaea (‘SE’), to another Member State or EEA state. The regulations allow such transfer to occur without winding up the company or creating a new legal person.
The provisions of the 2017 Legal Notice apply to SEs which already are or which are to be, registered in Malta.
Transfer to Malta
Should an SE situated in a Member State of the European Union or an EEA state wish to move its registered office to Malta, the following documents must be delivered to the Registrar:
- A copy of the resolution approving the transfer of the SE’s Registered office;
- A certificate from the court, notary or other relevant competent authority situated in the country of the current registered office, confirming that all acts and formalities necessary for the transfer have been completed; and
- The Memorandum and Articles of Association of the SE which have been adopted in accordance with the provisions of Malta’s Companies Act and the aforementioned EC Regulation.
Once the necessary documents have been received, the Registrar will issue a certificate of registration indicating the transfer to Malta and stipulating the date upon which the Company became registered in Malta.
Transfer outside of Malta
An SE wishing to transfer its registered seat outside of Malta must draw up a transfer proposal and a report in line with the EC regulation. The transfer proposal must be decided upon by an extraordinary resolution and it must stipulate the proposed registered office as well as the proposed statutes of the SE, amongst other things.
The proposal must then be delivered to the Registrar for registration, upon which a notice will be published in the Government Gazette, or a website maintained by the Registrar, as well as in a daily newspaper. The publication of this notice will be at the expense of the SE.
Shareholders and known creditors of the SE must be notified of their right to examine the transfer proposal and the report. Upon request, they must be able to obtain copies of the documents free of charge at least one month before the general meeting at which the transfer will be discussed. The documents must also be made available for inspection at the registered office of the SE.
Once the documents become available for viewing, any invoice, order for goods and business letter issued by the SE must indicate the proposed transfer and the state to which the registered office will be moved.
In order to ensure the protection of creditors and holders of other rights, the SE must satisfy the Registrar, by means of a declaration of solvency to be made by all the directors of the SE, that their interests have been protected in respect of any liabilities arising prior to the transfer of the registered office. The directors must declare that the SE will be able to pay its debts in full within a period not exceeding twelve months from the date on which the transfer is proposed to be made, and that the business will continue to run as a going concern and pay its debts as they fall due during this time.
The Legal Notice grants the Government of Malta and the national regulatory authorities the right to oppose a transfer on the grounds of public interest should that transfer result in a change of law applicable to the SE. This opposition may then be contested by the SE.
This Legal Notice shall apply to any transfer proposal which is submitted after the coming into force of these regulations.