General Procedure
The Continuation of Companies Regulations (Legal Notice 344 of 2002 as amended by Legal Notice 352 of 2003, 181 and 186 of 2006 and 425 of 2007) provide for:
- a) the continuation in Malta of a foreign company; and
- b) the continuation outside Malta of a company incorporated in Malta.
The continuation of a foreign company to Malta or the continuation of a Maltese company outside Malta is made through a request to the Registrar of Companies which request must be accompanied by various documents depending on whether the company is to continue to or from Malta.
Continuation of a Foreign Company to Malta
As soon as all the documents have been submitted to the Registrar of Companies to its satisfaction, a Provisional Certificate of Continuation is issued in favour of the company. Within six months from the issue of the said Provisional Certificate of Continuation, the company must submit the appropriate document/s to the Registrar of Companies evidencing that it has ceased to be registered in the foreign jurisdiction where it has been originally incorporated, pursuant to which the Registrar of Companies will issue a Final Certificate of Continuation confirming that the company has been registered as continuing to Malta with effect from the date of the aforesaid provisional registration.
Foreign Licensed Companies
Where the foreign company carries on, in or from the country or jurisdiction of its formation and incorporation or registration, a business which, if conducted in or from within Malta, would require to be licensed or authorized and the foreign company is licensed or authorised by a competent authority in that country or jurisdiction, evidence of the consent of that competent authority that the foreign company can be registered as being continued in Malta would be required, and, if the instrument is not written in the English language, a translation thereof in the English language, certified to be a correct translation in such manner as may be prescribed. Moreover, notwithstanding the license or authorization by the foreign competent authority, all foreign companies intending to carry on a licensable activity in or from Malta shall require a licence or other authorization in terms of law from the competent authority in Malta before commencing operations.
Public Companies
Where the foreign company is a public company and has offered its shares or debentures to the public, the most recent prospectus or equivalent document would be required. Moreover if the foreign company is quoted on a recognised stock exchange, evidence to the satisfaction of the Registrar of the consent of the relevant authorities of that exchange to the foreign company being registered as being continued in Malta shall be required, and, if the instrument is not written in the English language, a translation thereof in the English language, certified to be a correct translation in such manner as may be prescribed.
Foreign Nominees or Trustees
A foreign trustee is prohibited from acting as trustee in Malta in relation to shares in foreign companies which have applied to be registered as continued in Malta unless such foreign trustee is authorised to act as a trustee in Malta.
A foreign trustee is prohibited from acting as trustee in Malta in relation to shares in foreign companies which have applied to be registered as continued in Malta unless such foreign trustee is authorised to act as a trustee in Malta
The Authority may authorise a foreign trustee to act as a trustee in Malta solely in relation to shares in foreign companies which have applied to be registered as continued in Malta, in so far as such foreign trustee, prior to acting as trustee in respect of such foreign companies has (i) applied in writing to the Authority for authorisation, (ii) is in possession of a valid licence or authorisation to act as trustee issued by the relevant regulatory authority in an approved Jurisdiction and (iii) pays to the Authority an annual authorisation fee of one thousand and one hundred and sixty-four euro and sixty-nine cents (1,164.69).
Effects of Registration of a Company Continuing to Malta
With effect from the date of the Provisional Certificate of Continuation issued by the Registrar, the company to which the provisional certificate of continuation relates shall (i) continue to be a body corporate incorporated under the Companies Act and shall be deemed as provisionally registered in Malta for all purposes of law and (ii) be subject to all the obligations and capable of exercising all the powers of a company registered under the Companies Act.
Moreover the registration of a foreign company as continuing in Malta would not operate as to:
(i) to create a new legal entity;
(ii) to prejudice or affect the continuity of the company;
(iii) to affect the property of the company and such company shall retain all its assets, rights liabilities and obligations;
(iv) to render defective any legal or other proceedings instituted or to be instituted, by or against the company ; or
(v) to release or impair any conviction, judgement, ruling, order, debt, liability or obligation due or to become due or any cause existing against the company or against any member, director, officer or persons vested with the administration or the representation of the company.
Shares Subject to Pledge
Where shares in a foreign company which is to be continued in Malta are subject to a pledge, charge, assignment by way of security or other similar security, in the country or jurisdiction where the foreign company was formed and incorporated or registered, such pledge shall continue to be valid and effective under the laws of Malta, and following the registration of the company as continued in Malta shall be fully enforceable as a pledge of shares in terms of article 122 of the Companies Act subject to the following conditions:
(a) that the pledge has been validly created in writing as a right of security and preference over shares under the laws of the country or jurisdiction where the foreign company was formed and incorporated or registered;
(b) that the pledge is valid and effective as of the date of issue of the provisional certificate of registration in Malta;
(c) that a notice of pledge be delivered to the Registrar for registration in terms of article 122(2) of the Companies Act within fourteen days of the date of issue of the provisional certificate of registration in Malta.
A pledge of shares as aforesaid shall continue to be regulated by the law chosen by the parties and such law shall apply to all the rights, including rights of enforcement thereof, and obligations of the parties thereto, except to the extent the pledge is enforced in Malta in which case the relevant provisions of article 122 of the Companies Act would apply. Moreover a pledge shall continue to be subject to any submission made by the parties to the jurisdiction of any foreign court or arbitration which submission shall be valid and effective and shall remain fully in force.
Continuation of a Maltese Company to a Foreign Jurisdiction
No exit taxes are imposed in the case of a continuation of a Maltese company outside Malta
As soon as all the appropriate documents for the continuation of a company outside Malta have been submitted to the Malta Registrar of Companies to its satisfaction, the Registrar will procure the publication on a daily newspaper and his website of a notice setting out the proposed continuation, granting the opportunity to creditors of the company a period of three months to object to the continuation by means of an application before the Maltese courts. The court may subsequently uphold the objection or alternatively it may allow the continuation on the condition that sufficient security is granted in favour of the company’s objecting creditors.
No exit taxes are imposed in the case of a continuation of a Maltese company outside Malta.
Fees
The applicable fee payable to the Malta Registrar of Companies in the case of a continuation of a company outside Malta is of Eur1,000.
In the case of a foreign company continuing in Malta, the prescribed fee would depend on the authorised share capital of the company and would therefore range between the minimum of Eur210 and a maximum of Eur2,250.
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