Regulations, 2017

Suppliment tal-Gazzetta tal-Gvern ta’ Malta Nru. 19,711, 11 ta’ Jannar, 2017 B 95

L.N. 19 of 2017

COMPANIES ACT

(CAP. 386)

Transfer of Registered Office of a European Company (SE)

Regulations, 2017

IN exercise of the powers conferred by article 425(5) of the

Companies Act, the Minister for Finance has made the following

regulations:-

(1) The title of these regulations is the Transfer of Citation and

scope.

Registered Office of a European Company (SE) Regulations, 2017.

(2) The purpose of these regulations is to implement the

relevant provisions of the EC Regulation on the transfer of registered

office of an SE, and they shall be interpreted and applied accordingly.

(3) In the event that any of the provisions of these regulations

conflict with the provisions of the EC Regulation, the latter shall

prevail.

Form SE 1

No. of Company SE ..........................................

Transfer of Registered Office of a European Company (SE) Regulations

Name of SE ...............................................................................................

Delivered by ..............................................................................................

To the Registrar of Companies

The following declarations are hereby being delivered for registration

pursuant to Regulation 8 of the Transfer of Registered Office of a European

Company (SE) Regulations, by (a) .............................................................., an SE

incorporated or constituted under the laws of Malta and which has its registered

office at (b) .........................................................................................................

(i)

Declaration of directors (Section A);

(ii) Declaration of solvency (Section B); and

(iii) Declaration by advocate (Section C).

SECTION A

Directors’ Declaration

I/we, .......................................... (c) being directors of .............................. (a)

hereby declare that

1. Pursuant to Article 8(2) of Council Regulation (EC) No 2157/

2001 (the "Regulation"), a transfer proposal was drawn up by the board of

directors of the SE;

2. Pursuant to Article 8(3) of the Regulation, the board of directors

drew up a report on (d) ............................................. explaining and justifying

the legal and economic aspects of the transfer and explaining the

implications of the transfer for shareholders, creditors and employees;

3. In accordance with regulation 6(4) of the Transfer of Registered

Office of a European Company (SE) Regulations, the shareholders and

creditors of the SE were notified in writing of their right of examination and

right to copies of the transfer proposal referred to in paragraph 1 and the

report referred to in paragraph 2 above;

4. Pursuant to Article 8(4) of the Regulation, at least one month

before the general meeting called upon to decide on the transfer, the

shareholders and creditors of the SE could examine and obtain copies of the

transfer proposal referred to in paragraph 1 and the report referred to in

paragraph 2 above;

5. Invoices, orders for goods and business letters issued by or on

behalf of the SE complied with the requirements of regulation 6(5) of the

Transfer of Registered Office of a European Company (SE) Regulations;

6. The general meeting of the SE approved the transfer proposal

referred to in paragraph 1 above by an extraordinary resolution on ............ (f) ;

and

7. No proceedings for winding up, liquidation, insolvency or

suspension of payments or other similar proceedings have been instituted

against the SE.

Name and signature ................................

Director/s

Dated this ......................... day of ............................ of the year..................

SECTION B

Declaration of Solvency

Date of Proposed Transfer

1. I/we, ................................ (c) being directors of ................................. (a)

hereby declare that

1. This statement of solvency is being made pursuant to regulation 7 of the

Transfer of Registered Office of a European Company (SE) Regulations, in

order to satisfy the relevant competent authority as required by Article 8(7) of

Council Regulation (EC) No 2157/2001 (the "Regulation");

2. Having made a full inquiry into the affairs of the above named SE, we

have formed the opinion

a.

As regards the above named SE’s financial situation immediately

following the date (as given above) on which the transfer is proposed to be

made, that the SE will be able to pay its debts in full within (e) from the date

on which the transfer is proposed to be made;

b.

As regards the above named SE’s prospects for the year

immediately following the date (as given above) on which the transfer is

proposed to be made, that, having regard to our intentions with respect to the

management of the SE’s business during that year and to the amount and

character of the financial resources which will in our view be available to the

SE during that year, the SE will be able to carry on business as a going

concern, and will accordingly be able to pay its debts as they fall due

throughout that year.

Name and signature ................................

Director/s

Dated this ......................... day of ............................ of the year..................

SECTION C

Declaration by Advocate

I, .......................................... (f) make this declaration in connection with

the proposed transfer from Malta of the registered office of the SE named

.......................................... (a) . I hereby confirm that

1. I am an advocate warranted to pursue my professional activities

in the Republic of Malta; and

2. All of the acts and formalities and conditions required by Article

8 of Council Regulation (EC) No 2157/2001 to be accomplished before the

transfer out of Malta of the above-mentioned SE, have been completed in

accordance with the requirements set out in Article 8, except that I am not

required to confirm

(i)

that the requirements of Article 8(7) have been met; or

(ii)

that the certificate pursuant to Article 8(8) has been

issued.

Name and signature ................................

Advocate

Dated this ......................... day of ............................ of the year..................

This form must be completed in typed form.

(a)

State name of SE

(b)

State the registered office of the SE

(c)

State name and surname of directors

(d)

State date

(e)

State period [such period not exceeding twelve months]

(f)

State name of advocate

€0.36

In these regulations, unless the context otherwise requires

Interpretation.

''Act'' means the Companies Act;

''EC Regulation'' means Council Regulation (EC) No 2157/2001

of 8 October 2001 on the Statute for a European Company (SE);

''SE'' means a European Public Limited Liability Company (or

Societas Europaea) within the meaning of the EC Regulation which,

except as provided in these regulations, is to be, or is, registered in

Malta.

PART I

Transfer to Malta of an SE

Where it is proposed to transfer to Malta the registered Transfer to

office of an SE whose registered office is situated in another Member Malta.

State or EEA State there shall be delivered to the Registrar for

registration

(a)

a copy of the resolution approving the transfer of the

SE’s registered office;

(b) the certificate by the court, notary or other relevant

competent authority of the Member State or EEA State in which

the SE has its registered office attesting to the completion of the

acts and formalities to be accomplished before the transfer; and

(c)

the Memorandum and Articles of Association of the

SE adopted in accordance with the Act and with the EC

Regulation.

(1) On the registration of the documents referred to in

regulation 3, the Registrar shall issue a certificate of registration

indicating therein the transfer of the SE’s registered office to Malta

and the date of registration in Malta of the SE.

(2) A certificate of registration issued in terms of sub-

regulation (1) shall constitute conclusive evidence that the

requirements of the Act, these regulations and the EC Regulation in

respect of the registration of the SE and of matters incidental thereto

have been complied with, and that the SE was duly registered in

Malta on the date indicated therein.

Where an SE transfers its registered office to Malta under

Article 8 of the EC Regulation

(a) its first accounting reference period for the purpose

of Article 164(3) of the Act shall be the period of twelve months

beginning on the date of its last balance sheet before the

registration of the transfer of the SE and, for the same purpose,

the date on which that period ends shall be its accounting

reference date; and

(b) its first financial year for the purpose of Article

164(4) of the Act shall begin on the first day of its first

accounting reference period and shall end on the last day of that

period, or such other date being not more than seven days before

or after the end of that period, as the SE may determine.

PART II

Transfer of an SE outside of Malta

(1) Where it is proposed to transfer the registered office

of an SE from Malta to another Member State or EEA State, the

directors of the SE shall draw up a transfer proposal in accordance

with Article 8(2) of the EC Regulation and a report in accordance

with Article 8(3) of the EC Regulation.

(2) A copy of the transfer proposal shall be delivered to the

Registrar for registration and, upon registration, a notice thereof shall

be published in the Gazette or on a website maintained by the

Registrar and in a daily newspaper circulating wholly or mainly in

Malta. The latter publication shall be made by the Registrar at the

expense of the SE concerned.

(3) The SE shall decide on the transfer proposal by an

extraordinary resolution which shall be taken not earlier than two

months from the date of the publication referred to in sub-regulation

(2).

(4) The SE shall notify in writing its shareholders and its

known creditors, at their last known address, of their right to examine

the transfer proposal and the report drawn up pursuant to sub-

regulation (1) at its registered office and, on request, to obtain copies

of those documents free of charge, by not later than one month before

the general meeting called upon to decide on the transfer.

(5) Every invoice, order for goods and business letter which,

at any time between the date on which the transfer proposal and

report become available for inspection at the registered office of the

SE and the withdrawal of the transfer proposal by the SE or the

deletion of its registration on completion of the transfer, whichever

occurs earlier, is issued by or on behalf of the SE shall clearly state

that the SE is proposing to transfer, in terms of Article 8 of the EC

Regulation, its registered office to another Member State or EEA

State, which State shall therein be indicated.

(1) Where an SE proposes to transfer its registered Protection of

office to another Member State or EEA State in accordance with creditors

holders of other

Article 8 of the EC Regulation, the SE shall, by means of a rights.

declaration of solvency made in terms of the prescribed form set out

in Section B of the Schedule, satisfy the Registrar that the interests of

creditors and holders of other rights in respect of the SE, including

those of public bodies, have been adequately protected in respect of

any liabilities arising prior to the transfer of its registered office.

(2) The declaration of solvency required under sub-regulation Declaration of

solvency.

(1) shall be made by all the directors of the SE.

(3) A director who makes a declaration of solvency under this Extension of

regulation without having reasonable grounds for the opinion protection.

expressed in the said declaration shall be guilty of an offence and

liable on conviction to imprisonment for a term not exceeding three

years or to a fine (multa) of not more than fifty thousand euro

(€50,000), or to both such fine and imprisonment.

(1) A copy of the resolution referred to in regulation

6(3), together with the documents prescribed in Form SE1 in the

Schedule, shall be delivered to the Registrar for registration who,

being satisfied that the requirements of these regulations and the EC

Regulation have been complied with, shall register them.

(2) On the registration of the documents referred to in sub-

regulation (1) the Registrar shall issue a certificate attesting to the

completion of the acts and formalities required in terms of these

regulations and the EC Regulation.

(3) For the purposes of sub-regulation (2), the Registrar may

accept the documents prescribed in Form SE1 in the Schedule as

sufficient evidence of compliance.

(1) If a transfer of the registered office of an SE from

Malta to another Member State or EEA State would result in a change

in the law applicable to the SE, the relevant competent authorities

may, within the two month period referred to in regulation 6(3),

oppose the transfer on grounds of public interest.

(2) The relevant competent authorities referred to in sub-

regulation (1) are the Government of Malta and the national

regulatory authorities.

An SE may contest the opposition by the competent

authorities before the Court in the form and manner provided for in

article 469A of the Code of Organization and Civil Procedure or in

any other law.

When, in accordance with Article 8(11) of the EC

Regulation, the registry for the SE’s new registration notifies the

Registrar that the SE’s new registration in that Member State or EEA

State has been effected, the Registrar shall cause to be published in

the Gazette or on the website maintained by the Registrar, a notice

publicising the transfer of registered office of the SE, wherein there

shall be specified the date on which the name of the SE was struck off

the register and all such particulars as are necessary to identify the SE

to which the notice is related.

These regulations shall apply to any transfer proposal

which is submitted after the coming into force of these regulations.