Merchant Shipping (Shipping Organisations - Private Companies)

Suppliment tal-Gazzetta tal-Gvern ta’ Malta Nru. 20,351, 21 ta’ Frar, 2020 B 419

L.N. 31 of 2020

MERCHANT SHIPPING ACT

(CAP. 234)

Merchant Shipping (Shipping Organisations - Private Companies)

(Amendment) Regulations, 2020

IN EXERCISE of the powers conferred by article 84Z of the

Merchant Shipping Act, the Minister for Transport, Infrastructure and

Capital Projects has made the following regulations:-

The title of these regulations is the Merchant Shipping Citation.

(Shipping Organisations - Private Companies) (Amendment)

Regulations, 2020, and they shall be read and construed as one with

the Merchant Shipping (Shipping Organisations - Private Companies) S.L. 234.42

Regulations, hereinafter referred to as "the principal regulations".

The Arrangement of Regulations

in

the

principal Amends the

Arrangement of

regulations shall be amended as follows

Regulations of

the principal

regulations.

(a) immediately after the words,

"Part VI Company

Reconstructions,

Conversions, Amalgamations

and Division of Companies

164",

there shall be added the following

"Part VIA

Continuation of Companies 164A - 164O

Sub-Part I

Continuation in Malta of a

Foreign Company

164A - 164H

Sub-Part II Continuation outside Malta

of companies incorporated

in Malta

164I - 164O";

(b)

immediately after the words,

Form relating to Notice to be governed by the

"Ninth

Companies Act",

Schedule

there shall be added the following

Penalties".

Tenth

Schedule

Regulation 1 of the principal regulations shall be amended

as follows

(a)

in sub-regulation (3) thereof

(i) for the words "The regulations", there shall be

substituted "These regulations";

(ii) immediately after the words "These regulations

shall apply", there shall be added the words ", with effect

from the 1 st August 2004,";

(iii) for the words "with effect from the 1 st August

2004," there shall be substituted the words", with the

exception of regulation 37, which shall apply with effect

from the 1 st May 2004"; and

(b) immediately after sub-regulation (4) thereof, there

shall be added the following new sub-regulation

"(5) For the purposes of sub-regulations (3) and (4)

and of Part VIII, "shipping company" means a company

whose objects are limited to the sole purpose of owning,

managing, administering or operating ships and to

transactions ancillary thereto formed and registered under

the Commercial Partnerships Ordinance.".

Regulation 3 of the principal regulations shall be amended

as follows

(a)

in sub-regulation (1) thereof

(i) the words " "annual accounts" means the

individual accounts required by regulation 66;" shall be

deleted;

(ii) immediately after the definition "appointed

day", there shall be added the following definition

" "approved country or jurisdiction" means such

country or jurisdiction as may be established from

time to time by guidelines issued by the Registrar;";

(iii) immediately after the definition "certificate of

registration", there shall be added the following definition

" "Companies Act" means Chapter 386 of the

Laws of Malta;" and

(iv) immediately after the definition "extraordinary

resolution" there shall be added the following definition

" "instrument of continuation" includes any

document or certificate confirming that a company

has been registered as continuing in an approved

country or jurisdiction other than Malta;"; and

(b) in sub-regulation (3) thereof immediately after the

words "the provisions of the Companies Act on such matter.", Cap. 386.

there shall be added the words "including any relevant

regulations issued under the Companies Act.".

In sub-regulation (1) of regulation 24, sub-regulations Amends

(2),(3) and (4) of regulation 98, sub-regulation (1) of regulation 148, regulations

98, 148, 154 and

sub-regulation (1) of regulation 154 and sub-regulation (3) of 168

principal

regulation 168 of the principal regulations, immediately after the regulations.

words "Gazette" there shall be added the words "or on a website

maintained by the Registrar".

Sub-regulation (1) of regulation 12 of the principal Amends

regulation 12 of

regulations shall be amended as follows

the principal

regulations.

(a) in paragraph (a) thereof, for the word "company"

there shall be substituted the word "organisation"; and

(b) for paragraph (f) thereof, there shall be substituted the

following

"(f) the objects of the company which shall be

limited to one or more of the activities referred to in sub-

article (1) of article 84Z of the Act.".

In the second proviso to sub-regulation (2) of regulation 13 Amends

of the principal regulations, the words ",in the case of a private regulation

the principal

company," shall be deleted.

regulations.

For regulation 14 of the principal regulations there shall be Substitutes

regulation 14 of

substituted the following

the principal

regulations.

"14. The objects of a company registered shall be limited

to one or more of the activities referred to in sub-article (1) of

article 84Z of the Act and to transactions ancillary thereto.".

Sub-regulation (2) of regulation 16 of the principal Amends

regulation 16 of

regulations shall be amended as follows

the principal

regulations.

(a)

for the words "duly registered articles.", there shall be

substituted "duly registered articles:"; and

(b) immediately after, there shall be inserted the

following proviso

"Provided that this provision shall not apply in

relation to model regulation 22 of the First Schedule, unless

that provision is expressly reproduced in the memorandum

or articles of the company.".

Regulation 37 of the principal regulations shall be amended

as follows

(a) in sub-regulation (1) thereof, for the words "unless

otherwise provided" there shall be substituted the words

"provided it is expressly permitted";

(b) for the proviso to sub-regulation (1) thereof there

shall be substituted the following

"Provided that in relation to transfers of shares, any

restriction resulting from the Memorandum or Articles of

the company shall, subject to the provisions of paragraph

(10) of this regulation, be deemed not to apply to transfers

by the pledgee in terms of paragraph (6) of this regulation

or resulting from any judicial sale.";

(c) for sub-regulation (3) thereof there shall be

substituted the following

"(3) Failure to deliver notice of the pledge to the

Registrar or the company within the time stated in the

preceding sub-regulation shall not render invalid the pledge

entered into between the parties; however the pledge of

securities shall be effective in relation to a third party only

after the registration by the Registrar of the notice."; and

(d) in sub-regulation (10) thereof for the words " "failing

such preemption rights" there shall be substituted the words "in

the absence of such preemptive rights".

In sub-regulation (1) of regulation 52 of the principal

regulations, the word "private", wherever it appears, shall be deleted.

Regulation 60 shall be amended as follows

(a) in sub-regulation (1) thereof, for the word

"representative" there shall be substituted the words "the person

who is vested with the representation of the company".

(b) immediately after sub-regulation (1) thereof, there

shall be added the following new sub-regulation

"(2) Where the company has appointed a company

secretary the directors shall send the return referred to in

sub-regulation (1). The return shall also be submitted in the

case of any change in the company secretary.

(c) sub-regulation (2) thereof shall be re-numbered as

sub-regulation (3).

Regulation 64 shall be substituted by the following new Substitutes

regulation 64 of

regulation

the principal

regulations.

"(1) The provisions of articles 163, 167, 170 to 183 and

articles 185 to 187 of Part V, Title I, Chapter X and the Third and

Sixth Schedule of the Companies Act shall apply mutatis Cap. 386.

mutandis to companies formed and registered under these

regulations, provided that the balance sheet total and turnover

mentioned in sub-article (1) of article 185 of the Companies Act Cap. 386.

shall be read as follows

-

balance

sheet

total

six

million

euro

(6,000,000);

-

turnover: twelve million euro (12,000,000);

-

and provided further that the aggregate balance

sheet total and aggregate turnover mentioned in sub-article Cap. 386.

(5) of article 185 of the Companies Act shall be read as

follows

-

aggregate balance sheet total: six million euro

(6,000,000) net or seven million and two hundred thousand

euro (7,200,000) gross;

-

aggregate turnover: twelve million euro

(12,000,000) net or fourteen million and four hundred

thousand euro (14,400,000) gross

Provided further that companies which qualify

as small companies shall also be entitled to the exemptions

mentioned in sub-article (2) of article 185 of the Cap. 386.

Companies Act and in the provisos to sub-article (2) of

article 183 of the Companies Act.

(2) The penalties in the Eleventh Schedule of the

Companies Act which would be applicable to any default in

terms of the articles mentioned in sub-regulation (1) shall apply.

(3) The marginal note to regulation 64 shall be

substituted by the following new marginal note "Annual

Accounts".

The word "note" in sub-regulation (3) of regulation 65 shall

be substituted by the word "notice".

Regulations 66 to 79, regulations 81 and 82 and the

Second, Third and Fourth Schedules shall be deleted.

In paragraph (a) in the proviso to sub-regulation (1) of

regulation 80 of the principal regulations, for the words "was,

immediately before the 1 st January 2004," there shall be substituted the

words "was, immediately before the coming into force of these

regulations".

Regulation 85 of the principal regulations shall be amended

as follows

(a) regulation 85 shall be renumbered as sub-regulation

"(1)"; and

(b) immediately after the new sub-regulation (1) thereof,

there shall be added the following new sub-regulation

"(2) An auditor must at all times adhere to the rules

on independence and professional ethics set out in the Code

of Ethics and any other regulations, directives or guidelines

issued from time to time in terms of the Accountancy

Profession Act.".

In sub-regulation (7) of regulation 92 of the principal

regulations, for the words "has not resigned" there shall be substituted

the words "has resigned".

Sub-regulation (2) of regulation 122 of the principal

regulations shall be amended as follows

(a) in paragraph (b) thereof, immediately after the words,

"provided by a" there shall be inserted the words "provisional

administrator,"; and

(b) in paragraph (d) thereof, immediately after the words

"remuneration of the" there shall be inserted the words

"provisional administrator or the".

In sub-regulation (1) of regulation 123 of the principal Amends

regulations, for the words "a winding up order" there shall be regulation

of the principal

substituted "any order under Part V".

regulations.

In regulation 126 of the principal regulations, sub- Amends

regulations (1), (2) and (3) shall be renumbered as sub-regulations (3), regulation

of the principal

(4) and (5) respectively and the following new sub-regulations (1) and regulations.

(2) shall be inserted

"(1) A person shall not be qualified to act as liquidator

unless he is an advocate or is an individual who is a certified

public accountant or certified public accountant and auditor or is

registered with the Registrar as fit and proper to exercise the

function of liquidator.

(2) A person who is qualified to act as liquidator in virtue

of sub-regulation (1), may not act as liquidator if he has held the

office of director or has held any other appointment with or in

connection with that company, at any time during the four years

prior to the date of dissolution of the company as determined in

accordance with the provisions of these regulations

Provided for the purposes of this sub-regulation,

director includes a person in accordance with whose directions

or instructions the directors of the company are or have been

accustomed to act.".

Sub-regulation (2) of regulation 132 of the principal Amends

regulation 132

regulations shall be amended as follows

of the principal

regulations.

(a) for the word "amount", there shall be substituted the

word "account"; and

(b) for the word "thereof.", there shall be substituted the

word "thereof:" and immediately thereafter the following proviso

shall be inserted

Provided that the provisions of regulation 85 shall

apply to an auditor appointed in terms of this sub-regulation.

Such auditor shall not be a person who has held the office of

auditor of the company at any time during the last three years

immediately preceding the date of dissolution.".

For regulation 134 of the principal regulations there shall

be substituted the following

"134. The liquidator shall keep the books and other

documents of the company for a period of ten years from the date

on which the name of the company was struck off the register.".

Regulation 138 of the principal regulations shall be

amended as follows

(a) for sub-regulation (2) thereof there shall be

substituted the following

"(2) Within seven days after the meeting, the

liquidator shall send to the Registrar a copy of the account

together with the notice of the holding of the meeting and

of its date, failing which the liquidator shall be liable to a

penalty, and, for every day during which the default

continues, to a further penalty

Provided that, if a quorum is not present at the

meeting, the liquidator shall in the notice mentioned above

state that the meeting was duly summoned and that no

quorum was present thereat."; and

(b) for sub-regulation (3) thereof there shall be

substituted the following

"(3) On receiving the account together with the

auditor’s report, if any, the notice of completion of

liquidation and of the holding of the meeting, the Registrar

shall forthwith register them and on the expiration of three

months from a notice published in the Gazette or on a

website maintained by the Registrar proceed to strike the

name of the company off the register

Provided that the court may, on an application

filed within the said period of three months by the

liquidator or by any other person who appears to the court

to have an interest, make an order deferring the date at

which the name of the company shall be struck off the

register for such time and subject to such conditions as the

court may provide.".

Regulation 162 of the principal regulations shall be

amended as follows

(a)

for the words "a company the assets", there shall be

substituted the words "a company, the assets"; and

(b) for the words "their debts the provisions of the Act

shall apply" there shall be substituted the words "their debts shall

be regulated by the provisions of the Act".

For regulations 8(8), 83(6), 89(2), 91(3), 94(1), 94(3),

131(2), and 146(3) of the principal regulations there shall be added the

following wording at the end of each regulation, "and, for every day

during which the default continues, to a further penalty.".

For regulation 164 of the principal regulations there shall Substitutes

be substituted the following

"Articles 327 to 329 in Part VI and Part VII to Part IX of

the Companies Act shall apply mutatis mutandis to these Cap. 386.

Regulations provided that Article 344 (3) of the Companies Act, Cap. 386.

shall be construed to require that the draft terms of merger, duly

completed, shall be signed by at least two directors unless the

Board of directors is composed of one in which case it will be

signed by that director.".

Immediately after Part VI of the principal regulations there Adds a new Part

shall be added the following new Part VI A

"PART VI A

CONTINUATION OF COMPANIES

SUB-PART I - Continuation in Malta of a Foreign Company

164A. A body corporate formed and

Eligibility to register

incorporated or registered under the laws of an

approved country or jurisdiction other than Malta

which is similar in nature to a company as known

under the Laws of Malta and whose objects must be

such that the company will, once registered in Malta,

qualify as a shipping organisation pursuant to article

84Z of the Act, hereinafter referred to as a "foreign

company" may, provided that there is a provision in

the law of that country or jurisdiction authorizing it to

do so, and provided it is also authorized to do so by its

charter, statutes or memorandum and articles or other

instrument constituting or defining the company,

hereinafter referred to as "the constitutive document",

request the Registrar to be registered as being

continued in Malta .

164B. A request by a foreign company for

registration as being continued in Malta shall be made

to the Registrar in the manner and form prescribed by

him and shall be accompanied by

(a) the

resolution

or

equivalent

document of the foreign company authorizing it

to be registered as being continued in Malta, 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; the

resolution or equivalent document has as far as

practicably possible, to be in such manner, by

such constituted body and with such majority as

would be the equivalent, under the laws of the

country or jurisdiction of formation and

incorporation or registration, and according to its

constitutive document, of an extraordinary

resolution under the laws of Malta;

(b) a copy of the revised constitutive

document including all the requirements

necessary for the registration of a company in

Malta in accordance with the provisions of these

regulations;

(c) a certificate of good standing or

equivalent document in respect of the foreign

company issued by the competent authority in

which the foreign company was formed and

incorporated or registered or other evidence to

the satisfaction of the Registrar that the foreign

company is in compliance with the registration

requirements of that authority, 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;

(d) a declaration signed by at least two

directors of the foreign company, unless the

Board of Directors is composed of one, or,

where that foreign company does not have

directors, by at least two persons vested with the

administration or the representation of the

foreign company to be registered as continued in

Malta, confirming

(i) the name of the foreign

company and the name under which it is

being continued;

(ii) the jurisdiction under which it

is incorporated;

(iii) the date of incorporation;

(iv) the decision to have the foreign

company registered as continuing in Malta;

(v) that the foreign company has

given formal notice to the relevant

authority of the country or jurisdiction

where the foreign company was formed,

incorporated or registered as continuing in

Malta in accordance with the procedure

laid down by law; and, together with the

declaration, there shall be annexed

evidence of such notification;

(vi) that no proceedings for breach

of the laws of the country or jurisdiction of

incorporation have been commenced

against such foreign company, unless such

proceedings arise out of an event which on

the date of the occurrence thereof did not

constitute such a breach; and

(vii) the solvency of the foreign

company and that they are not aware of any

circumstances which could negatively

affect in a material manner, the solvency

position of the company within a period of

twelve months

Provided that any director of

the foreign company, or the persons vested

with the administration or representation of

the foreign company, making a declaration

of solvency under sub-paragraph (vii)

without having reasonable grounds on

which to make this declaration shall be

guilty of an offence and liable on

conviction to a fine (multa) of not more

than fifty thousand euro.

(e) a list of directors of the foreign

company as well as of the company secretary, if

any, or of the persons vested with the

administration or the representation of the

foreign company, where that foreign company

does not have directors or a company secretary;

(f) such material as the Registrar may

require to satisfy himself that -

(i) such request is permitted by the

laws of the country or jurisdiction in which

the foreign company has been formed and

incorporated or registered; and

(ii) the consent of such number or

proportion of the shareholders, debenture-

holders and creditors of the foreign

company as may be required by the laws of

the country or jurisdiction of formation and

incorporation or registration to such

request has been obtained;

(g) the registration fees set out in the

Companies Act (Fees) Regulations, relating to

the registration of commercial partnerships,

which fees shall apply mutatis mutandis to

foreign companies requesting to be registered as

being continued in Malta.

164C. The documents referred to in regulation

164B shall be delivered for registration to the

Registrar who, being satisfied that they comply with

the provisions of these regulations shall provisionally

register them and certify under his hand that the

company is provisionally registered as continuing in

Malta as from the date of registration, which date shall

be indicated in the Provisional Certificate of

Continuation. Upon the issue of such Provisional

Certificate of Continuation the company shall be

deemed thereafter to be a company provisionally

registered.

164D. With effect from the date of the

Provisional Certificate of Continuation issued by the

Registrar in accordance with regulation 164C

(a) the company to which the provisional

certificate of continuation relates -

(i) shall continue to be a body

corporate

incorporated

under

the

regulations under the name designated in

the declaration referred to in paragraph (d)

of regulation 164B, and shall be deemed as

provisionally registered in Malta for all

purposes of law; and

(ii) is subject to all the obligations

and capable of exercising all the powers of

a company registered under these

regulations.

(b) the constitutive document as revised

in accordance with paragraph (b) of regulation

164B is considered as the Memorandum and

Articles of Association of the company;

(c) the registration of a foreign company

under Sub-Part I shall not operate -

(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;

(v) to release or impair any

conviction, judgment, 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.

164E. (1) 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, hereinafter referred to as "pledge", 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

regulation 37 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 law 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 sub-

regulation (2) of regulation 37 within fourteen

days of the date of issue of the provisional

certificate of registration in Malta

Provided that failure to deliver notice

of the pledge to the Registrar or the company

within the time stated in this paragraph shall not

render invalid the pledge entered into between

the parties; however the pledge of securities

shall be effective in relation to a third party only

after the registration by the Registrar of the

notice.

(2) A pledge of shares as mentioned in sub-

regulation (1)

(a) 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 regulation 37 shall apply;

(b) 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.

(3) The party delivering the notice of pledge to

the Registrar in Malta in terms of this regulation shall

also notify the other party to the pledge agreement by

serving him with a true copy of the said notice within

fourteen days of notification to the Registrar.

(4) On termination of the pledge, a notice of

termination of the pledge shall be delivered to the

Registrar for registration in accordance with the

provisions of sub-regulation (13) of regulation 37.

164F. Within a period of six months from the

Failure to deregister.

date of the issue by the Registrar of the Provisional

Certificate of Continuation, the company shall submit

documentary evidence to the Registrar that it has

ceased to be a company registered in the country or

jurisdiction where it had been previously formed and

incorporated or registered. Failure by the foreign

company to provide such documentary evidence shall

grant the Registrar discretion to

(a) either strike the name of the company

off the register and inform the relevant authority

of the country or jurisdiction concerned that the

company is not registered in Malta; or

(b) upon reasonable cause being shown

allow a further period of three months prior to

striking the name of the company off the

register.

164G. Upon presentation to the Registrar of

proof of the company having ceased to be a company

registered in the country or jurisdiction where it had

been previously formed and incorporated or registered

and upon the surrender to the Registrar of the

Provisional Certificate of Continuation, the Registrar

shall issue a Certificate of Continuation confirming

that the company has been registered as continuing in

Malta.

164H. No request for the registration of a foreign

company as being continued in Malta may be granted

if -

(a) the dissolution or winding up of the

foreign company has commenced or insolvency

proceedings,

arrangements,

compositions,

recovery proceedings or any other analogous

proceedings have been commenced by or against

the foreign company;

(b) a liquidator or special administrator

of the foreign company or a receiver of its

property has been appointed;

(c) there is any scheme or order in

relation thereto whereby the rights of creditors

are suspended or restricted;

(d) any proceedings for breach of laws of

the country or jurisdiction of incorporation have

been commenced against such foreign company,

not being proceedings arising out of an event

which on the date of the occurrence thereof did

not constitute such a breach.

SUB-PART II - Continuation outside Malta of companies

incorporated in Malta

164I. A company registered under these

Eligibility to register

regulations may, where the laws of an approved

country or jurisdiction so allow, upon obtaining the

consent of the Registrar, apply to the proper authority

of such country or jurisdiction selected to have the

company registered as continued as if it had been

incorporated under the laws of that other country or

jurisdiction; and on the date of the instrument of

continuation the company shall become a company

under the laws of that other country or jurisdiction and

shall be subject to such laws as permitted or required

by that other country or jurisdiction.

164J. A request by a company for the consent of

Request for consent

the

Registrar

to be continued as a company outside

Malta under the laws of an approved country or

jurisdiction shall be made to the Registrar in the

manner and form prescribed by him and shall be

accompanied by a declaration signed by at least two

directors of the company, unless the Board of

Directors is composed of one, containing

(a) the name of the company and the

name, if different, under which registration in

the approved country or jurisdiction is being

sought;

(b) the place of proposed registration of

the company and the name and address of the

competent authority in that approved country or

jurisdiction;

(c) the date on which it is proposed to

establish domicile in the relevant approved

country or jurisdiction.

164K. No company may request the Registrar for

his consent under regulation 164J unless -

(a) an extraordinary resolution of the

shareholders of the company was approved in

accordance with the memorandum or articles of

association of the company authorizing such

request. The extraordinary resolution shall be

delivered to the Registrar for registration;

(b) (i)

the company has delivered to

the Registrar for registration a declaration signed

by at least two directors of the company, unless

the Board of Directors is composed of one,

confirming the solvency of the company and

confirming that the directors are not aware of

any circumstances which could negatively affect

in a material manner the solvency position of the

company within a period of twelve months;

(ii) any director of a company

making a declaration of solvency under

sub-paragraph (b) (i) without having any

reasonable grounds on which to make this

declaration shall be guilty of an offence

and liable on conviction to a fine (multa) of

not more than fifty thousand euro

(€50,000);

(c) payment has been made of all fees

and penalties due under these regulations or any

other law or regulations which may be

applicable; and

(d) the prescribed fee has been paid for.

164L. The Registrar shall not give his consent to

Requirements for

consent.

a company requesting to be continued in another

country or jurisdiction unless he is satisfied that -

(a) the requirements of regulation 164J

have been complied with;

(b) no proceedings for the dissolution of

the

company,

insolvency

proceedings,

arrangements,

compositions,

recovery

proceedings or any other analogous proceedings

have been commenced by or against the

company in Malta or elsewhere;

(c) any pledgee of shares in accordance

with the regulations has given his consent in

writing to the intended continuation of the

company in another country or jurisdiction; and

(d) the company at the time of such

request is not in breach of any of its duties or

obligations under the regulations: Provided that

the Registrar may in his discretion give his

consent if payment of any penalty due is made.

164M. (1) In addition to the requirements of

Right of creditors to

oppose continuation.

regulation 164L, the Registrar shall not give his

consent for the continuation of the company in another

approved country or jurisdiction until the lapse of

three months from the date of the publication, in the

Gazette or on a website maintained by the Registrar

and in a daily newspaper circulating wholly or mainly

in Malta, of a notice relating to the extraordinary

resolution referred to in paragraph (a) of regulation

164K. (2) During the aforesaid period of three

months any creditor of the company whose debt

existed prior to the publication of the notice referred to

in sub-regulation (1) may, by sworn application, object

to such continuation and, if he shows good cause why

it should not take effect, the Court shall either uphold

the objection or allow the continuation of the company

on sufficient security being given.

164N. Upon an instrument of continuation

continuing the company in another country or

jurisdiction being issued by the relevant authority of

the said country or jurisdiction, the company shall

forthwith deliver to the Registrar a copy of the

instrument of continuation and the company shall be

deemed to have ceased to be a company incorporated

in Malta from the date when its continuation in that

other country or jurisdiction takes effect, and the

Registrar shall strike the name of the company off the

register

Provided that nothing in this regulation shall -

(a) take away or affect the jurisdiction of

any court in Malta to hear and determine any

proceedings commenced therein by or against

the company before it ceased to be a company

registered in Malta;

(b) affect the property of the company;

(c) render defective any legal or other

proceedings instituted or to be instituted, by or

against the company; or

(d) release or impair any conviction,

judgment, ruling, order, debt, liability or

obligation due or to become due or any cause

existing against the company or any other

person.

164O. The Registrar shall keep a register of all

companies that obtained his consent to register as

being continued in another approved country or

jurisdiction. The register shall contain a record of the

name in which the company is registered as being

continued as well as all relevant details.".

(1) Regulation 165 of the principal regulations shall be Amends

amended as follows

(a) regulation 165 of the principal regulations shall be

renumbered as sub-regulation (1) thereof, and for the marginal

note there shall be substituted the following: "Judicial Service of Cap. 12.

Acts and Duties of the Registrar".

(b) immediately after sub-regulation (1) of regulation

165 as renumbered, there shall be added the following new sub-

regulations

"(2) It shall be the duty of the Registrar,

(a)

where under any provision -

(i) any document is required to be

delivered or given to or served on him for

registration; or

(ii) any certificate is issued by him on

the registration or change of name or

conversion or amalgamation or division of a

company, or the name of a company is struck

off the register,

(iii) to cause without delay a statement

to be published in the Gazette or on a website

maintained by the Registrar showing the date at

which the registration, delivery or service was

made, or at which the certificate was issued or

at which the name of the company was struck

off the register, and the general nature of the

document or certificate, and giving such

particulars as are necessary to distinguish the

company to which the statement related

Provided that the Registrar shall

additionally be required to publish without

delay in a daily newspaper circulating wholly or

mainly in Malta a notice showing substantially

the same information contained in the statement

published in the Gazette or on the website,

consequent to the registration referred to in the

following provisions of these regulations

Sub-regulation (1) of regulation 106;

Regulation 152;

Regulation 164.

In the event of any reduction

referred to in regulation 24, the Registrar shall

proceed with the publication of a statement in

the Gazette or on the website and in a daily

newspaper in accordance with the requirements

of this regulation.

The publication of the notice

referred to in this proviso shall be subject to the

following provisions

(i)

The publication of the notice

shall be made by the Registrar at the

expense of the company concerned;

(ii)

A company, liable for the

expense of the publication of a notice in

accordance with this proviso, shall effect

payment without delay, and in the event

that such company is or has been

dissolved, the Registrar shall, in regard to

the said expense, enjoy the same

preferential ranking as expenses properly

incurred by a liquidator;

(iii) The expense incurred by the

Registrar in publishing a notice pursuant

to this proviso shall be notified in writing

to the company or person liable for the

expense in accordance with this proviso.

Such notification shall be deemed

equivalent to a notice given in terms of

sub-regulation (4), and the expense

incurred by the Registrar shall, in so far as

applicable, be considered equivalent to a

penalty referred to in the same sub-

regulation. The provision of sub-

regulations (4) to (18) shall mutatis

mutandis apply to such expense;

(b) to supply copies, certified copies or

verified and certified copies of documents registered

pursuant to this regulation against payment of the

prescribed fee to any person who requests them, and

such copies may also be supplied by electronic

means;

(c) to deliver to the Director of the Public

Registry for registration at the Public Registry Office

a notice containing the particulars of any conversion,

amalgamation or division which has taken effect in

accordance with Part VI, or the striking off of the

name of a company, under the provisions of

regulation 98. Such notice shall show substantially

the same particulars as the statement published in the

Gazette or on the website maintained by the Registrar

pursuant to the proviso to this regulation; and it shall

be the duty of the Director of the Public Registry to

register the notice or a note thereof in like manner as

notes of reference, in so far as applicable, as the

Director may consider appropriate.

(3) Any document, certificate or other particular

required to be delivered, given to or served on the Registrar

for registration may be relied on by the company as against

third parties only after it has been duly published in

accordance with sub-regulation (2), unless the company

proves that third parties had knowledge thereof in which

case the company may rely on any such document,

certificate or other particular notwithstanding that it has not

yet been so published. Any transactions taking place before

the sixteenth day following the publication of any such

document, certificate or other particular, shall not be relied

on as against third parties who prove that it was not

possible for them to have had knowledge thereof

Provided that at any time third parties may

always rely on any such document, certificate or other

particular, even if the publication formalities in relation

thereto have not at that time been complied with

Provided further that where these regulations

require that any provision shall not take effect until the

lapse of a particular period, the provisions of this sub-

regulation shall only come into effect on the lapse of the

later period.

(4) Where the Registrar gives notice in writing to

any person that such person has become liable to a penalty

specifying the nature of the infringement, and indicating an

amount as due by way of penalty in respect of such

infringement, the person to whom the notice is given shall,

without prejudice to the provisions of sub-regulations (5) to

(18), be deemed to have incurred a penalty, and the amount

indicated as aforesaid as due by way of penalty including

any penalty due for each day during which the default

continues shall be deemed to be the penalty due in respect

of the infringement specified in the notice.

(5) A notice as is referred to in sub-regulation (4)

shall, upon the service of a copy thereof by means of a

judicial act on the person indicated in the notice, constitute

an executive title for all effects and purposes of Title VII of

Part I of Book Second of the Code of Organization and

Civil Procedure unless such person shall within thirty days

from the date of such service institute proceedings before

the court objecting to the penalty so fixed.

(6) Where any person desires to institute

proceedings objecting to a penalty referred to in sub-

regulation (4), such proceedings shall be instituted by

application against the Registrar.

(7) The application shall, under pain of nullity,

state clearly and concisely the nature of the complaint, the

facts out of which the complaint arises, the reasons why

such complaint should be upheld, and the claim that the

penalty is not due at law or is due at law only in a smaller

amount.

(8) The court shall not annul or reduce a penalty as

aforesaid unless such penalty cannot at law be imposed in

the circumstances of the case, or cannot at law be fixed in

the amount fixed by the Registrar.

(9) The applicant shall attach to the application all

such documents in support of his claim as it may be in his

power to produce, and shall indicate in his application the

names of all witnesses he intends to produce stating, in

respect of each, the proof which he intends to make.

(10) The court shall, without delay, set down the

application for hearing at an early date, which date shall in

no case be later than thirty days from the date of the filing

of the application.

(11) The application, and the notice of the date

fixed for hearing, shall be served on the Registrar without

delay, and the said Registrar shall file his reply thereto

within fourteen days after the date of the service of the

application.

(12) The Registrar shall, in his reply, state clearly

and concisely whether he agrees to the facts set out in the

application, and the reasons why he objects to the claim; he

shall moreover state in his reply the names of the witnesses

in support of his reasons and shall attach thereto all the

document in support thereof.

(13) On the day fixed for the hearing of the

application, the court shall consider only the issues of fact

and of law as are ascertainable from the application, reply

or documents filed, by either of the parties, or from the

evidence indicated by either of the parties in the application

or reply as the case may be, or from the oral pleading of

either of the parties.

(14) The court shall hear the application to a

conclusion within five working days from the date fixed for

the original hearing of the application, and no adjournment

shall be granted except either with the consent of both

parties, or for an exceptional reason to be recorded by the

court, and such adjourned date shall not be later than that

justified by any such reason.

(15) Saving the preceding provisions of this

regulation, the provisions of the Code of Organization and Cap. 12.

Civil Procedure relating to proceedings before the First

Hall of the Civil Court shall apply in relation to any such

application.

(16) Notwithstanding the provisions of sub-article

(2) of article 256 of the Code of Organization and Civil Cap. 12.

Procedure, the executive title referred to in sub-regulation

(5) shall not be enforceable before the lapse of thirty days

from the service of the judicial act therein referred to.

(17) The decision of the court upon an application

referred to in sub-regulation (6), confirming the imposition

of a penalty fixed by the Registrar or reducing any such

penalty, shall upon becoming res judicata be deemed to be

a judgment of the court ordering the payment by the

applicant of the penalty as confirmed or reduced.

(18) An appeal from a decision of the court upon an

application referred to in sub-regulation (6), shall be made

by means of an application to the Court of Appeal to be

filed within six working days of the date of the decision;

the person against whom the appeal is entered shall within

six working days from the service upon him of the

application file a reply to the appeal.".

For regulation 166 of the principal regulations there shall

be substituted the following

166. (1) Where any provision provides for the

imposition of a penalty, the amount of such penalty shall be

determined by reference to the Tenth Schedule which

specifies the maximum penalty that may be imposed by the

Registrar under any of the provisions of these regulations.

(2) In the Tenth Schedule, the first column indicates

the regulation and sub-regulation which prescribes that a

penalty shall be imposed, the second column gives a general

description of the infringement, which description shall not

be relied on in interpreting any provision of, the third

column prescribes the maximum penalty and the fourth

column prescribes the maximum daily default penalty, if

any. The daily default penalty shall be due for every day

during which the default continues and shall accrue from the

day on which the Registrar gives notice under sub-regulation

(4) of regulation 165 that a penalty is due.

(3) Action by the Registrar for the recovery of a

penalty shall be prescribed by the lapse of five years from

the day on which the default occurs.

(4) A company shall be jointly and severally liable

with its officers for the payment of any administrative

penalties imposed.".

Immediately after regulation 167 of the principal Adds a new

regulation 167A

regulations there shall be inserted the following new regulation

to the principal

regulations.

" Fees under

167A. The fees prescribed in the Companies Act

(Fees) Regulations shall apply mutatis mutandis to the

companies formed and registered in terms of these

regulations.".

Regulation 168 (3) of the principal regulations shall be Amends

deleted and sub-regulations (4) and (5) thereof shall be renumbered as regulation

of the principal

(3) and (4) respectively.

regulations.

Part I of the First Schedule to the principal regulations shall Amends the

First Schedule

be amended as follows

to the principal

regulations.

(a)

in the title, for the words "SHIPPING COMPANY"

there shall be substituted the words "SHIPPING

ORGANISATION - PRIVATE COMPANY FOR THE

PURPOSES OF THESE REGULATIONS";

(b) in model regulation 8, for the words "two per cent",

there shall be substituted the words "eight per cent per annum";

(c) in model regulation 11, following the words "per

cent", there shall be inserted the words "per annum"; and

(d) in paragraph (b) of model regulation 22, for the word

"shares" there shall be substituted the word "securities".

Immediately at the end of the Fifth Schedule to the Amends the

Fifth Schedule

principal regulations, the following words shall be inserted

to the principal

regulations.

"Signed ……………………………

Director/Secretary/

Representative".

The Seventh Schedule to the principal regulations shall be Amends the

Seventh

amended as follows

Schedule to the

principal

regulations.

(a)

in Form D

(i) for the words "Pursuant to Regulation 26(1)(b)"

in the title, there shall be substituted the words "Pursuant to

Regulation 26(b)";

(ii) for the words "with regulation 26(1)(b)", there

shall be substituted the words "with regulation 26(b)";

(iii) for the words "was made", there shall be

substituted the words "was/will be made*";

(b) in Form I for the words "Notification of changes

among directors or in the representation of a company", there

shall be substituted the words "Notification of changes among

directors, in the representation or in the secretary of a company"

(c)

for Form Q, there shall be substituted the following

"Form Q

No. of Company ……………..............………………

MERCHANT SHIPPING (Shipping Organisations -

Private Companies) REGULATIONS

Notice of completion of liquidation and holding of

final meeting

Pursuant to Regulation 132(3) and regulation 138(2)

Name of Company …………………….....………......

Delivered by …………………………….....…………

To the Registrar of Companies

I ……………………………being the liquidator of

(a) ………………………………………………….

hereby give notice that

(i) the liquidation of the said company has

been

completed

on

……………

of

……………………. of the year ……………………;

and

(ii) *the account of the winding up was laid

before a general meeting held on ……………. of

……………. of the year ……………./* the meeting

was duly summoned on ……………… of the

year……………… and that no quorum was present

thereat.

Signature ………………………......…… Liquidator

Dated this ……………….......…….. day of

…………………...............................................……

of the year ………………................

This form must be completed in typed form.

(a)

State company name."

(d) Immediately after Form U, there shall be

added the following new Form V

"Form V

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

MERCHANT SHIPPING (Shipping Organisations -

Private Companies) REGULATIONS

Notification of change in registered office of a

company

Pursuant to Regulation 20(2)

Name of Company: ....................................................

Delivered by:...............................................................

To the Registrar of Companies

(a) ……………………………………hereby gives

notice in accordance with Regulation 20(2) of the Merchant

Shipping (Shipping Organisations - Private Companies)

Regulations, 2004 that the company has changed its

registered office to: ………………………………...........

Effective Date of Change …………………………

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

Director/Secretary/Representative*

Dated

this

………………………..

day

of

……………….. of the year ….....................

This form must be completed in typed form.

(a)

State company name.

*Delete as necessary. "

Following the Ninth Schedule of the principal regulations,

there shall be added the following new Tenth Schedule

"TENTH SCHEDULE

(Regulation 166)

PENALTIES

Daily

Regulation

Default

Penalty

Penalty

5(3)

Failure

to

indicate

500 euro

None

particulars

concerning

company

on

business

letters, etc.; liquidator

failing to include statement

on business letters, etc., that

company is being wound

up or failing to include

names of liquidators of

company being wound up

6(3)

Officers

of

private

2500 euro

None

company offering shares or

debentures for sale to the

public

8(8)

Officers of company failing

500 euro

25 euro

to deliver notice to

Registrar of becoming or

ceasing to be a single

member company

500 euro

25 euro

20(4)

Failure of officer to deliver

a copy of any resolution

altering or adding to a

company’s memorandum

or articles to the Registrar

or failure to deliver

amended memorandum and

articles

25(4)

Failure of officer to file

500 euro

25 euro

copy

of

resolution

increasing share capital

31(6)

Failure of officers to

500 euro

25 euro

provide Registrar with

notice of redemption of

preference shares

Daily

Regulation

Default

Penalty

Penalty

35(6)

Failure of company to send

500 euro

25 euro

notice to transferee of

refusal to register transfer

of shares and debentures

36(4)

Failure of officers to

500 euro

25 euro

comply with provisions as

to issue of share certificates

38(4)

Failure of officers of

500 euro

25 euro

company to comply with

provisions as to register of

members

39(4)

Failure of officers of

500 euro

25 euro

company to keep proper

register of debentures

43(3)

Failure of officers of

2500 euro

50 euro

company to hold annual

general meeting

48(3)

Failure of officers of

500 euro

None

company to give notice to

members of right to vote by

proxy at a meeting of the

company

48(5)

Officer

of

company

500 euro

None

contravening

further

provisions as to votes by

proxy at meetings of the

company

59(2)

Director failing to disclose

2,500 euro

None

interest in contract

60(2)

Officers of company failing

500 euro

25 euro

to make return as to change

in directors

63(4)

Officers of company failing

1,200 euro

None

to make minutes of general

meetings and to keep

minute book at registered

office

80(3)

Officers of company failing

2,500 euro

50 euro

to file annual return

83(6)

Officers of company failing

500 euro

25 euro

to give notice to Registrar

of default in appointment of

auditors

Daily

Regulation

Default

Penalty

Penalty

86(3)

Officer and auditors of

500 euro

None

subsidiary

undertaking

failing to give information

to auditors of parent

company

500 euro

None

86(4)

Officers of parent company

failing to provide auditors

with

information

concerning

oversea

subsidiary

89(2)

Officers of company failing

500 euro

25 euro

to give notice to Registrar

of resolution removing an

auditor

91(3)

Officer of company failing

2,500 euro

50 euro

to give notice to Registrar

of resignation of auditor

92(5)

Directors failing to take

2,500 euro

None

reasonable steps to convene

a meeting requisitioned by

a resigning auditor

94(1)

Auditor failing to comply

1,200 euro

35 euro

with

requirement

of

regulation 93 upon ceasing

to hold office

94(3)

Officers of company failing

1,200 euro

35 euro

to comply with regulation

93 upon an auditor’s

ceasing to hold office

128. Officers of company failing

500 euro

25 euro

to give to Registrar notice

of resolution for dissolution

and voluntary winding up

128. Directors

failing

to

2,500 euro

50 euro

summon general meeting or

failing to apply to the court

for

appointment

of

liquidator

128. Liquidator failing to notify

500 euro

25 euro

Registrar of appointment

131(2)

Liquidator

failing

to

1,200 euro

35 euro

comply

with

periodic

reporting requirements

Daily

Regulation

Default

Penalty

Penalty

132(4)

Liquidator

failing

to

500 euro

25 euro

provide Registrar with

notice of completion of

liquidation

138(2)

Liquidator

failing

to

500 euro

25 euro

provide Registrar with copy

of the winding up account

or a return of the general

meeting on members’

voluntary winding up

138(4)

Liquidator failing to call

500 euro

None

final meeting in members’

voluntary winding up

141(5)

Directors failing to comply

2,500 euro

None

with requirements as to

creditors’

meeting

following resolution for

dissolution and voluntary

winding up

142(4)

Failure of directors to apply

2,500 euro

50 euro

to the court to appoint

liquidator

146(3)

Liquidator

failing

to

500 euro

None

convene

meetings

of

company and of creditors

where

winding

up

continues for more than

twelve months

500 euro

25 euro

147(2)

Liquidator

failing

to

provide Registrar with copy

of winding up account or a

return of the company and

creditors’ meetings on a

creditors’

voluntary

winding up

None ".

147(3)

Liquidator failing to call

1,200 euro

general

meeting

or

creditors’

meeting

on

creditors’

voluntary

winding up

€1.44