Regulations, 2021

Suppliment tal-Gazzetta tal-Gvern ta’ Malta, Nru. 20,731, 9 ta’ Novembru, 2021

L.N. 422 of 2021

COMPANIES ACT

(CAP. 386)

Companies Act (Use of Digital Tools and Processes)

Regulations, 2021

IN EXERCISE of the powers conferred by article 425 of the

Companies Act, the Minister for the Economy and Industry has made

the following regulations:-

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

scope.

(Use of Digital Tools and Processes) Regulations, 2021.

(2) The scope of these regulations is to transpose Directive

(EU) 2019/1151 of the European Parliament and of the Council of 20

June 2019 amending Directive (EU) 2017/1132 as regards the use of

digital tools and processes in company law, and they shall be

interpreted and applied accordingly.

In these regulations, unless the context otherwise requires

Interpretation.

"Act" means the Companies Act;

"electronic identification means" means an electronic

identification means as defined in point (2) of Article 3 of Regulation

(EU) No 910/2014 of the European Parliament and of the Council;

"electronic identification scheme" means an electronic

identification scheme as defined in point (4) of Article 3 of

Regulation (EU) No 910/2014 of the European Parliament and of the

Council;

"electronic means" means electronic equipment used for the

processing, including digital compression, and the storage of data,

through which information is initially sent and received at its

destination; that information being entirely transmitted, conveyed and

received in a manner to be determined by Member States;

"formation" means the whole process of establishing a company

in accordance with the Act and any other subsidiary legislation

thereto, including the drawing up of the company’s memorandum and

articles of association, if any, and all the necessary steps for the entry

of the company in the register;

"registration of a branch" means a process leading to disclosure

of documents and information relating to a branch newly opened in a

Member State;

"template" means a model for the memorandum and articles of

association of a company which is drawn up by Member States in

compliance with national law and is used for the online formation of a

company;

"Member States" means a Member State of the European Union

and includes an EEA State.

(1) The Registrar shall ensure that the following

identification means shall be recognized for the purposes of online

procedures and which may be used by applicants who are Union

citizens

(a)

an electronic identification means issued under an

electronic identification scheme approved in Malta;

(b) an electronic identification means issued in another

Member State and recognized for the purpose of cross-border

authentication in accordance with Article 6 of Regulation (EU)

No 910/2014.

(2) The Registrar may refuse to recognize electronic

identification means where the assurance levels of those

identification means do not comply with the requirements set out in

Article 6(1) of Regulation (EU) No 910/2014.

(3) All identification means recognized by the Registrar shall

be made publicly available.

(4) Where justified by reason of public interest in preventing

identity misuse or alteration and where there are reasons to suspect

identity falsification, the Registrar may, on a case-by-case basis,

require, for the purposes of verifying an applicant’s identity, the

taking of the necessary measures which could require the physical

presence of that applicant to fulfil any aspect of the online procedures

referred to in these regulations, including the drawing up of the

memorandum and articles of association of a company.

(5) The provisions of sub-regulation (4) shall not preclude the

applicant from completing any other steps of the procedure online.

(1) The Registrar shall ensure that concise and user-

friendly information, that may serve to assist in the formation of

companies and the registration of branches, is made available on the

registration portal as maintained by him.

(2) The information referred to in sub-regulation (1) shall be

made available free of charge, in the English language, and accessible

by means of the Single Digital Gateway.

(3) The information shall at least include the following

(a)

rules on the formation of companies and the

associated online procedures, including the use of templates,

requirements relating to the use of templates, identification of

persons, use of languages and applicable fees;

(b) rules on the registration of branches and the

associated online procedures, including the requirements

relating to the registration of documents, identification of

persons and use of languages;

(c)

rules on becoming a director, company secretary and

judicial or legal representative of a company, including rules on

the disqualification of directors as referred to in the Act and the

supervisory entities responsible for keeping information about

disqualified directors; and

(d) the powers and responsibilities of persons holding

the office of director, company secretary and the legal and

judicial representation of the company.

Save as otherwise provided in these regulations, the Online

Registrar shall ensure that the online formation of companies, formation

companies.

including the drawing up of the memorandum and articles of

association of a company, may be carried out fully online, through the

registration portal as maintained by him, without the necessity for the

applicants to appear in person.

(1) The Registrar shall ensure that for the process of the Submission of

online formation of companies, including the use of templates as documents

information.

referred to in these regulations and on the documents and information

required for the formation of a company, the submission of

documents or information may be carried out in electronic form.

(2) The Registrar shall ensure that electronic copies of

documents and information provided by the register during the

process of the online formation of companies, are authenticated by

means of trust services referred to in Regulation (EU) No 910/2014.

(1) The Registrar shall ensure that every online Conformity with

formation of a company complies with the provisions of the Act the

of the Act.

relating to the formation of companies including

(a)

procedures to ensure that the applicants have the

necessary legal capacity and authority to represent the

company;

(b) means to verify the identity of the applicants

through the appropriate electronic identification means;

(c)

requirements for the applicants to use trust services

referred to in Regulation (EU) No 910/2014;

(d) procedures to verify the legality of the object of the

company;

(e)

procedures to verify the legality of the name of the

company; and

(f)

procedures to verify the appointment of directors.

(2) The foregoing requirements may also include the

following

(a)

procedures to ensure the legality of the company’s

memorandum and articles of association, including the correct

use of templates;

(b)

consequences of the disqualification of a director;

(c)

the role of the company service provider or other

authorised person responsible for any aspect relating to the

online formation of a company in accordance with the Company

Service Providers Act; and, or

(d) the exclusion of online formation where the share

capital of the company is paid by way of contributions in kind.

(1) The online formation of a company shall not be

conditional on obtaining a licence or authorisation, save for the

provisions of articles 76 and 77 of the Act.

(2) The Registrar shall ensure that where the payment of share

capital is required as part of the procedure to form a company, the

necessary means are provided for such payment to be made online to

a bank account of a bank operating in the Union in accordance with

regulation 16 and shall ensure the existence of means to provide for

proof of such payments online.

(1) The Registrar shall ensure that the online formation

of companies formed exclusively by natural persons, who use the

templates referred to in these regulations, is completed within five

working days.

(2) In all other cases, online formation shall be completed

within ten working days from the later of the following

(a)

the date of completion of all formalities required for

the online formation of a company, including the submission of

documents and information required to be delivered for

registration to the Registrar; or

(b) the date of the payment of the registration fee, the

payment in cash for share capital or the payment for the share

capital by way of a contribution in kind.

(3) Where it is not possible for the online formation to be

completed within the foregoing time periods, the Registrar shall

notify the applicant of the reasons for the delay.

(1) The Registrar may, where justified by reason of the Physical

public interest in ensuring compliance with the rules on legal capacity presence

applicant may

and on the authority of applicants to represent a company, including be required.

the drawing up of the memorandum and articles of a company,

request the physical presence of the applicant.

(2) The provisions of sub-regulation (1) shall not preclude any

other steps of the procedure from being completed online.

(1) Templates for the online formation of companies Templates.

shall be made available on the registration portal maintained by the

Registrar, which will be accessible by means of the Single Digital

Gateway.

(2) The templates may be used by the applicants for the online

formation of companies.

(3) The templates shall be made available in the English

language, as a language broadly understood by the largest possible

number of cross-border users.

(1) The Registrar shall ensure that the following Filing and

documents and information, including any modification thereof, may authentication

of documents

be filed online through electronic means and authenticated, where and information.

applicable, in accordance with article 82 of the Act

(a)

the memorandum and the articles of association, if

any, of a company;

(b)

any amendments to the memorandum and articles of

association of a company;

(c)

the complete amended text, to date, of the

memorandum and articles of association, if any, following every

amendment;

(d) the appointment, termination of office and

particulars of the persons who either as a body constituted

pursuant to law or as members of any such body are

(i) legal or judicial representatives of the

company and whether such representation is held jointly or

not;

(ii)

directors of the company;

(iii)

Company secretary;

(e)

at least once a year, the amount of subscribed share

capital where the memorandum or articles of association of a

company mention an authorised share capital, unless the

increase in share capital necessitates an amendment to the

memorandum and articles of association;

(f)

the financial statements for each financial year;

(g)

any change in the registered office of the company;

(h)

the winding-up of the company;

(i)

any declaration of nullity of the company by the

courts;

(j)

the appointment of liquidators, particulars

concerning them and their respective powers, unless such

powers are those expressly and exclusively derived from law or

the memorandum and articles of the company; and

(k) the termination of the liquidation and notice of

eventual striking-off of the company from the register.

(2) The Registrar may verify electronically the origin and

integrity of the documents filed online.

(1) The Registrar shall ensure that an oversea company,

constituted or incorporated in another Member State, may carry out

the procedure of registering a branch in Malta fully online, without

the necessity for the applicants to appear in person, subject to the

electronic identification means referred to in regulation 3 and to the

exception under regulation 10.

(2) The Registrar shall ensure that every online registration of

a branch complies with the provisions as contained in the Act relating

to the registration of branches, including

(a)

procedures to ensure that the applicants have the

necessary legal capacity and authority to represent the

company;

(b) the appropriate electronic identification means to

verify the identity of the persons registering the branch;

(c)

requirements for the applicants to use trust services

as referred to in Regulation (EU) No 910/2014;

(d)

procedures to verify the legality of the object of the

branch;

(e)

procedures to verify the legality of the name of the

branch;

(f)

procedures to verify the legality of the documents

and information submitted for the registration of the branch; and

(g) procedures to provide for the role of the company

service provider or other authorised person responsible for any

aspect relating to the online registration of a branch of a

company in accordance with the Company Service Providers Cap. 529.

Act.

(3) The provisions of regulation 8 shall, mutatis mutandis,

apply to the online registration of branches.

(4) The Registrar shall ensure that the online registration of a

branch of a company is completed within ten working days from the

completion of all requirements, including the receipt of documents

and information required for registration of a branch by the Registrar.

(5) Where it is not possible to register a branch within the

foregoing period, the Registrar shall ensure that the applicant is

notified of the reasons for the delay.

(1) The Registrar shall ensure that the following Online filing of

documents and information, or a change thereto, relating to the documents

information.

branch of a company, may be filed online

(a)

name of the company;

(b)

registered office of the company;

(c)

registration number of the company in the register;

(d)

legal form of the company;

(e)

the documents and information relating to the

appointment, termination of office and particulars of the persons

who either as a body constituted pursuant to law or as members

of any such body are

(i) legal or judicial representatives of the

company and whether such representation is held jointly or

not;

(ii)

directors of the company;

(iii)

Company secretary; and

(f)

the financial statements for each financial year of

the company.

(2) The provisions of regulation 13(2) shall, mutatis mutandis,

apply to the online filing of documents and information of branches.

(1) The Registrar may charge fees for the online

procedures referred to in these regulations, provided that the charged

fees are transparent and applied in a non-discriminatory manner.

(2) The fees for online procedures associated with the

disclosure of electronic copies of the documents which the Registrar

is required to retain and register in terms of article 401(1)(d) of the

Act shall not exceed the recovery of the costs incurred for providing

such services.

(1) Where the completion of an online procedure as

referred to in these regulations requires a payment, the Registrar shall

ensure that payment may be made by means of a widely available

online payment service that can be used for cross-border payments.

(2) The online payment service utilised shall

(a)

permit for the identification of the person making

the payment; and

(b) be provided by a financial institution or payment

service provider established in a Member State.

€0.36