A foreign company may be continued in Malta without the necessity of being wound up and liquidated in the respective foreign country, provided that such foreign company emanates from a country, which is approved in Malta as being similar in nature to a company set up under the laws of Malta and provided further that such foreign company is authorised to do so by its Memorandum and Articles of Association or other instrument constituting the company.
A request is normally made to the Registrar of Companies for a continuation of the company to take place in Malta. Such request is accompanied by the following documents:
- A resolution signed by the shareholders of the foreign company authorising it to be registered as being continued in Malta, together with a certified English translation if such resolution is not in English;
- A copy of the revised constitutive document of the foreign company including the requirements necessary for the incorporation of a company in Malta;
- A certificate of good standing or equivalent document of the foreign company;
- A declarationsigned by at least two directors of the foreign company, or in default by the persons vested with the administration or representation of the foreign company, where such declaration shall confirm the following:
- the name of the foreign company and the name under which it is to be continued;
- the jurisdiction under which the foreign company was incorporated and the date of incorporation;
- the decision to have the foreign company registered as continuing in Malta;
- that the foreign company has formally notified the foreign relevant authority of its decision to be registered as continuing in Malta;
- that no proceedings for breach of the laws of the country or jurisdiction of incorporation have been commenced against the foreign company;
- A declaration signed by at least two directors of the foreign company, or in default by the persons vested with the administration or representation of the foreign company, confirming the solvency of the foreign company;
- A list of directors of the foreign company, together with the company secretary and any person vested with the administration or representation of the foreign company, if the latter does not have directors or a company secretary;
- Proof that the request to continue in Malta is permitted by the laws of the country or jurisdiction in which the foreign company has been incorporated or registered;
- The consent of the number or proportion of shareholders, debenture-holders and creditors of the foreign company as may be required by the laws of the country or jurisdiction where the foreign company was incorporated or registered.
Companies Carrying out a Licensable Activity
In the event that the foreign company carries out activities in relation to banking, investment, insurance, financial services or any other financial activity which is licenced and/or authorised in the country of its incorporation or registration and where such activities would also necessarily require a licence in Malta, the foreign company would be required to provide evidence that the country where the foreign company was incorporated or registered, which country had provided the licence to the foreign company has consented to the foreign company being registered in Malta. Furthermore, the foreign company would also be required to obtain a licence or authorisation in Malta prior to being able to carry out its activities in Malta.
Where the shares of the foreign company are held by a foreign trustee on behalf of an ultimate beneficial owner, such foreign trustee shall be required to obtain authorisation from the Malta Financial Services Authority, 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. The requirement for this authorisation does not apply to a foreign trustee acting as trustee in one or more shares in a foreign company, where such shares do not have any special voting rights and do not exceed in aggregate two Euro and thirty-three cents (€2.33) in nominal value or its equivalent in any other currency.
Registration in Malta
Once the foreign company has submitted the abovementioned documents to the Registrar of Companies and the latter is satisfied that such documents comply with Maltese law, the foreign company shall be provisionally registered as a company in Malta and a Provisional Certificate of Continuation shall be issued in favour of the company. The latter then has six months from the issue of the Provisional Certificate of Continuation, within which to submit documentary evidence to the Registrar of Companies that it has ceased to be a company registered in the country in which it was incorporated or registered. Provided that such evidence is satisfactory to the Registrar of Companies, the latter shall then issue a Certificate of Continuation confirming that the company has been registered as continuing in Malta.
Effects of Registration in Malta
The registration of a foreign company in Malta shall not operate as to:
- create a legal entity;
- prejudice or affect the continuity of the company;
- affect the property of the company and such company shall retain all its assets, rights, liabilities and obligations;
- render defective any legal or other proceedings instituted or to be instituted by or against the company; or
- 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.
Tax Treatment of Redomiciled Companies
Foreign companies redomiciled in Malta would suffer no consequences in relation to local tax and/or duty purposes under Maltese law. Once the Certificate of Continuation is issued to the redomiciled company, the latter is characterised and treated as a company ordinarily resident and domiciled in Malta, in terms of the Income Tax Act, Chapter 123 of the Laws of Malta.