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The Role of the Company Secretary under Maltese law

Prior to the enactment of the Companies Act, Chapter 386 of the laws of Malta, (hereinafter the 'Act') a company incorporated under the laws of Malta was not obliged to appoint a company secretary, albeit the role of the company secretary was already recognised in commercial practice. The obligation to appoint a company secretary for every company incorporated in Malta was only introduced with the enactment of the Act, together with a list of duties that every company secretary was bound to be responsible for and the condition that such person has the requisite knowledge and experience to discharge the functions of a company secretary.

The first company secretary is appointed by the shareholders of the company in the Memorandum of Association and subsequently, such company secretary may be removed by the directors of the company. In the event of the removal of the company secretary, the directors of the company are then obliged to appoint a new company secretary within fourteen days of the removal of the first company secretary.

As a rule of thumb, the company secretary is obliged to be an individual, nonetheless, in the case of an investment company with variable share capital and/or with fixed share capital, the company secretary may be a body corporate.

In accordance with the Act, a company cannot have as its company secretary its sole director and nor can a company have as its sole director a body corporate whose sole director is the company secretary of the company. However, a sole director may also be a company secretary in the company if the latter has a private exempt status. The Act permits a company to appoint more than one company secretary, even though this is not a common phenomenon due to the fact that each company secretary would then be required to fulfil all the requirements imposed on them under Maltese law.

The role of the company secretary is mostly of an administrative nature and mainly relate to the keeping of registers and records and the filing of returns and documents. Although the Act does not always specify the duties which the company secretary is specifically responsible for, the Act provides for the requirements which a company is obliged to carry out. The latter are to be carried out by the officers of the company and therefore, this includes the company secretary. The Act requires every company to keep a register of members, a register of debentures, minutes of board and general meetings and minute books for the latter. The company secretary furthermore generally takes care of, inter alia, the procedures involved with regards to the issue of shares for a consideration other than cash, an increase in the issued share capital of the company, offering of shares on a pre-emptive basis, the return of allotments, the acquisition by a company of its own shares, the redemption of preference shares, the transfer and pledge of shares, amendments to the memorandum and/or articles of association, the removal of a director, changes amongst the officers and persons vested with representation, appointment of auditors and removal or resignation of the same, notices of dissolution and changes to the status of the company. The company secretary is generally the person to also file the annual return of the company and to sign and deliver a draft terms of merger or division. Other duties normally vested in the company secretary relate to the authentication of documents, the issue of share certificate and recording changes effected in the register of members and directors.

The responsibilities of the company secretary may emanate either from the Act and/or those which are delegated to him by the company or which relate to general company secretarial practice.


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