The continuation in Malta of a foreign company is provided for by the Continuation of Companies Regulations (SL 386.05) (the ‘Regulations’).

In terms of Regulation 3 of the Regulations, a body corporate formed and incorporated or registered under the laws of an approved foreign country, which is similar in nature to a company as known under the laws of Malta, may request the Registrar of Companies to be registered as continued in Malta, provided:

– the laws of the foreign country so permit; and

– the company is authorised to do so by its constitutive documents.

Request for Continuation

In terms of Article 4 of the Regulations, a request to the Registrar of Companies for the foreign company to be continued in Malta must be accompanied by the following documents (including certified English translations of the same, where appropriate):

(a) the resolution or equivalent document of the foreign company authorising it to be registered as being continued in Malta;

(b) a copy of the most recent constitutive document of the foreign company;

(c) documentation and information relating to the shareholders of the foreign company, including: (i) if the shareholder is a legal person: a certified copy of the MAs/deed of incorporation/ certificate of good standing/ certificate of incorporation and a bank reference letter; and (ii) if the shareholder is a natural person: a certified copy of the passport/identity card and a bank reference letter;

(d) documentation and information relating to the current directors and the intended directors of the foreign company upon continuation (as specified in (c));

(e) a certificate of good standing in respect of the foreign company issued by the foreign competent authority;

(f) a declaration signed by at least two directors of the foreign company confirming: (i) the name of the foreign company and the name under which it proposes to be 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 competent authority of the foreign country of its intention of continuing in Malta: evidence of such notice should be annexed to the declaration; (vi) that no proceedings for breach of the laws of the country or jurisdiction of incorporation have been commenced against such foreign company; and (vii) the solvency of the foreign company;

(g) certified true copy of the laws of the relevant jurisdiction evidencing that the request for continuation is permitted;

(h) legal opinion;

(g) any other evidence or information which the Registrar may require;

(i) the prescribed fee – this is correlated to the extent of the authorised share capital of the company as at the date of its provisional registration.

Procedure

(a) Provisional Certificate of Continuation

Upon being satisfied that the documents supporting the request for registration comply with the Regulations and the relevant provisions of the Companies Act (Chapter 386 of the Laws of Malta), the Registrar of Companies in Malta will issue a Provisional Certificate of Continuation certifying that the foreign company is provisionally registered as continuing in Malta.

Within a period of six months from the 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 initially formed and incorporated or registered.

(b) Certificate of Continuation

Upon presentation to the Registrar of Companies of proof of the company having ceased to be a company registered in the country or jurisdiction where it had been initially 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.

Legal Effects under the Companies Act of registration as a company continued to Malta

As a result and with effect from the date of the issuance by the Malta Registrar of Companies of a Provisional Certificate of Continuation in favour of the company provided that this is followed by the issuance of a Certificate of Final Registration in terms of the above, the company would continue to be a body corporate incorporated in Malta under the Companies Act, and would be subject to all the obligations and capable of exercising all the powers of a company registered under the Companies Act.

The registration of the company as a company continued to Malta would not in terms of Maltese law operate so as to:

i. create a new legal entity; or

ii. prejudice or affect the continuity of the company; or

iii. affect the property of the company (such that the company would retain all its assets, rights, liabilities and obligations); or

iv. render defective any legal or other proceedings instituted, or to be instituted, by or against the company; or

v. release or impair any conviction, judgement, 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 representation of the company.

Malta tax treatment applicable in respect of a company continued to Malta

The continuation of the foreign company to Malta would have no consequences for local tax/duty purposes under the laws of Malta.

Furthermore, with effect from the date of issuance by the Malta Registrar of Companies of a Provisional Certificate of Continuation in favour of the company, the company would be, provided that a Final Certificate of Continuation is issued in its favour by the Malta Registrar of Companies, 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)