Company Secretary Responsibilities under Maltese Law

Michela Pirotta | 05 Feb 2012

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1. The Office of Company Secretary

The office held by the Company Secretary is a purely administrative role withing Malta companies. His role may however be misleading due to the association which the term ‘administrative’ is given. Although Company Secretaries do not occupy themselves with the management of the Company, as this is usually left to the Directors, they still play an important role in the control of its governance through their administrative powers.

2.    Obligation to have a Company Secretary

The requirement of Malta Companies to have a Company Secretary whether in public limited companies or in private limited companies was introduced with the introduction of the Companies Act in 1995. It is not permissible to incorporate or, for that matter, operate a company where the office of Company Secretary is vacant.[1]

Unlike other jurisdictions, particularly UK, Maltese law only allows natural persons to hold the Office of Company Secretary which may be set into contrast with the office of Directors were corporate directors are permissible.

3.    Appointment and Termination

The first Company Secretary is appointed during the company’s incorporation via its Memorandum and Articles of Association; it is thereby the shareholders of the company subscribing to the initial share capital who appoint the Company Secretary.  The Memorandum and Articles of Association will exhibit the details of the individual who is to hold the office of Company Secretary; in particular his or her name and surname, residential address and passport or identity card number. A copy of the document of identification is furnished to the Registry of Companies for their records.

The appointment of successive Company Secretaries is carried out by the directors of the company. In the event that the office of the Company Secretary becomes vacant the director is obliged to nominate and appoint a new Company Secretary within 14 days.[2] The terms of engagement are determined by the directors of the company.

The Companies Act lays down that removal of the Company Secretary is carried out by the directors[3] without prior notification and if not immediately appointed shall appoint a new Company Secretary within fourteen days.

4.    Qualifications and Disqualifications

No academic or professional qualifications are required to hold the post. Notwithstanding this, directors must take all reasonable measures to ensure that the person holding the office of Company Secretary has or at least appears to have the requisite knowledge and experience to carry out the functions and role of the Company Secretary. 

If a company has one director then he may not concurrently hold the office of Company Secretary. Moreover, the Company may not have as its sole director a corporate entity whose sole director is to be nominated Company Secretary. Disqualification for the appointment of holding the office of Company Secretary shall exist if any of the following criteria are present:

·         he is interdicted or incapacitated or is an undischarged bankrupt;

·         he has been convicted of any of the crimes affecting public trust or of theft or of fraud or of knowingly receiving property obtained by theft or fraud;

·         he is a minor who has not been emancipated; or

·         he is subject to a disqualification order.

5.    Malta Company Secretary Responsibilities

Anything required to be done by the Company in relation to its duties and responsibilities with regard to Maltese Company Law is also required to be done by the Officers of the Company, including the Company Secretary.[4] However, one must bear in mind that the Company Secretary’s central role is administrative and not managerial. The responsibilities of the Company Secretary may be generally grouped under the following headings:

5.1      Board Meetings and General Meetings

The Company is required to keep the minutes of each general meeting whether annual or extraordinary together with any board meetings carried out by the directors.

5.2      Providing Information and Disclosure

Under the relevant circumstances the Company Secretary has the duty to furnish the information demanded such as the official receiver in the case of the winding up of the company or to the Registry of Companies in the event the a Company is under investigation.

5.3      Company Statutory Registers

The Company is obliged to keep:

·         A Register of Members; and

·         A Register of Debentures

5.4      Filings of Applications

Companies are required to submit a variety of documents to the Registry of Companies. Although this duty is imposed on all the officers of the Company, this is a role usually undertaken by the Company Secretary.

·         Resolutions and agreements

·         Accounts and reports

·         Annual Returns

·         Notice of Appointment or Changes in Company Secretary or Directors

·         Return of Allotment of Shares

·         Statutory and Regulatory Compliance

·         Administrative Duties

For more information about our legal services to company secretaries and the provision of Malta company secretaries for Malta companies, contact us at your convenience.

 


[1] Article 138 (1), Companies Act, Chapter 356 of the Laws of Malta

[2] Article 138 (4), Companies Act, Chapter 356 of the Laws of Malta

[3] Article 138 (5), Companies Act, Chapter 356 of the Laws of Malta

[4] Article 150, Companies Act, Chapter 356 of the Laws of Malta

 

 


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