Introduction
By means of Legal Notice 19 of 2017, the Maltese Minister of Finance has issued new regulations relating to the transfer of the registered office of a European Company, also referred to as Societas Europaea (SE). The purpose of these regulations is to implement the provisions of Council Regulation No. 2157/2001 of the 8th October 2001.
What is an SE?
The European Company is a type of public limited liability company regulated under EU law. The European Company Statute offers:
- a simpler way to run a business if one is active in more than one EU country;
- greater mobility in the integrated EU market: for example a company may transfer its registered office to another EU country without having to be dissolved;
- a framework for how to involve staff who are employed in more than one country, in the running of the business.
Transfer to Malta of an SE
Where a company registered in another EU or EEA member state proposes to transfer its registered office to Malta, the following documents shall be delivered to the Malta Registry of Companies.
- A copy of the resolution approving the transfer of the SE’s registered office;
- A certificate issued by the Court, a notary or other relevant competent authority in the EU or EEA MS in which the SE has its registered office attesting that the acts and formalities required for the transfer has been completed;
- The M&A of the SE adopted in accordance with the provisions of the Maltese Companies Act and the with the EC regulation.
Transfer of an SE outside Malta
Where a company which is registered as an SE in Malta proposes to transfer its registered office to another EU or EEA MS, the directors of the SE must draw up a transfer proposal in accordance with the EC regulation which shall be submitted to the Maltese Registry of Companies for registration. The Board of Directors must also draw up a report explaining and justifying the legal and economic aspects of the transfer and explaining the implications of the transfer for shareholders, creditors and employees.
The SE must notify in writing its shareholders and creditors of their right to examine the transfer proposal and to obtain copies free of charge by not later than one month before the general meeting called upon to decide upon the transfer.
Furthermore, all the directors of the SE must by means of a declaration of solvency satisfy the Registry of Companies that the interests of creditors and holders of other rights have been adequately protected. In particular, all the directors of the company are required to confirm that:
- The SE will be able to pay its debts in full within 12 months starting from the date on which the transfer is proposed to be made; and
- The SE will be able to carry on its business as a going concern and will accordingly be able to pay its debts as they fall due.
