The role of company secretary in Malta is not one that should be taken lightly. Most people presume that the company secretary is an administrative secretary and little are they aware that the role of the company secretary is an officer role that is regulated by the Malta Companies Act (MCA), Chapter 386, of the Laws of Malta. Every Malta-registered company must have a company secretary, who must be a physical person but is not necessary by law to be a Maltese resident. A body corporate is entitled to hold the office of company secretary in a Maltese registered company if it is licensed as a services provider under the Corporate Services Provider Act (CSPA), Chapter 529, of the Laws of Malta as specified in the MCA in article 138 (1)(c).
The company secretary’s job is to maintain effective governance throughout the company’s life cycle, from inception to dissolution. When a company is wound up, the powers of the directors and company secretaries are revoked, and a liquidator is appointed. By ensuring that board policy and procedures are followed and by organising the timely completion and dispatch of board agenda and briefing material, the company secretary plays a key role in supporting the board’s effectiveness. It is critical that all of the company’s directors have access to the secretary.
A corporate secretary is in charge of ensuring that the company runs smoothly and is usually responsible for organising board meetings and managing vital aspects that relate to corporate governance, shareholder administration, and communication between the different areas of the company.
The MCA also imposes certain responsibilities on the directors of Maltese registered entities to ensure that:
They take all reasonable steps to ensure that the company secretary is an individual who appears to have the necessary expertise and experience to perform the tasks of company secretary, or a body corporate that is licensed as a services provider under the CSPA; and
If the position of company secretary becomes vacant, the company’s directors are to ensure that they fill it within fourteen (14) days of the date the position becomes vacant, by appointing another individual or a body corporate that is licensed as a services provider under the CSPA.
Furthermore, the company’s directors are also empowered with the authority to remove a company secretary, and they must appoint a new company secretary within fourteen (14) days of such removal.
Article 142 of the MCA further imposes restrictions and specifies circumstances under which a person is ineligible for appointment or office as a company director or company secretary. These are, if the person:
(a) is interdicted or incapacitated or is an undischarged bankrupt;
(b) 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;
(c) is a minor who has not been emancipated for trade;
(d) is subject to a disqualification order; or
(e) is holding such office as a company service provider in terms of the CSPA without having obtained the necessary authorisation by the Malta Financial Services Authority to provide such service.
The registrar of companies in Malta also has the authority to prevent a person from being appointed as a company secretary of a Malta company if the person is or has been a director or company secretary of another Maltese company in relation to which the person has breached provisions in the MCA for three (3) times within a period of two (2) years, counting from the first breach, and such person is still in default as to one or more of those breaches.
The first Schedule of the companies’ act includes model regulations for a limited liability company, and specifically Part I of such schedule details the regulations for the management of a Maltese limited liability company. Section 72 provides further details in order to clarify what are the set roles and responsibilities of a person that holds the position of company secretary in a Maltese registered entity.
The first Schedule of the MCA contains model regulations for limited liability companies, and Part I of that schedule explicitly describes the regulations for the management of a Maltese limited liability company. Section 72 goes into greater depth on the specific roles and responsibilities of a company secretary in a Maltese registered entity. In this respect, the company secretary is responsible for keeping:
the minute book of general meetings of the company;
the minute book of meetings of the board of directors;
the register of members;
the register of debentures; and
such other registers and records as the company secretary maybe required to keep by the board of directors.
The company secretary must also ensure that all meetings are properly announced, and that all reports (such as annual returns) and other company documents, such as extracts of resolutions and formal statutory notification forms, are prepared and sent in compliance with the MCA’s requirements.
About the Author
This article has been authored by Mr Sacha J. Farrugia, CSB Group Senior Manager – Corporate Services. He is responsible for the general Management of the Corporate Services Unit and may be contacted on [email protected] for any advice required with regard to corporate governance and respective formalities.
This article was first published on the Times of Malta on Sunday 26th June 2022.