Government Notices published in Government Gazette No. 21,003 of 7th February 2023

PROTECTION AND COMPENSATION FUND REGULATIONS, 2003

Appointment and Replacement of Protection and Compensation Fund Management Committee

IT is hereby notified that, in terms of regulation 5 of the Protection and Compensation Fund Regulations 2003, published by Legal Notice 435 of 2003, the Malta Financial Services Authority has renewed the appointment for another term of three years of Dr Joseph Borg Bartolo as Chairman,   Mr Benny Borg Bonello and Mr Joseph Naudi Montaldo as members, whereas Mr Etienne Sciberras was appointed as a member of the Protection and Compensation Fund Management Committee to replace Mr David Curmi, and this for the period of three years, effective from 5th January, 2023.

Appointment of Members of the LGBTIQ Consultative Council

It is hereby notified for general information that the Parliamentary Secretary for Reforms and Equality has appointed the LGBTIQ Consultative Council for a period of one (1) year with effect from 26th January, 2023, as follows:

Chairperson

Dr Fleur Abela

Coordinator

Gabriella Calleja

Members

Ruth Baldacchino

Christopher Vella

Louisa Grech

Colette Farrugia Bennett

Mina Tolu

Kendrick Bondin

Catherine Camilleri

Antonella Bugeja

Nicholas Bugeja

Michael Owen

Jamie Vella

Hon. Graziella Attard Previ

Cynthia Chircop

Agrebi Mohammed Ali

Nikita Zammit Alamango

7th February 2023

IT is notified for general information that the following Legal Notices were published in the Supplement to the Government Gazette No. 20,998 of 31st January, 2023 (Legal Notices 16 to 18) and No. 21,001 of 3rd February, 2023 (Legal Notices 19 to 22) respectively.

L.N. 16 of 2023: Malta Film Commission Act (Cap. 478); Malta Film Commission Act (Substitution of Schedule) Regulations, 2023.

L.N. 17 of 2023: Malta Film Commission Act (Cap. 478); Financial Incentives for the Audiovisual Industry Regulations, 2023.

L.N. 18 of 2023: Fees Ordinance (Cap. 35); Fees leviable by Government Departments (Amendment) Regulations, 2023.

L.N. 19 of 2023: Malta Enterprise Act (Cap. 463); Start-up Finance (Amendment) Regulations, 2023.

L.N. 20 of 2023: Malta Enterprise Act (Cap. 463); Smart and Sustainable Investment Grant (Amendment) Regulations, 2023.

L.N. 21 of 2023: Regulator for Energy and Water Services Act (Cap. 545); Competitive Bidding Rules for Installations Producing Electricity from Renewable Energy Sources Regulations, 2023.

L.N. 22 of 2023: Regulator for Energy and Water Services Act (Cap. 545), Public Finance Management Act (Cap. 601); Repealing Regulations, 2023.

IT is notified that in exercise of such powers as provided by Article (3) of the Commissioners for Oaths Ordinance (Cap. 79) the Minister for Justice appointed as Commissioners for Oaths, in the performance of their duties and for as long as they remain in such office, the undermentioned:

Advocates

Meli, Dr Ivan

By Authority

Jonathan Attard

Minister for Justice

Applications for the Appointment of the MaltaCouncil for the Voluntary Sector

In terms of Act Number XXII of 2007, as amended by Act VII of 2015, XXXI of 2018 and XXXVI of 2018, to regulate voluntary organisations and their administration, the Minister for Inclusion, Voluntary Organisations and Consumer Rights is inviting applications for the appointment of the Malta Council for the Voluntary Sector according to section 35 of the Act for the post of:

One (1) member from the Non-governmental Organisations Sector in Gozo.

This call is being reissued in view of the fact that no nominations were submitted under the initial call.

A person shall not be qualified to be appointed as a member of the Council if such person:

a. is a Judge, a Magistrate, a Member of the House of Representatives or a Local Council, or a candidate for election to the House of Representatives or a Local Council; or

b. is legally incapacitated or interdicted; or

c. has been declared bankrupt or has made a composition or arrangement with his creditors; or

d. has been convicted of a crime affecting public trust or theft or fraud, or of knowingly receiving property, obtaining by theft or fraud, a crime affecting the good order of the family or of an offence against this Act.

Voluntary Organisations enrolled with the Commissioner for Voluntary Organisations and are registered in Gozo may nominate for this post of Council Member representing Gozo.

Nominations from voluntary organisations, indicating under which of the above sections the nominations are being made, as well as a Curriculum Vitae (CV) of the nominee, will be received by the Commissioner for Voluntary Organisations by Friday, 17th February, 2023.

Office of the Commissioner for Voluntary Organisations

Sajjan Lane, Triq Nazzjonali

Blata l-Bajda

Ħamrun ĦMR 1680

Telephone number: 2388 4500

Email address: (commissioner.cvo@gov.mt)

the Electoral Commission notifies that the candidate elected as Councillor in the casual election held on Tuesday, 7th February, 2023 for the Local Council of Il-Gudja to fill the post vacated by Mr John Mary Calleja is that whose name is shown hereunder:

fenech george

J. CAMILLERI

Chief Electoral Commissioner

Office of the Electoral Commission,

Ex-Trade Fair Grounds,

In-Naxxar.

Explanatory Note

1. Introduction

2. Summary and background

These regulations are required to transpose the latest EU Directive in the company law framework, namely Directive (EU) 2019/2121 of the European Parliament and of the Council of 27 November 2019 amending Directive (EU) 2017/1132 as regards cross-border conversions, mergers and divisions.

These regulations shall likewise apply to all other approved jurisdictions not being Member States of the European Union and may therefore be utilised by the respective limited liability companies.

3. Overview of the Structure of the Instrument

These three (3) legal notices seek to establish the required regulations under the Companies Act (Cap. 386) to transpose the EU Directive providing for the mobility of limited liability companies and to establish the same legal framework for other limited liability companies outside of the European Union in order to be  able to carry on the same cross-border mobility operations.  The regulations are the following:

The Companies Act (Cross-border Conversions of Limited Liability Companies) Regulations, 2023

Regulation 1 – Title of the regulations and commencement date.

Regulation 2 – Provides for the scope of the regulations.

Regulation 3 – All definitions of the main technical terms used throughout these regulations are provided in this regulation, including respective EU legislative instruments.

Regulation 4 – Provides for the specific instances and circumstances in which limited liability companies may utilise and have the respective regulations apply to them, under regulations 4(1) to 4(3), both inclusive. The companies which may not utilise such regulations and thus cannot have the said Regulations apply to them are provided in regulation 4(4).

Regulation 5 – Provides that where Malta is the departure jurisdiction, the regulations shall apply to those procedures to be complied with prior to the obtainment of the pre-conversion certificate. When Malta is the destination jurisdiction, the regulations shall apply to that part of the procedure following the receipt of the pre-conversion certificate.

Regulation 6 – The Board of Directors of the Maltese registered converting company is to draw up common draft terms of a cross-border conversion, incorporating the details as provided in regulation 6(1)(a) to (l). A reasoned opinion would be required when a company registered in a jurisdiction outside the European Union is involved in or results from such a cross-border conversion, as provided by regulation 6(2). The said terms are to be signed in accordance with the requisites under regulation 6(3).

Regulation 7 – A report for the members and employees is to be drawn up by the Board of Directors of the Maltese registered converting company. This needs to explain and justify the legal and economic aspects, and the implications of the cross-border conversion. The exemption from compiling such a report is provided under regulation 7(9). When the report is due, it is to be signed as provided by regulation 7(11).

Regulation 8 – A declaration of solvency is in certain instances required from the Board of Directors of the Maltese converting company as provided in regulation 8(1). If required, such declaration is to be made within the period as stipulated in regulation 8(2). Failure to meet such obligations shall result in an offence under the law.

Regulation 9 – The common draft terms of the cross-border conversion are to be examined by an independent expert, approved by the Registrar. The said expert is to draw up a written report and shall also include the expert's opinion on the adequacy of the cash compensation and the share exchange ratio.

Regulation 10 – Provides for the procedure to be followed when submitting to the Registrar for registration and publication of the common draft terms of the cross-border conversion as provided by regulation 10(1). The Maltese registered converting company may make the documents available on its website. If this is the case, the company is to submit information to the Registrar in accordance with regulation 10(4).

Regulation 11 – An extraordinary resolution is required in a general meeting of the Maltese company to approve the common draft terms of the cross-border conversion.

Regulation 12 – Following the approval of the common draft terms, a Maltese converting company is required to redeem the shares of any dissenting shareholders who so request. Dissenting shareholders who deem the compensation to be inadequate, may file an application in Court, in accordance with the circumstances set out in regulation 12(4).

Regulation 13 - Holders of securities other than shares shall be given rights which are deemed to be equivalent to those they possessed prior to the conversion.

Regulation 14 – The extraordinary resolution approving the cross-border conversion is to be delivered to the Registrar for registration within fourteen (14) days from approval.

Regulation 15 – Any interested party may contest before the Court the registrations made under regulations 10 or 14.

Regulation 16 – Any party who feels aggrieved by the Court's judgment to applications filed in terms of regulations 12(4), 15(1) or (2), may appeal before the Court of Appeal by an application filed within thirty (30) days from the date of judgment.

Regulation 17 – The Maltese registered converting company is to submit to the Registrar, upon the lapse of one (1) month from the registration under regulation 14, a request in the prescribed form, to obtain a pre-conversion certificate. The contents and requisites of the request are provided for in regulation 17(2) and (3).

Regulation 18 – The Registrar shall perform a review of the application referred to in regulation 17, in accordance with the time periods and criteria provided for in the said regulation 18.

Regulation 19 – The issuance of the pre-conversion certificate shall attest and confirm that the Maltese registered converting company complies with all the relevant rules and procedures in terms of these regulations.

Regulation 20 – The Registrar shall strike off the name of the Maltese registered converting company as soon as the same Registrar is notified by the foreign registry to whose jurisdiction the Maltese converting company is subject.

Regulation 21 – Review of legality of the cross-border conversion to be done by Registrar when Malta is the destination jurisdiction of a converting company.

Regulation 22 – Additional requirements to be followed when the foreign converting company is a licensed company or a public company.

Regulations 23 – The approval of the cross-border conversion by the Registrar confirming that all procedures and formalities have been duly followed and fulfilled. The Registrar shall therefore proceed to register the foreign converting company as a Maltese registered company and issue a certificate of completion of cross-border conversion.

Regulation 24 – Any shares in a foreign converting company shall continue to be valid and effective under the Laws of Malta, subject to the conditions under regulation 24(1). Obligations to notify the other party to the pledge agreement and to notify the Registrar on termination of a pledge, are provided for in regulation 24(3) and (4) respectively.

Regulation 25 – Provides for the legal consequences of a cross-border conversion as from the effective date of such cross-border conversion.

Regulation 26 - The liability clause for damages resulting from wilful or negligent misconduct of the directors or experts involved in the cross-border operation.

Schedule

Form CBC1 – CONVERSION – Provides for the application to request the Registrar to issue a pre-conversion certificate.

Form CBC2 – PLEDGEE'S CONSENT – Notice of consent by pledgee in terms of regulation 24(1)(c).

Companies Act (Cross-border Mergers of Limited Liability Companies) Regulations, 2023

Regulation 1 – Title of these regulations and commencement date.

Regulation 2 – Provides for the scope of the Regulations.

Regulation 3 – All definitions of the main technical terms used throughout these regulations are provided in this regulation, including respective EU legislative instruments.

Regulation 4 – Provides for the specific instances and circumstances in which limited liability companies may utilise and have the respective regulations apply to them, under regulations 4(1) to 4(4), both inclusive. The companies which may not utilise such regulations and thus cannot have the said Regulations apply to them are provided in regulation 4(5).

Regulation 5 – Provides for the specific procedures and formalities under the Companies Act (Cap 386) to which a Maltese merging company needs to comply with. An authority in Malta may also oppose a cross-border merger involving a Maltese company on grounds of public interest in accordance with any law in force in Malta.

Regulation 6 – The Board of Directors of the Maltese merging company is to draw up a common draft terms of a cross-border merger, incorporating the details as provided in regulation 6(1)(a) to (o). A reasoned opinion would be required when a company registered in a jurisdiction outside the European Union is involved in or results from such a cross-border merger, as provided by regulation 6(2). The said terms are to be signed in accordance with the requisites under regulation 6(3).

Regulation 7 – A report for the members and employees is to be drawn up by the Board of Directors of the Maltese merging company or companies. This needs to explain and justify the legal and economic aspects, and the implications of the cross-border merger. The exemption from compiling such a report is provided under regulation 7(9). When the report is due, it is to be signed as provided in regulation 7(11).

Regulation 8 – A declaration of solvency is in certain instances required from the Board of Directors of the Maltese merging company as provided in regulation 8(1). If required, such declaration is to be made within the period as stipulated in regulation 8(2). Failure to meet such obligations shall result in an offence under the law.

Regulation 9 – The common draft terms of the cross-border merger are to be examined by an independent expert, approved by the Registrar. The said expert is to draw up a written report and shall also include the expert's opinion on the adequacy of the cash compensation and the share exchange ratio.

Regulation 10 – Provides for the procedure to be followed when submitting to the Registrar for registration and publication of the common draft terms of the cross-border merger as provided by regulation 10(1). The Maltese merging company may make the documents available on its website. If this is the case, the company is to submit information to the Registrar in accordance with regulation 10(4).

Regulation 11 – An extraordinary resolution is required in a general meeting of each Maltese merging company to approve the common draft terms of the cross-border merger. In certain instances this approval would not be required, as stipulated by regulation 11(1).

Regulations 12 – Following the approval of the common draft terms, a Maltese merging company is required to redeem the shares of any dissenting shareholders who so request. Dissenting shareholders who deem the compensation to be inadequate, may file an application in Court, in accordance to the circumstances set out in regulations 12(4) and 12(5).

Regulation 13 - Holders of securities other than shares shall be given rights which are deemed to be equivalent to those they possessed prior to the merger.

Regulation 14 – The extraordinary resolution approving the cross-border merger is to be delivered to the Registrar for registration within fourteen (14) days from approval.

Regulation 15 – Any interested party may contest before the Court the registrations made under regulations 10 or 14.

Regulation 16 – Any party who feels aggrieved by the Court's judgment in the case of applications filed in terms of regulations 12(4) or (5), 15(1) or (2), or 28, may appeal before the Court of Appeal by an application filed within thirty (30) days from the date of judgment.

Regulation 17 – Each Maltese merging company is to submit to the Registrar, upon the lapse of one (1) month from the registration under regulation 14, a request in the prescribed form to the Regulations, to obtain a pre-merger certificate. The contents and requisites of the request are provided for in regulation 17(2) and (3).

Regulation 18 – The Registrar shall perform a review of the application referred to in regulation 17, in accordance with the time periods and criteria provided for in the said regulation 18.

Regulation 19 – The issuance of the pre-merger certificate shall attest and confirm that the Maltese merging company complies with all the relevant rules and procedures in terms of the regulations.

Regulation 20 – Provides for the issuance of the certificate by the Registrar of completion of the cross-border merger, when the company resulting from the merger has or is to have its registered office in Malta.

Regulation 21 – Striking-off of the company which ceases to exist as a result of the cross-border merger takes place when the Registrar is notified by the foreign registry to whose jurisdiction the resulting company from the merger is subject.

Regulations 22 – Provides for the legal consequences of a cross-border merger as from the effective date of such merger.

Regulation 23 - The requirement to follow any other special formalities as stipulated by any law in force in Malta or any other jurisdiction involved in the cross-border operation.

Regulation 24 – Stipulates the restriction of exchange of shares in the acquiring company for the shares in the company being acquired.

Regulation 25 - Any rights and obligations arising from employment contracts or relationships shall be transferred to the company resulting from the cross-border operation.

Regulation 26 - A cross-border operation shall not be declared null and void once completed, save for the power of competent national authorities in certain circumstances.

Regulation 27 – Provides for the exemption from certain requirements under the regulations which shall apply when a cross-border merger by acquisition is carried out by a company.

Regulation 28 - An exemption to draw up an independent expert's report applies, save for the provisions provided for in the same regulation.

Regulation 29 - When an exemption from the approval by the general meeting applies, regulation 29 provides that the common draft terms or the information, as applicable, and the reports referred to in these regulations, shall be made available at least one (1) month before the decision of the merger.

Regulation 30 - The liability clause for damages resulting from wilful or negligent misconduct of the directors or experts involved in the cross-border operation.

Regulation 31 – These regulations shall apply without prejudice to the stipulated legal instruments.

Schedule

Form – MERGER - Provides for the application to request the Registrar to issue a pre-merger certificate in terms of regulation 17(1).

Companies Act (Cross-border Divisions of Limited Liability Companies) Regulations, 2023

Regulation 1 – Title of these regulations and commencement date.

Regulation 2 – Provides for the scope of the Regulations.

Regulation 3 – All definitions of the main technical terms used throughout these regulations are provided under this regulation, including respective EU legislative instruments.

Regulation 4 – Provides for the specific instances and circumstances in which limited liability companies may utilise and have the respective regulations apply to them, under regulations 4(1) to 4(4), both inclusive. The companies which may not utilise such regulations and thus cannot have the said Regulations apply to them are provided in regulation 4(5).

Regulation 5 – Provides for where a company being divided is a company registered in Malta, these regulations shall apply to those procedures to be complied with prior the obtainment of the pre-division certificate. When the recipient company is a company registered in Malta, the regulations shall apply to that part of the procedure following the receipt of the pre-division certificate.

Regulation 6 – The Board of Directors of the Maltese company being divided is to draw up a common draft terms of a cross-border division, incorporating the details as provided by regulation 6(1)(a) to (r). A reasoned opinion would be required when a company registered in a jurisdiction outside the European Union is involved in or results from such a cross-border division, as provided by regulation 6(2). The said terms are to be signed in accordance with the requisites under regulation 6(3).

Regulation 7 – A report for the members and employees is to be drawn up by the Board of Directors of the Maltese companies being divided. This needs to explain and justify the legal and economic aspects, and the implications of the cross-border division. The exemption from compiling such a report is provided under regulation 7(9). When the report is due, it is to be signed as provided in regulation 7(11).

Regulation 8 – A declaration of solvency is in certain instances required from the Board of Directors of the Maltese company being divided as provided in regulation 8(1). If required, such declaration is to be made within the period as stipulated in regulation 8(2). Failure to meet such obligations shall result in an offence under the law.

Regulation 9 – The common draft terms of the cross-border division are to be examined by an independent expert, approved by the Registrar. The said expert is to draw up a written report and shall also include the expert's opinion on the adequacy of the cash compensation and the share exchange ratio.

Regulation 10 – Provides for the procedure to be followed when submitting to the Registrar for registration and publication of the common draft terms of the cross-border division as provided by regulation 10(1). The Maltese company to be divided may make the documents available on its website. If this is the case, the company is to submit information to the Registrar in accordance with regulation 10(4).

Regulation 11 – An extraordinary resolution is required in a general meeting of each Maltese company to be divided to approve the common draft terms of the cross-border division.

Regulation 12 – Following the approval of the common draft terms, a Maltese company being divided is required to redeem the shares of any dissenting shareholders who so request. Dissenting shareholders who deem the compensation to be inadequate may file an application in Court, in accordance with the circumstances set out in regulations 12(4) and 12(5).

Regulation 13 - Holders of securities other than shares shall be given rights which are deemed to be equivalent to those they possessed prior to the division.

Regulation 14 – The extraordinary resolution approving the cross-border division is to be delivered to the Registrar for registration within fourteen (14) days from approval.

Regulation 15 – Any interested party may contest before the Court, the registrations made under regulations 10 or 14.

Regulation 16 – Any party who feels aggrieved by the Court's judgment to applications filed in terms of regulations 12(4) or (5), 15(1) or (2), may appeal before the Court of Appeal by an application filed within thirty (30) days from the date of judgment.

Regulation 17 – Each Maltese company to be divided is to submit to the Registrar, upon the lapse of one (1) month from the registration under regulation 14, a request in the prescribed form, to obtain a pre-division certificate. The contents and requisites of the request are provided for in regulation 17(2) and (3).

Regulation 18 – The Registrar shall perform a review of the application referred to in regulation 17, in accordance with the time periods and criteria provided for in the said regulation 18.

Regulation 19 – The issuance of the pre-division certificate shall attest and confirm that the Maltese company being divided complies with all the relevant rules and procedures in terms of the regulations.

Regulation 20 – Provides for the issuance of the certificate by the Registrar of completion of the cross-border division, when the Registrar is notified by the foreign registry to whose jurisdiction each recipient company has been registered. In the event of full division, the Registrar shall strike the name of the Maltese company being divided off the register.

Regulation 21 – Review of legality of the cross-border division to be done by Registrar when Malta is the jurisdiction of a recipient company.

Regulations 22 – The approval by the Registrar of all the procedures and formalities, confirming that they have been properly fulfilled and completed in Malta, as the jurisdiction of the recipient company.

Regulation 23 - Provides for the legal consequences of a cross-border division as from the effective date of such division.

Regulation 24 – The requirement to follow any other special formalities as stipulated by any law in force in Malta or any other jurisdiction involved in the cross-border operation.

Regulation 25 - Stipulates the restriction of exchange of shares in the recipient company for the shares in the company being divided.

Regulation 26 - A cross-border operation shall not be declared null and void once completed, save for the power of competent national authorities in certain circumstances.

Regulation 27 – Provides for the exemption from certain requirements under the regulations which shall apply when a cross-border division by separation is carried out by a company.

Regulation 28 - The liability clause for damages resulting from wilful or negligent misconduct of the directors or experts involved in the cross-border operation.

Regulation 29 - These regulations shall apply without prejudice to the stipulated legal instruments.

Schedule

Form – DIVISION - Provides for the application to request the Registrar to issue a pre-division certificate in terms of regulation 17(1).

4. Conclusion

Officers of companies are to be fully aware of any amending regulations. It is advisable that when they are unsure about their obligations, they consult a lawyer, accountant, or auditor. Failure to make the necessary filings or take the necessary action within the requested time frames shall result in penalties being imposed on the company and officers of the company. Penalties may be avoided if the company officers familiarise themselves with Maltese company law and regulations thereto and keep themselves updated with any amendments and repeals.

N.B. This Explanatory Note is not intended to be an exhaustive description of the instrument nor a substitute thereof or a legislative supplement to it. This Note does not purport to be an authoritative ruling on the interpretation of the legislation.

Explanatory Note

1. Introduction

2. Summary and background

This legal notice seeks to repeal Subsidiary Legislation 386.12 – Cross-border Mergers of Limited Liability Regulations.

The said principal regulations were brought into force to transpose European Community Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies.

The latter Directive has since been amended thoroughly and the latest Directive (EU) 2019/2121 of the European Parliament and of the Council of 27 November 2019 amending Directive (EU) 2017/1132 as regards cross-border conversions, mergers and divisions, is set to be transposed into Maltese law. The said transposition shall set up a new cross-border mergers legal framework for limited liability companies.

3. Overview of the Structure of the Instrument

This legal notice consists of three (3) regulations. Said regulations establish and regulate as follows:

Regulation 1 establishes the title and commencement date.

Regulation 2 establishes a repeal of Subsidiary Legislation 386.12 entitled Cross-border Mergers of Limited Liability Regulations and savings clause.

Regulation 3 provides for a transitory provision.

4. Commentary on Parts and Articles

As per the above section, Regulation 1 specifies the title and the commencement date of the regulations which is 31st January 2023.

Regulation 2 provides for the scope, being that the regulations repeal the Cross-border Mergers of Limited Liability Regulations in their entirety. It specifies that the repeal is without prejudice to anything done or omitted to be done under the Cross-border Mergers of Limited Liability Regulations.

 Regulation 3 provides for a transitory provision in that the Cross-border Mergers of Limited Liability Regulations shall continue to apply for those companies which, prior to the coming into force of these repeal regulations, would already be undergoing the process of a cross-border merger.

5. Conclusion

Officers of companies are to be fully aware of the repealing regulations. It is advisable that when they are unsure about their obligations, they should consult a lawyer, accountant, or auditor. Failure to make the necessary filings or take the necessary action within the requested time frames shall result in penalties being imposed on the company and officers of the company. Penalties may be avoided if the company officers familiarise themselves with Maltese company law and regulations thereto and keep themselves regularly updated with any amendments and repeals.

N.B. This Explanatory Note is not intended to be an exhaustive description of the instrument nor a substitute thereof or a legislative supplement to it. This Note does not purport to be an authoritative ruling on the interpretation of the legislation.

THE Commissioner of Inland Revenue notifies that, on the date shown hereunder, the price of gold and silver on which valuations made by the Consul for Goldsmiths and Silversmiths are based has been fixed for the purposes of article 14 of the said Act as follows: