Transfer of a Registered Office of a European Company (SE)
Transfer of registered office to Malta
The following documents must be delivered to the Registrar of Companies in case of transfer of a registered office of an SE to Malta:
- a copy of the resolution approving the transfer of the SE’s registered office;
- the certificate by the court, notary or other relevant competent authority of the Member State or EEA State in which the SE has its registered office attesting to the completion of the act and formalities to be accomplished before the transfer; and
- the memorandum and articles of association of the SE.
Upon receiving the above-mentioned documents and verifying that they are in order, the Registrar will proceed and issue a certificate of registration indicating therein the transfer of the SE’s registered office to Malta and the date of registration in Malta of the SE.
Accounting reference period and financial year of transferring SE
In case the registered office of an SE is transferred to Malta:
- its first accounting reference period shall be the period of twelve months beginning on the date of its last balance sheet before the registration of the transfer of the SE and, for the same purpose, the date on which that period ends shall be its accounting reference date, and
- its first financial year shall begin on the first day of its first accounting reference period and shall end on the last day of that period, or such other date being not more than seven days before or after the end of that period, as the SE may determine.
Transfer of registered office of an SE to another Member State or EEA State
In case of transfer of a registered office of an SE from Malta to another Member State or EEA State:
- a transfer proposal shall be drawn up by the directors of the SE in accordance with Article 8(2) of the EC Regulations and a report in accordance with Article 8(3) of the EC Regulations;
- a copy of the transfer proposal shall be delivered to the Registrar for registration and, upon registration, a notice thereof shall be published in the Gazette or on the MFSA website. The said proposal shall be published in a daily newspaper by the Registrar at the expense of the SE concerned;
- an extraordinary resolution on the transfer proposal shall be taken by the SE not earlier than two months from the date of the publication of the notice. A
copy of the resolution together with the documents prescribed in Form SE1 in the Schedule, shall be delivered to the Registrar for registration who, being satisfied that all the requirements of the applicable Maltese and EC regulations have been complied with, shall register them. Upon registration, the Registrar shall issue a certificate attesting to the completion of the acts and formalities required in terms of any applicable Maltese and EC regulations;
- the SE shall notify in writing its shareholders and its known creditors, at their last known address, of their right to examine the transfer proposal and the report drawn up by the directors at its registered office and, on request, to obtain copies of those documents free of charge, by not later than one month before the general meeting called upon to decide on the transfer.
Thereafter, every invoice, order for goods and business letter which, at any time between the date on which the transfer proposal and report become available for inspection at the registered office of the SE and the withdrawal of the transfer proposal by the SE or the deletion of its registration on completion of the transfer, whichever occurs earlier, is issued by or on behalf of the SE shall clearly state that the SE is proposing to transfer its registered office to another Member State or EEA State, which State shall therein be indicated.
In case a transfer of registered office would result in a change in the law applicable to the SE, the Government of Malta and the national regulatory authorities may, within the two month period from the date of the publication of the notice, oppose the transfer on grounds of public interest. The SE may contest the opposition before the Court by using the manner prescribed by law.
When the registry for the SE’s new registration notifies the Registrar that the SE’s new registration in that Member State or EEA State has been effected, the Registrar shall cause to be published in the Gazette or on the MFSA website, a notice publicizing the transfer of registered office of the SE, wherein there shall be specified the date on which the name of the SE was struck off the register and all such particulars as are necessary to identify the SE to which the notice is related.
Protection of creditors and holders of other rights
Declaration of Solvency: In case the registered office is transferred to a Member State of EEA State, the SE shall, by means of a declaration of solvency made in terms of the prescribed form set out in Section B of the Schedule, satisfy the Registrar that the interests of creditors and holders of other rights in respect of the SE, including those of public bodies, have been adequately protected in respect of any liabilities arising prior to the transfer of its registered office.
The declaration of solvency must be made by all the directors of the SE.
A fine (multa) and/ or imprisonment shall be imposed on any director in case the declaration of solvency is made by him/ her without having reasonable grounds for the opinion expressed in the said declaration.
The regulations shall apply to any transfer proposal which is submitted after the coming into force of the regulations, the Transfer of Registered Office of a European Company (SE) Regulations (S.L. 386.17).