What is a Company Secretary and who can act as a one?
Under Maltese Law, more specifically under the Companies Act, Chapter 386 of the Laws of Malta, each and every Company incorporated in Malta must have a Company Secretary. Yet, the name misleads many as to what is a Company Secretary and what does one do?
The role of the Company Secretary became official and part of the Maltese Law with the enactment of the Companies Act in 1995. Prior to that, even though in practise a number of companies already employed a company secretary to carry out various functions, the role was not a legal obligation. The enactment of the Companies Act introduced a list of duties for which company secretaries should be responsible for.
It is quite common for Company Secretaries to be associated with directors. Those who make such assumption cannot be blamed. Many times, a company’s directors and company secretary are listed in the same space as evidenced on the Malta Business Registry which lists company directors and company secretaries on the same page or on published financial statements.
Yet the role of a Company Secretary is completely different from the role of directors. Whereas directors have the authority to lead a company and make decisions the role of the company secretary inherently requires one to communicate, observe and report.
The companies act sets only a few conditions for individual to be appointed as company secretary. Assuming that the company setup allows it, the main condition requires individuals to be sufficiently knowledgeable and experienced to carry out the duties required.
Do all Companies in Malta require a Company Secretary?
The simple answer to this is yes. Furthermore, as a general rule, it is safe to say that only natural persons can be allowed to hold the position of Company Secretary. The only exception to this is when dealing with investment companies with variable and/or fixed share capital.
How do you appoint and terminate a Company Secretary?
The first time a company secretary is appointed is when a company is newly incorporated. This implies that the first time, the shareholders appoint the Company Secretary as it is the shareholders who draft the Memorandum and Articles of Association.
Subsequently, a Company Secretary can disassociate oneself from a company by being either removed by the directors or else if one resigns. In any case, the Form K has to be prepared and submitted to the Malta Business Registry. Submission can be lodged either electronically or in paper format. It is always recommended to inform the Malta Business Registry immediately upon changes as companies will incur fines on a daily basis if the notification does not reach the Malta Business Registry within a few days from the event taking place.
What are the Company Secretary’s responsibilities?
As indicated earlier, the duties of the company secretary steam from the companies act. Yet the companies act does not specifically list the duties one by one but it rather imposes requirements on companies per se such as to keep a register of members minutes of board and general meetings, communicate changes to the Malta Business Registry, disclose information about it’s beneficial owners and lastly to file applications in conjunction with the MBR which generally include accounts and other regulatory and statutory compliance.
Do you have any query in regard to the role of the Company Secretary? At Borg Galea & Associates we are equipped to provide firms with the services of Company Secretary as well as to assist your in house Company Secretary with various professional services.
Company Secretary falls within the list of licensable activities as per the Company Service Providers Act and such work is transfered to our strategic partner who has the authority to carry out such work.