Insights

Act LX of 2021 introduced various amendments to the Companies Act (Chapter 386 of the Laws of Malta) (the “Act”), some of which came into effect on 30 October 2021 by virtue of Legal Notice 417 of 2021 whilst some of the amendments have yet to come into effect. Our publications regarding these changes can be accessed here and here.

As mentioned in those publications, two of the amendments which have already come into effect are the following:

• the requirement for persons being appointed to act as directors (of both private and public companies) to personally sign the Memorandum consenting to so act or, alternatively, to sign and deliver to the Registrar for registration a consent in writing to so act – Article 139(1) of the Act;
• the requirement that newly appointed directors must declare to the Registrar, in the prescribed form, whether they are aware of any circumstances which could lead to a disqualification from appointment or to hold office as a director of a company under the Companies Act or in another EU Member State – Article 139 (5) of the Act.

In this regard, by virtue of Legal notice 51 of 2022, the Malta Business Registry (the “MBR”) published two new statutory forms which replace the old statutory Form K which new Forms K must be used with effect from 1 February 2022.

The MBR’s notification was issued on 29 January 2022 (the “MBR Notice”) and may be accessed here.

The New Form K

The updated form K is divided into 2 sections. Form A largely consists of the content originally contained in the past version of the form. The newly included Section B, “Directors’ consent and declaration of Appointment” has been included to allow companies and their directors to comply with the provisions of Articles 139(1) and 139(5) of the Act. Section A continues to implement Article 146(1) of the Act.

Newly appointed directors will need to sign the newly introduced Section B before the fully signed form K notifying the MBR of that person’s appointment is filed with the MBR. Procedurally it is clear that it will no longer be sufficient for the company secretary to file the form K without input of the newly appointed director. Both section A and Section B of the Form K require the inclusion of an effective date so practitioners should ensure that dates inserted make chronological sense.

In accordance with the MBR Notice, if the Form K is filed electronically then Section A will be generated through the online system and the separate form K available on the MBR website which contains only Section B will need to accompany that online Section A as a separate upload under the “Private documents” section of the online portal.

The New Form K1

A new Form K1 has also been introduced to deal with these requirements when they arise at company registration stage (rather than after a company has already been formed). This form K1 will need to be signed and submitted to the MBR pursuant to Article 139(1) and Article 139(5) of the Act by a proposed director. Similarly to Section B of the Form K, should the new company be registered through the online portal, then the Form K(1) will need to be uploaded under Private Documents.