Insights

The Malta Financial Services Authority (together with the Malta Business Registry and the Malta Stock Exchange) have published a number of circulars setting out certain new procedures that must be followed when issuers publish their annual financial reports (“AFR”), which must now be in the European Single Electronic Format (“ESEF”).^[1]

A. New requirements

Owing to the fact that there is currently no reliable technology which facilitates the electronic signature of ESEF AFRs without causing validation or technical errors, the MFSA (together with the Malta Business Registry) has published a circular to introduce two new obligations on issuers publishing AFRs: (1) the requirement to generate a Document ID; and (2) the requirement to submit a Directors’ Declaration.

1. Document Identification

Issuers are now required to generate a unique code to authenticate and identify the electronic AFRs approved for issue by the Board of Directors, referred to as a ‘Document ID’. In technical terms, the Document ID will be “an integer value or code that is generated through a hashing algorithm, thereby assigning a unique value to an object or file” as shall be provided for under the Accountancy Profession Act or the rules and directives issued thereunder.

2. Directors’ Declaration

In terms of Capital Markets Rule 5.56, Maltese issuers must ensure that their AFRs are made available to the public as soon as it has been approved by the Directors which is done by means of a company announcement. In this regard, issuers are now also required to include a ‘Directors’ Declaration on ESEF AFRs’ (“Directors’ Declaration”) in the company announcement wherein the publication of the ESEF AFR is announced^[2].

The Directors’ Declaration must be signed by two directors, and through it, the Directors will be confirming that: (i) the AFR has been approved by the Directors and made available to the public; (ii) the AFR has been prepared in accordance with applicable regulation including the ESEF Regulation and the Capital Markets Rules; (iii) the auditor’s report represents the exact copy; and (iv) the AFR shall serve as the official document for the purposes of the Capital Markets Rules and the Companies Act, where an issuer is registered in Malta.

B. Procedures for submitting ESEF AFRs

1. Submission of Annual Financial Reports to the MFSA

In terms of Capital Markets Rule 5.56, issuers are obliged to lodge their AFRs with the MFSA for validation.  Accordingly, the MFSA also published a separate circular informing issuers of the relevant processes required to lodge and publish AFRs in ESEF. In a nutshell, issuers are required to lodge their ESEF AFRs via the MFSA’s dedicated portal (the LH Portal).^[3]

Once the ESEF AFR has been uploaded on the MFSA’s LH Portal, it is automatically validated upon submission. The validation process can result in either (a) a failed upload (implying non-validation); or (b) a successful upload (which will constitute a confirmation of successful validation). In the former case, issuers would need to amend their file to ratify any mistakes and re-upload the updated file for validation once again, while in the latter case the MFSA process is complete.

2. Submission of Annual Financial Reports to the OAM (the MSE)

The same AFRs lodged with the MFSA must also be made public through the Malta Stock Exchange (“MSE”) as the Officially Appointed Mechanism (“OAM”) in Malta. This process has been simplified since in the event of a successful submission to the MFSA (as described above), the ESEF AFR is automatically shared with the MSE as OAM.

It is, however, important to note that issuers would still be required to issue a company announcement (which must also include the Directors’ Declaration) to announce the publication of the ESEF AFR, through the OAM. Importantly, the ESEF AFR will not be deemed to have been made public (in terms of applicable law) until the issuer makes the company announcement, with the corresponding ESEF AFR and Directors’ Declaration, and issues the same company announcement through the OAM.

In this regard, issuers should refer to the MSE’s Notice to Company Secretaries^[4] which describes how to link ESEF AFRs to company announcements.

3. Submission of Annual Financial Reports to the Malta Business Registry

Apart from their obligations under Capital Markets Rules 5.56 (referred to above), Maltese issuers are also required to submit their AFRs to the Malta Business Registry (“MBR”) in terms of article 183(1) of the Companies Act. In this regard, issuers are to note that they are now required to submit ESEF AFRs to the MBR. Accordingly, the ESEF AFRs submitted to the MFSA (and uploaded on the OAM) must also be submitted electronically to the MBR.

In terms of a circular published by the MBR, issuers are now also required to submit the Directors’ Declaration in conjunction with their ESEF AFRs to the MBR (which AFRs must also include an auditors’ report, and a directors’ report).

^[1] All AFRs containing financial statements for financial years beginning on or after 1 January 2021 must be prepared entirely in ESEF.

^[2] Please refer to Section B2 below for more information on the company announcement.

^[3] https://lhportal.mfsa.mt/. In this respect, issuers are encouraged to follow the MFSA’s “Guidelines for Issuers to Upload and Review Reporting Data through the LH Portal” (https://www.mfsa.mt/wp-content/uploads/2021/06/Guidelines-for-Issuers-to-Upload-and-Review-Reporting-Data-through-the-LH-Portal.pdf)

^[4] Ref: 01/2022 (31 January 2022)