The role of the Company Secretary under Maltese Law

The role of the Company Secretary is a statutory one, and although the management of the company is usually left in the hands of directors, the role of the company secretary has nowadays expanded widely and is considered of critical importance. This article explores the qualifications required for a company secretary, appointment and termination procedures, as well as an overview of their duties and obligations. Understanding the evolving role of a company secretary is vital for ensuring effective corporate governance and compliance with legal requirements.
 

Who can be a Company Secretary?

The Act stipulates that every company secretary must be an individual person who has the requisite knowledge and experience to hold such office and carry out the required functions. However, as an exception to the general rule, a company secretary may be a body corporate only when the body corporate is registered as an investment company with variable share capital or fixed share capital.

 

An individual shall not qualify to hold office as a company secretary if the individual:

• is either interdicted, incapacitated or declared bankrupt;
• is a minor who has not been emancipated;
• has been convicted of any of the crimes affecting public trust or of theft or of fraud, or of knowingly receiving property obtained by theft or fraud;
• or is subject to a disqualification order.

 

Furthermore, a company’s sole director, whether a body corporate or not, cannot act as a company secretary to the company. The only instance when a sole director of the company can hold the office of the company secretary is when the company is being registered with a a private exempt status. The Act also permits for a company to appoint more than one company secretary, yet this is not very common as each company secretary would then be required to fulfill all the requirements imposed on them under Maltese law.
 

Appointment and Termination

The first company secretary is appointed by the shareholders during the process of the company’s incorporation via its Memorandum and Articles of Association. The name and surname, residential address, and identity documents of the first company secretary are amongst some of the information which is exhibited in the Memorandum of Association. The Act lays down that when there is a vacant position in the office of the company secretary, the directors are obliged to nominate and appoint a subsequent company secretary. Whether the position becomes vacant due to the resignation of the company secretary himself or herself or else due to the removal from office by the directors, a new company secretary must be then appointed within fourteendays from when the position becomes vacant. 
 

Duties and Obligations of the Company Secretary

A company secretary's duty is primarily administrative, involving the keeping of registers and records, as well as the filing of returns and other documents. Although the Act does not specify the duties of the company secretary, it does provide for the company's duties and obligations, which are likewise required to be carried out by the officials of the company, including the company secretary.

 

Duties that the company secretary is generally responsible for include (but are not limited to) the following:

• Keeping a register of members and a register of debentures;

• Issuing the notices and agendas of the annual or extraordinary general meetings;

• Taking the minutes of the annual and extraordinary general meetings as well as of any meetings held by the board of directors of the company;

• Communicating with external stakeholders and providing any necessary information upon demand by third parties;

• Keeping accounting records;

• Preparing and delivering any documentation that is to be filed to the Malta Business Registry, such as:

  • Resolutions and agreements, such as those which alter the Memorandum and Articles of Association together with any required documentation;

  • Accounts and Reports;

  • Notice of redemption of preference shares;

  • Form T regarding any transfer or transmissions of shares;

  • Form K regarding any changes in relation to the company secretary, directors and legal or judicial representations of the company;

  • Notice of the appointments/removals of auditors;

  • Annual Returns;

  • Return of Allotment of Shares.

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