Companies Act (Cap. 386), article 401

401. (1) In addition to the other duties prescribed by this Act, it shall be the duty of the Registrar - (a) to ensure compliance with any provision of this Act requiring an act to be done or to be omitted to be done whether under a penalty or not; and to consult the official receiver where such action relates to matters falling within Title II of Part V of this Act; (b) to recover penalties due under this Act in accordance COMP ANIES [CAP. 386. 245 with the provisions of sub-articles (3) to (17); (c) to exercise any powers of investigation conferred upon him by this Act and any other subsidiary legislation, including but not limited to on-site investigations to verify that the registered office address of the commercial partnership is truly existent and valid; Cap. 426. (d) (i) to retain and register any document which is required to be delivered or given to or served on him for registration under any of the provisions of this Act and any such delivery, submission or service to the Registrar and the retention and registration of any document by the Registrar, may be carried out in such manner and by such means and in such format, including electronic communication within the meaning of the Electronic Commerce Act, as the Registrar may deem appropriate: Provided that any such document shall be drawn up in any one of the off icial languages of Malta; (ii) to retain, in addition to any document which is required to be delivered or given to or served on him as indicated in sub-paragraph (i), a translation of any such document which may voluntarily be delivered or given to or served on him, and provided it is a certified translation into one of the official languages of the Community. In case of conflict between any document delivered in accordance with the provisions of sub-paragraph (i) and a ny translation delivered voluntarily in accordan ce with this sub- paragraph, the translation may not be relied upon against third parties. Third parties may nevertheless rely on the translation voluntarily delivered, unless the company proves that the third parties had knowledge of the version which was required to be delivered or submitted or served to the Registrar; (e) where under any of the provisions of this Act - (i) any document is required to be delivered or given to or served on him for registration; or (ii) any certificate is issued by him on the registration or change of name or conversion or amalgamation or divi sion of a commercial partnership, or the name of a commercial partnership is struck off the register, to cause without delay, normally within twenty one days from receipt of the complete documentation including any legality checks as may be required for entry in the register, a statement to be published in the Gazette or on a website maintained by the Registrar showing the date at which the registration, delivery or 246 CAP. 386.] COMP ANIES service was made, or at which the certificate was i s s u e d o r a t w h i c h t h e n a m e o f t h e c o m m e r c i a l partnership was struck off the register, and the general nature of the document or certificate, and giving such particulars as are necessary to distinguish the commercial partner ship to which the statement related: Provided that the twenty one day period referred to in this sub-paragraph shall not apply to annual accounts delivered to the Registrar for registration in accordance with this Act: Provided further that the Re gistrar shall additionally be required to publish without delay in a daily newspaper circulating wholly or mainly in Malta a notice showing substantially the same information contained in the statement published in the Gazette or on a website maintained by the Registrar, consequent to the registration referred to in the following articles of this Act: Sub-article (2) of article 19; Sub-article (1) of article 36; Sub-article (3) of article 88; Sub-article (6) of article 88; Sub-article (8) of article 88; Sub-article (1) of article 224; Sub-article (1) of article 265; Sub-article (5) of article 320; Sub-article (1) of article 331; Sub-article (1) of article 338; Article 350; Paragraph ( a) of sub-article (3) of article 358; Paragraph (a) of sub-article (1) of article 359; Article 367; and Sub-article (4) of article 428. In the event of any appointment of a person as a partner or an assignment of a partner’s interest as are referred to in article 19, or of any reduction or dissolution as are referred to in article 21, or of any reduction referred to in article 83, the Registrar shall proceed with the publication of a statement in the Gazette or on a website maintained by the Registrar and in a daily newspaper in accordance with the requirements of this paragraph. The publication of the notice referred to in this proviso shall be subject to the following provisions: (i) The publication of the notice shall be made by the Registrar at the expense of the commercial COMP ANIES [CAP. 386. 247 partnership concerned, with the exception of the publication of a disqualification order made in accordance with article 320, in which case the publication shall be made at the expense of the person disqualified; (ii) A commercial partnersh ip, liable for the expense of the publication of a n otice in accordance with this proviso, shall eff ect payment without delay, a n d i n t h e e v e n t t h a t s u c h c o m m e r c i a l partnership is or has been dissolved, the Registrar shall, in regard to the said expense, enjoy the same preferential ranking as expenses properly incurred by a liquidator in accordance with this Act; (iii) The expense incurred by the Registrar in publishing a notice pursuant to this proviso shall be notified in writing to the commercial partnership or person liable for the expense in accordance with this proviso. Such notification shall be deemed equivalent to a notice given in terms of sub-article (3), and the expense incurred by the Registrar shall, in so far as applicable, be considered equivalent to a penalty referred to in the same sub-article. The provisions of sub- articles (3) to (17) shall mutatis mutandis apply to such expense; (f) to supply copies or certified copies of documents registered pursuant to this article against payment of the prescribed fee to any person who requests them and such copies may also be supplied by electronic means; (g) to deliver to the Director of the Public Registry for registration at the Public Registry Office a notice containing the particulars of any conversion, amalgamation or division which has taken effect in accordance with Parts VII, VIII and IX respectively of t h i s A c t , o r o f t h e s t r i k i n g o f f o f t h e n a m e o f a company, under the provisions of article 325. Such notice shall show substantially the same particulars as the statement published in the Gazette or on a website maintained by the Registrar pursuant to the proviso to paragraph ( e); and it shall be the duty of the Director of the Public Registry to register the notice or a note thereof in like manner as notes of reference, in so far as applicable, as the Director may consider appropriate; (h) when processing personal data to do so in accordance with Directive 95/46/EC of the European Parliament and of the Council of 24th October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data; 248 CAP. 386.] COMP ANIES (i) to exercise the functions of Registrar for other legal persons as listed and specified in the Second Schedule of the Civil Code and the subsidiary legislation made as authorised by the said Second Schedule; (j) before registering a new company or return, to take such steps and require such information or documentation as it may be deemed necessary to a scertain the individuals’ identification and correctness of the information submitted to him; S.L. 373.01 (k) to provide competent authorities and subject persons, as defined in the Preventio n of Money Laundering and Funding of Terrorism Regul ations, with full access to the website maintained by t he Registrar, including, but not limited to, access by an application programming interface; (l) to deal with any aspect of online formation of companies, online registrati on of branches and online filing of documents and information; (m) to issue, if he so deems fi t, procedures and guidance, after consultation with the Minister, to companies and, or their officers as may be required for the carrying into effect of the provisions of this Act and any subsidiary legislation made thereunder, and which shall be binding on companies and their officers; (n) to carry out on-site inspections on commercial partnerships to verify that the shareholders and, or beneficial owners are those disclosed to the Registrar; (o) to establish, administer and maintain a central data repository; (p) to establish, administer and maintain a register of foreign body corporates and undertakings having a significant business activity in Malta; and (q) to establish, administer and maintain any other register, and matters ancillary or incidental thereto, which may be required from time to time, after consultation with the Minister. (2) Any document, certificate, or other particular required to b e delivered, given to or served on the Registrar for registration may be relied on by the commercial partnership as against third par ties only after it has been duly pub lished in accordance with sub-ar ticle (1)( e), unless the commercial partnership proves that third parties had knowledge thereof in which case the commercial partnership may rely on any such document, certificate or other particular notwithstanding that it has not yet been so published. Any transactions taking place before the sixteenth day following th e publication of any such document , certificate or other particul ar shall not be relied on as against third parties who prove that it was not possible for them to have had knowledge thereof: Provided that at any time third parties may always rely on any such document, certificate or other particular, even if the COMP ANIES [CAP. 386. 249 publication formalities in relation thereto have not at that ti me been complied with: Provided further t hat where this Act requires that any provision shall not take effect u ntil the lapse of a particular period, the provisions of this sub-article shall only come into effect on the lapse of the later period. The Registrar shall make available on a website maintained by him up to date information explaining the provisions of this article according to which third parties can rely on documents and particulars which are registered in terms of any of the provisi ons of this Act, or any other Act requiring such registration. Such information shall also be made available by the Registrar on th e European e-Justice portal in acco rdance with the portal’s rules and technical requirements as sti pulated in Article 3a(2) of Directive 2009/101/EC . ( 3) Where the Registrar gives notice in writing to any person that such person has become liable to a penalty under this Act specifying the nature of the infr ingement, and indicating an am ount as due by way of penalty in respect of such infringement, the person to whom the notice is given shall, without prejudice to the provisions of sub-articles (4) to (17), be deemed to have incur red a penalty under this Act, and the amount indicated as aforesaid a s due by way of penalty including any penalty due for each day during which the default continues shall be deemed to be the penalty due under this Act in respect of the infringement specified in the notice. Cap. 12. (4) A notice as is referred to in sub-article (3) shall, upon th e service of a copy thereof by means of a judicif329al act on the person indicated in the notice, constitute an executive title f or all effects and purposes of Title VII of Part I of Book Second of t he Code of Organization and Civil Procedure unless such person shall within thirty days from the date of such service institute proceedings before the court objecting to t he penalty so fixed. (5) Where any person desires to i nstitute proceedings objecting to a penalty referred to in sub- article (3), such proceedings s hall be instituted by application against the Registrar. (6) The application shall, under pain of nullity, state clearly and concisely the nature of the complaint, the facts out of whi ch the complaint arises, the reasons why such complaint should be uphe ld, and the claim that the penalty is not due at law or is due at l aw only in a smaller amount. (7) The court shall not annul or reduce a penalty as aforesaid unless such penalty cannot at law be imposed in the circumstanc es of the case, or cannot at law be fixed in the amount fixed by t he Registrar. (8) The applicant shall attach to the application all such documents in support of his claim as it may be in his power to produce, and shall indicate in his application the names of all witnesses he intends to produce stating, in respect of each, th e proof which he intends to make. 250 CAP. 386.] COMP ANIES (9) The court shall, without delay, set down the application for hearing at an early dat e, which date shall in no case be later than thirty days from the date of the filing of the application. (10) The application, and the notice of the date fixed for hearing, shall be served on the Registrar without delay, and th e said Registrar shall file his reply t hereto within fourteen days aft er the date of the service of the application. (11) The Registrar shall, in his reply, state clearly and concis ely whether he agrees to the facts se t out in the application, and the reasons why he objects to the cl aim; he shall moreover state in his reply the names of the witnesse s in support of his reasons and shall attach thereto all the doc uments in support thereof. (12) On the day fixed for the hearing of the application, the court shall consider only the issues of fact and of law as are ascertainable from the applica tion, reply or documents filed, b y either of the parties, or from t he evidence indicated by either of the parties in the application or reply, as the case may be, or fro m the oral pleading of either of the parties. (13) The court shall hear the application to a conclusion within five working days from the date fixed for the original hearing of the application, and no ad journment shall be gra nted except either with the consent of both parties, or for an exceptional reason to be recorded by the court, and such adjourned date shall not be lat er than that justified by any such reason. Cap. 12. (14) Saving the preceding prov isions of this article, the provisions of the Code of Organization and Civil Procedure relating to proceedings before th e First Hall of the Civil Cour t shall apply in relation to any such application. Cap. 12. (15) Notwithstanding the provisions of article 256(2) of the Cod e of Organization and Civil Proced ure, the executive title referr ed to in sub-article (4) shall not be enforceable before the lapse of thirty days from the service of the jud icial act therein referred to. (16) The decision of the court upon an application referred to i n sub-article (5), confirming the imposition of a penalty fixed b y the Registrar or reducing any such penalty, shall upon becoming res judicata be deemed to be a judgment of the court ordering the payment by the applicant of the p enalty as confir med or reduced . (17) An appeal from a decision of the court upon an application referred to in sub-article (5), shall be made by means of an application to the Court of Appeal to be filed within six worki ng days of the date of the decision; the person against whom the appeal is entered shall within six working days from the service upon him of the application file a reply to the appeal. (18) Where the Registrar, in his capacity of a data controller, processes personal data for the purposes of this Act, he shall comply with the principles relating to the processing of personal data pursuant to Article 5 of Regulation (EU) 2016/679 of the European Parlia ment and of the Council of 27 April 2016 on the protection of natura l persons with regard to the proce ssing of personal data and on t he free COMP ANIES [CAP. 386. 251 movement of such data, and repealing Directive 95/46/EC (Genera l Data Protection Regulation), and apply appropriat e technical an d organisational measures to ensure a level of security appropria te to the risk posed, and to integrate the necessary safeguards into the processing, in order to protect t he rights and freedoms of data subjects. Protection of shareholders against unfair prejudice. Amended by: IV . 2003.156; XIII. 2004.104.