Author: Geraldine Spiteri

September is Yacht Show Season

Asteria offers a broad range of services for owners of yachts, from the acquisition and registration of the yacht, to its day-to-day management and until its onward sale. Throughout the yacht’s lifetime, Asteria provides guidance and services that make owning a yacht a pleasurable experience for the owner. 

To any owner, a yacht is a high-value asset that is a pleasure to own and that requires proper management and care.  Whether the yacht is a hundred-meter superyacht that needs to comply with all international maritime conventions, or a small yacht that only navigates in domestic waters, registration procedures and all formalities in relation to acquisition, ownership and charter need to be observed.

A yacht is also capable of being exploited commercially, in order that the owner can recoup some of the expenses necessary for its ongoing care and maintenance. 

The ownership of a yacht involves dealing with a multitude of service providers and authorities, as well as a potential customer base (if the yacht operates commercially).  However, this need not be a cause for concern for an owner who may have other business commitments to attend to: a reliable yacht management company and proper coordination of all the yacht’s servicing and maintenance are available through Asteria’s own expertise and its network of professionals.

The Yachting Industry

During recent years, the yachting industry has grown significantly in Malta as well as across the Mediterranean.  It is still a small industry, and key players are all very well acquainted and highly professional.

Knowledge of operational standards as well as the rules concerning the yachts (from registration, to actual navigation and ownership of a yacht) is essential to ensure a smooth and uncomplicated experience.  This is why we believe that our presence at industry events is important.

Asteria makes sure to remain abreast of all developments in order to be able to provide the highest standards of service possible.

From Flag to Charter – Operational and Financial Choices

Whether an owner wishes to obtain a yacht purely for pleasure purposes, or to charter it commercially, a number of key decisions need to be taken, including the yacht-holding structure, the choice of flag, crew selection and operational models.

Asteria holds the necessary knowledge base that will enable such service provision to the best of the client’s interests, and will procure the necessary legal, financial or tax advice in order to ensure that the soundest and most feasible choices are made all along.

Cannes Yachting Festival and Monaco Yacht Show

Networking Events Yacht shows are important events that bring together service providers from different angles of the industry, as well as clientele. The key period for such events is September, when the yachting season is drawing to a close on this side of the globe.  Owners should begin making plans at this time in the event that they want to change or refurbish their yacht, or if their yacht requires some crucial maintenance or repair, in preparation for the next sailing season.

After our successful attendance at the Palma Superyacht Show in April, we took the plunge and visited Cannes Yachting Festival, which was held across Vieux Port and Port Canto in Cannes this year, in order to attend several events that we were honoured to be invited to.

The variety of yachts was immense, ranging from the smallest of tenders to large motor yachts and elegant sailing yachts gracing the marinas or at anchor in the open sea.  We continued to forge relationships with important contacts across the sub-Mediterranean region, where our service provision is the most significant.

The Monaco Yacht Show is the place where practically every service provider of note will be at the end of September, strengthening business ties and making new ones.  Asteria already holds a number of important contacts in the areas and will be attending important meetings which will highlight salient issues in the yachting industry.

Representation

Asteria will be attending with the aim of both strengthening its direct client-base as well as offering services to like-service providers, since we believe that there are ample opportunities for synergies across the service sector.

#MYS2019

Best in Yachting Awards 2018

The Malta Business Review recently nominated our Geraldine Spiteri to sit on a panel of judges during the Malta Best In Business Awards 2018. The event took place at Castello Dei Baroni in Wardija, Malta. Among the wide range of awards given, the nominations included a number of Best in Yachting Awards.

Besides Geraldine, the adjudication panel was composed of other reputable members of the business community.  The Awards formed  part of the Malta Best in Business Awards, an annual event hosted by Malta Business Review.

Participants hailed from a wide variety of service providers in the industry – lawyers, ship operators and agents, shipping companies and businesses. Indeed, there was a wide range of Maltese enterprises that have achieved high standards of excellence during the year. Some of the entities participating have a long-standing business history.

At this year’s event, the pool of nominees was highly varied and interesting. The participants had a few very close wins and there was some tough competition. Needless to say, the judges all expressed difficulties in choosing the winners because of the high degree of achievement displayed.

Closing the ceremony, the hosts wished everyone a prosperous year. Naturally, everyone is excited for the Best in Yachting Awards 2019.

Companies Act – Register of Beneficial Owners

On the 1st January 2018, new regulations came into force setting up the register of beneficial owners within the Registry of Companies.  Companies must declare the identity of the ultimate beneficial owners (UBOs).  This applies for UBOs having a share or controlling interest of more than 25%. If there are none, then the company has to indicate who the senior administrators are.

The regulations exclude companies where:
  1. They are listed on a regulated market and disclosure of beneficial owners is already required under the appropriate regulations; or
  2. All shareholders are natural persons disclosed to the companies registrar.

The First Schedule of the regulations sets out a form which is to be delivered together with the M&As whenever a new company is being set up. Declarations must be submitted for each beneficial owner. The declarations must include name, date of birth and nationality, identification details and country of issue of the passport or identity document.  Failure to comply means that the Registrar will not register the company.

The regulations require the Registrar to keep a register for information on the beneficial owners.  The information is not available to the general public except under payment of a fee to download the documents.

Update – December 2023:

A recent European court judgement has confirmed that having this information accessible by the general public is not strictly necessary or proportionate in terms of human law rights and thus, the ability to access beneficial owners’ information has now been limited to licensed entities and subject persons.  Read the article here.

Companies must retain accurate, adequate and up to date information on all beneficial owners in compliance with the regulations.  They must hold this information in a beneficial owners register which they keep at the company’s registered office.

Shareholders and UBOs are bound to provide the information without delay, even upon any change in the beneficial ownership or interest held.  New shareholders shall not be registered unless they comply with this requirment.

Any changes in beneficial ownership must be notified to the registry within fourteen days.  Companies must use the prescribed Form including all the information necessary.  The same applies in the case of a transfer or transmission of shares, where this has entailed a change in beneficial ownership interest held.  Notices of changes must be signed by at least one director or the company secretary.

Power of Authorities

The registry is authorised to exchange the information with tax and other competent authorities as well as to subject persons carrying out CDD in terms of the applicable regulations.  Subject persons requesting such information may demonstrate their legitimate interest in obtaining such information, including on the basis of previous activities and proven track record.  (Note – this might cause problems for new start-ups).

In exceptional cases where the beneficial owner risks exposure to harm owing to  disclosure, such information should not be disclosed.  Subject persons cannot rely exclusively on the register for CDD purposes.  Furthermore, authorities across the EU will have the power to exchange information with each other.

Submission and Liability to fines for default

The rules subject access to information to online registration and a fee of EUR 5.00 for every access to the information on the beneficial owners of each company. Post 2022, this information is only accessible to subject (licensed) persons.

Default will expose every beneficial owner, shareholder, officer and the company jointly and severally to fines.  Officers can only escape this where they have used all due diligence in order to comply with the rules and was not at fault for the failure.

This information is to be provided at every anniversary of each company after the initial submission.  Notably, the rules also apply to commercial partnerships.

False or misleading statements can lead to hefty fines and / or imprisonment.  The rules make provision for electronic submission. This enables subject persons to submit documents on time.

The Second Schedule lists down the applicable administrative penalties for failure to submit on time.

Information on Beneficial Ownership: Trusts and Trustees

On the 1st January 2018, new regulations came into force concerning the operation of a Central Register of Beneficial Owners for trusts and trustees, for companies, for associations and for foundations.  This Central Register collects information on beneficial ownership of these structures or entities, in a continued fight against financial crime.

What does it mean for trusts?

For trusts and trustees, the rules only apply to express trusts generating tax consequences.  Within 14 days from being appointed as a trustee of an express trust, authorised trustees must submit a declaration of ownership to Malta Financial Services Authority (MFSA) where such trust has tax consequences.

The regulations list the information to be provided by the trustee regarding every beneficial owner, and this without prejudice to any customer due diligence (CDD) carried out under the anti-money laundering regulations. CDD must be carried out before any such information is passed on to MFSA.

Where the beneficiaries of a trust are a class of beneficiaries, special rules apply concerning the description of the class as well as inclusion of family members.  Limited information is to be provided where the trust is set up for charitable persons without any beneficiaries or classes of beneficiaries in whose name the trust is set up (drafting is a little unhappy here).

The MFSA will keep a register for this purpose, and information must be such as to allow MFSA to fulfil its duties under the regulations.  Changes in beneficial ownership must be notified to the MFSA within 14 days.

If the change is made to the trustee, the latter is required to inform MFSA.  An declaration stating that there has been no change is to be submitted yearly after the first declaration made, to be signed by the trustee.  MFSA should make such information available to listed competent authorities for tax and anti-money laundering.

It is worth noting that changes to be notified include a change in passport number (e.g. issue of a new passport) or a change in registered address of the UBO.

In exceptional cases where disclosure of such information would expose the UBO to danger, such information must not be disclosed.

Obligations to file beneficial ownership information

Subject persons may not rely solely on the register to fulfil their CDD.  Trustees cannot solely rely on their compliance with these regulations and must comply with requests for information from any subject person carrying out CDD obligations when onboarding or servicing customers.  Data protection rules still apply to information processed in terms of these rules.

For trusts having tax consequences where a trustee was appointed before 1st January 2018,  trustees have six months within which to provide information to the MFSA.

Administrative penalties of up to EUR 150k are applicable for failure to comply with the regulations.

The MFSA’s Central Register shall be connected to a centralised European Register.

The regulations provide for electronic submission of such information, making it easier to comply.

Get in touch if you need help changing the information that the authorities held in respect of your business.

Opinion: A Commercial Court for Malta ?

Update (2025): Since this article was first published, a Commercial Court has been established in Malta under the Code of Organisation and Civil Procedure. This opinion piece is retained for archival purposes, reflecting earlier commentary on the topic.

Earlier in 2017, the Ministry for Justice, Culture and Local Government held a public consultation, titled “Setting up of the Civil Court, First Hall, Commercial Section“.  The consultation was then concluded in July 2017.

Wide Range of Questions

Consultation questions included whether there should be a commercial section within the civil arm of the Maltese courts. The consultation also asked whether the remit should be limited to the Companies Act or wider.

Feedback Received

The feedback received applauded the initiative of introducing this section. In the past the Maltese courts included a Commercial Court section. The commercial court was eventually discontinued.

However, in the current litigation climate, both the Government and those participating in the consultation felt that the introduction of this section would increase in the efficiency of justice being delivered.  Naturally, it was considered imperative that the necessary human and other resources are provided.

During the consultation, the feedback mentioned that matters falling under the Commercial Code should also be included within the scope of this section’s jurisdiction. Others suggested that other laws such as the Trusts and Trustees Act and other codes that deal with matters of a commercial nature (e.g.  banks) should also fall under this court’s jurisdiction.

Existing Procedures and the New Court

The court’s general area of competence and procedure are still unclear.  Most procedural matters are generally regulated by the Code of Organisation and Civil Procedure. A new court would need to have its own rules of procedure, or somehow be regulated by this Code.  The Code regulates the procedure of all the civil courts in Malta.

The use of alternative dispute resolution mechanisms, including pre-trial conferences and/or arbitration or mediation were also considered an efficient means to resolve disputes.  They can provide direction in cases that are deemed to be high-risk or that are of a delicate nature.

The consultation respondents further referred to the implementation of online filing and payment of fees.  At the time of writing, only physical payment and filing of court cases is possible.   This renders the process inconvenient and unwieldy for most professionals and increases crowding in court.

Respondents additionally suggested other legislative amendments to be made alongside the setup of this new commercial court.  These amendments would ensure that the new Bill respects the current legal framework.

In late 2017, the Government published its response to the consultation. In the response, the Government stated that, subject to Parliamentary approval, it plans to enact the new legislation in early 2018. The plan is for the new Commercial Section  to commence operation in the second quarter of 2018.