S.L. 386.26 Art. 18Review by Registrar and issue of pre-division certificate. 

(1) Upon receipt of the application referred to in regulation 17 the Registrar shall:

(a) examine all documents and information submitted to the Registrar in accordance with regulation 17 in order to confirm the validity of the cross-border division as set out in this part of the regulations; and

(b) in respect of compliance with the rules concerning employee participation, verify that the draft terms of the cross-border division include information on the procedures by which the relevant arrangements are determined and on the possible options for such arrangements.

(2) The review referred to in this regulation 18 shall be carried out within three (3) months from the date of receipt by the Registrar of the documents and information referred to in regulation 17.

(3) Upon completion of the Registrar’s review:

(a) where it is determined that the cross-border division complies with all the relevant conditions and that all necessary procedures and formalities have been completed, the Registrar shall issue the pre-division certificate:

Provided that no pre-division certificate shall be issued prior to the lapse of three (3) months from the publication referred to in regulation 10:

Provided further:

(i) where an application has been made under regulation 15(1), the Registrar shall only issue such certificate after the date of the final judgment rejecting the application;

(ii) where an application has been made under regulations 12(4) or 15(2), the Registrar shall only issue COMPANIES

such certificate after the date of the final judgment rejecting or upholding the application.

(b) where it is determined that the cross-border division does not comply with all the relevant conditions or that not all necessary procedures and formalities have been completed, the Registrar shall not issue the pre‐division certificate and shall inform the Maltese company being divided of the reasons for such decision by not later than seven (7) days from the lapse of the period referred to in sub-regulation (2). In that case, the Registrar may give the Maltese company being divided the opportunity to fulfil the relevant conditions or to complete the procedures and formalities within an appropriate period of time.

(4) The Registrar shall not issue the pre-division certificate where it is determined that the cross-border division is set up for abusive or fraudulent purposes leading to or aimed at the evasion or circumvention of Community or national law, or for criminal purposes.

(5) Where the Registrar, during the review referred to in sub-regulation (1), has serious doubts indicating that a cross-border division is set up for abusive or fraudulent purposes leading to or aimed at the evasion or circumvention of Community or national law, or for criminal purposes, the Registrar shall take into consideration relevant facts and circumstances, of which the Registrar has become aware, in the course of the review referred to in sub-regulation (1), including through consultation of relevant authorities.

(6) Where it is necessary for the purposes of the Registrar’s assessment under sub-regulations (4) and (5) to take into account additional information or to perform additional investigative activities, the period of three (3) months provided for in sub-regulation (2) may be extended by a maximum of three (3) months.

(7) Where, due to the complexity of the cross-border procedure, it is not possible to carry out the assessment within the deadlines provided for in sub-regulations (2) and (6), the Registrar shall notify the Maltese company being divided of the reasons for any delay before the expiry of those deadlines.

(8) In carrying out the review in terms of this regulation, the Registrar may:

(a) consult other relevant authorities with competence in the different fields concerned by the cross-border division, including those of the country or jurisdiction of the recipient companies;

(b) obtain from those authorities and from the Maltese company being divided information and documents necessary to assess the legality of the cross-border division in terms of these regulations;

(c) appoint an independent expert to assist with the Registrar’s assessment:

Provided that any independent expert appointed by the Registrar for such purpose must be independent from the Maltese company applying for the pre-division certificate and must have no past or current link with the Maltese company being divided which might affect the expert’s independence.