Gibraltar Companies Act 2014 – Company Law

On 1st November 2014 the Companies Act 2014 came into force in Gibraltar. The new Act is a replacement for the Companies Act 1930.

Key changes implemented by the Companies Act 2014 include:

Memorandum of Association: the new Act has introduced a shorter form Memorandum, and it will no longer include an objects clause defining the business activities of a company as it will be presumed the objects are unrestricted.

Articles of Association : Model Articles have been introduced which will be used by all new companies as a template which will standardise the content, which can then be tailored. Existing companies are not required to amend their current articles.

Introduction of E-Filing: Companies House in Gibraltar now allows for e-filing of accounts, a Unique Identifier (UID) will need to be obtained by a company director in order to use the system. This is a key step forward in modernisation of processes.

To Incorporate a company in Gibraltar company law must be followed through the legislation The Gibraltar Companies Act 2014. You will find below the key extracts from the Gibraltar Companies Act along with the full act.

Company Name

No company shall be registered by a name:

• Which does not include the word “limited” or the abbreviation
• Which is the same as the name appearing in the Registrar’s index of company names
• The use of which by the company would in the opinion of the Registrar constitute a criminal offence;
• Which in the opinion of the Registrar is offensive; or
• Which contains the words “Chamber of Commerce”,

Except with the consent of the Minister no company shall be registered by a name which–

• Contains the words “Royal” or “Imperial” or “Empire” or “Windsor” or “Crown” or “Municipal” or “Chartered”or “co-operative” or in the opinion of the Registrar suggests, the patronage of Her Majesty

Registered Office

As from the day on which a company begins to carry on business or as from the date of its incorporation, whichever is the earlier, the company shall have a registered office in Gibraltar to which all communications and notices may be addressed.

Memorandum and Articles of Association  

The memorandum of every company must state– the name of the company; and that the registered office of the company is to be situated in Gibraltar.

The memorandum of a company limited by shares or by guarantee must also state that the liability of its shareholders is limited.

In the case of a company having a share capital:

• the memorandum must also (unless it is an unlimited company) state the amount of the share capital with which the company proposes to be registered and the division of the share capital into shares of a fixed amount;
• subject to section 128, no member of the company may take less than one share; and
• there must be shown in the memorandum against the name of each subscriber the number of shares he takes.

The memorandum must be signed by each subscriber in the presence of at least one witness

Company Secretary

Every company shall have a secretary. A sole director of a company shall not also be the secretary of that company.

The directors of a company shall take all reasonable steps to ensure that the secretary of the company is a person that appears to them to have the knowledge and experience to discharge the functions of secretary of the company.

Directors

Every company shall have at least two directors except in the case of a private company which shall have at least one director.

It shall be the duty of every director who is required by the articles of the company to hold a specified share qualification, and who is not already qualified, to obtain his qualification within 2 months after his appointment, or such shorter time as may be fixed by the articles.

Shareholders

If in the case of a company the share capital of which is divided into different classes of shares, provision is made by the articles for authorising the variation of the rights attached to any class of shares in the company subject to–

• The consent of any specified proportion of the holders of the issued shares of that class; or
• The sanction of a resolution passed at a separate meeting of the holders of those shares,

and in pursuance of those provisions the rights attached to any such class of shares are at any time varied, the holders of not less in the aggregate than 15 per cent of the issued shares of that class, being persons who did not consent to or vote in favour of the resolution for the variation, may apply to the court to have the variation cancelled, and, where any such application is made, the variation shall not have effect unless and until it is confirmed by the court.

Share Capital

The statement of capital and initial shareholdings required to be delivered in the case of a company that is to have a share capital must comply with this section.

It must state:

• The total number of shares of the company to be taken on formation by the subscribers to the memorandum of association;
• The aggregate nominal value of those shares;

In this Act the authorised minimum in relation to the paid up share capital of a public company means £20,500 or such other sum as the Minister may specify by order published in the Gazette.

Certificate of Good Standing 

The Gibraltar Registrar can issue a Certificate of Good Standing for a company if the company, is compliant and up to date with the filing of all its Annual Returns and Company Accounts.

Company Dissolution

Under section 411 of the Companies Act, the Registrar may strike off the register the name of any company in respect of which no annual return has been filed for the previous 3 years and has a discretionary power to strike off defunct companies from the Register if he believes that the company is not carrying on business or in operation.

The striking off procedure may be applied for by the Company itself and must be made in writing by the Company’s directors on behalf of the Company or by a majority of them and must state that the Company has no assets or liabilities.

The striking off procedure may provide an alternative to a Voluntary Liquidation, particularly when the Company has no assets or liabilities. However, unlike the Liquidation procedure, striking off a Company is at the Registrar’s discretion and therefore no assurances can be given as to when the procedure of striking a Company off the Register will be completed.

Company Restoration

A company or any member or creditor of a company who feels aggrieved by the company having been struck off the register under section 412 or 413, before the expiry of 10 years from the publication of a notice under section 412 or, as the case may be, section 413 may make an application to the Registrar to restore the company to the register.