The ‘Trusts and Trustees Act (Registration of Notaries to act as Qualified Persons) Regulations’, set out a registration framework with the Malta Financial Services Authority (MFSA) for Notaries who, in terms of the Trusts and Trustees Act (“TTA”, Cap. 331 of the Laws of Malta) act as depository notaries or publishing notaries, and intend to also act as qualified persons in relation to the holding upon trust by persons who are not authorised by the MFSA to act as trustees of:
- securities or interests in, or issued by, a commercial partnership registered in Malta (other than securities which are listed or traded on a regulated market or on a multilateral system established in Malta or in a recognised jurisdiction), or
- immovable property in Malta.
Essentially this Regulation permits such notaries who also act as depositary notaries and publishing notaries in terms of the notarial procedure laid down by article 43A for private trustees to also act as qualified persons in terms of article 43(9) of the TTA, should they wish to.
When considering an application in terms of the said Regulations, the MFSA must essentially be satisfied that the applicant is in possession of a notarial warrant, is fit and proper to carry out the duties of a qualified person and that said person shall comply with and observe the provisions of the TTA and any regulations issued thereunder. A notary applying for approval is required to complete a Personal Questionnaire, which is the regulatory norm in the financial services sector.
The MFSA is empowered to grant or refuse a registration and may alternatively register an applicant as a qualified person subject to such conditions as it may deem fit, with the power to vary or revoke such conditions from time to time. Furthermore, the MFSA is also authorised to cancel a registration in circumstances listed in the Regulations, with the added right to make public the fact that the registration of a notary to act as a qualified person has been cancelled.
Once an application has been accepted and registration granted, the notary shall be listed in a register for the purpose and every time such notary is appointed to act as a qualified person, it shall notify the MFSA accordingly. The procedure in relation to private trustees and the notarial procedure set out by the TTA must be observed.