Re-domiciliation of companies

A. INTRODUCTION

As per articles 354Α – 354ΙΗ of the Companies’ Law, Cap.113, the re-domiciliation of companies, is possible under certain conditions.
In this respect,

• overseas companies can be re-domiciled in Cyprus; and
  
  
• Cyprus registered companies can be re-domiciled abroad.

Summary of the provisions of the law as to re-domiciliation of companies is given below.

B. RE-DOMICILIATION OF OVERSEAS COMPANIES IN CYPRUS

I. Application for re-domiciliation in Cyprus

An overseas company registered in a country which allows re-domiciliation and which company’s Memorandum and Articles of Association provide for the possibility of re-domiciliation, may apply to the Registrar of Companies in Cyprus to be registered in Cyprus as a continuing company and transfer its registered office to Cyprus pursuant to the provisions of the Companies Law, Cap 113.

II. Necessary documents to be filed with the Cyprus Registrar

The application must be submitted together with the following documents:

• Resolution by the Shareholders or a similar document issued by the appropriate body according to the laws of the foreign country, authorizing the overseas company to get registered in Cyprus as a continued legal body. This resolution must be issued in accordance with the laws of the foreign country and must be made apostil.
  
  
• Notification letter (official notice) to the Commercial Register of the country of incorporation about the intention of the company to be re-domiciled in Cyprus.
  
  
• The new Memorandum and Articles (M&A) of the company which M&A must meet the requirements of the Cyprus laws.
  
  
• Certificate of good standing duly made apostil issued by the appropriate foreign authority or an equivalent document issued by the competent authority of the country or jurisdiction in which the overseas company was incorporated;
  
  
• An affidavit made by a director duly authorized by the board of directors of the overseas company confirming the following: -
  
  
  1. The current company name of the overseas company and the name under which it will continue its existence in Cyprus; An application must be filed with the Registrar of Companies to receive approval of the desired name; The application can be for the same company name as the overseas company was initially registered;
     
     
  2. The country of jurisdiction where the overseas company is registered;
     
     
  3. Date of registration of the overseas company;
     
     
  4. The resolution specified above or the equivalent document of the overseas company authorizing the registration and continuation of the existence of the overseas company in Cyprus;
     
     
  5. That the overseas company gave a notification letter (official notice) according to the laws of the country of jurisdiction as to its decision to be re-domiciled in Cyprus. Evidence of such notice must be attached and the relevant letter also;
     
     
  6. That no criminal or administrative procedures have been commenced against the overseas company for infringement of the law of the country of registration.
• Affidavit as to solvency by a duly authorized director of the overseas company confirming the financial good standing and solvency of the overseas company. Relevant declaration to be signed and the signatories to declare that they do not know of any facts that may impair the solvency of the overseas company for the next 12 months from the application.
  
  
• List of directors and secretary and/or the managers of the overseas company as the case may be;
  
  
• List of the shareholders / members of the overseas company;
  
  
• Legal Opinion to be issued by a lawyer / Notary in the country of incorporation confirming among others that:
  
  
  1. The country of foreign jurisdiction allows such an application for re - domiciliation;
     
     
  2. The proper number of shareholders or other necessary persons as defined by the foreign law have given their consent for this application.
     
     

It is worth noting that as from February 12th, 2021, the new consolidated form ME1 has been implemented replacing the current ME1 and MEA. The affidavit by the authorized representative of the overseas company, namely MEA, has been replaced by the lawyer’s declaration within the new form ME1.

III. Liabilities

A director or the management body of the overseas company providing false declaration or making a false declaration as to the solvency of the overseas company, are liable to a crime, and in case of conviction are liable to imprisonment up to 1 year and a fine up to Euro 34.172,00.

IV. Licensed activities

Companies, which offer licensed activities under certain provisions of the law in their jurisdiction and for which similar licenses are required in Cyprus, must produce relevant consent for their re-domiciliation by the proper authorities of their country.
Any overseas company which will undertake any activity for which a license is required in Cyprus, must obtain such a license according to the requirements of Cyprus Law (such companies are among others, Financial Services Companies / Insurance Companies / Banking Institutions).

V. Public Companies

In the case where the overseas company is a public company, then the following must be produced in addition to the above: -

• The prospectus of the overseas company, once the shares have been offered to the public;
  
  
• If it is listed in any Stock Exchange, evidence of consent of the Foreign Stock Exchange allowing re-domiciliation in Cyprus must be provided;
  
  
• List of present shareholders duly certified.

 

VI. Registration in the Republic

Once the Registrar is satisfied that the documents submitted as above specified are in accordance with the Companies Law, Cap.113, temporarily deposits the relevant documents and certifies that the overseas company is temporarily registered as a continuing entity in the Republic as from the date of such registration.

It will issue the Temporary Certificate of Continuation of the Company in Cyprus and publishes its re-domiciliation to the Official Gazette of the Republic of Cyprus.

VII. Name

If the name of the overseas company is according to the opinion of the Cyprus Registrar confusing or misleading in relation to any other name already registered, the Registrar will request the amendment of the name before registration.

VIII. Legal consequences of temporary registration

The overseas company as from the date of issuing of the temporary registration:

• Is considered as a legal person duly incorporated according to the Laws of Cyprus and that is temporarily registered in the Republic for the purpose of the Companies Law, Cap 113;
  
  
• Is subject to all statutory obligations of the Laws of Cyprus and is eligible to exercise all powers that registered companies in Cyprus have according to the Laws of Cyprus;
  
  
• The constituent document of amendment is considered as the Memorandum of the company and where applicable as its the Articles of Association.
  
  
• The registration of the overseas company is not lawful and is void if it is done:
  
  
  1. For the purpose of establishing a new legal entity;
     
     
  2. To damage or affect the continuance of the overseas company as a legal body;
     
     
  3. To affect the property of the overseas company and the way this company will maintain its assets, rights and obligations;
     
     
  4. To render ineffective any legal or other procedures filed or to be filed against the overseas company;
     
     
  5. To acquit or prohibit from any conviction, judgment, opinion,
     
     

Debt, order or liability against the overseas company or its officials or shareholders.

IX. Time Limit

Within 6 months period form the date of issuance of the temporary registration certificate, with the right to extend it by three (3) months in case of reasonable cause, the overseas company must present to the Cyprus Registrar the following:

• Certificate or other document from the competent authority of the country or jurisdiction of the company’s original incorporation that the company has ceased being registered in the said country or jurisdiction; Usually this document is called Certificate of Discontinuance which must be provided duly made apostil.
  
  
• Any other document evidencing that the said company has ceased being registered in the country or jurisdiction of its incorporation;
  
  
• Temporary certificate of continuation in the Republic of Cyprus.

 

Important Note

The company MUST NOT be removed / cancelled from the foreign registry before the time the Cyprus Registrar issues the Temporary Certificate of Continuation. As at this time it must be in full and proper existence.

The application to cancel its registration in the foreign registry must be made ONLY after the Temporary Certificate of Continuation is issued in Cyprus.

X. Production of evidence of deletion from previous registry

In case the above evidence showing that the overseas company has been stopped from being a company registered in the foreign jurisdiction is not submitted, then the Cyprus Registrar may: -

• Delete the name of the overseas company from the registry and advise the country of relevant jurisdiction accordingly;
  
  
• Give three months extension to present the necessary documents to his satisfaction. No other extension can be given.

 

XI. Final Certificate of Continuation

Once the above document – certificate of discontinuance - is presented evidencing that the overseas company has stopped to be a company registered in the country of initial incorporation, (cancelled from being registered abroad), the Cyprus Registrar issues the final certificate of continuation, which certifies that the overseas company has been registered in the Republic.

It is worth noting that it is up to the discretion of the Cyprus Registrar to request any additional documents that might be necessary for issuing their consent and the finalization of the re-domiciliation procedure following the submission of all the required documents depends entirely on their workload.

XII. Cases where applications by overseas companies to be re-domiciled in Cyprus are rejected

• When dissolution proceedings have been started against the overseas company;
  
  
• A liquidator or receiver or special administrator of its property has been appointed;
  
  
• An order or judgment exists limiting the rights of its creditors;
  
  
• Procedures have been started for infringement of the law of its jurisdiction.

 

C. RE-DOMICILIATION OF CYPRUS COMPANIES ABROAD

 

I. Application for re-domiciliation abroad

A Cyprus company registered under the provisions of the Companies Law, Cap. 113 may apply to a foreign country to be registered and continue its existence under that legal regime provided the consent of the Registrar of Cyprus companies has been obtained and the laws of the foreign jurisdiction allow such re-domiciliation.

II. Necessary documents to be produced to the Cyprus Registrar

The application for the consent of the Cyprus Registrar as to the re-domiciliation of a Cyprus company abroad (ME2 Form) must be supported with a declaration signed by at least two directors of the company or one, in case only one is appointed, and must contain the following documents:

• The name of the company under which is requested to be registered in the foreign country;
  
  
• The place where the registration will take place and the name and the address of the relevant authority of the foreign country;
  
  
• The date suggested for the re-domiciliation of the company.

 

III. Conditions that must be met in order for the Cyprus Registrar to give its consent for the re-domiciliation

In order for the Cyprus Registrar to give its consent for the re-domiciliation of a Cyprus company abroad, the following must be met: -

• Special resolution by the shareholders of the company to be issued authorizing the re-domiciliation;
  
  
• Before the shareholders meeting takes place for the approval of the re-domiciliation the directors to prepare and present interim financial statements as up to the date of the shareholders’ general meeting; It is worth noting that the interim financial statements to be submitted with the Cyprus Registrar must be certified as true copies of the original.
  
  
• The special resolution mentioned above along with the interim financial statements to be filed with the Registrar;
  
  
• The company to file with the Cyprus Registrar, a declaration of solvency (ME3 Form), signed by at least two directors or in case of only one director in office by that one, confirming that the directors of the company do not know of any cases that will affect negatively the solvency of the company within a time limit of three years;
  
  
• If the company exercises an activity for which a licence is needed, relevant consent letter to be produced by the relevant authority granting such a licence, approving the continuance of its activity abroad;
  
  
• In case the company is a public company and its shares have been listed in any recognized stock exchange relevant consent from the stock exchange and the Cyprus capital market commission to be produced;
  
  
• All the charges to be paid and all procedures to be completed in relation to the activities of the company pursuant to the Companies Law Cap113;
  
  
• The relevant charges related to this application to be paid;
  
  
• No procedures to have been started, for the dissolution of the company, insolvency proceedings, arrangements or settlements, execution of a court judgment or other similar procedures against the company;
  
  
• The company at the time of filing of the application must not have infringed its obligations according to the provisions of the Companies Law Cap.113;
  
  
• The company must have paid all its due taxes and custom duties if any, to the appropriate Cyprus authorities.

 

It is worth noting that as from February 12th, 2021, the new consolidated form ME2 has been implemented, replacing the previous forms ME2 and ME3 (solvency statement).

IV. Liabilities

Every director who makes a declaration of solvency without the facts, which he knows or should have known, justify the said declaration, is liable to a crime and in case of conviction is liable to imprisonment up to one year and a fine up to Euro 34.172,00.

V. Rights of Creditors

• The Registrar of Companies will not grant its consent for re-domiciliation unless three months’ time limit will elapse from a publication that will be made in two daily newspapers of wide circulation in the Republic of Cyprus of a relevant notice indicating the intended re-domiciliation of the company. Such a publication must be produced to the Registrar within 14 days from the date of publication.
  
  
• During the time limit of the three months mentioned above, any creditor of the company may object to the re-domiciliation of the company abroad by filing relevant application to the court showing sufficient reason why such a re-domiciliation should not take place. The court may, approve such re-domiciliation, reject the re-domiciliation or impose conditions as to this re-domiciliation.

VI. Consent given by the Registrar

If the above conditions and documents are presented and the three months’ time limit has elapsed without an objection by a creditor being filed, or if an objection was filed and the court rejected the application, the Cyprus Registrar gives its consent for the re-domiciliation of the company abroad.

The period for the examination of the application along with the supporting documentation and issuance of the certificate of consent by the Cyprus Registrar is approximately four (4) months.

VII. Strike-off from the registry

With the issuing of a certificate of continuance, issued by the foreign jurisdiction, a copy is presented to the Registrar of Companies and then the Cyprus Registrar strikes-off the company from the registry, issues a certificate of strike-off and makes a relevant publication in the Government’s Official Gazette.

Once the re-domiciliation outside the Republic is in force, the company ceases to be considered as a company registered in the Republic of Cyprus.

It is noted that the certificate of continuation must by an authentic true copy from the foreign jurisdiction, legalized by the competent authority with apostille. In the event that the foreign jurisdiction does not participate in the Hague Convention (apostille), then the document’s legalization must be carried out by the relevant competent authority.

Further, it is clearly noted that such strike-off from the Cyprus Registry is not a liquidation of the company and such a strike-off:

• Does not revoke or affect the jurisdiction of any court in the Republic on any procedure which started by or against the company before deletion;
  
  
• Does not affect the assets of the company;
  
  
• Does not acquit or affect in any way any judgment, conviction, opinion, order, debt, liability or obligation, which is due or will become due, from any cause against the company.

 

VIII. Registry of Re-Domiciled Companies

The Registrar keeps a registry of all Cyprus companies, which have received its consent to be re-domiciled abroad.

D. LANGUAGE OF DOCUMENTS

Whenever documents are needed to be presented with the Cyprus registrar of companies these must be presented in Greek language or in a certified translation in the Greek language.

E. DISCLAIMER

This publication has been prepared as a general guide and for information purposes only. It is not a substitution for professional advice. One must not rely on it without receiving independent advice based on the particular facts of his/her own case.  No responsibility can be accepted by the authors or the publishers for any loss occasioned by acting or refraining from acting on the basis of this publication.

April 2021

 

Authors

Christos P. Kinanis
Lawyer – Managing Partner
Christos.Kinanis@kinanis.com 

 

Androniki Onisiforou
Associate Lawyer – Corporate Department
Androniki.Onisiforou@kinanis.com 
CorporateLegal1@kinanis.com 

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