Malta

Executive Summary One year on, Commission v Malta has become far more than a judgment about the closure of one Maltese investor route. It is now a central reference point in the debate on how citizenship may lawfully be granted within a European legal order shaped by mutual trust, sincere cooperation, and the constitutional consequences of Union citizenship. The Court’s objection was not to wealth, mobility, or contribution as such. It was to the institutionalised transaction. Where nationality, and therefore Union citizenship, follows from pre-determined payments or investments through a structured process resembling a price-led exchange, the route ceases to look like admission into a constitutional community and begins to resemble the sale of legal status. That is why European Citizenship After Commission v Malta matters well beyond Malta itself. For advisers, the consequence is immediate. What survives is no longer what is most marketable, but what can be defended as constitutionally serious: a pathway grounded in lawful ties, authentic connection, real presence, family linkage, or contribution capable of individual assessment. What Citizenship Pathways Remain A common misunderstanding is that Commission v Malta has closed the door on alternative citizenship pathways. It has not. Across the European Union, nationality remains governed by national law, and legal routes continue to vary across Member States. What has changed is the threshold of defensibility. The pathways most likely to remain stable are those that can be explained in non-transactional and connection-based terms. These include citizenship by descent, family-based acquisition, residence-led naturalisation, and, in a narrower class of cases, merit-based acquisition grounded in public interest or exceptional contribution. This distinction is explored more fully in European Citizenship After Commission v Malta, and in practical Maltese terms through Maltese Citizenship and How to Get Maltese Citizenship under Maltese Law. The key shift is conceptual. The question is no longer which route exists in theory, but which route can be justified in practice as credible constitutional membership rather than packaged access. Why Malta Still Matters Malta remains highly relevant after Commission v Malta, but for a fundamentally different reason than before. Its relevance no longer lies in investor citizenship. It lies in the clarity with which its legal framework now distinguishes between a repealed transactional route and a contribution-based, discretionary model. In Malta’s post-2025 legal order, Malta Citizenship by Merit is not a continuation, substitute, or rebranding of the former investor model. It is legally distinct in rationale, structure, and method. Maltese legal materials place emphasis on exceptional service, exceptional contribution, national interest, and individualised assessment rather than pre-determined exchange. That distinction is legally central. It reflects a repositioning of citizenship within a constitutional framework aligned with European law rather than a market-facing model of access. For private client advisers, Malta is now important not as an exception to the new order, but as one of the clearest jurisdictions in which that order is being worked out in real legal form. Doctrine of Contributive Belonging The most important question left open by Commission v Malta is not what the Court rejected, but what positive standard should now govern lawful citizenship acquisition. The answer, in my view, lies in the doctrine developed in Malta, Contributive Belonging and the Reordering of European Citizenship Law. Contributive Belonging offers a legal framework for understanding how genuine integration may be evidenced in modern, globally mobile lives. It recognises that belonging must be real, but that it need not be expressed solely through static or traditional settlement models. Lawful presence, sustained ties, family life, economic activity, philanthropy, innovation, and public-interest contribution may all constitute credible forms of integration, provided they are proportionate, demonstrable, and individually assessed. This avoids two unsatisfactory extremes. It rejects the commodification of citizenship, but also avoids an undefined and subjective notion of belonging. Instead, it offers a structured, legally intelligible standard that can guide legislation, administrative practice, and advisory work. High-Profile Merit Cases For advisers working on high-profile citizenship matters, the focus has shifted from route comparison to evidentiary design. In serious merit-based cases, the decisive work lies in demonstrating that the applicant’s contribution is exceptional and relevant to national interest, that ties to the state are lawful and credible, and that the case is individually assessable rather than formulaic. That is reflected in Malta Citizenship by Merit. Language matters. Guaranteed outcomes, fast-track narratives, threshold-led positioning, and product-style framing are no longer merely unattractive. They are incompatible with the legal category that must now be defended. Where merit genuinely arises, Malta offers one of the clearest European frameworks in which citizenship can be granted on a non-transactional basis. Where it does not, the correct route will usually remain descent or residence-led naturalisation. Closing Perspective Commission v Malta closed an era of overt commercialisation. It did not remove the demand for European citizenship planning. It changed the legal method by which that planning must now be approached. The future of European citizenship law lies in pathways that can be defended as real constitutional membership, grounded in lawful ties, authentic connection, and recognised contribution. That is why European Citizenship After Commission v Malta should be read not only as a critique of what has ended, but as a framework for what must now replace it. And it is why Malta’s post-2025 position, reflected in Malta Citizenship by Merit, is now at the forefront of the shift from transactional access to contributive belonging in European citizenship law. How Our European Citizenship Advisory Lawyers Can Help Our European citizenship lawyers advise internationally mobile individuals, families, and their advisers on lawful pathways to citizenship across Europe, including descent, family-based acquisition, residence-led naturalisation, and citizenship by merit. In Malta-specific matters, we assist on post-Commission v Malta Citizenship by Merit cases, helping ensure that applications are framed around lawful ties, recognised contribution, and national interest rather than transactional logic. About the Author Dr. Jean-Philippe Chetcuti is a Maltese advocate and internationally recognised citizenship and immigration lawyer with over 25 years of specialised experience in European citizenship, Maltese citizenship by investment and Maltese citizenship by merit, and tax law across jurisdictions. He is co-founder and senior partner at Chetcuti Cauchi Advocates. He is a member of the International Bar Association, the American Bar Association, the European Immigration Lawyers Network, and the American Immigration Lawyers Association. He has been recognised by Lexology Who’s Who Legal, Legal 500, Mondaq, Chambers & Partners, Uglobal, and International Tax Review World Tax. He is the author of the Dual Citizenship Report and the Mobility Assets Spectrum, and has contributed to policy development in citizenship law and sustainable mobility frameworks, including advancing the Doctrine of Contributive Belonging within European nationality law discourse. Dr. Chetcuti holds a Doctor of Laws degree from the University of Malta and an LL.M. in International Economic Law from the University of Warwick, and regularly speaks at international legal and academic fora on citizenship, residence, and cross-border legal issues.  

Chris Grech has authored a case note in the European Competition and Regulatory Law Review (CoRe). The publication provides a detailed overview of the Court of Justice of the European Union’s judgement in Illumina/Grail, which dealt with the issue of killer acquisitions and the possible way forward in this regard, as well as the principles of legal certainty and predictability in merger control. The case note can be accessed here. Author: Chris Grech

On 27th May 2024, the First Hall Civil Court (Commercial Section) (the ‘Court’) delivered its judgement in the names of ‘Usta Holdings Inc. vs. Ir-Reġistratur tal-Kumpaniji’ whereby the plaintiff, as the sole shareholder of Usta Maritime Co. Ltd (C 43902) (the ‘Company’), requested the Malta Business Registry (the ‘Registrar’) to have the name of the Company restored and placed back on the register after it was previously struck off for failure to abide by its obligations. Facts of the Case The Company was struck off the register on 10th December 2020, by order of the Registrar by virtue of regulation 9(3) of Subsidiary Legislation 386.19, namely the Companies Act (Register of Beneficial Owners) Regulations (the ‘Regulations’). Said Regulations dictate that if a company fails to provide information on its beneficial ownership, the Registrar has the right to inform a company of its default by means of a letter as indicated under regulation 9(2). If said information is not provided to the Registrar within one month from said letter, the Registrar may inform the company and publish a notice in the Government Gazette that upon the expiration of three months from the date of the last publication of said notice, the company’s name shall, unless cause is shown to the contrary or the Registrar is satisfied that there are sufficient grounds not to proceed with the striking off, be struck off the register. Following the striking off of a company as described under regulation 9(3) of the Regulations, all assets held by the company will eventually devolve onto the Government of Malta. The main asset of the Company was a pleasure yacht named the ‘m.y. BEY’ (holder of official number 11767), valued at around eight hundred and twenty thousand Euros (€820,000). In order not to lose their main asset, the plaintiff lodged an application in Court to have the Company reinstated onto the register. The plaintiff admitted that the Company was not in compliance with the Regulations and that the Company had also been in default for a number of years, thus understanding the Registrar’s decision to have the Company struck off as defunct. Additionally, the plaintiff also held that these actions were not done in bad faith nor were they done in an attempt to deceive the Registrar, but these were merely a result of alienation by the corporate services provider as a result of miscommunication with the Company. By means of the plaintiff’s application, it was made clear that they had every interest to have the Company restored, to the point that it had already reached out to the defendant Registrar, its corporate services provider and other affected competent authorities to make the necessary amends. Naturally, the plaintiff wanted to retain the Company’s ownership of the yacht with the goal of having the latter managing it, rather than having it devolve onto the government. As a remedy to Company’s wrongdoing, the plaintiff requested the Court to restore the Company onto the register and that it continues its existence by virtue of regulation 9(4) of the Regulations. The plaintiff also requested the Court to order the Registrar to take all of the necessary actions as required by virtue of the laws linked with the reinstating of a company on the register. Regulation 9(4) of the Regulations, as referenced by the plaintiff in their application, states that if a shareholder or a creditor of a company (or any other interested third-party) feels ‘aggrieved’ by the striking off of the company in question, said shareholder, creditor or interested third-party may submit an application within five years from the date of publication of the striking-off notice. A successful action under regulation 9(4) would result in the company being restored onto the register as if it were never struck off in the first place. This would also apply to the officers of the company, in that they would be reappointed back in office as a result of this regulation. Upon the Court’s order, the Registrar shall then proceed to publish a notice in the Government Gazette or on the website maintained by the Registrar (i.e. the Malta Business Registry’s online portal) and in a daily newspaper circulating wholly or mainly in Malta that the name of the company has been restored to the register. In their reply, the Registrar informed the Court that the Company had never submitted information concerning its beneficial ownership throughout its entire lifetime. The Registrar’s first attempt at making amends vis-a-vis the Company, was in the form of a letter dated 27th July 2020. On 10th September 2020, the Company was one of several companies mentioned in a publication on a local newspaper that were to be struck off the register, subject to no objections being made within three months from said date. The Registrar also reminded the Court of the fact that over the years, the Company had accumulated considerable penalties amounting to over seven thousand Euros (precisely €7,013.50) and were left outstanding as at the time of striking off on 10th December 2020. In its reply, the Registrar stated that if the Company was to be restored back onto the register, it requested that all of the outstanding information and documents concerning beneficial ownership and annual returns, for the benefit of third parties. Considerations of the Court Prior to proceeding to pass its judgement, the Court was informed that the Company had already settled all its outstanding dues, both in terms of penalties and in terms of missing documents/information, as a sign of its good faith and in an attempt to rectify the situation as swiftly as possible. As a result of this, the Court ordered: • the Registrar to reinsert the Company’s name back onto the register within 15 days from judgement, on the basis that all of the requirements of regulation 9(4) of the Regulations were satisfied; • the Registrar to effect all the publications that need to be made in order to have the Company placed back onto the register; • the Registrar to restore the Company back onto the register; and • the Company to be held responsible to cover the expenses incurred by the Registrar in reinstating the Company back onto the register. The Court outlined that the adherence to the prescription period mentioned within regulation 9(4) of the Regulations and the plaintiff’s willingness to rectify the situation were the main drivers of its decision. Concluding Remarks The ability for a company to be revived following its striking off by virtue of regulation 9(4) as discussed above, provides an exception to the widespread understanding that the striking off of a company is considered to be the ‘death’ of a company, with no other form of recourse available. Whereas a company which liquidates itself voluntarily and is eventually struck off is considered to be final due to a lack of an ‘aggravation’ by the Registrar, a company which encounters a situation as described in the case above is given ‘one last chance’ to rectify its failure to abide by its obligations and reverse its striking off. Ganado Advocates is responsible for contributing this law report but was not in any way involved as legal advisor for the parties in the judgment being covered in this law report. This article was first published in ‘The Malta Independent’ on 29/01/2025. Author: Gabriel Debono

On the 27th January, 2025, the MFSA released a Circular (the “2025 MFSA Circular”) with an important clarification under Regulation (EU) 2022/2554 (the “DORA Regulation”) pertinent to firms operating within the crypto space. By way of background, on the 26th March, 2024, the MFSA issued a Circular (the “2024 MFSA Circular”) through which the MFSA laid to rest the conundrum which industry had faced in terms of identifying which regime shall be applicable to financial services operators as of the 17th January, 2025 (the DORA Regulation’s application date); you may wish to refer to this publication as a refresher. Annex 1 to the 2024 MFSA Circular included an exhaustive list of the MFSA Authorised Persons which were, and remain, subject to the MFSA’s Guidance on Technology Arrangements, ICT and Security Risk Management, and Outsourcing Arrangements (the “MFSA Guidance Document”), including, by way of example, company service providers and recognised fund administrators. The entities listed in Annex 1 to the 2024 MFSA Circular do not fall in scope of the DORA Regulation. However, the said Annex 1 made no mention of the fate of operators licensed by the MFSA as VFA service providers under the VFA Act (Chapter 590, Laws of Malta (the “VFA Act”)). Against this backdrop, Ganado Advocates sought a clarification on behalf of industry from the MFSA to confirm whether existing operators licensed by the MFSA as VFA service providers under the VFA Act shall or shall not fall in scope of the DORA Regulation between the 17th January, 2025 (the DORA Regulation’s application date), and: the date on which the operator is granted or refused an authorisation as a crypto-asset service provider under Article 63 of Regulation (EU) 2023/1114 (the “MiCA Regulation”); or the 1st July, 2026, being the end of the transitional period referred to in Article 58(3) of the MiCA Act (Chapter 647, Laws of Malta); • whichever occurs first. The 2025 MFSA Circular has now clarified the following: the DORA Regulation applies to, inter alia, crypto-asset service providers as authorised under the MiCA Regulation and issuers of asset-referenced tokens; a VFA service provider authorised under the VFA Act is required to continue following the guidelines set out in the MFSA Guidance Document until the 1st July, 2026, or until the operator is granted or refused an authorisation as a crypto-asset service provider under Article 63 of the MiCA Regulation; and a VFA service provider which receives authorisation from the MFSA as a crypto-asset service provider pursuant to Article 63 of the MiCA Regulation shall, with effect from the date of the receipt of such authorisation: (a) no longer be subject to the MFSA Guidance Document, and (b) qualify as a financial entity under, and become subject to, the DORA Regulation. Complying with the DORA Regulation is a rather complex task which is further compounded by the regulatory and implementing technical standards and guidance documents being released under the DORA Regulation. Ganado Advocates has a DORA-focused team of professionals who are readily available to assist with any queries relating to the application of, and requirements emanating from, the MFSA Guidance Document or the DORA Regulation as may be applicable to your firm. Author: Luigi Farrugia