Companies Act 2014
Number 38 of 2014
COMPANIES ACT 2014
REVISED
Updated to 3 December 2024
This Revised Act is an administrative consolidation of the Companies Act 2014. It is prepared by the Law Reform Commission in accordance with its function under the Law Reform Commission Act 1975 (3/1975) to keep the law under review and to undertake revision and consolidation of statute law.
All Acts up to and including the Family Courts Act 2024 (48/2024), enacted 13 November 2024, and all statutory instruments up to and including the Sea-Fisheries (Quotas) (Amendment) Regulations 2024 (S.I. No. 679 of 2024), made 4 December 2024, were considered in the preparation of this Revised Act.
Disclaimer: While every care has been taken in the preparation of this Revised Act, the Law Reform Commission can assume no responsibility for and give no guarantees, undertakings or warranties concerning the accuracy, completeness or up to date nature of the information provided and does not accept any liability whatsoever arising from any errors or omissions. Please notify any errors, omissions and comments by email to
revisedacts@lawreform.ie.
Number 38 of 2014
COMPANIES ACT 2014
REVISED
Updated to 3 December 2024
CONTENTS
Section
1. Short title and commencement
5. Savings and transitional provisions
8. Definitions of “holding company”, “wholly owned subsidiary” and “group of companies”
9. Act structured to facilitate its use in relation to most common type of company
10. Reference in Parts 2 to 14 to company to mean private company limited by shares
12A. Extension of interim period (Repealed)
13. Authentication of certain official documents
INCORPORATION AND REGISTRATION
16. Extension of transition period in the event of difficulties
Incorporation and consequential matters
17. Way of forming private company limited by shares
18. Company to carry on activity in the State and prohibition of certain activities
20. Restriction on amendment of constitution
21. Registration of constitution
22. Statement to be delivered with constitution
23. Additional statement to be furnished in certain circumstances
24. Declaration to be made to Registrar
26. Provisions as to names of companies
27. Trading under a misleading name
28. Reservation of a company name
29. Effect of reservation of name
32. Amendment of constitution by special resolution
34. Language of documents filed with Registrar
35. Authorisation of an electronic filing agent
36. Revocation of the authorisation of an electronic filing agent
37. Copies of constitution to be given to members
Corporate capacity and authority
38. Capacity of private company limited by shares
40. Persons authorised to bind company
Contracts and other transactions
43A. Execution of instruments during interim period
44. Power for company to have official seal for use abroad
45. Pre-incorporation contracts
46. Bills of exchange and promissory notes
47. Liability for use of incorrect company name
48. Authentication by company of documents
Company name, registered office and service of documents
49. Publication of name by company
50. Registered office of company
50A. Registrar may request evidence of situation of registered office
53. Enforcement of orders and judgments against companies and their officers
54. Interpretation (Chapter 6)
55. Status of existing private companies at end of transition period: general principle
57. Relief where company does not re-register as a designated activity company
58. Applicable laws during transition period
59. Adoption of new constitution by members
60. Preparation, registration, etc. of new constitution by directors
62. Relief for members and creditors
63. Procedure for re-registration as designated activity company under this Chapter
SHARE CAPITAL, SHARES AND CERTAIN OTHER INSTRUMENTS
Preliminary and interpretation
65. Powers to convert shares into stock, etc.
Offers of securities to the public
68. Limitation on offers of securities to the public
70. Supplemental and additional provisions as regards allotments
72. Restriction of section 71(5) in the case of mergers
73. Restriction of section 71(5) in the case of group reconstructions
74. Supplementary provisions in relation to sections 72 and 73
76. Treatment of premiums paid on shares issued before a certain date
78. Supplemental provisions in relation to calls
79. Further provisions about calls (different times and amounts of calls)
82. Financial assistance for acquisition of shares
83. Variation of company capital
84. Reduction in company capital
86. Registration of order and minute of reduction
87. Liability of members in respect of reduced calls
88. Variation of rights attached to special classes of shares
89. Rights of holders of special classes of shares
90. Registration of particulars of special rights
91. Variation of company capital on reorganisation
92. Notice to Registrar of certain alterations of share capital
93. Notice of increase of share capital
94. Transfer of shares and debentures
97. Transmission of shares in special circumstances (including cases of mergers)
100. Rectification of dealings in shares
101. Personation of shareholder: offence
Dematerialisation of applicable securities
101A. Interpretation and application
101B. Abolition of certificates in respect of applicable securities
101C. Transfer of applicable securities of company
101D. Disapplication of certain provisions to applicable securities
101E. Disapplication of requirement for certificate in respect of applicable securities
101F. Representation of applicable securities
102. Company acquiring its own shares, etc. — permissible circumstances and prohibitions
103. Supplemental provisions in relation to section 102
104. Shares of a company held by a nominee of a company
105. Acquisition of own shares
106. Supplemental provisions in relation to section 105
107. Assignment or release of company's right to purchase own shares
108. Power to redeem preference shares issued before 5 May 1959
110. Incidental payments with respect to acquisition of own shares
111. Effect of company's failure to redeem or purchase
112. Retention and inspection of documents
113. Membership of holding company
114. Holding by subsidiary of shares in its holding company
115. Civil liability for improper purchase in holding company
116. Return to be made to Registrar
117. Profits available for distribution
119. Distributions in kind: determination of amount
121. The relevant financial statements
122. Consequences of making unlawful distribution
123. Meaning of “distribution”, “capitalisation”, etc., and supplemental provisions
124. Procedures for declarations, payments, etc., of dividends and other things
125. Supplemental provisions in relation to section 124
127. Access to documents during business hours
130. Prohibition of body corporate or unincorporated body of persons being director
131. Prohibition of minor being director or secretary
133. Examination as to solvency status
134. Performance of acts by person in dual capacity as director and secretary not permitted
135. Validity of acts of director or secretary
136. Share qualifications of directors
137. Company to have director resident in an EEA state
138. Supplemental provisions concerning bond referred to in section 137(2)
139. Notification requirement as regards non-residency of director
141. Provisions for determining whether director resident in State
142. Limitation on number of directorships
143. Sanctions for contravention of section 142 and supplemental provisions
145. Appointment of directors to be voted on individually
147. Compensation for wrongful termination, other powers of removal not affected by section 146
149. Register of directors and secretaries
150. Supplemental provisions (including offences) in relation to section 149
151. Particulars to be shown on all business letters of company
153. Provisions as to assignment of office by directors
Service contracts and remuneration
154. Copies of directors' service contracts
155. Remuneration of directors
156. Prohibition of tax-free payments to directors
157. Sections 158 to 165 to apply save where constitution provides otherwise
158. General power of management and delegation
160. Meetings of directors and committees
162. Holding of any other office or place of profit under the company by director
163. Counting of director in quorum and voting at meeting at which director is appointed
164. Signing, drawing, etc., of negotiable instruments and receipts
166. Minutes of proceedings of directors
170. Trusts not to be entered on register of members
172. Consequences of failure to comply with requirements as to register owing to agent's default
173. Rectification of register
General meetings and resolutions
174A. General meetings during interim period (Repealed)
176. The location and means for holding general meetings
176A. Participation in general meetings by use of electronic communications technology
177. Extraordinary general meetings
178. Convening of extraordinary general meetings by members
179. Power of court to convene meeting
180. Persons entitled to notice of general meetings
181. Notice of general meetings
181A. Notice of rescheduled general meeting during interim period (Repealed)
185. Representation of bodies corporate at meetings of companies
186. The business of the annual general meeting
186A. Withdrawal or amendment of dividend resolutions (Repealed)
191. Resolutions — ordinary resolutions, special resolutions, etc., — meaning
192. Resolutions passed at adjourned meetings
193. Unanimous written resolutions
194. Majority written resolutions
195. Supplemental provisions in relation to section 194
195A. Voting on resolutions at general meeting during interim period (Repealed)
196. Single-member companies — absence of need to hold general meetings, etc.
197. Application of this Part to class meetings
199. Minutes of proceedings of meetings of a company
200. Interpretation (Chapter 7)
202. Summary Approval Procedure
206. Declaration to be made in the case of merger of company
207. Declaration to be made in the case of members' winding up of solvent company
208. Condition to be satisfied common to declarations referred to in section 204, 205 or 207
209. Condition to be satisfied in relation to declaration referred to in section 206
210. Civil sanctions where opinion as to solvency stated in declaration without reasonable grounds
212. Remedy in case of oppression
Form of registers, indices and minute books
213. Form of registers, minutes, etc.
214. Use of computers, etc., for certain company records
Inspection of registers, provision of copies of information in them and service of notices
216. Where registers and other documents to be kept, right to inspect them, etc.
218. Service of notices on members
DUTIES OF DIRECTORS AND OTHER OFFICERS
219. Interpretation and application (Part 5)
General duties of directors and secretaries and liabilities of them and other officers
224. Directors to have regard to interests of employees
225. Directors' compliance statement and related statement
227. Fiduciary duties of directors — provisions introductory to section 228
228. Statement of principal fiduciary duties of directors
229. Other interests of directors
230. Power of director to act in a professional capacity for company
231. Duty of director to disclose his or her interest in contracts made by company
232. Breaches of certain duties: liability to account and indemnify
233. Power of court to grant relief to officers of company
234. Anticipated claim: similar power of relief as under section 233
235. Any provision exempting officers of company from liability void (subject to exceptions)
Evidential provisions with respect to loans, other transactions, etc., between company and directors
236. Loans, etc., by company to directors: evidential provisions
238. Substantial transactions in respect of non-cash assets and involving directors, etc.
239. Prohibition of loans, etc., to directors and connected persons
240. Arrangements of certain value
241. Reduction in amount of company's relevant assets
242. Availability of Summary Approval Procedure to permit loans, etc.
246. Transaction or arrangement in breach of section 239 voidable at instance of company
247. Personal liability for company debts in certain cases
248. Offence for contravention of section 239
249. Contracts of employment of directors — control by members over guaranteed periods of employment
250. Anti-avoidance provision — section 249
254. “Existing legal obligation”— definition and other provisions in relation to sections 251 to 253
255. Contracts with sole members
Disclosure of interests in shares and debentures
256. Interpretation generally (Chapter 5)
257. “Disclosable interest”— meaning of that term
259. Circumstances in which person shall be regarded as having ceased to have disclosable interest
260. Interests that are not disclosable interests for the purposes of this Chapter
264. Application of sections 261 to 263 and exceptions to them
265. Mode of notification by directors and secretaries under this Chapter
266. Enforcement of notification obligation
267. Register of interests: contents and entries
268. Supplemental provisions in relation to section 267
269. Register of interests: removal of entries from it
271. Presumption that default permitted and certain defence
FINANCIAL STATEMENTS, ANNUAL RETURN AND AUDIT
272. What this Part contains and use of prefixes —“Companies Act” and “IFRS”
274. Interpretation (Part 6): provisions relating to financial statements
275. Interpretation (Part 6): other definitions and construction provisions
276. Construction of references to realised profits
277. Construction of references to exemption
277A. Certain companies may apply provisions of Act to certain earlier financial years
278. Accounting standards generally — power of Minister to specify
279. US accounting standards may, in limited cases, be availed of for particular transitional period
Qualification of company based on size of company
280A. Qualification of company as small company: general
280B. Qualification of company as small company: holding company
280D. Qualification of company as micro company
280F. Qualification of company as medium company: general
280G. Qualification of company as medium company: holding company
280H. Qualification of company as large company
280I. Treatment of qualifying conditions in respect of certain financial years
281. Obligation to keep adequate accounting records
282. Basic requirements for accounting records
283. Where accounting records are to be kept
284. Access to accounting records
285. Retention of accounting records
286. Accounting records: offences
Statutory financial statements
289. Statutory financial statements to give true and fair view
290. Obligation to prepare entity financial statements under relevant financial reporting framework
291. Companies Act entity financial statements
292. IFRS entity financial statements
293. Obligation to prepare group financial statements under relevant financial reporting framework
294. Companies Act group financial statements
295. IFRS group financial statements
296. Consistency of financial statements
Group financial statements: exemptions and exclusions
297. Exemption from consolidation: size of group (Repealed)
298. Application of section 297 in certain circumstances and cessation of exemption (Repealed)
302. Exemption from consolidation where IFRS so permits
303. Subsidiary undertakings included in the group financial statements
304. Treatment of entity profit and loss account where group financial statements prepared
Disclosure of directors' remuneration and transactions
305. Disclosure of directors' remuneration
305A. Payments to third parties for services of directors
306. Supplemental provisions in relation to section 305
309. Other arrangements and transactions in which the directors, etc., have material interest
Disclosure required in notes to financial statements of other matters
314. Information on related undertakings
315. Information on related undertakings: exemption from disclosures
317. Disclosures of particulars of staff
318. Details of authorised share capital, allotted share capital and movements
319. Financial assistance for purchase of own shares
320. Holding of own shares or shares in holding undertaking
321. Disclosure of accounting policies
322. Disclosure of remuneration for audit, audit-related and non-audit work
323. Information on arrangements not included in balance sheet
Approval of statutory financial statements
324. Approval and signing of statutory financial statements by board of directors
325. Obligation to prepare directors' report for every financial year
326. Directors' report: general matters
327. Directors' report: business review
328. Directors' report: acquisition or disposal of own shares
329. Directors' report: interests in shares and debentures
330. Directors' report: statement on relevant audit information
331. Directors' report: copy to be included of any notice issued under certain banking legislation
332. Approval and signing of directors' report
Obligation to have statutory financial statements audited
333. Statutory financial statements must be audited (unless audit exemption availed of)
334. Right of members to require audit despite audit exemption otherwise being available
335. Statement to be included in balance sheet if audit exemption availed of
336. Statutory auditors' report on statutory financial statements
337. Signature of statutory auditor's report
Publication of financial statements
338. Circulation of statutory financial statements
339. Right to demand copies of financial statements and reports
340. Requirements in relation to publication of financial statements
341. Financial statements and reports to be laid before company in general meeting
Annual return and documents annexed to it
343. Obligation to make annual return
344. Special provision for annual return delivered in a particular form (Repealed)
346. Alteration of annual return date
347. Documents to be annexed to annual return: all cases
348. Documents to be annexed to annual returns: certain cases
349. First annual return: exception from requirement to annex statutory financial statements
350. Qualification of company as small or medium company (Repealed)
351. Exemptions in respect of directors' report in the case of small and medium companies (Repealed)
352. Exemption from filing certain information for small and medium companies
353. Abridged financial statements for a small company
354. Abridged financial statements for a medium company (Repealed)
355. Approval and signing of abridged financial statements
356. Special report of the statutory auditors on abridged financial statements
358. Main conditions for audit exemption — non-group situation
359. Main conditions for audit exemption — group situation
361. Audit exemption not available where notice under section 334 served
363. Audit exemption (non-group situation) not available in certain cases
364. Audit exemption (group situation) not available in certain cases
Special audit exemption for dormant companies
365. Dormant company audit exemption
Revision of defective statutory financial statements
366. Voluntary revision of defective statutory financial statements
367. Content of revised financial statements or revised report
368. Approval and signature of revised financial statements
369. Approval and signature of revised directors' report
370. Statutory auditors' report on revised financial statements and revised report
371. Cases where company has availed itself of audit exemption
372. Statutory auditors' report on revised directors' report alone
374. Publication of revised financial statements and reports
375. Laying of revised financial statements or a revised report
376. Delivery of revised financial statements or a revised report
377. Small and medium companies
378. Application of this Chapter in cases where audit exemption available, etc.
Appointment of statutory auditors
381. Remuneration of statutory auditors
384. Appointment of statutory auditors by directors in other cases, etc.
385. Appointment of statutory auditors: failure to appoint
Rights, obligations and duties of statutory auditors
386. Right of access to accounting records
387. Right to information and explanations concerning company
388. Right to information and explanations concerning subsidiary undertakings
389. Offence to make false statements to statutory auditors
390. Obligation to act with professional integrity
391. Statutory auditors' report on statutory financial statements
392. Report to Registrar and to Director: accounting records
393. Report to Registrar and Director: category 1 and 2 offences
Removal and resignation of statutory auditors
394. Removal of statutory auditors: general meeting
395. Restrictions on removal of statutory auditor
396. Extended notice requirement in cases of certain appointments, removals, etc., of auditors
400. Resignation of statutory auditors: general
401. Resignation of statutory auditor: requisition of general meeting
403. Duty of auditor to notify Supervisory Authority regarding cessation of office
404. Duty of company to notify Supervisory Authority of auditor's cessation of office
405. Prohibition on acting in relation to audit while disqualification order in force
406. False statements in returns, financial statements, etc.
407. Transitional provision — companies accounting by reference to Sixth Schedule to Act of 1963
Registration of charges and priority
409. Registration of charges created by companies
411. Duty of company to register charges existing on property acquired
413. Registration and priority of judgment mortgages
415. Certificate of registration
416. Entries of satisfaction and release of property from charge
417. Extension of time for registration of charges and rectification of register
418. Copies of instruments creating charges to be kept
419. Registration of charges created prior to commencement of this Part
420. Transitional provisions in relation to priorities of charges
421. Netting of Financial Contracts Act 1995 not to affect registration requirements
422. Liability of trustees for debenture holders
424. Power to re-issue redeemed debentures
425. Saving of rights of certain mortgagees in case of re-issued debentures
426. Specific performance of contracts to subscribe for debentures
Prohibition on registration of certain matters affecting shareholders or debentureholders
427. Registration against company of certain matters prohibited
428. Appointment of receiver under powers contained in instrument: construction of such reference
429. Notification that receiver has been appointed
430. Information to be given when receiver is appointed in certain circumstance
431. Contents of statement to be submitted to receiver
432. Consequences of contravention of section 430(1)(b) or 431
433. Disqualification for appointment as receiver
436. Notice to Registrar of appointment of receiver, and of receiver ceasing to act
Powers and duties of receivers
439. Duty of receiver selling property to get best price reasonably obtainable, etc.
440. Preferential payments when receiver is appointed under floating charge
441. Delivery to Registrar of accounts of receivers
Regulation of receivers and enforcement of their duties
442. Enforcement of duty of receivers to make returns
443. Power of court to order the return of assets improperly transferred
443A. Remuneration of receivers
444. Power of court to fix remuneration of receiver
445. Court may end or limit receivership on application of liquidator
446. Director of Corporate Enforcement may request production of receiver's books
447. Prosecution of offences committed by officers and members of company
448. Reporting to Director of Corporate Enforcement of misconduct by receivers
REORGANISATIONS, ACQUISITIONS, MERGERS AND DIVISIONS
449. Interpretation (Chapter 1)
450. Scheme meetings — convening of such by directors and court's power to summon such meetings
451. Court's power to stay proceedings or restrain further proceedings
452. Information as to compromises or arrangements with members and creditors
454. Supplemental provisions in relation to section 453
455. Provisions to facilitate reconstruction and amalgamation of companies
456. Interpretation (Chapter 2)
458. Additional requirement to be satisfied, in certain cases, for right to buy out to apply
461. Interpretation (Chapter 3)
462. Requirements for Chapter to apply
463. Mergers to which Chapter applies — definitions and supplementary provision
464. Merger may not be put into effect save in accordance with the relevant provisions of this Act
465. Chapters 1 and 3: mutually exclusive modes of proceeding to achieve merger
466. Common draft terms of merger
467. Directors' explanatory report
469. Merger financial statement
470. Registration and publication of documents
473. General meetings of merging companies
474. Electronic means of making certain information available for purposes of section 473
475. Meetings of classes of shareholders
476. Purchase of minority shares
477. Application for confirmation of merger by court
479. Preservation of rights of holders of securities
481. Certain provisions not to apply where court so orders
482. Registration and publication of confirmation of merger
483. Civil liability of directors and experts
484. Criminal liability for untrue statements in merger documents
485. Interpretation (Chapter 4)
486. Requirements for Chapter to apply
487. Divisions to which this Chapter applies — definitions and supplementary provisions
488. Division may not be put into effect save under and in accordance with this Chapter
489. Chapters 1 and 4: mutually exclusive modes of proceeding to achieve division
490. Common draft terms of division
491. Directors' explanatory report
493. Division financial statement
494. Registration and publication of documents
496. General meetings of companies involved in a division
497. Electronic means of making certain information available for purposes of section 496
498. Meetings of classes of shareholder
499. Purchase of minority shares
500. Application for confirmation of division by court
501. Protection of creditors and allocation of liabilities
502. Preservation of rights of holders of securities
504. Certain provisions not to apply where court so orders
505. Registration and publication of confirmation of division
506. Civil liability of directors and experts
507. Criminal liability for untrue statements in division documents
509. Power of court to appoint examiner
511. Independent expert's report
513. Cases in which independent expert's report not available at required time: powers of court
514. Certain liabilities may not be certified under section 529(2)
516. Availability of independent expert's report
518. Duty to act in utmost good faith
519. Qualification of examiners
520. Effect of petition to appoint examiner on creditors and others
520A. Restrictions on certain contracts during examinership
521. Restriction on payment of pre-petition debts
522. Effect on receiver or provisional liquidator of order appointing examiner
523. Disapplication of section 440 to receivers in certain circumstances
526. Production of documents and evidence
527. No lien over company's books, records, etc.
529. Incurring of certain liabilities by examiner
530. Power to deal with charged property, etc.
531. Notification of appointment of examiner
532. General provisions as to examiners — resignation, filling of vacancy, etc.
533. Hearing regarding irregularities
536. Content of examiner's report
537. Repudiation of certain contracts
538. Appointment of creditors' committee
539. Proposals for compromise or scheme of arrangement
540. Consideration by members and creditors of proposals
541. Confirmation of proposals
542. Supplemental provisions in relation to section 541
543. Objection to confirmation by court of proposals
544. Provisions with respect to leases
Liability of third parties for debts of a company in examination
545. What this Chapter contains
547. Circumstances in relation to which subsequent provisions of this Chapter have effect
548. General rule: liability of third person not affected by compromise or scheme of arrangement
552. Cessation of protection of company and termination of appointment of examiner
554. Costs and remuneration of examiners
556. Hearing of proceedings otherwise than in public
557. Power of court to order the return of assets which have been improperly transferred
558. Reporting to Director of Corporate Enforcement of misconduct by examiners
RESCUE PROCESS FOR SMALL AND MICRO COMPANIES
558A. Interpretation (Part 10A)
558B. Requirements where eligible company wishes to avail of rescue plan
558C. Process adviser to determine whether eligible company has reasonable prospect of survival
558D. Process adviser to prepare report
Appointment of process adviser
558E. Resolution to appoint process adviser
558F. Process adviser’s duty to keep determination under section 558C under review
558G. Duties of directors of eligible company in relation to process adviser
558H. Process adviser’s duty to determine relevant court
558I. Process adviser’s duty to seek provision of email addresses
558J. Process adviser to give notice of appointment
558K. Process adviser to give notice to employees, creditors, etc.
558L. Notice to creditor where eligible company has excludable debt
558M. Relevant court’s powers where receiver or provisional liquidator previously appointed
558N. Relevant court’s power to stay proceedings or restrain further proceedings
558O. Requirements following giving of notice to creditor under section 558K
558P. Repudiation, affirmation and variation of certain contracts
558Q. Process adviser’s duty to prepare rescue plan
558R. Further provision with respect to leases
558S. Procedure where process adviser unable to prepare rescue plan
558T. Process adviser’s duty to call meeting of members and creditors
558U. Notice of meeting under section 558T
558V. Proceedings at meeting under section 558T
558X. Supplemental provisions in relation to section 558W
558Y. Consideration by members and creditors of rescue plan
558Z. Notification of approval of rescue plan
558ZA. Process adviser’s report
558ZB. Confirmation of rescue plan
558ZC. Objection to rescue plan
558ZD. Court hearing in case of objection
558ZE. Supplemental provisions in relation to section 558ZD and section 558ZZ
Liability of third parties for debts of company
558ZF. Definitions (Chapter 7) and savings
558ZG. Circumstances in relation to which subsequent provisions of Chapter have effect
558ZH. General rule: liability of third person not affected by rescue plan
558ZK. Conclusion of rescue period and termination of appointment of process adviser
558ZL. Power of relevant court to revoke rescue plan where fraud
558ZM. Power of relevant court to order the return of assets improperly transferred
558ZN. Director’s power to examine books and records
558ZO. Reporting to Director of Corporate Enforcement of misconduct by process advisers
558ZP. Offence of acting as process adviser when unqualified
558ZQ. Offence where director fails to disclose information or misleads process adviser
558ZR. Prosecution of officers and members of company
558ZS. Powers of process adviser
558ZT. Production of documents and evidence
558ZU. No lien over eligible company’s books, records, etc.
558ZV. Power to deal with charged property etc.
558ZW. Resignation of process adviser
558ZX. General provisions as to process advisers - resignation, filling of vacancy, etc.
Process adviser: remuneration, costs and expenses
558ZY. Process adviser: remuneration, costs and expenses
558ZZ. Application to relevant court for review of remuneration etc. of process adviser
558ZAA. Incurring of certain liabilities by process adviser
558ZAC. Effect on certain sections where application to relevant court
558ZAE. Hearing of proceedings other than in public
558ZAF. High Court’s power to remit proceedings to Circuit Court
558ZAG. Representation of bodies corporate at meetings held under this Part
558ZAJ. Regulations to remove difficulties
Preliminary and interpretation
561. Modes of winding up — general statement as to position under Act
562. Types of voluntary winding up — general statement as to position under Act
563. Provisions apply to either mode of winding up unless the contrary appears
564. Jurisdiction to wind up companies and rules of court
565. Powers of court cumulative
566. Court may have regard to wishes of creditors or contributories
567. Application of certain provisions to companies not in liquidation
569. Circumstances in which company may be wound up by the court
570. Circumstances in which company deemed to be unable to pay its debts
571. Provisions as to applications for winding up
572. Powers of court on hearing petition
573. Appointment of provisional liquidator
574. Power to stay or restrain proceedings against company
575. Appointment of liquidator by the court
576. Effect of winding-up order
577. Saving for rights of creditors and contributories
579. Procedure for and commencement of members' voluntary winding up
581. Publication of resolution to wind up voluntarily
582. Protections and remedies for creditors in cases where declaration of solvency made
583. Power of company to appoint liquidators
Creditors' voluntary winding up
586. Resolution for and commencement of creditors' voluntary winding up
588. Appointment of liquidator
589. Commencement of court ordered winding up
590. Commencement of voluntary winding up
591. Copy of order for winding up or appointment to be forwarded to Registrar
592. Notice by voluntary liquidator of his or her appointment
593. Statement of company's affairs
594. Supplemental provisions in relation to section 593
595. Notification that a company is in liquidation, etc.
Realisation of assets and related matters
596. Custody of company's property
597. Circumstances in which floating charge is invalid
598. Other circumstances in which floating charge is invalid
598A. Validity of floating charge in certain circumstances
599. Related company may be required to contribute to debts of company being wound up
600. Pooling of assets of related companies
601. Power of liquidator to accept shares as consideration for sale of property of company
602. Voidance of dispositions of property, etc. after commencement of winding up
603. Voidance of executions against property of company
604. Unfair preference: effect of winding up on antecedent and other transactions
605. Liabilities and rights of persons who have been unfairly preferred
607. Duties of sheriff as to goods taken in execution
608. Power of the court to order return of assets which have been improperly transferred
609. Personal liability of officers of company where adequate accounting records not kept
610. Civil liability for fraudulent or reckless trading of company
611. Supplemental provisions in relation to section 610
612. Power of court to assess damages against certain persons
613. Directors of holding company: power of court to assess damages against them
614. Vesting of property of company in liquidator
615. Disclaimer of onerous property in case of company being wound up
616. Rescission of certain contracts and provisions supplemental to section 615
617. Costs, etc. in winding up
618. Distribution of property of company
619. Application of bankruptcy rules in winding up of insolvent companies
620. Debts which may be proved
621. Preferential payments in a winding up
622. Supplemental provisions in relation to section 621
623. Unclaimed dividends and balances to be paid into a particular account
624. Duty of liquidator to administer, distribute, etc., property of company
625. How liquidator is to be described and validity of acts
626. Powers of provisional liquidators
628. Summoning general meetings of the company, etc.
629. Notice to be given with respect to exercise of powers, restrictions on self-dealing, etc.
630. Restrictions in creditors' voluntary winding up and procedures in case of certain defaults
631. Power to apply to court for determination of questions or concerning exercise of powers
632. No lien over company's books, records, etc.
633. Qualifications for appointment as liquidator or provisional liquidator — general
635. Specific disqualification from appointment as liquidator or provisional liquidator
636. Appointment and removal in a members' voluntary winding up
637. Appointment and removal in a creditors' voluntary winding up
638. Appointment and removal by the court
640. Position when there is more than one liquidator
641. Resignation of liquidator
642. Prohibition on rewards for appointment
643. Notifications and filings of appointments and removals
644. Custody of books and property upon vacation of office
645. Provisional liquidator's remuneration
646. Liquidator's remuneration — procedure for fixing liquidator's entitlement thereto
647. Liquidator's entitlement to receive payment where entitlement to remuneration exists
648. Supplemental provisions in relation to sections 646 and 647
649. Disclosure of interest by creditors etc. at creditors' meeting
650. Duty of liquidators to include certain information in returns, etc.
651. Penalty for default of liquidator in making certain accounts and returns
652. Enforcement of duty of liquidator to make returns
653. Director's power to examine books and records
654. Liability of contributory
655. Liability as contributories of past and present members
656. Settlement of list of contributories
658. Adjustment of rights of contributories
659. Payment of debts due by contributory to the company and extent to which set-off allowed
660. Order in relation to contributory to be conclusive evidence
661. Liability in case of death of contributory
662. Civil Liability Act 1961 not affected
663. Bankruptcy of contributory
664. Corporate insolvency of contributory
665. Winding up of company that had been an unlimited company before re-registration
666. Appointment of committee of inspection in court ordered winding up
667. Appointment of committee of inspection in a creditors' voluntary winding up
668. Constitution and proceedings of committee of inspection
669. Power to annul order for winding up or to stay winding up
670. Attendance of officers of company at meetings
671. Power of court to summon persons for examination
672. Order for payment or delivery of property against person examined under section 671
673. Delivery of property of company to liquidator
674. Power to exclude creditors not proving in time
675. Order for arrest and seizure, etc.
676. Provisions as to arrangement binding creditors
Provisions supplemental to conduct of winding up
677. Effect of winding up on business and status of company
678. Actions against company stayed on winding-up order
679. Director may direct convening of meetings
680. Duty of liquidator to call meeting at end of each year
681. Information about progress of liquidation
682. Liquidator to report on conduct of directors
684. Inspection of books by creditors and contributories
685. Resolutions passed at adjourned meetings of creditors and contributories
686. Books of company to be evidence in civil proceedings
687. Liquidator may have regard to wishes of creditors and contributories
688. Reporting to Director of misconduct by liquidators
General rules as to meetings of members, contributories and creditors of a company in liquidation
689. Meetings directed by the court
690. Provisions as to meetings of creditors, contributories and members generally
690A. Creditors’ meetings conducted by electronic means during interim period (Repealed)
691. Entitlement to attend and notice
696. Registration of resolutions of creditors, contributories and members
697. Proceedings at the meeting
698. Entitlement to vote of creditors
702. Supplemental provisions in relation to section 701: time for lodging proxies, etc.
703. Representation of bodies corporate at meetings held during winding up
704. Dissolution of company by court
705. Final meeting and dissolution in members' voluntary winding up
706. Final meeting and dissolution in creditors' voluntary winding up
707. Disposal of books and papers of company in winding up
708. Power of court to declare dissolution of company void
709. Disposal of documents filed with Registrar
Provisions related to the Insolvency Regulation
711. Publication in relation to insolvency proceedings
712. Confirmation of creditors' voluntary winding up
713. Provision of certain documents to liquidator
716. Offence for failure to make disclosure, or deliver certain things, to liquidator
717. Certain fraudulent acts within 12 months preceding winding up or any time thereafter: offences
721. Other frauds by officers of companies which have gone into liquidation: offence
722. Fraudulent trading of company: offence
723. Prosecution of offences committed by officers and members of company
724A. Interpretation (Part 12)
724B. Disclosure of Information by Registrar of Beneficial Ownership
725. When Registrar may strike company off register
726. Grounds for involuntary strike off
727. Registrar's notice to company of intention to strike it off register
728. Contents of Registrar's notice to company
730. Public notice of intention to strike company off register
731. Conditions for voluntary strike off
732. Public notice in case of voluntary strike off
733. Striking off (involuntary and voluntary cases) and dissolution
734. Effect of removal and dissolution
735. Power of Director to obtain information
Restoration of company to register
737. Restoration on application to Registrar
738. Restoration on application to court
739. Requirements for application to court under section 738
740. Terms of court order on application under section 738
741. Court order for restoration on application of Registrar
742. Supplementary court orders
744. Transitional provision for companies struck off register before commencement of this Chapter
745. Disclosure of information by Revenue Commissioners to Registrar
Investigations by court appointed inspectors
747. Investigation of company's affairs by court appointed inspectors on application of company etc.
748. Investigation of company's affairs by court appointed inspectors on application of Director
749. Court may give directions in relation to investigation
750. Power of inspector to expand investigation into affairs of related bodies corporate
751. Order for inspection of books or documents of company in liquidation
752. Expanded meaning of “officer” and “agent” for purposes of sections 753 to 757
753. Duty of company officer or agent to produce books or documents and give assistance
754. Inspector may require other persons to produce books or documents and give assistance
756. Power of inspector to examine officers, agents and others
757. Court may make order in relation to default in production of books or documents, etc.
758. Report of inspectors appointed under section 747(1) or 748(1)
759. Distribution of inspectors' report
760. Court may make order after considering inspectors' report
761. Director may present petition for winding up following consideration of report
762. Expenses of investigation by court appointed inspector
Investigations initiated by Director
763. Investigation of share dealing by inspector appointed by Director
764. Investigation of company ownership by inspector appointed by Director
765. Application of certain provisions to investigation of company ownership
766. Expenses of investigation of company ownership
767. Director's power to require information as to persons interested in shares or debentures
768. Director may impose restrictions on shares
769. Director may lift restrictions imposed on shares under section 768
770. Director shall give notice of direction
771. Court may lift restrictions imposed on shares under section 768
772. Court may order sale of shares
773. Costs of applicant for order for sale of shares
774. Proceeds of sale following court ordered sale of shares
775. Continuance of certain restrictions
776. Offences in relation to shares that are subject to restrictions
777. Application of sections 768 to 776 to debentures
778. Power of Director to require company to produce books or documents
779. When Director may exercise power to require company to produce books or documents
780. Power of Director to require third party to produce books or documents
782. Restriction on power of Director to require third party to produce certain books or documents
783. Court may order third party to comply with requirement to produce books or documents
784. Powers ancillary to power to require production of books or documents
785. Offences in relation to requirement to produce books or documents
786. Expenses relating to examination of books or documents
787. Entry and search of premises
788. Supplemental provisions in relation to section 787(3) to (5)
790. Restriction on disclosure of information, books or documents
791. Information, books or documents may be disclosed for certain purposes
792. Information, books or documents may be disclosed to competent authority
793. Offence of falsifying, concealing, destroying or otherwise disposing of document or record
793A. Offence of obstructing, interfering with or impeding officer of Authority
794. Production and inspection of books or documents when offence suspected
795. Saving for privileged information
796. Assistance to company law authority
Compliance and protective orders
797. Court may order compliance by company or officer
798. Court may restrain directors and others from removing assets
799. Interpretation (Chapter 2)
800. Court may make disclosure order
801. Types of disclosure order
802. Procedure on application for disclosure order
803. Scope of disclosure order
804. Interests in shares and debentures for purposes of section 803: general
805. Family and corporate interests
806. Share acquisition agreements — attribution of interests held by other parties
808. “Share acquisition agreement”— meaning
809. Supplemental power of court in relation to a share acquisition agreement
810. Court may grant exemption from requirements of disclosure order
811. Other powers of court in relation to disclosure orders
812. Notice of disclosure order
813. Information disclosed under order
814. Court may impose restrictions on publication of information provided
815. Right or interest in shares or debentures unenforceable by person in default
817. Dealing by agent in shares or debentures subject to disclosure order
Restrictions on directors of insolvent companies
818. Interpretation and application (Chapter 3)
820. Application for declaration of restriction
821. Liquidator shall inform court of jeopardy to other company or its creditors
822. Court may grant restricted person relief from restrictions
823. Register of restricted persons
824. Application of this Chapter to receivers
826. “Company that has a restricted person”— meaning of that expression in sections 827 to 834
827. Disapplication of certain provisions to company having a restricted person
829. Supplemental provisions in relation to section 828
830. Relief from liability under section 828
831. Offence for contravention of section 828
832. Allotment of share not fully paid up by company that has a restricted person
833. Allotment of share not fully paid for in cash by company that has a restricted person
834. Relief for company in respect of prohibited transaction
835. Power to vary amounts specified in section 819(3)
836. Personal liability for debts of company subject to restriction
837. Interpretation generally (Chapter 4)
838. Meaning of “disqualified” and “disqualification order”
839. Automatic disqualification on conviction of certain indictable offences
841. Default under section 23 or 150(2) by director disqualified under law of another state
842. Court may make disqualification order
843. Provisions relating to particular grounds for disqualification
844. Persons who may apply for disqualification order under section 842
845. Miscellaneous provisions relating to disqualification by court order
846. Costs and expenses of application
847. Court may grant relief to person subject to disqualification order
848. Disqualification of restricted person following subsequent winding up
Disqualification and restriction undertakings
854. Regulations for the purposes of sections 850 to 853
Enforcement in relation to disqualification and restriction
855. Offence of contravening disqualification order or restriction
857. Period of disqualification following conviction of offence under this Chapter
858. Company may recover consideration
859. Person acting while disqualified or restricted liable for debts of company
860. Person acting under directions of disqualified person liable for debts of company
861. Relief from liability under section 858, 859 or 860
862. Court may require director to give certain information
863. Information to be supplied to Registrar
864. Register of disqualified persons
Provisions relating to offences generally
866. District court district within which summary proceedings may be brought
867. Period within which summary proceedings may be commenced
868. Prosecution of companies on indictment
869. Offences by body committed with consent of its officer
871. Categories 1 to 4 offences — penalties
872. Court may order that convicted person remedy breach
873. Notice by Director to remedy default
874. Special provisions applying where default in delivery of documents to Registrar
Provision for enforcement of section 27(1) and additional general offences
875. Civil enforcement of prohibition on trading under misleading name
876. Offence of providing false information
877. Offence of destruction, mutilation or falsification of book or document
878. Offence of fraudulently parting with, altering or making omission in book or document
879. Proof of certificate as to overseas incorporation
880. Proof of incorporation under overseas legislation
881. Admissibility in evidence of certain matters
882. Provision of information to juries
885. Saving for privileged communications in context of requirements under section 724
886. Statutory declaration made in foreign place
FUNCTIONS OF REGISTRAR AND OF REGULATORY AND ADVISORY BODIES
887. Registration office, “register”, officers and CRO Gazette
888. Authentication of documents other than by signing or sealing them
888A. Cases in which director must supply certain data
888B. Information on composition of board of directors by reference to gender
890. Annual report by Registrar
890A. Collection of certain data by Registrar
891. Inspection and production of documents kept by Registrar
892. Admissibility of certified copy or extract
893. Certificate by Registrar admissible as evidence of facts stated
894. Disposal of documents filed with Registrar
895. Registrar may apply system of information classification
896. Delivery to Registrar of documents in legible form
897. Delivery of documents in electronic form may be made mandatory
898. Registrar's notice that document does not comply
899. Supplementary and clarificatory provisions for section 898
899A. Function imposed on Registrar under section 930D
Irish Auditing and Accounting Supervisory Authority
900. Interpretation (Chapter 2)
902. Membership of Supervisory Authority
903. Amendment to memorandum or articles
904. Objects of Supervisory Authority
905. Functions of Supervisory Authority
908. Supplementary provisions in relation to board of directors
909. Chief executive officer (including provision of transitional nature)
911. Annual programme of expenditure
912. Specification in annual programme of expenditure of amounts for reserve fund
915. Application of money received by Supervisory Authority
916. Supervisory Authority may levy prescribed accountancy bodies
917. Supervisory Authority may levy certain companies and other undertakings (Repealed)
918. Funding in respect of functions of Supervisory Authority under certain regulations
922. Employees (including provision of a transitional nature)
924. Effect of breach of director's obligations in relation to material interest
925. Employee's duty of disclosure
929. Accountability to Dáil Éireann
930. Recognition of body of accountants
930A. Designation of competent authority
930B. Annual audit programme and activity report
930C. Operation of certain provisions with regard to particular recognised accountancy bodies
930D. Conflicts of interest to be avoided
931. Provisions in relation to recognition by Supervisory Authority under section 930
931A. Investigation by disciplinary committees of prescribed accountancy bodies
931B. Provisions that apply when recognised accountancy body is not able to perform Part 27 function
932. Consultation by Supervisory Authority regarding standards and qualifications
933. Intervention in disciplinary process of prescribed accountancy bodies
933A. Resolution of suspected non-compliance by agreement - relevant body
934. Investigation of possible breaches of standards of prescribed accountancy bodies
934A. Supplemental provisions to section 934 - certain specified persons
934AA. Interim direction required to protect public
934B. Immediate action required to protect public
934D. Relevant circumstances to be considered in imposing relevant sanctions on specified person
934E. Resolution of suspected relevant contravention by agreement - specified person
934F. Publication of relevant sanction imposed on specified person, etc.
934G. Limitations on imposing monetary sanctions on specified person
934H. Specified person not to be liable to be penalised twice for same relevant contravention
934I. Reporting of relevant contraventions
935A. Interpretation of sections 935A to 935D and 941A (Repealed)
935B. Investigation of possible relevant contraventions (Repealed)
935C. Sanctions which Supervisory Authority or Director of Corporate Enforcement may impose(Repealed)
935D. Publication of relevant sanction imposed, etc (Repealed)
936. Review of members of recognised accountancy bodies (Repealed)
936A. Review of members of recognised accountancy bodies
936B. Review of members of recognised accountancy bodies
937. Delegation of Supervisory Authority's functions
938. Hearings, privileges and procedural rules
939. Supervisory Authority's seal and instruments
940. Confidentiality of information
941A. Application to court to confirm decision to impose relevant sanction (Repealed)
942. Liability of Supervisory Authority for acts, omissions, etc.
942A. Liability of prescribed body for acts, omissions etc.
943. Minister's power to make regulations for purposes of Chapter, etc.
944. Prior approval by Houses of Oireachtas required for certain regulations
Director of Corporate Enforcement
945. Director of Corporate Enforcement (Repealed)
946. Terms and conditions of appointment (Repealed)
947. Removal, cessation or disqualification of Director (Repealed)
948. Acting Director of Corporate Enforcement (Repealed)
949. Functions of Director (Repealed)
950. Superannuation (Repealed)
951. Secondment to Director's office of member of Garda Síochána (Repealed)
952. Delegation by Director (Repealed)
953. Liability of Director or officer for acts and omissions (Repealed)
954. Director's annual report (Repealed)
955. Director shall report as required (Repealed)
956. Confidentiality of information (Repealed)
957. Disclosure of information to Director (Repealed)
957A. Restriction of application of certain articles of Data Protection Regulation (Repealed)
957AA. Definitions (sections 957A to 957I) (Repealed)
957C. Sanctions which Director may impose on relevant director for certain conduct (Repealed)
957D. Relevant circumstances to be considered in imposing relevant sanctions on relevant director (Repealed)
957E. Resolution of suspected certain conduct by agreement - relevant director (Repealed)
957F. Publication of relevant sanction imposed on relevant director (Repealed)
957G. Limitations on imposing monetary sanctions on relevant director (Repealed)
957H. Relevant director not to be liable to be penalised twice for same conduct (Repealed)
957I. Appeals to and orders of court, including orders confirming decisions of Director (Repealed
Corporate Enforcement Authority
944A. Definitions (Chapter 3A)
944C. Establishment of Corporate Enforcement Authority
944E. Transfer of functions of Director to Authority
944G. Appointment of chairperson of Authority
944H. Resignation, removal, disqualification of Member
944J. Assignment and transfer of staff to Authority
944K. Staff of Authority, etc.
944L. Superannuation of Members
944M. Secondment to Authority of member of Garda Síochána
944N. Accountability of Authority to Committee of Public Accounts
944O. Accountability of Member to certain Oireachtas Committees
944P. Confidentiality of information
944Q. Disclosure of information to Authority
944R. Restriction of application of certain articles of Data Protection Regulation
944U. Strategy statement and work programme
944W. Liability of Authority for acts or omissions
944Y. Final annual report of Director
944Z. Definitions (sections 944Z to 944AH)
944AB. Sanctions which Authority may impose on relevant director for certain conduct
944AC. Relevant circumstances to be considered in imposing relevant sanctions on relevant director
944AD. Resolution of suspected certain conduct by agreement - relevant director
944AE. Publication of relevant sanction imposed on relevant director
944AF. Limitations on imposing monetary sanctions on relevant director
944AG. Relevant director not to be liable to be penalised twice for same conduct
944AH. Appeals to and orders of court, including orders confirming decisions of Authority
959. Functions of Review Group
960. Membership of Review Group
961. Meetings and business of Review Group
962. Annual report and provision of information to Minister
964. Application of Parts 1 to 14 to DACs
Incorporation and consequential matters
965. Way of forming a DAC and the 2 types of DAC
966. DAC to carry on activity in the State
967. The form of a DAC's constitution
968. Supplemental provisions in relation to constitution
969. Provisions as to names of DACs
970. Trading under a misleading name
973. Capacity not limited by a DAC's constitution
974. Alteration of objects clause by special resolution
975. Supplemental provisions in relation to section 974
976. Restriction of section 32(1) in relation to a DAC limited by guarantee
977. Alteration of articles by special resolution
978. Power to alter provisions in memorandum which could have been contained in articles
979. Status of existing guarantee company, having a share capital
981. Limitation on offers by DACs of securities to the public
982. Variation of rights attached to special classes of shares
983. Application of section 114 in relation to DACs
984. Uncertificated transfer of securities
Dematerialisation of applicable securities
984C. Abolition of certificates in respect of applicable securities
984D. Transfer of applicable securities of DAC
984E. Disapplication of certain provisions to applicable securities
984F. Disapplication of requirement for certificate in respect of applicable securities
984G. Representation of applicable securities
986. Limitation on number of directorships
987. Membership of DAC limited by guarantee confined to shareholders
988. DAC, with 2 or more members, may not dispense with holding a.g.m.
989. Application of section 193 in relation to a DAC
990. Application of section 194 in relation to a DAC
Financial statements, annual return and audit
991. Non-application of Part 6 to DACs that are credit institutions or insurance undertakings
993. Modification of definition of “IAS Regulation” in the Case of DACs
994. Application of sections 297, 350 and 362 to a DAC (Repealed)
995. Disclosures by DAC that is a credit institution
996. Exemption from filing with Registrar financial statements, etc.
Liability of contributories in winding up
998. Petitions for examinerships
998A. Application of Chapter 7 of Part 11 to DACs
Public offers of securities, prevention of market abuse, etc.
999. Application of Chapters 1, 2 and 4 of Part 23 to DACs
1000. Interpretation (Part 17)
1001. Investment company to be a PLC but non-application of this Part to that company type
1002. Application of Parts 1 to 14 to PLCs
1003. Societas Europaea to be regarded as PLC
Incorporation and consequential matters
1005. PLC to carry on activity in the State
1006. The form of a PLC's constitution
1008. Provisions as to names of PLCs
1009. Trading under a misleading name
1010. Restriction on commencement of business by a PLC
1012. Capacity not limited by a PLC's constitution
1013. Alteration of objects clause by special resolution
1014. Supplemental provisions in relation to section 1013
1015. Alteration of articles by special resolution
1016. Power to alter provisions in memorandum which could have been contained in articles
1017. Official seal for sealing securities
1020. Capacity to make public offers of securities
1021. Allotment of shares and other securities
1023. Interpretation and supplemental provisions in relation to section 1022
1024. Status of authority to allot shares conferred prior to company's re-registration as a PLC
1025. Subscription of share capital
1026. Payment for allotted shares
1027. Payment of non-cash consideration
1028. Expert's report on non-cash consideration before allotment of shares
1029. Supplemental provisions in relation to section 1028
1030. Expert's report: supplemental provisions in relation to section 1028
1034. Expert's report on non-cash assets acquired from subscribers, etc.
1035. Supplemental provisions in relation to section 1034
1037. Special provisions as to issue of shares to subscribers
1038. Enforceability of undertakings made in contravention of certain provisions of Chapter
1039. Adaptation of section 102(1) and (2) in relation to a PLC
1040. Treatment of own shares held by or on behalf of a PLC
1042. Charges taken by PLC on own shares
1043. Application of certain provisions of section 82(6) in relation to PLCs
1044. Variation of rights attached to special classes of shares
1045. Restriction on transfer of shares
Interests in shares: disclosure of individual and group acquisitions
1047. Interpretation and supplemental (Chapter 4)
1048. Duty of disclosure — first class of case in which duty arises
1050. Duty of disclosure — second class of case in which duty arises
1051. “Percentage level” in relation to notifiable interests
1052. The notifiable percentage
1053. Particulars to be contained in notification
1054. Notification of family and corporate interests
1055. “Share acquisition agreement”— meaning
1056. Duties of disclosure arising in consequence of section 1055
1057. Duty of persons acting together to keep each other informed
1058. Interest in shares by attribution
1059. Interest in shares that are notifiable interests for purposes of Chapter
1060. Enforcement of notification obligation
1061. Individual and group acquisitions register
1062. Company investigations concerning interests in shares
1063. Registration of interest disclosed under section 1062
1064. Company investigations on requisition by members
1065. Company reports on investigation
1066. Penalty for failure to provide information
1067. Removal of entries from register
1068. Entries, when not to be removed
1069. Where register to be kept, inspection of register, inspection of reports, etc.
1070. Duty of PLC to notify authorised market operator
Acquisition of own shares and certain acquisitions by subsidiaries
1071. Additional (general) provisions relating to acquisition by PLCs of own shares
1072. “Market purchase”, “overseas market purchase” and “off-market purchase”
1073. Authority for PLC's purchase of own shares
1074. Market purchase of own shares
1075. Off-market purchase of own shares
1076. Assignment or release of company's right to purchase own shares
1077. Relationship of certain acquisition provisions to those in PART 3
1078. Off-market re-allotment of treasury shares by PLC
1079. Return to be made to Registrar under section 116(1)
1080. Duty of PLC to publish particulars of overseas market purchase
1081. Duty of PLC to notify authorised market operator
1082. Restriction on distribution of assets
1083. Relevant financial statements in the case of distribution by PLC
1084. Limitation on reduction by a PLC of its company capital
1086. Power to make regulations for the transfer of securities
1087. Supplemental provisions in relation to section 1086
Uncertificated securities of relevant issuers
1087C. Written instrument of transfer
1087D. Alternative special majority for Schemes of Arrangement
1087E. Disapplication of additional requirement
1087F. Irrevocable power of attorney
1087G. Record date for participation and voting in general meeting
1087H. Definition of subsidiary
Dematerialisation of applicable securities
1087K. Abolition of certificates in respect of applicable securities
1087L. Transfer of applicable securities
1087M. Restrictions on transfer of applicable securities
1087N. Disapplication of certain provisions to applicable securities
1087O. Disapplication of requirement for certificate in respect of applicable securities
1087P. Representation of applicable securities
1088. Number of directors of a PLC
1089. PLC, with 2 or more members, may not dispense with holding of a.g.m.
1092. Remuneration of directors
1093. Application of section 193 in relation to PLC
1095. Attendance and voting at meetings
1098. Length of notice of general meetings to be given
1098A. Application of section 176A in relation to PLCs
1100. Equality of treatment of shareholders
1101. Requisitioning of general meeting by members — modification of section 178(3)
1102. Length of notice of general meetings to be given by traded PLC
1102A. Modification of application of section 325(1) to traded PLC
1103. Additional provisions concerning notice under section 181 by a traded PLC
1104. Right to put items on the agenda of the general meeting and to table draft resolutions
1105. Requirements for participation and voting in general meeting
1106. Participation in general meeting by electronic means
1108. Provisions concerning appointment of proxies
1109. Traded PLC may permit vote to be cast in advance by correspondence
Rights of shareholders
1110A. Interpretation, application and commencement (Chapter 8A)
1110B. Identification of shareholders
1110C. Transmission of information
1110D. Facilitation of exercise of shareholder rights
1110E. Non-discrimination, proportionality and transparency of costs
Transparency of institutional investors, asset managers and proxy advisors
1110F. Interpretation and application (Chapter 8B)
1110G. Engagement policy - institutional investors
1110H. Engagement policy - asset managers
1110I. Investment strategy of institutional investors and arrangements with asset managers
1110J. Transparency of asset managers
1110K. Transparency of proxy advisors
Remuneration policy, remuneration report and transparency and approval of related party transactions
1110L. Interpretation and application (Chapter 8C)
1110M. Right to vote on remuneration policy
1110O. Transparency and approval of related party transactions
Offences and penalties
Duties of directors and other officers
1111. Obligation to convene extraordinary general meeting in event of serious loss of capital
1112. Qualifications of secretary of a PLC
Financial statements, annual return and audit
1113. Voting by director in respect of certain matters: prohibition and exceptions thereto
1114. Non-application of Part 6 to PLCs that are credit institutions or insurance undertakings
1116. Modification of definition of “IAS Regulation” in the case PLCs
1116A. Modification of definition of “ineligible entities” in case of PLCs
1117. Obligation for a PLC's statutory financial statements to be audited
1118. Statutory auditors' report on revised financial statements and revised report
1120. Application of sections 310 to 313
1121. Provisions as to register of debenture holders
1122. Petitions for examinerships
1122A. Application of Chapter 7 of Part 11 to PLCs
1123. Acquisitions of uncertificated securities from dissenting shareholders
1124. Power of Registrar to strike PLC off register
1125. Reinstatement as PLC confined to company which had such status before dissolution
1127. Interpretation (Chapter 16)
1128. Requirement for Chapter to apply
1129. Mergers to which Chapter applies — definitions and supplementary provision
1130. Merger may not be put into effect save in accordance with this Chapter
1131. Common draft terms of merger
1132. Directors' explanatory report
1134. Merger financial statement
1135. Registration and publication of documents
1137. General meetings of merging companies
1138. Electronic means of making certain information available for purposes of section 1137
1139. Meetings of classes of shareholders
1140. Purchase of minority shares
1141. Application for confirmation of merger by court
1143. Preservation of rights of holders of securities
1145. Certain provisions not to apply where court so orders
1146. Registration and publication of confirmation of merger
1147. Civil liability of directors and experts
1148. Criminal liability for untrue statements in merger documents
1149. Interpretation (Chapter 17)
1150. Requirements for Chapter to apply
1151. Divisions to which this Chapter applies — definitions and supplementary provisions
1152. Division may not be put into effect save under and in accordance with this Chapter
1153. Common draft terms of division
1154. Directors' explanatory report
1156. Division financial statement
1157. Registration and publication of documents
1159. General meetings of companies involved in a division
1160. Electronic means of making certain information available for purposes of section 1159
1161. Meetings of classes of shareholders
1162. Purchase of minority shares
1163. Application for confirmation of division by court
1164. Protection of creditors and allocation of liabilities
1165. Preservation of rights of holders of securities
1167. Certain provisions not to apply where court so orders
1168. Registration and publication of confirmation of division
1169. Civil liability of directors and experts
1170. Criminal liability for untrue statements in division documents
Public offers of securities, prevention of market abuse, etc.
1171. Application of Chapters 1, 2 and 4 of Part 23 to PLCs
1173. Application of Parts 1 to 14 to CLGs
Incorporation and consequential matters
1175. CLG to carry on activity in the State
1176. The form of a CLG's constitution
1178. Provisions as to names of CLGs
1179. Trading under a misleading name
1181. Prohibition on certain provisions in constitution, etc. and issuing of shares
1183. Capacity not limited by a CLG's constitution
1184. Alteration of objects clause by special resolution
1185. Supplemental provisions in relation to section 1184
1186. Restriction of section 32(1) in relation to CLGs
1187. Alteration of articles by special resolution
1188. Power to alter provisions in memorandum which could have been contained in articles
1189. Status of existing guarantee company
1190. Transitional provision — use of “limited” or “teoranta” by existing guarantee company
1191. Limitation on offers by CLGs of securities to the public
1192. Application of section 114 in relation to CLGs
1193. Uncertificated transfer of securities
1193A. Application of Chapter 3A of Part 16 to CLGs
1195. Limitation on number of directorships
1197. Remunerat1ion of directors
1200. Personation of member: offence
1202. CLG, with 2 or more members, may not dispense with holding of a.g.m.
1203. Convening of extraordinary general meeting on requisition
1204. Persons entitled to notice of general meetings
1204A. Disapplication of section 181(5)(d) in respect of certain CLGs
1208. Application of section 193 in relation to a CLG
1209. Application of section 198 in relation to a CLG
1210. Application of Chapter 5 of Part 5 to a CLG
Financial statements, annual return and audit
1211. Non-application of Part 6 to CLGs that are credit institutions or insurance undertakings
1213. Modification of definition of “IAS Regulation” in the case of CLGs
1214. Application of section 297 to a CLG (Repealed)
1215. Disclosures by CLG that is credit institution
1216. Disclosure of membership changes in CLG's financial statements
1217. Disapplication of sections 325(1)(c) and 329 to a CLG
1218. Application of sections 334, 350 and 362 to a CLG
1219. Qualification of section 338 in the case of a CLG
1220. Exemption from filing with Registrar financial statements, etc.
1221. Application of section 392 to a CLG
1222. Application of section 393 to a CLG
Liability of contributories in winding up
1224. Petitions for examinerships
1225. Application of section 747(2) to CLGs
Public offers of securities, prevention of market abuse, etc.
1226. Application of Chapters 1, 2 and 4 of Part 23 to CLGs
1227. Interpretation (Part 19)
1228. Three types of unlimited company and uniform words to be affixed to name
1229. References to unlimited company to mean ULC, PUC or PULC
1230. Application of Parts 1 to 14 to unlimited companies
Incorporation and consequential matters
1231. Way of forming an unlimited company
1232. Unlimited company to carry on activity in the State
1233. The form of the constitution of an ULC or PUC
1234. The form of the constitution of a PULC
1237. Provisions as to names of unlimited companies
1238. Trading under a misleading name
1239. Capacity of an unlimited company
1240. Capacity not limited by the constitution of an unlimited company
1241. Alteration of objects clause by special resolution
1242. Supplemental provisions in relation to section 1241
1243. Application of section 1018 to PUCs and PULCs
1244. Alteration of articles by special resolution
1245. Power to alter provisions in memorandum which could have been contained in articles
1246. Status of existing unlimited company
1248. Application of section 68 to PUCs and PULCs
1249. Authority to allot and pre-emption rights in the case of a PUC
1250. Variation of rights attached to special classes of shares
1251. Variation of company capital
1252. Reduction of company capital
1253. Application of section 94 to ULCs and PUCs
1254. Application of section 114 in relation to PULCs
1255. Making of distributions unrestricted in the case of unlimited companies
1256. Uncertificated transfer of securities
1258. Limitation on number of directorships
1260. Personation of member: offence
1262. Unlimited company, with 2 or more members, may not dispense with holding of a.g.m.
1263. Application of section 193 in relation to an unlimited company
1263A. Application of Chapter 3A of Part 16 to PUCs and PULCs
Financial statements, annual return and audit
1267. Modification of definition of “IAS regulation” in the case of PUCs and PULCs
1267A. Modification of definition of “ineligible entities” in case of PUCs and PULCs
1268. Application of section 297 to a PULC (Repealed)
1269. Disclosures by unlimited company that is a credit institution
1270. Disclosure of membership changes in PULC’s financial statements
1271. Disapplication of sections 325(1)(c) and 329 to a PULC
1273. Qualification of section 338 in the case of a PULC
1274A. Non application of Part 26 to certain ULCs
1275. Application of section 392 to a PULC
1276. Application of section 393 to a PULC
1277. Documents to be annexed to annual return of non-designated ULC
1278. Liability as contributories of past and present members
1280. Petitions for examinerships
1280A. Application of Chapter 7 of Part 11 to unlimited companies
1281. Application of section 747(2) to PUCs and PULCs
Public offers of securities, market abuse, etc.
1282. Application of Chapters 1, 2 and 4 of Part 23 to PUCs and PULCs
1283. Interpretation (Part 20)
General provisions as to re-registration
1284. Company may re-register as another company type
1285. Procedure generally for re-registration
1288. Re-registration upon reduction of company capital of a PLC
Special requirements for re-registration
1289. What this Chapter does and references to relevant Chapter 2 requirements
1290. Particular requirements for re-registration as a private company limited by shares
1291. Particular requirements for re-registration of company as a PLC
1292. Requirements as to share capital of a company applying to re-register as a PLC
1295. Power of unlimited company to provide for reserve share capital on re-registration
1296. Particular requirements for re-registration of limited company as unlimited
1297. Particular requirements for re-registration of company as a CLG
1298. Particular requirements for re-registration of company as a DAC limited by shares
1299. Particular requirements for re-registration of company as a DAC limited by guarantee
1300. Interpretation (Part 21)
1301. Application to external companies of certain provisions of Parts 1 to 14
Filing obligations of external companies
1302. Filing obligations of EEA company
1303. Accounting documents to be filed by EEA company
1304. Filing obligations of non-EEA company
1305. Accounting documents to be filed by non-EEA company
1306. Return of capital by non-EEA company
Disclosure in certain business documents and translation of documents
1307. Disclosure on letters and order forms
1308. Notice of delivery to be published in CRO Gazette
1309. Translation of documents
1311. Duty of securing compliance with this Part
UNREGISTERED COMPANIES AND JOINT STOCK COMPANIES
Application of Act to unregistered companies
1312. Application of certain provisions of Act to unregistered companies
1313. Minister's power to make regulations in relation to Schedule 14
Registration of certain bodies (other than joint stock companies) as companies
1315. Registration as a company of body to which section 1312(1) applies
1316. Requirements for registration under this Chapter as company
1317. Particular requirements for registration of body corporate as a PLC
1318. Requirements as to share capital of body corporate applying to register as a PLC
1321. Regulations for special cases
1322. Change of name for purposes of registration
1323. Registration and its effects
1324. Supplemental provisions in relation to section 1323
Winding up of unregistered company
1326. Chapter 3 — construction of expression “unregistered company”
1327. Restriction of this Chapter
1328. Winding up of unregistered companies
1329. Cases in which unregistered company shall be deemed to be unable to pay its debts
1330. Contributories in winding up of unregistered company
1331. Power of court to stay or restrain proceedings
1332. Actions stayed on winding-up order
1333. Provisions of this Chapter to be cumulative
1334. Application of Act to companies registered but not formed under former Companies Acts
1336. Provisions as to companies registered under Joint Stock Companies Acts
Registration of joint stock companies under this Act
1337. Interpretation (Chapter 5)
1338. Companies capable of being registered
1339. Requirements for registration of joint stock companies
1340. Verifications of lists of members and directors of company for purposes of registration
1341. Registrar may require evidence as to nature of company
1342. Addition of “limited” or “teoranta”, etc. to name
1343. Certificate of registration of existing company
1344. Effects of registration under this Chapter
1345. Power to substitute memorandum and articles for deed of settlement
1346. Power of court to stay or restrain proceedings
1347. Actions stayed on winding-up order
1348. Interpretation (Chapter 1)
1349. Civil liability for misstatements in prospectus
1350. Exceptions and exemptions
1351. Restriction of liability where non-equity securities solely involved
1352. Indemnification of certain persons
1353. Expert's consent to issue of prospectus containing statement by him or her
1355. Saver for existing Prospectus Regulations
1356. Penalties on conviction on indictment and defences in respect of certain offences
1357. Untrue statements and omissions in prospectus: criminal liability
1359. Supplemental provisions in relation to section 1358
1360. Further supplemental provisions in relation to section 1358: effect of irregular allotment
1362. Exclusion of Investment Intermediaries Act 1995
1363. Power to make certain rules and issue guidelines
1365. Interpretation (Chapter 2)
1366. Regulations (Chapter 2) (repealed)
1367. Saver for existing Market Abuse Regulations (repealed)
1368. Conviction on indictment of offences under Irish market abuse law: penalties
1369. Civil liability for certain breaches of Irish market abuse law
1370. Supplementary rules, etc., by competent authority
1371. Application of Irish market abuse law to certain markets
1373. Corporate governance statement in the case of a traded company
1374. Application of section 225 to a traded company
1375. Application of sections 279 and 280 to a traded company excluded
1376. Application of sections 290(7)(b), 293 and 362 to a traded company
1377. Certain exemptions from consolidation of financial statements not available to traded company
1378. DAC or CLG that is a traded company may not file abridged financial statements
Transparency requirements regarding issuers of securities admitted to trading on certain markets
1379. Interpretation (Chapter 4)
1380. Power to make certain regulations (Chapter 4)
1381. Saver for existing Transparency Regulations
1382. Conviction on indictment of offences under transparency (regulated markets) law
1383. Supplementary rules, etc. by competent authority
1384. Application of transparency (regulated markets) law to certain markets
Application of section 393 to a company to which Part 23 applies
1384A. Application of section 393 to a company to which Part 23 applies
Preliminary and interpretation
1385. Interpretation (Part 24)
1387. Application of Parts 1 to 14 to investment companies
1388. Application of Part 17 to investment companies
1389. Adaptation of certain provisions of UCITS Regulations
Incorporation and registration
1390. Way of forming an investment company
1391. Investment company to carry on activity in the State
1392. The form of an investment company's constitution
1394. Status of existing investment company
1395. Authorisation by Central Bank
1397. Default of investment company or failure in performance of its investments
1398. Power of company to purchase own shares
1399. Treatment of purchased shares
1400. Statutory financial statements
1400A. Modification of definition of “ineligible entities” in case of investment companies
1401A. Filing of financial statements by investment company
1402. Circumstances in which company may be wound up by the court
1403. Restoration by the court
Public offers of securities, prevention of market abuse, etc.
1404. Application of Chapters 1, 2 and 4 of Part 23 to investment companies
1405. Segregated liability of investment company sub-funds
1407. Further matters respecting an umbrella fund to which section 1405(1) applies
1409. “Registration documents”— meaning
1410. Continuation of foreign investment company
1411. Supplemental provisions in relation to section 1410
1412. Definitions for the purposes of de-registration provisions contained in sections 1413 and 1414
1413. De-registration of companies when continued under the law of place outside the State
1414. Supplemental provisions in relation to section 1413
1415. Statutory declaration as to solvency
1416. Preliminary and interpretation (Chapter 1)
1417. Recognition of winding up orders of non-European Union states and Denmark
1418. Purpose of sections 1419 to 1428
1419. Registration of judgments given in insolvency proceedings
1420. Publication in relation to insolvency proceedings outside State
1421. Registration of insolvency judgments
1422. Enforcement in State of insolvency judgments
1423. Interest on insolvency judgments and payment of costs
1424. Currency of payments under enforceable insolvency judgments
1427. Language of claims in relation to insolvency proceedings outside State
1428. Non-recognition or non-enforcement of judgments
Provisions concerning bank recovery and resolution
1428A. Priority of payments in a winding up
Other miscellaneous provisions
1429. Deemed consent to disclosure with respect to interest in shares or debentures acquired
1430. Extension of Chapter 1 of Part 9 to any company liable to be wound up
1431. Application of sections 113 to 115 to bodies corporate generally
1432. Saving for enactments providing for winding up under certain former Companies Acts
1433. Application of section 405 to every type of company and society
1434. Restriction of section 58 of the Solicitors Act 1954
1435. Prohibition of partnerships with more than 20 members
1436. Prohibition of banking partnership with more than 10 members
1438. Audit by Comptroller and Auditor General of companies not trading for gain
1439. Application of sections 1402 and 1403 to companies that are UCITS
1440. Relationship between Chapters 1 and 2 of Part 9 and Irish Takeover Panel Act 1997
1441. Eligibility to act as public auditor (Repealed)
1442. Certain captive insurers and re-insurers: exemption from requirement to have audit committee
1443. Assurance company holding shares in its holding company
1444. Realised profits of assurance companies
1445. Amendment of section 30 of Multi-Unit Developments Act 2011
1446. Provision as to names of companies formed pursuant to statute
1447. Disapplication of section 7 of Official Languages Act 2003
1448. Provision in respect of certain discretion afforded by Commission Decision 2011/30/ EU (Repealed)
Obligation to prepare payment reports
1450. Obligation to prepare entity report on payments to governments
1451. Obligation to prepare a consolidated payment report
1452. Content of entity payment report
1453. Content of consolidated payment report
Payment reports: Exemptions and exclusions
1455. Exemption from preparation where company is subject to equivalent reporting requirements
1457. Certain undertakings exempt from inclusion in a consolidated payment report
Approval and signing of payment reports
1458. Approval and signing of entity payment reports and consolidated payment reports
Publication of payment reports
1459. Delivery of copy of entity payment reports and consolidated payment reports to Registrar
Preliminary and Interpretation
1461. Interpretation (Part 27 and Schedules 19 and 20)
Approval of statutory auditors and audit firms
1464. Applications for approval, general principle as to good repute, etc.
1465. Basis on which audit firms approved in other Member States may carry out audits in State
1466. Restriction as to persons who may carry out statutory audits
1467. Restriction on acting as statutory auditor
1468. Restriction on acting as statutory audit firm
1469. Offence for contravening section 1466, 1467, or 1468
1470. Conditions for approval as statutory auditor
1472. Appropriate qualification for purpose of section 1470(a)
1473. Conditions for approval as statutory audit firm
1475. Evidence in prosecutions under section 1474
1476. Aptitude test to be passed
1478. Adequate standards to be applied in administration of aptitude test
1479. Grounds for mandatory withdrawal of approval in case of statutory auditor
1480. Grounds for mandatory withdrawal in case of statutory audit firm
1481. Appeals against withdrawal of approval
1482. Certain persons to be notified of withdrawal of approval
1483. Other persons to be notified of withdrawal of approval
1485. Notification of information to Registrar
1486. Prohibition on certain acts unless registered
1487. Obligation of statutory auditor or audit firm to notify certain information
Standards for statutory auditors
1491. Independence, objectivity and professional scepticism
1492. Standards for purposes of sections 1489 to 1491
1493. Arrangements for enforcement of standards
1495. System of quality assurance to be put in place
1496. Organisation of quality assurance system
1497. Quality assurance review deemed to include individual auditors in certain cases
1498. Right of recognised accountancy body as regards professional discipline
1499. System of investigation and penalties
1501. Duty of each recognised accountancy body with regard to sanctions
1502. Scope of penalties and publicity in relation to their imposition
1505. Appeal against relevant decision
1506. Sanctions which Supervisory Authority may impose on specified person
1507. Relevant circumstances to be considered in imposing relevant sanctions on specified person
1508. Publication of relevant sanction imposed on specified person, etc.
1509. Limitations on imposing monetary sanctions on specified person
1510. Specified person not to be liable to be penalised twice for same relevant contravention
Appointment of statutory auditors or audit firms
1512. Prohibition of contractual clauses restricting choice of auditors
1513. Selection procedures for statutory auditors or audit firms by public-interest entities
1516. Directors’ report to include date of last appointment of statutory auditor or audit firm
Confidentiality and professional secrecy
1517. Rules of confidentiality to apply
1518. Supplemental provisions in relation to section 1517
1520. Rules of confidentiality in relation to entities in third countries
1521. Incoming statutory auditor or audit firm to be afforded access to information
1522. Access by recognised accountancy body to audit documents
1525. No liability for acts done in compliance with obligations imposed by relevant provisions
Auditing standards and audit reporting
1526. Auditing standards to be applied
1527. Audit of group accounts - responsibility of group auditor
1528. Further responsibility of group auditor
1529. Additional report to audit committee
1530. Auditors’ reporting obligations under Article 12 of Regulation (EU) No 537/2014
1533. Requirement for independence - general
1535. Prohibited relationships - specific provisions to secure independence
1536. Prohibited relationships - financial or beneficial interest
1537. Prohibited relationships - mergers and acquisitions
1538. Threats to independence and other information to be recorded
1539. Preparation for statutory audit and assessment of threats to independence
1540. Non-intervention by certain persons in execution of audit
1541. Internal organisation of statutory auditors and audit firms
1542. Organisation of work of statutory auditors and audit firms
1543. Organisation of work of statutory auditors and audit firms - audit files
1544. Restrictions with regard to fees
1545. Restrictions with regard to fees exemption on exceptional basis
1546. Rotation of key audit partner in cases of public-interest entities
1547. Moratorium on taking up certain positions in audited undertakings or public-interest entities
1548. Rotation of statutory auditor and audit firms in case of public-interest entities - extension
1549. Rotation - reports by statutory auditor and audit firm in case of public-interest entities
1550. Provision of certain prohibited non-audit services by auditors of public-interest entities
1551. Audit committees for public-interest entities
Cooperation with other Member States
1552. Cooperation with other Member States
1553. Specific requirements with regard to cooperation
1554. Confidentiality of information
1555. Supplemental provisions in relation to section 1554
1557. Obligation of Supervisory Authority or recognised accountancy body to gather information
1558. Application of section 1554 to certain information
1559. Requesting authority to be notified if its request not complied with
1560. Grounds for refusing request for information
1561. Use to which information may be put
1563. Counterpart authority may be requested to carry out investigation
1564. Duty of Supervisory Authority or recognised accountancy body to take certain action
1565. Due consideration to be given to counterpart authority’s request for investigation
1566. Grounds for refusing request for investigation
Mutual recognition of regulatory arrangements between Member States
1567. Mutual recognition of regulatory arrangements between Member States
Transfer of audit working papers, etc., to third-country competent authorities
1568. Transfer of audit documentation to third-country competent authority
1569. Derogation from section 1568 in exceptional cases
1570. Particulars of working arrangements to be notified
1572. Approval of third-country auditor
Registration and oversight of third-country auditors and third-country audit entities
1573. Registration of third-country auditors and third-country audit entities
1574. Exemption from quality assurance
1576. Audit by non-registered auditor or audit entity - consequence
1577. Conditions for registration of third-country auditor or third-country audit entity
1578. Supervisory Authority may assess matter of equivalence for purposes of section 1577(2)(c)
1579. Certain fees chargeable by Supervisory Authority
1580. Exemptions in case of equivalence
1581. Investigations and sanctions
Savings for disciplinary proceedings in being
1582. Savings for disciplinary proceedings in being - 2010 Audits Regulations
1583. Savings for disciplinary proceedings in being - 2016 Audits Regulations
1584. Savings for disciplinary proceedings in being - prescribed accountancy bodies
1585. Interpretation – Part 28
1586. Definition of "applicable company"
1588. Non-application to certain financial products and undertakings
1589. Key intangible resources
1590. Sustainability reporting
1591. Consultation with employees’ representatives
1592. Derogation from section 1590 for certain applicable companies
1593. Deemed compliance with section 327(3)(b)
1594. Exemption from section 1590 for certain subsidiaries
1595. Conditions to be met for exemption in section 1594
1596. Consolidated sustainability reporting
1597. Consultation with employees’ representatives
1598. Exemption from section 1596 for certain subsidiaries
1599. Conditions for exemption in section 1598
1600. Single electronic reporting format of directors’ report of applicable companies
1601. Documents to be annexed to annual return: applicable companies
Sustainability Reporting Concerning Third-Country Undertakings
1602. Interpretation – Chapter 3
1603. Sustainability reporting for applicable subsidiaries and applicable branches
1604. Documents to be annexed to annual return: applicable subsidiaries
1605. Documents to be delivered to Registrar: applicable branches
Assurance of Sustainability Reporting
1608. Interpretation (Chapter 4)
1610. Assurance standards to be applied
1612. Organisation of work of statutory auditors and audit firms - assurance files
1613. Assurance report on sustainability reporting
1614. Assurance of consolidated sustainability reporting
1615. Further responsibility of group auditor in relation to assurance of sustainability reporting
1619. Restrictions with regard to fees
1620. Confidentiality and professional secrecy
1621. Independence, objectivity and professional scepticism
1625. Notification to Supervisory Authority of certain matters regarding cessation of office
Approval to carry out assurance of sustainability reporting
1626. Approval to carry out assurance of sustainability reporting
1628. Appropriate qualification for purpose of section 1627(a)
1629. Aptitude test to be passed
1631. Adequate standards to be applied in administration of aptitude test
1634. Restriction as to persons who may carry out assurance of sustainability reporting
1635. Transitional provisions relating to approval of certain statutory auditors
1637. Notification of information to Registrar
1639. Withdrawal of approval under this Part
1640. Approval of third-country auditors to carry out assurance of sustainability reporting
1642. System of quality assurance
1643. Organisation of quality assurance system
1644. Quality assurance review deemed to include individual auditors in certain cases
1645. Right of recognised accountancy body as regards professional discipline
1646. System of investigation and penalties
1647. Co-operation and mutual recognition of regulatory arrangements between Member States
1648. Transfer of assurance working papers etc. to third-country competent authorities
FORM OF CONSTITUTION OF PRIVATE COMPANY LIMITED BY SHARES
ACTS OF THE OIREACHTAS REPEALED
ACCOUNTING PRINCIPLES, FORM AND CONTENT OF ENTITY FINANCIAL STATEMENTS
CONSTRUCTION OF REFERENCES TO PROVISIONS OF SCHEDULE
ACCOUNTING PRINCIPLES AND VALUATION RULES
INFORMATION REQUIRED BY WAY OF NOTES TO FINANCIAL STATEMENTS
SPECIAL PROVISIONS WHERE A COMPANY IS A HOLDING COMPANY OR SUBSIDIARY UNDERTAKING
INTERPRETATION OF CERTAIN EXPRESSIONS IN SCHEDULE
CONSTRUCTION OF REFERENCES TO PROVISIONS OF SCHEDULE
ACCOUNTING PRINCIPLES AND VALUATION RULES
INFORMATION REQUIRED BY WAY OF NOTES TO FINANCIAL STATEMENTS
SPECIAL PROVISIONS WHERE A COMPANY IS A HOLDING COMPANY OR SUBSIDIARY UNDERTAKING
INTERPRETATION OF CERTAIN EXPRESSIONS IN SCHEDULE
CONSTRUCTION OF REFERENCES TO PROVISIONS OF SCHEDULE
ACCOUNTING PRINCIPLES AND VALUATION RULES
INFORMATION REQUIRED BY WAY OF NOTES TO FINANCIAL STATEMENTS
INTERPRETATION OF CERTAIN EXPRESSIONS IN SCHEDULE
ACCOUNTING PRINCIPLES, FORM AND CONTENT OF GROUP FINANCIAL STATEMENTS
CONSTRUCTION OF REFERENCES TO PROVISIONS OF SCHEDULE
ACCOUNTING PRINCIPLES AND VALUATION RULES
INFORMATION REQUIRED BY WAY OF NOTES TO GROUP FINANCIAL STATEMENTS
CONSTRUCTION OF REFERENCES TO PROVISIONS OF SCHEDULE
ACCOUNTING PRINCIPLES AND VALUATION RULES
INFORMATION REQUIRED BY WAY OF NOTES TO GROUP FINANCIAL STATEMENTS
FURTHER SAVINGS AND TRANSITIONAL PROVISIONS
FORM OF CONSTITUTION OF DESIGNATED ACTIVITY COMPANY LIMITED BY SHARES
FORM OF CONSTITUTION OF DESIGNATED ACTIVITY COMPANY LIMITED BY GUARANTEE
FORM OF CONSTITUTION OF PUBLIC LIMITED COMPANY
FORM OF CONSTITUTION OF COMPANY LIMITED BY GUARANTEE
FORM OF CONSTITUTION OF PRIVATE UNLIMITED COMPANY HAVING A SHARE CAPITAL
FORM OF CONSTITUTION OF PUBLIC UNLIMITED COMPANY HAVING A SHARE CAPITAL
FORM OF CONSTITUTION OF PUBLIC UNLIMITED COMPANY NOT HAVING A SHARE CAPITAL
PROVISIONS APPLIED TO UNREGISTERED COMPANIES
REPEALS AND REVOCATION IN RELATION TO UNREGISTERED COMPANIES
INSTRUMENTS OR CHARTERS REVOKED
FORM OF CONSTITUTION OF INVESTMENT COMPANY
STANDARDS RELATING TO TRAINING AND QUALIFICATIONS FOR APPROVAL OF INDIVIDUAL AS STATUTORY AUDITOR
INFORMATION REQUIRED, BY CHAPTER 5 OF PART 27, TO BE SUPPLIED AND ENTERED IN A PUBLIC REGISTER
CORPORATE ENFORCEMENT AUTHORITY
ADDITIONAL INFORMATION REQUIRED TO BE SUPPLIED AND ENTERED IN PUBLIC REGISTER
Acts Referred to
Arbitration Act 2010 (No. 1)
Assurance Companies Act 1909 (9 Edw. 7. c. 42)
Bank Act 1892 (56 Vic. c. 48.)
Bank Notes (Ireland) Act 1864 (28 Vic. c. 78)
Bank of Ireland Act 1781 (22 Geo. III, c. 16)
Bank of Ireland Act 1791 (Geo. III, c. 22)
Bank of Ireland Act 1797 (Geo. III, c. 50)
Bank of Ireland Act 1808 (Geo. III, c. 103)
Bank of Ireland Act 1821 (Geo. IV, c. 72)
Bank of Ireland Act 1860 (24 Vic. c. 31)
Bank of Ireland Act 1929 (No. 4 (Private))
Bank of Ireland Act 1935 (No. 1 (Private))
Bank of Ireland Charter Amendment Act 1872 (36 Vic. c. 5)
Bankers' (Ireland) Act 1845 (Vic. c. 37)
Bankruptcy Act 1988 (No. 27)
Building Societies Act 1989 (No. 17)
Capital Acquisitions Tax Consolidation Act 2003 (No. 1)
Capital Gains Tax Acts
Central Bank Act 1942 (No. 22)
Central Bank Act 1971 (No. 24)
Central Bank Act 1989 (No. 16)
Central Bank Acts 1942 to 2010
Central Bank and Financial Services Authority of Ireland Act 2003 (No. 12)
Central Bank Reform Act 2010 (No. 23)
Charities Act 1961 (No. 17)
Charities Act 2009 (No. 6)
Chartered Companies Act 1837 (1 Vic. c. 73)
Civil Liability Act 1961 (No. 41)
Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (No. 24)
Civil Service Regulation Acts 1956 to 2005
Commissions of Investigation Act 2004 (No. 23)
Companies (Accounting) Act 2017 (No. 9)
Companies (Amendment) Act 1977 (No. 31)
Companies (Amendment) (No. 2) Act 1999 (No. 30)
Companies (Amendment) Act 1982 (No. 10)
Companies (Amendment) Act 1983 (No. 13)
Companies (Amendment) Act 1986 (No. 25)
Companies (Amendment) Act 1990 (No. 27)
Companies (Amendment) Act 1999 (No. 8)
Companies (Amendment) Act 2009 (No. 20)
Companies (Amendment) Act 2012 (No. 22)
Companies (Amendment) Act 2017 (No. 13)
Companies (Auditing and Accounting) Act 2003 (No. 44)
Companies (Consolidation) Act 1908 (8 Edw. 7 c. 69)
Companies (Miscellaneous Provisions) Act 2009 (No. 45)
Companies (Miscellaneous Provisions) Act 2013 (No. 46)
Companies Act 1862 (26 Vic. c. 89)
Companies Act 1879 (43 Vic. c. 76)
Companies Act 1963 (No. 33)
Companies Act 1990 (No. 33)
Companies Acts
Companies Acts 1963 to 2005
Company Law Enforcement Act 2001 (No. 28)
Comptroller and Auditor General (Amendment) Act 1993 (No. 8)
Consumer Credit Act 1995 (No. 24)
Courts of Justice Act 1924 (No. 10)
Courts of Justice Act 1936 (No. 48)
Criminal Procedure Act 1967 (No. 12)
Customs Acts
Diplomatic and Consular Officers (Provision of Services) Act 1993 (No. 33)
Economic and Monetary Union Act 1998 (No. 38)
Electoral Act 1997 (No. 25)
Electronic Commerce Act 2000 (No. 27)
Ethics in Public Office Act 1995 (No. 22)
European Communities Act 1972 (No. 27)
European Parliament Elections Act 1997 (No. 2)
Exchange Control Acts 1954 to 1990
Finance Act 1961 (No. 23)
Finance Act 2003 (No. 3)
Finance Act 2011 (No. 6)
Finance (Local Property Tax) Act 2012 (No. 52)
Friendly Societies Acts 1896 to 2014
Hire Purchase Act 1946 (No. 16)
Industrial and Provident Societies Acts 1893 to 2014
Insurance Act 1936 (No. 45)
Insurance Act 1989 (No. 3)
Insurance Acts 1909 to 2000
Interpretation Act 2005 (No. 23)
Investment Funds, Companies and Miscellaneous Provisions Act 2005 (No. 12)
Investment Funds, Companies and Miscellaneous Provisions Act 2006 (No. 41)
Investment Intermediaries Act 1995 (No. 11)
Investment Limited Partnerships Act 1994 (No. 24)
Irish Takeover Panel Act 1997 (No. 5)
Joint Stock Banking Companies Act 1857 (21 Vic. c. 80)
Joint Stock Companies Act 1856 (19 Vic. c. 47)
Joint Stock Companies Acts
Land and Conveyancing Law Reform Act 2009 (No. 27)
Limited Partnerships Act 1907 (7 Edw. 7, c. 24)
Local Government Act 2001 (No. 37)
Mercantile Marine Act 1955 (No. 29)
Multi-Unit Developments Act 2011 (No. 2)
National Archives Act 1986 (No. 11)
National Asset Management Agency Act 2009 (No. 34)
Netting of Financial Contracts Act 1995 (No. 25)
Official Languages Act 2003 (No. 32)
Organisation of Working Time Act 1997 (No. 20)
Partnership Act 1890 (4 Vict., c. 39)
Petty Sessions (Ireland) Act 1851 (14 & 15 Vict., c. 93)
Post Office Savings Bank Acts 1861 to 1958
Public Service Management (Recruitment and Appointments) Act 2004 (No. 33)
Registration of Business Names Act 1963 (No. 30)
Registration of Deeds and Title Act 2006 (No. 12)
Registration of Title Act 1964 (No. 16)
Social Welfare Acts
Social Welfare Consolidation Act 2005 (No. 26)
Solicitors Act 1954 (No. 36)
Solicitors Acts 1954 to 2002
Stamp Duties Consolidation Act 1999 (No. 31)
State Property Act 1954 (No. 25)
Statute Law (Restatement) Act 2002 (No. 33)
Statutory Declarations Act 1938 (No. 37)
Stock Transfer Act 1963 (No. 34)
Succession Act 1965 (No. 27)
Supreme Court of Judicature (Ireland) Act 1877 (41 Vict., c. 57)
Tax Acts
Taxes Consolidation Act 1997 (No. 39)
Trade Union Acts 1871 to 1990
Tribunals of Inquiry (Evidence) Acts 1921 to 2004
Trustee Savings Banks Act 1989 (No. 21)
Unit Trusts Act 1990 (No. 37)
Value-Added Tax Acts
Number 38 of 2014
COMPANIES ACT 2014
REVISED
Updated to 3 December 2024
An Act to consolidate, with amendments, certain enactments relating to companies and to provide for related matters.
[23rd December, 2014]
Be it enacted by the Oireachtas as follows:
Annotations
Modifications (not altering text):
C1
Application of Act restricted by Gas Regulation Act 2013 (39/2013), s. 6(3) as substituted (1.06.2024) by Gas (Amendment) and Miscellaneous Provisions Act 2024 (11/2024), s. 20(b), S.I. No. 208 of 2024.
Memorandum and articles of association of network company
[6. ...
(3) Notwithstanding anything contained in the Companies Act 2014, no alteration of the constitution of the network company shall be valid or effectual unless made with the prior approval of the majority shareholding Minister given with the consent of the Minister for Public Expenditure, National Development Plan Delivery and Reform.]
C2
Application of Act restricted (22.12.2022) by Air Navigation and Transport Act 2022 (40/2022), ss. 17(3), 18, S.I. No. 741 of 2022.
Articles of association
17. ...
(3) A director of the IANS to whom subsection (2) (d) applies shall, by virtue of this subsection and notwithstanding anything contained in the Act of 1993 or the Act of 2014, cease to be a director of the IAA immediately upon the date on which his or her appointment as a director of the IANS takes effect.
Restriction on alteration of memorandum or articles of association
18. Notwithstanding anything contained in the Act of 2014, an alteration in the memorandum of association or articles of association of the IANS or of a subsidiary shall not be valid or effectual unless made with the prior approval of the Minister given with the consent of the Minister for Public Expenditure and Reform.
C3
Application of Act restricted (31.03.2022) by Land Development Agency Act 2021 (26/2021), s. 33(3), (4), S.I. No. 143 of 2022.
Establishment of subsidiary DAC
33. ...
(3) Notwithstanding anything contained in the Companies Act, any alteration of the constitution of a subsidiary DAC shall not be valid or effectual unless made with the prior approval of the Minister and the Minister for Public Expenditure and Reform.
(4) Subsections (1) to (3) of section 969 of the Companies Act shall not apply to a subsidiary DAC.
C4
Application of Act restricted (15.12.2021) by Land Development Agency Act 2021 (26/2021), s. 13(2), S.I. No. 712 of 2021.
Constitution of Agency
13. (1) The constitution of the Agency shall be in such form, consistent with the Companies Act and with this Act, as may be approved by the Minister and the Minister for Public Expenditure and Reform.
(2) Notwithstanding anything contained in the Companies Act, any alteration of the constitution of the Agency shall not be valid or effectual unless made with the prior approval of the Minister and the Minister for Public Expenditure and Reform.
C5
Application of Act restricted (5.12.2018) by Home Building Finance Ireland Act 2018 (28/2018), s. 5(2), S.I. No. 518 of 2018.
Constitution of HBFI
5. (1) The constitution of HBFI shall be in such form, consistent with this Act, as may be approved by the Minister.
(2) Notwithstanding anything contained in the Companies Act, an alteration of the constitution of HBFI shall not be valid or effectual unless made with the prior approval of the Minister.
C6
Application of Act restricted (3.01.2018) by European Union (Markets in Financial Instruments) Regulations 2017 (S.I. No. 375 of 2017), reg. 148(4), in effect as per reg. 1(2).
Winding up of investment firm or market operator by Court
148. ...
(4) Where an investment firm or the operator of a regulated market is being wound up voluntarily and the Bank has reason to believe that any of the grounds set out in paragraph (2) are applicable, then, the Bank may, notwithstanding section 569 of the Companies Act 2014 or any other provision of that Act, apply to the Court to have an order made that an investment firm or market operator be wound up under Chapter 2 of Part 11 of that Act and the Court may make such an order accordingly.
...
C7
Application of Act restricted (1.01.2016) by European Union (Insurance and Reinsurance) Regulations 2015 (S.I. No. 485 of 2015), regs. 285 to 293 as provided by reg. 271(2).
Adoption of reorganisation measures — applicable law
271. ...
(2) Reorganisation measures adopted in respect of an insurance undertaking, including its branches in other Member States, are governed by the Act of 2014 and the Insurance Acts, as appropriate, unless otherwise provided by Regulations 285 to 293.
...
C8
Application of Act restricted (1.01.2016) by European Union (Insurance and Reinsurance) Regulations 2015 (S.I. No. 485 of 2015), regs. 285 to 293 as provided by reg. 275(3).
Commencement of winding-up proceedings
275. ...
(3) Winding-up proceedings in respect of an insurance undertaking, including its branches in other Member States, are governed by the Act of 2014 and the Insurance Acts, as appropriate, unless otherwise provided by Regulations 285 to 293.
C9
Application of Act restricted (25.12.2015) by Harbours Act 2015 (61/2015), s. 14, commenced on enactment.
Restriction on alteration of memorandum or articles of association of transferred company
14. Notwithstanding anything contained in the Companies Act 2014, no alteration made on or from the company transfer day in the memorandum and articles of association of a transferred company or of any subsidiary shall be valid or effectual unless made with the prior approval of the local authority chief executive concerned.
C10
Application of Act restricted (15.07.2015) by European Union (Bank Recovery and Resolution) Regulations 2015 (S.I. No. 289 of 2015), regs. 76(1)(a), (2)(i) and 119, in effect as per reg. 1(2).
Effect of transfer by resolution order in relation to securities.
76. (1) On and after a transfer under a resolution order or a capital instruments order, or a transfer having effect in the State in accordance with Regulation 126 in relation to property referred to in paragraph (3)(d) or (e) of Regulation 75, or a security referred to in subparagraph (f) of that paragraph, transferred by the relevant order or in accordance with Regulation 126—
(a) notwithstanding any provision of an Act referred to in paragraph (2) or any other Act that provides for the registration of assets or security, or any details of assets or security, a recipient is not required to become registered as owner of the security,
...
(d) where the resolution order effects an extension of, or in relation to the security so as to include future advances by or future liabilities to the recipient, the extension or inclusion need not be registered under any Act referred to in paragraph (2) under which it would otherwise be required to be registered but operates for the purposes of those Acts as if made by deed duly registered under that Act on the time of the transfer.
(2) The Acts referred to in paragraph (1)(a) and (d) are the following: ...
(i) the Act of 2014.
...
Effect of special management.
119. (1) While an institution under resolution is under special management—
(a) that institution shall not convene or hold any general meeting other than where the special manager so directs,
(b) the rights and powers of shareholders and members under any enactment or contract stand suspended and are not exercisable,
(c) section 212 of the Act of 2014 does not apply, and
(d) no derivative action may be brought in respect of that institution under resolution.
(2) The special management of the institution under resolution has effect notwithstanding anything in—
(a) the Act of 1989, the Act of 2014 or the Central Bank Acts 1942 to 2014,
(b) any other rule of law or equity,
(c) any code of practice made under an enactment,
...
C11
References construed (24.06.2015) by European Union (Credit Institutions: Financial Statements) Regulations 2015 (S.I. No. 266 of 2015), reg. 3, in effect as per reg. 1(2).
Application of Part 6 of Principal Act to credit institutions
3. (1) The provisions of Part 6 of the Principal Act shall apply to a credit institution except to the extent that they are disapplied or modified by these Regulations.
(2) A reference in the Principal Act to any provision of Part 6 of that Act shall be construed, for the purposes of its application to a credit institution, as a reference to that provision as applied by these Regulations.
(3) A reference in Part 6 of the Principal Act to Schedule 3 to that Act shall be construed, for the purposes of its application to a credit institution, as a reference to Schedule 1 to these Regulations.
(4) A reference in Part 6 of the Principal Act to Schedule 4 to that Act shall be construed, for the purposes of its application to a credit institution, as a reference to Schedule 2 to these Regulations.
C12
References construed (17.06.2015) by European Union (Insurance Undertakings: Financial Statements) Regulations 2015 (S.I. No. 262 of 2015), reg. 3, in effect as per reg. 1(2).
Application of Part 6 of Principal Act to insurance undertakings
3. (1) The provisions of Part 6 of the Principal Act shall apply to an insurance undertaking except to the extent that they are disapplied or modified by these Regulations.
(2) A reference in the Principal Act to any provision of Part 6 of that Act shall be construed, for the purposes of its application to an insurance undertaking, as a reference to that provision as applied by these Regulations.
(3) A reference in Part 6 of the Principal Act to Schedule 3 to that Act shall be construed, for the purposes of its application to an insurance undertaking, as a reference to Schedule 1 to these Regulations.
(4) A reference in Part 6 of the Principal Act to Schedule 4 to that Act shall be construed, for the purposes of its application to an insurance undertaking, as a reference to Schedule 2 to these Regulations.
C13
Application of Act restricted (29.03.2013) by Water Services Act 2013 (6/2013), s. 6(3), S.I. No. 108 of 2013, as substituted (1.01.2023) by Water Services (Amendment) Act 2022 (39/2022), s. 10(c), S.I. No. 678 of 2022.
Memorandum and articles of association of subsidiary.
6. ...
[(3) Notwithstanding anything contained in the Act of 2014, no alteration of the constitution of Uisce Éireann shall be valid or effectual unless made with the prior approval of the Minister and the Minister for Public Expenditure and Reform.]
Editorial Notes:
E1
Power pursuant to numerous sections exercised (1.06.2015) by Companies Act 2014 (Forms) Regulations 2015 (S.I. No. 147 of 2015), in effect as per reg. 1(2).
PART 1
PRELIMINARY AND GENERAL
Section 1
Short title and commencement
1. (1) This Act may be cited as the Companies Act 2014.
(2) This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.
(3) Without prejudice to the generality of subsection (2), an order or orders under that subsection may appoint different days for the coming into operation of section 4 or 1325 so as to effect the repeal or revocation provided by section 4 or 1325 of—
(a) an enactment specified in Part 1 or Part 2 of Schedule 2 or in Schedule 15, as the case may be, on different days for different purposes; or
(b) different provisions of an enactment specified in Part 1 or Part 2 of Schedule 2 or in Schedule 15, as the case may be, on different days.
Annotations
Editorial Notes:
E2
A table listing provisions and commencement dates is available at http://www.irishstatutebook.ie/eli/isbc/2014_38.html
E3
Power pursuant to subs. (2) exercised (11.11.2016) by Companies Act 2014 (Commencement) Order 2016 (S.I. No. 562 of 2016). This amendment is not represented in S.I. No. 169 of 2015 below.
2. Article 3 of the Companies Act 2014 (Commencement) Order 2015 (S.I. No. 169 of 2015) is amended by the deletion of paragraph (a) from Article 3.
E4
Power pursuant to subs. (2) exercised (1.06.2015) by Companies Act 2014 (Commencement) (No. 2) Order 2015 (S.I. No. 220 of 2015), in effect on commencement of instrument being amended (.
2. Article 3 of the Companies Act 2014 (Commencement) Order 2015 ( S.I. No. 169 of 2015 ) is amended—
(a) by substituting the following for paragraph (a):
“(a) section 4(1) in so far as it relates to Part V of the Companies Act 1990(No.33 of 1990) (being Part V of that Act to the extent that it remained in force on and from the commencement, on the 6th day of July 2005, of section 31of the Investment Funds, Companies and Miscellaneous Provisions Act 2005(No.12 of 2005)),”,
and (b) by substituting the following for paragraphs (c) and (d):
“(c) the provisions specified in Article 4(3),
(d) sections 68(2), 981, 1191 and 1248 in so far as they relate to securities (or interests in securities) that, before the 1st day of June 2015, were admitted to trading or listed on any market, whether a regulated market or not, in the State or elsewhere, and
(e) section 1325,”.
E5
Power pursuant to subs. (2) exercised (1.06.2015) by Companies Act 2014 (Commencement) Order 2015 (S.I. No. 169 of 2015), as amended by Companies Act 2014 (Commencement) (No. 2) Order 2015 (S.I. No. 220 of 2015).
3. The 1st day of June 2015 is appointed as the day on which the Act of 2014, other than—
[(a) section 4(1) in so far as it relates to Part V of the Companies Act 1990 (No. 33 of 1990) (being Part V of that Act to the extent that it remained in force on and from the commencement, on the 6th day of July 2005, of section 31 of the Investment Funds, Companies and Miscellaneous Provisions Act 2005 (No. 12 of 2005)),]
(b) section 4(2) in so far as it relates to Regulation 6 of the European Communities (Mergers and Divisions of Companies) (Amendment) Regulations 2011 ( S.I. No. 306 of 2011 ),
[(c) the provisions specified in Article 4(3),
(d) sections 68(2), 981, 1191 and 1248 in so far as they relate to securities (or interests in securities) that, before the 1st day of June 2015, were admitted to trading or listed on any market, whether a regulated market or not, in the State or elsewhere, and
(e) section 1325,]
shall come into operation.
4. (1) In this Article “financial year” does not include a financial year that begins before the 1st day of June 2015.
(2) The first day of the financial year of a company, by reference to which functions of the company under a provision of the Act of 2014 specified in paragraph (3) are performable, is appointed as the day on which that provision shall come into operation.
(3) Each of the following is a provision of the Act of 2014 referred to in paragraph (2): sections 167, 225, 305(1)(b), 306(1), 326(1)(a) and 330.
5. For the avoidance of doubt, in a case in which financial statements of a company are prepared before the 1st day of June 2015, references in sections 353 and 354 of the Act of 2014 to section 290 of that Act are to be read, by virtue of Schedule 6 to the Act of 2014, as references to the corresponding provision of the prior Companies Acts.
Section 2
Interpretation generally
2. (1) In this Act—
F1[…]
“Acting Director” means a person appointed under section 948 as the Acting Director of Corporate Enforcement;
“Act of 1963” means the Companies Act 1963;
“Act of 1990” means the Companies Act 1990;
“agent” does not include a person’s counsel acting as such;
“amendment”, in relation to a constitution, includes an alteration and a deletion;
“annual general meeting” means the meeting provided for in section 175;
“annual return” has the meaning given to it by section 342;
“annual return date” has the meaning given to it by section 343;
“appropriate rate”, in relation to interest, means—
(a) subject to paragraph (b), 5 per cent per annum; or
(b) such other rate as may be specified by order made by the Minister under subsection (7);
“articles” means articles of association;
“assignee in bankruptcy” means the Official Assignee (within the meaning of the Bankruptcy Act 1988) or a creditors’ assignee (within the meaning of that Act);
“authorised market operator” means a market operator (within the meaning of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004) who, for the time being, is authorised under—
(a) the European Communities (Markets in Financial Instruments) Regulations 2007 (S.I. No. 60 of 2007); or
(b) the measures adopted by another Member State to implement that Directive,
to operate the business of a regulated market (within the meaning of that Directive);
F2["Authority" means the Corporate Enforcement Authority (but that title appears set out in full in any provision where it is desirable to avoid confusion or otherwise to provide clarity on the matter);]
F3["Bank Recovery and Resolution Regulations" means the European Union (Bank Recovery and Resolution) Regulations 2015 (S.I. No. 289 of 2015);]
“Bankruptcy Acts” means the Bankruptcy Act 1988 and any enactment amending or extending that Act;
“book and paper” and “book or paper” includes deeds, writings and documents and, where not separately mentioned in the provision concerned, accounting records;
“books and documents” and “books or documents” includes deeds, writings and records made in any other manner and, where not separately mentioned in the provision concerned, accounting records;
“called-up share capital”, in relation to a company, means so much of its share capital as equals the aggregate amount of the calls made on its shares, whether or not those calls have been paid, together with any share capital paid up without being called and any share capital to be paid on a specified future date under the company’s constitution, the terms of allotment of the relevant shares or any other arrangements for payment of those shares, and “uncalled share capital” shall be read accordingly;
“category 1 offence” means an offence the penalties for which are specified in section 871(1);
“category 2 offence” means an offence the penalties for which are specified in section 871(2);
“category 3 offence” means an offence the penalties for which are specified in section 871(3);
“category 4 offence” means an offence the penalties for which are specified in section 871(4);
“Central Bank” means the Central Bank of Ireland;
“child” includes a step-child and an adopted child and “son”, “daughter” and “parent” shall be read accordingly;
“civil partner” has the meaning given to it by the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;
“Community act” means an act adopted by an institution of the European Union;
“company”—
(a) in Parts 2 to 14, shall be read in accordance with section 10;
(b) subject to the foregoing, means a company formed and registered under this Act, or an existing company;
“company having a sole director” shall be read in accordance with subsection (8);
“constitution” means the constitution of a company as provided for in section 19 or, in the case of a company that is not a private company limited by shares, as provided for in Part 16, 17, 18, 19 or 24, as appropriate;
“contravention” includes a failure to comply;
“contributory” has the meaning given to it by section 559;
“court”—
(a) without prejudice to paragraphs (b) and (c), where used in any provision of this Act in relation to a company, means—
(i) the High Court; or
(ii) where another court is specified for the purposes of that provision — that court;
(b) where used in relation to proceedings for an offence, means—
(i) in the case of an offence that is being prosecuted summarily — the District Court; or
(ii) in any other case — the court with jurisdiction in the matter concerned;
(c) where used in connection with proceedings for a debt or the recovery of a sum otherwise provided by this Act to be recoverable and a particular court or a court of competent jurisdiction is not specified for the purpose, means any court of competent jurisdiction;
F4[…]
“CRO Gazette” means the Companies Registration Office Gazette referred to in section 887(7);
“debenture” includes debenture stock, bonds and any other securities of a company whether constituting a charge on the assets of the company or not;
“de facto director” shall be read in accordance with section 222;
“deliver” includes send or forward and, in the case of a requirement to deliver a document, notice or thing to the Registrar, where the provision concerned itself does not indicate that that is the purpose of its delivery, means deliver the document, notice or thing to the Registrar for the purposes of its registration;
“director” includes any person occupying the position of director by whatever name called;
“Director” means the Director of Corporate Enforcement (but that title appears set out in full in any provision where it is desirable to avoid confusion or otherwise to provide clarity on the matter) and includes an Acting Director while so acting and, in relation to a particular power of the Director, a delegate to whom the power is delegated under section F5[952];
“document” includes summons, notice, order and other legal process, and register;
“EEA Agreement” means the Agreement on the European Economic Area signed at Oporto on 2 May 1992, as adjusted by the Protocol signed at Brussels on 17 March 1993;
“EEA state” means a state, including the State, which is a contracting party to the EEA Agreement;
“electronic means” or “electronic communications” includes the use of electronic mail;
“enactment” means a statute or an instrument made under a power conferred by a statute;
“examiner” means an examiner appointed under section 509 or 517;
“existing company” means a company formed and registered in a register kept in the State under the Joint Stock Companies Acts, the Companies Act 1862, the Companies (Consolidation) Act 1908 or the Act of 1963;
“extended notice” has the meaning given to it by section 396;
“extraordinary general meeting” shall be read in accordance with section 177;
“financial year” shall be read in accordance with section 288;
“hire-purchase agreement” has the same meaning as it has in the Consumer Credit Act 1995;
“holding company” has the meaning given to it by section 8;
“insolvency proceedings”, other than in Chapter 15 of Part 11, means insolvency proceedings opened under Article 3 of the Insolvency Regulation in a Member State, other than the State and Denmark, where the proceedings relate to a body corporate;
“Insolvency Regulation” means Council Regulation (EC) No. 1346/2000 of 29 May 2000 on insolvency proceedings;
F4[…]
“Joint Stock Companies Acts” means the Joint Stock Companies Act 1856, the Joint Stock Companies Acts 1856, 1857, the Joint Stock Banking Companies Act 1857 and the Act to enable Joint Stock Banking Companies to be formed on the principle of limited liability, or any one or more of those Acts as the case may require, but does not include the Act 7 & 8 Victoria, Chapter 110;
“limited company” means a company the liability of whose members is limited;
“members’ voluntary winding up” has the meaning given to it by section 559(1);
“memorandum” means memorandum of association;
“Minister”, other than in Parts 23 and 24, means the Minister for Jobs, Enterprise and Innovation;
“officer”, in relation to a body corporate, includes a director or secretary;
F6["officer of the Authority" means—
(a) a member of staff of the Authority,
(b) an officer of the Minister assigned to the Authority,
(c) a member of the Garda Síochána seconded to the Authority, or
(d) a person employed by the Minister or the Authority, under a contract for service or otherwise, to assist the Authority in performing functions of the Authority under this Act or any other enactment;]
“ordinary resolution” has the meaning given to it by section 191;
“prescribed”—
(a) subject to paragraphs (b), (c) and (d), means prescribed by regulations made by the Minister;
(b) in Part 11, unless a power of the Supervisory Authority to prescribe by regulations is provided or that Part otherwise makes express provision—
(i) means prescribed by rules of court; and
(ii) where a power of the Minister to prescribe is provided, means prescribed by the means referred to in paragraph (a);
(c) in Part 15, where a power of the Minister to prescribe is provided or the provision in which the expression appears does not indicate otherwise, means prescribed by the means referred to in paragraph (a); and
(d) in Parts 23 and 24, means prescribed by regulations made by the Minister for Finance;
“printed” includes reproduced in any legible and durable form approved by the Registrar;
“prior Companies Acts” means—
(a) the Companies Acts 1963 to 2005;
(b) Parts 2 and 3 of the Investment Funds, Companies and Miscellaneous Provisions Act 2006;
(c) the Companies (Amendment) Act 2009;
(d) the Companies (Miscellaneous Provisions) Act 2009;
(e) the Companies (Amendment) Act 2012;
(f) the Companies (Miscellaneous Provisions) Act 2013; and
(g) every other enactment passed or made before the commencement of this section which provides that it is to be read as one with the Companies Acts;
“private company limited by shares” means, unless otherwise indicated, a private company limited by shares registered under Part 2 as distinct from a designated activity company of the type referred to in section 965(2)(a);
F7["process adviser" has the meaning assigned to it by section 558A;]
“prospectus” means a document or documents in such form and containing such information as may be required by or under Irish prospectus law or EU prospectus law (within the meaning of Chapter 1 of Part 23), howsoever the document or documents are constituted, but does not include any advertisements in newspapers or journals derived from the foregoing;
“public holiday” means a day which is a public holiday under the Organisation of Working Time Act 1997;
F8["public-interest entity" has the meaning given to it by Part 27;]
“public limited company” includes (in Parts 2 to 15) an investment company within the meaning of Part 24;
“receiver of the property of a company” shall be read in accordance with subsection (9);
“register” shall be read in accordance with section 887(2);
“registered office”, in relation to a company, means the office provided for in section 50;
“Registrar” means—
(a) the registrar appointed under section 887(3); or
(b) the person referred to in subsection (6) (which relates to the existing Registrar of Companies) of section 887 for so long as the person holds office in accordance with subsection (5) of that section;
F9[“Registrar of Beneficial Ownership” means the Registrar of Beneficial Ownership of Companies and Industrial and Provident Societies;]
F8[“Regulation (EU) 2016/679” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 20164 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation);]
“related company” shall be read in accordance with subsections (10) and (11);
“resolution for voluntary winding up” means a resolution referred to in—
(a) section 202(1)(a)(i) as it relates to section 579; or
(b) section 580(1) or 586(2),
to wind up a company voluntarily;
“sealed”, other than in provisions governing the use of a company’s common seal or of any official seal of it, means executed in the manner specified in section 64 of the Land and Conveyancing Law Reform Act 2009 (but only to the extent that that section 64 obviates the need for a seal);
“shadow director” shall be read in accordance with section 221;
“share” means share in the share capital of a company, and includes stock except where a distinction between stock and shares is express or implied;
“single-member company” has the meaning given to it by section 196;
“special resolution” has the meaning given to it by section 191;
F10[“statutory auditor” means an individual or a firm (within the meaning of Part 27) that stands approved as a statutory auditor or statutory audit firm, as the case may be, under Part 27, and includes a firm registered in accordance with section 1465;]
“subscribe” includes, where the means of authentication referred to in section 888 are employed, subscribe in the prescribed non-legible form;
“subsidiary” has the meaning given to it by section 7;
“Summary Approval Procedure” has the meaning given to it by section 202;
“Supervisory Authority” has the meaning given to it by section 900(1);
“system of interconnection of registers” means the system of interconnection of central commercial and companies registers established in accordance with Article 4a(2) of Directive 2009/101/EC of the European Parliament and of the Council of 16 September 2009;
“undischarged bankrupt” means a person who is declared bankrupt by a court of competent jurisdiction, within the State or elsewhere, and who has not obtained a certificate of discharge or its equivalent in the relevant jurisdiction;
“written resolution” has the meaning given to it by section 191(8).
(2) A word or expression used in Part 6 and also used in another Part of this Act has, in that other Part, the same meaning as it has in Part 6.
(3) A reference in this Act to Table A in the First Schedule to the Act of 1963 shall, where appropriate, be read as a reference to Tábla A in that Schedule.
(4) References in this Act to a body corporate or to a corporation shall be read as not including a corporation sole, but as including a company or body corporate incorporated outside the State.
(5) Any provision of this Act overriding or interpreting a company’s constitution shall, except as provided by this Act, apply in relation to the constitution in force on the provision’s commencement as well as to regulations of the constitution coming into force thereafter.
(6) References in this Act to a person being in partnership with another are references to the person’s being in partnership, within the meaning of section 1(1) of the Partnership Act 1890, with that person and references to a partner of a person shall be read accordingly.
(7) The Minister may, by order, specify a rate of interest for the purposes of paragraph (b) of the definition of “appropriate rate” in subsection (1).
(8) In this Act a reference to a company having a sole director is a reference to its having, for the time being and for whatever reason, a single director (and this applies notwithstanding a stipulation in the constitution that there be 2 directors, or a greater number).
(9) In this Act a reference to a receiver of the property of a company includes—
(a) a reference to—
(i) a receiver and manager of the property of a company; or
(ii) a manager of the property of a company;
(b) a reference to a receiver or to a receiver and manager or to a manager, of part only of that property; and
(c) a reference to a receiver only of the income arising from that property or from part of it.
(10) For the purposes of this Act, a company is related to another company if—
(a) that other company is its holding company or subsidiary; or
(b) more than half in nominal value of its equity share capital (within the meaning of section 7(11)) is held by the other company and companies related to that other company (whether directly or indirectly, but other than in a fiduciary capacity); or
(c) more than half in nominal value of the equity share capital (within the meaning of section 7(11)) of each of them is held by members of the other (whether directly or indirectly, but other than in a fiduciary capacity); or
(d) that other company or a company or companies related to that other company, or that other company together with a company or companies related to it, are entitled to exercise or control the exercise of more than one half of the voting power at any general meeting of the company; or
(e) the businesses of the companies have been so carried on that the separate business of each company, or a substantial part thereof, is not readily identifiable; or
(f) there is another body corporate to which both companies are related,
and “related company” has a corresponding meaning; for the purpose of any preceding paragraph of this subsection that contains a reference to a company being related to another, the provisions of this subsection also apply to the construction of each such reference.
(11) For the purposes of subsection (10) “company” includes any body that is capable of being wound up under this Act.
Annotations
Amendments:
F1
Deleted (21.09.2018) by Companies (Statutory Audits) Act 2018 (22/2018), s. 4(a), S.I. No. 366 of 2018.
F2
Inserted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 4(b), S.I. No. 335 of 2022.
F3
Inserted (15.07.2015) by European Union (Bank Recovery and Resolution) Regulations 2015 (S.I. No. 289 of 2015), reg. 189(1), in effect as per reg. 1(2).
F4
Deleted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 3(2) and sch. 2, S.I. No. 639 of 2024.
F5
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 98(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F6
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 4(a), S.I. No. 335 of 2022.
F7
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 4, S.I. No. 673 of 2021.
F8
Inserted (21.09.2018) by Companies (Statutory Audits) Act 2018 (22/2018), s. 4(c), S.I. No. 366 of 2018.
F9
Inserted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 4, S.I. No. 639 of 2024.
F10
Substituted (21.09.2018) by Companies (Statutory Audits) Act 2018 (22/2018), s. 4(b), S.I. No. 366 of 2018.
Editorial Notes:
E6
Previous affecting provision: definitions of “Covid-19” and “interim period” inserted (21.08.2020) by Companies (Miscellaneous Provisions (Covid-19) Act 2020 (9/2020), s. 3, S.I. No. 320 of 2020 with extensions of interim period by statutory instruments made under s. 12A; definitions deleted (3.12.2024) as per F-note above.
E7
Previous affecting provision: definition of “2016 Audits Regulations” inserted (17.06.2016) by European Union (Statutory Audits) (Directive 2006/43/EC, as amended by Directive 2014/56/EU, and Regulation (EU) No 537/2014) Regulations 2016 (S.I. No. 312 of 2016), in effect as per regs. 1(2), 3, and subject to transitional provision in reg. 143; definition deleted as per F-note above.
E8
Previous affecting provision: definition of “statutory auditor” amended (17.06.2016) by European Union (Statutory Audits) (Directive 2006/43/EC, as amended by Directive 2014/56/EU, and Regulation (EU) No 537/2014) Regulations 2016 (S.I. No. 312 of 2016), reg. 6(a), in effect as per regs. 1(2), 3 and subject to transitional provision in reg. 143; definition substituted as per F-note above.
Section 3
Periods of time
3. (1) Where the time limited by any provision of this Act for the doing of anything expires on a Saturday, a Sunday or a public holiday, the time so limited shall extend to and the thing may be done on the first following day that is not a Saturday, a Sunday or a public holiday.
(2) Where in this Act anything is required or allowed to be done within a number of days not exceeding 6, a day that is a Saturday, a Sunday or a public holiday shall not be reckoned in computing that number.
Section 4
Repeals and revocations
4. (1) The Acts of the Oireachtas specified in Part 1 of Schedule 2 are repealed to the extent specified in the third column of that Part.
(2) The statutory instruments specified in Part 2 of Schedule 2 are revoked to the extent specified in the third column of that Part.
(3) This section is in addition to section 1325 and Schedule 15 (repeals related to an unregistered company becoming registered under this Act).
Section 5
Savings and transitional provisions
5. (1) As provided under Part 17, 18, 19 or 24, as appropriate, the repeal by this Act of any enactment shall not affect the incorporation of any company registered under any enactment so repealed.
(2) The effect of this Act in relation to a private company limited by shares incorporated under any former enactment relating to companies is provided for in Chapter 6 of Part 2.
(3) Any document referring to any former enactment relating to companies shall be read as referring to the corresponding enactment of this Act.
(4) Any person, appointed to any office under or by virtue of any former enactment relating to companies, who is in office immediately before the commencement of the provision concerned of this Act, shall be deemed to have been appointed to that office under or by virtue of the provision concerned of this Act.
(5) Any register, kept under any former enactment relating to companies, shall be deemed part of the register to be kept under the corresponding provision of this Act.
(6) All funds and accounts constituted under this Act shall be deemed to be in continuation of the corresponding funds and accounts constituted under the former enactments relating to companies.
(7) Schedule 6 contains further savings and transitional provisions and shall have effect accordingly.
(8) This section is without prejudice to—
(a) the generality of the Interpretation Act 2005 and, in particular, section 27 of it; and
(b) the special provision made in certain provisions of this Act for transitional matters as they relate to those provisions.
(9) In this section “former enactment relating to companies” means any enactment repealed or revoked by this Act and any enactment repealed or revoked by the Act of 1963 or the Companies (Consolidation) Act 1908.
Section 6
Construction of references in other Acts to companies registered under Companies (Consolidation) Act 1908 and Act of 1963
6. (1) References in any Act, other than this Act, to a company formed and registered, or registered, under the Companies (Consolidation) Act 1908 or the Act of 1963 shall, unless the contrary intention appears, be read as references to a company formed and registered, or registered, under whichever of those Acts is appropriate or this Act.
(2) Subsection (1) applies despite section 26(2)(f) of the Interpretation Act 2005 (which provides that where an Act repeals and re-enacts, with or without modification, any provisions of a former Act, references in any other Act to the provisions so repealed shall, unless the contrary intention appears, be read as references to the provisions of the new Act relating to the same subject-matter as that of the former Act).
Section 7
Definition of “subsidiary”
7. (1) In this section the expressions “superior company” and “lower company” are used solely to assist the understanding of its terms and—
(a) are not indicative of the status (in any manner not relevant to this section) of the respective companies vis a vis one another; and
(b) do not constitute definitions to which regard must be had for any other purpose of this Act.
(2) For the purposes of this Act, a company (the “lower company”) is, subject to subsection (5), a subsidiary of another (the “superior company”) if, but only if—
(a) the superior company—
(i) is a shareholder or member of it and controls the composition of its board of directors; or
(ii) holds more than half in nominal value of its equity share capital; or
(iii) holds more than half in nominal value of its shares carrying voting rights (other than voting rights which arise only in specified circumstances); or
(iv) holds a majority of the shareholders’ or members’ voting rights in the lower company; or
(v) is a shareholder or member of it and controls alone, pursuant to an agreement with other shareholders or members, a majority of the shareholders’ or members’ voting rights;
or
(b) the superior company has the right to exercise a dominant influence over it—
(i) by virtue of provisions contained in the lower company’s constitution; or
(ii) by virtue of a control contract;
or
(c) the superior company has the power to exercise, or actually exercises, dominant influence or control over it; or
(d) the superior company and the lower company are managed by the superior company on a unified basis; or
(e) the lower company is a subsidiary (by virtue of the application of any of the provisions of this section) of any company which is the superior company’s subsidiary (by virtue of such application).
(3) For the purposes of subsection (2)(a)(i), the composition of the lower company’s board of directors shall be regarded as being controlled by the superior company if, but only if, the latter company, by the exercise of some power exercisable by it without the consent or concurrence of any other person, can appoint or remove the holders of all or a majority of the directorships.
(4) In applying subsection (3), the superior company shall be deemed to have power to appoint to a directorship in relation to which any of the following conditions is satisfied—
(a) that a person cannot be appointed to the directorship without the exercise in his or her favour by the superior company of such a power as is mentioned in that subsection; or
(b) that a person’s appointment to the directorship follows necessarily from his or her appointment as director of the superior company.
(5) In determining whether the lower company is a subsidiary of the superior company—
(a) any shares held or power exercisable by the superior company in a fiduciary capacity shall be treated as not held or exercisable by it;
(b) subject to paragraphs (c) and (d), any shares held or power exercisable—
F11[(i) by any person as a nominee for the superior company or by any person acting in that person’s own name but on behalf of the superior company (except where, in either case, the superior company is concerned only in a fiduciary capacity), or,]
(ii) by, or by a nominee for, F12[or by any person acting in that person’s own name but on behalf of,] a subsidiary of the superior company, not being a subsidiary which is concerned only in a fiduciary capacity,
shall be treated as held or exercisable by the superior company;
(c) any shares held or power exercisable by the superior company or a nominee for the superior company or a subsidiary of it shall be treated as not held or exercisable by the superior company where the shares are so held or the power is so exercisable by way of security but only if such power or the rights attaching to such shares are exercised in accordance with instructions received from the person providing the security;
(d) any shares held or power exercisable by the superior company or by a nominee for the superior company or a subsidiary of it shall be treated as not held or exercisable by the superior company if the ordinary business of the superior company or its subsidiary, as the case may be, includes the lending of money and the shares are so held or the power is so exercisable by way of security but only if such power or the rights attaching to such shares are exercised in the interests of the person providing the security.
(6) For the purposes of subsection (2)(a)(iv) and (v), the total of the voting rights of the shareholders or members in the lower company shall be reduced by the following—
(a) the voting rights attached to shares held by the lower company in itself; and
(b) the voting rights attached to shares held in the lower company by any of its subsidiaries; and
(c) the voting rights attached to shares held by a person acting in his or her own name but on behalf of the lower company or one of the lower company’s own subsidiaries.
(7) For the purposes of subsection (2)(b), a company shall not be regarded as having the right to exercise a dominant influence over another company unless it has a right to give directions with respect to the operating and financial policies of that other company which its directors are obliged to comply with.
(8) In subsection (2)(b) “control contract” means a contract in writing conferring such a right as is there referred to which—
(a) is of a kind authorised by the constitution of the company in relation to which the right is exercisable; and
(b) is permitted by the law under which that company is established.
(9) Subsection (7) shall not be read as affecting the construction of the expression “actually exercises dominant influence” in subsection (2)(c).
(10) If a document created before the commencement of this section defines the expression “subsidiary” by reference to section 155 of the Act of 1963, then, for the avoidance of doubt, the construction provided in respect of that expression by the document is not affected by this section in the absence of an agreement to the contrary by the parties to the document.
(11) In this section—
“company” includes any body corporate;
“equity share capital” means, in relation to a company, its issued share capital excluding any part of it which, neither as respects dividends nor as respects capital, carries any right to participate beyond a specified amount in a distribution.
Annotations
Amendments:
F11
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 4(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4
F12
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 4(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 8
Definitions of “holding company”, “wholly owned subsidiary” and “group of companies”
8. (1) For the purposes of this Act, a company is another company’s holding company if, but only if, that other is its subsidiary.
(2) For the purposes of this Act, a company is another company’s wholly owned subsidiary if, but only if, the company has no members except—
(a) that other company; or
(b) companies that are wholly-owned subsidiaries (by virtue of the application of this subsection to them) of that other company; or
(c) nominees of any company referred to in paragraph (a) or (b); or
(d) a mixture of what is referred to in 2 or more of the foregoing paragraphs.
(3) For the purposes of this Act “group of companies” means a holding company and its one or more subsidiaries.
(4) If a document created before the commencement of this section defines the expression “holding company” by reference to section 155 of the Act of 1963, then, for the avoidance of doubt, the construction provided in respect of that expression by the document is not affected by this section in the absence of an agreement to the contrary by the parties to the document.
(5) In this section “company” has the same meaning as it has in section 7.
Section 9
Act structured to facilitate its use in relation to most common type of company
9. (1) Subject to subsections (3) and (4), all of the law in this Act in relation to private companies limited by shares is to be found in Parts 1 to 14 (or instruments under them) and Schedules 1 to 6.
(2) Subject to subsection (3), all of the law in this Act in relation to other types of company is to be found amongst the provisions of—
F13[(a) Parts 16 to 26 (or instruments under them) and Schedules 7 to 18; and]
(b) Parts 1 to 14 (or instruments under them) and Schedules 1 to 6 as applied or adapted by Parts 16 to 25.
(3) Part 15 (Functions of Registrar and of regulatory and advisory bodies) applies to both—
(a) private companies limited by shares; and
(b) other types of company,
as well as to certain undertakings to which F14[the European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019] apply.
(4) Exceptionally, provisions either—
(a) of a miscellaneous nature arising out of the relationship between a private company limited by shares and another company type (such as provisions for re-registration); or
(b) which it would not otherwise be practicable to include in Parts 1 to 14 (such as provisions for a merger between a public limited company and a private company limited by shares), will be found in F13[Parts 16 to 26].
(5) References in Chapter 6 of Part 2, however expressed, to this Part and Parts 2 to 15 having application to a private company limited by shares shall not be read as excluding the application to such a company of provisions of the kind mentioned in subsection (4).
Annotations
Amendments:
F13
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 5(a) and (b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F14
Substituted (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 4(a), in effect as per reg. 1(2), (3).
Section 10
Reference in Parts 2 to 14 to company to mean private company limited by shares
10. (1) Unless expressly provided otherwise, a reference in Parts 2 to 14 to a company is a reference to a private company limited by shares.
(2) For the avoidance of doubt, subsection (1) does not apply to the construction of—
(a) the expression “holding company”, where that expression is used without qualification, in Parts 2 to 14; or
(b) any related expression, where used without qualification, in those Parts.
Section 11
Construction of references to directors, board of directors and interpretation of certain other plural forms
11. (1) References in this Act to the directors of a company shall, where the company has a sole director, be read as references to the director of the company.
(2) References in this Act to the board of directors of a company shall, where the company has a sole director, be read as references to the director of the company.
(3) References in this Act to the members of a company, or the subscribers to a company’s constitution, shall, where the company has a sole member or where there is a single subscriber to its constitution, be read as references to the member of the company or the subscriber to its constitution, as the case may be.
(4) This section is in addition to, and does not derogate from, any special provision in this Act as to the construction of the expression “director” or “member” in a particular case.
(5) This section is without prejudice to the generality of section 18(a) of the Interpretation Act 2005.
Section 12
Regulations and orders
12. (1) Subject to subsection (2), the Minister may make regulations prescribing anything referred to in this Act as prescribed or to be prescribed.
(2) Subsection (1) does not apply to anything that Part 11 or 15 provides is to be prescribed by another authority.
(3) Every regulation made by the Minister under this Act (other than a regulation referred to in F15[…] 1313 or 1321) or order made by the Minister under this Act (other than an order under section 1(2) or 16(1)) shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation or order is passed by either such House within the next 21 days on which that House has sat after the regulation or order is laid before it, the regulation or order shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.
Annotations
Amendments:
F15
Deleted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 5, S.I. No. 335 of 2022.
Editorial Notes:
E9
Power pursuant to subs. (1) exercised (1.10.2023) by Companies Act 2014 (Section 682) Regulations 2023 (S.I. No. 474 of 2023), in effect as per reg. 1(2).
E10
Power pursuant to subs. (1) exercised (11.06.2023) by Companies Act 2014 (Forms) Regulations 2023 (S.I. No. 295 of 2023), in effect as per reg. 1(2).
E11
Power pursuant to subs. (1) exercised (11.06.2023) by Companies Act 2014 (Fees) Regulations 2023 (S.I. No. 294 of 2023), in effect as per reg. 1(2).
E12
Power pursuant to subs. (1) exercised (11.06.2023) by Companies Act 2014 (Section 897) Order 2023 (S.I. No. 293 of 2023), in effect as per reg. 1(2).
E13
Power pursuant to section exercised (9.12.2022) by Companies Act 2014 (Disqualification and Restriction Undertakings) Regulations 2022 (S.I. No. 646 of 2022), in effect as per reg. 2.
E14
Power pursuant to subs. (1) exercised (8.12.2021) by Companies Act 2014 (Section 897) Order 2021 (S.I. No. 676 of 2021, in effect as per reg. 1(2).
E15
Power pursuant to subs. (1) exercised (8.12.2021) by Companies Act 2014 (Prescribed Form and Notice) Regulations 2021 (S.I. No. 675 of 2021, in effect as per reg. 1(2).
E16
Power pursuant to subs. (1) exercised (1.08.2021) by Companies Act 2014 (Forms) Regulations 2021 (S.I. No. 396 of 2021), in effect as per reg. 1(2);
E17
Power pursuant to subs. (1) exercised (31.12.2020 at 11pm) by Companies Act 1990 (Uncertificated Securities) (Amendment) Regulations 2020 (S.I. No. 609 of 2020), in effect as per reg. 1(3).
E18
Power pursuant to subs. (1) exercised (16.12.2020) by Companies Act 2014 (Section 897) Order 2020 (S.I. No. 629 of 2020), in effect as per reg. 1(2).
E19
Power pursuant to subs. (1) exercised (16.12.2020) by Companies Act 2014 (Form and Content of Documents Delivered to Registrar) Regulations 2020 (S.I. No. 628 of 2020), in effect as per reg. 1(2).
E20
Power pursuant to subs. (1) exercised (16.12.2020) by Companies Act 2014 (Forms) Regulations 2020 (S.I. No. 627 of 2020), in effect as per reg. 1(2).
E21
Power pursuant to subs. (1) exercised (19.12.2018) by Companies Act 2014 (Prescribed Professional Bodies) Regulations 2018 (S.I. No. 570 of 2018).
E22
Power pursuant to section exercised (16.07.2018) by Companies Act 2014 (Forms) (No. 2) Regulations 2018 (S.I. No. 242 of 2018), in effect as per art. 1(2).
E23
Power pursuant to section exercised (16.12.2016) by Companies Act 2014 (Forms) Regulations 2016 (S.I. No. 623 of 2016).
E24
Power pursuant to section exercised (23.03.2016) by Companies Act 2014 (Section 839) Regulations 2016 (S.I. No. 147 of 2016).
E25
Power pursuant to section exercised (25.11.2015) by Companies Act 2014 (Section 150) (No. 2) Regulations 2015 (S.I. No. 543 of 2015).
E26
Power pursuant to section exercised (9.11.2015) by Companies Act 2014 (Section 580(4)) (Revocation) Regulations 2015 (S.I. No. 499 of 2015).
E27
Power pursuant to subs. (1) exercised (9.11.2015) by Companies Act 2014 (Section 457 Forms) Regulations 2015 (S.I. 498 of 2015), in effect as per reg. 1.
E28
Power pursuant to section exercised (9.11.2015) by Companies Act 2014 (Section 682) (Revocation) Regulations 2015 (S.I. No. 497 of 2015).
E29
Power pursuant to section exercised (1.06.2015) by Companies Act 2014 (Section 623 Account) Regulations 2015 (S.I. No. 219 of 2015), in effect as per reg. 1.
E30
Power pursuant to section exercised (1.06.2015) by Companies Act 2014 (Section 208 Report) Regulations 2015 (S.I. No. 218 of 2015), in effect as per reg. 1.
E31
Power pursuant to section exercised (1.06.2015) by Companies Act 2014 (Part 14 Prescribed Officers) Regulations 2015 (S.I. No. 216 of 2015), in effect as per reg. 1(2).
E32
Power pursuant to section exercised (1.06.2015) by Companies Act 2014 (Bonding) Order 2015 (S.I. No. 215 of 2015), in effect as per reg. 1.
E33
Power pursuant to section exercised (1.06.2015) by Companies Act 2014 (Recognised Stock Exchanges) Regulations 2015 (S.I. No. 214 of 2015), in effect as per reg. 1.
E34
Power pursuant to section exercised (1.06.2015) by Companies Act 2014 (Forms) (No. 2) Regulations 2015 (S.I. No. 212 of 2015), in effect as per reg. 1(2).
E35
Previous affecting provision: power pursuant to subs. (1) exercised (8.12.2021) by Companies Act 2014 (Fees) (No. 2) Regulations 2021 (S.I. No. 674 of 2021), in effect as per reg. 1(2); revoked (11.06.2023) by Companies Act 2014 (Fees) Regulations 2023 (S.I. No. 294 of 2023), reg. 5, in effect as per reg. 1(2).
E36
Previous affecting provision: power pursuant to subs. (1) exercised (1.08.2021) by Companies Act 2014 (Fees) Regulations 2021 (S.I. No. 395 of 2021), in effect as per reg. 1(2); revoked (8.12.2021) by Companies Act 2014 (Fees) (No. 2) Regulations 2021 (S.I. No. 674 of 2021), reg. 6, in effect as per reg. 1(2).
E37
Previous affecting provision: power pursuant to subs. (1) exercised (16.12.2020) by Companies Act 2014 (Fees) Regulations 2020 (S.I. No. 626 of 2020), in effect as per reg. 1(2); revoked (1.08.2021) by Companies Act 2014 (Fees) Regulations 2021 (S.I. No. 395 of 2021), reg. 5, in effect as per reg. 1(2).
E38
Previous affecting provision: power pursuant to section exercised (21.03.2018) by Companies Act 2014 (Forms) Regulations 2018 (S.I. No. 95 of 2018); revoked (16.12.2020) by Companies Act 2014 (Forms) Regulations 2020 (S.I. No. 627 of 2020), reg. 7, in effect as per reg. 1(2).
E39
Previous affecting provision: power pursuant to section exercised (1.06.2015) by Companies Act 2014 (Section 150) Regulations 2015 (S.I. No. 225 of 2015), in effect as per reg. 1(2); revoked (25.11.2015) by Companies Act 2014 (Section 150) (No. 2) Regulations 2015 (S.I. No. 543 of 2015), reg. 12.
E40
Previous affecting provision: power pursuant to section exercised (1.06.2015) by Companies Act 2014 (Disqualification and Restriction Undertakings) Regulations 2015 (S.I. No. 222 of 2015), in effect as per reg. 2; revoked (9.12.2022) by Companies Act 2014 (Disqualification and Restriction Undertakings) Regulations 2022 (S.I. No. 646 of 2022), reg. 4, in effect as per reg. 2.
E41
Previous affecting provision: power pursuant to section exercised (1.06.2015) by Companies Act 2014 (Section 682) Regulations 2015 (S.I. No. 221 of 2015), in effect as per reg. 1; revoked (9.11.2015) by Companies Act 2014 (Section 682)(Revocation of Statutory Instrument) Regulation 2015 (S.I. No. 497 of 2015), in effect as per reg. 2.
E42
Previous affecting provision: power pursuant to section exercised (1.06.2015) by Companies Act 2014 (Section 580(4) Members’ Voluntary Winding Up Report) Regulations 2015 (S.I. No. 217 of 2015), in effect as per reg. 1; revoked (9.11.2015) by Companies Act 2014 (Section 580(4)) (Revocation of Statutory Instrument) Regulation 2015 (S.I. No. 499 of 2015), in effect as per reg. 2.
E43
Previous affecting provision: power pursuant to section exercised (1.06.2015) by Companies Act 2014 (Fees) Regulations 2015 (S.I. No. 213 of 2015), in effect as per reg. 1(2); revoked (16.12.2020) by Companies Act 2014 (Fees) Regulations 2020 (S.I. No. 626 of 2020), reg. 5, in effect as per reg. 1(2).
Section 12A
F16[Extension of interim period
12A. F17[…]]
Annotations
Amendments:
F16
Inserted (21.08.2020) by Companies (Miscellaneous Provisions (Covid-19) Act 2020 (9/2020), s. 4, S.I. No. 320 of 2020. Note extensions to interim period by statutory instruments made under subs. (1).
F17
Repealed (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 3(1) and sch. 1, S.I. No. 639 of 2024.
Editorial Notes:
E44
Previous affecting provision: power pursuant to subs. (1) exercised (1.01.2024 to 31.12.2024) by Companies Act 2014 (Section 12A(1)) (Covid-19) Order 2023 (S.I. No. 646 of 2023), in effect as per art. 1(2), in respect of certain amendments only; rendered obsolete by deletion of definition of interim period (3.12.2024) as per F-note above.
E45
Previous affecting provision: power pursuant to subs. (1) exercised (1.01.2023 to 31.12.2023) by Companies Act 2014 (Section 12A(1)) (Covid-19) (No. 2) Order 2022 (S.I. No. 648 of 2022), in respect of certain amendments only; period specified elapsed as per art. 3.
E46
Previous affecting provision: power pursuant to subs. (1) exercised (1.05.2022 to 31.12.2022) by Companies Act 2014 (Section 12A(1)) (Covid-19) Order 2022 (S.I. No. 220 of 2022); period specified elapsed as per art. 3.
E47
Previous affecting provision: power pursuant to subs. (1) exercised (1.01.2022 to 30.04.2022) by Companies Act 2014 (Section 12A(1)) (Covid-19) (No. 2) Order 2021 (S.I. No. 725 of 2021); period specified elapsed as per art. 3.
E48
Previous affecting provision: power pursuant to subs. (1) exercised (10.06.2021 to 31.12.2021) by Companies Act 2014 (Section 12A(1)) (Covid-19) Order 2021 (S.I. No. 254 of 2021); period specified elapsed as per art. 3.
E49
Previous affecting provision: power pursuant to subs. (1) exercised (1.01.2021 to 9.06.2021) by Companies Act 2014 (Section 12A(1)) (Covid-19) Order 2020 (S.I. No. 672 of 2020); period specified elapsed as per art. 3.
E50
The section heading is taken from the amending section in the absence of one included in the amendment.
Section 13
Authentication of certain official documents
13. Any approval, sanction, direction or licence or revocation of licence which, under this Act, may be given or made by the Minister may be signed by any person authorised in that behalf by the Minister.
Section 14
Expenses
14. The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of moneys provided by the Oireachtas.
PART 2
INCORPORATION AND REGISTRATION
CHAPTER 1
Preliminary
Section 15
Definitions (Part 2)
15. In this Part—
F18[“Act of 2010” means the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010;]
“activity” means any activity that a company may be lawfully formed to carry on and includes the holding, acquisition or disposal of property of whatsoever kind;
“existing private company” means a private company limited by shares which—
(a) was incorporated under any former enactment relating to companies (within the meaning of section 5); and
(b) is in existence at the commencement of this section,
but does not include such a company where, subsequent to that commencement, it re-registers as another type of company;
“registered person” shall be read in accordance with section 39(2);
F18[“relevant authorisation” means an authorisation within the meaning of Chapter 9 of Part 4 of the Act of 2010;]
“relevant classification system” means NACE Rev. 2, that is to say, the common basis for statistical classifications of economic activities within the European Community set out in the Annex to Council Regulation (EEC) No. 3037/90 of 9 October 1990 on the statistical classification of economic activities in the European Community, as amended for the time being;
“transition period” means the period expiring 18 months after the commencement of this section.
F18[“trust or company service provider” has the same meaning as it has in Chapter 9 of Part 4 of the Act of 2010;]
Annotations
Amendments:
F18
Inserted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 5, S.I. No. 639 of 2024.
Section 16
Extension of transition period in the event of difficulties
16. (1) If, in any respect, any difficulties arise in the operation of the provisions of the Act which, in the opinion of the Minister, necessitate the giving of more time for affected or interested parties to undertake any necessary actions or procedures in the period provided for in the definition of “transition period” in section 15, the Minister may by order substitute a longer period (but not a period of longer than 30 months) for the period mentioned in that definition.
(2) Where it is proposed to make an order under this section, a draft of the order shall be laid before each House of the Oireachtas and the order shall not be made unless a resolution approving of the draft has been passed by each such House.
CHAPTER 2
Incorporation and consequential matters
Section 17
Way of forming private company limited by shares
17. (1) A company may be formed for any lawful purpose by any person or persons subscribing to a constitution and complying with the requirements of this Part as to registration of a company.
(2) The liability of a member of a company at any time shall be limited to the amount, if any, unpaid on the shares registered in the member’s name at that time.
(3) Subsection (2) is without prejudice to any other liability to which a member may be subject as provided by this Act.
(4) The number of members of a company shall not exceed 149 but, in reckoning that limit, there shall be disregarded any of the following persons.
(5) Those persons are—
(a) a person in the employment of the company who is a member of it;
(b) a person who, having been formerly in the employment of the company, was, while in that employment, and has continued after the termination of the employment to be, a member of it.
(6) Where 2 or more persons hold one or more shares in a company jointly, they shall, for the purposes of this section, be treated as a single member.
(7) Any registration of a person as a member of a company in excess of the limit provided by subsection (4) shall be void.
Section 18
Company to carry on activity in the State and prohibition of certain activities
18. (1) A company shall not be formed or registered unless it appears to the Registrar that the company, when registered, will carry on an activity in the State.
(2) A company shall not carry on the activity of a credit institution or an insurance undertaking.
Section 19
Form of the constitution
19. (1) The constitution of a company shall state—
(a) the company’s name;
(b) that it is a private company limited by shares registered under this Part;
(c) that the liability of its members is limited;
(d) as respects its share capital, either—
(i) the amount of share capital with which it proposes to be registered (“its authorised share capital”), and the division of that capital into shares of a fixed amount specified in the constitution, or
(ii) without stating such amount, that the share capital of the company shall, at the time of its registration, stand divided into shares of a fixed amount specified in the constitution;
(e) the number of shares (which shall not be less than one) taken by each subscriber to the constitution; and
(f) if the company adopts supplemental regulations, those regulations.
(2) The constitution shall—
(a) be in a form in accordance with the form set out in Schedule 1 or as near to it as circumstances permit;
(b) be divided into paragraphs numbered consecutively; and
(c) either—
(i) be signed by each subscriber in the presence of at least one witness who shall attest the signature; or
(ii) be authenticated in the manner referred to in section 888.
(3) Where, subsequent to its registration, an amendment of the constitution is made affecting the matter of share capital, or another matter, referred to in subsection (1), that subsection shall be read as requiring the constitution to state the matter as it stands in consequence of that amendment.
Section 20
Restriction on amendment of constitution
20. A company may not amend the provisions contained in its constitution except in the cases, in the manner and to the extent for which express provision is made in this Act.
Section 21
Registration of constitution
21. (1) The constitution of a company shall be delivered for registration to the Registrar together with—
(a) the statement and consent referred to in section 22; and
(b) the declaration referred to in section 24, and, where appropriate—
(i) the bond referred to in section 22(6);
(ii) the statement referred to in section 23.
(2) The Registrar shall not register a constitution delivered for registration under this section unless he or she is satisfied that all the requirements of this Act in respect of registration and of matters precedent and incidental thereto have been complied with.
Section 22
Statement to be delivered with constitution
22. (1) In this section—
(a) a reference to a statement is to the statement required to be delivered by section 21(1)(a); and
(b) a reference to a company is to the company to which such statement relates.
(2) The statement shall be in the prescribed form and shall state:
(a) the name of each of the persons who are to be the first directors of the company;
(b) the name of the person who is, or of each of the persons who are, to be the first secretary or joint secretaries of the company;
(c) the name of the person (if any) who is, or of each of the persons (if any) who are, to be the first assistant or deputy secretary or secretaries of the company;
(d) the address of the company’s registered office; and
(e) the place (whether in the State or not) where the central administration of the company will normally be carried on,
and the particulars (in relation to any foregoing person) specified in subsection (3) and any other particulars that may be prescribed in relation to such a person or in relation to any other foregoing matter.
(3) The particulars referred to in subsection (2) are—
(a) in relation to a person named as director of the company concerned, all particulars which are, in relation to a director, required pursuant to subsection (2) of section 149 to be contained in the register kept under that section;
(b) in relation to a person named as secretary, or as one of the joint secretaries, all particulars which are, in relation to the secretary or to each joint secretary, required pursuant to subsection (5) of section 149 to be contained in the register kept under that section; and
(c) in relation to a person named as assistant or deputy secretary, all particulars which are, in relation to an assistant or deputy secretary, required pursuant to subsection (7) of section 149 to be contained in the register kept under that section.
(4) Where the constitution is delivered, pursuant to section 21, to the Registrar by a person (the “agent”) as agent for the person or persons who have subscribed to the constitution, the statement shall so specify and shall specify the name and address of the agent.
(5) Subsections (2) and (3) are without prejudice to subsection (7).
(6) Where no person referred to in subsection (2)(a) is resident in an EEA state, there shall be delivered for registration a bond as provided by section 137(2).
(7) In respect of the activity, or one of the activities, to be carried on by the company in the State, the statement shall contain the following particulars:
(a) if it appears to the person making the statement that the activity belongs to a division, group and class appearing in the relevant classification system—
(i) the general nature of the activity; and
(ii) the division, group and class in that system to which the activity belongs;
(b) if it appears to that person that the activity does not belong to any such division, group and class, a precise description of the activity;
(c) the place or places in the State where it is proposed to carry on the activity.
(8) For the purposes of subsection (7), if the purpose or one of the purposes for which the company is being formed is the carrying on of 2 or more activities in the State, the particulars in respect of the matters referred to in paragraphs (a) to (c) of that subsection to be given in the statement shall be the particulars that relate to whichever of those activities the person making the statement considers to be the principal activity for which the company is being formed to carry on in the State.
(9) The statement shall—
(a) be signed by or on behalf of each subscriber to the constitution of the company or be authenticated in the manner referred to in section 888; and
(b) be accompanied by a consent that is either—
(i) signed by each of the persons named in the statement as a director, secretary or joint secretary or assistant or deputy secretary to act in that capacity, or
(ii) authenticated in the manner referred to in section 888.
(10) Section 223(3), in the case of a director, and section 226(5), in the case of a secretary, requires the inclusion of a particular statement in a foregoing consent by him or her.
Annotations
Editorial Notes:
E51
Power pursuant to subs. (2) exercised (11.06.2023) by Companies Act 2014 (Forms) Regulations 2023 (S.I. No. 295 of 2023), in effect as per reg. 1(2).
E52
Power pursuant to subs. (2) exercised (16.12.2020) by Companies Act 2014 (Forms) Regulations 2020 (S.I. No. 627 of 2020), in effect as per reg. 1(2).
Section 23
Additional statement to be furnished in certain circumstances
23. (1) If any person named in the statement to be delivered under section 21(1)(a) as a director of the company concerned is a person who is disqualified under the law of another state (whether pursuant to an order of a judge or a tribunal or otherwise) from being appointed or acting as a director or secretary of a body corporate or an undertaking, that person has the following obligation.
(2) That obligation is to ensure that the foregoing statement is accompanied by (but as a separate document from that statement) a statement in the prescribed form signed by him or her, or authenticated in the manner referred to in section 888, specifying—
(a) the jurisdiction in which he or she is so disqualified;
(b) the date on which he or she became so disqualified; and
(c) the period for which he or she is so disqualified.
Section 24
Declaration to be made to Registrar
24. (1) In this section—
(a) a reference to a declaration is to the declaration required to be delivered by section 21(1)(b); and
(b) a reference to a company is to the company to which such declaration relates.
(2) The declaration shall state that—
(a) all the requirements in respect of registration of the company and of matters precedent and incidental thereto have been complied with;
(b) the purpose, or one of the purposes, for which the company is being formed is the carrying on by it of an activity in the State; and
(c) the particulars contained in the statement delivered under section 21(1)(a) are correct.
(3) The declaration shall be made by—
(a) one of the persons named in the statement delivered under section 21(1)(a) as directors of the company;
(b) the person or, as the case may be, one of the persons named in that statement as secretary or joint secretaries of the company; or
(c) the solicitor, if any, engaged in the formation of the company.
(4) The Registrar may accept the declaration as sufficient evidence that all the requirements in respect of registration of the company and of matters precedent and incidental thereto have been complied with and, in particular, that there have been complied with—
(a) the requirements mentioned in section 22 and, where appropriate, section 23; and
(b) the requirement mentioned in section 18.
Section 25
Effect of registration
25. (1) On the registration of the constitution of a company, the Registrar shall certify in writing that the company is incorporated and shall issue to the company a certificate of incorporation in respect of it.
(2) From the date of incorporation mentioned in the certificate of incorporation, the subscriber or subscribers to the constitution, together with such other persons as may from time to time become members of the company, shall be a body corporate with the name contained in the constitution, having perpetual succession and a common seal.
(3) The certificate of incorporation issued under subsection (1) shall state that the company is a private company limited by shares.
(4) A certificate of incorporation issued under subsection (1) shall be conclusive evidence that the requirements of section 21 have been complied with, and that the company is duly registered under this Act.
(5) The persons who are specified in the statement required to be delivered to the Registrar by section 21(1)(a) as the director or directors, secretary or joint secretaries or assistant or deputy secretary or secretaries of the company to which the statement refers shall, on the incorporation of the company, be deemed to have been appointed as the first director or directors, secretary or joint secretaries or assistant or deputy secretary or secretaries, as the case may be, of the company.
(6) Any indication in the constitution, as delivered under section 21 for registration, specifying a person as a director or secretary (including any assistant or deputy secretary) of a company shall be void unless such person is specified as a director or as secretary (or, as the case may be, assistant or deputy secretary) in the foregoing statement.
(7) Subsection (5) does not operate to deem a person appointed as a director or secretary (including any assistant or deputy secretary) of a company where—
(a) he or she is disqualified under this Act from being appointed a director, secretary, assistant or deputy secretary, as the case may be, of a company; or
(b) in the case of a director or secretary, a provision of this Act provides that the person’s appointment as such in the circumstances is void.
Section 26
Provisions as to names of companies
26. (1) The name of a company shall end with one of the following:
— limited;
— teoranta.
(2) The word “limited” may be abbreviated to “ltd.” (including that abbreviation in capitalised form) in any usage after the company’s registration by any person including the company.
(3) The word “teoranta” may be abbreviated to “teo.” (including that abbreviation in capitalised form) in any usage after the company’s registration by any person including the company.
(4) A company carrying on business under a name other than its corporate name shall register in the manner directed by law for the registration of business names but the use of the abbreviation set out in subsection (2) or (3) shall not of itself render such registration necessary.
(5) No company shall be registered on—
(a) its incorporation; or
(b) should such occur, its re-registration, merger or division,
by a name which, in the opinion of the Registrar, is undesirable.
(6) An appeal shall lie to the court against a refusal by the Registrar to register a company (in any of the circumstances referred to in paragraph (a) or (b) of subsection (5)) on the ground there referred to.
Section 27
Trading under a misleading name
27. (1) Neither a body that is not a company nor an individual shall carry on any trade, profession or business under a name which includes, as its last part, the word “limited” or the words “company limited by shares” or any abbreviations of any of the foregoing words.
(2) If a body or individual contravenes subsection (1), the body or individual and, in the case of a body, any officer of it who is in default, shall be guilty of a category 3 offence.
(3) Subsection (1) as it relates to the use of the word “limited”, or any abbreviation of that word, shall not apply to a society registered under the Industrial and Provident Societies Acts 1893 to 2014.
F19[(3A) Subsection (1) as it relates to the use of the word "limited", or any abbreviation of that word, shall not apply to a limited liability partnership (within the meaning of the Legal Services Regulation Act 2015).]
(4) A company shall not, in the following circumstances, use a name which may reasonably be expected to give the impression that it is any type of company other than a private company limited by shares or that it is any other form of body corporate.
(5) Those circumstances are circumstances in which the fact that it is a private company limited by shares is likely to be material to any person.
(6) If a company contravenes subsection (4), the company and any officer of it who is in default shall be guilty of a category 3 offence.
(7) Subsection (1) shall not apply to any company—
(a) to which Part 21 applies, and
(b) which has provisions in its constitution that would entitle it to rank as a private company limited by shares (whether under this Part or Part 16) if it had been registered in the State.
Annotations
Amendments:
F19
Inserted (7.10.2019) by Legal Services Regulation Act 2015 (65/2015), s. 132, S.I. No. 501 of 2019.
Section 28
Reservation of a company name
28. (1) In this section—
“reserved” means reserved under subsection (4) for the particular purpose mentioned in subsection (2);
“specified period” means the period specified in the relevant notification made by the Registrar under subsection (5).
(2) A person may apply to the Registrar to reserve a specified name for either of the following purposes, namely—
(a) the purpose of a company that is proposed to be formed by that person being incorporated with that name;
(b) the purpose of a company changing its name to that name,
and, in either such case, such an application shall be accompanied by the prescribed fee.
(3) In subsection (2), “person” means, for the purposes of paragraph (b) of it, the company referred to in that paragraph.
(4) On the making of such an application, the Registrar may, subject to subsection (7), determine that the name specified in the application shall be reserved for the particular purpose mentioned in subsection (2).
(5) That determination shall be notified to the applicant by the Registrar and that notification shall specify the period for which the name is reserved.
(6) The specified period shall not be greater than 28 days and shall be expressed to begin on the making of the notification.
(7) A name shall not be reserved that, in the opinion of the Registrar, is undesirable.
(8) A person in whose favour a name has been reserved may, before the expiry of the specified period, apply to the Registrar for an extension of the specified period; such an application shall be accompanied by the prescribed fee.
(9) On the making of such an application, the Registrar may, if he or she considers it appropriate to do so, extend the specified period for such number of days (not exceeding 28 days) as the Registrar determines and specifies in a notification of the determination to the applicant.
Annotations
Editorial Notes:
E53
Power pursuant to subss. (2), (8) exercised (11.06.2023) by Companies Act 2014 (Fees) Regulations 2023 (S.I. No. 294 of 2023), in effect as per reg. 1(2).
E54
Previous affecting provision: power pursuant to subss. (2), (8) exercised (8.12.2021) by Companies Act 2014 (Fees) (No. 2) Regulations 2021 (S.I. No. 674 of 2021), in effect as per reg. 1(2); revoked (11.06.2023) by Companies Act 2014 (Fees) Regulations 2023 (S.I. No. 294 of 2023), reg. 5, in effect as per reg. 1(2).
E55
Previous affecting provision: power pursuant to subs. (2), (8) exercised (1.08.2021) by Companies Act 2014 (Fees) Regulations 2021 (S.I. No. 395 of 2021), in effect as per reg. 1(2); revoked (8.12.2021) by Companies Act 2014 (Fees) (No. 2) Regulations 2021 (S.I. No. 674 of 2021), reg. 6, in effect as per reg. 1(2).
E56
Previous affecting provision: power pursuant to subss. (2), (8) exercised (16.12.2020) by Companies Act 2014 (Fees) Regulations 2020 (S.I. No. 626 of 2020), in effect as per reg. 1(2); revoked (1.08.2021) by Companies Act 2014 (Fees) Regulations 2021 (S.I. No. 395 of 2021), reg. 5, in effect as per reg. 1(2).
E57
Previous affecting provision: power pursuant to subss. (2), (8) exercised (1.06.2015) by Companies Act 2014 (Fees) Regulations 2015 (S.I. No. 213 of 2015), in effect as per reg. 1(2); revoked (16.12.2020) by Companies Act 2014 (Fees) Regulations 2020 (S.I. No. 626 of 2020), reg. 5, in effect as per reg. 1(2).
Section 29
Effect of reservation of name
29. (1) During the specified period and any extension under section 28(9) of that period, a company shall neither—
(a) be incorporated with a particular reserved name save on application of the person in whose favour that name has been reserved; nor
(b) be incorporated with a name that, in the opinion of the Registrar, is too like a particular reserved name.
(2) During the specified period and any extension under section 28(9) of that period, a company shall neither—
(a) change its name to a particular reserved name (unless it is the company in whose favour the name has been reserved); nor
(b) change its name to a name that, in the opinion of the Registrar, is too like a particular reserved name.
(3) If an application for the incorporation of a company with a name that has been reserved under section 28 is received by the Registrar during the specified period (or any extension of it granted under section 28(9)) from the person in whose favour the name has been so reserved, the fee payable to the Registrar in respect of that incorporation shall be reduced by an amount equal to the amount of the fee paid under section 28(2) in respect of the reservation of that name.
(4) In this section “reserved” and “specified period” have the same meaning as they have in section 28.
Section 30
Change of name
30. (1) A company may, by special resolution and with the approval of the Registrar, signified in writing, change its name.
(2) Subsection (3) applies if, through inadvertence or otherwise, a company is registered by a name (whether on its first registration, or on its registration by a new name) which, in the opinion of the Registrar, is too like the name by which a company in existence is already registered.
(3) Where this subsection applies the first-mentioned company in subsection (2)—
(a) with the approval of the Registrar — may change its name; or
(b) if, within 6 months after the date of its being registered by the first-mentioned name in subsection (2), the Registrar directs it to do so — shall change its name.
(4) A direction under subsection (3)(b) shall be complied with within a period of 6 weeks after the date of its being given or such longer period as the Registrar may think fit to allow.
(5) Where a company changes its name under this section, the Registrar shall enter the new name in the register in place of the former name, and shall issue a certificate of incorporation altered to meet the circumstances of the case.
(6) A change of name by a company under this section shall not affect any rights or obligations of the company, or render defective any legal proceedings by or against the company, and any legal proceedings which might have been continued or commenced against it by its former name may be continued or commenced against it by its new name.
(7) A company which was registered by a name specified by statute, may, notwithstanding anything contained in that statute, change its name in accordance with subsection (1), but, if the Registrar is of the opinion that any Minister of the Government is concerned in the administration of the statute which specified the name of the company, the Registrar shall not approve of the change of name save after consultation with that Minister of the Government.
(8) If a company fails to comply with a direction under subsection (3)(b) within the period provided under subsection (4), the company and any officer of it who is in default shall be guilty of a category 4 offence.
Section 31
Effect of constitution
31. (1) Subject to the provisions of this Act, the constitution shall, when registered, bind the company and the members of it to the same extent as if it had been signed and sealed by each member, and contained covenants by the company and each member to observe all the provisions of the constitution and any provision of this Act as to the governance of the company.
(2) For the avoidance of doubt, in subsection (1) the reference to any provision of this Act as to the governance of the company includes a reference to any provision of this Act that commences with words to the effect that the provision applies save where the company’s constitution provides otherwise or otherwise contains a qualification on the provision’s application by reference to the company’s constitution.
(3) All money payable by any member to the company under the constitution shall be a debt due from him or her to the company.
(4) An action to recover a debt created by this section shall not be brought after the expiration of 12 years after the date on which the cause of action accrued.
Section 32
Amendment of constitution by special resolution
32. (1) Subject to the provisions of this Act, a company may by special resolution amend its constitution.
(2) Any amendment so made of the constitution shall, subject to the provisions of this Act, be as valid as if originally contained therein, and be subject in like manner to amendment by special resolution.
(3) Where any amendment is made to a company’s constitution notice of which section 33 requires to be published as therein mentioned, the company shall deliver to the Registrar, in addition to the amendment, a copy of the text of the constitution as so amended.
(4) Subject to subsection (5), and notwithstanding anything in the constitution of a company, no member of the company shall be bound by an amendment made to the constitution after the date on which he or she became a member, if and so far as the amendment—
(a) requires him or her to take or subscribe for more shares than the number held by him or her at the date on which the amendment is made, or
(b) in any way increases his or her liability as at the date referred to in paragraph (a) to—
(i) contribute to the share capital of the company, or
(ii) otherwise pay money to the company.
(5) Subsection (4) shall not apply in any case where the member agrees in writing, either before or after the amendment is made, to be bound by the amendment.
Section 33
Publication of notices
33. (1) The Registrar shall publish in the CRO Gazette notice of the delivery to or the issue by the Registrar of the following documents and particulars—
(a) any certificate of incorporation of the company;
(b) the constitution of the company;
(c) any document making or evidencing an amendment of its constitution;
(d) every amended text of its constitution;
(e) any return relating to its register of directors or notification of a change among its directors;
(f) any return relating to the persons, other than the board of directors, authorised to enter into transactions binding the company, or notification of a change among such persons;
(g) its annual return and the financial statements that are required to be published in accordance with Part 6;
(h) any notice of the situation of its registered office, or of any change therein;
(i) any copy of a winding up order in respect of the company;
(j) any copy of an order for the dissolution of the company on a winding up;
(k) any return by the liquidator of the final meeting of the company on a winding up;
(l) any notice of the appointment of a liquidator in a voluntary winding up of the company.
(2) The publication referred to in subsection (1) shall occur within 10 days after the date of the relevant delivery or issue.
Section 34
Language of documents filed with Registrar
34. (1) Without prejudice to any other provisions on the language of documents, any document delivered to the Registrar shall be in the Irish or English language.
(2) A translation of any such document may be delivered to the Registrar in any official language of the European Union.
(3) Every translation referred to in subsection (2) shall be certified, in a manner approved by the Registrar, to be a correct translation.
(4) In any case of a discrepancy between a document delivered as mentioned in subsection (1) and a translation of it delivered pursuant to subsection (2), the latter may not be relied upon by the company against a third party. A third party may, nevertheless, rely on that translation against the company, unless the company proves that the third party had knowledge of the document delivered as mentioned in subsection (1).
(5) In subsection (4), “third party” means a person other than the company or a member, officer or employee of it.
Section 35
Authorisation of an electronic filing agent
35. (1) A company may authorise a person (who shall be known and is in this Act referred to as an “electronic filing agent”) to do the following acts on its behalf.
(2) Those acts are—
(a) the electronic signing of documents that are required or authorised, by or under this Act or any other enactment, to be delivered by the company to the Registrar; and
(b) the delivery to the Registrar, by electronic means, of those documents so signed.
(3) The authorisation of a firm (not being a body corporate) by its firm name to do the foregoing acts on behalf of a company shall operate to authorise the following persons to do those acts on the company’s behalf, namely those persons who are from time to time during the currency of the authorisation the partners in that firm as from time to time constituted.
(4) Subject to the following conditions being satisfied, an act of the foregoing kind done by such an agent on behalf of a company pursuant to an authorisation by the company under this section that is in force shall be as valid in law as if it had been done by the company (and the requirements of this Act or the other enactment concerned with respect to the doing of the act have otherwise been complied with (such as with regard to the period within which the act is to be done)).
(5) The conditions mentioned in subsection (4) are—
(a) that prior to the first instance of the electronic filing agent’s doing of an act of the kind referred to in subsection (2), pursuant to an authorisation by the company concerned under this section, the authorisation of the agent has been notified by the company to the Registrar in the prescribed form; and
(b) the doing of the act complies with any requirements of the Registrar of the kind referred to in sections 12(2)(b) and 13(2)(a) of the Electronic Commerce Act 2000.
(6) It shall be the joint responsibility of a company and the electronic filing agent authorised by it under this section to manage the control of the documents referred to in subsection (2).
F20[(7) An electronic filing agent shall not, by virtue of his or her authorisation under this section to act as such, be regarded as an officer or servant of the company concerned for the purposes of F21[section 1535(2) or (3)].]
Annotations
Amendments:
F20
Substituted (17.06.2016) by European Union (Statutory Audits) (Directive 2006/43/EC, as amended by Directive 2014/56/EU, and Regulation (EU) No 537/2014) Regulations 2016 (S.I. No. 312 of 2016), reg. 7, in effect as per regs. 1(2), 3 and subject to transitional provision in reg. 143.
F21
Substituted (21.09.2018) by Companies (Statutory Audits) Act 2018 (22/2018), s. 5, S.I. No. 366 of 2018.
F22
Substituted by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s 6(a), not commenced as of date of revision.
F23
Inserted by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s 6(b), not commenced as of date of revision.
Modifications (not altering text):
C14
Prospective affecting provision: subs. (1) substituted and subss. (8) to (10) inserted by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 6, not commenced as of date of revision.
F22[(1) A company may authorise an electronic filing agent to do the following acts on its behalf.]
F23[(8) (a) The Registrar may, on application made to him or her by a person in the prescribed form, approve the person to act as an electronic filing agent for the purposes of this section, and a person so approved shall be known, and is in this Act referred to, as an “electronic filing agent”.
(b) Where an application under paragraph (a) is made by a trust or company service provider, the Registrar shall not grant approval under that paragraph unless the person is the holder of a relevant authorisation.
(c) The Registrar shall withdraw an approval granted under paragraph (a) where the person ceases to be the holder of a relevant authorisation.
(9) (a) The approval of a firm (not being a body corporate) by its firm name to act as an electronic filing agent for the purposes of this section shall operate as an approval of the following persons to act as electronic filing agent for the purposes of this section, namely those persons who are from time to time during the currency of the approval the partners in that firm as from time to time constituted.
(b) A firm approved under this section shall notify the Registrar in the prescribed form of any change in the partners in the firm as referred to in paragraph (a) during the currency of the approval.
(10) (a) Subject to paragraph (b), where the authorisation of an electronic filing agent under this section is notified to the Registrar in accordance with subsection (5) before the coming into operation of subsection (8), the electronic filing agent shall be deemed to be approved by the Registrar under subsection (8) to act as an electronic filing agent for the purposes of this section.
(b) Paragraph (a) shall not apply to an electronic filing agent that is a trust or company service provider unless the agent is the holder of a relevant authorisation.]
Section 36
Revocation of the authorisation of an electronic filing agent
36. (1) A company may revoke an authorisation by it under section 35 of an electronic filing agent.
(2) Such a revocation by a company shall be notified by it, in the prescribed form, to the Registrar.
(3) Unless and until the revocation is so notified to the Registrar, the authorisation concerned shall be deemed to subsist and, accordingly, to be still in force for the purposes of section 35(4).
(4) If a revocation, in accordance with this section, of an authorisation under section 35 constitutes a breach of contract or otherwise gives rise to a liability being incurred—
(a) the fact that it constitutes such a breach or otherwise gives rise to a liability being incurred does not affect the validity of the revocation for the purposes of section 35; and
(b) the fact of the revocation being so valid does not remove or otherwise affect any cause of action in respect of that breach or the incurring of that liability.
Section 37
Copies of constitution to be given to members
37. (1) A company shall, on being so requested by any member, send to him or her a copy of its constitution—
(a) free of charge, and
(b) in the event of a second or subsequent such request by the member (the first request by him or her having been complied with) on payment to it of €5.00.
(2) Where an amendment is made of the constitution of a company, every copy of the constitution issued after the date of the amendment shall be in accordance with the amendment.
(3) If a company contravenes this section, the company and any officer of it who is in default shall be guilty of a category 4 offence.
CHAPTER 3
Corporate capacity and authority
Section 38
Capacity of private company limited by shares
38. (1) Subject to subsection (2), notwithstanding anything contained in its constitution a company shall have, whether acting inside or outside of the State—
(a) full and unlimited capacity to carry on and undertake any business or activity, do any act or enter into any transaction; and
(b) for the purposes of paragraph (a), full rights, powers and privileges.
(2) Nothing in subsection (1) shall relieve a company from any duty or obligation under any enactment or the general law.
Section 39
Registered person
39. (1) Where the board of directors of a company authorises any person as being a person entitled to bind the company (not being an entitlement to bind that is, expressly or impliedly, restricted to a particular transaction or class of transactions), the company may notify the Registrar in the prescribed form of the authorisation and the Registrar shall register the authorisation.
(2) A person so authorised, where his or her authorisation is registered in the foregoing manner, is referred to in this Act as a “registered person”; where, in a provision of this Act, that expression appears without qualification, it shall be taken as a reference to a registered person authorised by the board of the directors of the company to which the provision falls to be applied.
(3) Where the board of directors of a company revokes an authorisation of a person as a person entitled to bind the company (being an authorisation notified to the Registrar in the prescribed form), the person shall, notwithstanding that revocation, continue to be regarded for the purposes of this Act as a registered person unless and until the company notifies the Registrar in the prescribed form of that revocation.
(4) References in this section to a person’s entitlement to bind the company are references to his or her authority to exercise any power of the company and to authorise others to do so.
(5) In subsection (4) “power of the company” does not include—
(a) any power of management of the company exercisable by its board of directors (as distinct from any power of the board to enter into transactions with third parties), or
(b) a power of the company which this Act requires to be exercised otherwise than by its board of directors.
(6) For the avoidance of doubt, for the purposes of this section the provisions of a company’s constitution with regard to a person’s office or powers shall not, in themselves, be taken as an authorisation by the board of the directors of the company of the person as a person entitled to bind the company.
Section 40
Persons authorised to bind company
40. (1) For the purposes of any question whether a transaction fails to bind a company because of an alleged lack of authority on the part of the person who exercised (or purported to exercise) the company’s powers, the following, namely—
(a) the board of directors of the company; and
(b) any registered person,
shall each be deemed to have authority to exercise any power of the company and to authorise others to do so.
(2) Subsection (1) applies regardless of any limitations in the company’s constitution on the board’s authority or a registered person’s authority, but subject to subsections (5) and (8).
(3) Subsection (1) is not to be read as preventing the exercise of a company’s powers otherwise than by the board, a registered person or a person authorised by the board or by a registered person, where authority for that exercise exists.
(4) Subsection (1) does not affect—
(a) a director’s duties (including a director’s duty to observe any limitations in the company’s constitution on the board’s authority), or his or her liability in respect of any breach of those duties; or
(b) any duty arising on the part of any other person concerned in the transaction (including the registered person) or his or her liability in respect of any breach of that duty.
(5) Where a company is purportedly a party to a transaction—
(a) in connection with which the board of directors exceeded limitations in the company’s constitution on their authority; and
(b) to which a person referred to in subsection (6) is also a party,
subsection (1) does not apply in favour of the person so referred to.
(6) Each of the following is a person mentioned in subsection (5)(b):
(a) a director or shadow director of the company or of its holding company;
(b) a person connected with such a director;
(c) a registered person;
(d) a person connected with a registered person,
and in this subsection references to a person’s being connected with—
(i) a director or shadow director are to be read in accordance with section 220; or
(ii) a registered person are to be read in accordance with section 220 as that section is applied by subsection (7).
(7) For the purpose of subsection (6)(ii), section 220 applies as if—
(a) for each reference in subsections (1), (2), (3) and (8) to a director of a company there were substituted a reference to the registered person;
(b) for the first reference and the third reference in subsection (5) to a director of a company there were substituted a reference to the registered person;
(c) the references in subsection (5) to another director or directors included references to one or more other registered persons; and
(d) the reference in subsection (6)(b) to a director included a reference to a registered person.
(8) In subsection (1) “power of the company” does not include—
(a) with reference to any registered person, the power of management referred to in section 39(5)(a), and
(b) with reference to the board of directors or any registered person, the power referred to in section 39(5)(b).
(9) Without prejudice to subsection (1), in determining any question whether a person had ostensible authority to exercise any of a companyÁs powers in a given case, no reference may be made to the company’s constitution.
(10) In this section a reference—
(a) to limitations in a companyÁs constitution includes a reference to limitations deriving from—
(i) a resolution of the company or of any class of its members; or
(ii) any agreement between the members of the company or of any class of its members;
(b) to a transaction includes a reference to any act or omission.
(11) This section is in addition to, and not in substitution for, the Rule in Royal British Bank v. Turquand.
Section 41
Powers of attorney
41. (1) Notwithstanding anything in its constitution, a company may empower any person, either generally or in respect of any specified matters, as its attorney, to execute deeds or do any other matter on its behalf in any place whether inside or outside the State.
(2) A deed signed by such attorney on behalf of the company shall bind the company and have the same effect as if it were under its common seal.
CHAPTER 4
Contracts and other transactions
Section 42
Form of contracts
42. (1) Contracts on behalf of a company may be made as follows—
(a) a contract which, if made between natural persons, would be by law required to be in writing and to be under seal, may be made on behalf of the company in writing under the common seal of the company;
(b) a contract which, if made between natural persons, would be by law required to be in writing, signed by the parties to be charged therewith, may be made on behalf of the company in writing, signed by any person acting under its authority, express or implied;
(c) a contract which, if made between natural persons, would by law be valid although made by parol only, and not reduced into writing may be made by parol on behalf of the company by any person acting under its authority, express or implied.
(2) A contract made according to this section shall bind the company and its successors and all other parties to it.
(3) A contract made according to this section may be varied or discharged in the same manner in which it is authorised by this section to be made.
Section 43
The common seal
43. (1) A company shall have a common seal or seals that shall state the company’s name, engraved in legible characters.
(2) Save as otherwise provided by this Act or by the constitution of the company—
(a) a company’s seal shall be used only by the authority of its directors, or of a committee of its directors authorised by its directors in that behalf; and
(b) any instrument to which a company’s seal shall be affixed shall be—
(i) signed by a director of it or by some other person appointed for the purpose by its directors or by a foregoing committee of them; and
(ii) be countersigned by the secretary or by a second (if any) director of it or by some other person appointed for the purpose by its directors or by a foregoing committee of them.
(3) Save as otherwise provided by the constitution of the company, if there be a registered person in relation to a company, the company’s seal may be used by such person and any instrument to which the company’s seal shall be affixed when it is used by the registered person shall be signed by that person and countersigned—
(a) by the secretary or a director of the company; or
(b) by some other person appointed for the purpose by its directors or a committee of its directors authorised by its directors in that behalf.
Section 43A
F24[Execution of instruments during interim period
F25[43A. (1) Subsections (2) to (4) apply in relation to a company notwithstanding any provision of—
(a) section 43(2)(b) or (3), or
(b) the company’s constitution.
(2) As respects an instrument to be made or executed by a company, other than an instrument to which subsection (3) applies, such an instrument may consist of several documents in like form if—
(a) one such document is signed by a person referred to in section 43(2)(b)(i),
(b) one such document is signed by a person referred to in section 43(2)(b)(ii), and
(c) one such document has the company’s seal affixed to it.
(3) As respects an instrument to be made or executed by a registered person in exercise of the powers of a company, such an instrument may consist of several documents in like form if—
(a) one such document is signed by the registered person,
(b) one such document is signed by a person referred to in section 43(2)(b)(i),
(c) one such document is signed by a person referred to in section 43(2)(b)(ii), and
(d) one such document has the company’s seal affixed to it.
(4) An instrument consisting of several documents that comply with subsection (2) or (3) shall be valid and effective for all purposes as if the documents were, taken together, one document.]]
Annotations
Amendments:
F24
Inserted (21.08.2020) by Companies (Miscellaneous Provisions (Covid-19) Act 2020 (9/2020), s. 5, S.I. No. 320 of 2020. Note extension of interim period by statutory instrument made under s. 12A was NOT renewed in relation to this section by Companies Act 2014 (Section 12A(1)) (Covid-19) (No. 2) Order 2022 (S.I. No. 648 of 2022) from 31.12.2022.
F25
Substituted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 7, S.I. No. 639 of 2024.
Editorial Notes:
E58
The section heading is taken from the amending section in the absence of one included in the amendment.
Section 44
Power for company to have official seal for use abroad
44. (1) In this section—
“official seal”, in relation to a company, means the official seal referred to in subsection (2);
“place abroad” means any territory, district or place not situate in the State.
(2) A company may, if authorised by its constitution, have for use in any place abroad an official seal which shall resemble the common seal of the company with the addition on its face of the name of every place abroad where it is to be used.
(3) A deed or other document to which an official seal is duly affixed shall bind the company as if it had been sealed with the common seal of the company.
(4) A company having an official seal for use in any place abroad may, by writing under its common seal, authorise any person appointed for the purpose in that place (the “agent”) to affix the official seal to any deed or other document to which the company is party in that place.
(5) The authority of the agent shall, as between the company and any person dealing with the agent, continue during the period, if any, mentioned in the instrument conferring the authority, or, if no period is there mentioned, then until the notice of revocation or determination of the agent’s authority has been given to the person dealing with him or her.
(6) The person affixing an official seal shall, by writing under his or her hand, certify on the deed or other instrument to which the seal is affixed, the date on which and the place at which it is affixed.
Annotations
Modifications (not altering text):
C15
Subss. (3)-(6) applied with modifications by Hallmarking Act 1981 (18/1981), s. 4C(6) as inserted (30.09.2019) by Hallmarking (Amendment) Act 2019 (2/2019), s. 6, S.I. No. 439 of 2019.
Certain powers of the Company for purposes of sections 4A and 4B
4C. ...
(6) Subsections (3) to (6) of section 44 of the Companies Act 2014 shall apply with any necessary modifications to the Company as if it were a company authorised by its constitution to have for use in any place abroad an official seal.
...
Section 45
Pre-incorporation contracts
45. (1) Any contract or other transaction (including any application to any lawful authority) purporting to be entered into by a company prior to its formation, or by any person on behalf of the company prior to its formation, may be ratified by the company after its formation.
(2) Upon such contract or other transaction being so ratified, the company shall become bound by it and entitled to the benefit of it as if the company had been in existence at the date of such contract or other transaction and had been a party to it.
(3) Prior to such ratification (if any) by the company, the person or persons who purported to act in the name or on behalf of the company shall, in the absence of express agreement to the contrary, be personally bound by the contract or other transaction and entitled to the benefit of it.
Section 46
Bills of exchange and promissory notes
46. A bill of exchange or promissory note shall be deemed to have been made, accepted or endorsed on behalf of a company, if made, accepted or endorsed in the name of or by or on behalf or on account of, the company by a person acting under its authority.
Section 47
Liability for use of incorrect company name
47. (1) If an officer of a company or any person on its behalf does any of the following things, the officer or person shall be guilty of a category 4 offence.
(2) Those things are:
(a) uses or authorises the use of any seal purporting to be a seal of the company on which its name is not engraved in legible characters;
(b) issues or authorises the issue of any business letter of the company or any notice or other official publication of the company, or signs or authorises to be signed on behalf of the company any bill of exchange, promissory note, endorsement, cheque or order for money or goods, in which its name is not mentioned in the manner described in section 49;
(c) issues or authorises the issue of any invoice, receipt or letter of credit of the company in which its name is not mentioned in the manner described in section 49.
(3) In the circumstances of his or her doing a relevant thing mentioned in subsection (2) (b), the officer or other person shall be personally liable to the holder of the bill of exchange, promissory note, cheque or order for money or goods for the amount thereof unless—
(a) it is duly paid by the company; or
(b) it appears to the court that no injustice will be done by imposing liability for the amount on the company.
Section 48
Authentication by company of documents
48. A document or proceeding requiring authentication by a company may be signed by a director, secretary, registered person or other authorised officer of the company, and need not be under its common seal.
CHAPTER 5
Company name, registered office and service of documents
Section 49
Publication of name by company
49. (1) A company—
(a) shall display its name in a conspicuous position, in letters easily legible, outside every office or place in which its business is carried on and at its registered office; and
(b) shall have its name mentioned in legible characters in each of the following:
(i) all notices and other official publications of the company;
(ii) all bills of exchange, promissory notes, endorsements, cheques and orders for money or goods purporting to be signed by or on behalf of the company;
(iii) all invoices, receipts and letters of credit of the company.
(2) If a company contravenes subsection (1)(a) or (b), the company and any officer of it who is in default shall be guilty of a category 4 offence.
(3) The use of the abbreviation “ltd” instead of “limited” or “teo” instead of “teoranta” shall not be regarded as constituting a contravention of this section.
(4) This section is without prejudice to section 151.
Section 50
Registered office of company
50. (1) A company shall, at all times, have a registered office in the State to which all communications and notices may be addressed.
(2) Particulars of the situation of the company’s registered office shall be specified in the statement delivered pursuant to section 21(1)(a) prior to the incorporation of the company.
(3) Notice of any change in the situation of the registered office of a company shall be given in the prescribed form, within 14 days after the date of the change, to the Registrar who shall record that change.
(4) A company’s registered office may be constituted by a statement (contained in the statement or notice referred to in subsection (2) or (3)) to the effect that the office is care of a specified agent, being a company formed and registered under this Act, or an existing company, and which is approved for this purpose by the Registrar; where a registered office is constituted by those means, references in this Act to the situation of the company’s registered office shall be read accordingly.
(5) The notification to the Registrar by the agent approved for that purpose of any change in the situation of the agent’s registered office shall, if made in the form prescribed for the purpose of subsection (3) and within the period there mentioned, be regarded as constituting compliance by the company concerned with subsection (3).
(6) If default is made in complying with this section, the company concerned and any officer of it who is in default shall be guilty of a category 4 offence.
Annotations
Amendments:
F26
Substituted by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 8(a), (b), (c), (e), not commenced as of date of revision.
F27
Inserted by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 8(d), (f), not commenced as of date of revision.
Modifications (not altering text):
C16
Prospective affecting provision: subss. (3), (4), (5), (6) amended, subss. (5A), (7), (8) inserted by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 8(a)-(f), not commenced as of date of revision.
50. ...
(3) Notice of any change in the situation of the registered office of a company F26[shall, subject to section 50A, be given] in the prescribed form, within 14 days after the date of the change, to the Registrar who shall record that change.
(4) F26[Subject to subsection (5A), a company’s] registered office may be constituted by a statement (contained in the statement or notice referred to in subsection (2) or (3)) to the effect that the office is care of a F26[specified registered office agent], being a company formed and registered under this Act, or an existing company, and which is approved for this purpose by the F26[Registrar under subsection (7)]; where a registered office is constituted by those means, references in this Act to the situation of the company’s registered office shall be read accordingly.
(5) The notification to the Registrar by the F26[registered office agent] of any change in the situation of the F26[registered office agent’s] registered office shall, if made in the form prescribed for the purpose of subsection (3) and within the period there mentioned, be regarded as constituting compliance by the company concerned with subsection (3).
F27[(5A) A registered office agent may deliver a notice in the prescribed form to the Registrar stating that the registered office of the company is no longer care of the registered office agent, and on receipt of any such notification, the Registrar shall notify the directors and the secretary of the company (in this section referred to as a “relevant notice”) that—
(a) a notification has been received from the registered office agent stating that the registered office of the company is no longer care of the registered office agent, and
(b) the company’s registered office may no longer be constituted by the statement referred to in subsection (4) unless the company delivers to the Registrar, within 14 days after the date of the relevant notice, a declaration in writing by the registered office agent that the company’s registered office is care of that registered office agent.
(5B) A relevant notice shall be delivered by ordinary prepaid post to the usual residential address, as recorded in the office of the Registrar, of the addressee concerned.]
(6) If default is made in complying with F26[subsection (1) or (3)], the company concerned and any officer of it who is in default shall be guilty of a category 4 offence.
F27[(7) (a) The Registrar may, on application made to him or her by a company in the prescribed form, approve the company to act as a registered office agent for the purposes of this section, and a company so approved shall be known, and is referred to in this Act, as a “registered office agent”
(b) Where an application under paragraph (a) is made by a trust or company service provider, the Registrar shall not grant approval under that paragraph unless the company is the holder of a relevant authorisation.
(c) The Registrar shall withdraw an approval granted under paragraph (a) where the company ceases to be the holder of a relevant authorisation.
(8) (a) Subject to paragraph (b), a company that, immediately before the coming into operation of subsection (7), stands approved by the Registrar for the purposes of subsection (4) shall be deemed to be approved by the Registrar under subsection (7) to act as a registered office agent for the purposes of this section.
(b) Paragraph (a) shall not apply to a company that is a trust or company service provider unless it is the holder of a relevant authorisation.]
Section 50A
F28[Registrar may request evidence of situation of registered office
50A. Without prejudice to section 24(4), the Registrar may request a company to provide such evidence of the situation of the company’s registered office as the Registrar requires for the purposes of—
(a) satisfying himself or herself of the matters referred to in section 21(2), or
(b) recording a change in the situation of the registered office of the company in accordance with section 50(3).
and where the Registrar has made such a request, he or she shall not register the constitution of the company under section 21 or record the change under section 50(3), as the case may be, unless such evidence is so provided. ]
Annotations
Amendments:
F28
Inserted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 9, S.I. No. 639 of 2024.
Editorial Notes:
E59
The section heading is taken from the amending section in the absence of one included in the amendment.
Section 51
Service of documents
51. (1) A document may be served on a company—
(a) by leaving it at or sending it by post to the registered office of the company; or
(b) if the company has not given notice to the Registrar of the situation of its registered office, by delivering it to the Registrar.
(2) For the purposes of this section, any document left at or sent by post to the place for the time being recorded by the Registrar as the situation of the registered office of a company shall be deemed to have been left at or sent by post to the registered office of the company notwithstanding that the situation of its registered office may have changed.
(3) It shall be the duty of the Registrar to enter on the register a document that has, by the means referred to in subsection (1)(b), been served on a company.
Section 52
Security for costs
52. Where a company is plaintiff in any action or other legal proceeding, any judge having jurisdiction in the matter, may, if it appears by credible testimony that there is reason to believe that the company will be unable to pay the costs of the defendant if successful in his or her defence, require security to be given for those costs and may stay all proceedings until the security is given.
Section 53
Enforcement of orders and judgments against companies and their officers
53. (1) Any judgment or order against a company wilfully disobeyed may, by leave of the court, be enforced by—
(a) sequestration against the property of the company,
(b) attachment against the directors or other officers of the company, or
(c) sequestration against the property of such directors or other officers.
(2) An application may not be made, in the foregoing circumstances, for attachment against directors or other officers or for sequestration against their property unless the judgment or order of the court to which the application relates has contained a statement indicating the liability of such persons or of their property to attachment or sequestration, as the case may be, should the judgment or order be disobeyed by the company.
(3) In this section “attachment” and “sequestration” have the same meaning as they have in rules of court concerning the jurisdiction of the High Court and the Supreme Court.
CHAPTER 6
Conversion of existing private company to private company limited by shares to which Parts 1 to 15 apply
Section 54
Interpretation (Chapter 6)
54. (1) In this Chapter—
“mandatory provision” means a provision of any of Part 1, this Part or Parts 3 to 14 that is not an optional provision;
“optional provision” means a provision of any of Part 1, this Part or Parts 3 to 14 that—
(a) contains a statement to the effect, or is governed by provision elsewhere to the effect, that the provision applies save to the extent that the constitution provides otherwise or unless the constitution states otherwise; or
(b) is otherwise of such import;
“Table A” means Table A in the First Schedule to the Act of 1963.
(2) A reference in this Chapter to a designated activity company is a reference to a designated activity company limited by shares.
(3) A reference in this Chapter to Table A includes, where appropriate, a reference to any Table referred to in section 3(9)(b), (c) or (d) of the Act of 1963.
Section 55
Status of existing private companies at end of transition period: general principle
55. As provided for in section 61, on the expiry of the transition period, unless it has re-registered as a designated activity company or one of the other circumstances specified in that section prevent the following happening—
(a) an existing private company shall be deemed to have a constitution that comprises the provisions of its existing memorandum (other than the provisions excepted by subsection (1)(a) of that section) and of its existing articles and subject to subsection (3) of that section;
(b) the company’s constitution, as so constituted of those provisions, shall be deemed to satisfy the requirements of section 19 as to the form of a company’s constitution,
and the company shall be deemed to have become a private company limited by shares to which this Part and Parts 1 and 3 to 15 apply.
Section 56
Conversion of existing private companies to designated activity companies: duties and powers in that regard
56. (1) An existing private company may re-register as a designated activity company by passing an ordinary resolution, not later than 3 months before the expiry of the transition period, resolving that the company be so registered; if it so re-registers, pursuant to such a resolution, before the expiry of the transition period, Part 16 shall, as provided in section 63(9), apply to it.
(2) An existing private company shall re-register as a designated activity company before the expiry of the transition period if, not later than 3 months before the expiry of that period, a notice in writing requiring it to do so is served on it by a member or members holding shares in the company that confer, in aggregate, more than 25 per cent of the total voting rights in the company; on its so re-registering, in compliance with that notice, Part 16 shall, as provided in section 63(9), apply to it.
(3) Without prejudice to subsections (1) and (2) but subject to subsection (4), where anything is done by an existing private company, being a thing which (if the company were a private company limited by shares to which this Part and Parts 1 and 3 to 15 apply) would not be in compliance with section 68, then the company shall re-register as a designated activity company before the expiry of the transition period and upon its so doing Part 16 shall, as provided in section 63(9), apply to it.
(4) Instead of re-registering as a designated activity company as mentioned in subsection (3), an existing private company referred to in that subsection may, by passing a special resolution and otherwise complying with the requirements of Part 20, re-register as a type of company that is not a designated activity company before the expiry of the transition period.
(5) The reference in subsection (2) to a voting right in a company shall be read as a reference to a right exercisable for the time being to cast a vote at general meetings of members of the company, not being such a right that is exercisable only in special circumstances.
Section 57
Relief where company does not re-register as a designated activity company
57. (1) Where an existing private company does not, before the expiry of the transition period, re-register as a designated activity company under section 56 (whether it is obliged under that section to do so or not), the person or persons referred to in subsection (2) may apply to the court for an order directing that it shall re-register as such a company and the court shall, unless cause is shown to the contrary, make the order sought or make such other order as seems just.
(2) The persons mentioned in subsection (1) are—
(a) one or more members of the company who hold, or together hold, not less than 15 per cent in nominal value of the company’s issued share capital or any class thereof; or
(b) one or more creditors of the company who hold, or together hold, not less than 15 per cent of the company’s debentures entitling the holders to object to alterations of its objects.
Section 58
Applicable laws during transition period
58. (1) During the period beginning on the commencement of this Part and ending on the expiry of the transition period, Part 16 shall, subject to subsection (3) and without prejudice to subsection (7), apply to an existing private company as if it were a designated activity company, unless and until there is delivered to the Registrar, in accordance with this Chapter, a constitution in respect of it in the form provided under section 19.
(2) If there is so delivered to the Registrar such a constitution in respect of that company then, on and from such delivery, this Part and Parts 1 and 3 to 15 shall apply to that company.
(3) The provisions of the prior Companies Acts relating to the use of limited or teoranta (or their abbreviations) shall apply as respects the name of an existing private company referred to in subsection (1) during the period referred to in that subsection and not the provisions of section 969 and the other relevant provisions of Part 16.
(4) The reference in subsection (3) to provisions relating to the use of any words includes a reference to provisions conferring an exemption from the use of those words.
(5) An existing private company that has adopted, or is deemed to have adopted, in whole or in part, the regulations of Table A as its articles, shall, despite the repeal of the Act of 1963, continue to be governed by those regulations (or the parts of them concerned) after the repeal of that Act and, without prejudice to subsection (8), before the expiry of the transition period unless and until—
(a) there is delivered to the Registrar, in accordance with this Chapter, a constitution in respect of it in the form provided under section 19; or
(b) it re-registers as another type of company,
but, as regards the company continuing to be governed by the foregoing regulations—
(i) this is save to the extent that those regulations are inconsistent with a mandatory provision;
(ii) those regulations may be altered or added to under and in accordance with the conditions under which articles, whenever registered, are permitted by Part 16 to be altered or added to; and
(iii) references in those regulations to any provision of the prior Companies Acts shall be read as references to the corresponding provision of this Act.
(6) Subject to paragraphs (ii) and (iii) of that subsection, the regulations referred to in subsection (5) shall be interpreted according to the form in which they existed on the date of repeal of the Act of 1963.
(7) To take account of any interregnum between—
(a) the delivery (in accordance with this Chapter and in the form provided under section 19) of a constitution in respect of an existing private company to the Registrar for registration; and
(b) its registration by the Registrar,
it is declared that subsections (1) and (2) operate, and are to be read as operating, so as also to provide that Part 16 applies, subject to subsection (3), to that company as if it were a designated activity company during any such interregnum (and accordingly that the application of this Part, and Parts 1 and 3 to 15, to it is postponed until that registration is effected).
(8) Likewise, to take account of any similar interregnum in the case of subsection (5), it is declared that that subsection operates, and is to be read as operating, so as also to provide that the whole or part (as the case may be) of the regulations of Table A continue to govern the company concerned during any such interregnum.
(9) For the avoidance of doubt, the application of Part 16, in the circumstances under this section where that Part is stated to apply and notwithstanding that the course of action of delivering a constitution of the kind referred to in subsection (1) will not be adopted by such a company, extends to an existing private company falling within subsection (10) but—
(a) the application of Part 16 to such a company does not affect the application of the provisions of the statute referred to in subsection (10) (or any other relevant statute) to the company; and
(b) if, by virtue of the foregoing statute, the company was not required to include the word “limited” or “teoranta” in its name, that exemption is not affected by anything in this section or Part 16.
(10) The existing private company referred to in subsection (9) is one that has been incorporated under a former enactment relating to companies (within the meaning of section 5) pursuant to, or in compliance with a requirement of, any statute.
Section 59
Adoption of new constitution by members
59. (1) An existing private company—
(a) by special resolution passed in accordance with its existing memorandum and articles; and
(b) subject to compliance with the provisions of Part 16 as to the variation of rights and obligations of members,
may, after the commencement of this Part, adopt a new constitution in the form provided under section 19; where it does so and delivers, in the prescribed form, before the expiry of the transition period, the constitution to the Registrar for registration, it shall, on the constitution’s registration, become a private company limited by shares to which this Part and Parts 1 and 3 to 15 apply.
(2) The constitution need not contain any supplemental regulations, to the extent that the provisions of this Part and Parts 1 and 3 to 15 regulate the matters which would be governed by those regulations; for the avoidance of doubt, the requirements of sections 19 and 26(1) relating to a company’s name shall apply despite any exemption of the kind referred to in section 61(3) that had been enjoyed by the company under the prior Companies Acts.
(3) On registration of its constitution under this section, the Registrar shall issue to the company a certificate of incorporation in respect of it stating that the company is a private company limited by shares registered under this Part.
Section 60
Preparation, registration, etc. of new constitution by directors
60. (1) The directors of an existing private company shall do each of the things specified in subsection (2) before the expiry of the transition period, unless the company—
(a) has already adopted a constitution in accordance with section 59(1); or
(b) is required, under section 56(2) or (3), to re-register as a designated activity company; or
(c) is proceeding, in accordance with a resolution passed pursuant to section 56(1), to re-register as such a company or is proceeding, in accordance with section 56(4) and Part 20, to re-register as another type of company; or
(d) is required by an order made under section 57 to re-register as a designated activity company or proceedings under that section are pending in relation to it.
(2) The things referred to in subsection (1) are—
(a) prepare a constitution for the company in the form provided under section 19;
(b) deliver a copy of such constitution to each member; and
(c) deliver, in the prescribed form, the constitution to the Registrar for registration,
and, where the things in the foregoing paragraphs are done (including the delivery of the constitution to the Registrar for registration), the company shall, on the constitution’s registration, become a private company limited by shares to which this Part and Parts 1 and 3 to 15 apply, and the Registrar shall issue to it a certificate of incorporation in respect of it stating that it is a private company limited by shares registered under this Part.
(3) The provisions of that constitution of the company, to be prepared by the directors as mentioned in subsection (2)(a), shall consist solely of—
(a) the provisions of its existing memorandum, other than provisions that—
(i) contain its objects; or
(ii) provide for, or prohibit, the alteration of all or any of the provisions of its memorandum or articles;
and
(b) the provisions of its existing articles,
but, despite any exemption of the kind referred to in section 61(3) that had been enjoyed by the company under the prior Companies Acts, nothing in this subsection shall be read as overriding the requirements of sections 19 and 26(1) relating to a company’s name.
(4) If, by reason of the company not having registered articles, the regulations in Table A are deemed to be the articles of the company, the constitution prepared under subsection (2)(a) shall state that the articles of the company comprise those regulations.
(5) If the existing articles do not exclude or modify the regulations contained in the Table A, those regulations shall, so far as applicable, be the regulations of the existing private company in the same manner and to the same extent as if they were contained in the constitution prepared under subsection (2)(a).
(6) For the purposes of subsections (4) and (5) and without prejudice to their application otherwise by a provision of this Chapter, the regulations contained in Table A shall, despite the repeal of the Act of 1963, continue in force but, as regards the company continuing, by virtue of subsection (4) or (5), to be governed (in whole or in part) by the foregoing regulations—
(a) this is save to the extent that those regulations are inconsistent with a mandatory provision;
(b) those regulations may be altered or added to under and in accordance with the conditions under which the company’s constitution is permitted by section 32 to be altered or added to; and
(c) references in those regulations to any provision of the prior Companies Acts shall be read as references to the corresponding provision of this Act.
(7) Subject to paragraphs (b) and (c) of that subsection, the regulations referred to in subsection (6) shall be interpreted according to the form in which they existed on the date of repeal of the Act of 1963.
Section 61
Deemed constitution
61. (1) Where there has not been delivered to the Registrar a constitution (in the form provided under section 19) in respect of an existing private company for registration within the transition period then, subject to subsection (4), from the expiry of that period—
(a) the existing private company shall be deemed to have, in place of its existing memorandum and articles, a constitution that comprises—
(i) the provisions of its existing memorandum, other than provisions that—
(I) contain its objects; or
(II) provide for, or prohibit, the alteration of all or any of the provisions of its memorandum or articles;
and
(ii) the provisions of its existing articles;
and
(b) its constitution, as so constituted of those provisions, shall be deemed to satisfy the requirements of section 19 as to the form of a company’s constitution,
and the company shall be deemed to have become a private company limited by shares to which this Part and Parts 1 and 3 to 15 apply.
(2) In those circumstances the Registrar shall issue to the company a certificate of incorporation in respect of it stating that the company is a private company limited by shares registered under this Part.
(3) Notwithstanding—
(a) section 24, as originally enacted, of the Act of 1963; or
(b) section 24, inserted in the Act of 1963 by section 88(1) of the Company Law Enforcement Act 2001, in place of the first-mentioned section,
and the continuing effect, for certain other types of company, provided elsewhere by this Act of an exemption conferred by or under either such section, any such exemption (whatever its basis) enjoyed, immediately before the expiry of the transition period, by an existing private company to which subsection (1) applies shall cease on that expiry; accordingly subsection (1)(a) shall be read as requiring such a company’s name to end with “limited” or “teoranta”, as appropriate, and subsection (2) shall have effect subject to this subsection.
(4) Subsection (1) shall not apply if—
(a) the existing company has re-registered before the expiry of the transition period as a designated activity company in accordance with section 56(1) or as another type of company in accordance with section 56(4) and Part 20;
(b) the existing company is required under section 56(2) or (3) to re-register as such a company and has so re-registered; or
(c) its operation would be inconsistent with an order of the court made under section 57 or otherwise.
(5) If, by reason of section 58, an existing private company was, immediately before the expiry of the transition period or, if later, the end of the interregnum referred to in section 58(8), governed (in whole or in part) by the regulations contained in Table A, then for the purposes of this section and without prejudice to their application otherwise by a provision of this Chapter, those regulations shall, despite the repeal of the Act of 1963, continue in force and the existing articles of the company shall be deemed to comprise the whole of those regulations or, as the case may be, to include the parts concerned of those regulations, but—
(a) this is save to the extent that those regulations are inconsistent with a mandatory provision;
(b) those regulations may be altered or added to under and in accordance with the conditions under which the company’s constitution is permitted by section 32 to be altered or added to; and
(c) references in those regulations to any provision of the prior Companies Acts shall be read as references to the corresponding provision of this Act.
(6) Subject to paragraphs (b) and (c) of that subsection, the regulations referred to in subsection (5) shall be interpreted according to the form in which they existed on the date of repeal of the Act of 1963.
Section 62
Relief for members and creditors
62. (1) Without limiting the generality of section 212, if any member of a company considers that his or her rights or obligations have been prejudiced by—
(a) the exercise of any power under this Chapter;
(b) the non-exercise of any such power; or
(c) the exercise of any such power in a particular manner,
by the company or the directors of it, the member may apply to the court for an order under section 212.
(2) In any such application where it is proved that the directors of the company have failed to comply with section 60 then, unless the members of the company have adopted a new constitution in accordance with section 59(1), it shall be presumed, until the contrary is proved, that the directors have exercised their powers in a manner oppressive to the applicant or in disregard of his or her interests as a member.
(3) Where in relation to an existing private company a constitution in the form provided under section 19 comes into being, the person or persons referred to in subsection (5) may apply under this subsection to the court for relief if the constitution prejudices any interest of the person or persons (but only if the person or persons has or have a legal or equitable right to that interest).
(4) On the hearing of an application under subsection (3), the court may grant such relief to the applicant or applicants as the court thinks just.
(5) The persons mentioned in subsection (3) are one or more creditors of the company who hold, or together hold, not less than 15 per cent of the company’s debentures entitling the holders to object to alterations of its objects.
(6) The jurisdiction of the court under section 212 as provided for under subsection (1) and the jurisdiction of the court under subsection (3) shall each be exercised having regard to, and, where appropriate subject to, any exercise by the court of its jurisdiction under section 57 in relation to the company concerned.
(7) In this section a reference to a constitution in the form provided under section 19 coming into being is a reference to such a constitution coming into being by reason of—
(a) its being adopted and registered under section 59; or
(b) its being prepared by the directors and registered under section 60; or
(c) the operation of section 61.
Section 63
Procedure for re-registration as designated activity company under this Chapter
63. (1) This section contains the procedure for re-registration by an existing private company as a designated activity company under section 56(1), (2) or (3) or pursuant to an order of the court under section 57(1).
(2) Either—
(a) in the case of re-registration under section 56(1), the ordinary resolution referred to in that provision; or
(b) in the case of re-registration under subsection (2) or (3) of section 56 or pursuant to an order of the court under section 57(1), a resolution of the directors of the company passed for the purpose in consequence of that subsection’s operation or that order,
shall alter the company’s memorandum so that it states that the company is to be a designated activity company and shall, unless this Act provides that on re-registration the company shall continue to enjoy an exemption conferred by or under either of the sections referred to in section 61(3), alter that document and the articles so that there is substituted “designated activity company” or “cuideachta ghníomhaíochta ainmnithe” for “limited” or “teoranta”, as the case may be, in the company’s name.
(3) An application for the purpose of re-registration, in the prescribed form and signed by a director or secretary of the company, shall be delivered by the company to the Registrar together with the documents specified in subsection (4).
(4) Those documents are—
(a) a copy of the ordinary resolution or the resolution of the directors referred to in subsection (2)(a) or (b);
(b) a copy of the memorandum and articles of the company as altered by the resolution; and
(c) a statement in the prescribed form (in this section referred to as a “statement of compliance”) by a director or secretary of the company that the requirements of this Chapter as to re-registration as a designated activity company have been complied with by the company, including the passing of the resolution referred to in paragraph (a).
(5) The Registrar may accept the statement of compliance as sufficient evidence that the resolution referred to in subsection (4)(a) has been duly passed and the other conditions of this Chapter for re-registration as a designated activity company have been satisfied and that the company is entitled to be re-registered as that type of company.
(6) If, on an application under subsection (3) for re-registration of an existing private company as a designated activity company, the Registrar is satisfied that a company is entitled to be so re-registered, the Registrar shall—
(a) retain the application and the other documents delivered to him or her under this section; and
(b) issue to the company a certificate of incorporation in respect of it, being a certificate of incorporation that—
(i) is altered to meet the circumstances of the case; and
(ii) states that it is issued on re-registration of the company and the date on which it is issued.
(7) If the existing private company had not registered articles and, by reason of section 58, the regulations in Table A are, immediately before the making by the company of an application under subsection (3), deemed to be its articles, then each of the references in the preceding subsections of this section to articles shall be disregarded, but in such a case the application under subsection (3) shall be accompanied by a statement in the prescribed form that the articles of the company comprise those regulations.
(8) Upon the issue to a company of a certificate of incorporation on re-registration under subsection (6)—
(a) the company shall, by virtue of the issue of that certificate, become a designated activity company; and
(b) any alterations in the memorandum and articles set out in the resolution concerned shall take effect accordingly.
(9) A certificate of incorporation issued on re-registration to a company under subsection (6) shall be conclusive evidence—
(a) that the requirements of this Chapter as to re-registration and of matters precedent and incidental thereto have been complied with; and
(b) that the company is the type of company which is set out in the certificate,
and, accordingly, without prejudice to section 58, Part 16, on and from the issue of the certificate, shall apply to the company as a designated activity company.
(10) If, by reason of section 58, an existing private company was, immediately before the making by the company of an application under subsection (3), governed (in whole or in part) by the regulations contained in Table A, then for the purposes of this section and in addition to the other cases where their continuance in force for a particular purpose is provided for by this Chapter, those regulations shall, despite the repeal of the Act of 1963, continue in force and upon the issue of the aforementioned certificate of incorporation the articles of the designated activity company shall be deemed to comprise the whole of those regulations or, as the case may be, to include the parts concerned of those regulations, but—
(a) this is save to the extent that those regulations are inconsistent with a mandatory provision;
(b) those regulations may be altered or added to under and in accordance with the conditions under which the designated activity company’s articles are permitted by Part 16 to be altered or added to; and
(c) references in those regulations to any provision of the prior Companies Acts shall be read as references to the corresponding provision of this Act.
(11) Subject to paragraphs (b) and (c) of that subsection, the regulations referred to in subsection (10) shall be interpreted according to the form in which they existed on the date of repeal of the Act of 1963.
(12) The re-registration of an existing private company as a designated activity company pursuant to this Chapter shall not affect any rights or obligations of the company or render defective any legal proceedings by or against the company, and any legal proceedings which might have been continued or commenced against it in its former status may be continued or commenced against it in its new status.
(13) The procedures under this section may be followed, after consultation by the company with the relevant Minister, by an existing private company that has been incorporated under a former enactment relating to companies (within the meaning of section 5) pursuant to, or in compliance with a requirement of, any statute (in subsection (11) referred to as the “relevant statute”) and may be so followed notwithstanding that statute but—
(a) the provisions otherwise of that statute (and any other relevant statute) shall apply to the designated activity company that the foregoing company re-registers as under this section as they apply to the foregoing company before such re-registration; and
(b) if the foregoing company is a company to which section 1446 applies, the provision made by subsection (1) requiring the substitution of certain words in its name shall be taken to be omitted from that subsection.
(14) In subsection (13) “relevant Minister” means the Minister of the Government concerned in the administration of the relevant statute.
(15) For the avoidance of doubt, references in Part 6, and in particular section 349 (which exempts a company from having to annex financial statements to its first annual return), to the incorporation of a company are references to its original incorporation.
PART 3
SHARE CAPITAL, SHARES AND CERTAIN OTHER INSTRUMENTS
CHAPTER 1
Preliminary and interpretation
Section 64
Interpretation (Part 3)
64. (1) In this Part—
“capital conversion reserve fund”, in relation to a company, means the amount equivalent to the aggregate diminution in share capital consequential upon renominalisation of share capital under section 26 of the Economic and Monetary Union Act 1998;
“cash” includes funds in any currency or currencies;
“company capital”, in relation to a company, means—
(a) the aggregate value, expressed as a currency amount, of the consideration received by the company in respect of the allotment of shares of the company; and
(b) that part of the company’s undenominated capital constituted by the transfer of sums referred to in sections 106(4) and 108(3),
and subsection (2) supplements this definition;
“employees’ share scheme” means any scheme, for the time being in force, in accordance with which a company encourages or facilitates the holding of shares in, or debentures of, the company or its holding company by or for the benefit of employees or former employees of the company or of any subsidiary of the company including any person who is or was a director holding a salaried employment or office in the company or any subsidiary of the company;
“nominal value”, in relation to a share, means a monetary amount, expressed as an amount, multiple, fraction or percentage of any currency or currencies or combination thereof;
“parent public company” means a public limited company which has one or more private limited subsidiaries;
“private limited subsidiary” means a subsidiary that is a private company limited by shares but, for the purposes of this definition, a company shall not be regarded as a subsidiary if it is such only by virtue of section 7(2)(a)(ii) or (e);
“redeemable shares” includes shares which are liable at the option of the company or the shareholder to be redeemed;
“securities” means—
(a) shares in a company;
(b) debentures of a company, including debenture stock, bonds and any other debt instruments of a company whether constituting a charge on the assets of the company or not;
(c) those classes of securities which are negotiable on the capital market, such as:
(i) shares in bodies corporate and other securities equivalent to shares in bodies corporate, partnerships or other entities, and depositary receipts in respect of shares;
(ii) bonds or other forms of securitised debt, including depositary receipts in respect of such securities;
(iii) any other securities giving the right to acquire or sell any such transferable securities or giving rise to a cash settlement determined by reference to transferable securities, currencies, interest rates or yields, commodities or other indices or measures with the exception of instruments of payment;
“share capital”, in relation to a company, means the aggregate amount or value of the nominal value of shares of the company;
“undenominated capital”, in relation to a company, means the amount of the company capital from time to time which is in excess of the nominal value of its issued shares and shall be deemed to include any sum transferred as referred to in sections 106(4) and 108(3).
(2) There is included in the definition of “company capital” in subsection (1) any amounts standing, immediately before the commencement of this section, to the credit of—
(a) the company’s share premium account (within the meaning of the prior Companies Acts);
(b) its capital redemption reserve fund (within the meaning of those Acts); and
(c) its capital conversion reserve fund.
(3) For the purposes of this Part a share in a company shall be taken to have been paid up (as to its nominal value or any premium on it) in cash or allotted for cash if the consideration for the allotment or the payment up is—
(a) cash received by the company; or
(b) a cheque received by the company in good faith which the directors have no reason for suspecting will not be paid; or
(c) the release of a liability of the company for a liquidated sum; or
(d) an undertaking to pay cash to the company on demand or at an identified or identifiable future date which the directors have no reason for suspecting will not be complied with.
(4) In relation to the allotment or payment up of any shares in a company, references in this Act, other than in section 69(12)(c), to consideration other than cash and to the payment up of shares and premiums on shares otherwise than in cash include references to the payment of, or an undertaking to pay, cash to any person other than the company.
Section 65
Powers to convert shares into stock, etc.
65. (1) Each provision of this section applies save to the extent that the company’s constitution provides otherwise.
(2) A company may, by ordinary resolution—
(a) convert any of its paid up shares into stock; and
(b) reconvert any stock into paid up shares of any denomination.
(3) Subject to subsection (4), the holders of stock may transfer the stock, or any part of it, in the same manner and subject to the same regulations as, and subject to which the shares from which the stock arose might, previously to conversion, have been transferred, or as near thereto as circumstances admit.
(4) The directors of a company may from time to time fix the minimum amount of stock that is capable of being transferred but any such minimum so fixed shall not exceed the nominal amount of each share from which the stock arose.
(5) Subject to subsection (6), the holders of stock shall, according to the amount of stock held by them, have the same rights, privileges and advantages in relation to dividends, voting at meetings of the company and other matters as if they held the shares from which the stock arose.
(6) No such right, privilege or advantage (except participation in the dividends and profits of the company and in the assets on winding up) shall be conferred by an amount of stock which would not, if existing in shares, have conferred that right, privilege or advantage.
(7) Such of the regulations of a company as are applicable to paid up shares shall apply to stock of the company, and the words “share” and “shareholder” in those regulations shall be read as including “stock” and “stockholder”, respectively.
Section 66
Shares
66. (1) Shares in the capital of a company shall have a nominal value.
(2) A company may allot shares—
(a) of different nominal values;
(b) of different currencies;
(c) with different amounts payable on them; or
(d) with a combination of 2 or more of the foregoing characteristics.
(3) Without prejudice to any special rights previously conferred on the holders of any existing shares or class of shares, any share in a company may be issued with such preferred, deferred or other special rights or such restrictions, whether in regard to dividend, voting, return of capital or otherwise, as the company may from time to time by ordinary resolution determine.
(4) Save to the extent that its constitution provides otherwise, a company may allot shares that are redeemable (which shall be known, and are referred to in this Act, as “redeemable shares”).
(5) The shares or other interest of any member in a company shall be personal estate and shall not be of the nature of real estate.
(6) Except as required by law, no person shall be recognised by a company as holding any share upon any trust and the company shall not be bound by or be compelled in any way to recognise (even when having notice of it)—
(a) any equitable, contingent, future or partial interest in any share or any interest in any fractional part of a share; or
(b) save only as this Act or other law otherwise provides, any other rights in respect of any share, except an absolute right to the entirety of it in the registered holder.
(7) Subsection (6) shall not preclude the company from requiring a member or a transferee of shares to furnish the company with information as to the beneficial ownership of any share when such information is reasonably required by the company.
(8) In subsections (9) and (10) “bearer instrument” means an instrument, in relation to shares of a company, which entitles or purports to entitle the bearer thereof to transfer the shares that are specified in the instrument by delivery of the instrument.
(9) A company shall not have power to issue any bearer instrument.
(10) If a company purports to issue a bearer instrument, the shares that are specified in the instrument shall be deemed not to have been allotted or issued, and the amount subscribed therefor (and in the case of a non-cash asset subscribed therefor, the cash value of that asset) shall be due as a debt of the company to the purported subscriber thereof.
Section 67
Numbering of shares
67. (1) Subject to subsections (2) and (3), each share in a company shall be distinguished by its appropriate number.
(2) If at any time, all the issued shares in a company or all the issued shares in it of a particular class are fully paid up and rank pari passu for all purposes, none of those shares need thereafter have a distinguishing number, so long as it—
(a) remains fully paid up; and
(b) ranks pari passu for all purposes with all shares of the same class for the time being issued and fully paid up.
(3) Where new shares are issued by a company on the terms that, within a period not exceeding 12 months, they will rank pari passu for all purposes with all the existing shares, or with all the existing shares of a particular class in the company, neither the new shares nor the corresponding existing shares need have distinguishing numbers so long as all of them are fully paid up and rank pari passu.
(4) However, in the circumstances mentioned in subsection (3), the share certificates of the new shares shall, if not numbered, be appropriately worded or enfaced.
CHAPTER 2
Offers of securities to the public
Section 68
Limitation on offers of securities to the public
68. (1) Subject to the provisions of this section, a company shall not—
(a) make—
(i) any invitation to the public to subscribe for; or
(ii) any offer to the public of,
any shares, debentures or other securities of the company; or
(b) allot, or agree to allot, (whether for cash or otherwise) any shares in or debentures of the company with a view to all or any of those shares or debentures being offered for sale to the public or being the subject of an invitation to the public to subscribe for them.
(2) F29[Subject to subsection (8A), a company shall]—
(a) neither apply to have securities (or interests in them) admitted to trading or to be listed on; nor
(b) have securities (or interests in them) admitted to trading or listed on,
any market, whether a regulated market or not, in the State or elsewhere.
(3) Subsection (1) shall not apply to any of the following offers or allotments of debentures by a company (wherever they may be made)—
(a) an offer of debentures addressed solely to qualified investors;
(b) an offer of debentures addressed to fewer than 150 persons, other than qualified investors;
(c) an offer of debentures addressed to investors who acquire securities for a total consideration of at least €100,000 per investor, for each separate offer;
(d) an offer of debentures whose denomination per unit amounts to at least €100,000;
(e) an offer of debentures with a total consideration in the European Union less than €100,000, which shall be calculated over a period of 12 months;
(f) an allotment of debentures, or an agreement to make such an allotment, with a view to those debentures being the subject of any one or more of the offers referred to in paragraphs (a) to (e),
and the reference in this subsection to an offer of debentures includes an invitation to subscribe for them.
(4) Subsection (1) shall not apply to—
(a) an offer of shares by a company (of any amount or wherever it may be made), being an offer addressed to—
(i) qualified investors; or
(ii) 149 or fewer persons; or
(iii) both qualified investors and 149 or fewer other persons;
or
(b) an allotment of shares, or an agreement to make such an allotment, with a view to those shares being the subject of an offer referred to in paragraph (a),
and the reference in this subsection to an offer of shares includes an invitation to subscribe for them.
(5) Subsection (1) shall not apply to an offer by a company of those classes of instruments which are normally dealt in on the money market (such as treasury bills, certificates of deposit and commercial papers) having a maturity of less than 12 months, and the reference in this subsection to an offer of instruments includes an invitation to subscribe for them.
(6) A word or expression that is used in this section and is also used in the Prospectus (Directive 2003/71/EC) Regulations 2005 (S.I. No. 324 of 2005) shall have in this section the same meaning as it has in those Regulations.
(7) For the purposes of subsection (6), the Regulations referred to in that subsection shall have effect as if Regulation 8 were omitted therefrom.
(8) Nothing in this section shall affect the validity of any allotment or sale of securities or of any agreement to allot or sell securities.
F30[(8A) Subsection (2) shall not apply to securities (or interests in them) which were, prior to 1 June 2015, admitted to trading or listed on any market, whether a regulated market or not, in the State or elsewhere.]
(9) If a company contravenes subsection (1) or (2), the company and any officer of it who is in default shall be guilty of a category 2 offence.
Annotations
Amendments:
F29
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 6(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F30
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 6(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Editorial Notes:
E60
Prospectus (Directive 2003/71/EC) Regulations 2005 (S.I. No. 324 of 2005) revoked (21.07.2019) by European Union (Prospectus) Regulations 2019 (S.I. No. 380 of 2019), reg. 38, in effect as per reg. 1(2).
CHAPTER 3
Allotment of shares
Section 69
Allotment of shares
69. (1) No shares may be allotted by a company unless the allotment is authorised, either specifically or pursuant to a general authority, by ordinary resolution or by the constitution of the company.
(2) Without prejudice to subsection (1), in the case of a company whose constitution states an authorised share capital, no shares may be allotted by the company unless those shares are comprised in the authorised but unissued share capital of the company.
(3) An authorisation for the purposes of subsection (1) (whether conferred by an ordinary resolution or the constitution) may stipulate a period during which the allotment may occur; if it so stipulates, then allotments occurring outside that period are not authorised by it.
(4) Save to the extent that the constitution of the company provides otherwise—
(a) shares of a company may only be allotted by the directors of the company;
(b) the directors of a company may allot, grant options over or otherwise dispose of shares to such persons, on such terms and conditions and at such times as they may consider to be in the best interests of the company and its shareholders.
(5) Any director of a company who knowingly contravenes, or knowingly permits or authorises a contravention of, a preceding provision of this section shall be guilty of a category 3 offence.
(6) Subject to subsections (8) and (12) and section 70, a company proposing to allot any shares—
(a) shall not allot any of those shares, on any terms—
(i) to any non-member, unless it has made an offer to each person who holds relevant shares, of the class concerned, in the company to allot to him or her, on the same or more favourable terms, a proportion of those relevant shares which is, as nearly as practicable, equal to the proportion in nominal value held by him or her of the aggregate of the shares of that class; or
(ii) to any person who holds shares in the company, unless it has made an offer to each person who holds relevant shares, of the class concerned, in the company to allot to him or her, on the same terms, a proportion of those shares which is, as nearly as practicable, equal to the proportion in nominal value held by him or her of the aggregate of the relevant shares of that class;
and
(b) shall not allot any of those shares to any person unless the period during which any such offer may be accepted (not being less than 14 days) has expired or the company has received notice of the acceptance or refusal of every offer so made.
(7) In—
(a) subsection (6) “relevant shares”, in relation to a company, means shares in the company other than shares which as respects dividends and capital carry a right to participate only to a specified amount in a distribution;
(b) subsection (6)(a)(ii) “non-member” means a person who is not a holder of shares (as that expression is to be read by virtue of section 70(4)) in the company.
(8) Where a company’s constitution contains provisions which—
(a) require that the company, when proposing to allot shares of a particular class, shall not allot those shares unless it makes an offer of those shares to existing holders of shares of that class; and
(b) specify that the minimum period during which that offer may be accepted is not less than 14 days,
then subsection (6) shall not apply to any allotments made in compliance with such provisions.
(9) An offer which is required by—
(a) subsection (6); or
(b) the provisions of the company’s constitution referred to in subsection (8),
to be made to any person shall be made by serving it on him or her in the same manner in which notices are authorised to be given by sections 180, 181 and 218.
(10) Any such offer as is mentioned in subsection (6) or (8) shall not be withdrawn before the end of the period that the offer referred to in subsection (6) or, as the case may be, the provisions of the company’s constitution referred to in subsection (8) specify as the period within which it may be accepted.
(11) Nothing in subsection (6)(b), (9) or (10) shall invalidate provisions of the company’s constitution referred to in subsection (8) by reason that those provisions require or authorise an offer thereunder to be made in contravention of one or more of those subsections, but, to the extent that those provisions require or authorise such an offer to be so made, they shall be of no effect.
(12) Subsection (6) shall not apply—
(a) to the extent that—
(i) the constitution of the company,
(ii) a special resolution, or
(iii) the terms of issue of already allotted shares,
provides or provide (either generally or in respect of a particular allotment or class of allotments), to the extent so provided;
(b) to allotments of shares for a consideration wholly or partly paid for, otherwise than in cash;
(c) to allotments of shares to the subscriber or subscribers to the company’s constitution upon the company’s incorporation, being the shares taken by that subscriber or those subscribers before such incorporation;
(d) to allotments of shares to persons in pursuance of the terms of an employees’ share scheme established by the company;
(e) to allotments of bonus shares.
Section 70
Supplemental and additional provisions as regards allotments
70. (1) Shares which a company has offered to allot to a holder of shares in the company may be allotted to that holder or anyone in whose favour that holder has renounced his or her right to their allotment without contravening section 69(6)(b).
(2) Notwithstanding that any authorisation conferred by a resolution or the constitution such as is mentioned in section 69(1) has expired, the directors of a company may allot shares in pursuance of an offer or agreement previously made by the company, if that authorisation enabled the company to make an offer or agreement which would or might require shares to be allotted after the authorisation’s expiry.
(3) For the purposes of section 69 and this section—
(a) “allot” includes “agreement to allot” (other than an agreement made subject to the passing of an ordinary or special resolution);
(b) “shares” includes a right to subscribe for shares or to convert securities into shares,
and with the effect that—
(i) in the case of paragraph (a), if an agreement to allot shares is entered into in compliance with section 69, subsections (3), (4) and (6) of that section shall not apply to an allotment of shares pursuant to that agreement; and
(ii) in the case of paragraph (b), if a right to subscribe for shares, or to convert securities into shares, is granted in compliance with section 69, subsections (3), (4) and (6) of that section shall not apply to an allotment of shares pursuant to the exercise of that right.
(4) References in section 69 and this section (however expressed) to the holder of shares or the holder of shares of any class shall be read as including references to any person who held shares or, as the case may be, shares of that class on any day within the period of 28 days ending with the day immediately preceding the date of the offer which is specified by the directors of the company concerned as being the record date for the purposes of the offer.
(5) A resolution of a company to give, vary, revoke or renew an authority for the purposes of section 69(1) may, notwithstanding that it alters the company’s constitution, be an ordinary resolution.
(6) Where a company allots shares, the shares shall be taken, for the purposes of this Act, to be allotted when a person acquires the unconditional right to be included in the company’s register of members in respect of those shares.
(7) Where a company allots shares, it shall, within 30 days after the date of allotment, deliver particulars of the allotment in the prescribed form to the Registrar.
(8) If a company fails to comply with subsection (7), the company and any officer of it who is in default shall be guilty of a category 4 offence.
(9) Nothing in section 69 or this section shall affect the validity of any allotment of shares.
(10) Where there is a contravention of section 69(6), the company and every officer of the company who knowingly authorised or permitted the contravention, shall be jointly and severally liable to compensate any person to whom an offer should have been made under section 69(6) for any loss, damage, costs or expenses which that person has sustained or incurred by reason of the contravention.
(11) No proceedings to recover any such loss, damage, costs or expenses shall be commenced after the expiration of 2 years after the date of the delivery to the Registrar of the return of allotments in question or, where shares are agreed to be allotted, the agreement.
(12) If, before the commencement of section 69, the directors of a company have been granted authority, pursuant to section 20 of the Act of 1983, to allot relevant securities (within the meaning of that section 20) and that authority is in force immediately before that commencement—
(a) neither section 69 nor this section shall apply to the allotment, after that commencement, of relevant securities by the directors pursuant to that authority (which authority shall, in accordance with its terms, be taken to remain in force); and
(b) section 20 (other than subsections (4) and (9) thereof), and sections 23 and 24, of the Act of 1983 shall apply to that authority and any allotment of relevant securities on foot thereof,
but, on the expiry of that authority, section 69 and this section shall apply to any allotment thereafter of shares in the company (or the grant of any right to subscribe for shares in the company or to convert securities into such shares).
(13) For the purposes of subsection (12)—
(a) “Act of 1983” means the Companies (Amendment) Act 1983;
(b) the reference to the grant of an authority includes a reference to the conferral, by the articles of the company, of an authority; and
(c) the exclusion of the application of section 20(4) of the Act of 1983 by paragraph (b) of subsection (12) shall not be taken as preventing the renewal of the authority concerned under section 69 and this section, but if that authority is so renewed, section 69 and this section shall apply to any allotment, or the grant of any right, as mentioned in subsection (12), that occurs after that renewal of authority on foot thereof.
Section 71
Payment of shares
71. (1) Shares may be paid up in money or money’s worth (including goodwill and expertise).
(2) Shares of a company shall not be allotted at a discount to their nominal value.
(3) Where shares are allotted in contravention of subsection (2), the allottee shall be liable to pay the company concerned an amount equal to the amount of the discount and interest thereon at the appropriate rate.
(4) Subsections (1) and (2) shall not prevent a company from allotting bonus shares as provided by this Part.
(5) Subject to F31[subsection (5A) and] sections 72, 73 and 75, any value received in respect of the allotment of a share in excess of its nominal value shall be credited to and form part of undenominated capital of the company and, for that purpose, shall be transferred to an account which shall be known, and in this Act is referred to, as the “share premium account”.
F31[(5A) The share premium account may be applied by the company—
(a) in writing off—
(i) the preliminary expenses of the company, or
(ii) the expenses of, or the commission paid on, any issue of shares or debentures of the company,
or
(b) in providing for the premium payable on redemption of any redeemable preference shares issued by the company before 1 July 1991 or of any debentures of the company issued by a company before 1 June 2015.]
(6) Where any person becomes a holder of any shares in respect of which—
(a) there has been a contravention of this section; and
(b) by virtue of that contravention, another is liable to pay any amount under this section,
the first-mentioned person in this subsection also shall be liable to pay that amount (jointly and severally with any other person so liable) unless either that first-mentioned person is a purchaser for value and, at the time of the purchase, he or she did not have actual notice of the contravention or he or she derived title to the shares (directly or indirectly) from a person who became a holder of them after the contravention and was not so liable.
(7) Where a company contravenes any of the provisions of this section, the company and any officer of it who is in default shall be guilty of a category 3 offence.
Annotations
Amendments:
F31
Inserted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 14(a), (b), S.I. No. 335 of 2022.
Section 72
Restriction of section 71(5) in the case of mergers
72. (1) This section applies where the issuing company has secured at least a 90 per cent equity share capital holding in another company in pursuance of an arrangement providing for the allotment of equity share capital in the issuing company, on terms that the consideration for the shares allotted is to be provided—
(a) by the issue or transfer to the issuing company of equity shares in the other company; or
(b) by the cancellation of any such shares not held by the issuing company.
(2) If the equity shares in the issuing company, allotted in pursuance of the arrangement in consideration for the acquisition or cancellation of equity shares in the other company, are issued at a premium section 71(5) does not apply to the premiums on those shares.
(3) Where the arrangement also provides for the allotment of any shares in the issuing company on terms that the consideration for those shares is to be provided by the issue or transfer to the issuing company of non-equity shares in the other company or by the cancellation of any such shares in that company not held by the issuing company, the restriction on the application of section 71(5) provided by subsection (2) extends to any shares in the issuing company allotted on those terms in pursuance of the arrangement.
(4) Subject to subsection (5), the issuing company (“company X”) is to be regarded for purposes of this section as having secured at least a 90 per cent equity share capital holding in another company (“company Y”) in pursuance of such an arrangement as is mentioned in subsection (1) if in consequence of an acquisition or cancellation of equity shares in company Y (in pursuance of that arrangement)—
(a) company X holds equity shares in company Y (whether all or any of those shares were acquired in pursuance of that arrangement, or not); and
(b) the aggregate nominal value of the equity shares so held by company X equals 90 per cent or more of the nominal value of company Y’s equity share capital (excluding any shares in company Y held as treasury shares).
(5) Where the equity share capital of the other company is divided into different classes of shares, this section does not apply unless the requirements of subsection (1) are satisfied in relation to each of those classes of shares taken separately.
(6) Shares held by a company which is the issuing company’s holding company or subsidiary, or a subsidiary of the issuing company’s holding company, or by its or their nominees, are to be regarded for purposes of this section as held by the issuing company.
F32[(7) In relation to a company and its shares and capital, the following definitions apply for the purposes of this section:
"arrangement" means any agreement, scheme or arrangement (including an arrangement sanctioned under section 453 or 601);
"company", other than in relation to the issuing company, includes any body corporate;
"equity share capital" means the company’s issued share capital excluding any part of it which, neither as respects dividends nor as respects capital, carries any right to participate beyond a specified amount in a distribution;
"equity shares" means shares comprised in the company’s equity share capital;
"non-equity shares" means shares (of any class) not comprised in the company’s equity share capital.]
(8) This section does not apply if the issue of shares took place before the commencement of this section.
Annotations
Amendments:
F32
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 7, S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 73
Restriction of section 71(5) in the case of group reconstructions
73. (1) This section applies where the issuing company—
(a) is a wholly-owned subsidiary of a body corporate (the “holding company”); and
(b) allots shares to the holding company or to another wholly-owned subsidiary of the holding company in consideration for the transfer to the issuing company of assets other than cash, being assets of any body corporate (the “transferor”) which is a member of the group which comprises the holding company and all its wholly-owned subsidiaries.
(2) Where the shares in the issuing company, allotted in consideration for the transfer, are issued at a premium, the issuing company is not required by section 71(5) to credit to undenominated capital any amount in excess of the minimum premium value.
(3) In subsection (2) the “minimum premium value” means the amount (if any) by which the base value of the consideration for the shares allotted exceeds the aggregate nominal value of those shares.
(4) For the purposes of subsection (3), the base value of the consideration for the shares allotted is the amount by which the base value of the assets transferred exceeds the base value of any liabilities of the transferor assumed by the issuing company as part of the consideration for the assets transferred.
(5) For the purposes of subsection (4)—
(a) the base value of assets transferred is to be taken as—
(i) the cost of those assets to the transferor; or
(ii) the amount at which those assets are stated in the transferor’s accounting records immediately before the transfer, whichever is the less,
and
(b) the base value of the liabilities assumed is to be taken as the amount at which they are stated in the transferor’s accounting records immediately before the transfer.
(6) Section 72 shall not apply to a case falling within this section.
Section 74
Supplementary provisions in relation to sections 72 and 73
74. (1) An amount corresponding to one representing the premiums or part of the premiums on shares issued by an issuing company which, by virtue of section 72 or 73, is not included in the issuing company’s undenominated capital may also be disregarded in determining the amount at which any shares or other consideration provided for the shares issued is to be included in the company’s balance sheet.
(2) References in sections 72 and 73 (however expressed) to—
(a) the acquisition by a company of shares in a body corporate; and
(b) the issue or allotment of shares to, or the transfer of shares to or by, a company or other body corporate,
include (respectively) the acquisition of any of those shares by, and the issue or allotment or (as the case may be) the transfer of any of those shares to or by, nominees of that company or body corporate; and the reference in section 72 to the company transferring the shares is to be read accordingly.
(3) References in sections 72 and 73 to the transfer of shares in a body corporate include the transfer of a right to be included in the body corporate’s register of members in respect of those shares.
Section 75
Restriction of section 71(5) in the case of shares allotted in return for acquisition of issued shares of body corporate
75. (1) This section applies where—
(a) a company (the “issuer”) allots and issues shares to the shareholders of a body corporate in consideration for the acquisition by the issuer of all of the issued shares in the body corporate (the “acquired shares”) such that the body corporate becomes the wholly-owned subsidiary of the issuer;
(b) the consolidated assets and liabilities of the issuer immediately after those shares are issued are exactly, except for any permitted cash payments, the same as—
(i) if the body corporate was itself a holding company, the consolidated assets and liabilities of the body corporate immediately before those shares were issued, or
(ii) if the body corporate was not a holding company, the assets and liabilities of the body corporate immediately before those shares were issued;
(c) the absolute and relative interests that the shareholders in the body corporate have in the consolidated assets and liabilities of the issuer are in proportion to (or as nearly as may be in proportion to) the interest they had in—
(i) if the body corporate was itself a holding company, the consolidated assets and liabilities of the body corporate immediately before the shares were issued;
(ii) if the body corporate was not a holding company, the assets and liabilities of the body corporate immediately before the shares were issued;
and
(d) the issuer does not account for its investment in the body corporate at fair value in the issuer’s entity financial statements.
(2) Where the shares in the issuer allotted in consideration for the acquisition of the acquired shares are issued at a premium, the issuer—
(a) is not required by section 71(5) to credit to undenominated capital any amount in excess of the minimum premium value; and
(b) may disregard any such amount in determining the amount at which the shares or other consideration provided for the acquired shares is to be included in the issuer’s entity financial statements and, if such are prepared, group financial statements.
(3) Nothing in this section shall permit any share in the issuer to be issued at a discount to the share’s nominal value.
(4) In this section—
“base value of the consideration”, in relation to shares allotted by an issuer, means the carrying value of the assets and liabilities that would be shown in the balance sheet of the body corporate if that body corporate were to prepare entity financial statements in accordance with Part 6 immediately before the issue of the shares;
“consolidated assets and liabilities”, in relation to a holding company, means the assets and liabilities included in the group financial statements of the holding company prepared under section 293;
“minimum premium value”, in relation to shares allotted, means the amount (if any) by which the base value of the consideration for the acquisition of the acquired shares exceeds the aggregate nominal value of the shares issued;
“permitted cash payments” means—
(a) cash payments to shareholders of the body corporate in relation to fractional share entitlements in the body corporate that are not being replicated in the issuer, whether on account of different nominal values of shares or otherwise;
(b) such cash payments as may be ordered or permitted by the court, including by reason of the imposition on the issuer of disproportionate expense arising from compliance with requirements with respect to a prospectus or similar requirements.
Section 76
Treatment of premiums paid on shares issued before a certain date
76. (1) Where before 1 April 1964 a company had issued any shares at a premium, section 71(5) (and the exceptions to that provision in sections 72 to 75) shall apply as if the shares had been issued after that date, but this is subject to subsection (2).
(2) Where any part of a premium referred to in subsection (1) had been applied as mentioned in section 62(2) of the Act of 1963 such that it did not, on 1 April 1964, form an identifiable part of the company’s reserves (within the meaning of the Sixth Schedule to the Act of 1963) then that part shall continue to be disregarded in determining the sum to be included in the share premium account.
Section 77
Calls on shares
77. (1) Each provision of this section and of section 78 applies save to the extent that the company’s constitution provides otherwise.
(2) Subject to subsection (3), the directors of a company may from time to time make calls upon the members in respect of any moneys unpaid on their shares (whether on account of the nominal value of the shares or by way of premium).
(3) Subsection (2) does not apply to shares where the conditions of allotment of them provide for the payment of moneys in respect of them at fixed times.
(4) Each member shall (subject to receiving at least 30 days’ notice specifying the time or times and place of payment) pay to the company, at the time or times and place so specified, the amount called on the shares.
(5) A call may be revoked or postponed, as the directors of the company may determine.
(6) A call shall be deemed to have been made at the time when the resolution of the directors authorising the call was passed and may be required to be paid by instalments.
(7) The joint holders of a share shall be jointly and severally liable to pay all calls in respect of it.
(8) If a sum called in respect of a share is not paid before or on the day appointed for payment of it, the person from whom the sum is due shall pay interest on the sum from the day appointed for payment of it to the time of actual payment of such rate, not exceeding the appropriate rate, as the directors of the company may determine, but the directors may waive payment of such interest wholly or in part.
Section 78
Supplemental provisions in relation to calls
78. (1) Any sum which, by the terms of issue of a share, becomes payable on allotment or at any fixed date (whether on account of the nominal value of the share or by way of premium) shall, for the purposes of this Act, be deemed to be a call duly made and payable on the date on which, by the terms of issue, that sum becomes payable.
(2) In case of non payment of such a sum, all the relevant provisions of this Act as to payment of interest and expenses, forfeiture or otherwise, shall apply as if such sum had become payable by virtue of a call duly made and notified.
(3) The directors of a company may, on the issue of shares, differentiate between the holders of different classes as to the amount of calls to be paid and the times of payment.
(4) The directors of a company may, if they think fit—
(a) receive from any member willing to advance such moneys, all or any part of the moneys uncalled and unpaid upon any shares held by him or her; and
(b) pay, upon all or any of the money so advanced (until the amount concerned would, but for such advance, become payable) interest at such rate (not exceeding, unless the company in a general meeting otherwise directs, the appropriate rate) as may be agreed upon between the directors and the member paying such moneys in advance.
Section 79
Further provisions about calls (different times and amounts of calls)
79. Save to the extent that the company’s constitution provides otherwise, a company may—
(a) make arrangements on the issue of shares for a difference between the shareholders in the amounts and times of payment of calls on their shares;
(b) accept from any member the whole or a part of the amount remaining unpaid on any shares held by him or her, although no part of that amount has been called up;
(c) pay a dividend in proportion to the amount paid up on each share where a larger amount is paid up on some shares than on others; and
(d) by special resolution determine that any portion of its share capital which has not been already called up shall not be capable of being called up except in the event and for the purposes of the company being wound up; upon the company doing so, that portion of its share capital shall not be capable of being called up except in that event and for those purposes.
Section 80
Lien
80. (1) Each provision of this section applies save to the extent that the company’s constitution provides otherwise.
(2) A company shall have a first and paramount lien on every share (not being a fully paid share) for all moneys (whether immediately payable or not) called, or payable at a fixed time, in respect of that share.
(3) The directors of a company may at any time declare any share in the company to be wholly or in part exempt from subsection (2).
(4) A company’s lien on a share shall extend to all dividends payable on it.
(5) A company may sell, in such manner as the directors of the company think fit, any shares on which the company has a lien, but no sale shall be made unless—
(a) a sum in respect of which the lien exists is immediately payable; and
(b) the following conditions are satisfied.
(6) Those conditions are—
(a) a notice in writing, stating and demanding payment of such part of the amount in respect of which the lien exists as is immediately payable, has been given to the registered holder for the time being of the share, or the person entitled thereto by reason of his or her death or bankruptcy; and
(b) a period of 14 days after the date of giving of that notice has expired.
(7) The following provisions apply in relation to a sale referred to in subsection (5)—
(a) to give effect to any such sale, the directors may authorise some person to transfer the shares sold to the purchaser of them;
(b) the purchaser shall be registered as the holder of the shares comprised in any such transfer;
(c) the purchaser shall not be bound to see to the application of the purchase money, nor shall his or her title to the shares be affected by any irregularity or invalidity in the proceedings in reference to the sale; and
(d) the proceeds of the sale shall be received by the company and applied in payment of such part of the amount in respect of which the lien exists as is immediately payable, and the residue, if any, shall (subject to a like lien for sums not immediately payable as existed upon the shares before the sale) be paid to the person entitled to the shares at the date of the sale.
Section 81
Forfeiture of shares
81. (1) Each provision of this section applies save to the extent that the company’s constitution provides otherwise.
(2) If a member of a company fails to pay any call or instalment of a call on the day appointed for payment of it, the directors of the company may, at any time thereafter during such time as any part of the call or instalment remains unpaid, serve a notice on the member requiring payment of so much of the call or instalment as is unpaid, together with any interest which may have accrued.
(3) That notice shall—
(a) specify a further day (not earlier than the expiration of 14 days after the date of service of the notice) on or before which the payment required by the notice is to be made; and
(b) state that, if the amount concerned is not paid by the day so specified, the shares in respect of which the call was made will be liable to be forfeited.
(4) If the requirements of that notice are not complied with, any share in respect of which the notice has been served may at any time after the day so specified (but before, should it occur, the payment required by the notice has been made) be forfeited by a resolution of the directors of the company to that effect.
(5) A forfeited share may be sold or otherwise disposed of on such terms and in such manner as the directors of the company think fit, and at any time before a sale or disposition the forfeiture may be cancelled on such terms as the directors think fit.
(6) A person whose shares have been forfeited shall cease to be a member of the company in respect of the forfeited shares, but shall, notwithstanding, remain liable to pay to the company all moneys which, at the date of forfeiture, were payable by him or her to the company in respect of the shares, but his or her liability shall cease if and when the company shall have received payment in full of all such moneys in respect of the shares.
(7) A statement in writing that the maker of the statement is a director or the secretary of the company, and that a share in the company has been duly forfeited on a date stated in the statement, shall be conclusive evidence of the facts stated in it as against all persons claiming to be entitled to the share.
(8) The following provisions apply in relation to a sale or other disposition of a share referred to in subsection (5):
(a) the company may receive the consideration, if any, given for the share on the sale or other disposition of it and may execute a transfer of the share in favour of the person to whom the share is sold or otherwise disposed of (the “disponee”);
(b) upon such execution, the disponee shall be registered as the holder of the share;
(c) the disponee shall not be bound to see to the application of the purchase money, if any, nor shall his or her title to the share be affected by any irregularity or invalidity in the proceedings in reference to the forfeiture, sale or disposal of the share.
Section 82
Financial assistance for acquisition of shares
82. (1) In subsection (2) “acquisition”, in relation to shares, means acquisition by subscription, purchase, exchange or otherwise.
(2) It shall not be lawful for a company to give any financial assistance for the purpose of an acquisition made or to be made by any person of any shares in the company, or, where the company is a subsidiary, in its holding company.
(3) Subsection (2) is subject to subsections (5) and (6).
(4) The prohibition in subsection (2) applies whether the financial assistance is given—
(a) directly or indirectly; or
(b) by means of a loan or guarantee, the provision of security or otherwise.
(5) Subsection (2) does not prohibit the giving of financial assistance in relation to the acquisition of shares in a company or its holding company if—
(a) the company’s principal purpose in giving the assistance is not to give it for the purpose of any such acquisition; or
(b) the giving of the assistance for that purpose is only an incidental part of some larger purpose of the company,
and the assistance is given in good faith in the interests of the company.
(6) Without prejudice to the generality of subsection (5), subsection (2) does not prohibit—
(a) the giving of financial assistance in accordance with the Summary Approval Procedure;
(b) the payment by a company of a dividend or making by it of any distribution out of profits of the company available for distribution;
(c) the discharge by a company of a liability lawfully incurred by it;
(d) the—
(i) purchase under section 105; or
(ii) redemption under section 105 or 108,
of own shares or the giving of financial assistance, by means of a loan or guarantee, the provision of security or otherwise, for the purpose of such purchase or redemption;
(e) where the lending of money is part of the ordinary business of the company, the lending of money by a company in the ordinary course of its business;
(f) the provision by a company, in accordance with any scheme for the time being in force, of money for the purchase of, or subscription for, fully paid shares in the company or its holding company, being a purchase or subscription of or for shares to be held by or for the benefit of employees or former employees of the company or of any subsidiary of the company including any person who is or was a director holding a salaried employment or office in the company or any subsidiary of the company;
(g) the making by a company of loans to persons, other than directors, bona fide in the employment of the company or any subsidiary of the company with a view to enabling those persons to purchase or subscribe for fully paid shares in the company or its holding company to be held by themselves as beneficial owners thereof;
(h) the giving of financial assistance—
(i) by means of a loan or guarantee, the provision of security or otherwise to discharge the liability under, or effect that which is commonly known as a refinancing of, any arrangement or transaction that gave rise to the provision of financial assistance, being financial assistance referred to in subsection (2) that has already been given by the company in accordance with the Summary Approval Procedure or section 60(2) of the Act of 1963; or
(ii) by means of any subsequent loan or guarantee, provision of security or otherwise to effect a refinancing of—
(I) refinancing referred to subparagraph (i); or
(II) refinancing referred to in this subparagraph that has been previously effected (and this subparagraph shall be read as permitting the giving of financial assistance to effect such subsequent refinancing any number of times);
(i) the making or giving by a company of one or more representations, warranties or indemnities to a person (or any affiliate of, or person otherwise connected with, the first-mentioned person or a director of such an affiliate or connected person that is a body corporate) who has purchased or subscribed for, or proposes to purchase or subscribe for, shares in the company or its holding company for the purpose of or in connection with that purchase or subscription;
(j) the payment by a company of fees and expenses of—
(i) the advisers to any subscriber for, or purchaser of, shares in the company that are incurred in connection with his or her subscription for, or purchase of, such shares; or
(ii) the advisers to the company or its holding company that are incurred in connection with that subscription or purchase;
(k) the incurring of any expense by a company in order to facilitate the admission to, or the continuance of, a trading facility of securities of its holding company on a stock exchange or securities market, including the expenses associated with the preparation and filing of documents required under the laws of any jurisdiction in which the securities in question are admitted to trading or are afforded a trading facility;
(l) the incurring of any expenses by a company in order to ensure compliance by the company or its holding company with the Irish Takeover Panel Act 1997 or an instrument thereunder or any measures for the time being adopted by the State to implement Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids;
(m) the reimbursement by a private limited subsidiary of an offeree (within the meaning of the Irish Takeover Panel Act 1997) of expenses of an offeror (within the meaning of that Act) pursuant to an agreement approved by, or on terms approved by, the Irish Takeover Panel;
(n) in connection with an allotment of shares by a parent public company, the payment by a private limited subsidiary of that company of commissions, not exceeding 10 per cent of the money received in respect of such allotment, F33[…] and the payment by that subsidiary of professional fees;
(o) to the extent that provision of this kind is not authorised by paragraph (f) or (g), the provision of financial assistance by a holding company or a subsidiary of it in connection with the holding company or subsidiary purchasing or subscribing for shares in the holding company on behalf of—
(i) the present or former employees of the holding company or any subsidiary of it;
(ii) an employees’ share scheme; or
(iii) an employee share ownership trust referred to in section 519 of the Taxes Consolidation Act 1997.
(7) Subject to subsection (8), a private limited subsidiary shall not provide financial assistance in accordance with the Summary Approval Procedure for the purpose of the acquisition of shares in its parent public company.
(8) The Minister may, by regulations, specify circumstances in which a private limited subsidiary, in cases falling within subsection (7), may avail itself of the Summary Approval Procedure.
(9) Any transaction in contravention of this section shall be voidable at the instance of the company against any person (whether a party to the transaction or not) who had notice of the facts which constitute such contravention.
(10) Nothing in this section shall affect the operation of sections 84 to 87.
(11) If a company contravenes this section, the company and any officer of it who is in default shall be guilty of a category 2 offence.
Annotations
Amendments:
F33
Deleted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 15, S.I. No. 335 of 2022.
Modifications (not altering text):
C17
Application of section restricted (25.12.2015) by Harbours Act 2015 (61/2015), s. 9(4), commenced on enactment.
Future disposal or issue of shares
9. ...
(4) Section 82 of the Companies Act 2014 shall not apply to—
(a) any representation made or warranty or indemnity given by a transferred company or any subsidiary of a transferred company in connection with the sale or transfer by the local authority chief executive concerned, or the issue by a transferred company of any shares in the transferred company, or
(b) any financial obligations undertaken by a transferred company or any subsidiary of a transferred company in connection with the sale or transfer by the local authority chief executive concerned of any shares in the transferred company or the issue by a transferred company of any shares in the transferred company,
for the purposes of an agreement entered into by that local authority chief executive under subsection (3).
CHAPTER 4
Variation in capital
Section 83
Variation of company capital
83. (1) Save to the extent that its constitution otherwise provides, a company may, by ordinary resolution, do any one or more of the following, from time to time—
(a) consolidate and divide all or any of its shares into shares of a larger nominal value than its existing shares;
(b) subdivide its shares, or any of them, into shares of a smaller nominal value, so however, that in the subdivision the proportion between the amount paid and the amount, if any, unpaid on each reduced share shall be the same as it was in the case of the share from which the reduced share is derived;
(c) increase the nominal value of any of its shares by the addition to them of any undenominated capital;
(d) reduce the nominal value of any of its shares by the deduction from them of any part of that value, subject to the crediting of the amount of the deduction to undenominated capital, other than the share premium account;
(e) convert any undenominated capital into shares for allotment as bonus shares to holders of existing shares;
(f) in the case of a company whose constitution states an authorised share capital (in addition to its power to do any of the foregoing things)—
(i) increase its share capital by new shares of such amount as it thinks expedient; or
(ii) cancel shares of its share capital which, at the date of the passing of the resolution, have not been taken or agreed to be taken by any person, and diminish the amount of its share capital by the amount of the shares so cancelled.
(2) A cancellation of share capital under subsection (1)(f)(ii) shall be deemed not to be a reduction of company capital within the meaning of this Act.
(3) Save to the extent that its constitution otherwise provides, a company may, by special resolution, and subject to the provisions of this Act governing the variation of rights attached to classes of shares and the amendment of a company’s constitution, convert any of its shares into redeemable shares.
(4) Such a conversion shall not have effect with respect to any shares, the holder of which notifies the company, before the date of conversion, of his or her unwillingness to have his or her shares converted but, subject to that and the other provisions of this section, the conversion shall have effect according to its terms.
(5) Subsection (4) shall not, where a shareholder objects to a conversion, prejudice any right he or she may have under this Act or otherwise to invoke the jurisdiction of the court to set aside the conversion or otherwise provide relief in respect of it.
(6) A company shall deliver particulars, in the prescribed form, of any resolution referred to in subsection (1) to the Registrar within 30 days after the date of its being passed by the company.
(7) If a company contravenes subsection (6), the company and any officer of it who is in default shall be guilty of a category 3 offence.
Annotations
Editorial Notes:
E61
Power pursuant to subs. (6) exercised (1.06.2015) by Companies Act 2014 (Forms) (No. 2) Regulations 2015 (S.I. No. 212 of 2015), in effect as per reg. 1(2).
Section 84
Reduction in company capital
84. (1) Save to the extent that its constitution otherwise provides, a company may, subject to the provisions of this section and sections 85 to 87, reduce its company capital in any way it thinks expedient and, without prejudice to the generality of the foregoing, may thereby—
(a) extinguish or reduce the liability on any of its shares in respect of share capital not paid up;
(b) either with or without extinguishing or reducing liability on any of its shares, cancel any paid up company capital which is lost or unrepresented by available assets; or
(c) either with or without extinguishing or reducing liability on any of its shares, pay off any paid up company capital which is in excess of the wants of the company.
(2) A reduction of company capital under this section shall be effected either by the company—
(a) employing the Summary Approval Procedure; or
(b) passing a special resolution that is confirmed by the court.
(3) Where the reduction has been approved by the Summary Approval Procedure, the reduction shall take effect—
(a) if no date is specified in that behalf in the special resolution referred to in section 202(1)(a)(i), on the expiry of 12 months after the date of the passing of the special resolution; or
(b) if such a date is so specified, on that date.
(4) A company shall not purport to reduce its company capital otherwise than as provided for by this section.
(5) Any transaction in contravention of this section shall be voidable at the instance of the company against any person (whether a party to the transaction or not) who had actual notice of the facts which constitute such contravention.
(6) If a company contravenes this section, the company and any officer of it who is in default shall be guilty of a category 3 offence.
Section 85
Application to court for confirming order, objections by creditors and settlement of list of such creditors
85. (1) Where a company has passed a special resolution under section 84(2)(b) for reducing its company capital it may apply to the court for an order confirming the resolution.
F34[(2) If a company proposes to apply to the court for an order confirming the resolution, it shall cause notice of its intention to make such an application—
(a) to be advertised once at least in one daily newspaper circulating in the district where the registered office or principal place of business of the company is situated, and
(b) to be notified by electronic means to all creditors of the company who are resident, or have their principal place of business, outside the State,
and that advertisement and that notification shall indicate a means by which there will be notified by the company to any inquirer the date on which that hearing will take place (or any change in the date of such) and the company shall, accordingly, notify to any inquirer, by those means, the first-mentioned date on request being made by the inquirer therefor (and shall make satisfactory arrangements with the inquirer for the notification, by these means or such other means as may be agreed between them, to the inquirer of a change in that date).]
(3) In determining any preliminary application for directions as to the hearing of an application under this section, the court shall have regard to compliance by the company with the requirements of subsection (2).
(4) Where the proposed reduction of the company’s company capital involves either diminution of liability in respect of unpaid company capital, or the payment to any shareholder of any paid up company capital, and in any other case if the court so directs, the following provisions shall have effect (but subject to subsection (5))—
(a) every creditor of the company who—
(i) at the date fixed by the court, is entitled to a debt or claim that, if that date were the commencement of the winding up of the company, would be admissible in proof against the company; and
(ii) can credibly demonstrate that the proposed reduction in company capital would be likely to put the satisfaction of that debt or claim at risk, and that no adequate safeguards have been obtained from the company,
is entitled to object to the reduction,
(b) the court shall settle a list of creditors entitled to object, and for that purpose may publish notices fixing a day or days within which creditors are to claim to be entered on the list or are to be excluded from the right of objecting to the reduction of company capital, and
(c) where a creditor entered on the list whose debt or claim is not discharged or has not terminated does not consent to the confirmation, the court may, if it thinks fit, dispense with the consent of that creditor, on the company securing payment of his or her debt or claim by appropriating, as the court may direct, the following amount—
(i) if the company admits the full amount of the debt or claim, or, though not admitting it, is willing to provide for it, then the full amount of the debt or claim;
(ii) if the company does not admit and is not willing to provide for the full amount of the debt or claim, or, if the amount is contingent or not ascertained, then an amount fixed by the court after the like inquiry and adjudication as if the company were being wound up by the court.
(5) Where a proposed reduction of company capital involves either the diminution of any liability in respect of unpaid company capital or the payment to any shareholder of any paid up company capital, the court may, if, having regard to any special circumstances of the case, it thinks proper so to do, direct that subsection (4) shall not apply as regards any class or any classes of creditors.
(6) If satisfied that the following requirement is satisfied, the court may make an order confirming the resolution on such terms and conditions as it thinks fit.
(7) That requirement is that, in relation to every creditor of the company who, under this section is entitled to object to the confirmation, either—
(a) the creditor’s consent to the confirmation has been obtained, or
(b) the creditor’s debt or claim has been discharged or has terminated, or has been secured.
(8) Where the court makes an order confirming the resolution, it may make an order requiring the company to publish, as the court directs, the reasons for reduction of its company capital or such other information in regard thereto as the court may think expedient, with a view to giving proper information to the public, and if the court thinks fit, the causes which led to that reduction.
(9) References in this section to a debt or claim having terminated are references to the debt or claim ceasing to be enforceable or to its otherwise determining.
Annotations
Amendments:
F34
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 8, S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 86
Registration of order and minute of reduction
86. (1) On the doing of both of the following—
(a) the production to the Registrar of an order of the court under section 85 confirming the resolution of the company with respect to reduction of its company capital; and
(b) the delivery to the Registrar of a copy of the order and of a minute approved by the court showing, with respect to the company capital of the company as altered by the order—
(i) the amount of the share capital;
(ii) the number of shares into which it is to be divided and the amount of each share; and
(iii) the amount, if any, at the date of the registration deemed to be paid up on each share,
the Registrar shall register the order and minute.
(2) On the registration of the order and minute and not before, the resolution for reducing company capital as confirmed by the order so registered shall take effect.
(3) Notice of the registration of the order and minute shall be published in such manner as the court may direct.
(4) The Registrar shall issue a certificate with respect to the registration of the order and minute, and that certificate shall be conclusive evidence that all the requirements of this Act relating to reduction of company capital have been complied with, and that the share capital of the company is such as is stated in the minute.
(5) The minute, when registered, shall be deemed to be substituted for the corresponding part of the constitution of the company and shall be valid and capable of amendment as if it had been originally contained in it.
(6) The substitution of any such minute for part of the constitution of the company shall be deemed to be an amendment of the constitution within the meaning of section 37(2).
Section 87
Liability of members in respect of reduced calls
87. (1) In this section—
“confirmation” means confirmation by the court under section 85 of a resolution for reduction of company capital;
“minute” means the minute referred to in section 86(1)(b).
(2) Subject to subsection (3), in the case of a reduction of company capital where future calls have been reduced, a member of the company, past or present, shall not be liable in respect of any share to any call or contribution exceeding in amount the difference, if any, between the amount of the share, as fixed by the minute and the amount paid, or the reduced amount, if any, which is to be deemed to have been paid, on the share, as the case may be.
(3) If any creditor entitled, in respect of any debt or claim, to object to the confirmation, is, by reason of his or her not being aware of the proceedings for the confirmation or of their nature and effect with respect to his or her debt or claim, not entered on the list of creditors, and, after the reduction, the company is unable, within the meaning of the provisions of this Act relating to winding up by the court, to pay the amount of his or her debt or claim, then—
(a) every person who was a member of the company at the date of the delivery for registration of the order in respect of the confirmation and the minute, shall be liable to contribute for the payment of that debt or claim an amount not exceeding the amount which he or she would have been liable to contribute if the company had commenced to be wound up on the day before that date; and
(b) if the company is wound up, the court, on the application of any such creditor and proof of his or her not being aware as mentioned in this subsection may, if it thinks fit, settle accordingly a list of persons so liable to contribute, and make and enforce calls and orders on the contributories settled on the list, as if they were ordinary contributories in a winding up.
(4) Nothing in this section shall affect the rights of the contributories among themselves.
(5) If any officer of the company—
(a) intentionally conceals the name of any creditor entitled to object to the confirmation; or
(b) intentionally misrepresents the nature or amount of the debt or claim of any creditor,
he or she shall be guilty of a category 2 offence.
Section 88
Variation of rights attached to special classes of shares
88. (1) This section shall have effect with respect to the variation of the rights attached to any class of shares in a company whose share capital is divided into shares of different classes, whether or not the company is being wound up.
(2) Where the rights are attached to a class of shares in the company otherwise than by the constitution, and the constitution does not contain provisions with respect to the variation of the rights, those rights may be varied if, but only if—
(a) the holders of 75 per cent, in nominal value, of the issued shares of that class, consent in writing to the variation; or
(b) a special resolution, passed at a separate general meeting of the holders of that class, sanctions the variation,
and any requirement (however it is imposed) in relation to the variation of those rights is complied with, to the extent that it is not comprised in the requirements in paragraphs (a) and (b).
(3) Where—
(a) the rights are attached to a class of shares in the company by the constitution or otherwise;
(b) the constitution contains provision for the variation of those rights; and
(c) the variation of those rights is connected with the giving, variation, revocation or renewal of an authority for the purposes of section 69(1) or with a reduction of the company’s company capital by either of the means referred to in section 84,
those rights shall not be varied unless—
(i) the requirement in subsection (2)(a) or (b) is satisfied; and
(ii) any requirement of the constitution in relation to the variation of rights of that class is complied with to the extent that it is not comprised in the requirement in subsection (2)(a) or (b).
(4) Where the rights are attached to a class of shares in the company by the constitution or otherwise and—
(a) where they are so attached by the constitution, it contains provision with respect to their variation which had been included in the constitution at the time of the company’s original incorporation; or
(b) where they are so attached otherwise, the constitution contains such provision (whenever first so included),
and in either case the variation is not connected as mentioned in subsection (3)(c), those rights may only be varied in accordance with that provision of the constitution.
(5) Where the rights are attached to a class of shares in the company by the constitution and it does not contain provisions with respect to the variation of the rights, those rights may be varied if all the members of the company agree to the variation.
(6) Where a resolution referred to in any of the preceding subsections is to be proposed at a meeting of members holding a particular class of shares—
(a) the necessary quorum at any such meeting, other than an adjourned meeting, shall be 2 persons holding or representing by proxy at least one-third in nominal value of the issued shares of the class in question and at an adjourned meeting one person holding shares of the class in question or his or her proxy;
(b) any holder of shares of the class in question present in person or by proxy may demand a poll.
(7) Any amendment of a provision contained in the constitution of a company for the variation of the rights attached to a class of shares or the insertion of any such provision into the company’s constitution shall itself be treated as a variation of those rights.
(8) References to the variation of the rights attached to a class of shares in—
(a) this section; and
(b) except where the context otherwise requires, in any provision for the variation of the rights attached to a class of shares contained in the company’s constitution,
shall include references to their abrogation.
(9) Nothing in subsections (2) to (5) shall be read as derogating from the powers of the court under sections 212, 451 and 455.
(10) Save where the company’s constitution provides otherwise, the rights conferred upon the holders of the shares of any class issued by a company with preferred or other rights shall not, unless otherwise expressly provided by the terms of issue of the shares of that class, be deemed to be varied by the creation or issue of further shares ranking pari passu therewith.
Section 89
Rights of holders of special classes of shares
89. (1) If in the case of a company, the share capital of which is divided into different classes of shares, the rights attached to any such class of shares are at any time varied pursuant to section 88, one or more members who hold, or together hold, not less than 10 per cent of the issued shares of that class, being members 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.
(2) Where any such application is made, the variation shall not have effect unless and until it is confirmed by the court.
(3) An application under this section shall be made within 28 days (or such longer period as the court, on application made to it by any member before the expiry of the first mentioned 28 days, may allow) after the date on which the consent was given or the resolution was passed, as the case may be, and may be made on behalf of the members entitled to make the application by such one or more of their number as they may appoint in writing for the purpose.
(4) On any such application the court, after hearing the applicant and any other persons who apply to the court to be heard and appear to the court to be interested in the application, may, if it is satisfied having regard to all the circumstances of the case that the variation would unfairly prejudice the shareholders of the class represented by the applicant, disallow the variation and shall, if not so satisfied, confirm the variation.
(5) The decision of the court on any such application shall be final but an appeal shall lie to the Supreme Court from the determination of the court on a question of law.
(6) The company shall, within 21 days after the date on which an order is made by the court on any such application, deliver a certified copy of the order to the Registrar.
(7) If a company contravenes subsection (6), the company and any officer of it who is in default shall be guilty of a category 4 offence.
(8) In this section “variation” includes abrogation, and “varied” shall be read accordingly.
Section 90
Registration of particulars of special rights
90. (1) Where a company allots shares with rights which are not stated in its constitution or in any resolution or agreement to which section 198 applies, the company shall, unless the shares are in all respects uniform with shares previously allotted, deliver to the Registrar, within 30 days after the date of allotting the shares, a statement in the prescribed form containing particulars of those rights.
(2) Shares allotted with such rights shall not be treated for the purposes of subsection (1) as different from shares previously allotted by reason only of the fact that the former do not carry the same rights to dividends as the latter during the 12 months after the date of the former’s allotment.
(3) Where the rights attached to any shares of a company are varied otherwise than by an amendment of the company’s constitution or by resolution or agreement to which section 198 applies, the company shall within 30 days after the date on which the variation is made, deliver to the Registrar a statement in the prescribed form containing particulars of the variation.
(4) Where a company (otherwise than by any such amendment, resolution or agreement as is mentioned in subsection (3)) assigns a name or other designation, or a new name or other designation, to any class of its shares it shall, within 30 days after the date of doing so, deliver to the Registrar a notice in the prescribed form giving particulars thereof.
(5) If a company contravenes this section, the company and any officer of it who is in default shall be guilty of a category 4 offence.
Section 91
Variation of company capital on reorganisation
91. (1) Subject to subsection (3), a company (the “relevant company”) may for any purpose F35[…] transfer or dispose of—
(a) one or more assets;
(b) an undertaking or part of an undertaking; or
(c) a combination of assets and liabilities,
to a body corporate, on the terms that the consideration (or part of the consideration) therefor is as follows.
(2) That consideration (or part of consideration) is one comprising shares or other securities of that body corporate paid (by the allotment of them) to the members of the relevant company or of its holding company rather than to the relevant company.
(3) Subsection (2) applies whether or not the terms of the transfer or disposal referred to in subsection (1) also involve the payment of cash to the members of the relevant company or of its holding company or the relevant company.
F36[(4) A transaction to which subsection (1) applies shall not be undertaken unless—
(a) it is approved by the relevant company by employing the Summary Approval Procedure,
(b) it is approved by special resolution passed by the relevant company that is confirmed by the court under section 85 as if that resolution were providing for a reduction of the company’s company capital (and the provisions of sections 84 to 87 shall apply accordingly with the necessary modifications), or
(c) the relevant company has distributable reserves at least equivalent to the value (as stated in, or ascertainable from, the accounting records of the relevant company immediately before the transfer or disposal concerned) of the transferred or disposed assets and deducts an amount, equivalent to the value of the transferred or disposed assets, from those reserves.]
(5) Where such a transaction F37[referred to in subsection (4)(a) or (b)] is so approved or confirmed by order of the court under section 85, there shall be deducted from such of the relevant company’s reserves and company capital as the relevant company shall, by ordinary resolution, resolve an amount equivalent to the value (as stated in, or ascertainable from, the accounting records of the company immediately before the transfer or disposal) of the transferred or disposed asset or assets, undertaking or part of an undertaking mentioned in subsection (1).
(6) Any transaction in contravention of this section shall be voidable at the instance of the relevant company against any person (whether a party to the transaction or not) who had notice of the facts which constitute such contravention.
Annotations
Amendments:
F35
Deleted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 16(a), S.I. No. 335 of 2022.
F36
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 16(b), S.I. No. 335 of 2022.
F37
Inserted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 16(c), S.I. No. 335 of 2022.
Section 92
Notice to Registrar of certain alterations of share capital
92. (1) If a company has—
(a) consolidated and divided its share capital into shares of larger amount than its existing shares; or
(b) converted any shares into stock; or
(c) reconverted stock into shares; or
(d) subdivided its shares or any of them; or
(e) redeemed any redeemable shares; or
(f) redeemed any preference shares; or
(g) cancelled any shares, otherwise than in connection with a reduction of company capital referred to in section 84,
it shall, within 30 days after the date of so doing, give notice thereof to the Registrar specifying, as the case may be, the shares consolidated, divided, converted, subdivided, redeemed or cancelled, or the stock reconverted.
(2) If a company contravenes this section, the company and any officer of it who is in default shall be guilty of a category 3 offence.
Section 93
Notice of increase of share capital
93. (1) This section applies to a company whose constitution states an authorised share capital.
(2) If a company, whether its shares have or have not been converted into stock, has increased its share capital above the registered capital, it shall, within 30 days after the date on which it passes the resolution increasing its share capital, give to the Registrar notice of the increase and the Registrar shall record the increase.
(3) That notice shall include such particulars as may be prescribed with respect to the classes of shares affected, and the conditions subject to which the new shares have been or are to be issued.
(4) If a company contravenes this section, the company and any officer of it who is in default shall be guilty of a category 3 offence.
F38[(5) F39[…]]
Annotations
Amendments:
F38
Inserted (15.07.2015) by European Union (Bank Recovery and Resolution) Regulations 2015 (S.I. No. 289 of 2015), reg. 189(2), in effect as per reg. 1(2).
F39
Deleted (29.03.2019) by European Union (Bank Recovery And Resolution) Regulations 2019 (S.I. No. 127 of 2019), reg. 4(a).
CHAPTER 5
Transfer of shares
Section 94
Transfer of shares and debentures
94. (1) Subject to any restrictions in the company’s constitution and this section, a member may transfer all or any of his or her shares in the company by instrument in writing in any usual or common form or any other form which the directors of the company may approve.
(2) The instrument of transfer of any share shall be executed by or on behalf of the transferor, save that if the share concerned (or one or more of the shares concerned) is not fully paid, the instrument shall be executed by or on behalf of the transferor and the transferee.
(3) The transferor shall be deemed to remain the holder of the share until the name of the transferee is entered in the register in respect thereof.
(4) A company shall not register a transfer of shares in or debentures of the company unless a proper instrument of transfer has been delivered to the company.
(5) Nothing in subsection (4) shall prejudice any power of the company to register as shareholder or debenture holder, any person to whom the right to any shares in, or debentures of the company, has been transmitted by operation of law.
(6) A transfer of the share or other interest of a deceased member of a company made by his or her personal representative shall, although the personal representative is not himself or herself a member of the company, be as valid as if the personal representative had been such a member at the time of the execution of the instrument of transfer.
(7) On application of the transferor of any share or interest in a company, the company shall enter in its register of members, the name of the transferee in the same manner and subject to the same conditions as if the application for the entry were made by the transferee.
(8) Save to the extent that a company’s constitution regulates the execution of instruments by any particular company or other body corporate, this section is without prejudice to the Stock Transfer Act 1963.
Annotations
Modifications (not altering text):
C18
Application of subs. (4) restricted (29.01.2020) by Migration of Participating Securities Act 2019 (50/2019), ss. 4(2), 11(3)(a), S.I. No. 26 of 2020.
Migration of securities by participating issuers
4. (1) A participating issuer may consent to a migration, in accordance with this Act, of those of the participating securities in the issuer that are shares (referred to subsequently in this Act as “relevant participating securities”), subject to—
(a) a special resolution, as specified in subsection (1) of section 5 and which satisfies subsection (2) of that section, having been passed by the participating issuer, and
(b) each of the following—
(i) the conditions specified in section 5 (5) in relation to that resolution and the condition specified in section 6 (4),
(ii) section 6 (1), and
(iii) section 198 of the Act of 2014 (as applied by section 9), having been satisfied or complied with by the participating issuer.
(2) Subsection (1) shall have effect notwithstanding section 94(4) of the Act of 2014 (as applied by Part 17 or any other Part of that Act) or anything in the participating issuer’s constitution.
...
Migration of relevant participating securities
11. (1) Subsection (2) shall apply if each of the following—
(a) a statement referred to in subsection (1) of section 10, and
(b) a copy of such a statement as is referred to in subsection (3) of that section,
has, in accordance with subsections (1) and (2) or, as the case may be, subsection (3) of that section, been furnished to the Registrar of Companies or the Listing Authority, as appropriate, by a participating issuer.
(2) Where this subsection applies, the migration of the relevant participating securities in the participating issuer shall, by virtue of this subsection, take effect on and from the live date.
(3) Without prejudice to the generality of section 3 (2)—
(a) notwithstanding section 94(4) of the Act of 2014, section 2 (1) of the Stock Transfer Act 1963 or any other enactment, with respect to the migration referred to in subsection (2), a written instrument of transfer shall not be necessary to transfer title to—
(i) the relevant participating securities to the nominated central securities depository (or, as the case may be, to the body nominated, as referred to in section 3 (2)(a), by the nominated central securities depository with respect to its operations as a central securities depository) from any holder of the rights or interests in the securities referred to in section 3 (3)(b), or
(ii) any of the relevant participating securities from the settlement system operated by the nominated central securities depository (or, as the case may be, from the foregoing body nominated by that depository) to any holder of the rights or interests in the securities referred to in section 3 (3)(b),
...
Section 95
Restrictions on transfer
95. (1) Save where the constitution of the company provides otherwise—
(a) the directors of a company may in their absolute discretion and without assigning any reason for doing so, decline to register the transfer of any share;
(b) the directors’ power to decline to register a transfer of shares (other than on account of a matter specified in subsection (2)) shall cease to be exercisable on the expiry of 2 months after the date of delivery to the company of the instrument of transfer of the share.
(2) The directors of a company may decline to register any instrument of transfer unless—
(a) a fee of €10.00 or such lesser sum as the directors may from time to time require, is paid to the company in respect of it;
(b) the instrument of transfer is accompanied by the certificate of the shares to which it relates and such other evidence as the directors may reasonably require to show the right of the transferor to make the transfer; and
(c) the instrument of transfer is in respect of one class of share only.
(3) If the directors refuse to register a transfer they shall, within 2 months after the date on which the transfer was lodged with the company, send to the transferee notice of the refusal.
(4) The registration of transfers of shares in a company may be suspended at such times and for such periods, not exceeding in the whole 30 days in each year, as the directors of the company may from time to time determine.
Section 96
Transmission of shares
96. (1) Subsections (2) to (11) apply save to the extent that the company’s constitution provides otherwise.
(2) In the case of the death of a member, the survivor or survivors where the deceased was a joint holder, and the personal representatives of the deceased where he or she was a sole holder, shall be the only persons recognised by the company as having any title to his or her interest in the shares.
(3) Nothing in subsection (2) shall release the estate of a deceased joint holder from any liability in respect of any share which had been jointly held by him or her with other persons.
(4) Any person becoming entitled to a share in consequence of the death or bankruptcy of a member may, upon such evidence being produced as may from time to time properly be required by the directors of the company and subject to subsection (5), elect either—
(a) to be registered himself or herself as holder of the share; or
(b) to have some person nominated by him or her (being a person who consents to being so registered) registered as the transferee thereof.
(5) The directors of the company shall, in either of those cases, have the same right to decline or suspend registration as they would have had in the case of a transfer of the share by that member before his or her death or bankruptcy, as the case may be.
(6) If the person becoming entitled as mentioned in subsection (4)—
(a) elects to be registered himself or herself, the person shall furnish to the company a notice in writing signed by him or her stating that he or she so elects; or
(b) elects to have another person registered, the person shall testify his or her election by executing to that other person a transfer of the share.
(7) All the limitations, restrictions and provisions of this Chapter relating to the right to transfer and the registration of a transfer of a share shall be applicable to a notice or transfer referred to in subsection (6) as if the death or bankruptcy of the member concerned had not occurred and the notice or transfer were a transfer signed by that member.
(8) Subject to subsections (9) and (10), a person becoming entitled to a share by reason of the death or bankruptcy of the holder shall be entitled to the same dividends and other advantages to which he or she would be entitled if he or she were the registered holder of the share.
(9) Such a person shall not, before being registered as a member in respect of the share, be entitled in respect of it to exercise any right conferred by membership in relation to meetings of the company.
(10) The directors of the company may at any time serve a notice on any such person requiring the person to make the election provided for by subsection (4) and, if the person does not make that election (and proceed to do, consequent on that election, whichever of the things mentioned in subsection (6) is appropriate) within 90 days after the date of service of the notice, the directors may thereupon withhold payment of all dividends, bonuses or other moneys payable in respect of the share until the requirements of the notice have been complied with.
(11) The company may charge a fee not exceeding €10.00 on the registration of every probate, letters of administration, certificate of death, power of attorney, notice as to stock or other instrument or order.
(12) The production to a company of any document which is by law sufficient evidence of probate of the will or letters of administration of the estate of a deceased person having been granted to some person shall be accepted by the company, notwithstanding anything in its constitution, as sufficient evidence of the grant.
Section 97
Transmission of shares in special circumstances (including cases of mergers)
97. (1) The Minister may prescribe procedures whereby the registration of shares in a company may be validly effected in the following cases:
(a) cases of a death of the sole member of a single-member company where that member had been the only director of the company;
(b) other cases of difficulty in effecting such registration.
(2) Without prejudice to this matter being provided for by the exercise of the Minister’s powers under subsection (1) (and subject, in that eventuality, to any regulations made in pursuance thereof), nothing in section 96 prejudices the adoption of alternative procedures to those specified in that section with respect to the registering of a transfer of shares in a company held by another company that are transmitted by operation of law in consequence of a merger between those companies.
(3) Save to the extent that the constitution of the second-mentioned company in subsection (2) provides otherwise and subject—
(a) as mentioned in subsection (2); and
(b) in every case (that is to say, irrespective of what that constitution or those regulations provide), to any order made by the court in respect of the matter concerned under Part 9,
those alternative procedures shall be such as the directors of that second-mentioned company determine.
Section 98
Certification of shares
98. (1) The certification by a company of any instrument of transfer of shares in, or debentures of, the company shall be taken as a representation by the company to any person acting on the faith of the certification that there have been produced to the company such documents as on the face of them show a prima facie title to the shares or debentures in the transferor named in the instrument of transfer, but not as a representation that the transferor has any title to the shares or debentures.
(2) Where any person acts on the faith of a false certification by a company made negligently, the company shall be under the same liability to him or her as if the certification had been made fraudulently.
(3) For the purposes of this section—
(a) an instrument of transfer shall be deemed to be certificated if it bears the words “certificate lodged” or words to the like effect;
(b) the certification of an instrument of transfer shall be deemed to be made by a company if—
(i) the person issuing the instrument is a person authorised to issue certificated instruments of transfer on the company’s behalf; and
(ii) the certification is signed by a person authorised to certificate transfers on the company’s behalf or by any officer or employee either of the company or of a body corporate so authorised;
(c) a certification shall be deemed to be signed by any person if—
(i) it purports to be authenticated by his or her signature or initials (whether handwritten or not); and
(ii) it is not shown that the signature or initials was or were placed there neither by himself or herself nor by any person authorised to use the signature or initials for the purpose of certificating transfers on the company’s behalf.
Section 99
Share certificates
99. (1) A certificate under the common seal of the company specifying any shares held by any member shall be prima facie evidence of the title of the member to the shares.
(2) A company shall, within 2 months after the date—
(a) of allotment of any of its shares or debentures; or
(b) on which a transfer of any such shares or debentures is lodged with the company,
complete and have ready for delivery the certificates of all shares and debentures allotted or, as the case may be, transferred, unless the conditions of issue of the shares or debentures otherwise provide.
(3) In subsection (2) “transfer” means a transfer that is (where appropriate) duly stamped and is otherwise valid and does not include such a transfer as the company is, for any reason, entitled to refuse to register and does not register.
(4) If any company on which a notice has been served requiring the company to make good any default in complying with the provisions of subsection (2), fails to make good the default within 10 days after the date of service of the notice, the person entitled to have the certificates or the debentures delivered to him or her may apply to the court for, and the court on such an application may grant, the following order.
(5) That order is one directing the company and any officer of the company specified in the order to make good the default within such time as may be specified in the order, and any such order may provide that all costs of and incidental to the application shall be borne by the company or by any officer of it responsible for the default.
(6) If a share certificate is defaced, lost or destroyed, it may be renewed on payment of €10.00 or such lesser sum and on such terms (if any) as to evidence and indemnity and the payment of out-of-pocket expenses of the company of investigating evidence as the directors of the company think fit.
(7) If a member of a company so requests, the member shall be entitled to receive from the company one or more certificates for one or more shares held by the member upon payment, in respect of each certificate, of €10.00 or such lesser sum as the directors of the company think fit.
(8) In respect of a share or shares in a company held jointly by several persons—
(a) the company shall not be bound to issue more than one certificate; and
(b) delivery by the company of a certificate for a share to one of several joint holders shall be sufficient delivery to all such holders.
(9) If a company contravenes subsection (2), the company and any officer of it who is in default shall be guilty of a category 4 offence.
Annotations
Modifications (not altering text):
C19
Application of subs. (2) restricted (29.01.2020) by Migration of Participating Securities Act 2019 (50/2019), s. 11(3)(b), (4), S.I. No. 26 of 2020.
Migration of relevant participating securities
11. (1) Subsection (2) shall apply if each of the following—
(a) a statement referred to in subsection (1) of section 10, and
(b) a copy of such a statement as is referred to in subsection (3) of that section,
has, in accordance with subsections (1) and (2) or, as the case may be, subsection (3) of that section, been furnished to the Registrar of Companies or the Listing Authority, as appropriate, by a participating issuer.
(2) Where this subsection applies, the migration of the relevant participating securities in the participating issuer shall, by virtue of this subsection, take effect on and from the live date.
(3) Without prejudice to the generality of section 3 (2)— ...
(b) notwithstanding section 99(2) of the Act of 2014, the participating issuer is not required to issue share certificates to the nominated central securities depository (or, as the case may be, to the foregoing body nominated by that depository) on the migration taking effect under subsection (2) on the live date and title of the nominated central securities depository (or, as the case may be, of the foregoing body nominated by that depository) to the relevant participating securities shall be evidenced by the recording of the name and address of that depository or body, as appropriate, in the register of members of the participating issuer, and subsection (4) supplements this paragraph.
(4) Paragraph (b) of subsection (3) operates to disapply section 99(2) of the Act of 2014, with respect to the matters referred to in that paragraph, both on the live date concerned and at all times thereafter.
...
Section 100
Rectification of dealings in shares
100. (1) If—
(a) a company has created, allotted, acquired or cancelled any of its shares; and
(b) there is reason to apprehend that such shares were invalidly created, allotted, acquired or cancelled,
the court may, on the application of any of the following persons, declare that such creation, allotment, acquisition or cancellation shall be valid for all purposes if the court is satisfied that it would be just and equitable to do so.
(2) The persons who may make such an application are—
(a) the company;
(b) any holder or former holder of such shares;
(c) any member or former member or creditor of the company;
(d) the liquidator of the company.
(3) Where such a declaration is made, the shares shall from the creation, allotment, acquisition or cancellation thereof, as the case may be, be deemed to have been validly created, allotted, acquired or cancelled.
(4) The grant of relief by the court under this section shall, if the court so directs, not have the effect of relieving the company or its officers of any liability incurred under this Act.
(5) In this section “acquired”, in relation to shares, means acquired by redemption, purchase, surrender, forfeiture or other means.
Section 101
Personation of shareholder: offence
101. If any person falsely and deceitfully personates any owner of any share or interest in a company and thereby—
(a) obtains or endeavours to obtain any such share or interest;
(b) receives or endeavours to receive any money due to any such owner; or
(c) votes at any meeting as if the person were the true and lawful owner,
he or she shall be guilty of a category 2 offence.
F40[CHAPTER 5A
Dematerialisation of applicable securities]
Annotations
Amendments:
F40
Inserted (4.07.2023) by European Union (Dematerialised Securities) Regulations 2023 (S.I. No. 353 of 2023), reg. 3.
Section 101A
F41[Interpretation and application
101A. (1) In this Chapter –
"applicable securities" means transferable securities as defined in point (44) of Article 4(1) of Directive 2014/65/EU (or interests in them) that were, prior to 1 June 2015 –
(a) issued by a relevant issuer, and
(b) admitted to trading or listed on any market, whether a regulated market or not, in the State or elsewhere;
"central securities depository" has the same meaning as it has in section 1087A;
"certificate" means any certificate, or other document of, or evidencing, title to applicable securities, other than any register of securities;
"CSD Regulation" has the same meaning as it has in section 1087A;
"nominee" means, in respect of a central securities depository, any body as may from time to time be nominated by or on behalf of that central securities depository to hold applicable securities represented in that central securities depository’s securities settlement system;
"relevant issuer" means a company that has issued applicable securities.
(2) This Chapter shall apply from 1 January 2025 to any applicable securities issued on or before 1 June 2015.]
Annotations
Amendments:
F41
Inserted (4.07.2023) by European Union (Dematerialised Securities) Regulations 2023 (S.I. No. 353 of 2023), reg. 3.
Section 101B
F42[Abolition of certificates in respect of applicable securities
101B. A relevant issuer is not required to issue certificates in respect of applicable securities under this Act or any other enactment, and any certificates in issue in respect of applicable securities shall have no legal effect for the purpose of evidence of ownership of those securities or otherwise.]
Annotations
Amendments:
F42
Inserted (4.07.2023) by European Union (Dematerialised Securities) Regulations 2023 (S.I. No. 353 of 2023), reg. 3.
Section 101C
F43[Transfer of applicable securities of company
101C. Notwithstanding section 94, section 2 (1) of the Stock Transfer Act 1963 or any other enactment, a written instrument of transfer shall not be necessary to transfer the title to applicable securities that are transferred–
(a) from a central securities depository or its nominee to any holder of the rights or interests in those securities,
(b) from one central securities depository or its nominee to another central securities depository or its nominee, or
(c) to a central securities depository or its nominee from any holder of the rights or interests in those securities.]
Annotations
Amendments:
F43
Inserted (4.07.2023) by European Union (Dematerialised Securities) Regulations 2023 (S.I. No. 353 of 2023), reg. 3.
Section 101D
F44[Disapplication of certain provisions to applicable securities
101D. Section 99(2), (3), (4), (5) and (9) shall not apply to applicable securities.]
Annotations
Amendments:
F44
Inserted (4.07.2023) by European Union (Dematerialised Securities) Regulations 2023 (S.I. No. 353 of 2023), reg. 3.
Section 101E
F45[Disapplication of requirement for certificate in respect of applicable securities
101E. Any provision contained in –
(a) a company’s constitution,
(b) any resolution of a company, a company’s directors or the holders of applicable securities of a company, or
(c) the terms of issue of any applicable securities,
(however worded and whether express or implied), requiring a certificate in respect of applicable securities of the company shall not apply.]
Annotations
Amendments:
F45
Inserted (4.07.2023) by European Union (Dematerialised Securities) Regulations 2023 (S.I. No. 353 of 2023), reg. 3.
Section 101F
F46[Representation of applicable securities
101F. Nothing in this Chapter shall affect or restrict a company arranging for applicable securities to be represented in book-entry form as immobilisation or dematerialisation by a central securities depository or its nominee.]
Annotations
Amendments:
F46
Inserted (4.07.2023) by European Union (Dematerialised Securities) Regulations 2023 (S.I. No. 353 of 2023), reg. 3.
CHAPTER 6
Acquisition of own shares
Section 102
Company acquiring its own shares, etc. — permissible circumstances and prohihibitions
102. (1) Subject to the provisions of this Chapter, a company may acquire its own fully paid shares—
(a) by transfer or surrender to the company otherwise than for valuable consideration;
(b) by cancellation pursuant to a reduction of company capital by either of the means referred to in section 84;
(c) pursuant to an order of the court under section 212;
(d) where those shares are redeemable shares, by redemption or purchase under section 105;
(e) by purchase under section 105;
(f) where those shares are preference shares referred to in section 108, by redemption under that section; F47[…]
(g) pursuant to a merger or division under Chapter 3 or 4 F48[of Part 9; or]
F49[(h) pursuant to a conversion, merger or division under the European Union (Cross-Border Conversions, Mergers and Divisions) Regulations 2023 (S.I. No. 233 of 2023).]
(2) Without prejudice to the powers of a company with respect to forfeiture of its own shares as provided by this Part or to accept any of its own shares surrendered in lieu for failure to pay any sum payable in respect of those shares, a company may not acquire any of its own shares otherwise than as described in the preceding subsection, but nothing in that subsection or any other provision of this section affects the lawfulness of F48[a merger effected in accordance with Chapter 3 of Part 9 or a scheme of arrangement sanctioned under that Part, or a conversion, merger or division effected in accordance with the European Union (Cross-Border Conversions, Mergers and Divisions) Regulations 2023 (S.I. No. 233 of 2023)].
(3) If a company purports to act in contravention of subsection (2), the company and any officer of it who is in default shall be guilty of a category 2 offence and the purported acquisition is void.
(4) Subject to section 103, a private limited subsidiary shall not—
(a) subscribe for the shares of its parent public company; or
(b) purchase shares in its parent public company which are not fully paid.
(5) If a private limited subsidiary purports to act in contravention of subsection (4)(a), that subsidiary and any officer of it who is in default shall be guilty of a category 2 offence and the purported subscription is void.
(6) Where shares in a parent public company are subscribed for by a nominee of a private limited subsidiary, then for all purposes the shares shall be treated as held by the nominee on his or her own account and the private limited subsidiary shall be regarded as having no beneficial interest in them, and the provisions of section 104 shall, with any necessary modifications, apply.
(7) Without prejudice to any other requirements contained in or penalties imposed by this Act, where a private limited subsidiary purchases, subscribes for or holds shares in its parent public company, and—
(a) in the case of a purchase, the shares were not fully paid when they were purchased; or
(b) the authorisation required by section 114(3) has not been obtained; or
(c) by virtue of their being treated (under subsection (2) of section 109) as shares held as treasury shares by the parent public company for the purposes of the limit provided by subsection (1) of that section, that limit is exceeded by the parent public company; or
(d) the purchase or subscription was in contravention of section 82(7),
then, unless the shares or any interest of the private limited subsidiary in them are previously disposed of, the provisions of sections 1040 and 1041 shall apply to the private limited subsidiary in respect of such shares, with the modification that the “relevant period” (as that expression is used in those sections) in relation to any shares shall be 12 months and with any other necessary modifications.
Annotations
Amendments:
F47
Deleted (24.05.2023) by European Union (Cross - Border Conversions, Mergers and Divisions) Regulations 2023 (S.I. No. 233 of 2023), reg. 95 and sch. 4 ref. 1(a)(i).
F48
Substituted (24.05.2023) by European Union (Cross - Border Conversions, Mergers and Divisions) Regulations 2023 (S.I. No. 233 of 2023), reg. 95 and sch. 4 ref. 1(a)(ii), (b).
F49
Inserted (24.05.2023) by European Union (Cross - Border Conversions, Mergers and Divisions) Regulations 2023 (S.I. No. 233 of 2023), reg. 95 and sch. 4 ref. 1(a)(iii).
Section 103
Supplemental provisions in relation to section 102
103. (1) Section 102 shall not affect or prohibit—
(a) subject to subsection (2), the subscription for, acquisition or holding of shares in its parent public company by a private limited subsidiary where the private limited subsidiary is concerned as personal representative or where it is concerned as trustee;
(b) without prejudice to subsection (3), the allotment to, or holding by, a private limited subsidiary of shares in its parent public company in the circumstances set out in section 113(6);
(c) the subscription, acquisition or holding of shares in its parent public company by a private limited subsidiary where the subscription, acquisition or holding is effected on behalf of a person other than the person subscribing, acquiring or holding the shares, who is neither the parent public company itself nor a subsidiary of that parent public company; or
(d) the subscription, acquisition or holding of shares in its parent public company by a private limited subsidiary which is a member of an authorised market operator acting in its capacity as a professional dealer in securities in the normal course of its business.
(2) The restriction on the application of section 102 by subsection (1)(a) does not have effect (in the case of a trust) if the parent public company or a subsidiary of it is beneficially interested under the trust and is not so interested only by way of security for the purposes of a transaction entered into by it in the ordinary course of a business which includes the lending of money.
(3) Where shares in a parent public company—
(a) are allotted to, or held by, a private limited subsidiary as mentioned in subsection (1)(b); and
(b) by virtue of their being treated (under subsection (2) of section 109) as shares held as treasury shares by the parent public company for the purposes of the limit provided by subsection (1) of that section, that limit is exceeded by the parent public company,
then, unless the shares or any interest of the private limited subsidiary in them are previously disposed of, the provisions of sections 1040 and 1041 shall apply to the private limited subsidiary in respect of such shares, with the modification that the “relevant period” (as that expression is used in those sections) in relation to any shares shall be 3 years and with any other necessary modifications.
Section 104
Shares of a company held by a nominee of a company
104. (1) Subject to subsection (5), where shares in a company are issued to a nominee of the company or are acquired by a nominee of the company from a third party as partly paid up, then for all purposes the shares shall be treated as held by the nominee on his or her own account and the company shall be regarded as having no beneficial interest in them.
(2) If a person is called on to pay any amount for the purpose of paying up, or paying any premium on, any shares in a company which were issued to him or her, or which he or she otherwise acquired, as the nominee of the company and he or she fails to pay that amount within 21 days after the date on which he or she is called on to do so, then—
(a) if the shares were issued to him or her as a subscriber to the constitution by virtue of an undertaking of his or hers in the constitution, the other subscribers, if any, to the constitution; or
(b) if the shares were otherwise issued to or acquired by him or her, the directors of the company at the time of the issue or acquisition,
shall be jointly and severally liable with him or her to pay that amount.
(3) If in proceedings for the recovery of any such amount from any such subscriber or director under this section, it appears to the court that he or she is or may be liable to pay that amount, but that he or she has acted honestly and reasonably and that, having regard to all the circumstances of the case, he or she ought fairly to be excused from liability, the court may relieve him or her, either wholly or partly, from his or her liability on such terms as the court thinks fit.
(4) Where any such subscriber or director has reason to apprehend that a claim will or might be made for the recovery of any such amount from him or her, he or she may apply to the court for relief and on the application the court shall have the same power to relieve him or her as it would have had in proceedings for the recovery of that amount.
(5) Subsections (1) and (2) shall not apply—
(a) to shares acquired by a nominee of a company where the company has no beneficial interest in those shares (disregarding any right which the company itself may have as trustee, whether as personal representative or otherwise, to recover its expenses or be remunerated out of the trust property); or
(b) to shares issued in consequence of an application made for them before 13 October 1983 or transferred in pursuance of an agreement to acquire them made before that date.
Section 105
Acquisition of own shares
105. (1) A company may acquire its own shares by purchase, or in the case of redeemable shares, by redemption or purchase.
(2) Any such acquisition is subject to payment in respect of the shares’ acquisition being made out of—
(a) profits available for distribution; or
(b) where the company proposes to cancel, pursuant to section 106, shares on their acquisition, the proceeds of a fresh issue of shares made for the purposes of the acquisition, but subject to the restriction contained in subsection (3) as respects such proceeds being used to pay a premium there referred to.
(3) Where the shares being acquired were issued at a premium, some or all of the premium payable on their acquisition (being an acquisition to which subsection (2)(b) applies) may be paid out of the proceeds of a fresh issue of shares made for the purposes of the acquisition, up to an amount equal to—
(a) the aggregate of the premiums received by the company on the issue of the shares acquired; or
(b) the current amount of the company’s undenominated capital (including any sum transferred to its share premium account in respect of premiums on the new shares),
whichever is less, and in any such case the amount of the company’s share premium account or other undenominated capital shall be reduced by a sum corresponding (or by sums in the aggregate corresponding) to the amount of any payment made by virtue of this subsection out of the proceeds of the issue of the new shares.
(4) Subject to this Part, the acquisition by a company of its own shares shall be authorised by—
(a) the constitution of the company;
(b) the rights attaching to the shares in question; or
(c) a special resolution.
(5) A special resolution under subsection (4) shall not be effective for the purposes of this section if any member of the company holding shares to which the resolution relates exercises the voting rights carried by any of those shares in voting on the resolution and the resolution would not have been passed if he or she had not done so.
(6) With respect to subsection (4) and the matter of passing a special resolution for the purpose thereof by the written means provided for under this Act—
(a) the procedure under section 193 (unanimous written resolutions) is not available for that purpose;
(b) if a resolution referred to in section 194 (majority written resolutions) for the purpose of subsection (4) is signed by a member of the company who holds shares to which the resolution relates, then, in determining whether the requirement under section 194(4)(a)(ii) — that the resolution be signed by the requisite majority — has been fulfilled, no account shall be taken of the percentage of voting rights conferred by the foregoing shares of that member.
(7) Notwithstanding anything contained in section 189 or in the company’s constitution, any member holding one or more shares in the company conferring the right to vote at the meeting concerned may demand a poll on a special resolution under subsection(4).
(8) Where a purchase of shares is proposed to be authorised by special resolution—
(a) the proposed contract of purchase or, if the contract is not in writing, a written memorandum of its terms shall be furnished to the members of the company on request or made available for inspection by the members at the registered office of the company from the date of the notice of the meeting at which the resolution is to be proposed and at the meeting itself;
(b) any memorandum of the terms of the contract of purchase made available for the purposes of paragraph (a) shall include the names of any members holding shares to which the contract relates, and any copy of the contract made available for those purposes shall have annexed to it a written memorandum specifying any such names which do not appear in the contract itself.
(9) With respect to the proposed authorisation of a purchase of shares by a resolution referred to in section 194, the requirements of subsection (8) shall also apply but with the modification that in paragraph (a) of that subsection “during the period of 21 days before the date of the signing of the resolution by the last member to sign” shall be substituted for “from the date of the notice of the meeting at which the resolution is to be proposed and at the meeting itself”.
(10) A company may agree to a variation of an existing contract of purchase authorised pursuant to a special resolution under this section only if the variation is authorised by special resolution of the company before it is agreed to, and subsections (5) to (9) shall apply in relation to that authority, save that a copy or memorandum (as the case may require) of the existing contract shall also be available for inspection in accordance with subsection (8).
(11) A company shall only make a purchase of its own shares in pursuance of an option if the terms of the option have been authorised by a special resolution of the company in accordance with subsections (5) to (9) and, for the purposes of this subsection, subsection (8) shall have effect as if the references in it to the contract of purchase were references to the contract under which the option arises.
(12) In subsection (11) “option” means an entitlement of the company, or an obligation on the part of the company, to purchase any of its shares that may arise under a contract entered into, being a contract that does not amount to a contract to purchase those shares.
Section 106
Supplemental provisions in relation to section 105
106. (1) Shares acquired by a company under section 105, or otherwise acquired by it under F50[section 102(1)(a) or (g)], shall be cancelled or held by it (as “treasury shares”).
(2) Where a company—
(a) has acquired, under section 105, shares and cancelled them; or
(b) is about to so acquire shares and cancel them upon their acquisition,
it shall have power to issue shares up to the nominal amount of the shares so acquired, or to be so acquired, as if those shares had never been issued.
(3) No cancellation of shares under subsection (1) shall be taken as reducing the amount of the company’s authorised share capital (if any).
(4) Where the shares are—
(a) under section 105, acquired wholly out of the profits available for distribution; or
(b) under section 105, acquired wholly or partly out of the proceeds of a fresh issue and the aggregate amount of those proceeds (disregarding any part of those proceeds used to pay any premium on the acquisition) is less than the aggregate nominal value of the shares acquired (the “aggregable difference”),
then a sum equal to, in the case of paragraph (a), the nominal value of the shares acquired and, in the case of paragraph (b), the aggregable difference shall be transferred to undenominated capital of the company, other than its share premium account.
(5) The amount by which the consideration paid for the acquisition of redeemable preference shares allotted before 1 February 1990 exceeds the consideration received by the company on the issue of those shares may be paid from undenominated capital.
(6) Section 105 shall not apply to the redemption of preference shares referred to in section 108 and no such shares may be the subject of purchase under section 105.
Annotations
Amendments:
F50
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s.17, S.I. No. 335 of 2022.
Section 107
Assignment or release of company’s right to purchase own shares
107. (1) Any purported assignment of the rights of a company under any contract authorised under section 105 shall be void.
(2) Nothing in subsection (1) shall prevent a company from releasing its right under any contract authorised under section 105 provided that the release has been authorised by special resolution of the company before the release is entered into, and any such purported release by a company which has not been authorised in that manner shall be void.
(3) Subsections (5) to (9) of section 105 shall apply to a resolution under subsection (2) and, for the purposes of this subsection, subsection (8) of section 105 shall have effect as if the references in it to the contract of purchase were references to the release concerned.
Section 108
Power to redeem preference shares issued before 5 May 1959
108. (1) Subject to the provisions of this section, a company may, if so authorised by its constitution, redeem any preference shares issued by it before 5 May 1959 provided that—
(a) no such shares shall be redeemed except out of profits of the company which would otherwise be available for distribution or out of the proceeds of a fresh issue of shares made for the purposes of the redemption;
(b) no such shares shall be redeemed at a sum greater than the issue price of such shares;
(c) the redemption of such shares and the terms and the manner of the redemption shall have been authorised by a special resolution of the company;
(d) notice of the meeting at which the special resolution referred to in paragraph (c) is to be proposed and a copy of that resolution shall be published in Iris Oifigiúil and in at least one daily newspaper circulating in the district in which the registered office of the company is situated not less than 14 days and not more than 30 days before the date of the meeting;
(e) no holder of such shares shall be obliged to accept redemption of them;
(f) the redemption shall have been sanctioned by the court.
(2) The powers conferred by this section may be availed of only by means of an offer made to all the holders of the preference shares concerned.
(3) Where any such shares are redeemed otherwise than out of the proceeds of a fresh issue, there shall, out of profits which would otherwise have been available for distribution be transferred to undenominated capital, other than the share premium account a sum equal to the nominal amount of the shares redeemed.
(4) Subject to the provisions of this section, the redemption of preference shares under this section may be effected on such terms and in such manner as may be provided by the special resolution referred to in subsection (1)(c).
(5) The redemption of preference shares under this section by a company shall not be taken as reducing the amount of the company’s authorised share capital (if any).
(6) Where in pursuance of this section a company has redeemed or is about to redeem any preference shares, it shall have power to issue shares up to the nominal amount of the shares redeemed or to be redeemed as if those shares had never been issued.
Section 109
Treasury shares
109. (1) The nominal value of treasury shares held by a company may not, at any one time, exceed 10 per cent of its company capital.
(2) For the purposes of subsection (1), the following shall also be deemed to be treasury shares held by the company—
(a) shares held in the company by any subsidiary in pursuance of section 114;
(b) shares held in the company by any person acting in his or her own name but on the company’s F51[behalf;]
F52[(c) shares previously issued by a successor company, and held by a transferor company, which are acquired by a successor company pursuant to section 480 or 503.]
(3) For the purposes of subsection (1), shares of the company acquired by it otherwise than for valuable consideration shall not be deemed to be treasury shares.
(4) For so long as the company holds shares as treasury shares—
(a) the company shall not exercise any voting rights in respect of those shares and any purported exercise of those rights shall be void; and
(b) no dividend or other payment (including any payment in a winding up of the company) shall be payable to the company in respect of those shares.
(5) The manner in which shares held by a company as treasury shares are to be treated in the company’s entity financial statements is provided for in section 320(1) (which also contains provision restricting the profits available for distribution by reference to the accounting treatment of such shares there provided).
(6) Treasury shares may either be—
(a) cancelled by the company in which case section 106 shall apply as if the shares had been cancelled on their acquisition; or
(b) subject to subsections (7) to (9), re-issued as shares of any class or classes.
(7) A re-issue of shares under this section shall be deemed for all the purposes of this Act to be an issue of shares but the issued share capital of the company shall not be regarded for any purpose as having been increased by the re-issue of the shares.
(8) Unless the case falls within subsection (9), the maximum and minimum prices at which treasury shares may be re-allotted (the “re-allotment price range”) shall be determined by special resolution of the company passed before any contract for the re-allotment of the shares is entered into.
(9) In a case where the whole or a part of the treasury shares to be re-allotted are derived from shares acquired by the company under this Part on foot of the authority of a special resolution of the company, the re-allotment price range of the whole or such part (as the case may be) of those shares shall be determined by special resolution of the company passed at the meeting at which the first-mentioned resolution in this subsection has been passed.
(10) Any determination referred to in subsection (8) or (9)—
(a) may fix different maximum and minimum prices for different shares; and
(b) shall, for the purposes of subsection (8) or (9), as the case may be, remain effective with respect to those shares for the requisite period.
(11) The company may from time to time, by special resolution, vary or renew a determination of re-allotment price range under subsection (8) or (9) with respect to particular treasury shares before any contract for re-allotment of those shares is entered into and any such variation or renewal shall, for the purposes of this subsection, remain effective as a determination of the re-allotment price range of those shares for the requisite period.
(12) A re-allotment by a company of treasury shares in contravention of subsection (8), (9), (10) or (11) shall be unlawful.
(13) In this section “requisite period” means the period of 18 months after the date of the passing of the resolution determining the re-allotment price range or varying or renewing (as the case may be) such determination or such lesser period as the resolution may specify.
Annotations
Amendments:
F51
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 18(a), S.I. No. 335 of 2022.
F52
Inserted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 18(b), S.I. No. 335 of 2022.
Section 110
Incidental payments with respect to acquisition of own shares
110. (1) Any payment made by a company in consideration of—
(a) acquiring any right with respect to the purchase of its own shares in pursuance of a contract authorised under section 105;
(b) the variation of a contract authorised under section 105; or
(c) the release of any of the company’s obligations with respect to the purchase of any of its own shares under a contract authorised under section 105,
shall be unlawful if any such payment is made otherwise than out of distributable profits of the company or, in the circumstances in which the proceeds of such an issue are permitted to be used by this Part for the purpose of the purchase of the shares, the proceeds of a new issue of shares.
(2) If the requirements of subsection (1) are not satisfied in relation to a contract—
(a) in a case to which paragraph (a) of that subsection applies, no purchase by the company of its own shares in pursuance of that contract shall be lawful under this Part;
(b) in a case to which paragraph (b) of that subsection applies, no such purchase following the variation shall be lawful under this Part; and
(c) in a case to which paragraph (c) of that subsection applies, the purported release shall be void.
Section 111
Effect of company’s failure to redeem or purchase
111. (1) This section applies to—
(a) redeemable shares issued after 1 February 1991;
(b) shares which have been converted into redeemable shares; and
(c) shares which a company has agreed to purchase pursuant to section 105.
(2) Without prejudice to any other right of the holder of any shares to which this section applies, a company shall not be liable in damages in respect of any failure on its part to redeem or purchase any such shares.
(3) Neither the High Court nor the Circuit Court shall grant an order for specific performance of the terms of redemption or purchase of the shares to which this section applies if the company shows that it is unable to meet the cost of redeeming or purchasing the shares out of profits available for distribution.
(4) Where, at the commencement of the winding up of a company, any shares to which this section applies have not been redeemed or purchased then, subject to subsections (5), (6) and (7), the terms of redemption or purchase may be enforced against the company and the shares when so redeemed or purchased under this subsection shall be treated as cancelled.
(5) Subsection (4) shall not apply if—
(a) the terms of redemption or purchase provided for the redemption or purchase to take place at a date later than that of the commencement of the winding up; or
(b) during the period beginning with the date on which the redemption or purchase was to have taken place and ending with the commencement of the winding up, the company could not at any time have lawfully made a distribution equal in value to the price at which the shares were to have been redeemed or purchased.
(6) There shall be paid in priority to any amount for which the company is liable by virtue of subsection (4) to pay in respect of any shares—
(a) all other debts and liabilities of the company other than any due to members in their capacity as such; and
(b) if other shares carry rights, whether as to capital or to income, which are preferred to the rights as to capital attaching to the first-mentioned shares, any amount due in satisfaction of those preferred rights, but subject to that, any such amount shall be paid in priority to any amounts due to members in satisfaction of their rights (whether as to capital or income) as members.
(7) Where, by virtue of the application by section 619 of the rules of bankruptcy in the winding up of insolvent companies, a creditor of a company is entitled to payment of any interest only after payment of all other debts of the company, the company’s debts and liabilities shall for the purposes of subsection (6) include the liability to pay that interest.
Section 112
Retention and inspection of documents
112. (1) A company which enters into a contract under section 105 shall, until the expiration of 10 years after the date on which the contract has been fully performed, keep at its registered office a copy of that contract or, if it is not in writing, a memorandum of its terms.
(2) Every document required to be kept under subsection (1) shall during business hours be open to the inspection of any member.
(3) In the case of a refusal of an inspection of a document required under subsection (2), the court may, on the application of a person who has requested an inspection and has been refused, by order require the company to allow the inspection of that document.
(4) Section 127(1) (access to documents during business hours) shall apply in relation to subsection (2) as it applies in relation to the relevant provisions of Part 4.
(5) If a company contravenes this section, the company and any officer of it who is in default shall be guilty of a category 3 offence.
Section 113
Membership of holding company
113. (1) Subject to section 114 and the other provisions of this Act, a company cannot be a member of a company which is its holding company, and any allotment or transfer of shares in a company to its subsidiary shall be void.
(2) Nothing in this section shall apply where the subsidiary is concerned as personal representative, or where it is concerned as trustee, unless the holding company or a subsidiary of it is beneficially interested under the trust and is not so interested only by way of security for the purposes of a transaction entered into by it in the ordinary course of a business which includes the lending of money.
(3) This section shall not prevent a subsidiary which on 5 May 1959 was a member of its holding company from continuing to be a member.
(4) This section shall not prevent a company which, at the date on which it becomes a subsidiary of another company is a member of that other company, from continuing to be a member.
(5) This section shall not prevent the subscription, acquisition or holding of shares in its parent public company by a company which is a member of an authorised market operator acting in its capacity as a professional dealer in securities in the normal course of its business.
(6) This section shall not prevent a subsidiary which is a member of its holding company from accepting and holding further shares in the capital of its holding company if—
(a) such further shares are allotted to it in consequence of a capitalisation by such holding company; and
(b) the terms of such capitalisation are such that the subsidiary is not thereby involved in any obligation to make any payment or to give other consideration for such further shares.
(7) Subject to subsection (2), a subsidiary which is a member of its holding company shall have no right to vote at meetings of the holding company or any class of members of it.
(8) The manner in which shares held (in the circumstances permitted by this section) in a holding company by the subsidiary are to be treated in—
(a) the subsidiary’s entity financial statements is provided for in section 320(2) (which also contains provision restricting the profits available for distribution by reference to the accounting treatment of such shares there provided); and
(b) the group financial statements, if any, of the holding company is provided for in section 320(3).
(9) Subject to subsection (2), this section shall apply in relation to a nominee for the company firstly referred to in subsection (1), as if references in this section to such a company included references to a nominee for it.
(10) Where a holding company makes an offer of shares to its members, it may sell, on behalf of a subsidiary, any such shares which the subsidiary could, but for this section, have taken by virtue of shares already held by it in the holding company and pay the proceeds of sale to the subsidiary.
Section 114
Holding by subsidiary of shares in its holding company
114. (1) Notwithstanding section 82 or 113, a company may, subject to the provisions of this section, acquire and hold shares in a company which is its holding company.
(2) The acquisition and holding by a subsidiary under subsection (1) of shares in its holding company shall be subject to the following conditions—
(a) the consideration for the acquisition of such shares shall be provided for out of the profits of the subsidiary available for distribution;
(b) upon the acquisition of such shares and for so long as the shares are held by the subsidiary—
(i) the subsidiary shall not exercise any voting rights in respect of the shares and any purported exercise of those rights shall be void;
(ii) the manner in which shares so held by the subsidiary are to be treated in—
(I) the subsidiary’s entity financial statements is provided for in section 320(2) (which also contains provision restricting the profits available for distribution by reference to the accounting treatment of such shares there provided); and
(II) the group financial statements, if any, of the holding company is provided for in section 320(3).
(3) A contract for the acquisition (whether by allotment or transfer) by a subsidiary of shares in its holding company shall not be entered into without being authorised in advance both by the subsidiary and its holding company and the provisions of sections 105 and 107 shall apply, with the necessary modifications, to the granting, variation, revocation and release of such authority.
(4) For the purposes of this section and section 320, a subsidiary’s profits available for distribution shall not include the profits attributable to any shares in the subsidiary for the time being held by the subsidiary’s holding company, so far as they are profits for the period before the date on or from which the shares were acquired by the holding company.
(5) This section shall not apply to shares held by a subsidiary in its holding company in the circumstances permitted by section 113.
(6) No authorisation is required to be given under subsection (3) by any body corporate unless it is a company formed and registered under this Act or an existing company.
(7) Nothing in this section limits the operation of section 102(4).
Section 115
Civil liability for improper purchase in holding company
115. (1) This section applies where—
(a) the winding up of a company which has acquired shares in its holding com5pany in accordance with section 114 commences within 6 months after the date of such acquisition; and
(b) the company is, at the time of the commencement of the winding up, unable to pay its debts (taking into account the contingent and prospective liabilities).
(2) Where this section applies the court, on the application of a liquidator, creditor, employee or contributory of the company, may, subject to subsection (3), declare that the directors of the company shall be jointly and severally liable to repay to the company the total amount paid by the company for the shares.
(3) Where it appears to the court that any person in respect of whom a declaration has been sought under subsection (2) believed on reasonable grounds that the acquisition referred to in subsection (1) was in the best interests of the company, the court may relieve him or her, either wholly or in part, from personal liability on such terms as it may think fit.
Section 116
Return to be made to Registrar
116. (1) A company which has acquired shares pursuant to this Part shall, within 30 days after the date of delivery to the company of those shares, deliver to the Registrar a return in the prescribed form stating, with respect to shares of each class acquired, the number and nominal value of those shares and the date on which they were delivered to the company.
(2) Particulars of shares delivered to the company on different dates and under different contracts may be included in a single return to the Registrar.
(3) If a company contravenes this section, the company and any officer of it who is in default shall be guilty of a category 3 offence.
CHAPTER 7
Distributions
Section 117
Profits available for distribution
117. (1) A company shall not make a distribution except out of profits available for the purpose.
(2) For the purposes of this Part, a company’s profits available for distribution are its accumulated, realised profits, so far as not previously utilised by distribution or capitalisation, less its accumulated, realised losses, so far as not previously written off in a reduction or reorganisation of capital duly made.
(3) A company shall not apply an unrealised profit in paying up debentures or any amounts unpaid on any of its issued shares.
F53[(4) For the purposes of subsections (2) and (3)—
(a) where the company prepares Companies Act entity financial statements, any provision or value adjustment (within the meaning of Schedule 3, 3A or 3B, as the case may be) shall be treated as a realised loss other than a value adjustment in respect of any diminution in value of a fixed asset appearing on a revaluation of all the fixed assets or of all the fixed assets other than goodwill (and this qualification is referred to in subsections (5) and (6) as "the exception to subsection (4)(a)"), and
(b) where the company prepares IFRS financial statements, a provision or value adjustment of any kind shall be treated as a realised loss.]
(5) Subject to section 121(6) and the next subsection, any consideration by the directors of a company of the value at any particular time of any fixed asset of the company shall be treated as a revaluation of that asset for the purposes of determining whether any such revaluation of the company’s fixed assets, as is required for the purposes of the exception to subsection (4)(a), has taken place at that time.
(6) However where any such assets which have not actually been revalued are treated as revalued for those purposes by virtue of the preceding subsection, the exception to subsection (4)(a) shall only apply if the directors are satisfied that the aggregate value of those assets at the time in question is not less than the aggregate amount at which they are for the time being stated in the company’s Companies Act entity financial statements.
(7) If, on the revaluation of a fixed asset, an unrealised profit is shown to have been made and, on or after the revaluation, a sum is written off or retained for depreciation of that asset over a period, then an amount equal to the amount by which that sum exceeds the sum which would have been so written off or retained for depreciation of that asset over that period if that profit had not been made, shall be treated for the purposes of subsections (2) and (3) as a realised profit made over that period.
(8) Where there is no record of the original cost of an asset of a company or any such record cannot be obtained without unreasonable expense or delay, then, for the purposes of determining whether the company has made a profit or loss in respect of that asset, the cost of the asset shall be taken to be the value ascribed to it in the earliest available record of its value made on or after its acquisition by the company.
(9) Notwithstanding anything in the preceding subsections of this section, but without prejudice to any contrary provision of—
(a) an order of, or undertaking given to, the court;
(b) the resolution for, or any other resolution relevant to, the reduction of company capital; or
(c) the company’s constitution,
a reserve arising from the reduction of a company’s company capital is to be treated, both for the purposes of this section and for purposes otherwise, as a realised profit.
(10) In this section “fixed asset” includes any other asset which is not a current asset.
Annotations
Amendments:
F53
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 91, S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 118
Prohibition on pre-acquisition profits or losses being treated in holding company’s financial statements as profits available for distribution
118. (1) Subject to subsections (3) and (4), any amount of the accumulated profits or losses attributable to any shares in a subsidiary for the time being held by a holding company or any other of its subsidiaries shall not, for any purpose, be treated in the holding company’s financial statements as profits available for distribution so far as that amount relates to accumulated profits or losses for the period before the date on or as from which the shares were acquired by the company or any of its subsidiaries (which period is referred to in subsection (2) as the “pre-acquisition period”).
(2) For the purpose of determining whether any profits or losses are to be treated as profits or losses for the pre-acquisition period, the profit or loss for any financial year of the subsidiary may, if it is not practicable to apportion it with reasonable accuracy by reference to the facts, be treated as accruing from day to day during that year and be apportioned accordingly.
(3) If the Summary Approval Procedure is followed in respect of such treatment, subsection (1) does not prohibit—
(a) the whole of the amount referred to in that subsection; or
(b) such proportion of that amount as is specified in the declaration referred to in section 205,
being treated as profits available for distribution by the holding company for the period, and the period only, referred to in section 202(1)(a) (as that provision applies by virtue of section 202(2) and (3)).
(4) Subsection (1) does not apply to the profits or losses attributable to shares in a subsidiary held by a holding company where those shares were acquired in a transaction to which section 72, 73 or 75 applies.
Section 119
Distributions in kind: determination of amount
119. (1) This section applies for determining the amount of a distribution consisting of or including, or treated as arising in consequence of, the sale, transfer or other disposition by a company of a non-cash asset where—
(a) at the time of the distribution the company has profits available for distribution; and
(b) if the amount of the distribution were to be determined in accordance with this section, the company could make the distribution without contravening this Part.
(2) The amount of the distribution (or the relevant part of it) is taken to be—
(a) in a case where the amount or value of the consideration for the disposition is not less than the book value of the asset, zero;
(b) in any other case, the amount by which the book value of the asset exceeds the amount or value of any consideration for the disposition.
(3) For the purposes of subsection (1)(a), the company’s profits available for distribution are treated as increased by the amount (if any) by which the amount or value of any consideration for the disposition exceeds the book value of the asset.
(4) In this section “book value”, in relation to an asset, means—
(a) the amount at which the asset is stated in the relevant financial statements referred to in section 121; or
(b) where the asset is not stated in those financial statements at any amount, zero.
(5) The provisions of section 121 shall have effect subject to this section.
Section 120
Development costs shown as asset of company to be set off against company’s distribution profits
120. (1) Subject to the following provisions of this section, where development costs are shown as an asset in a company’s financial statements, any amount shown in respect of those costs shall be treated for the purposes of section 117 as a realised loss.
(2) Subsection (1) shall not apply to any part of the amount referred to in that subsection representing an unrealised profit made on revaluation of the costs so referred to.
(3) Subsection (1) shall not apply if—
(a) there are special circumstances justifying the directors of the company concerned in deciding that the amount mentioned in respect of development costs in the company’s financial statements shall not be treated as required by that subsection; and
(b) it is stated—
F54[(i) where the company does not qualify for the micro companies regime and prepares Companies Act entity financial statements, in the note to the statements required by paragraph 24(2) of Schedule 3, or paragraph 24(2) of Schedule 3A, as the case may be; or,]
(ii) where the company prepares IFRS entity financial statements, in any note to those statements,
that that amount is not to be so treated, and the note explains the circumstances relied upon to justify the decision of the directors to that effect.
Annotations
Amendments:
F54
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 90(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 121
The relevant financial statements
121. (1) Subject to the following provisions of this section, the question whether a distribution may be made by a company without contravening section 117 and the amount of any distribution which may be so made shall be determined by reference to the relevant items as stated in the relevant entity financial statements, and section 117 shall be treated as contravened in the case of a distribution unless the requirements of this section in relation to those statements are complied with in the case of that distribution.
(2) The relevant entity financial statements for any company in the case of any particular distribution are—
(a) except in a case falling within paragraph (b) or (c), the last entity financial statements, that is to say, the statutory financial statements, respecting the company alone, prepared in accordance with the requirements of Part 6 (and, where applicable, in accordance with the requirements of Article 4 of the IAS Regulation (within the meaning of that Part)) which were laid in respect of the last preceding financial year in respect of which statutory financial statements so prepared were laid;
(b) if that distribution would be found to contravene section 117 if reference were made only to the last statutory financial statements, such financial statements (“interim financial statements”), respecting the company alone, as are necessary to enable a reasonable judgement to be made as to the amounts of any of the relevant items;
(c) if that distribution is proposed to be declared during the company’s first financial year or before any statutory financial statements are laid in respect of that financial year, such financial statements (“initial financial statements”), respecting the company alone, as are necessary as mentioned in paragraph (b).
(3) The following requirements apply where the last financial statements of a company constitute the only relevant entity financial statements in the case of any distribution, that is to say—
(a) those financial statements shall have been properly prepared or have been so prepared subject only to matters which are not material for the purpose of determining, by reference to the relevant items as stated in those statements, whether that distribution would be in contravention of section 117;
(b) unless the company is entitled to and has availed itself of the audit exemption under section 360 or 365, the statutory auditors of the company shall have made a report under section 391 in respect of those financial statements;
(c) if, by virtue of anything referred to in that report, the report is not an unqualified report, the statutory auditors shall also have stated in writing (either at the time the report was made or subsequently) whether, in their opinion, that thing is material for the purpose of determining, by reference to the relevant items as stated in those financial statements, whether that distribution would be in contravention of section 117; and
(d) a copy of any such statement shall have been laid before the company in general meeting.
(4) A statement under subsection (3)(c) suffices for the purposes of a particular distribution, not only if it relates to a distribution which has been proposed, but also if it relates to distributions of any description which include that particular distribution, notwithstanding that at the time of the statement it has not been proposed.
(5) For the purpose of determining by reference to particular financial statements whether a proposed distribution may be made by a company, this section shall have effect, in any case where one or more distributions have already been made in pursuance of determinations made by reference to those same financial statements, as if the amount of the proposed distribution was increased by the amount of the distributions so made.
(6) Where subsection (3)(a) applies to the relevant entity financial statements, section 117(5) shall not apply for the purposes of determining whether any revaluation of the company’s fixed assets affecting the amount of the relevant items as stated in those statements has taken place, unless it is stated in a note to those statements—
(a) that the directors have considered the value at any time of any fixed assets of the company without actually revaluing those assets;
(b) that they are satisfied that the aggregate value of those assets at the time in question is or was not less than the aggregate amount at which they are or were for the time being stated in the company’s statutory financial statements; and
(c) that the relevant items affected are accordingly stated in the relevant financial statements on the basis that a revaluation of the company’s fixed assets that, by virtue of section 117(5), is deemed to have included a revaluation of the assets in question, took place at that time.
(7) In this section—
“properly prepared” means, in relation to any financial statements of a company, that they have been properly prepared in accordance with the provisions of Part 6;
“relevant item” means any of the following, that is to say profits, losses, assets, liabilities, provisions (within the meaning of F55[Schedule 3, 3A or 3B, as the case may be]), share capital and reserves;
“reserves” includes undistributable reserves, that is to say—
(a) the company’s undenominated capital;
(b) the amount by which the company’s accumulated, unrealised profits, so far as not previously utilised by any capitalisation, exceed its accumulated, unrealised losses, so far as not previously written off in a reduction or reorganisation of capital duly made; and
(c) any other reserve which the company is prohibited from distributing by any enactment, other than one contained in this Part, or by its constitution.
“unqualified report”, in relation to any financial statements of a company, means a report without qualification, to the effect that, in the opinion of the person making the report, the financial statements have been properly prepared, and for the purposes of this section, financial statements are laid if section 290 has been complied with in relation to those statements.
Annotations
Amendments:
F55
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 90(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 122
Consequences of making unlawful distribution
122. (1) Where a distribution or part of one, made by a company to one of its members, is made in contravention of any provision of this Part and, at the time of the distribution, he or she knows or has reasonable grounds for believing that it is so made, he or she shall be liable to repay it or that part, as the case may be, to the company or (in the case of a distribution made otherwise than in cash) to pay the company a sum equal to the value of the distribution or part at that time.
(2) This section is without prejudice to any obligation imposed apart from this section on a member of a company to repay a distribution unlawfully made to him or her.
Section 123
Meaning of “distribution”, “capitalisation”, etc., and supplemental provisions
123. (1) In this Part “distribution” means every description of distribution of a company’s assets to members of the company, whether in cash or otherwise, except distributions made by way of—
(a) an issue of shares as fully or partly paid bonus shares;
(b) the redemption of preference shares pursuant to section 108 out of the proceeds of a fresh issue of shares made for the purposes of redemption;
(c) the redemption or purchase of shares pursuant to section 105 and the other relevant provisions of this Part out of the proceeds of a fresh issue of shares made for the purposes of the redemption or purchase;
(d) the payment pursuant to section 106(5) of any premium out of the company’s undenominated capital on a redemption referred to in that provision; F56[…]
(e) a distribution of assets to members of the company on its winding F57[up; and]
F58[(f) the reduction of share capital—
(i) by paying off paid up share capital (effected in accordance with section 84 in the case of a company limited by shares), or
(ii) by extinguishing or reducing all or part of a member’s liability on shares not fully paid up (effected in accordance with section 84 in the case of a company limited by shares).]
(2) In this Part “capitalisation”, in relation to any profits of a company, means any of the following operations, that is to say, applying the profits in wholly or partly paying up unissued shares in the company to be allotted to members of the company as fully or partly paid bonus shares or transferring the profits to undenominated capital.
(3) In this Part references to profits and losses of any description are references respectively to profits and losses of that description made at any time and, except where the context otherwise requires, are references respectively to revenue and capital profits and revenue and capital losses.
(4) The provisions of this Part are without prejudice to any enactment or rule of law or any provision of a company’s constitution restricting the sums out of which, or the cases in which, a distribution may be made.
(5) Where a company makes a distribution of or including a non-cash asset and any part of the amount at which that asset is stated in the financial statements relevant for the purposes of the distribution in accordance with this Chapter represents an unrealised profit, that profit is to be treated as a realised profit—
(a) for the purpose of determining the lawfulness of the distribution in accordance with this Chapter (whether before or after the distribution takes place); and
(b) for the purpose of the application of F59[paragraph 14(a) of Schedule 3, 3A or 3B and paragraph 37(3) of Schedule 3 or 3A, as the case may be] (only realised profits to be included in or transferred to the profit and loss account) in relation to anything done with a view to or in connection with the making of that distribution.
Annotations
Amendments:
F56
Deleted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 19(a), S.I. No. 335 of 2022.
F57
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 19(b), S.I. No. 335 of 2022.
F58
Inserted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 19(c), S.I. No. 335 of 2022.
F59
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 90(c), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 124
Procedures for declarations, payments, etc., of dividends and other things
124. (1) Each provision of this section and section 125 applies save to the extent that the company’s constitution provides otherwise.
(2) A company may, by ordinary resolution, declare dividends but no dividend shall exceed the amount recommended by the directors of the company.
(3) The directors of a company may from time to time—
(a) pay to the members such interim dividends as appear to the directors to be justified by the profits of the company, subject to section 117;
(b) before recommending any dividend, set aside out of the profits of the company such sums as they think proper as a reserve or reserves which shall, at the discretion of the directors, be applicable for any purpose to which the profits of the company may be properly applied, and pending such application may, at the like discretion either be employed in the business of the company or be invested in such investments as the directors may lawfully determine;
(c) without placing the profits of the company to reserve, carry forward any profits which they may think prudent not to distribute.
(4) Subject to the rights of persons, if any, entitled to shares with special rights as to dividend, all dividends shall be declared and paid according to the amounts paid or credited as paid on the shares in respect of which the dividend is paid.
(5) However no amount paid or credited as paid on a share in advance of calls shall be treated for the purposes of this section as paid on the share.
(6) All dividends shall be apportioned and paid proportionally to the amounts paid or credited as paid on the shares during any portion or portions of the period in respect of which the dividend is paid, but if any share is issued on terms providing that it shall rank for a dividend as from a particular date, such share shall rank for dividend accordingly.
(7) The directors may deduct from any dividend payable to any member, all sums of money (if any) immediately payable by him or her to the company on account of calls or otherwise in relation to the shares of the company.
Section 125
Supplemental provisions in relation to section 124
125. (1) A general meeting of a company declaring a dividend or bonus may direct payment of such dividend or bonus wholly or partly by the distribution of specific assets and, in particular, paid up shares, debentures or debenture stock of any other company or in any one or more of such ways.
(2) The directors of the company shall give effect to such resolution, and where any difficulty arises in regard to such distribution, the directors may settle the matter as they think expedient and, in particular, may—
(a) issue fractional certificates and fix the value for distribution of such specific assets or any part of them;
(b) determine that cash payments shall be made to any members upon the footing of the value so fixed, in order to adjust the rights of all the parties; and
(c) vest any such specific assets in trustees as may seem expedient to the directors.
(3) Any dividend, interest or other moneys payable in cash in respect of any shares may be paid—
(a) by cheque or negotiable instrument sent by post directed to or otherwise delivered to the registered address of the holder, or where there are joint holders, to the registered address of that one of the joint holders who is first named on the register or to such person and to such address as the holder or the joint holders may in writing direct; or
(b) by agreement with the payee (which may either be a general agreement or one confined to specific payments), by direct transfer to a bank account nominated by the payee.
(4) Any such cheque or negotiable instrument shall be made payable to the order of the person to whom it is sent.
(5) Any one of two or more joint holders may give valid receipts for any dividends, bonuses or other moneys payable in respect of the shares held by them as joint holders, whether paid by cheque or negotiable instrument or direct transfer.
(6) No dividend shall bear interest against the company.
Section 126
Bonus issues
126. (1) Each provision of this section applies save where the company’s constitution provides otherwise.
(2) In subsections (3) and (4) “relevant sum” means—
(a) any sum for the time being standing to the credit of the company’s undenominated capital;
(b) any of the company’s profits available for distribution; or
(c) any sum representing unrealised revaluation reserves.
(3) The company in general meeting may, on the recommendation of the directors, resolve that any relevant sum be capitalised and applied on behalf of the members who would have been entitled to receive that sum if it had been distributed by way of dividend and in the same proportions in or towards paying up in full unissued shares of the company of a nominal value equal to the relevant sum capitalised (such shares to be allotted and distributed credited as fully paid up to and amongst such holders and in the proportions as aforementioned).
(4) The company in general meeting may, on the recommendation of the directors, resolve that it is desirable to capitalise any part of a relevant sum which is not available for distribution, by applying such sum in paying up in full unissued shares to be allotted as fully paid bonus shares, to those members of the company who would have been entitled to that sum if it were distributed by way of dividend (and in the same proportions).
(5) The directors of the company shall give effect to any resolution under subsection (3) or (4).
(6) For that purpose the directors shall make—
(a) all appropriations and applications of the undivided profits resolved to be capitalised by the resolution; and
(b) all allotments and issues of fully paid shares, if any, and generally shall do all acts and things required to give effect to the resolution.
(7) Without limiting the foregoing, the directors may—
(a) make such provision as they think fit for the case of shares becoming distributable in fractions (and, again, without limiting the foregoing, may sell the shares represented by such fractions and distribute the net proceeds of such sale amongst the members otherwise entitled to such fractions in due proportions); and
(b) authorise any person to enter, on behalf of all the members concerned, into an agreement with the company providing for the allotment to them, respectively credited as fully paid up, of any further shares to which they may become entitled on the capitalisation concerned or, as the case may require, for the payment by the application thereto of their respective proportions of the profits resolved to be capitalised of the amounts remaining unpaid on their existing shares.
(8) Any agreement made under such authority shall be effective and binding on all the members concerned.
(9) Where the directors of a company have resolved to approve a bona fide revaluation of all the fixed assets of the company, the net capital surplus in excess of the previous book value of the assets arising from such revaluation may be—
(a) credited by the directors to undenominated capital, other than the share premium account; or
(b) used in paying up unissued shares of the company to be issued to members as fully paid bonus shares.
PART 4
CORPORATE GOVERNANCE
CHAPTER 1
Preliminary
Section 127
Access to documents during business hours
127. (1) A reference in this Part to a document kept by a company being open to the inspection of a person, or a specified class of person, during business hours shall be read as a requirement that the document be open to such inspection subject to such reasonable restrictions as the company may in general meeting impose, but so that not less than 2 hours in each day be allowed for such inspection.
(2) Subsection (1) applies to the provisions of other Parts of this Act that are referred to in Chapter 10 (which deals with, amongst other things, inspection of registers) as it applies to the provisions of this Part so referred to.
CHAPTER 2
Directors and secretaries
Section 128
Directors
128. (1) A company shall have at least one director.
(2) If default is made by a company in complying with subsection (1) for 28 consecutive days, the company and any officer of it who is in default shall be guilty of a category 3 offence.
Section 129
Secretaries
129. (1) A company shall have a secretary, who may be one of the directors.
(2) Anything required or authorised to be done by or to the secretary may, if the office is vacant or there is for any other reason no secretary capable of acting, be done by or to any assistant or deputy secretary or, if there is no assistant or deputy secretary capable of acting, by or to any officer of the company authorised generally or specially in that behalf by the directors.
(3) Subject to section 25(5), the secretary shall be appointed by the directors of the company for such term, at such remuneration and upon such conditions as they may think fit; and any secretary so appointed may be removed by them.
(4) The directors of a company shall have a duty to ensure that the person appointed as secretary has the skills or resources necessary to discharge his or her statutory and other duties.
(5) The cases to which subsection (4) applies includes the case of an appointment of one of the directors of the company as secretary.
(6) Where a company has only one director, that person may not also hold the office of secretary of the company.
(7) In subsections (2) to (6) references to a secretary include references to joint secretaries.
Section 130
Prohibition of body corporate or unincorporated body of persons being director
130. (1) A company shall not have as director of the company a body corporate or an unincorporated body of persons.
(2) Any purported appointment of a body corporate or an unincorporated body of persons as a director of a company shall be void.
Section 131
Prohibition of minor being director or secretary
131. (1) No person shall be appointed a director or, in the case of an individual, secretary of a company unless he or she has attained the age of 18 years.
(2) Any purported appointment of a minor as a director F60[or secretary] of a company shall be void.
(3) Where—
(a) a person appointed a director of a company before the commencement of subsection (1) has not attained the age of 18 years when that subsection is commenced; or
(b) the office of director of a company is held otherwise by virtue of another office, and the person appointed to that other office has not attained the age of 18 years when subsection (1) is commenced,
that person ceases to be a director of the company on the commencement of subsection (1) and the company shall make the necessary consequential alteration in its register of directors and shall notify the Registrar of the change.
Annotations
Amendments:
F60
Inserted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 26, S.I. No. 335 of 2022.
Section 132
Prohibition of undischarged bankrupt being director or secretary or otherwise involved in company
132. (1) F61[Subject to subsection (1A), if] any person being an undischarged bankrupt—
(a) acts as a director or secretary of a company; or
(b) directly or indirectly takes part or is concerned in the promotion, formation or management of a company,
the person shall (unless he or she does so with the leave of the court) be guilty of a category 2 offence.
F61[(1A) The court shall not grant leave referred to in subsection (1) unless the Authority is given at least 14 days’ notice of the making of the application for leave, and the Authority shall be entitled to appear and be heard at the hearing of such an application.]
(2) Where a person is convicted of an offence under subsection (1) the person shall be deemed to be subject to a disqualification order from the date of such conviction for such period as the court specifies if he or she was not, or was not deemed to be, subject to such an order on that date.
(3) In this section “disqualification order” has the same meaning as it has in Chapter 4 of Part 14.
Annotations
Amendments:
F61
Substituted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 10(a), S.I. No. 639 of 2024.
F62
Inserted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 10(b), S.I. No. 639 of 2024.
Section 133
Examination as to solvency status
133. (1) Where the F63[Authority has reason to believe that a director or secretary of a company is an undischarged bankrupt, the Authority] may exercise the following power.
(2) That power is to require the director or secretary of the company to produce to the F63[Authority], by a specified date, a sworn statement by him or her of all relevant facts pertaining to the director's or secretary’s financial position, both within the State and elsewhere, and, in particular, to any matter relating to bankruptcy as at a particular date.
(3) The court may, on the application of the F63[Authority], require a director or secretary of a company who has made a statement under subsection (2) to appear before it and answer on oath any question pertaining to the content of the statement.
(4) The court may, on the application of the F63[Authority], make a disqualification order against a director or secretary of a company, to be for such period as the court specifies, on the grounds that he or she is an undischarged bankrupt.
(5) A director or secretary of a company who fails to comply with a requirement under subsection (2) shall be guilty of a category 3 offence.
(6) In this section “disqualification order” has the same meaning as it has in Chapter 4 of Part 14.
Annotations
Amendments:
F63
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. nos. 1-4, S.I. No. 335 of 2022.
Section 134
Performance of acts by person in dual capacity as director and secretary not permitted
134. A provision of—
(a) this Act;
(b) an instrument under it; or
(c) a company’s constitution,
requiring or authorising a thing to be done by or to a director and the secretary shall not be satisfied by its being done by or to the same person acting both as director and as, or in place of, the secretary.
Section 135
Validity of acts of director or secretary
135. The acts of a director or of a secretary shall be valid notwithstanding any defect which may afterwards be discovered in his or her appointment or qualification.
Section 136
Share qualifications of directors
136. (1) This section applies where the constitution of a company requires a director of the company to hold a specified share qualification (the “specified qualification”).
(2) Where this section applies—
(a) the office of director of a company shall be vacated if the director—
(i) does not within 2 months after the date of his or her appointment or within such shorter time as may be fixed by the constitution, obtain the specified qualification; or
(ii) ceases at any time, after the expiration of that period or shorter time so fixed, as the case may be, to hold the specified qualification;
and
(b) a person vacating office under this section shall be incapable of being re-appointed director of the company until he or she has obtained the specified qualification.
Section 137
Company to have director resident in an EEA state
137. (1) Subject to subsection (2) and section 140, one, at least, of the directors for the time being of a company shall be a person who is resident in an EEA state.
(2) Subsection (1) shall not apply in relation to a company if the company for the time being holds a bond, in the prescribed form, in force to the value of €25,000 and which provides that, in the event of a failure by the company to pay the whole or part of each (if any) fine and penalty specified in the Table to this section, there shall become payable under the bond to a person who is, under subsection (4), nominated for the purpose (the “nominated person”) a sum of money for the following purpose.
(3) That purpose is the purpose of the sum being applied by the nominated person in discharging the whole or part, as the case may be, of the company's liability in respect of any such fine or penalty (and any sum that becomes so payable shall be applied by the nominated person accordingly).
(4) The nomination referred to in subsection (2) shall be made—
(a) by the Registrar or the Revenue Commissioners, as appropriate; or
(b) in the case of failure to pay both a fine referred to in paragraph 1 of the Table to this section and a fine or penalty, or a fine and penalty, referred to in paragraph 2 of that Table, jointly by the Registrar and the Revenue Commissioners.
(5) The bond referred to in subsection (2) may be entered into and shall have effect according to its terms notwithstanding any rule of law whereby any agreement to insure or indemnify a person in respect of any punishment or liability imposed on him or her in relation to any offence or unlawful act committed by him or her is void or unenforceable.
(6) If subsection (1) is not complied with, the company concerned and any officer of it who is in default shall be guilty of a category 4 offence.
(7) In this section “director” does not include an alternate director.
Table
|
1. A fine imposed on the company in respect of an offence under this Act committed by it. |
|
2. (1) A fine imposed on the company in respect of an offence under section 1078 of the Taxes Consolidation Act 1997 committed by it, being an offence that consists of a failure by the company to deliver a statement which it is required to deliver under section 882 of that Act or to comply with a notice served on it under section 884 of that Act. |
|
(2) A penalty which the company has been held liable to pay under section 1071 or 1073 of the Taxes Consolidation Act 1997. |
Annotations
Editorial Notes:
E62
Power pursuant to section exercised (1.06.2015) by Companies Act 2014 (Bonding) Order 2015 (S.I. No. 215 of 2015), in effect as per reg. 1.
Section 138
Supplemental provisions concerning bond referred to in section 137(2)
138. (1) In this section—
“bond” means the bond referred to in section 137(2);
“nominated person” means the person nominated under section 137(4) in relation to the bond concerned.
(2) The bond shall also provide that, in addition to the sum referred to in section 137(2), there shall become payable under the bond to the nominated person, on demand being made, with the consent of the Revenue Commissioners, by him or her in that behalf, a sum of money (not exceeding such sum as the Revenue Commissioners and the Minister may sanction) for the purpose of defraying such expenses as may have been reasonably incurred by that person in carrying out his or her duties under section 137(3).
(3) The nominated person shall keep all proper and usual accounts, including an income and expenditure account and a balance sheet, of all moneys received by him or her on foot of the bond and of all disbursements made by him or her from any such moneys.
(4) The Minister, after consultation with the Minister for Public Expenditure and Reform, the Revenue Commissioners and any other person who, in the opinion of the Minister, might be concerned with or interested in the matter, may prescribe—
(a) that arrangements in relation to the bond shall only be entered into with persons of a prescribed class or classes;
(b) the form of that bond and the minimum period to be specified in the bond as being the period for which it shall be valid.
(5) A copy of the bond held by a company shall be appended—
(a) in case none of the directors (within the meaning of section 137) of the company is resident in an EEA state on its incorporation, to the statement required by section 21(1)(a) to be delivered to the Registrar in relation to the company;
(b) in case a notification is made under section 139 to the Registrar in relation to the company, to that notification;
(c) in case during the period to which an annual return concerning the company relates none of the directors (within the meaning of section 137) of the company is resident in an EEA state, to that annual return (unless such a copy has been appended to a notification under section 139 made to the Registrar in that period).
Section 139
Notification requirement as regards non-residency of director
139. (1) Without prejudice to anything in section 149, if a person ceases to be a director of a company and, at the time of that cessation—
(a) he or she is resident in an EEA state; and
(b) either—
(i) he or she was the sole director, or
(ii) to his or her knowledge, no other director of the company is resident in an EEA state,
that person shall, within 14 days after the date of that cessation, notify, in writing, the Registrar of that cessation and the matter referred to in paragraph (b)(i) or (ii), as the case may be.
(2) A notification in writing to the Registrar of the matter referred to in subsection (1)(b)(i) or (ii) shall not, of itself, be regarded as constituting defamatory matter.
(3) If a person fails to comply with subsection (1), he or she shall be jointly and severally liable with the company of which he or she has ceased to be director for any fine or penalty referred to in section 137(2) imposed on the company, or which it is held liable to pay, after that cessation.
(4) Any such fine or penalty for which that person is so liable may be recovered by the Registrar or the Revenue Commissioners, as appropriate, from him or her as a simple contract debt in any court of competent jurisdiction.
(5) In this section “director” does not include an alternate director.
Section 140
Exception to section 137 — companies having real and continuous link with economic activity in State
140. (1) Section 137(1) shall not apply in relation to a company in respect of which there is in force a certificate under this section.
(2) The Registrar may grant to a company, on application in the prescribed form being made by it in that behalf, a certificate stating that the company has a real and continuous link with one or more economic activities that are being carried on in the State.
(3) The Registrar shall not grant such a certificate unless the company concerned tenders proof to him or her that it has such a link.
(4) A statement referred to in subsection (5) that is tendered by the applicant shall be deemed to be proof, for the purposes of subsection (3), that the applicant has such a link.
(5) That statement is a statement in writing that has been given to the company concerned by the Revenue Commissioners within the period of 2 months ending before the date on which an application is made under subsection (2) by the company and which states that the Revenue Commissioners have reasonable grounds to believe that the company has a real and continuous link with one or more economic activities being carried on in the State.
(6) If, in consequence of information that has come into the possession of the Registrar, the Registrar is of opinion that a company in respect of which a certificate under subsection (2) has been granted has ceased to have a real and continuous link with any economic activity being carried on in the State, he or she shall revoke that certificate.
(7) If, in consequence of information that has come into their possession, the Revenue Commissioners are of opinion that a company in respect of which a certificate under subsection (2) has been granted has ceased to have a real and continuous link with any economic activity being carried on in the State, the following applies—
(a) the Commissioners may give a notice in writing to the Registrar stating that they are of that opinion; and
(b) such a notice that is received by the Registrar shall constitute information in his or her possession for the purposes of subsection (6).
(8) Subsection (7)(a) has effect notwithstanding any obligations as to secrecy or other restrictions upon disclosure of information imposed by or under statute or otherwise.
(9) For the purposes of this section a company has a real and continuous link with an economic activity that is being carried on in the State if one or more of the following conditions are satisfied by it—
(a) the affairs of the company are managed by one or more persons from a place of business established in the State and that person or those persons is or are authorised by the company to act on its behalf;
(b) the company carries on a trade in the State;
(c) the company is a subsidiary or a holding company of a company or other body corporate that satisfies either or both of the conditions specified in paragraphs (a) and (b);
(d) the company is a subsidiary of a company, another subsidiary of which satisfies either or both of the conditions specified in paragraphs (a) and (b).
Section 141
Provisions for determining whether director resident in State
141. (1) So far as it is the person's residence in the State that falls to be determined for the purposes of those sections, for the purposes of sections 137 and 139 a person is resident in the State at a particular time (the “relevant time”) if—
(a) he or she is present in the State at—
(i) any one time or several times in the period of 12 months preceding the relevant time (the “immediate 12 month period”) for a period in the aggregate amounting to 183 days or more; or
(ii) any one time or several times—
(I) in the immediate 12 month period; and
(II) in the period of 12 months preceding the immediate 12 month period (the “previous 12 month period”),
for a period (being a period comprising in the aggregate the number of days on which the person is present in the State in the immediate 12 month period and the number of days on which the person was present in the State in the previous 12 month period) in the aggregate amounting to 280 days or more; or
(b) that time is in a year of assessment (within the meaning of the Taxes Consolidation Act 1997) in respect of which the person has made an election under section 819(3) of that Act.
(2) Notwithstanding subsection (1)(a)(ii), where in the immediate 12 month period concerned a person is present in the State at any one time or several times for a period in the aggregate amounting to not more than 30 days—
(a) the person shall not be resident in the State, for the purposes of section 137 or 139, at the relevant time concerned; and
(b) no account shall be taken of the period for the purposes of the aggregate mentioned in subsection (1)(a)(ii).
(3) For the purposes of subsections (1) and (2)—
(a) references in this section to a person’s being present in the State are references to the person’s being personally present in the State; and
(b) a person shall be deemed to be present in the State for a day if the person is present in the State at any time during that day.
Section 142
Limitation on number of directorships
142. (1) A person shall not, at a particular time, be a director of more than—
(a) 25 private companies limited by shares; or
(b) 25 companies, one, or more than one, of which is a private company limited by shares and one, or more than one, of which is any other type of company capable of being wound up under this Act.
(2) Subsections (3) to (7) apply in reckoning, for the purposes of subsection (1) (the “relevant purposes”), the number of companies of which the person concerned is a director at a particular time (the “relevant time”) and a reference in them to a company, without qualification, includes a reference to any type of company capable of being wound up under this Act.
(3) Without prejudice to the following subsections, there shall not be included for the relevant purposes any of the following companies of which the person is a director at the relevant time, namely—
(a) a public limited company;
(b) a company in respect of which a certificate under section 140 is in force.
(4) There shall not be included, for the relevant purposes, any company of which the person is a director at the relevant time (not being a time that is before the date of the giving of the certificate or direction referred to subsequently in this subsection) if—
(a) the person, or the company, delivers to the Registrar a notice, in the prescribed form, stating that the company is a company falling within one or more of the categories of company specified in the Table to this section; and
(b) either—
(i) the Registrar, having considered that notice and having made such enquiries as he or she thinks fit, certifies in writing, or as the case may be the Minister under subsection (7) so certifies, that the company is a company falling within one or more of the foregoing categories; or
(ii) the Minister directs, under subsection (7), that the company is not to be included amongst the companies for the relevant purposes.
(5) There shall, for the relevant purposes, be counted as the one company of which the person is a director at the relevant time, 2 or more companies of which he or she is a director at that time if one of those companies is the holding company of the other or others.
(6) For the purposes of subsection (4)(b)(i), the Registrar may accept as sufficient evidence that the company concerned falls within a category of company specified in the Table to this section a declaration, in the prescribed form, to that effect made by an officer of the company or the other person referred to in subsection (4)(a).
(7) If the Registrar refuses to certify that the company to which a notice under subsection (4)(a) relates is a company falling within a category of company specified in the Table to this section, the company or the person referred to in subsection (4)(a) may appeal to the Minister against such a refusal and the Minister may, having considered the matter and made such enquiries as he or she thinks fit, do one of the following:
(a) confirm the decision of the Registrar;
(b) certify in writing that the company is a company falling within a foregoing category; or
(c) notwithstanding that he or she confirms the decision of the Registrar, direct that the company is not to be included amongst the companies that shall be reckoned for the purposes of subsection (1) in so far as that subsection applies to the person concerned but shall only give such a direction if—
(i) the person concerned was a director of the company before 18 April 2000; and
(ii) in the opinion of the Minister the inclusion of the company amongst the companies that shall be reckoned for the purposes of subsection (1), in so far as that subsection applies to the person concerned, would result in serious injustice or hardship to that person; and
(iii) the giving of the direction would not operate against the common good.
(8) A notice referred to in subsection (4)(a) may, for the purposes of that provision, be delivered to the Registrar before the person concerned becomes a director of the company to which the notice relates.
Table
|
A company that is the holder of a licence under section 9 of the Central Bank Act 1971 or is exempt from the requirement under that Act to hold such a licence. |
|
A company falling within any provision (in so far as applicable to a private company limited by shares) of Schedule 5. |
Section 143
Sanctions for contravention of section 142 and supplemental provisions
143. (1) If a person, in contravention of section 142(1), purports to become, or purports to remain, a director of one or more companies he or she shall be guilty of a category 4 offence.
(2) An appointment of a person as a director of a company shall, if it contravenes section 142(1), be void.
(3) For the avoidance of doubt—
(a) each purported appointment, in excess of the limit (reckoned in accordance with section 142(3) to (7)) that is provided for by section 142(1), of a person as a director of a company shall constitute a separate contravention of section 142(1);
(b) an appointment, not in excess of the foregoing limit, of a person as a director of a company shall not, by virtue of this section, become unlawful, be rendered void or cease to have effect by reason of a subsequent appointment, in excess of that limit, of the person as a director of a company.
(4) If—
(a) the appointments of a person as a director of 2 or more companies are made at the same time; or
(b) the times at which the appointments of a person as a director of 2 or more companies were made are not capable of being distinguished from one another,
then those appointments shall, for the purposes of section 142, be deemed to have been made at different times on the day concerned and in the same order as the order in which the companies to which the appointments relate were registered under this Act, the prior Companies Acts or any other former enactment relating to companies (within the meaning of section 5), as the case may be.
(5) A reference in this section to a company includes a reference to any type of company capable of being wound up under this Act.
Section 144
Appointment of director
144. (1) Any purported appointment of a director without that director's consent shall be void.
(2) Subject to subsection (1), the first directors of a company shall be those persons determined in writing by the subscribers of the constitution or a majority of them.
(3) Save to the extent that the company's constitution provides otherwise and subject to subsection (5) in the case of a single-member company—
(a) subsequent directors of a company may be appointed by the members in general meeting, provided that no person other than a director retiring at the meeting shall, save where recommended by the directors, be eligible for election to the office of director at any general meeting unless the requirements of subsection (4) as to his or her eligibility for that purpose have been complied with;
(b) the directors of the company may from time to time appoint any person to be a director of the company, either to fill a casual vacancy or as an addition to the existing directors, but so that the total number of directors of the company shall not at any time exceed the number, if any, provided for in its constitution;
(c) any director appointed as mentioned in paragraph (b) shall hold office only until the next following annual general meeting, and shall then be eligible for re-election;
(d) the company may from time to time, by ordinary resolution, increase or reduce the number of directors;
(e) the company may, by ordinary resolution, appoint another person in place of a director removed from office under section 146 and, without prejudice to the powers of the directors under subsection (3)(b), the company in general meeting may appoint any person to be a director either to fill a casual vacancy or as an additional director.
(4) The following are the requirements mentioned in subsection (3)(a) for the eligibility of a person (the “person concerned”) for election as a director at a general meeting, namely, not less than 3 nor more than 21 days before the day appointed for the meeting there shall have been left at the company’s registered office—
(a) notice in writing signed by a member of the company duly qualified to attend and vote at the meeting for which such notice is given, of his or her intention to propose the person concerned for such election; and
(b) notice in writing signed by the person concerned of his or her willingness to be so elected.
(5) Subject to subsection (1), in the case of a single-member company, the sole member may appoint a person to be a director of the company by serving a notice in writing on the company which states that the named person is appointed director and this applies notwithstanding anything in subsection (3) (save for the requirement of it that any limit for the time being on the number of the directors is to be observed) or subsection (4).
Section 145
Appointment of directors to be voted on individually
145. (1) At a general meeting of a company, a motion for the appointment of 2 or more persons as directors of the company by a single resolution shall not be made, unless a resolution that it shall be so made has first been agreed to by the meeting without any vote being given against it.
(2) Subject to subsections (3) and (4), a resolution moved in contravention of this section shall be void, whether or not its being so moved was objected to at the time.
(3) Subsection (2) shall not be taken as excluding the operation of section 135.
(4) Where a resolution moved in contravention of this section is passed, no provision for the automatic re-appointment of retiring directors in default of another appointment shall apply.
(5) For the purposes of this section, a motion for approving a person's appointment or for nominating a person for appointment shall be treated as a motion for his or her appointment.
(6) Nothing in this section shall apply to a resolution amending the company's constitution.
Section 146
Removal of directors
146. (1) A company may by ordinary resolution remove a director before the expiration of his or her period of office notwithstanding anything in its constitution or in any agreement between it and him or her.
(2) Subsection (1) shall not authorise the removal of a director holding office for life.
(3) In the case of a resolution to remove a director under this section or to appoint somebody instead of the director so removed at the meeting at which he or she is removed the following provisions shall apply—
(a) the company shall be given not less than 28 days' notice of the intention to move any such resolution except when the directors of the company have resolved to submit it;
(b) on receipt of notice of such an intended resolution, the company shall forthwith send a copy of it to the director concerned, and the director (whether or not he or she is a member of the company) shall be entitled to be heard on the resolution at the meeting; and
(c) the company shall give its members notice of any such resolution at the same time and in the same manner as it gives notice of the meeting or, if that is not practicable, shall give them notice of it, either by advertisement in a daily newspaper circulating in the district in which the registered office of the company is situated or in any other manner allowed by this Act or by the constitution, not less than 21 days before the date of the meeting.
(4) Any such resolution that is passed that does not comply with the foregoing provisions shall, subject to subsection (5), not be effective.
(5) If, after notice of the intention to move such a resolution has been given to the company, a meeting is called for a date 28 days or less after the notice has been given, the notice, though not given within the time required by subsection (3)(a), shall be deemed to have been properly given for the purposes of that provision.
(6) Subject to subsection (8), where notice is given of an intended resolution to remove a director under this section and the director concerned makes in relation to that resolution representations in writing to the company (not exceeding a reasonable length) and requests their notification to the members of the company, the company shall, unless the representations are received by it too late for it to do so—
(a) in any notice of the resolution given to members of the company, state the fact of the representations having been made; and
(b) send a copy of the representations to every member of the company to whom notice of the meeting is sent (whether before or after receipt of the representations by the company).
(7) If a copy of the representations is not sent as mentioned in subsection (6) (either because they were received too late or because of the company's default) the director concerned may, without prejudice to his or her right to be heard orally, require that the representations shall be read out at the meeting concerned.
(8) Copies of the representations need not be sent out, and the representations need not be read out at the meeting concerned, as mentioned in subsection (6) or (7), if, on the application either of the company or of any other person who claims to be aggrieved, the court is satisfied that the rights conferred by this section are being abused to secure needless publicity for defamatory matter and orders that those things need not be done.
(9) The court may order the company's costs on such an application to be paid in whole or in part by the director concerned, notwithstanding that he or she is not a party to the application.
(10) A vacancy created by the removal of a director under this section may be filled at the meeting at which he or she is removed and, if not so filled, may be filled as a casual vacancy.
(11) A person appointed director in place of a person removed under this section shall be treated, for the purpose of determining the time at which he or she or any other director is to retire, as if he or she had become director on the day on which the person in whose place he or she is appointed was last appointed director.
Section 147
Compensation for wrongful termination, other powers of removal not affected by section 146
147. Nothing in section 146 shall be taken—
(a) as depriving a person removed under it of compensation or damages payable to him or her, or any other remedy available to the person, in respect of the termination of his or her appointment as director or of any appointment terminating with that as director; or
(b) as derogating from any power to remove a director that may exist apart from that section.
Section 148
Vacation of office
148. (1) In addition to the case provided by section 136 (share qualification of directors), the office of director shall be vacated if the director—
(a) is adjudicated bankrupt or being a bankrupt has not obtained a certificate of discharge in the relevant jurisdiction; or
(b) becomes or is deemed to be subject to a disqualification order within the meaning of Chapter 4 of Part 14.
(2) Save to the extent that the company’s constitution provides otherwise, the office of director shall be vacated if—
(a) the director resigns his or her office by notice in writing to the company; or
(b) the health of the director is such that he or she can no longer be reasonably regarded as possessing an adequate decision making capacity; or
(c) a declaration of restriction is made in relation to the director and the directors, at any time during the currency of the declaration, resolve that his or her office be vacated; or
(d) the director is sentenced to a term of imprisonment following conviction of an indictable offence; or
(e) the director is for more than 6 months absent, without the permission of the directors, from meetings of the directors held during that period.
(3) In subsection (2)(d) the reference to a term of imprisonment includes a reference to such a term that is suspended.
Section 149
Register of directors and secretaries
149. (1) A company shall keep a register (the “register”) of its directors and secretaries and, if any, its assistant and deputy secretaries.
(2) Subject to subsection (4) and section 150(11), the register shall contain the following particulars relating to each director:
(a) his or her present forename and surname and any former forename and surname;
(b) his or her date of birth;
(c) his or her usual residential address;
(d) his or her nationality;
(e) his or her business occupation, if any; and
(f) particulars of any other directorships of bodies corporate, whether incorporated in the State or elsewhere, held by him or her or which have been held by him or her.
(3) Sections 215 to 217 (rights of inspection, requests for copies, etc.) apply to the register.
(4) It shall not be necessary for the register to contain on any day particulars of any directorship—
(a) which has not been held by a director at any time during the 5 years preceding that day;
(b) which is held or was held by a director in bodies corporate of which the company is or was the wholly owned subsidiary or which are or were the wholly owned subsidiaries either of the company or of another body corporate of which the company is or was the wholly owned subsidiary.
(5) Subject to subsection (6) and section 150(11), the register shall contain the following particulars relating to the secretary or, where there are joint secretaries, in relation to each of them—
(a) in the case of an individual—
(i) his or her present forename and surname and any former forename and surname;
(ii) his or her usual residential address; and
(iii) his or her date of birth,
and
(b) in the case of a body corporate, the corporate name and, if the body corporate is registered—
(i) its registered office;
(ii) the register in which it is registered; and
(iii) the number under which it is registered in that register.
(6) Where all the partners in a firm are joint secretaries of a company, the name and principal office of the firm may be stated instead of the particulars referred to in subsection (5).
(7) In relation to any assistant or deputy secretary the same particulars shall be contained in the register as respects the assistant or deputy secretary as are required by subsection (5) to be contained in the register as respects a secretary or joint secretary.
(8) The company shall, within the period of 14 days after the date of the happening of—
(a) any change among its directors or in its secretary or assistant or deputy secretary; or
(b) any change in any of the particulars contained in the register,
send to the Registrar a notification in the prescribed form of the change and of the date on which it occurred.
(9) In the case of a person who is a director of more than one company (the “relevant companies”) the following provisions apply—
(a) the person may send a notification in the prescribed form to the Registrar of a change in his or her usual residential address or of a change in his or her name and (in each case) of the date on which the change occurred;
(b) if such a notification is sent to the Registrar and the relevant companies are listed in the notification as being companies of which the person is a director—
(i) each of the relevant companies shall be relieved, as respects, and only as respects, that particular change or, as the case may be, those particular changes, of the obligation under subsection (8) to send a notification of it or them to the Registrar; and
(ii) the Registrar may proceed to record the relevant change or changes concerning the person in relation to each of the relevant companies.
(10) A notification sent to the Registrar pursuant to subsection (8) of the appointment of a person as a director, secretary, joint secretary or assistant or deputy secretary of a company shall be accompanied by a consent signed by that person to act as director or secretary or assistant or deputy secretary or, where all the partners in a firm have been appointed joint secretaries of a company, by one partner on behalf of the firm, as the case may be.
(11) Section 223(3), in the case of a director, and section 226(5), in the case of a secretary, requires the inclusion of a particular statement in a foregoing consent by him or her.
(12) For the purposes of this section—
(a) in the case of a person usually known by a title different from his or her surname, the expression “surname” means that title;
(b) references to a “former forename” or “surname” do not include—
(i) in the case of a person usually known by a title different from his or her surname, the name by which he or she was known previous to the adoption of or succession to the title; or
(ii) in the case of any person, a former forename or surname where that name or surname was changed or disused before the person bearing the name attained the age of 18 years or has been changed or disused for a period of not less than 20 years, or
(iii) in the case of a married person or civil partner, the name or surname by which he or she was known previously to his or her marriage or civil partnership.
Annotations
Editorial Notes:
E63
Power pursuant to subs. (8) exercised (11.06.2023) by Companies Act 2014 (Forms) Regulations 2023 (S.I. No. 295 of 2023), in effect as per reg. 1(2).
Section 150
Supplemental provisions (including offences) in relation to section 149
150. (1) Without prejudice to the generality of section 149(8), a change among the directors for the purposes of that provision shall be deemed to include the case of a director's becoming disqualified under the law of another state (whether pursuant to an order of a judge or a tribunal or otherwise) from being appointed or acting as a director or secretary of a body corporate or an undertaking; accordingly, in such a case, the notice under section 149(8) shall state, in relation to the director concerned—
(a) the jurisdiction in which he or she has become so disqualified;
(b) the date on which he or she has become so disqualified; and
(c) the period for which he or she has become so disqualified.
(2) Without prejudice to subsection (1) and to the requirement under section 149(10) that the notification be accompanied by the consent there referred to, if—
(a) the notification to be sent to the Registrar pursuant to section 149(8) is a notification of the appointment of a person as a director of a company; and
(b) that person is a person who is disqualified under the law of another state (whether pursuant to an order of a judge or a tribunal or otherwise) from being appointed or acting as a director or secretary of a body corporate or an undertaking,
that person shall ensure that the notification is accompanied by (but as a separate document from that notification) a statement in the prescribed form signed by the person specifying—
(i) the jurisdiction in which he or she is so disqualified;
(ii) the date on which he or she became so disqualified; and
(iii) the period for which he or she is so disqualified.
(3) It shall be the duty of each director and secretary and assistant or deputy secretary, if any, of a company to give information in writing to the company as soon as may be of such matters as may be necessary to enable the company to comply with section 149 and the preceding subsections of this section.
(4) If default is made in complying with section 149(1), (2), (5), (7), (8) or (10), the company concerned and any officer of it who is in default shall be guilty of a category 3 offence.
(5) A person who fails to comply with subsection (1) shall be guilty of a category 3 offence.
(6) If the second mentioned person in subsection (2) fails to comply with that subsection, he or she shall be guilty of a category 3 offence.
(7) A person who fails to comply with subsection (3) shall be guilty of a category 3 offence.
(8) Without prejudice to subsection (3) or (6) and notwithstanding anything in subsection (2), it shall be the duty of a company to make reasonable enquiries of a person, on his or her appointment as director of the company, so as to ascertain whether the requirements of subsection (2) fall to be complied with by that person in relation to that appointment (but a failure of the company to do so does not relieve the person of his or her obligations under that subsection).
(9) If a person appointed a director of a company before the commencement of this section has, subsequent to his or her appointment but before that commencement, become disqualified under the law of another state (whether pursuant to an order of a judge or a tribunal or otherwise) from being appointed or acting as director or secretary of a body corporate or an undertaking, then subsection (1) shall apply to such a case as it applies to a case of a director becoming so disqualified after that commencement.
(10) For the purpose of the application of subsection (1) to the case first-mentioned in the preceding subsection, section 149 shall apply as if the following subsection were substituted for subsection (8):
“(8) The company shall, within the period of 3 months after the commencement of this section, send to the Registrar a notification in the prescribed form of the change and of the date on which it occurred.”.
(11) The Minister may make regulations providing that any requirement of this Act that the usual residential address of an officer of a company appear on the register referred to in section 149(1) or the register kept by the Registrar shall not apply in relation to a particular person who is such an officer if—
(a) in accordance with a procedure provided in the regulations for this purpose, it is determined that the circumstances concerning the personal safety or security of the person warrant the application of the foregoing exemption in respect of him or her; and
(b) such other conditions (if any) as are specified in the regulations for the application of the foregoing exemption are satisfied.
(12) Regulations under subsection (11) may contain such incidental, consequential and supplemental provisions as appear to the Minister to be necessary or expedient, including provision—
(a) so as to secure that there is not otherwise disclosed, by virtue of this Act's operation, the usual residential address of a person in respect of whom the exemption referred to in that subsection applies; and
(b) limiting the regulations’ application to a usual residential address that, but for the regulations’ operation, would fall to be entered, on a register referred to in that subsection, on or after a date specified in the regulations.
Annotations
Editorial Notes:
E64
Power pursuant to section exercised (25.11.2015) by Companies Act 2014 (Section 150) (No. 2) Regulations 2015 (S.I. No. 543 of 2015).
E65
Previous affecting provision: power pursuant to section exercised (1.06.2015) by Companies Act 2014 (Section 150) Regulations 2015 (S.I. No. 225 of 2015), in effect as per reg. 1(2); revoked (25.11.2015) by Companies Act 2014 (Section 150) (No. 2) Regulations 2015 (S.I. No. 543 of 2015).
Section 151
Particulars to be shown on all business letters of company
151. (1) F64[A company] shall, in all business letters on or in which the company's name appears and which are sent by the company to any person, state in legible characters in relation to every director of the company the following particulars:
(a) his or her present forename, or the initials thereof, and present surname;
(b) any former forename and surnames of him or her; and
(c) his or her nationality, if not Irish.
(2) A company shall further have the following particulars on all its business letters and order forms:
(a) the name and legal form of the company;
(b) the place of registration of the company and the number under which it is registered; and
(c) the address of its registered office.
(3) If on any business letters or order forms of a company there is reference to the share capital of the company, the company shall ensure that the reference is not stated otherwise than as a reference to the issued share capital of the company that is paid up.
(4) Where a company has a website, it shall display in a prominent and easily accessible place on that website the particulars referred to in subsection (2)(a) to (c) and if there is reference in such a website to the share capital of the company—
(a) the same requirement under subsection (3) applies to such a reference as it applies to such a reference on business letters and order forms; and
(b) the reference shall be displayed in a prominent and easily accessible place on the website.
(5) F65[…]
(6) If a company makes default in complying with this section, the company and any officer of it who is in default shall be guilty of a category 4 offence.
(7) For the purposes of this section—
(a) “director” includes any person in accordance with whose directions or instructions the directors of the company are accustomed to act, and “officer” shall be read accordingly;
(b) “initials” includes a recognised abbreviation of a forename; and
(c) section 149(12) shall apply as it applies for the purposes of section 149.
Annotations
Amendments:
F64
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 27(a), S.I. No. 335 of 2022.
F65
Deleted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 27(a), S.I. No. 335 of 2022.
Section 152
Entitlement to notify Registrar of changes in directors and secretaries if section 149(8) contravened
152. (1) In this section “former director or secretary” means the person referred to in subsection (2).
(2) This section applies where a company fails to send, in accordance with section 149(8), a notification, in the prescribed form, to the Registrar of the fact of a person's having ceased, for whatever reason, to be a director or secretary of the company and of the date on which that event occurred.
(3) Where this section applies, the former director or secretary may serve on the company a notice—
(a) requesting it to send forthwith the notification of the matters mentioned in subsection (2), in the prescribed form, to the Registrar; and
(b) stating that if the company fails to comply with that request within 21 days after the date of service of the notice on it, he or she will forward to the Registrar and to every person who, to his or her knowledge, is an officer of the company a copy of any notice of resignation by him or her as a director or secretary of the company or any other documentary proof of his or her having ceased to be such a director or secretary, together with—
(i) in the case of the Registrar, such additional information as may be prescribed (which may include a declaration made by the person stating the names of the persons who, to the knowledge of the person, are officers of the company); and
(ii) in the case of every other person forwarded as mentioned above, a written request of the person that he or she take such steps as will ensure that the failure of the company to comply with the notice continues no further.
(4) If a company fails to comply with a request made of it under a notice referred to in subsection (3), the former director or secretary may forward to the Registrar and to every person who, to his or her knowledge, is an officer of the company a copy of the notice of resignation or other documentary proof referred to in subsection (3)(b) if, but only if, there is forwarded together with that notice or proof—
(a) in the case of the Registrar, the additional information referred to in subsection (3)(b)(i); and
(b) in the case of every other such person, the written request referred to in subsection(3)(b)(ii).
(5) No notice of resignation or other documentary proof of a person's having ceased to be a director or secretary of a company which is forwarded to the Registrar by that person (other than such a notice or other proof which is forwarded by him or her under and in accordance with the preceding subsections or section 139) shall be considered by the Registrar.
(6) No additional information referred to in subsection (3)(b)(i) that is—
(a) included in a notice of resignation or other documentary proof referred to in this section; and
(b) forwarded, under and in accordance with the foregoing provisions of this section, to the Registrar,
shall, of itself, be regarded as constituting defamatory matter.
Annotations
Editorial Notes:
E66
Power pursuant to subs. (3) exercised (11.06.2023) by Companies Act 2014 (Forms) Regulations 2023 (S.I. No. 295 of 2023), in effect as per reg. 1(2).
Section 153
Provisions as to assignment of office by directors
153. (1) This section applies to any provision of—
(a) the constitution of a company, or
(b) any agreement entered into between a company and any person,
under which a director of the company is enabled to assign his or her office as such to another person.
(2) Any assignment of office made in pursuance of a provision to which this section applies shall, notwithstanding anything to the contrary contained in the provision, be of no effect unless and until it is approved by a special resolution of the company.
CHAPTER 3
Service contracts and remuneration
Section 154
Copies of directors’ service contracts
154. (1) Subject to the provisions of this section, a company shall keep—
(a) in the case of each director whose contract of service with the company is in writing, a copy of that contract;
(b) in the case of each director whose contract of service with the company is not in writing, a written memorandum setting out the terms of that contract;
(c) in the case of each director who is employed under a contract of service with a subsidiary of the company, a copy of that contract or, if it is not in writing, a written memorandum setting out the terms of that contract;
(d) a copy or written memorandum, as the case may be, of any variation of any contract of service referred to in paragraph (a), (b) or (c),
and all copies and memoranda kept by a company in pursuance of this subsection shall be kept at the same place.
(2) Sections 215 to 217 (rights of inspection, etc.) apply to those copies and memoranda.
(3) Where a contract of service is only partially in writing, paragraphs (a), (b), (c) and (d), as appropriate, of subsection (1), and subsection (4) shall also apply to such a contract.
(4) Subsection (1) shall not apply in relation to a director's contract of service with the company or with a subsidiary of the company if that contract required him or her to work wholly or mainly outside the State, but the company shall keep a memorandum—
(a) in the case of a contract of service with the company, setting out the name of the director and the provisions of the contract relating to its duration;
(b) in the case of a contract of service with a subsidiary of the company, setting out the name of the director, the name and place of incorporation of the subsidiary and the provisions of the contract relating to its duration,
at the same place as copies and the memoranda are kept by the company in pursuance of subsection (1).
(5) If default is made in complying with subsection (1) or (4), the company concerned and any officer of it who is in default shall be guilty of a category 3 offence.
(6) This section shall not require to be kept—
(a) a copy of, or memorandum setting out the terms of, a contract; or
(b) a copy of, or memorandum setting out the terms of a variation of, a contract,
at a time at which the unexpired portion of the term for which the contract is to be in force is less than 3 years or at a time at which the contract can, within the next ensuing 3 years, be terminated by the company without payment of compensation.
Section 155
Remuneration of directors
155. (1) Each provision of this section applies save to the extent that the company's constitution provides otherwise.
(2) The remuneration of the directors of a company shall be such as is determined, from time to time, by the board of directors and such remuneration shall be deemed to accrue from day to day.
(3) The directors of a company may also be paid all travelling, hotel and other expenses properly incurred by them—
(a) in attending and returning from—
(i) meetings of the directors or any committee referred to in section 160(9); or
(ii) general meetings of the company,
or
(b) otherwise in connection with the business of the company.
Section 156
Prohibition of tax-free payments to directors
156. (1) It shall not be lawful for a company to pay a director of the company remuneration (whether as director or otherwise)—
(a) free of income tax or the universal social charge, or
(b) otherwise calculated by reference to or varying with the amount of his or her income tax or to or with the rate of income tax,
except under a contract which was in force on 31 March 1962 and provides expressly and not by reference to the constitution for payment of remuneration in that manner.
(2) Any provision contained in—
(a) a company’s constitution;
(b) any contract other than such a contract as is mentioned in subsection (1); or
(c) any resolution of a company or a company's directors,
for payment to a director of remuneration in the manner referred to in subsection (1) shall have effect as if it provided for payment, as a gross sum subject to income tax and the universal social charge, of the net sum for which it actually provides.
CHAPTER 4
Proceedings of directors
Section 157
Sections 158 to 165 to apply save where constitution provides otherwise
157. Each subsequent provision of this Chapter (other than sections 166 and 167) applies save to the extent that the company's constitution provides otherwise.
Section 158
General power of management and delegation
158. (1) The business of a company shall be managed by its directors, who may pay all expenses incurred in promoting and registering the company and may exercise all such powers of the company as are not, by this Act or by the constitution, required to be exercised by the company in general meeting, but subject to—
(a) any regulations contained in the constitution;
(b) the provisions of this Act; and
(c) such directions, not being inconsistent with the foregoing regulations or provisions, as the company in general meeting may (by special resolution) give.
(2) However, no direction given by the company in general meeting under subsection (1) (c) shall invalidate any prior act of the directors which would have been valid if that direction had not been given.
(3) Without prejudice to the generality of that subsection, subsection (1) operates to enable, subject to a limitation (if any) arising under any of paragraphs (a) to (c) of it, the directors of the company to exercise all powers of the company to borrow money and to mortgage or charge its undertaking, property and uncalled capital, or any part thereof.
(4) Without prejudice to section 40, the directors may delegate any of their powers to such person or persons as they think fit, including committees; any such committee shall, in the exercise of the powers so delegated, conform to any regulations that may be imposed on it by the directors.
(5) The reference in subsection (1) to a power of the company required to be exercised by the company in general meeting includes a reference to a power of the company that, but for the power of the members to pass a written resolution to effect the first-mentioned power's exercise, would be required to be exercised by the company in general meeting.
Section 159
Managing director
159. (1) The directors of a company may from time to time appoint one or more of themselves to the office of managing director (by whatever name called) for such period and on such terms as to remuneration and otherwise as they see fit, and, subject to the terms of any agreement entered into in any particular case, may revoke such appointment.
(2) Without prejudice to any claim the person so appointed may have for damages for breach of any contract of service between the person and the company, the person's appointment shall cease upon his or her ceasing, from any cause, to be a director of the company.
(3) A managing director of a company shall receive such remuneration whether by way of salary, commission or participation in the profits, or partly in one way and partly in another, as the directors may determine.
(4) Without prejudice to section 40, the directors may confer upon a managing director any of the powers exercisable by them upon such terms and conditions and with such restrictions as they may think fit.
(5) In conferring any such powers, the directors may specify that the conferral is to operate either—
(a) so that the powers concerned may be exercised concurrently by them and the managing director; or
(b) to the exclusion of their own such powers.
(6) The directors may—
(a) revoke any conferral of powers under subsection (4); or
(b) amend any such conferral (whether as to the powers conferred or the terms, conditions or restrictions subject to which the conferral is made).
Section 160
Meetings of directors and committees
160. (1) The directors of a company may meet together for the dispatch of business, adjourn and otherwise regulate their meetings as they think fit.
(2) Questions arising at any such meeting shall be decided by a majority of votes and where there is an equality of votes, the chairperson shall have a second or casting vote.
(3) A director may, and the secretary on the requisition of a director shall, at any time summon a meeting of the directors.
(4) All directors shall be entitled to reasonable notice of any meeting of the directors but, if the directors so resolve, it shall not be necessary to give notice of a meeting of directors to any director who, being resident in the State, is for the time being absent from the State.
(5) Nothing in subsection (4) or any other provision of this Act enables a person, other than a director of the company concerned, to object to the notice given for any meeting of the directors.
(6) The quorum necessary for the transaction of the business of the directors may be fixed by the directors, and unless so fixed shall be 2 but, where the company has a sole director, the quorum shall be one.
(7) The continuing directors may act notwithstanding any vacancy in their number but, if and so long as their number is reduced below the number fixed by or pursuant to this Act as the necessary quorum of directors, the continuing directors or director may act for the purpose of increasing the number of directors to that number or of summoning a general meeting of the company but for no other purpose.
(8) The directors may elect a chairperson of their meetings and determine the period for which he or she is to hold office, but if no such chairperson is elected, or, if at any meeting the chairperson is not present within 15 minutes after the time appointed for holding it, the directors present may choose one of their number to be chairperson of the meeting.
(9) The directors may establish one or more committees consisting in whole or in part of members of the board of directors.
(10) A committee established under subsection (9) (a “committee”) may elect a chairperson of its meetings; if no such chairperson is elected, or if at any meeting the chairperson is not present within 15 minutes after the time appointed for holding it, the members of the committee present may choose one of their number to be chairperson of the meeting.
(11) A committee may meet and adjourn as it thinks proper.
(12) Questions arising at any meeting of a committee shall be determined by a majority of votes of the members of the committee present, and where there is an equality of votes, the chairperson shall have a second or casting vote.
Section 161
Supplemental provisions about meetings (including provision for acting by means of written resolutions)
161. (1) A resolution in writing signed by all the directors of a company, or by all the members of a committee of them, and who are for the time being entitled to receive notice of a meeting of the directors or, as the case may be, of such a committee, shall be as valid as if it had been passed at a meeting of the directors or such a committee duly convened and held.
(2) Subject to subsection (3), where one or more of the directors (other than a majority of them) would not, by reason of—
(a) this Act or any other enactment;
(b) the company’s constitution; or
(c) a rule of law,
be permitted to vote on a resolution such as is referred to in subsection (1), if it were sought to pass the resolution at a meeting of the directors duly convened and held, then such a resolution, notwithstanding anything in subsection (1), shall be valid for the purposes of that subsection if the resolution is signed by those of the directors who would have been permitted to vote on it had it been sought to pass it at such a meeting.
(3) In a case falling within subsection (2), the resolution shall state the name of each director who did not sign it and the basis on which he or she did not sign it.
(4) For the avoidance of doubt, nothing in the preceding subsections dealing with a resolution that is signed by other than all of the directors shall be read as making available, in the case of an equality of votes, a second or casting vote to the one of their number who would, or might have been, if a meeting had been held to transact the business concerned, chairperson of that meeting.
(5) The resolution referred to in subsection (1) may consist of several documents in like form each signed by one or more directors and for all purposes shall take effect from the time that it is signed by the last director.
(6) A meeting of the directors or of a committee referred to in section 160(9) may consist of a conference between some or all of the directors or, as the case may be, members of the committee who are not all in one place, but each of whom is able (directly or by means of telephonic, video or other electronic communication) to speak to each of the others and to be heard by each of the others and—
(a) a director or member of the committee taking part in such a conference shall be deemed to be present in person at the meeting and shall be entitled to vote and be counted in a quorum accordingly; and
(b) such a meeting shall be deemed to take place—
(i) where the largest group of those participating in the conference is assembled;
(ii) if there is no such group, where the chairperson of the meeting then is;
(iii) if neither subparagraph (i) or (ii) applies, in such location as the meeting itself decides.
(7) Subject to the other provisions of this Act, a director may vote in respect of any contract, appointment or arrangement in which he or she is interested and he or she shall be counted in the quorum present at the meeting.
(8) The directors of a company may exercise the voting powers conferred by the shares of any other company held or owned by the company in such manner in all respects as they think fit and, in particular, they may exercise the voting powers in favour of any resolution—
(a) appointing the directors or any of them as directors or officers of such other company; or
(b) providing for the payment of remuneration or pensions to the directors or officers of such other company.
(9) Any director of the company may vote in favour of the exercise of such voting rights notwithstanding that he or she may be or may be about to become a director or officer of the other company referred to in subsection (8) and as such or in any other way is or may be interested in the exercise of such voting rights in the foregoing manner.
Section 162
Holding of any other office or place of profit under the company by director
162. (1) A director of a company may hold any other office or place of profit under the company (other than the office of statutory auditor) in conjunction with his or her office of director for such period and on such terms as to remuneration and otherwise as the directors of the company may determine.
(2) No director of a company or intending such director shall be disqualified by his or her office from contracting with the company either with regard to his or her tenure of any such other office or place of profit or as vendor, purchaser or otherwise.
(3) In particular, neither shall—
(a) any contract with respect to any of the matters referred to in subsection (2), nor any contract or arrangement entered into by or on behalf of the company in which a director is in any way interested, be liable to be avoided, nor
(b) a director so contracting or being so interested be liable to account to the company for any profit realised by any such contract or arrangement,
by reason of such director holding that office or of the fiduciary relation thereby established.
Section 163
Counting of director in quorum and voting at meeting at which director is appointed
163. A director of a company, notwithstanding his or her interest, may be counted in the quorum present at any meeting at which—
(a) that director or any other director is appointed to hold any such office or place of profit under the company as is mentioned in section 162(1), or
(b) the terms of any such appointment are arranged,
and he or she may vote on any such appointment or arrangement other than his or her own appointment or the arrangement of the terms of it.
Section 164
Signing, drawing, etc., of negotiable instruments and receipts
164. Each—
(a) cheque, promissory note, draft, bill of exchange or other negotiable instrument, and
(b) receipt for moneys paid to the company,
shall be signed, drawn, accepted, endorsed or otherwise executed, as the case may be, by such person or persons and in such manner as the directors of the company shall from time to time by resolution determine.
Section 165
Alternate directors
165. (1) Any director (the “appointer”) of a company may from time to time appoint any other director of it or, with the approval of a majority of its directors, any other person to be an alternate director (the “appointee”) as respects him or her.
(2) Only one person may stand appointed at a particular time to be an alternate director as respects a particular director.
(3) The appointee, while he or she holds office as an alternate director, shall be entitled—
(a) to notice of meetings of the directors of the company,
(b) to attend at such meetings as a director, and
(c) in place of the appointer, to vote at such meetings as a director,
but shall not be entitled to be remunerated otherwise than out of the remuneration of the appointer.
(4) Any appointment under this section shall be effected by notice in writing given by the appointer to the company.
(5) Any appointment so made may be revoked at any time by the appointer or by a majority of the other directors or by the company in general meeting.
(6) Revocation of such an appointment by the appointer shall be effected by notice in writing given by the appointer to the company.
Section 166
Minutes of proceedings of directors
166. (1) A company shall cause minutes to be entered in books kept for that purpose of—
(a) all appointments of officers made by its directors;
(b) the names of the directors present at each meeting of its directors and of any committee of the directors;
(c) all resolutions and proceedings at all meetings of its directors and of committees of directors.
(2) Such minutes shall be entered in the foregoing books as soon as may be after the appointment concerned is made, the meeting concerned has been held or the resolution concerned has been passed.
(3) Any such minute, if purporting to be signed by the chairperson of the meeting at which the proceedings were had, or by the chairperson of the next succeeding meeting, shall be evidence of the proceedings.
(4) Where minutes have been made in accordance with this section of the proceedings at any meeting of directors or committee of directors, then, until the contrary is proved—
(a) the meeting shall be deemed to have been duly held and convened;
(b) all proceedings had at the meeting shall be deemed to have been duly had; and
(c) all appointments of officers made by its directors at the meeting shall be deemed to be valid.
(5) A company shall, if required by the F66[Authority, produce to the Authority for inspection the book or books kept in accordance with subsection (1) by it and shall give to the Authority such facilities for inspecting and taking copies of the contents of the book or books as the Authority] may require.
(6) If a company fails to comply with subsection (1) or with a requirement made of it under subsection (5), the company and any officer of it who is in default shall be guilty of a category 4 offence.
Annotations
Amendments:
F66
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. no. 5, S.I. No. 335 of 2022.
Section 167
Audit committees
167. (1) In this section—
“amount of turnover” and “balance sheet total” have the same meanings as they have in F67[section 275];
“F67[relevant company]” means either of the following—
(a) a company that, in both the most recent financial year of the company and the immediately preceding financial year, meets the following criteria—
(i) the balance sheet total of that company exceeds for the year—
(I) subject to clause (II), €25,000,000; or
(II) if an amount is prescribed under F67[section 943(1)(i)], the prescribed amount;
and
(ii) the amount of turnover of that company exceeds for the year—
(I) subject to clause (II), €50,000,000; or
(II) if an amount is prescribed under F67[section 943(1)(i)], the prescribed amount;
or
(b) a company which has one or more subsidiary undertakings, if the company and all those subsidiary undertakings together, in both the most recent financial year of that company and the immediately preceding financial year, meet the criteria set out in paragraph (a).
(2) The board of directors of a F67[relevant company] shall either—
(a) establish a committee (an “audit committee”) that—
(i) has at least the responsibilities specified in subsection (7); and
(ii) otherwise meets the requirements of this section;
or
(b) decide not to establish such a committee.
(3) The board of directors of a F67[relevant company] shall state in their report under section 325—
(a) whether the company has established an audit committee or decided not to do so;
(b) if the company has decided not to establish an audit committee, the reasons for that decision.
(4) The members of the audit committee shall include at least one independent director of the F67[relevant company], that is to say, a person who—
(a) is a non-executive director of it; and
(b) otherwise possesses the requisite degree of independence (particularly with regard to his or her satisfying the condition in subsection (5)) so as to be able to contribute effectively to the committee's functions.
(5) The condition referred to in subsection (4)(b) is that the director there referred to does not have, and at no time during the period of 3 years preceding his or her appointment to the committee did have—
(a) a material business relationship with the F67[relevant company], either directly, or as a partner, shareholder, director (other than as a non-executive director) or senior employee of a body that has such a relationship with the company; or
(b) a position of employment in the F67[relevant company].
(6) The director referred to in subsection (4) (or, where there is more than one director of the kind referred to in that subsection, one of them) shall be a person who has competence in accounting or auditing.
(7) Without prejudice to the responsibility of the board of directors, the responsibilities of the audit committee shall include:
(a) the monitoring of the financial reporting process;
(b) the monitoring of the effectiveness of the F67[relevant company]'s systems of internal control, internal audit and risk management;
(c) the monitoring of the statutory audit of the F67[relevant company]'s statutory financial statements; and
(d) the review and monitoring of the independence of the statutory auditors and in particular the provision of additional services to the F67[relevant company].
(8) If an audit committee is established, any proposal of the board of directors of the F67[relevant company] with respect to the appointment of statutory auditors to the company shall be based on a recommendation made to the board by the audit committee.
(9) The statutory auditors shall report to the audit committee of the F67[relevant company] on key matters arising from the statutory audit of the company, and, in particular, on material weaknesses in internal control in relation to the financial reporting process.
(10) For the purposes of subsections (4) and (5)(a), a non-executive director is a director who is not engaged in the daily management of the F67[relevant company] or body concerned, as the case may be.
(11) Where a director of a F67[relevant company] fails to take all reasonable steps to comply with the requirements of subsection (3), the director shall be guilty of a category 3 offence.
Annotations
Amendments:
F67
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 9, S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
CHAPTER 5
Members
Section 168
Definition of member
168. (1) The subscribers to the constitution of a company shall be deemed to have agreed to become members of the company, and, on its registration, shall be entered as members in its register of members.
(2) Every other person who agrees to become a member of a company, and whose name is entered in its register of members, shall be a member of the company.
Section 169
Register of members
169. (1) Subject to subsection (5), a company shall keep a register of its members and enter in it the following particulars:
(a) the names, addresses of the members and a statement of the shares held by each member, distinguishing each share by its number so long as the share has a number, and of the amount paid or agreed to be considered as paid on the shares of each member;
(b) the date at which each person was entered in the register as a member; and
(c) the date at which any person ceased to be a member.
(2) Sections 215 to 217 (rights of inspection, requests for copies, etc.) apply to the register of members.
(3) The entries required under paragraphs (a) and (b) of subsection (1) shall be made within 28 days after the date of conclusion of the agreement with the company to become a member or, in the case of a subscriber of the constitution, within 28 days after the date of registration of the company.
(4) The entry required under subsection (1)(c) shall be made—
(a) within 28 days after the date when the person concerned ceased to be a member; or
(b) if the person ceased to be a member otherwise than as a result of action by the company, within 28 days after the date of production to the company of evidence satisfactory to the company of the occurrence of the event whereby the person ceased to be a member.
(5) Where the company has converted any of its shares into stock and given notice of the conversion to the Registrar, the register shall show the amount of stock held by each member instead of the amount of shares and the particulars relating to shares specified in subsection (1)(a).
(6) Where a company makes default in complying with any of the requirements of subsection (1) or subsections (3) to (5), the company and any officer of it who is in default shall be guilty of a category 3 offence.
Section 170
Trusts not to be entered on register of members
170. No notice of any trust, express, implied or constructive, shall be entered—
(a) on the register of members or be receivable by the keeper of the register; or
(b) on any register kept by the Registrar.
Section 171
Register to be evidence
171. The register of members shall be prima facie evidence of any matters by this Act directed or authorised to be inserted in it.
Section 172
Consequences of failure to comply with requirements as to register owing to agent’s default
172. (1) Where—
(a) by virtue of section 216(2) the register of members is kept by some person other than the company concerned; and
(b) by reason of any default of that other person a failure on the part of the company to comply with section 169 or 216, or with any requirements of this Act as to the production of the register, occurs amounting to the commission of an offence under this Act by the company,
that other person shall also be guilty of an offence and may be charged with and convicted of it whether or not proceedings for an offence are brought against the company.
(2) A person guilty of an offence under subsection (1) shall be liable on conviction to the same range of fines and other penalties provided in this Act that the company referred to in subsection (1) is or would be liable in respect of that offence.
(3) The power of the court under this Act to require compliance with the provision concerned shall extend to the making of orders against the person referred to in subsection (1) and his or her officers and servants.
Section 173
Rectification of register
173. (1) If—
(a) the name of any person is, without sufficient cause, entered in the register of members or omitted from it, in contravention of subsections (1) and (3) of section 169, or
(b) default is made in entering on the register, within the period fixed by subsection (4) of section 169, the fact of any person’s having ceased to be a member,
the person aggrieved, or any member of the company, or the company, may apply to the court for rectification of the register.
(2) Where an application is made under this section, the court may either refuse the application or may order rectification of the register and payment by the company of compensation for any loss sustained by any party aggrieved.
(3) On an application under this section the court may decide any question relating to the title of any person who is a party to the application to have his or her name entered in or omitted from the register (whether the question arises between members or alleged members, or between members or alleged members on the one hand and the company on the other hand) and generally may decide any question necessary or expedient to be decided for rectification of the register.
(4) The court when making an order for rectification of the register shall by its order direct, if appropriate, notice of the rectification to be given to the Registrar.
(5) A company may, without application to the court, at any time rectify any error or omission in the register but such a rectification shall not adversely affect any person unless he or she agrees to the rectification made.
(6) The company shall, within 21 days after the date on which the rectification under subsection (5) has been made, give notice, in the prescribed form, of the rectification to the Registrar if the error or omission referred to in subsection (5) also occurs in any document forwarded by the company to the Registrar.
(7) Without prejudice to the generality of subsection (5), a rectification may be effected by the company under that subsection of an error or omission that relates to the amount of the company’s issued share capital (whether it consists of an overstatement or understatement of it) and subsection (6) shall apply, in the circumstances there set out, in the event of such a rectification.
Section 174
Power to close register
174. A company may, on giving notice by advertisement in some newspaper circulating in the district in which the registered office of the company is situate, close the register of members for any time or times not exceeding in the whole 30 days in each year.
CHAPTER 6
General meetings and resolutions
Section 174A
F68[General meetings during interim period
174A. F69[…]]
Annotations
Amendments:
F68
Inserted (21.08.2020) by Companies (Miscellaneous Provisions (Covid-19) Act 2020 (9/2020), s. 6, S.I. No. 320 of 2020. Note extensions of interim period by statutory instruments made under s. 12A.
F69
Repealed (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 3(1) and sch. 1, S.I. No. 639 of 2024.
Editorial Notes:
E67
The section heading is taken from the amending section in the absence of one included in the amendment.
Section 175
Annual general meeting
175. (1) Subject to subsections (2) and (3), a company shall in each year hold a general meeting as its annual general meeting in addition to any other meetings in that year and shall specify the meeting as such in the notices calling it and not more than 15 months shall elapse between the date of one annual general meeting of a company and that of the next.
(2) So long as a company holds its first annual general meeting within 18 months after the date of its incorporation, it need not hold it in the year of its incorporation or in the following year.
(3) A company need not hold an annual general meeting in any year where all the members entitled (at the date of the written resolution referred to in this subsection) to attend and vote at such general meeting sign, before the latest date for the holding of that meeting, a written resolution under section 193—
(a) acknowledging receipt of the financial statements that would have been laid before that meeting;
(b) resolving all such matters as would have been resolved at that meeting; and
(c) confirming no change is proposed in the appointment of the person (if any) who, at the date of the resolution, stands appointed as statutory auditor of the company.
(4) Without prejudice to any specific provision of this Act providing for the contingency of an annual general meeting being so dispensed with, where a provision of this Act requires that a thing is to be done at an annual general meeting, then, if the thing is dealt with in the foregoing resolution (whether by virtue of the matter being resolved in the resolution, the members' acknowledging receipt of a notice, report or other documentation or, as the case may require, howsoever otherwise), that requirement shall be regarded as having been complied with.
(5) If default is made in holding a meeting of the company in accordance with subsection (1), the F70[Authority may, on the application of any member of the company, call or direct the calling of a general meeting of the company and give such ancillary or consequential directions as the Authority] thinks expedient, including directions modifying or supplementing the operation of the company's constitution in relation to the calling, holding and conducting of the meeting.
(6) The directions which may be given under subsection (5) may include a direction that one member of the company present in person or by proxy shall be deemed to constitute a meeting.
(7) A general meeting held in pursuance of subsection (5) shall, subject to any directions of the F70[Authority] and subsection (8), be deemed to be an annual general meeting of the company.
(8) Where a meeting so held is not held in the year in which the default in holding the company's annual general meeting occurred, the meeting so held shall not be treated as the annual general meeting for the year in which it is held unless, at that meeting, the company resolves that it shall be so treated.
(9) Where a company resolves that a meeting shall be so treated, a copy of the resolution shall, within 21 days after the date of passing of it, be delivered by it to the Registrar.
(10) If default is made in holding a meeting of the company in accordance with subsection (1), or in complying with any direction of the F70[Authority] under subsection (5), the company and any officer of it who is in default shall be guilty of a category 3 offence.
(11) If default is made by a company in complying with subsection (9), the company and any officer of it who is in default shall be guilty of a category 4 offence.
Annotations
Amendments:
F70
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. nos. 6-8, S.I. No. 335 of 2022.
Section 176
The location and means for holding general meetings
176. (1) F71[Subject to section 176A and] the provisions of this section, an annual general meeting of a company or an extraordinary general meeting of it may be held inside or outside of the State.
(2) If a company holds its annual general meeting or any extraordinary general meeting outside of the State then, unless all of the members entitled to attend and vote at such meeting consent in writing to its being held outside of the State, the company has the following duty.
F71[(3) That duty is to make provision for participation in any such meeting by the use of electronic communications technology in accordance with section 176A.]
(4) A meeting referred to in subsection (1) may be held in 2 or more venues (whether inside or outside of the State) at the same time F71[by the use of electronic communications technology in accordance with section 176A].
Annotations
Amendments:
F71
Substituted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 11(a)-(c), S.I. No. 639 of 2024.
Section 176A
F72[Participation in general meetings by use of electronic communications technology
176A. (1) Save to the extent that the company’s constitution provides otherwise, a company need not hold a general meeting at a physical venue but may conduct the meeting wholly or partly by the use of electronic communications technology as long as all attendees have a reasonable opportunity to participate in the meeting in accordance with this section.
(2) Where a company conducts a general meeting wholly or partly by the use of electronic communications technology, it shall—
(a) make provision for participation in the meeting by providing or facilitating the use of electronic communications technology for that purpose, and
(b) ensure that any members who participate in the meeting using such technology are provided with the means to cast a vote without being physically present, either in person or by proxy, at the meeting.
(3) The use of electronic communications technology pursuant to subsection (2) may be made subject only to such requirements or restrictions put in place by the company as are necessary to ensure the identification of attendees and the security of the electronic communications technology, to the extent that such requirements or restrictions are proportionate to the achievement of those objectives.
(4) A company shall inform attendees, before the general meeting concerned, of any requirements or restrictions which it has put in place pursuant to subsection (3).
(5) A company that provides for the use of electronic communications technology for participation in a general meeting by an attendee shall ensure, as far as practicable, that—
(a) such technology—
(i) provides for the security of any electronic communications by the attendee,
(ii) minimises the risk of data corruption and unauthorised access, and
(iii) provides certainty as to the source of the electronic communications,
(b) in the case of any failure of, or disruption to, such technology, that failure or disruption is remedied as soon as practicable, and
(c) such technology enables the attendee to—
(i) hear what is said by the chairperson of the meeting and any person introduced by the chairperson, and
(ii) speak and submit questions and comments during the meeting to the chairperson to the extent that the attendee is entitled to do so under the constitution of the company.
(6) Any temporary failure of, or disruption to, electronic communications technology shall not invalidate the general meeting or any proceedings relating to the meeting.
(7) Where the chairperson of the meeting is satisfied that a failure of, or disruption to, electronic communications technology—
(a) substantially interferes with the proceedings of the meeting or the participation of attendees as whole, and
(b) is not capable of being remedied during the meeting,
he or she may adjourn the meeting.
(8) Unless such failure or disruption is attributable to any wilful act of the company, a company shall not be liable in respect of any failure or disruption relating to the equipment used by an attendee to access a general meeting by electronic communications technology that occurs and which failure or disruption prevents or interferes with the attendee’s participation, by way of such technology, in the meeting.
(9) The Minister may, if he or she considers it appropriate, make further provision by regulations for all or any of the following in relation to general meetings to be held by way of electronic communications technology:
(a) the convening and conduct of the meetings;
(b) attendance at the meetings;
(c) access to, and participation, including voting, in the meetings.
(10) A person who participates in a general meeting by the use of electronic communications technology shall be regarded as being present at the meeting, and for that purpose, a reference in this Act (howsoever expressed) to a member present in person or by proxy at a meeting shall be construed as including a reference to any member who participates, including by proxy, in that meeting by the use of electronic communications technology.
(11) In this section and sections 176 and 187(9)—
“attendee”, in relation to a general meeting of a company, means any person entitled to attend at the meeting, including—
(a) a member of the company,
(b) a proxy of a member of the company,
(c) an authorised person representing a body corporate under section 185,
(d) a statutory auditor, or
(e) a person entitled to attend the meeting by virtue of provisions in the constitution of the company or the terms of issue of debt securities issued by the company;
“electronic communications technology”, in relation to a general meeting of a company, means technology that enables real time transmission and real time two-way audio-visual or audio communication enabling attendees to participate in the meeting using such technology;
“general meeting”, in relation to a company, means—
(a) an annual general meeting of the company,
(b) an extraordinary general meeting of the company, or
(c) a general meeting of holders of shares in the company of a particular class,
and includes a meeting referred to in paragraph (a), (b) or (c) that has been adjourned.]
Annotations
Amendments:
F72
Inserted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 12, S.I. No. 639 of 2024.
Editorial Notes:
E68
The section heading is taken from the amending section in the absence of one included in the amendment.
Section 177
Extraordinary general meetings
177. (1) All general meetings of a company, other than annual general meetings, shall be known, and in this Act are referred to, as “extraordinary general meetings”.
(2) The directors of a company may, whenever they think fit, convene an extraordinary general meeting.
(3) If, at any time, there are not sufficient directors capable of acting to form a quorum, any director of the company or any member of it may convene an extraordinary general meeting in the same manner as nearly as possible as that in which meetings may be convened by the directors.
Section 178
Convening of extraordinary general meetings by members
178. (1) The rights conferred—
(a) by subsection (2) on a member or members have effect save where the constitution of the company provides otherwise; and
(b) by subsections (3) to (7) on a member or members (and the corresponding duties on the part of the directors) have effect notwithstanding anything in the constitution of the company.
(2) One or more members of a company holding, or together holding, at any time not less than 50 per cent (or such other percentage as may be specified in the constitution) of the paid up share capital of the company as, at that time, carries the right of voting at general meetings of the company may convene an extraordinary general meeting of the company.
(3) The directors of a company shall, on the requisition of one or more members holding, or together holding, at the date of the deposit of the requisition, not less than 10 per cent of the paid up share capital of the company, as at the date of the deposit carries the right of voting at general meetings of the company, forthwith proceed duly to convene an extraordinary general meeting of the company.
(4) The requisition shall state the objects of the meeting and shall be signed by the requisitionists and deposited at the registered office of the company and may consist of several documents in like form each signed by one or more requisitionists.
(5) If the directors do not within 21 days after the date of the deposit of the requisition proceed duly to convene a meeting to be held within 2 months after that date (the “requisition date”), the requisitionists, or any of them representing more than 50 per cent of the total voting rights of all of them, may themselves convene a meeting, but any meeting so convened shall not be held after the expiration of 3 months after the requisition date.
(6) Any reasonable expenses incurred by the requisitionists by reason of the failure of the directors duly to convene a meeting shall be repaid to the requisitionists by the company and any sum so repaid shall be retained by the company out of any sums due or to become due from the company by way of fees or other remuneration in respect of their services to such of the directors as were in default.
(7) For the purposes of subsections (3) to (6), the directors shall, in the case of a meeting at which a resolution is to be proposed as a special resolution, be deemed not to have duly convened the meeting if they do not give such notice of it as is required by section 181.
(8) A meeting convened under subsection (2) or (5) shall be convened in the same manner as nearly as possible as that in which meetings are to be convened by directors.
Section 179
Power of court to convene meeting
179. (1) Subject to subsection (2), the court may on application being made to it by any of the persons specified in subsection (3), or of its own motion, make an order requiring a general meeting of a company to be called, held and conducted in any manner that the court thinks fit.
(2) An order shall not be made under subsection (1) unless the court is satisfied that for any reason it is impracticable or otherwise undesirable—
(a) for any person to call a general meeting of the company in any manner in which meetings of that company may be called; or
(b) to conduct a general meeting of the company in any manner provided by this Act or the company’s constitution.
(3) The persons referred to in subsection (1) are—
(a) a director of the company referred to in that subsection (the “company”);
(b) a member of the company who would be entitled to vote at a general meeting of it;
(c) the personal representative of a deceased member of the company, which member would, but for his or her death, be entitled to vote at such a meeting; and
(d) the assignee in bankruptcy of a bankrupt member of the company, which member would be entitled to vote at such a meeting.
(4) Where an order under subsection (1) is made, the court may give such ancillary or consequential directions as it thinks expedient.
(5) Such directions may include a direction that one member of the company, or the personal representative of a deceased member of the company or the assignee in bankruptcy of a bankrupt member of it, present in person or by proxy, is a quorum.
(6) A meeting called, held and conducted in accordance with an order under subsection (1) is for all purposes to be taken as a meeting of the company duly called, held and conducted.
Section 180
Persons entitled to notice of general meetings
180. (1) Notice of every general meeting of a company (“relevant notice”) shall be given to—
(a) every member;
(b) the personal representative of a deceased member of the company, which member would, but for his or her death, be entitled to vote at the meeting;
(c) the assignee in bankruptcy of a bankrupt member of the company (being a bankrupt member who is entitled to vote at the meeting); and
(d) the directors and secretary of the company.
(2) Relevant notice may, in the case of joint holders of a share, be given by giving the notice to the joint holder first named in the register in respect of the share.
(3) Relevant notice may be given by the company to the persons entitled to a share in consequence of the death or bankruptcy of a member by sending it through the post in a prepaid letter addressed to them by name or by the title of representatives of the deceased or assignee in bankruptcy or by any like description at the address supplied for the purpose by the persons claiming to be so entitled.
(4) Until such an address has been so supplied, relevant notice may be given to those persons by giving the notice in any manner in which it might have been given if the death or bankruptcy concerned had not occurred.
(5) Unless its constitution provides otherwise, no person, other than any person specified in the preceding subsections, shall be entitled to receive notices of general meetings of a company but this is without prejudice to subsection (6).
(6) Unless the company is entitled to and has availed itself of the audit exemption under section 360 or 365 (and, where relevant, section 399 has been complied with in that regard), the statutory auditors of a company shall be entitled to—
(a) attend any general meeting of a company;
(b) receive all notices of, and other communications relating to, any general meeting which any member of the company is entitled to receive; and
(c) be heard at any general meeting which they attend on any part of the business of the meeting which concerns them as statutory auditors.
Section 181
Notice of general meetings
181. (1) Save where the constitution of the company makes provision for the giving of greater notice, a meeting of a company, other than an adjourned meeting, shall be called—
(a) in the case of the annual general meeting or an extraordinary general meeting for the passing of a special resolution, by not less than 21 days' notice;
(b) in the case of any other extraordinary general meeting, by not less than 7 days' notice.
(2) A meeting of a company shall, notwithstanding that it is called by shorter notice than that specified in subsection (1), be deemed to have been duly called if it is so agreed by—
(a) all the members entitled to attend and vote at the meeting; and
(b) unless no statutory auditors of the company stand appointed in consequence of the company availing itself of the audit exemption under section 360 or 365 (and, where relevant, section 399 has been complied with in that regard), the statutory auditors of the company.
(3) Where notice of a meeting is given by posting it by ordinary prepaid post to the registered address of a member, then, for the purposes of any issue as to whether the correct period of notice for that meeting has been given, the giving of the notice shall be deemed to have been effected on the expiration of 24 hours following posting.
(4) In determining whether the correct period of notice has been given by a notice of a meeting, neither the day on which the notice is served nor the day of the meeting for which it is given shall be counted.
(5) The notice of a meeting shall specify—
(a) the place, the date and the time of the meeting;
F73[(aa) in the case of a F74[meeting] proposed to be held wholly or partly by the use of electronic communications technology—
(i) the electronic platform to be used for the meeting,
(ii) details for access to the electronic platform,
(iii) the time and manner by which an attendee must confirm his or her intention to attend the meeting,
(iv) any requirements or restrictions which the company has put in place in order to identify attendees who intend to attend the meeting,
(v) the procedure for attendees to communicate questions and comments during the meeting, and
(vi) the procedure to be adopted for voting on resolutions proposed to be passed at the meeting;]
(b) the general nature of the business to be transacted at the meeting;
(c) in the case of a proposed special resolution, the text or substance of that proposed special resolution; and
(d) with reasonable prominence a statement that—
(i) a member entitled to attend and vote is entitled to appoint a proxy using the form set out in section 184 or, where that is allowed, one or more proxies, to attend, speak and vote instead of him or her;
(ii) a proxy need not be a member; and
(iii) the time by which the proxy must be received at the company's registered office or some other place within the State as is specified in the statement for that purpose.
(6) Save to the extent that the company's constitution provides otherwise, the accidental omission to give notice of a meeting to, or the non-receipt of notice of a meeting by, any person entitled to receive notice shall not invalidate the proceedings at the meeting.
F75[(7) In this section and section 1103(2)(aa)—
“electronic communications technology” has the same meaning as it has in section 176A;
“electronic platform” means an electronic system for the delivery of electronic communications technology, including websites, access software and access telephone details or any other electronic technology that delivers such technology.]
Annotations
Amendments:
F73
Inserted (21.08.2020) by Companies (Miscellaneous Provisions (Covid-19) Act 2020 (9/2020), s. 7, S.I. No. 320 of 2020. Note extensions of interim period by statutory instruments made under s. 12A.
F74
Substituted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 13(a), S.I. No. 639 of 2024.
F75
Inserted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 13(b), S.I. No. 639 of 2024.
Section 181A
F76[Notice of rescheduled general meeting during interim period
181A. F77[…]]
Annotations
Amendments:
F76
Inserted (21.08.2020) by Companies (Miscellaneous Provisions (Covid-19) Act 2020 (9/2020), s. 8, S.I. No. 320 of 2020. Note extensions of interim period by statutory instruments made under s. 12A.
F77
Repealed by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 3(1), sch. 1 and S.I. No. 639 of 2024.
Editorial Notes:
E69
The section heading is taken from the amending section in the absence of one included in the amendment.
Section 182
Quorum
182. (1) No business shall be transacted at any general meeting of a company unless a quorum of members is present at the time when the meeting proceeds to business.
(2) Save to the extent that its constitution provides otherwise or in a case falling within subsection (3), 2 members of a company present in person or by proxy at a general meeting of it shall be a quorum.
F78[(2A) F79[…]]
(3) In the case of a single-member company, one member of the company present in person or by proxy at a general meeting of it shall be a quorum.
(4) Subsection (5) shall apply unless the company’s constitution provides otherwise.
(5) Save to the extent that the company’s constitution provides otherwise, if within 15 minutes after the time appointed for a general meeting a quorum is not present, then—
(a) where the meeting has been convened upon the requisition of members, the meeting shall be dissolved;
(b) in any other case—
(i) the meeting shall stand adjourned to the same day in the next week, at the same time and place or to such other day and at such other time and place as the directors may determine; and
(ii) if at the adjourned meeting a quorum is not present within half an hour after the time appointed for the meeting, the members present shall be a quorum.
Annotations
Amendments:
F78
Inserted (21.08.2020) by Companies (Miscellaneous Provisions (Covid-19) Act 2020 (9/2020), s. 9, S.I. No. 320 of 2020. Note extensions of interim period by statutory instruments made under s. 12A.
F79
Repealed (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 3(1) and sch. 1, S.I. No. 639 of 2024.
Modifications (not altering text):
C20
Section construed (29.01.2020) by Migration of Participating Securities Act 2019 (50/2019), s. 8(a), S.I. No. 26 of 2020.
Quorum for meeting referred to in section 6(1)
8. Notwithstanding anything contained in the participating issuer’s constitution—
(a) the quorum for the meeting referred to in section 6 (1) at which the special resolution there mentioned is to be proposed shall be at least 3 persons holding or representing by proxy at least one-third in nominal value of the issued shares in the participating issuer and section 182 of the Act of 2014 shall, in relation to that meeting, be construed accordingly, and
(b) any member of the participating issuer who is present in person or by proxy at the foregoing meeting may demand a poll in relation to a matter at the meeting and section 189 of the Act of 2014 shall, in relation to that meeting, be construed accordingly.
Section 183
Proxies
183. (1) Subject to subsection (3), any member of a company entitled to attend and vote at a meeting of the company shall be entitled to appoint another person (whether a member or not) as his or her proxy to attend and vote instead of him or her.
(2) A proxy so appointed shall have the same right as the member to speak at the meeting and to vote on a show of hands and on a poll.
(3) Unless the company’s constitution otherwise provides, a member of a company shall not be entitled to appoint more than one proxy to attend on the same occasion.
(4) The instrument appointing a proxy (the “instrument of proxy”) shall be in writing—
(a) under the hand of the appointer or of his or her attorney duly authorised in writing; or
(b) if the appointer is a body corporate, either under seal of the body corporate or under the hand of an officer or attorney of it duly authorised in writing.
(5) The instrument of proxy and the power of attorney or other authority, if any, under which it is signed, or a notarially certified copy of that power or authority, shall be deposited at the registered office of the company concerned or at such other place within the State as is specified for that purpose in the notice convening the meeting, and shall be so deposited not later than the following time.
(6) That time is—
(a) 48 hours (or such lesser period as the company's constitution may provide) before the time for holding the meeting or adjourned meeting at which the person named in the instrument proposes to vote; or
(b) in the case of a poll, 48 hours (or such lesser period as the company's constitution may provide) before the time appointed for the taking of the poll.
(7) The depositing of the instrument of proxy referred to in subsection (5) may, rather than its being effected by sending or delivering the instrument, be effected by communicating the instrument to the company by electronic means, and this subsection likewise applies to the depositing of anything else referred to in subsection (5).
(8) If subsection (5) or (6) is not complied with, the instrument of proxy shall not be treated as valid.
(9) Subject to subsection (10), a vote given in accordance with the terms of an instrument of proxy shall be valid notwithstanding the F80[previous death of the appointer] or revocation of the proxy or of the authority under which the proxy was executed or the transfer of the share in respect of which the proxy is given.
(10) Subsection (9) does not apply if notice in writing of F80[such death, revocation or transfer] as is mentioned in that subsection is received by the company concerned at its registered office before the commencement of the meeting or adjourned meeting at which the proxy is used.
(11) Subject to subsection (12), if, for the purpose of any meeting of a company, invitations to appoint as proxy a person or one of a number of persons specified in the invitations are issued at the company's expense to some only of the members entitled to be sent a notice of the meeting and to vote at it by proxy, any officer of the company who knowingly and intentionally authorises or permits their issue in that manner shall be guilty of a category 3 offence.
(12) An officer shall not be guilty of an offence under subsection (11) by reason only of the issue to a member, at his or her request in writing, of a form of appointment naming the proxy or of a list of persons willing to act as proxy if the form or list is available on request in writing to every member entitled to vote at the meeting by proxy.
Annotations
Amendments:
F80
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 98(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 184
Form of proxy
184. An instrument appointing a proxy shall be in the following form or a form as near to it as circumstances permit—
[name of company] (“the Company”)
[name of member] (“the Member”) of [address of member] being a member of the Company hereby appoint/s [name and address of proxy] or failing him or her
[name and address of alternative proxy] as the proxy of the Member to attend, speak F81[, vote and to demand or join in demanding a poll] for the Member on behalf of the Member at the (annual or extraordinary, as the case may be) general meeting of the Company to be held on the [date of meeting] and at any adjournment of the meeting.
The proxy is to vote as follows:
Annotations
Amendments:
F81
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 28, S.I. No. 335 of 2022.
Section 185
Representation of bodies corporate at meetings of companies
185. (1) A body corporate may, if it is a member of a company, by resolution of its directors or other governing body authorise such person (in this section referred to as an “authorised person”) as it thinks fit to act as its representative at any meeting of the company or at any meeting of any class of members of the company.
(2) A body corporate may, if it is a creditor (including a holder of debentures) of a company, by resolution of its directors or other governing body authorise such person (in this section also referred to as an “authorised person”) as it thinks fit to act as its representative at any meeting of any creditors of the company held in pursuance of this Act or the provisions contained in any debenture or trust deed, as the case may be.
(3) An authorised person shall be entitled to exercise the same powers on behalf of the body corporate which he or she represents as that body corporate could exercise if it were an individual member of the company, creditor or holder of debentures of the company.
(4) The chairperson of a meeting may require a person claiming to be an authorised person within the meaning of this section to produce such evidence of the person's authority as such as the chairperson may reasonably specify and, if such evidence is not produced, the chairperson may exclude such person from the meeting.
Section 186
The business of the annual general meeting
186. The business of the annual general meeting shall include—
(a) the consideration of the company’s statutory financial statements and the report of the directors and, unless the company is entitled to and has availed itself of the audit exemption under section 360 or 365, the report of the statutory auditors on those statements and that report;
(b) the review by the members of the company’s affairs;
(c) save where the company’s constitution provides otherwise—
(i) the declaration of a dividend (if any) of an amount not exceeding the amount recommended by the directors; and
(ii) the authorisation of the directors to approve the remuneration of the statutory auditors (if any);
(d) where the company’s constitution so provides, the election and re-election of directors;
(e) save where the company is entitled to and has availed itself of the exemption referred to in paragraph (a), the appointment or re-appointment of statutory auditors; and
(f) where the company's constitution so provides, the remuneration of the directors.
Section 186A
F82[Withdrawal or amendment of dividend resolutions
186A. F83[…]]
Annotations
Amendments:
F82
Inserted (21.08.2020) by Companies (Miscellaneous Provisions (Covid-19) Act 2020 (9/2020), s. 10, S.I. No. 320 of 2020.
F83
Repealed (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 3(1) and sch. 1, S.I. No. 639 of 2024.
Editorial Notes:
E70
The section heading is taken from the amending section in the absence of one included in the amendment.
Section 187
Proceedings at meetings
187. (1) F84[Subsections (2) to (8) apply] save to the extent that the company's constitution provides otherwise.
(2) The chairperson, if any, of the board of directors shall preside as chairperson at every general meeting of the company, or if there is no such chairperson, or if he or she is not present within 15 minutes after the time appointed for the holding of the meeting or is unwilling to act, the directors present shall elect one of their number to be chairperson of the meeting.
(3) If at any meeting no director is willing to act as chairperson or if no director is present within 15 minutes after the time appointed for holding the meeting, the members present shall choose one of their number to be chairperson of the meeting.
(4) The chairperson may, with the consent of any meeting at which a quorum is present, and shall if so directed by the meeting, adjourn the meeting from time to time and from place to place.
(5) However no business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place.
(6) When a meeting is adjourned for 30 days or more, notice of the adjourned meeting shall be given as in the case of an original meeting but, subject to that, it shall not be necessary to give any notice of an adjournment or of the business to be transacted at an adjourned meeting.
(7) F84[Subject to subsection (9), unless] a poll is demanded in accordance with section 189, at any general meeting—
(a) a resolution put to the vote of the meeting shall be decided on a show of hands;
and
(b) a declaration by the chairperson that a resolution has, on a show of hands, been carried or carried unanimously, or by a particular majority, or lost, and an entry to that effect in the book containing the minutes of the proceedings of the company shall be conclusive evidence of the fact without proof of the number or proportion of the votes recorded in favour of or against such resolution.
(8) Where there is an equality of votes, whether on a show of hands or on a poll, the chairperson of the meeting at which the show of hands takes place or at which the poll is demanded, shall be entitled to a second or casting vote.
F85[(9) In the case of a meeting conducted wholly or partly by the use of electronic communications technology in accordance with section 176A, a resolution put to the vote of the meeting shall not be decided on a show of hands unless the chairperson of the meeting is of the opinion that he or she can—
(a) identify the members participating in the meeting by the use of such technology who are entitled to vote, and
(b) verify the content of voting instructions of those members relating to the resolution.]
Annotations
Amendments:
F84
Substituted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 14(a), (b), S.I. No. 639 of 2024.
F85
Inserted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 14(c), S.I. No. 639 of 2024.
Section 188
Votes of members
188. (1) Each provision of this section applies save to the extent that the company's constitution provides otherwise.
(2) Subject to any rights or restrictions for the time being attached to any class or classes of shares, where a matter is being decided—
(a) on a show of hands, every member present in person and every proxy shall have one vote, but so that no individual member shall have more than one vote; and
(b) on a poll, every member shall, whether present in person or by proxy, have one vote for each share of which he or she is the holder or for each €15 of stock held by him or her, as the case may be.
(3) Where there are joint holders of a share, the vote of the senior who tenders a vote, whether in person or by proxy, shall be accepted to the exclusion of the votes of the other joint holders; and for this purpose, seniority shall be determined by the order in which the names of the joint holders stand in the register of members.
(4) Each of the following:
(a) a member of unsound mind;
(b) a member who has made an enduring power of attorney;
(c) a member in respect of whom an order has been made by any court having jurisdiction in cases of unsound mind;
may vote, whether on a show of hands or on a poll, by his or her committee, donee of an enduring power of attorney, receiver, guardian or other person appointed by the foregoing court.
(5) Any such committee, donee of an enduring power of attorney, receiver, guardian, or other person may speak and vote by proxy, whether on a show of hands or on a poll.
(6) No member shall be entitled to vote at any general meeting of a company unless all calls or other sums immediately payable by him or her in respect of shares in the company have been paid.
(7) No objection shall be raised to the qualification of any voter except at the meeting or adjourned meeting at which the vote objected to is given or tendered, and every vote not disallowed at such meeting shall be valid for all purposes.
(8) Any such objection made in due time shall be referred to the chairperson of the meeting, whose decision shall be final and conclusive.
Section 189
Right to demand a poll
189. (1) At a meeting, a poll may be demanded in relation to a matter (whether before or on the declaration of the result of the show of hands in relation to it).
(2) A demand for such a poll may be made by—
(a) the chairperson of the meeting;
(b) at least 3 members present in person or by proxy;
(c) any member or members present in person or by proxy and representing not less than 10 per cent of the total voting rights of all the members of the company concerned having the right to vote at the meeting; or
(d) a member or members holding shares in the company concerned conferring the right to vote at the meeting, being shares on which an aggregate sum has been paid up equal to not less than 10 per cent of the total sum paid up on all the shares conferring that right.
(3) A demand for such a poll may be withdrawn by the person or persons who have made the demand.
(4) Subject to subsection (5), if a poll is duly demanded it shall be taken in such manner as the chairperson of the meeting directs, and the result of the poll shall be deemed to be the resolution, in relation to the matter concerned, of the meeting at which the poll was demanded.
(5) A poll demanded with regard to the election of a chairperson or on a question of adjournment shall be taken forthwith.
(6) A poll demanded on any other question shall be taken at such time as the chairperson of the meeting directs, and any business other than that on which a poll is demanded may be proceeded with pending the taking of the poll.
(7) The instrument appointing a proxy to vote at a meeting of a company shall be deemed also to confer authority to demand or join in demanding a poll, and for the purposes of subsections (2) and (3), a demand by a person as proxy for a member shall be the same as a demand by the member.
Annotations
Modifications (not altering text):
C21
Section construed (29.01.2020) by Migration of Participating Securities Act 2019 (50/2019), s. 8(b), S.I. No. 26 of 2020.
Quorum for meeting referred to in section 6(1)
8. Notwithstanding anything contained in the participating issuer’s constitution—
(a) the quorum for the meeting referred to in section 6 (1) at which the special resolution there mentioned is to be proposed shall be at least 3 persons holding or representing by proxy at least one-third in nominal value of the issued shares in the participating issuer and section 182 of the Act of 2014 shall, in relation to that meeting, be construed accordingly, and
(b) any member of the participating issuer who is present in person or by proxy at the foregoing meeting may demand a poll in relation to a matter at the meeting and section 189 of the Act of 2014 shall, in relation to that meeting, be construed accordingly.
Section 190
Voting on a poll
190. On a poll taken at a meeting of a company or a meeting of any class of members of a company, a member, whether present in person or by proxy, entitled to more than one vote need not, if he or she votes—
(a) use all his or her votes; or
(b) cast all the votes he or she uses in the same way.
Section 191
Resolutions — ordinary resolutions, special resolutions, etc., — meaning
191. (1) In this Act “ordinary resolution” means a resolution passed by a simple majority of the votes cast by members of a company as, being entitled to do so, vote in person or by proxy at a general meeting of the company.
(2) In this Act “special resolution” means a resolution—
(a) that is referred to as such in this Act, or is required (whether by this Act or by a company's constitution or otherwise) to be passed as a special resolution; and
(b) that satisfies the condition specified in F86[subsection (3)] and
(c) without prejudice to subsections (4) and (5), as respects which notice of the meeting at which the resolution is proposed to be passed has been given in accordance with section 181(1)(a) and (5).
(3) The condition referred to in subsection (2)(b) is that the resolution is passed by not less than 75 per cent of the votes cast by such members of the company concerned as, being entitled to do so, vote in person or by proxy at a general meeting of it.
F87[(3A) F88[…]]
(4) Notwithstanding section 181(1)(a), for the purposes of subsection (2)(c) a resolution may be proposed and passed as a special resolution at a meeting of which less than 21 days’ notice has been given if it is so agreed by a majority in number of the members having the right to attend and vote at any such meeting, being a majority either—
(a) together holding not less than 90 per cent in nominal value of the shares giving that right; or
(b) together representing not less than 90 per cent of the total voting rights at that meeting of all the members.
(5) Nothing in either subsection (2)(c) (as it relates to section 181(1)(a)) or (4) prevents a special resolution from being regarded as having been passed (in a case where less than 21 days’ notice of the meeting has been given) in the following circumstances:
(a) the agreement referred to in section 181(2) exists as regards the meeting; and
(b) the condition specified in subsection (3) is satisfied in relation to the resolution.
(6) The terms of any resolution (whether special or otherwise) before a general meeting may be amended by ordinary resolution moved at the meeting provided that the terms of the resolution as amended will still be such that adequate notice of the intention to pass the same can be deemed to have been given.
(7) Any reference to an extraordinary resolution contained in any statute which was passed or document which existed before 1 April 1964 shall, in relation to a resolution passed on or after that date, be deemed to be a reference to a special resolution.
(8) In this Act “written resolution” means either an ordinary resolution or a special resolution passed in accordance with section 193 or 194.
Annotations
Amendments:
F86
Substituted (29.03.2019) by European Union (Bank Recovery And Resolution) Regulations 2019 (S.I. No. 127 of 2019), reg. 4(b)(i).
F87
Inserted (15.07.2015) by European Union (Bank Recovery and Resolution) Regulations 2015 (S.I. No. 289 of 2015), reg. 189(3)(b), in effect as per reg. 1(2).
F88
Deleted (29.03.2019) by European Union (Bank Recovery And Resolution) Regulations 2019 (S.I. No. 127 of 2019), reg. 4(b)(ii).
Editorial Notes:
E71
Previous affecting provision: subs. (2)(b) amended (15.07.2015) by European Union (Bank Recovery and Resolution) Regulations 2015 (S.I. No. 289 of 2015), reg. 189(3)(a), in effect as per reg. 1(2); amended as per F-note above.
Section 192
Resolutions passed at adjourned meetings
192. Where a resolution is passed at an adjourned general meeting, the resolution shall for all purposes be treated as having been passed on the date on which it was in fact passed and shall not be deemed to have been passed on any earlier date.
Section 193
Unanimous written resolutions
193. (1) Notwithstanding any provision to the contrary in this Act—
(a) a resolution in writing signed by all the members of a company for the time being entitled to attend and vote on such resolution at a general meeting (or being bodies corporate by their duly appointed representatives) shall be as valid and effective for all purposes as if the resolution had been passed at a general meeting of the company duly convened and held; and
(b) if described as a special resolution shall be deemed to be a special resolution within the meaning of this Act.
(2) For the avoidance of doubt, the reference in subsection (1) to a provision to the contrary includes a reference to a provision that stipulates that the company in general meeting, or the members of the company in general meeting, must have passed the resolution concerned.
(3) A resolution passed in accordance with subsection (1) may consist of several documents in like form each signed by one or more members.
(4) A resolution passed in accordance with subsection (1) shall be deemed to have been passed at a meeting held on the date on which it was signed by the last member to sign, and, where the resolution states a date as being the date of his or her signature thereof by any member, the statement shall be prima facie evidence that it was signed by him or her on that date.
(5) If a resolution passed in accordance with subsection (1) is not contemporaneously signed, the company shall notify the members, within 21 days after the date of delivery to it of the documents referred to in subsection (6), of the fact that the resolution has been passed.
(6) The signatories of a resolution passed in accordance with subsection (1) shall, within 14 days after the date of its passing, procure delivery to the company of the documents constituting the written resolution; without prejudice to the use of the other means of delivery generally permitted by this Act, such delivery may be effected by electronic mail or the use of a facsimile machine.
(7) The company shall retain those documents as if they constituted the minutes of the proceedings of a general meeting of the company; without prejudice to the requirement (by virtue of section 199(1)) that the terms of the resolution concerned be entered in books kept for the purpose, the requirement under this subsection that the foregoing documents be retained shall be read as requiring those documents to be kept with the foregoing books.
(8) It is immaterial, as regards the resolution's validity, whether subsection (5), (6) or (7) is complied with.
(9) If a company fails to comply with subsection (5), the company and any officer of it who is in default shall be guilty of a category 4 offence.
(10) If a signatory fails to take all reasonable steps to procure the delivery to the company, in accordance with subsection (6), of the documents referred to in that subsection, the signatory shall be guilty of a category 4 offence.
(11) This section does not apply to—
(a) a resolution to remove a director;
(b) a resolution to effect the removal of a statutory auditor from office, or so as not to continue him or her in office, as mentioned in section 382(2), 383(2)(b) or 394.
(12) Nothing in this section affects any rule of law as to—
(a) things done otherwise than by passing a resolution;
(b) circumstances in which a resolution is or is not treated as having been passed; or
(c) cases in which a person is precluded from alleging that a resolution has not been duly passed.
Section 194
Majority written resolutions
194. (1) Notwithstanding any provision to the contrary in this Act, a resolution in writing—
(a) that is—
(i) described as being an ordinary resolution, and
(ii) signed by the requisite majority of members of the company concerned,
and
(b) in respect of which the condition specified in subsection (7) is satisfied,
shall be as valid and effective for all purposes as if the resolution had been passed at a general meeting of the company duly convened and held.
(2) For the avoidance of doubt, the reference in subsection (1) to a provision to the contrary includes a reference to a provision that stipulates that the company in general meeting, or the members of the company in general meeting, must have passed the resolution concerned.
(3) In subsection (1) “requisite majority of members” means a member or members who alone or together, at the time of the signing of the resolution concerned, represent more than 50 per cent of the total voting rights of all the members who, at that time, would have the right to attend and vote at a general meeting of the company (or being bodies corporate by their duly appointed representatives).
(4) Notwithstanding any provision to the contrary in this Act, a resolution in writing—
(a) that is—
(i) described as being a special resolution, and
(ii) signed by the requisite majority of members,
and
(b) in respect of which the condition specified in subsection (7) is satisfied,
shall be as valid and effective for all purposes as if the resolution had been passed at a general meeting of the company duly convened and held.
(5) For the avoidance of doubt, the reference in subsection (4) to a provision to the contrary includes a reference to a provision that stipulates that the company in general meeting, or the members of the company in general meeting, must have passed the resolution concerned.
(6) In subsection (4) “requisite majority of members” means a member or members who alone or together, at the time of the signing of the resolution concerned, represent at least 75 per cent of the total voting rights of all the members who, at that time, would have the right to attend and vote at a general meeting of the company (or being bodies corporate by their duly appointed representatives).
(7) The condition referred to in subsections (1)(b) and (4)(b) is that all members of the company concerned entitled to attend and vote on the resolution referred to in subsection (1) or (4), as the case may be, have been circulated, by the directors or the other person proposing it, with the proposed text of the resolution and an explanation of its main purpose.
(8) A resolution passed in accordance with subsection (1) or (4) may consist of several documents in like form each signed by one or more members.
(9) Without prejudice to section 195(5), a resolution passed—
(a) in accordance with subsection (1), shall be deemed to have been passed, subject to subsection (10), at a meeting held 7 days after the date on which it was signed by the last member to sign, or
(b) in accordance with subsection (4), shall be deemed to have been passed, subject to subsection (10), at a meeting held 21 days after the date on which it was signed by the last member to sign,
and where the resolution states a date as being the date of his or her signature thereof by any member the statement shall be prima facie evidence that it was signed by him or her on that date.
(10) Without prejudice to section 195(5), if—
(a) a date earlier than that referred to in subsection (9)(a) or (b) (not being earlier than the date on which the resolution was signed by the last member to sign) is specified in the resolution referred to in subsection (1) or (4) as the date on which it shall have been deemed to have been passed,
(b) all members of the company concerned entitled to attend and vote on that resolution state, in a written waiver signed by each of them, that the application of subsection (9) is waived, and
(c) there accompanies the delivery to the company under subsection (3) of section 195 of the documents referred to in that subsection that written waiver (which may be so delivered to the company by any of the means referred to in that subsection),
then the resolution shall be deemed to have been passed on the date specified in it.
(11) A written waiver under subsection (10) may consist of several documents in like form each signed by one or more members.
Section 195
Supplemental provisions in relation to section 194
195. (1) Section 194 does not apply to—
(a) a resolution to remove a director;
(b) a resolution to effect the removal of a statutory auditor from office, or so as not to continue him or her in office, as mentioned in section 382(2), 383(2)(b) or 394.
(2) Within 3 days after the date of the delivery to it of the documents referred to in subsection (3), the company shall notify every member of—
(a) the fact of the resolution concerned having been signed by the requisite majority of members (within the meaning of section 194(3) or (6), as the case may be); and
(b) the date that the resolution will, by virtue of section 194, be deemed to have been passed.
(3) The signatories of a resolution passed in accordance with section 194(1) or (4) shall procure delivery to the company of the documents constituting the written resolution; without prejudice to the use of the other means of delivery generally permitted by this Act, such delivery may be effected by electronic mail or the use of a facsimile machine.
(4) The company shall retain those documents as if they constituted the minutes of the proceedings of a general meeting of the company; without prejudice to the requirement (by virtue of section 199(1)) that the terms of the resolution concerned be entered in books kept for the purpose, the requirement under this subsection that the foregoing documents be retained shall be read as requiring those documents to be kept with the foregoing books.
(5) Unless and until subsection (3) is complied with, a resolution passed in accordance with section 194(1) or (4) shall not have effect; however it is immaterial, as regards the resolution's validity, whether subsection (2) or (4) is complied with.
(6) Where subsection (10) of section 194 applies, the reference in subsection (5) to subsection (3) shall be read as including a reference to paragraph (c) of that subsection (10).
(7) If a company fails to comply with subsection (2), the company and any officer of it who is in default shall be guilty of a category 4 offence.
Section 195A
F89[Voting on resolutions at general meeting during interim period
195A. F90[…]]
Annotations
Amendments:
F89
Inserted (21.08.2020) by Companies (Miscellaneous Provisions (Covid-19) Act 2020 (9/2020), s. 11, S.I. No. 320 of 2020. Note extensions of interim period by statutory instruments made under s. 12A.
F90
Repealed (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 3(1) and sch. 1, S.I. No. 639 of 2024.
Editorial Notes:
E72
The section heading is taken from the amending section in the absence of one included in the amendment.
Section 196
Single-member companies — absence of need to hold general meetings, etc.
196. (1) In this Act “single-member company” means a company which, for whatever reason, has, for the time being, a sole member (and this applies notwithstanding a stipulation in the constitution that there be 2 members, or a greater number).
(2) Subject to subsection (3), all the powers exercisable by a company in general meeting under this Act or otherwise shall be exercisable, in the case of a single-member company, by the sole member without the need to hold a general meeting for that purpose; for the avoidance of doubt this subsection extends to the exercise of the power under section 146 to remove a director and, accordingly, any of the procedures under that section concerning notice to the director or the making of representations by the director shall not apply in the case of a single-member company but this is without prejudice to the application of the requirements of procedural fairness to the exercise of that power of removal by the sole member and section 147.
(3) Subsection (2) shall not empower the sole member of a single-member company to exercise the powers under section 382(2), 383(2)(b) or 394 to remove a statutory auditor from, or not continue a statutory auditor in, office without holding the requisite meeting provided for in the section concerned.
(4) Subject to subsection (3), any provision of this Act which—
(a) enables or requires any matter to be done or to be decided by a company in general meeting, or
(b) requires any matter to be decided by a resolution of the company,
shall be deemed to be satisfied, in the case of a single-member company, by a decision of the member which is drawn up in writing and notified to the company in accordance with this section.
(5) Where the sole member of a single-member company takes any decision which has effect, pursuant to subsections (2) and (4), as if agreed by the company in general meeting, the member shall provide the company with a written record of that decision, unless the decision is taken by way of written resolution which the member has already forwarded to the company.
(6) Where the sole member notifies to the company of which he or she is such member a decision taken by way of written resolution, or, pursuant to subsection (5), a written record of a decision taken by him or her, the notification shall be recorded and retained by the company in a book or by some other suitable means maintained for the purpose, and the one or more records so retained shall—
(a) be deemed to be the books kept by the company pursuant to section 199, or
(b) where (at any subsequent or prior time when the company is, or was, not a single-member company) that section has or had application to proceedings of its members, be kept with the books kept by the company pursuant to section 199,
and, either case, subsection (5) of that section applies to those records as it applies to books generally of a company under that section.
(7) Where—
(a) the sole member of a single-member company exercises or discharges, by virtue of this section, any power, right or obligation, and
(b) such exercise or discharge involves or consists of the passing of a resolution, or the sole member’s agreeing to a thing, to which section 198 applies,
such exercise or discharge shall, within 15 days after the date of the exercise or discharge, be notified by the company in writing to the Registrar and be recorded by the Registrar.
(8) If—
(a) the sole member fails to comply with subsection (5), or
(b) a company fails to comply with subsection (6) or (7),
then (irrespective of whether the case falls within paragraph (a) or (b)) the sole member, the company and any officer of it who is in default shall be guilty of a category 4 offence.
(9) Failure by the sole member to comply with subsection (5) shall not affect the validity of any decision referred to in that subsection.
Section 197
Application of this Part to class meetings
197. (1) The provisions of this Part, and the provisions of the constitution of a company relating to general meetings, shall, as far as applicable, apply in relation to any meeting of any class of member of the company.
(2) Subsection (1) operates so that all of section 198, in so far as it relates to subsection (4)(c) of that section, applies in relation to any meeting of any class of member of the company but does not operate to apply (if those provisions would otherwise be so applicable) the provisions of that section apart from the foregoing to any such meeting.
Section 198
Registration of, and obligation of company to supply copies of, certain resolutions and agreements
198. (1) A copy of every resolution or agreement to which this section applies shall, within 15 days after the date of passing or making of it, be forwarded by the company concerned to the Registrar and recorded by the Registrar.
(2) A copy of every such resolution or agreement for the time being in force shall be embodied in, or annexed to, every copy of the constitution of the company concerned issued by it after the passing of the resolution or the making of the agreement.
(3) A copy of every such resolution or agreement shall be forwarded by the company concerned to any member of it, at his or her request, on payment of €10.00 or such lesser sum as the company may direct.
(4) This section applies to—
(a) resolutions that are required by this Act or a company's constitution to be special resolutions;
(b) resolutions which have been agreed to by all the members of a company, but which, if not so agreed to, would not have been effective for their purpose unless they had been passed as special resolutions;
(c) resolutions or agreements which have been agreed to by all the members of some class of shareholders but which if not so agreed to, would not have been effective for their purpose unless they had been passed by some particular majority or otherwise in some particular manner, and all resolutions or agreements which effectively bind all the members of any class of shareholders though not agreed to by all those members;
(d) resolutions increasing or decreasing the authorised share capital (if any) of a company;
(e) resolutions conferring authority for the allotment of shares;
(f) resolutions that a company be wound up voluntarily passed under section 580 F91[or 586(2)];
(g) resolutions attaching rights or restrictions to any share;
(h) resolutions varying any such right or restriction;
(i) resolutions classifying any unclassified share;
(j) resolutions converting shares of one class into shares of another class;
(k) resolutions converting share capital into stock and resolutions converting stock into share capital.
(5) If a company fails to comply with subsection (1), (2) or (3), the company and any officer of it who is in default shall be guilty of a category 4 offence.
(6) For the purposes of subsection (5), a liquidator of a company shall be deemed to be an officer of the company.
Annotations
Amendments:
F91
Inserted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 31, S.I. No. 335 of 2022.
F92
Substituted by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 15, not commenced as of date of revision.
Modifications (not altering text):
C22
Prospective affecting provision: subs. (1) amended by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 15, not commenced as of date of revision.
198. (1) A copy of every resolution or agreement to which this section applies shall, within 15 days after the date of passing or making of it, be F92[delivered by the company concerned to the Registrar in such manner and form as may be prescribed].
C23
Application of section extended (29.01.2020) by Migration of Participating Securities Act 2019 (50/2019), s. 9, S.I. No. 26 of 2020.
Registration of special resolution referred to in section 4(1)
9. Section 198 of the Act of 2014 shall apply to a special resolution referred to in section 4 (1) passed by a participating issuer as section 198 applies to a special resolution referred to in subsection (4)(a) of that section.
Section 199
Minutes of proceedings of meetings of a company
199. (1) A company shall, as soon as may be after their holding or passing, cause—
(a) minutes of all proceedings of general meetings of it, and
(b) the terms of all resolutions of it,
to be entered in books kept for that purpose; all such books kept by a company in pursuance of this subsection shall be kept at the same place.
(2) Sections 215 to 217 (rights of inspection, requests for copies, etc.) apply to those books.
(3) Any such minute, if purporting to be signed by the chairperson of the meeting at which the proceedings were had, or by the chairperson of the next succeeding meeting, shall be evidence of the proceedings.
(4) Where minutes have been made in accordance with this section of the proceedings at any general meeting of a company then, until the contrary is proved—
(a) the meeting shall be deemed to have been duly held and convened;
(b) all proceedings had at the meeting shall be deemed to have been duly had; and
(c) all appointments of directors or liquidators shall be deemed to be valid.
(5) A company shall, if required by the F93[Authority, produce to the Authority for inspection the book or books kept in accordance with subsection (1) by it and shall give the Authority such facilities for inspecting and taking copies of the contents of the book or books as the Authority] may require.
(6) If a company fails to comply with subsection (1) or with a requirement made of it under subsection (5), the company and any officer of it who is in default shall be guilty of a category 4 offence.
Annotations
Amendments:
F93
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. no. 9, S.I. No. 335 of 2022.
CHAPTER 7
Summary Approval Procedure
Section 200
Interpretation (Chapter 7)
200. (1) In this Chapter—
“common draft terms of merger” means the common draft terms of merger referred to in section 466(1);
“declaration” means a declaration referred to in section 202(1)(b);
“merger” means a merger under Chapter 3 of Part 9;
“merging companies” has the same meaning as it has in Chapter 3 of Part 9;
“restricted activity” means an activity that is specified in—
(a) section 82 (financial assistance for acquisition of shares);
(b) section 84 (reduction in company capital);
(c) section 91 (variation of company capital on reorganisations);
(d) section 118 (prohibition on pre-acquisition profits or losses being treated in holding company's financial statements as profits available for distribution);
(e) section 239 (prohibition of loans, etc., to directors and connected persons);
(f) section 464 (merger may not be put into effect save in accordance with the relevant provisions of this Act); or
(g) section 579 (procedure for and commencement of members' voluntary winding up);
the carrying on of which is expressed by a provision of this Act to be either—
(i) prohibited unless carried on in accordance with the Summary Approval Procedure; or
(ii) authorised subject to a specified requirement that the Summary Approval Procedure be employed or, in the case of section 84, 91 or 464, that the Summary Approval Procedure be employed if the alternative procedure specified in section 84(2)(b), 91(4)(b) or, as the case may be, 464(1)(b) is not employed;
“Summary Approval Procedure” shall be read in accordance with section 202;
“written means for passing the resolution” means—
(a) other than in the case of a merger, the means under section 193 or 194(4) for passing a special resolution;
(b) in the case of a merger, the means under section 193 for passing a unanimous resolution.
(2) A reference in the definition of “restricted activity” in subsection (1) to an activity—
(a) subject to paragraph (b), includes a reference to a procedure, transaction or arrangement;
(b) in the case of the activity falling within paragraph (g) of that definition, is a reference to the commencement of a members’ voluntary winding up.
Section 201
Chapter 7 — what it does
201. (1) This Chapter sets out the way in which a company can, by—
(a) its members passing a special resolution, and
(b) its directors making a certain declaration,
either—
(i) permit the carrying on of a restricted activity (not being a merger) that is otherwise prohibited, or
(ii) fulfil the requirement specified in the provision concerned for the restricted activity (not being a merger) to be authorised,
as the case may be.
(2) In a case where the restricted activity is a merger, this Chapter sets out the way in which each of the merging companies can, by—
(a) every member of it entitled to vote at a general meeting of the company voting in favour of a resolution at such a meeting, and
(b) its directors making a certain declaration,
authorise, as provided in section 464(1), the merger to be put in effect without certain procedures under Chapter 3 of Part 9 having to be employed.
(3) The provisions of this Chapter shall be read and shall operate so that a restricted activity may be carried on at a time falling before compliance with the requirement (arising under section 203, 204, 205, 206 or 207 as the case may be) that a copy of the appropriate declaration be delivered to the Registrar; however — should a failure to comply with that requirement occur — that failure then invalidates the carrying on of the activity, but this is without prejudice to the power of validation conferred subsequently by this Chapter on the court.
Section 202
Summary Approval Procedure
202. (1) In this Act “Summary Approval Procedure” means the procedure whereby the following conditions are satisfied:
(a) authority for the carrying on of the restricted activity has been conferred by—
(i) other than in the case of a merger, a special resolution of the company; or
(ii) in the case of a merger, a resolution of each of the merging companies which every member of the company entitled to vote at a general meeting of it has voted in favour of (a “unanimous resolution”);
being a special resolution or unanimous resolution passed not more than, subject to subsections (2) and (3), 12 months prior to the commencement of the carrying on by the company, or as the case may be, by each of the merging companies of the activity; and
(b) either—
(i) the company or, as the case may be, each of the merging companies has forwarded with each notice of the meeting at which the special resolution or other foregoing resolution is to be considered, or
(ii) if the written means for passing the resolution is used, the company or, as the case may be, each of the merging companies has appended to the proposed text of the resolution,
a copy of a declaration which complies with subsection (6) and the other relevant provisions of this Chapter as regards its contents or the documents to be attached to it.
(2) In computing the period of 12 months referred to in subsection (1)(a) there shall be disregarded, where an application is made in accordance with section 211 to cancel the special resolution, the period beginning on the date of the making of that application and ending on—
(a) the date of confirmation of the special resolution by the court on that application; or
(b) if such an application so made is withdrawn, the date of that withdrawal.
(3) If the restricted activity is that referred to in paragraph (d) of the definition of that expression in section 200(1), the reference in subsection (1)(a) to 12 months shall be read as a reference to—
(a) subject to paragraph (b), 60 days; or
(b) if—
(i) one or more members who hold, or together hold, more than 90 per cent in nominal value of each class of issued shares of the company and entitled to vote at general meetings of the company have voted in favour of the special resolution referred to in subsection (1)(a), or
(ii) that resolution has been passed by the means provided under section 193,
30 days,
but subsection (2) applies as regards computing that period of 60 or 30 days as it applies as regards computing the period of 12 months referred to in subsection (2).
(4) Subsection (1) is, in the case of a merger, without prejudice to the procedures set out in Chapter 3 of Part 9 that must be followed before the resolution referred to in paragraph (a)(ii) of that subsection may be passed.
(5) In the case of a merger, on the delivery, in accordance with section 206, to the Registrar of each declaration referred to in that section, the Registrar shall register the dissolution of the transferor company or companies concerned.
(6) The declaration referred to in subsection (1)(b) is a declaration in writing that is made at a meeting of the directors held—
(a) not earlier than 30 days before the date of the meeting referred to in subsection (1)(b), or
(b) if the written means for passing the resolution is used, not earlier than 30 days before the date of the signing of the resolution by the last member to sign,
and that is made by the directors or, in the case of a company having more than 2 directors, by a majority of the directors.
(7) The terms of the resolution referred to in subsection (1)(a)(ii) (which deals with a case of a merger) shall be that the common draft terms of merger are approved.
Annotations
Modifications (not altering text):
C24
Resolution made under subs. (1)(a)(ii) may be regarded as a conveyance on sale in certain circumstances as provided by Taxes Consolidation Act 1997 (39/1997), s. 79(11)(a)(i) as inserted (25.12.2017) by Finance Act 2017 (41/2017), s. 66(b), commenced on enactment.
Foreign currency: computation of income and chargeable gains.
79.— ...
[(11) In the case of—
(a) a merger undertaken in accordance with Chapter 3 of Part 9 of the Companies Act 2014 —
(i) the resolution referred to in paragraph (a)(ii) of section 202(1) of that Act, in the case of a merger effected by way of the summary approval procedure (within the meaning of section 202 of that Act), or
(ii) the order made under section 480(2) of that Act, in the case of a merger effected otherwise than by way of the summary approval procedure (within the foregoing meaning),
shall be regarded as a conveyance on sale, or
...]
C25
Resolution made under subs. (1)(a)(ii) may be regarded as a conveyance on sale in certain circumstances as provided by Taxes Consolidation Act 1997 (39/1997), s. 80(11)(a)(i), (12) as inserted (25.12.2017) by Finance Act 2017 (41/2017), s. 67(c), commenced on enactment.
Taxation of certain foreign currencies.
80.— ...
[(11) In the case of—
(a) a merger undertaken in accordance with Chapter 3 of Part 9 of the Companies Act 2014 —
(i) the resolution referred to in paragraph (a)(ii) of section 202(1) of that Act, in the case of a merger effected by way of the summary approval procedure (within the meaning of section 202 of that Act), or
(ii) the order made under section 480(2) of that Act, in the case of a merger effected otherwise than by way of the summary approval procedure (within the foregoing meaning),
shall be regarded as a conveyance on sale, or
...
(12) This section shall not apply unless the scheme of reconstruction or amalgamation or the merger is effected for bona fide commercial reasons and does not form part of a scheme or arrangement of which the main purpose, or one of the main purposes, is avoidance of liability to any tax or duty.]
Section 203
Declaration to be made in the case of financial assistance for acquisition of shares or transaction with directors
203. (1) Where the restricted activity is a transaction or arrangement that would otherwise be prohibited by section 82(2) or 239, the declaration shall state—
(a) the circumstances in which the transaction or arrangement is to be entered into;
(b) the nature of the transaction or arrangement;
(c) the person or persons to or for whom the transaction or arrangement is to be made;
(d) the purpose for which the company is entering into the transaction or arrangement;
(e) the nature of the benefit which will accrue to the company directly or indirectly from entering into the transaction or arrangement; and
(f) that the declarants have made a full inquiry into the affairs of the company and that, having done so, they have formed the opinion that the company, having entered into the transaction or arrangement (the “relevant act”), will be able to pay or discharge its debts and other liabilities in full as they fall due during the period of 12 months after the date of the relevant act.
(2) For the purposes of a declaration under this section, in determining whether or not a company will be able to pay or discharge its debts and other liabilities in full, the declarants shall not be required to assume (in circumstances where the following are relevant) either that the company will be called upon to pay moneys on foot of a guarantee given or, as the case may be, that security given will be realised.
(3) A copy of the declaration under this section shall be delivered to the Registrar not later than 21 days after the date on which the carrying on of the restricted activity concerned is commenced.
(4) On application to it by any interested party, the court may, in any case where there has been a failure to comply with subsection (3), declare that the carrying on of the restricted activity concerned shall be valid for all purposes if the court is satisfied that it would be just and equitable to do so.
Annotations
Amendments:
F94
Substituted by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 16, not commenced as of date of revision.
Modifications (not altering text):
C26
Prospective affecting provision: subs. (3) amended by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 16, not commenced as of date of revision.
(3) A copy of the declaration under this section shall be delivered F94[to the Registrar in such manner and form as may be prescribed] not later than 21 days after the date on which the carrying on of the restricted activity concerned is commenced.
Section 204
Declaration to be made in the case of a reduction in company capital or variation of company capital on reorganisation
204. (1) Where the restricted activity is a reduction in company capital referred to in section 84(1) or a transfer or disposal referred to in section 91(1), the declaration shall state—
(a) the circumstances in which the transaction or arrangement is to be entered into;
(b) the nature of the transaction or arrangement;
(c) the person or persons to or for whom the transaction or arrangement is to be made;
(d) the total amount of the company's assets and liabilities as at the latest practicable date before the date of making of the declaration and in any event at a date not more than 3 months before the date of that making;
(e) the anticipated total amount of the company's assets and liabilities immediately after the restricted activity having taken place;
(f) that the declarants have made a full inquiry into the affairs of the company and that, having done so, they have formed the opinion that the company, after the restricted activity has taken place, will be able to pay or discharge its debts and other liabilities (being the debts and liabilities identified for the purposes of paragraph (d) and so far as not already paid or discharged) in full as they fall due during the period of 12 months after the date of that event; and
(g) that the declarants do not have actual or constructive notice that the company will incur any material, extraordinary, future liability within the period of 12 months after the date of the making of the declaration.
(2) A copy of the declaration under this section shall be delivered to the Registrar not later than 21 days after the date on which the carrying on of the restricted activity concerned is commenced; if a failure to comply with this subsection occurs, a like power to that under section 203(4) is available to the court to declare valid for all purposes the carrying on of the activity.
Annotations
Amendments:
F95
Substituted by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 17, not commenced as of date of revision.
Modifications (not altering text):
C27
Prospective affecting provision: subs. (2) amended by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 17, not commenced as of date of revision.
(2) A copy of the declaration under this section shall be delivered F95[to the Registrar in such manner and form as may be prescribed] not later than 21 days after the date on which the carrying on of the restricted activity concerned is commenced; if a failure to comply with this subsection occurs, a like power to that under section 203(4) is available to the court to declare valid for all purposes the carrying on of the activity.
Section 205
Declaration to be made in the case of treatment of pre-acquisition profits or losses in a manner otherwise prohibited by section 118(1)
205. (1) Where the restricted activity is to provide in a company's financial statements a treatment that is otherwise prohibited by section 118(1) of the profits or losses attributable to shares of a subsidiary of the company for the period referred to in section 118(2) as the “pre-acquisition period”, the declaration shall state—
(a) the amount of the profits or losses that will be subject to the alternative treatment and the amount so stated is referred to in this section as the “proposed distribution”;
(b) the total amount of the company's assets and liabilities as stated in its last statutory financial statements or interim financial statements properly prepared as of a date specified in the declaration, and the date so specified shall be the date which is the latest practicable date before the date of making of the declaration and in any event shall not be a date more than 3 months before the date of such making;
(c) that the declarants have made a full inquiry into the affairs of the company and that, having done so, they have formed the opinion that, if the company were to make the proposed distribution within 2 months after the date of the making of the declaration, the company would be able to pay or discharge its debts and other liabilities included in the financial statements referred to in paragraph (b) as they fall due during the period of 12 months after the date of that distribution.
(2) In determining whether or not a company will be able to pay or discharge its debts and other liabilities as they fall due, the declarants shall be required to consider the likelihood (in circumstances where the following are relevant) either that the company will be called upon to pay moneys on foot of a guarantee given or, as the case may be, that security given will be realised.
(3) The reference in subsection (1)(b) to a company's last statutory financial statements or interim financial statements or to their being properly prepared shall be read in accordance with section 121.
(4) A copy of the declaration under this section shall be delivered to the Registrar not later than 21 days after the date on which the carrying on of the restricted activity concerned is commenced; if a failure to comply with this subsection occurs, a like power to that under section 203(4) is available to the court to declare valid for all purposes the carrying on of the activity.
Annotations
Amendments:
F96
Substituted by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 18, not commenced as of date of revision.
Modifications (not altering text):
C28
Prospective affecting provision: subs. (4) amended by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 18, not commenced as of date of revision.
(4) A copy of the declaration under this section shall be delivered F96[to the Registrar in such manner and form as may be prescribed] not later than 21 days after the date on which the carrying on of the restricted activity concerned is commenced; if a failure to comply with this subsection occurs, a like power to that under section 203(4) is available to the court to declare valid for all purposes the carrying on of the activity.
Section 206
Declaration to be made in the case of merger of company
206. (1) Where the restricted activity is to effect a merger, each declaration (that is to say, each declaration by the directors (or a majority of them) of each merging company) shall state—
(a) the total amount of the assets and liabilities of the merging company in question as at the latest practicable date before the date of making of the declaration and in any event at a date not more than 3 months before the date of that making; and
(b) that the declarants have made a full inquiry into the affairs of the company and the other merging companies and that, having done so, they have formed the opinion that the successor company (within the meaning of Chapter 3 of Part 9) will be able to pay or discharge the debts and other liabilities of it and the transferor company or companies in full as they fall due during the period of 12 months after the date on which the merger takes effect.
(2) A copy of each declaration under this section shall be delivered to the Registrar not later than 21 days after the date on which the carrying on of the restricted activity concerned is commenced; if a failure to comply with this subsection occurs, a like power to that under section 203(4) is available to the court to declare valid for all purposes the carrying on of the activity.
Annotations
Amendments:
F97
Substituted by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 19, not commenced as of date of revision.
Modifications (not altering text):
C29
Prospective affecting provision: subs. (2) amended by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 19, not commenced as of date of revision.
(2) A copy of each declaration under this section shall be delivered F97[to the Registrar in such manner and form as may be prescribed] not later than 21 days after the date on which the carrying on of the restricted activity concerned is commenced; if a failure to comply with this subsection occurs, a like power to that under section 203(4) is available to the court to declare valid for all purposes the carrying on of the activity.
Section 207
Declaration to be made in the case of members’ winding up of solvent company
207. (1) Where the restricted activity is to wind up a company in a members’ voluntary winding up under section 579, the declaration shall state—
(a) the total amount of the company’s assets and liabilities as at the latest practicable date before the date of making of the declaration and in any event at a date not more than 3 months before the date of that making; and
(b) that the declarants have made a full inquiry into the affairs of the company and that, having done so, they have formed the opinion that the company will be able to pay or discharge its debts and other liabilities in full within such period not exceeding 12 months after the commencement of the winding up as may be specified in the declaration.
(2) A copy of the declaration under this section shall be delivered to the Registrar not later than 21 days after the date on which the carrying on of the restricted activity concerned is commenced; if a failure to comply with this subsection occurs, a like power to that under section 203(4) is available to the court to declare valid for all purposes the carrying on of the activity.
Annotations
Amendments:
F98
Substituted by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 20, not commenced as of date of revision.
Modifications (not altering text):
C30
Prospective affecting provision: subs. (2) amended by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 20, not commenced as of date of revision.
(2) A copy of the declaration under this section shall be delivered F98[to the Registrar in such manner and form as may be prescribed] not later than 21 days after the date on which the carrying on of the restricted activity concerned is commenced; if a failure to comply with this subsection occurs, a like power to that under section 203(4) is available to the court to declare valid for all purposes the carrying on of the activity.
Section 208
Condition to be satisfied common to declarations referred to in section 204, 205 or 207
208. A declaration referred to in section 204, 205 or 207 shall have no effect for the purposes of this Act unless it is accompanied by a report—
(a) drawn up in the prescribed form, by a person who is qualified at the time of the report to be appointed, or to continue to be, the statutory auditor of the company; and
(b) which shall state whether, in the opinion of that person, the declaration is not unreasonable.
Annotations
Editorial Notes:
E73
Power pursuant to section exercised (1.06.2015) by Companies Act 2014 (Section 208 Report) Regulations 2015 (S.I. No. 218 of 2015), in effect as per reg. 1.
Section 209
Condition to be satisfied in relation to declaration referred to in section 206
209. (1) A declaration referred to in section 206 shall have no effect for the purposes of this Act unless it is accompanied by a document prepared by the declarants either—
(a) confirming that the common draft terms of merger provide for such particulars of each relevant matter as will enable each of the prescribed effects provisions to operate without difficulty in relation to the merger; or
(b) specifying such particulars of each relevant matter as will enable each of those effects provisions to operate without difficulty in relation to the merger.
(2) In subsection (1) “prescribed effects provisions” means subsection (3)(a) to (i) of section 480 as that subsection has effect by virtue of section 472(2).
Section 210
Civil sanctions where opinion as to solvency stated in declaration without reasonable grounds
210. (1) Where a director of a company makes a declaration without having reasonable grounds for the opinion referred to in section 203(1)(f), 204(1)(f), 205(1)(c), 206(1)(b) or 207(1)(b), as the case may be, the court, on the application of—
(a) a liquidator, creditor, member or contributory of the company or, in the case of the opinion referred to in section 206(1)(b), of the successor company (within the meaning of Chapter 3 of Part 9), or
(b) the F99[Authority],
may declare that the director shall be personally responsible, without any limitation of liability, for all or any of the debts or other liabilities of the company or successor company, as the case may be.
(2) If a company or, as the case may be, a successor company (within the foregoing meaning) is wound up within 12 months after the date of the making of a declaration and its debts are not paid or provided for in full within 12 months after the commencement of the winding up, it shall be presumed, until the contrary is shown, that each director of, as appropriate—
(a) the company, or
(b) the merging companies,
who made the declaration did not have reasonable grounds for the opinion referred to in section 203(1)(f), 204(1)(f), 205(1)(c), 206(1)(b) or 207(1)(b), as the case may be.
(3) If the court makes a declaration under subsection (1), it may give such further directions as it thinks proper for the purpose of giving effect to the declaration.
Annotations
Amendments:
F99
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. no. 10, S.I. No. 335 of 2022.
Section 211
Moratorium on certain restricted activities being carried on and applications to court to cancel special resolution
211. (1) This section shall apply unless the restricted activity—
(a) is to effect a merger; or
(b) has the authority of a special resolution referred to in section 202(1)(a)(i) passed by the means provided under section 193.
(2) Unless one or more members who hold, or together hold, more than 90 per cent in nominal value of each class of issued shares of the company and entitled to vote at general meetings of the company have voted in favour of the special resolution referred to in section 202(1)(a), the company shall not proceed to carry on the restricted activity—
(a) subject to paragraph (b), until the expiry of 30 days after the date on which the special resolution has been passed; or
(b) if an application under subsection (3) is made, until the application has been disposed of by the court (and then only (unless the application is withdrawn) to the extent, if any, that authority for its being proceeded with is provided by a confirmation of the special resolution by the court on that application).
(3) An application may be made to the court in accordance with this section for the cancellation of the special resolution.
(4) Subject to subsection (5), an application under subsection (3) may be made by one or more members who held, or together held, not less than 10 per cent in nominal value of the company's issued share capital, or any class thereof, at the date of the passing of the special resolution and hold, or together hold, not less than that percentage in nominal value of the foregoing on the date of the making of the application.
(5) An application shall not be made under subsection (3) by a person who has consented to, or voted in favour of, the special resolution.
(6) An application under subsection (3) shall be made within 30 days after the date on which the special resolution was passed and may be made on behalf of the persons entitled to make the application by such one or more of their number as they may appoint in writing for the purpose.
(7) On the hearing of an application under subsection (3), the court may, as it thinks fit—
(a) confirm the special resolution;
(b) confirm the special resolution as respects only specified parts or aspects of the restricted activity to which it relates; or
(c) cancel the special resolution.
CHAPTER 8
Protection for minorities
Section 212
Remedy in case of oppression
212. (1) Any member of a company who complains that the affairs of the company are being conducted or that the powers of the directors of the company are being exercised—
(a) in a manner oppressive to him or her or any of the members (including himself or herself), or
(b) in disregard of his or her or their interests as members,
may apply to the court for an order under this section.
(2) If, on an application under subsection (1), the court is of opinion that the company’s affairs are being conducted or the directors’ powers are being exercised in a manner that is mentioned in subsection (1)(a) or (b), the court may, with a view to bringing to an end the matters complained of, make such order or orders as it thinks fit.
(3) The orders which a court may so make include an order—
(a) directing or prohibiting any act or cancelling or varying any transaction;
(b) for regulating the conduct of the company’s affairs in future;
(c) for the purchase of the shares of any members of the company by other members of the company or by the company and, in the case of a purchase by the company, for the reduction accordingly of the company's capital; and
(d) for the payment of compensation.
(4) Where an order under this section makes any amendment of any company’s constitution, then, notwithstanding anything in any other provision of this Act, but subject to the provisions of the order, the company concerned shall not have power, without the leave of the court, to make any further amendment of the constitution, inconsistent with the provisions of the order.
(5) However, subject to the foregoing subsection, the amendment made by the order shall be of the same effect as if duly made by resolution of the company, and the provisions of this Act shall apply to the constitution as so amended accordingly.
(6) A certified copy of any order under this section amending or giving leave to amend a company’s constitution shall, within 21 days after the date of the making of the order, be delivered by the company to the Registrar.
(7) If a company fails to comply with subsection (6), the company and any officer of it who is in default shall be guilty of a category 4 offence.
(8) Each of the following—
(a) the personal representative of a person who, at the date of his or her death, was a member of a company, or
(b) any trustee of, or person beneficially interested in, the shares of a company by virtue of the will or intestacy of any such person,
may apply to the court under subsection (1) for an order under this section and, accordingly, any reference in that subsection to a member of a company shall be read as including a reference to any such personal representative, trustee or person beneficially interested as mentioned in paragraph (a) or (b) or to all of them.
(9) If, in the opinion of the court, the hearing of proceedings under this section would involve the disclosure of information the publication of which would be seriously prejudicial to the legitimate interests of the company, the court may order that the hearing of the proceedings or any part of them shall be in camera.
Annotations
Modifications (not altering text):
C31
Application of section restricted (15.07.2015) by European Union (Bank Recovery and Resolution) Regulations 2015 (S.I. No. 289 of 2015), reg. 119(1)(c), in effect as per reg. 1(2).
Effect of special management.
119. (1) While an institution under resolution is under special management—
(a) that institution shall not convene or hold any general meeting other than where the special manager so directs,
(b) the rights and powers of shareholders and members under any enactment or contract stand suspended and are not exercisable,
(c) section 212 of the Act of 2014 does not apply, and
(d) no derivative action may be brought in respect of that institution under resolution.
(2) The special management of the institution under resolution has effect notwithstanding anything in—
(a) the Act of 1989, the Act of 2014 or the Central Bank Acts 1942 to 2014,
(b) any other rule of law or equity,
(c) any code of practice made under an enactment,
...
CHAPTER 9
Form of registers, indices and minute books
Section 213
Form of registers, minutes, etc.
213. (1) Any register, index or minute book required by this Act to be kept by a company or by the Registrar may be kept either by making entries in bound books or by recording the matters in question in any other manner.
(2) Where any register, index or minute book to be kept by a company is not kept by making entries in a bound book but by some other means, adequate precautions shall be taken for guarding against falsification and facilitating discovery of such falsification, should it occur.
(3) If default is made in complying with subsection (2), the company concerned and any officer of it who is in default shall be guilty of a category 3 offence.
Section 214
Use of computers, etc., for certain company records
214. (1) Subject to subsections (2) and (6), the power conferred on a company by section 213(1) to keep a register or other record by recording the matters in question otherwise than by making entries in bound books includes power to keep the register or other record by recording the matters in question otherwise than in a legible form so long as the recording is capable of being reproduced in a legible form.
(2) Subsection (1) does not apply to the books required to be kept by section 199 for the purpose mentioned in subsection (1) of that section.
(3) Any provision of an instrument made by a company before 3 April 1978 which requires a register of holders of debentures of the company to be kept in a legible form shall be read as requiring the register to be kept in a legible or non-legible form (but so that, if it is kept in non-legible form, it shall be capable of being reproduced in legible form).
(4) If the power under subsection (1) is availed of by a company, any duty imposed on the company by or under this Act to allow inspection of, or to furnish a copy of, the register or other record concerned kept by the company otherwise than in legible form, or any part of it, shall be treated as a duty to allow inspection of, or to furnish, a reproduction of the recording or of the relevant part of it in a legible form.
(5) Subsection (6) does not apply—
(a) if the services to the other computer there mentioned are provided by means of the technology commonly known as cloud computing or by any other distance hosting solution; or
(b) to the extent that regulations under subsection (7) provide that it shall not apply.
(6) Any computer (the “server computer”) that provides services to another computer, being services the provision of which to the latter is necessary so that the information of the kind referred in subsection (1) stored in the latter can be accessed at all times, shall be kept in a place in the State.
(7) The Minister may, by regulations, make such provision, being provision in addition to subsection (4), as he or she considers appropriate in connection with such registers or other records as are mentioned in that subsection and are kept as there mentioned and may also, by regulations, provide for such exceptions to subsection (6) as he or she considers appropriate.
CHAPTER 10
Inspection of registers, provision of copies of information in them and service of notices
Section 215
Definitions for purposes of section 216 concerning registers, etc. and construction of reference to company keeping registers, etc.
215. In—
(a) section 216—
“copies of directors’ service contracts and memoranda” means the copies of directors’ service contracts and memoranda kept by the company pursuant to section 154;
“copies of instruments creating charges” means the copies of instruments creating charges kept by the company pursuant to section 418 (including copies of any relevant judgment mortgage documentation referred to in that section);
“directors’ and secretaries’ register” means the register of directors and secretaries kept by the company pursuant to section 149;
“disclosable interests register” means the register of interests kept by the company pursuant to section 267;
“members’ register” means the register of members kept by the company pursuant to section 169;
“minutes of meetings” means the books kept by the company pursuant to section 199 (including any records referred to in section 196(6)) and—
(i) the documents, if any, required by section 193(7) (documents relating to unanimous written resolutions), and
(ii) the documents, if any, required by section 195(4) (documents relating to majority written resolutions),
to be kept with those books;
(b) this section a reference to any foregoing register or document being kept by the company includes a reference to the register or document being kept by another on the company's behalf pursuant to section 216(2);
(c) this section and section 216 a reference to keeping includes a reference to maintaining; and
(d) section 216(3) the requirement thereunder to keep a register or other document at a place shall be deemed to be complied with if, by means of any computer, the register or document is (at that place) capable of being reproduced in legible form and inspected in that form, and references elsewhere in section 216 and this Chapter to the keeping of a register or other document, and the inspection of it, shall be read accordingly.
Section 216
Where registers and other documents to be kept, right to inspect them, etc.
216. (1) This section applies to—
(a) the copies of directors’ service contracts and memoranda;
(b) the copies of instruments creating charges;
(c) the directors’ and secretaries’ register;
(d) the disclosable interests register;
(e) the members’ register; and
(f) the minutes of meetings.
(2) An obligation imposed on a company under this Act to keep a register or document to which this section applies may be discharged by another person keeping, on its behalf, the register or document.
(3) Subject to subsections (4) and (5), a register or document to which this section applies shall be kept at—
(a) the registered office of the company;
(b) its principal place of business within the State; or
(c) another place within the State.
(4) Where the register or document is kept by another person on behalf of the company pursuant to subsection (2), the place at which that register or document is kept by that person shall be a place within the State.
(5) In a case where a company keeps several of the registers or documents (or both) to which this section applies at a place other than that referred to in subsection (3)(a) or (b), those registers or documents (or both) shall be kept by it at a single place.
(6) Where a register or document to which this section applies is kept at a place referred to in subsection (3)(b) or (c) or subsection (4), the company shall send a notice to the Registrar in the prescribed form of that place and of any change in that place.
(7) A register or document to which this section applies shall, during business hours (except, in the case of the members’ register, when it is closed under section 174), be open to inspection in accordance with subsections (8) to (10).
(8) Every such register or document shall be open to the inspection of any member of the company without charge.
(9) The following shall be open to the inspection of any other person, on payment of the relevant fee:
(a) the directors’ and secretaries’ register;
(b) the disclosable interests register;
(c) the members’ register.
(10) The copies of instruments creating charges shall be open to the inspection of any creditor of the company without charge.
(11) A member of the company may request a copy, or a copy of any part, of—
(a) the directors’ and secretaries’ register;
(b) the disclosable interests register;
(c) the members’ register; or
(d) the minutes of meetings.
(12) Any other person may request a copy, or a copy of any part, of—
(a) the directors’ and secretaries’ register;
(b) the disclosable interests register; or
(c) the members’ register.
(13) A company shall, within 10 days after the date of receipt of a request under subsection (11) or (12) and on payment to it of the relevant fee by the requester, cause to be sent to the requester the copy, or part of it, concerned.
Section 217
Supplemental provisions in relation to section 216 — “relevant fee”, power to alter the amount of it, offences, etc.
217. (1) In section 216 “relevant fee” means—
(a) in a case falling within subsection (9) of that section—
(i) where one register is inspected, €10.00 or such less sum as the company may determine; or
(ii) subject to subsection (2), where more than one register is inspected on the same day or in any period of 24 consecutive hours, €15.00 or such less sum as the company may determine;
(b) in a case falling within subsection (13) of that section, €10.00 per copy or such less sum as the company may determine.
(2) Subsection (1)(a)(ii) only applies if—
(a) the inspections concerned are made by, or on behalf of, the same person; and
(b) at the time the first request for inspection is made (by, or on behalf of, the same person) during the period concerned it is indicated to the company that more than one register will be inspected (by, or on behalf of, that person) during that period.
(3) If a company fails to comply with any of subsections (3) to (10), or subsection (13), of section 216, the company and any officer of it who is in default shall be guilty of a category 3 offence.
(4) The court may, on application being made to it, make the following orders:
(a) in the case of a failure to comply with any of subsections (7) to (10) of section 216, an order compelling an immediate inspection of the register or document concerned;
(b) in the case of a failure to comply with section 216(13), an order directing that the copy requested be sent to the person requesting it.
(5) Subject to subsections (6) to (8), the Minister may, by order, alter a sum specified in paragraph (a) or (b) of the definition of “relevant fee” in this section.
(6) An order under subsection (5) may only be made, at a particular time (the “relevant time”), if it appears to the Minister the changes in the value of money generally in the State that have occurred during the period beginning—
(a) on this Act’s passing, or
(b) if the powers under that subsection have previously been exercised, immediately after their last previous exercise,
and ending at the relevant time warrant the exercise of powers under that subsection for the following purpose.
(7) That purpose is to relieve companies of an additional financial expense that they would otherwise incur (by reason of the foregoing changes) in complying with the provisions specified in the definition of “relevant fee” in this section if the powers under subsection (5) were not exercised at the relevant time.
(8) Without prejudice to subsections (6) and (7), in making any order under subsection (5), the Minister shall take into account the general costs incurred by a company in facilitating the inspection, or providing copies, of the registers or other documents referred to in the provisions specified in the definition of “relevant fee” in this section.
Section 218
Service of notices on members
218. (1) Subsections (3) and (4) shall apply to any case in which a provision of this Act, or of the company's constitution, requires or authorises a notice to be served on or given to a member of the company by the company, or an officer of it, but save to the extent that the constitution provides otherwise.
(2) Subsection (5) shall only apply if there is contained in the company's constitution a provision to the effect that it shall apply (but nothing in this subsection shall prevent alternative and reasonable provision being made in the constitution with regard to one or more of the matters set out in that subsection and, to the extent that such alternative and reasonable provision is made, that provision shall apply instead of that subsection).
(3) A notice referred to in subsection (1) shall, save where the means of serving or giving it specified in paragraph (d) is used, be in writing and may be served on or given to the member in one of the following ways:
(a) by delivering it to the member;
(b) by leaving it at the registered address of the member;
(c) by sending it by post in a prepaid letter to the registered address of the member; or
(d) if the company’s constitution permits the use of electronic means to serve or give the notice or the conditions specified in subsection (4) are satisfied, by electronic means.
(4) The conditions referred to in subsection (3)(d) are—
(a) the member has consented in writing to the company, or the officer of it, using electronic means to serve or give notices in relation to him or her;
(b) at the time the electronic means are used to serve or give the notice in relation to the member, no notice in writing has been received by the company or the officer concerned from the member stating he or she has withdrawn the consent referred to in paragraph (a); and
(c) the particular means used to serve or give the notice electronically are those that the member has consented to.
(5) Any notice served or given in accordance with subsection (3) shall be deemed, in the absence of any agreement to the contrary between the company (or, as the case may be, the officer of it) and the member, to have been served or given—
(a) in the case of its being delivered, at the time of delivery (or, if delivery is refused, when tendered);
(b) in the case of its being left, at the time that it is left;
(c) in the case of its being posted (to an address in the State) on any day other than a Friday, Saturday or Sunday, 24 hours after despatch and in the case of its being posted (to such an address)—
(i) on a Friday — 72 hours after despatch; or
(ii) on a Saturday or Sunday — 48 hours after despatch;
(d) in the case of electronic means being used in relation to it, 12 hours after despatch,
but this subsection is without prejudice to section 181(3).
(6) In this section “registered address”, in relation to a member, means the address of the member as entered in the register of members.
PART 5
DUTIES OF DIRECTORS AND OTHER OFFICERS
CHAPTER 1
Preliminary and definitions
Section 219
Interpretation and application (Part 5)
219. (1) In this Part—
“credit transaction” has the meaning given to it by subsection (3);
“guarantee” includes an indemnity;
“quasi-loan” has the meaning given to it by subsection (2).
(2) For the purposes of this Part—
(a) a quasi-loan is a transaction under which one party (the “creditor”) agrees to pay, or pays otherwise than in pursuance of an agreement, a sum for another (the “borrower”) or agrees to reimburse or reimburses otherwise than in pursuance of an agreement, expenditure incurred by another party for another (the “borrower”)—
(i) on terms that the borrower (or a person on his behalf) will reimburse the creditor; or
(ii) in circumstances giving rise to a liability on the borrower to reimburse the creditor;
(b) any reference to the person to whom a quasi-loan is made is a reference to the borrower; and
(c) the liabilities of a borrower under a quasi-loan include the liabilities of any person who has agreed to reimburse the creditor on behalf of the borrower.
(3) For the purposes of this Part a credit transaction is, subject to subsection (4), a transaction under which one party (the “creditor”)—
(a) supplies any goods or sells any land under, as the case may be, a hire-purchase agreement or conditional sale agreement;
(b) leases or licenses the use of land or hires goods in return for periodical payments;
(c) otherwise disposes of land or supplies goods or services, on the understanding that payment (whether in a lump sum or instalments or by way of periodical payments or otherwise) is to be deferred.
(4) For the purposes of this Part a lease of land which reserves a nominal annual rent of not more than €100 is not a credit transaction where a company grants the lease in return for a premium or capital payment which represents the open market value of the land thereby disposed of by the company.
(5) For the purposes of this Part the value of a transaction or arrangement is—
(a) in the case of a loan, the principal of the loan;
(b) in the case of a quasi-loan, the amount or maximum amount which the person to whom the quasi-loan is made is liable to reimburse the creditor;
(c) in the case of a transaction or arrangement other than a loan or quasi-loan or a transaction or arrangement falling within paragraph (d) or (e), the price which it is reasonable to expect could be obtained for the goods, land or services to which the transaction or arrangement relates if they had been supplied at the time the transaction or arrangement is entered into in the ordinary course of business and on the same terms (apart from price) as they have been supplied or are to be supplied under the transaction or arrangement in question;
(d) in the case of a guarantee or security, the amount guaranteed or secured;
(e) in the case of an arrangement to which section 239(2) or (3) applies, the value of the transaction to which the arrangement relates less any amount by which the liabilities under the arrangement or transaction of the person for whom the transaction was made have been reduced.
(6) For the purposes of subsection (5), the value of a transaction or arrangement (or, as the case may be, of a transaction to which an arrangement relates) which is not capable of being expressed as a specific sum of money, whether because the amount of any liability arising under the transaction or arrangement is unascertainable or for any other reason, shall be deemed to exceed €65,000, and this subsection applies irrespective of whether any liability under the transaction or arrangement has been reduced.
(7) For the purposes of this Part, a transaction or arrangement is made for a person if—
(a) in the case of a loan or quasi-loan, it is made to him or her;
(b) in the case of a credit transaction, he or she is the person to whom goods or services are supplied, or land is sold or otherwise disposed of, under the transaction;
(c) in the case of a guarantee or security, it is entered into or provided in connection with a loan or quasi-loan made to him or her or a credit transaction made for him or her;
(d) in the case of an arrangement to which section 239(2) or (3) applies, the transaction to which the arrangement relates was made for him or her; and
(e) in the case of any other transaction or arrangement for the supply or transfer of goods, land or services (or any interest therein), he or she is the person to whom the goods, land or services (or the interest) are supplied or transferred.
(8) This Part does not apply to arrangements or transactions entered into before 1 February 1991 but, for the purposes of determining whether an arrangement is one to which section 239(2) or (3) applies, the transaction to which the arrangement relates shall, if it was entered into before 1 February 1991, be deemed to have been entered into after that date.
(9) This Part shall have effect in relation to an arrangement or transaction whether governed by the law of the State or of another country.
Section 220
Connected persons
220. (1) For the purposes of this Part (and without prejudice to subsection (3)), a person is connected with a director of a company if, but only if, the person (not being himself or herself a director of the company) is—
(a) that director’s spouse, civil partner, parent, brother, sister or child;
(b) a person acting in his or her capacity as the trustee of any trust, the principal beneficiaries of which are that director, the spouse (or civil partner) or any children of that director or any body corporate which that director controls; or
(c) in partnership with that director.
(2) In subsection (1)(a) and (b) “child”, in relation to a director, shall be deemed to include a child of the director’s civil partner who is ordinarily resident with the director and the civil partner.
(3) A body corporate shall also be, for the purposes of this Part, connected with a director of a company if it is controlled by that director or by another body corporate that is controlled by that director.
(4) For the avoidance of doubt, subsection (3) is without prejudice to the application of section 18(c) of the Interpretation Act 2005 (“person” to include body corporate, etc.) to subsection (1)(b).
(5) For the purposes of this section, a director of a company controls a body corporate if, but only if, he or she is, alone or together with any other director or directors of the company or any person connected with the director or such other director or directors—
(a) interested in one-half or more of the equity share capital of that body; or
(b) entitled to exercise or control the exercise of one-half or more of the voting power at any general meeting of that body.
(6) In subsection (5)—
(a) “equity share capital” has the same meaning as it has in section 7; and
(b) references to voting power exercised by a director shall be read as including references to voting power exercised by another body corporate which that director controls.
(7) For the purpose of subsections (5)(b) and (6)(b) “voting power” does not include any power to vote which arises only in specified circumstances.
(8) It shall be presumed, for the purposes of this Part, until the contrary is shown, that the sole member of a single-member company is a person connected with a director of that company.
Annotations
Modifications (not altering text):
C32
Application of subs. (8) restricted (5.12.2018) by Home Building Finance Ireland Act 2018 (28/2018), s. 26(1)(a), S.I. No. 518 of 2018.
Disapplication of certain provisions of Companies Act to HBFI
26. (1) The following provisions of the Companies Act shall not apply to HBFI or a HBFI group entity:
(a) section 220(8);
...
Section 221
Shadow directors
221. (1) Subject to subsection (2), a person in accordance with whose directions or instructions the directors of a company are accustomed to act (in this Act referred to as a “shadow director”) shall be treated for the purposes of this Part as a director of the company unless the directors are accustomed so to act by reason only that they do so on advice given by him or her in a professional capacity.
(2) A body corporate is not to be regarded as a shadow director of any of its subsidiaries.
(3) Section 231 shall apply in relation to a shadow director of a company as it applies in relation to a director of a company, except that the shadow director shall declare his or her interest, not at a meeting of the directors, but by a notice in writing to the directors which is either—
(a) a specific notice given before the date of the meeting at which, if he or she had been a director, the declaration would be required by subsection (3) of that section to be made; or
(b) a notice which under subsection (4) of that section falls to be treated as a sufficient declaration of that interest or would fall to be so treated apart from the qualification of that subsection (4) contained in subsection (5) of that section.
(4) As respects a declaration made by either of the means referred to in subsection (3), section 166 shall have effect as if the declaration had been made at the meeting in question and had accordingly formed part of the proceedings at that meeting.
Section 222
De facto director
222. (1) Without limiting the manner in which the expression “director” is to be read by virtue of section 2(1), a person who occupies the position of director of a company but who has not been formally appointed as such director shall, subject to subsection (4), be treated, for the purposes of this Part, as a director of the company.
(2) In particular, section 231 shall apply in relation to such a director as it applies in relation to directors generally.
(3) A person who is, by virtue of subsection (1), treated, for the purposes of this Part, as a director of a company is in this Act referred to as a de facto director.
(4) A person shall not be a de facto director of a company by reason only of the fact that he or she gives advice in a professional capacity to the company or any of the directors of it.
CHAPTER 2
General duties of directors and secretaries and liabilities of them and other officers
Section 223
Duty of each director
223. (1) It is the duty of each director of a company to ensure that this Act is complied with by the company.
(2) The breach by a director of the duty under subsection (1) shall not of itself affect—
(a) the validity of any contract or other transaction, or
(b) the enforceability, other than by the director in breach of that duty, of any contract or other transaction by any person,
but nothing in this subsection affects the principles of liability of a third party where he or she has been an accessory to a breach of duty or has knowingly received a benefit therefrom.
(3) The consent in respect of a director to accompany—
(a) a statement under section 21(1)(a), and
(b) a notification under section 149(8),
shall include a statement by the director (immediately above his or her signature on the consent) in the following terms:
“I acknowledge that, as a director, I have legal duties and obligations imposed by the Companies Act, other statutes and at common law.”.
Section 224
Directors to have regard to interests of employees
224. (1) The matters to which the directors of a company are to have regard in the performance of their functions shall include the interests of the company’s employees in general, as well as the interests of its members.
(2) Accordingly, the duty imposed by this section on the directors shall be owed by them to the company (and the company alone) and shall be enforceable in the same way as any other fiduciary duty owed to a company by its directors.
Section 224A
F100[Directors to have regard to certain matters where company is, or is likely to be, unable to pay its debts
224A. (1) A director of a company who believes, or who has reasonable cause to believe, that the company is, or is likely to be, unable to pay its debts (within the meaning of section 509(3)), shall have regard to –
(a) the interests of the creditors,
(b) the need to take steps to avoid insolvency, and
(c) the need to avoid deliberate or grossly negligent conduct that threatens the viability of the business of the company.
(2) The duty imposed by this section on a director shall be owed by them to the company (and the company alone) and shall be enforceable in the same way as any other fiduciary duty owed to a company by its directors.]
Annotations
Amendments:
F100
Inserted (27.07.2022) by European Union (Preventive Restructuring) Regulations 2022 (S.I. No. 380 of 2022) reg. 4, subject to restriction on application in reg. 3.
Section 225
Directors’ compliance statement and related statement
225. (1) In this section—
“amount of turnover” and “balance sheet total” have the same meanings as they have in F101[section 275];
“relevant obligations”, in relation to a company, means the company’s obligations under—
(a) this Act, where a failure to comply with any such obligation would (were it to occur) be—
(i) a category 1 offence or a category 2 offence; or
(ii) a serious Market Abuse offence or a serious Prospectus offence;
and
(b) tax law;
“serious Market Abuse offence” means an offence referred to in section 1368;
“serious Prospectus offence” means an offence referred to in section 1356;
“tax law” means—
(a) the Customs Acts;
(b) the statutes relating to the duties of excise and to the management of those duties;
(c) the Tax Acts;
(d) the Capital Gains Tax Acts;
(e) the Value-Added Tax Acts;
(f) the Capital Acquisitions Tax Consolidation Act 2003 and the enactments amending or extending that Act;
(g) the Stamp Duties Consolidation Act 1999 and the enactments amending or extending that Act; and
(h) any instruments made under an enactment referred to in any of paragraphs (a) to (g) or made under any other enactment and relating to tax.
(2) The directors of a company to which this section applies shall also include in their report under section 325 a statement—
(a) acknowledging that they are responsible for securing the company’s compliance with its relevant obligations; and
(b) with respect to each of the things specified in subsection (3), confirming that the thing has been done or, if it has not been done, specifying the reasons why it has not been done.
(3) The things mentioned in subsection (2)(b) are—
(a) the drawing up of a statement (to be known, and in this Act referred to as, a “compliance policy statement”) setting out the company’s policies (that, in the directors’ opinion, are appropriate to the company) respecting compliance by the company with its relevant obligations;
(b) the putting in place of appropriate arrangements or structures that are, in the directors’ opinion, designed to secure material compliance with the company’s relevant obligations; and
(c) the conducting of a review, during the financial year to which the report referred to in subsection (2) relates, of any arrangements or structures referred to in paragraph (b) that have been put in place.
(4) The arrangements or structures referred to in subsection (3)(b) may, if the directors of the company in their discretion so decide, include reliance on the advice of one or more than one person employed by the company or retained by it under a contract for services, being a person who appears to the directors to have the requisite knowledge and experience to advise the company on compliance with its relevant obligations.
(5) For the purposes of this section, the arrangements or structures referred to in subsection (3)(b) shall be regarded as being designed to secure material compliance by the company concerned with its relevant obligations if they provide a reasonable assurance of compliance in all material respects with those obligations.
(6) If default is made in complying with subsection (2), each director to whom the default is attributable shall be guilty of a category 3 offence.
(7) Subject to subsection (8), this section shall apply to a company if, in respect of the financial year of the company to which the report referred to in subsection (2) relates—
(a) its balance sheet total for the year exceeds—
(i) subject to subparagraph (ii), €12,500,000; or
(ii) if an amount is prescribed under section 943(1)(i), the prescribed amount;
and
(b) the amount of its turnover for the year exceeds—
(i) subject to subparagraph (ii), €25,000,000; or
(ii) if an amount is prescribed under section 943(1)(i), the prescribed amount.
(8) This section does not apply to any company that is of a class exempted under section 943(1)(g) from this section.
Annotations
Amendments:
F101
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 88(a)(i), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 226
Duties of secretary
226. (1) The duties of the secretary of a company shall, without derogating from the secretary’s statutory and other legal duties, be such duties as are delegated to the secretary, from time to time, by the board of directors of the company.
(2) Without prejudice to the generality of section 129(4), the directors of a company shall, in their appointment of a secretary, have a duty to ensure that the person appointed has the skills necessary so as to enable him or her maintain (or procure the maintenance of) the records (other than accounting records) required to be kept under this Act in relation to the company.
(3) The cases to which subsection (2) applies includes the case of an appointment of one of the directors of the company as secretary.
(4) In subsections (1) to (3) references to a secretary include references to joint secretaries.
(5) The consent in respect of a secretary or joint secretaries to accompany—
(a) a statement under section 21(1)(a), and
(b) a notification under section 149(8),
shall include a statement by the secretary or secretaries (immediately above the signature or signatures of the secretary or secretaries on the consent) in the following terms:
“I/We acknowledge that, as a secretary, I/we have legal duties and obligations imposed by the Companies Act, other statutes and at common law.”.
Section 227
Fiduciary duties of directors — provisions introductory to section 228
227. (1) Without prejudice to the provisions of any enactment (including this Act), a director of a company shall owe the duties set out in section 228 (the “relevant duties”) to the company (and the company alone).
(2) The breach by a director of the relevant duties shall not of itself affect—
(a) the validity of any contract or other transaction, or
(b) the enforceability, other than by the director in breach of that duty, of any contract or other transaction by any person,
but nothing in this subsection affects the principles of liability of a third party where he or she has been an accessory to a breach of duty or has knowingly received a benefit therefrom.
(3) The relevant duties shall be enforced in the same way as any other fiduciary duty owed to a company by its directors.
(4) The relevant duties (other than those set out in section 228(1)(b) and (h)) are based on certain common law rules and equitable principles as they apply in relation to the directors of companies and shall have effect in place of those rules and principles as regards the duties owed to a company by a director.
(5) The relevant duties (other than those set out in section 228(1)(b) and (h)) shall be interpreted, and the provisions concerned of section 228 shall be applied, in the same way as common law rules or equitable principles; regard shall be had to the corresponding common law rules and equitable principles in interpreting those duties and applying those provisions.
Annotations
Modifications (not altering text):
C33
Application of section restricted (11.07.2022) by Eirgrid, Electricity and Turf (Amendment) Act 2022 (17/2022), s. 5(3), (4), S.I. No. 352 of 2022.
Consequences of measures taken pursuant to direction of Commission
5. ...
(3) EirGrid, shall, notwithstanding any limitation in its constitution (within the meaning of section 2 of the Companies Act 2014) have such powers as may be necessary to enable it to comply with any direction.
(4) Any action taken by a director of EirGrid in order to comply with a direction shall not constitute a breach of section 227 or 228 of the Companies Act 2014.
...
Section 228
Statement of principal fiduciary duties of directors
228. (1) A director of a company shall—
(a) act in good faith in what the director considers to be the interests of the company;
(b) act honestly and responsibly in relation to the conduct of the affairs of the company;
(c) act in accordance with the company’s constitution and exercise his or her powers only for the purposes allowed by law;
(d) not use the company’s property, information or opportunities for his or her own or anyone else’s benefit unless—
(i) this is expressly permitted by the company’s constitution; or
(ii) the use has been approved by a resolution of the company in general meeting;
(e) not agree to restrict the director’s power to exercise an independent judgment unless—
(i) this is expressly permitted by the company’s constitution;
(ii) the case concerned falls within subsection (2); or
(iii) the director’s agreeing to such has been approved by a resolution of the company in general meeting;
(f) avoid any conflict between the director’s duties to the company and the director’s other (including personal) interests unless the director is released from his or her duty to the company in relation to the matter concerned, whether in accordance with provisions of the company’s constitution in that behalf or by a resolution of it in general meeting;
(g) exercise the care, skill and diligence which would be exercised in the same circumstances by a reasonable person having both—
(i) the knowledge and experience that may reasonably be expected of a person in the same position as the director; and
(ii) the knowledge and experience F102[which the director has;]
and
(h) in addition to the duty under section 224 (duty to have regard to the interests of its employees in general), have regard to the F102[interests of its members; and]
F103[(i) in addition to the duties under section 224A (directors to have regard to certain matters where company is, or is likely to be, unable to pay its debts), have regard to the interests of its creditors where the directors become aware of the company’s insolvency.]
(2) If a director of a company considers in good faith that it is in the interests of the company for a transaction or engagement to be entered into and carried into effect, a director may restrict the director’s power to exercise an independent judgment in the future by agreeing to act in a particular way to achieve this.
(3) Without prejudice to the director’s duty under subsection (1)(a) to act in good faith in what the director considers to be the interests of the company, a director of a company may have regard to the interests of a particular member of the company in the following circumstances.
(4) Those circumstances are where the director has been appointed or nominated for appointment by that member, being a member who has an entitlement to so appoint or nominate under the company’s constitution or a shareholders’ agreement.
Annotations
Amendments:
F102
Substituted (27.07.2022) by European Union (Preventive Restructuring) Regulations 2022 (S.I. No. 380 of 2022), reg. 5(a), (b), subject to restriction on application in reg. 3.
F103
Inserted (27.07.2022) by European Union (Preventive Restructuring) Regulations 2022 (S.I. No. 380 of 2022), reg. 5(c), subject to restriction on application in reg. 3.
Modifications (not altering text):
C34
Application of section restricted (11.07.2022) by Eirgrid, Electricity and Turf (Amendment) Act 2022 (17/2022), s. 5(3), (4), S.I. No. 352 of 2022.
Consequences of measures taken pursuant to direction of Commission
5. ...
(3) EirGrid, shall, notwithstanding any limitation in its constitution (within the meaning of section 2 of the Companies Act 2014 ) have such powers as may be necessary to enable it to comply with any direction.
(4) Any action taken by a director of EirGrid in order to comply with a direction shall not constitute a breach of section 227 or 228 of the Companies Act 2014.
...
Section 229
Other interests of directors
229. (1) Save to the extent that the company’s constitution provides otherwise, a director of a company may be or become a director or other officer of, or otherwise interested in, any company promoted by the company or in which the company may be interested as shareholder or otherwise; but neither this subsection nor anything in the company’s constitution governing the foregoing matter overrides section 228.
(2) No such director shall be accountable to the company for any remuneration or other benefits received by him or her as a director or officer of, or from his or her interest in, such other company unless the company otherwise directs.
Section 230
Power of director to act in a professional capacity for company
230. Save to the extent that the company’s constitution provides otherwise—
(a) any director may act by himself or herself, or his or her firm, in a professional capacity for the company of which he or she is a director, and
(b) any director, in such a case, or his or her firm, shall be entitled to remuneration for professional services as if he or she were not a director,
but nothing in this section authorises a director, or his or her firm, to act as statutory auditor of a company of which he or she is director.
Section 231
Duty of director to disclose his or her interest in contracts made by company
231. (1) It shall be the duty of a director of a company who is in any way, whether directly or indirectly, interested in a contract or proposed contract with the company, to declare the nature of his or her interest at a meeting of the directors of the company.
(2) Subsection (1) does not apply in relation to an interest that cannot reasonably be regarded as likely to give rise to a conflict of interest.
(3) The declaration required by this section to be made by a director shall—
(a) in the case of a proposed contract, be made at the meeting of the directors at which the question of entering into the contract is first taken into consideration or, if the director was not at the date of that meeting interested in the proposed contract, at the next meeting of the directors held after he or she became so interested; and
(b) in the case of his or her becoming interested in a contract after it is made, be made at the first meeting of the directors held after the director becomes so interested.
(4) Subject to subsection (5), for the purposes of this section a general notice given to the directors of a company by a director to the effect that—
(a) he or she is a member of a specified company or firm and is to be regarded as interested in any contract which may, after the date of the notice, be made with that company or firm, or
(b) he or she is to be regarded as interested in any contract which may, after the date of the notice, be made with a specified person who is connected with him or her,
shall be deemed to be a sufficient declaration of interest in relation to any such contract.
(5) No such notice as is mentioned in subsection (4) shall be of effect unless it is given at the meeting of directors or the director takes reasonable steps to secure that it is brought up and read at the next meeting of the directors after it is given.
(6) A copy of every declaration made and notice given in pursuance of this section shall, within 3 days after the date of making or giving of it, be entered into a book kept by the company for this purpose.
(7) That book shall be open for inspection, without any charge, by any director, secretary, statutory auditor or member of the company at the registered office of the company and shall be produced at—
(a) every general meeting of the company; and
(b) any meeting of its directors if any of its directors so requests in sufficient time to enable the book to be available at the meeting.
(8) A company shall, if required by the F104[Authority, produce to the Authority for inspection the book kept by it in accordance with subsection (6) and shall give the Authority such facilities for inspecting and taking copies of the contents of the book as the Authority] may require.
(9) Nothing in this section shall be taken to prejudice the operation of any enactment or rule of law restricting directors of a company from having interests in contracts with the company.
(10) Any reference in this section to a contract—
(a) shall be read as excluding a reference to a contract the decision as to whether to enter into it is taken, or falls to be taken, other than by the board of directors or a committee of which the first-mentioned director in subsection (1) is a member;
(b) shall be read as including a reference to any transaction or arrangement, whether or not constituting a contract, but, in a case where the transaction or arrangement does not constitute a contract, a like limitation to that which applies under paragraph (a) applies to the construction of reference provided by this paragraph.
(11) For the purposes of this section, a transaction or arrangement of a kind described in section 239 made by a company for a director of the company or a person connected with such a director shall, if it would not otherwise be so treated (and whether or not prohibited by that section), be treated as a transaction or arrangement in which that director is interested.
Annotations
Amendments:
F104
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. no. 11, S.I. No. 335 of 2022.
Modifications (not altering text):
C35
Application of section restricted (22.12.2022) by Air Navigation and Transport Act 2022 (40/2022), s. 31(4), S.I. No. 741 of 2022.
Disclosure by directors of certain interests
31. ...
(4) Section 231 of the Act of 2014 shall not apply to a director of the IANS or a subsidiary.
...
C36
Application of section restricted (25.12.2015) by Harbours Act 2015 (61/2015), s. 24(6), commenced on enactment.
Disclosure by directors of transferred companies of certain interests
24. ...
(6) Section 231 of the Companies Act 2014 does not apply to a director of a transferred company or a subsidiary.
(7) Nothing in this section shall be taken to prejudice the operation of any rule of law restricting directors of a transferred company from having any interest in contracts with the transferred company.
C37
Application of section restricted by Harbours Act 1996 (11/1996), s. 32(6), as substituted (25.12.2015) by Harbours Act 2015 (61/2015), s. 41, commenced on enactment.
Disclosure by directors of certain interests.
[32.— ...
(6) Section 231 of the Companies Act 2014 does not apply to a director of a company or a subsidiary.
(7) Nothing in this section shall be taken to prejudice the operation of any rule of law restricting directors of a company from having any interest in contracts with the company.]
C38
Application of section restricted (10.12.2015) by National Cultural Institutions (National Concert Hall) Act 2015 (44/2015), s. 21(8), commenced on enactment.
Disclosure of interests
21. ...
(8) Section 231 of the Companies Act 2014 shall not apply to a member of a board of a subsidiary.
(9) Nothing in this section shall be taken to prejudice the operation of any rule of law restricting directors of a company from having any interest in contracts with the NCH or a subsidiary.
...
Section 232
Breaches of certain duties: liability to account and indemnify
232. (1) Subject to section 233, where a director of a company acts in breach of his or her duty under section 228(1)(a), (c), (d), (e), F105[(f), (g) or (i)], he or she shall be liable to do either or both (as the corresponding common law rule or equitable principle with respect to the matter would have required) of the following things, namely—
(a) account to the company for any gain which he or she makes directly or indirectly from the breach of duty;
(b) indemnify the company for any loss or damage resulting from that breach.
(2) Subject to subsection (6), where a company enters into a transaction or arrangement contrary to section 238 or 239 with—
(a) a director of the company,
(b) a director of its holding company, or
(c) a person connected with a director of the company or its holding company,
that director and the person so connected and any other director of the company who authorised the transaction or arrangement (or, as the case may be, any transaction entered into in pursuance of the arrangement) shall be liable—
(i) to account to the company for any gain which he or she makes directly or indirectly from the transaction or arrangement;
(ii) (jointly and severally with any other person liable under this subsection) to indemnify the company for any loss or damage resulting from the transaction or arrangement; or
(iii) to do both of those things as the circumstances may require.
(3) Subject to section 233, where a company makes a payment to a director contrary to section 251 or 252 that director shall be liable—
(a) to account to the company for any gain which he or she makes directly or indirectly from the payment,
(b) to indemnify the company for any loss or damage resulting from the payment, or
(c) to do both of those things as the circumstances may require,
and, in the case of section 252, this is without prejudice to subsection (3) of that section.
(4) Subsection (2) applies irrespective of whether the transaction or arrangement concerned has been avoided.
(5) Subsections (1) to (3) are without prejudice to—
(a) the company’s right at common law to claim damages for breach of duty, or
(b) the company’s right to make an application seeking the grant of equitable relief,
but the provisions of this section shall not be read as having the combined effect of enabling the company to be afforded more compensation for any damage or injury, or more protection of any proprietary right, than is just and equitable in the circumstances.
(6) Where a transaction or arrangement is entered into by a company and a person connected with a director of the company or of its holding company in contravention of section 238 or 239—
(a) that director shall not be liable under subsection (2) (or under any law referred to in subsection (5)) if he or she shows that he or she took all reasonable steps to secure the company’s compliance with section 238 or 239, as the case may be, and
(b) in any case, a person so connected and any such other director as is mentioned in subsection (2) shall not be so liable if he or she shows that, at the time the transaction or arrangement was entered into (or, as the case may be, at the time the particular transaction was entered into in pursuance of the arrangement), he or she did not know the relevant circumstances constituting the contravention.
Annotations
Amendments:
F105
Substituted (27.07.2022) by European Union (Preventive Restructuring) Regulations 2022 (S.I. No. 380 of 2022), reg. 6, subject to restriction on application in reg. 3.
Section 233
Power of court to grant relief to officers of company
233. (1) This section applies to any proceedings for negligence, default, breach of duty or breach of trust against an officer of a company.
(2) In proceedings to which this section applies the court hearing the proceedings has the power of granting relief provided under subsection (3) if it appears to the court that the officer concerned is or may be liable in respect of the negligence, default, breach of duty or breach of trust (the “wrong concerned”) but that he or she has acted honestly and reasonably and that, having regard to all the circumstances of the case (including those connected with his or her appointment), he or she ought fairly to be excused for the wrong concerned.
(3) The power referred to in subsection (2) is to relieve the officer concerned, either wholly or partly, from his or her liability in respect of the wrong concerned on such terms as the court may think fit.
Section 234
Anticipated claim: similar power of relief as under section 233
234. (1) If an officer of a company has reason to apprehend that any claim will or might be made against him or her in respect of any negligence, default, breach of duty or breach of trust (the “wrong concerned”) he or she may make the following application to the court.
(2) That application is an application to be relieved of liability in respect of the wrong concerned; on the making of such an application the court shall have the same power to relieve the applicant as it would have had (by virtue of section 233) if it had been a court before which proceedings against that person for the wrong concerned had been brought.
Section 235
Any provision exempting officers of company from liability void (subject to exceptions)
235. (1) Subject to the provisions of this section, the following provision shall be void, namely, any provision:
(a) purporting to exempt any officer of a company from; or
(b) purporting to indemnify such an officer against;
any liability which by virtue of any enactment or rule of law would otherwise attach to him or her in respect of any negligence, default, breach of duty or breach of trust of which he or she may be guilty in relation to the company.
(2) Subsection (1) applies whether the provision concerned is contained in the constitution of a company or a contract with a company or otherwise.
(3) Notwithstanding subsection (1), a company may, in pursuance of any such provision as is mentioned in that subsection, indemnify any officer of the company against any liability incurred by him or her—
(a) in defending proceedings, whether civil or criminal, in which judgment is given in his or her favour or in which he or she is acquitted; or
(b) in connection with any proceedings or application referred to in, or under, section 233 or 234 in which relief is granted to him or her by the court.
(4) Notwithstanding subsection (1), a company may purchase and maintain for any of its officers insurance in respect of any liability referred to in that subsection.
(5) Notwithstanding any provision contained in any enactment, the constitution of a company or otherwise, a director may be counted in the quorum and may vote on any resolution to purchase or maintain any insurance under which the director might benefit.
(6) For the avoidance of doubt, if—
(a) any business, trade or activity has been carried on by means of a company, or other body corporate, registered or formed under the laws of another country,
(b) the period for which that business, trade or activity was so carried on was not less than 12 months preceding the date on which this subsection falls to be applied,
(c) a provision of the kind referred to in subsection (1)(a) or (b) in relation to officers of the company or other body corporate was in being and valid under the laws of that country, and
(d) a private company limited by shares is formed and registered to carry on that business, trade or activity,
then nothing in this section invalidates the operation of the provision referred to in paragraph (c) in respect of any negligence, default, breach of duty or breach of trust occurring before that private company limited by shares is formed and registered.
(7) Any directors’ and officers’ insurance purchased or maintained by a company before 6 April 2004 is as valid and effective as it would have been if this section had been in operation when that insurance was purchased or maintained.
(8) In this section—
(a) “officer” includes a statutory auditor,
(b) a reference to an officer includes a reference to any former or current officer of the company.
CHAPTER 3
Evidential provisions with respect to loans, other transactions, etc., between company and directors
Section 236
Loans, etc., by company to directors: evidential provisions
236. (1) In this section “relevant proceedings” means civil proceedings in which it is claimed that a company has made a loan or quasi-loan to—
(a) a director of the company, or
(b) a director of its holding company, or
(c) a person connected with a director of any such company.
(2) In relevant proceedings if the terms of the loan or quasi-loan are not in writing then it shall be presumed, until the contrary is proved, that—
(a) the loan or quasi-loan is repayable on demand, and
(b) for any period before repayment of the amount of the loan or quasi-loan (or for any period before repayment of part of that amount) the amount or part has borne interest at the appropriate rate.
(3) In relevant proceedings if the terms of the loan or quasi-loan are in writing or partially in writing but—
(a) the case is one in which those terms are ambiguous with respect to the time at which, or the circumstances under which, the loan or quasi-loan is to be repaid, then it shall be presumed, until the contrary is proved, that the loan or quasi-loan is repayable on demand, or
(b) the case is one in which those terms are ambiguous with respect to whether, or the extent to which, the loan or quasi-loan bears interest, then it shall be presumed, until the contrary is proved, that for any period before repayment of the amount of the loan or quasi-loan (or for any period before repayment of part of that amount) the amount or part has borne interest at the appropriate rate.
(4) If the case referred to in paragraph (a) of subsection (3) and the case referred to in paragraph (b) of that subsection both apply then both of the presumptions provided by that subsection shall apply.
(5) References in subsection (3) to the terms of a loan or quasi-loan being ambiguous with respect to a matter shall, if the terms of the loan or quasi-loan are partially in writing, be deemed to include references to the following case.
(6) That case is one in which—
(a) the written terms of the loan or quasi-loan do not make provision in respect of the matter concerned, and
(b) provision in respect of that matter is alleged to be made by those of the terms of the loan or quasi-loan that are not in writing.
Section 237
Loans, etc., by directors or connected persons to company or holding company: evidential provisions
237. (1) In this section “relevant proceedings” means civil proceedings in which it is claimed that a transaction or arrangement entered into, or alleged to have been entered into—
(a) by a director of a company with the company or its holding company, or
(b) by a person connected with such director with that company or its holding company (the “related person”),
constitutes a loan or quasi-loan by the director or (as appropriate) the related person to that company or its holding company, as the case may be.
(2) In relevant proceedings, if the terms of the transaction or arrangement concerned either—
(a) are not in writing, or
(b) are in writing, or partially in writing, but are ambiguous as to whether the transaction or arrangement constitutes a loan or quasi-loan or not (or as to whether it constitutes a quasi-loan as distinct from a loan),
then it shall be presumed, until the contrary is proved, that the transaction or arrangement constitutes neither a loan nor a quasi-loan to the company or its holding company, as the case may be.
(3) In relevant proceedings, where it is proved that a loan or a quasi-loan was made to the company or its holding company by the director of the first-mentioned company or the related person (whether the terms of the loan or quasi-loan are in writing, partially in writing or wholly oral) then, if—
(a) the case is one in which those terms are ambiguous with respect to whether, or the extent to which, the loan or quasi-loan bears interest, it shall be presumed, until the contrary is proved, that the loan or quasi-loan bears no interest,
(b) the case is one in which those terms are ambiguous with respect to whether, or the extent to which, the loan or quasi-loan is secured, it shall be presumed, until the contrary is proved, that the loan or quasi-loan is not secured, or
(c) in the event that the loan or quasi-loan is proved to be secured and the case is one in which those terms are ambiguous with respect to the priority that the security concerned is to have as against other indebtedness of the company, it shall be presumed, until the contrary is proved, that the loan or quasi-loan is subordinate to all other indebtedness of the company.
(4) If more than one of the cases referred to in paragraphs (a) to (c) of subsection (3) apply then each of the presumptions provided by the applicable paragraphs shall apply.
(5) The reference in subsection (2)(b) to the terms of a transaction or arrangement being ambiguous as to whether the transaction or arrangement constitutes a loan or quasi-loan or not (or as to whether it constitutes a quasi-loan as distinct from a loan) shall, if the terms of the transaction or arrangement are partially in writing, be deemed to include a reference to the following case.
(6) That case is one in which—
(a) the written terms of the transaction or arrangement do not specify what the nature of the transaction or arrangement is, and
(b) the nature of the transaction or arrangement is alleged to be specified by those of its terms that are not in writing.
(7) References in subsection (3) to the terms of a loan or quasi-loan being ambiguous with respect to a matter shall, if the terms of the loan or quasi-loan are partially in writing, be deemed to include references to the following case.
(8) That case is one in which—
(a) the written terms of the loan or quasi-loan do not make provision in respect of the matter concerned, and
(b) provision in respect of that matter is alleged to be made by those of the terms of the loan or quasi-loan that are not in writing.
CHAPTER 4
Substantive prohibitions or restrictions on loans to directors and other particular transactions involving conflict of interest
Section 238
Substantial transactions in respect of non-cash assets and involving directors, etc.
238. (1) Subject to subsections (4) and (5), a company (the “relevant company”) shall not enter into an arrangement under which—
(a) a director of the relevant company or of its holding company, or a person connected with such a director, acquires or is to acquire, one or more non-cash assets of the requisite value from the relevant company, or
(b) the relevant company acquires or is to acquire, one or more non-cash assets of the requisite value from such a director or a person so connected,
unless the arrangement is first approved—
(i) by a resolution of the relevant company in general meeting, and
(ii) if the director or connected person is a director of its holding company or a person connected with such a director, by a resolution of the holding company in general meeting.
(2) For the purposes of this section a non-cash asset is of the requisite value if at the time the arrangement in question is entered into its value is not less than €5,000 but, subject to that, exceeds €65,000 or 10 per cent of the amount of the relevant company’s relevant assets, and for those purposes the amount of a company’s relevant assets is—
(a) except in a case falling within paragraph (b), the value of its net assets determined by reference to the entity financial statements prepared under section 290 and laid in accordance with section 341 in respect of the last preceding financial year in respect of which such entity financial statements were so laid,
(b) where no entity financial statements have been prepared and laid under the foregoing sections before that time, the amount of its called-up share capital.
(3) An arrangement entered into by a company in contravention of this section and any transaction entered into in pursuance of the arrangement (whether by the company or any other person) shall be voidable at the instance of the company unless—
(a) restitution of any money or any other asset which is the subject-matter of the arrangement or transaction is no longer possible or the company has been indemnified in pursuance of section 232 by any other person for the loss or damage suffered by it, or
(b) any rights acquired bona fide for value and without actual notice of the contravention by any person who is not a party to the arrangement or transaction would be affected by its avoidance, or
(c) the arrangement is affirmed by a resolution of the company in general meeting passed within a reasonable period of time after the date on which the arrangement is entered into and, if it is an arrangement for the transfer of an asset to or by a director of its holding company or a person who is connected with such a director, is affirmed by a resolution of the holding company in general meeting passed within a reasonable period of time after that date.
(4) Subsection (1) shall not apply in relation to any arrangement for the acquisition of a non-cash asset—
(a) if the non-cash asset in question is or is to be acquired—
(i) by a holding company from any of its wholly owned subsidiaries, or
(ii) from a holding company by any of its wholly owned subsidiaries, or
(iii) by one wholly owned subsidiary of a holding company from another wholly owned subsidiary of that holding company,
or
(b) if the arrangement is entered into by a company which is being wound up unless the winding up is a members’ voluntary winding up, or
(c) if the arrangement involves the disposal of a company’s assets by a receiver.
(5) Subsection (1)(a) shall not apply in relation to any arrangement under which a person acquires or is to acquire an asset from a company of which he or she is a member if the arrangement is made with that person in his or her character as such member.
(6) Without prejudice to subsection (7), no approval is required to be given under this section by any body corporate unless it is a company formed and registered under this Act or an existing company.
(7) No approval is required to be given under this section by a wholly owned subsidiary of any body corporate.
(8) In this section—
(a) “non-cash asset” means any property or interest in property other than cash, and for this purpose “cash” includes foreign currency,
(b) any reference to the acquisition of a non-cash asset includes a reference to the creation or extinction of an estate or interest in, or a right over, any property and also a reference to the discharge of any person’s liability other than a liability for a liquidated sum, and
(c) “net assets”, in relation to a company, means the aggregate of the company’s assets less the aggregate of its liabilities, and for this purpose “liabilities” includes—
(i) where the company prepares Companies Act entity financial statements, any provision for liabilities (within the meaning of F106[paragraph 80 of Schedule 3, paragraph 65 of Schedule 3A or paragraph 39 of Schedule 3B, as the case may be]) that is made in those financial statements,
(ii) where the company prepares IFRS entity financial statements, any provision that is made in those financial statements.
Annotations
Amendments:
F106
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 90(d), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 239
Prohibition of loans, etc., to directors and connected persons
239. (1) Except as provided by section 240 and sections 242 to 245, a company shall not—
(a) make a loan or a quasi-loan to a director of the company or of its holding company or to a person connected with such a director,
(b) enter into a credit transaction as creditor for such a director or a person so connected,
(c) enter into a guarantee or provide any security in connection with a loan, quasi-loan or credit transaction made by any other person for such a director or a person so connected.
(2) A company shall not arrange for the assignment to it or the assumption by it of any rights, obligations or liabilities under a transaction which, if it had been entered into by the company, would have contravened subsection (1), but, for the purposes of this Part, the transaction shall be treated as having been entered into on the date of the arrangement.
(3) A company shall not take part in any arrangement under which—
(a) another person enters into a transaction which, if it had been entered into by the company, would have contravened subsection (1) or (2), and
(b) that other person, in pursuance of the arrangement, has obtained or is to obtain any benefit from the company or its holding company or a subsidiary of the company or its holding company.
Section 240
Arrangements of certain value
240. (1) Section 239 does not prohibit a company from entering into an arrangement with a director or a person connected with a director (whether, in either case, a director of the company or of its holding company) if—
(a) the value of the arrangement, or
(b) in a case where there are other arrangements entered into by the company with any director of the company, or any person connected with a director, the value of the arrangement and the total amount outstanding under those other arrangements, is, or, as the case may be, is together, less than 10 per cent of the company’s relevant assets.
(2) For the purposes of this section—
(a) a company enters an arrangement with a person if it—
(i) makes a loan or quasi-loan to or enters into a credit transaction as creditor for that person, or
(ii) enters into a guarantee or provides any security in connection with a loan, quasi-loan or credit transaction made for that person by any other person,
(b) the amount of a company’s relevant assets shall be determined in accordance with section 238(2); and
(c) there shall not be reckoned any arrangement entered into in accordance with the Summary Approval Procedure.
Section 241
Reduction in amount of company’s relevant assets
241. (1) This section applies to a company in respect of which the total amount outstanding under any arrangements referred to in section 240 comes to exceed 10 per cent of the company’s relevant assets for any reason but in particular because the value of those assets has fallen.
(2) The reference in subsection (1) to arrangements referred to in section 240 does not include a reference to any arrangement or arrangements entered into in accordance with the Summary Approval Procedure.
(3) Where the directors of a company to which this section applies become aware, or ought reasonably to become aware, that there exists the situation referred to in subsection (1), it shall be the duty of the company, its directors and any persons for whom the arrangements referred to in that subsection were made, to do the thing referred to in subsection (4) within the period specified in subsection (5).
(4) The thing mentioned in subsection (3) is to amend the terms of the arrangements concerned so that the total amount outstanding under the arrangements again falls within the percentage limit referred to in subsection (1).
(5) The period mentioned in subsection (3) is 2 months after the date that the directors become aware or ought reasonably to have become aware that the situation concerned referred to in subsection (1) exists.
(6) Where the terms of the arrangements referred to in subsection (4) are not amended within the period specified in subsection (5), the arrangements shall be voidable at the instance of the company; but the same restrictions apply to this right of the company to avoid as are contained in paragraphs (a) and (b) of section 246 on the right to avoid under that section.
Section 242
Availability of Summary Approval Procedure to permit loans, etc.
242. Section 239 does not prohibit a company from—
(a) making a loan or quasi-loan,
(b) entering into a credit transaction, or
(c) entering into a guarantee or providing any security,
of the kind described in subsection (1) of that section if the Summary Approval Procedure is followed in respect of the doing of the thing referred to in paragraph (a), (b) or (c), as the case may be.
Section 243
Intra-group transactions
243. (1) Section 239 does not prohibit a company from—
(a) making a loan or quasi-loan to any body corporate which is its holding company, subsidiary or a subsidiary of its holding company, or
(b) entering into a guarantee or providing any security in connection with a loan or quasi-loan made by any person to any body corporate which is its holding company, subsidiary or a subsidiary of its holding company.
(2) Section 239 does not prohibit a company from—
(a) entering into a credit transaction as creditor for any body corporate which is its holding company, subsidiary or a subsidiary of its holding company, or
(b) entering into a guarantee or providing any security in connection with any credit transaction made by any other person for any body corporate which is its holding company, subsidiary or a subsidiary of its holding company.
Section 244
Directors’ expenses
244. (1) Section 239 does not prohibit a company from doing anything—
(a) to provide any of its directors with funds to meet vouched expenditure properly incurred or to be incurred by him or her—
(i) for the purposes of the company, or
(ii) for the purpose of enabling him or her properly to perform his or her duties as an officer of the company,
or
(b) to enable any of its directors to avoid incurring such expenditure.
(2) Where a company enters into any transaction that is permitted by subsection (1), any liability falling on any person arising from any such transaction shall be discharged by him or her within 6 months after the date on which it was incurred.
(3) A person who contravenes subsection (2) shall be guilty of a category 4 offence.
Section 245
Business transactions
245. (1) Section 239 does not prohibit a company from—
(a) making a loan or quasi-loan,
(b) entering into a credit transaction, or
(c) entering into a guarantee or providing any security,
of the kind described in that section if the following 2 conditions are satisfied.
(2) Those conditions are—
(a) the company enters into the transaction concerned in the ordinary course of its business, and
(b) the value of the transaction is not greater, and the terms on which it is entered into are no more favourable, in respect of the person for whom the transaction is made, than that or those which—
(i) the company ordinarily offers, or
(ii) it is not unreasonable to expect the company to have offered,
to or in respect of a person of the same financial standing as that person but unconnected with the company.
Section 246
Transaction or arrangement in breach of section 239 voidable at instance of company
246. If a company enters into a transaction or arrangement in contravention of section 239 the transaction or arrangement shall be voidable at the instance of the company unless—
(a) restitution of any money or any other asset which is the subject matter of the arrangement or transaction is no longer possible, or the company has been indemnified in pursuance of section 232 for the loss or damage suffered by it, or
(b) any rights acquired bona fide for value and without actual notice of the contravention by any person other than the person for whom the transaction or arrangement was made would be affected by its avoidance.
Section 247
Personal liability for company debts in certain cases
247. (1) If—
(a) a company is being wound up and is unable to pay its debts, and
(b) the court considers that any arrangement of a kind described in section 240(2)(a) has contributed materially to the company’s inability to pay its debts or has substantially impeded the orderly winding up of it,
the court, on the application of the liquidator or any creditor or contributory of the company, may, if it thinks it proper to do so, make the following declaration.
(2) That declaration is a declaration that any person for whose benefit the arrangement was made shall be personally liable, without any limitation of liability, for all or such part as may be specified by the court, of the debts and other liabilities of the company.
(3) In deciding whether to make a declaration under this section, the court shall have particular regard to whether and to what extent, any outstanding liabilities arising under any arrangement referred to in subsection (1) were discharged before the commencement of the winding up.
(4) In deciding the extent of any personal liability under this section, the court shall have particular regard to the extent to which the arrangement in question contributed materially to the company’s inability to pay its debts or substantially impeded the orderly winding up of the company.
Section 248
Offence for contravention of section 239
248. If a company enters into a transaction or arrangement that contravenes section 239, any officer of it who is in default shall be guilty of a category 2 offence.
Section 249
Contracts of employment of directors — control by members over guaranteed periods of employment
249. (1) In this section “relevant term” means a term by which a director’s employment with the company of which he or she is a director or, where he or she is the director of a holding company, his or her employment by any company comprised in the group, is to continue or may be continued, otherwise than at the instance of the company, for a period exceeding 5 years during which the employment—
(a) cannot be terminated by the company by the giving of notice, or
(b) can be so terminated only in specified circumstances.
(2) References in subsection (1) to employment being continued (or its potential to be continued) are references to its being continued (or its potential to be continued) whether under the original agreement concerned or under a new agreement entered into in pursuance of the original agreement concerned.
(3) A company shall not incorporate in any agreement a relevant term unless the term is first approved by a resolution of the company in general meeting and, in the case of a director of a holding company, by a resolution of that company in general meeting.
(4) A resolution of a company approving a relevant term shall not be passed at a general meeting of the company unless a written memorandum, setting out the proposed agreement incorporating the term, is available for inspection by members of the company both—
(a) at the registered office of the company for not less than the period of 15 days ending before the date of the meeting, and
(b) at the meeting itself.
(5) If it is proposed to use the means under section 193 or 194, in lieu of passing a resolution at a general meeting of the company, to approve a relevant term those means shall not be used unless a written memorandum setting out the proposed agreement incorporating the relevant term has been circulated to the members of the company (being those entitled to attend and vote at a general meeting of the company) with the proposal for the written resolution.
(6) A term incorporated in an agreement in contravention of this section shall, to the extent that it contravenes this section, be void and the agreement shall be deemed to contain a term entitling the company to terminate it at any time by the giving of reasonable notice.
(7) No approval is required to be given under this section by any body corporate unless it is a company formed and registered under this Act, an existing company or a wholly owned subsidiary of a body corporate.
(8) For the purposes of this section—
“employment” includes employment under a contract for services;
“group”, in relation to a director of a holding company, means the group which consists of that company and its subsidiaries.
Section 250
Anti-avoidance provision — section 249
250. (1) In any case where—
(a) a person is or is to be employed with a company under an agreement which cannot be terminated by the company by the giving of notice or can be so terminated only in specified circumstances, and
(b) more than 6 months before the expiration of the period for which he or she is or is to be so employed, the company enters into a further agreement (otherwise than in pursuance of a right conferred by or by virtue of the original agreement on the other party to it) under which he or she is to be employed with the company, or where he or she is a director of a holding company, within the group,
the definition of “relevant term” in section 249 shall apply as if to the period for which the person is to be employed under that further agreement there were added a further period equal to the unexpired period of the original agreement.
(2) Where subsection (1) has effect in relation to the definition of “relevant term” in section 249, subsection (6) of that section has effect as if there were substituted “the agreement and the original agreement referred to in section 250(1) shall each be deemed to contain a term entitling the company to terminate it at any time by the giving of reasonable notice” for “the agreement shall be deemed to contain a term entitling the company to terminate it at any time by the giving of reasonable notice”.
(3) For the purposes of this section “employment” and “group” have the same meaning as they have for the purposes of section 249.
Section 251
Approval of company necessary for payment by it to director or directors’ dependants for loss of office
251. (1) It shall not be lawful for a company to make to any director of the company any payment by way of compensation for loss of office or as consideration for or in connection with his or her retirement from office, unless the following conditions are first satisfied.
(2) Those conditions are—
(a) particulars relating to the proposed payment (including the amount of it) are disclosed to the members of the company, and
(b) the proposal is approved by resolution of the company in general meeting.
(3) Without prejudice to the exceptions provided for by section 254(5), a payment made bona fide in discharge of an existing legal obligation does not fall within this section.
Section 252
Approval of company necessary for payment to director of compensation in connection with transfer of property
252. (1) It shall not be lawful in connection with the transfer of the whole or any part of the undertaking or property of a company for any payment to be made to any director of the company by way of compensation for loss of office or as consideration for or in connection with his or her retirement from office, unless the following conditions are first satisfied.
(2) Those conditions are—
(a) particulars relating to the proposed payment (including the amount of it) are disclosed to the members of the company, and
(b) the proposal is approved by resolution of the company in general meeting.
(3) Where a payment which is not lawful under subsection (1) is made to a director of a company the amount received shall be deemed to have been received by him or her in trust for the company.
(4) Without prejudice to the exceptions provided for by section 254(5), a payment made bona fide in discharge of an existing legal obligation does not fall within this section.
Section 253
Duty of director to disclose to company payments to be made to him or her in connection with transfer of shares in company
253. (1) The following duty arises on the part of a director where, in connection with the transfer to any persons of all or any of the shares in a company being a transfer resulting from:
(a) an offer made to the general body of shareholders, or
(b) an offer made by or on behalf of some other body corporate with a view to the company becoming its subsidiary or a subsidiary of its holding company, or
(c) an offer made by or on behalf of an individual with a view to his or her obtaining the right to exercise or control the exercise of not less than one-third of the voting power at any general meeting of the company, or
(d) any other offer which is conditional on acceptance to a given extent,
a payment is to be made to that director of the company by way of compensation for loss of office or as a consideration for or in connection with his or her retirement from office.
(2) That duty on the part of that director is to take all reasonable steps to secure that particulars of the proposed payment (including the amount of it) are included in or sent with any notice of the offer made for their shares which is given to any shareholders.
(3) Without prejudice to the exceptions provided for by section 254(5), a payment to be made, or that is made, bona fide in discharge of an existing legal obligation does not fall within this section.
(4) If—
(a) any such director fails to take reasonable steps as mentioned in subsection (2), or
(b) any person who has been properly required by any such director to include the particulars specified in that subsection in, or send them with, any such notice so mentioned fails to do so,
he or she shall be guilty of a category 3 offence.
(5) Unless—
(a) the requirements of subsections (1) and (2) are complied with in relation to any such payment as is mentioned in subsection (1), and
(b) the making of the proposed payment is, before the transfer of any shares in pursuance of the offer, approved by a meeting summoned for the purpose of the holders of the shares to which the offer relates and of other holders of shares of the same class as any of those shares,
any sum received by the director on account of the payment shall be deemed to have been received by him or her in trust for any persons who have sold their shares as a result of the offer made and the expenses incurred by him or her in distributing that sum amongst those persons shall be borne by him or her and not retained out of that sum.
(6) Where the shareholders referred to in paragraph (b) of subsection (5) are not all the members of the company and no provision is made by the constitution for summoning or regulating such a meeting as is mentioned in that paragraph, the provisions of—
(a) this Part and the rest of Parts 1 to 14, and
(b) the company’s constitution,
relating to general meetings of the company shall, for that purpose, apply to the meeting either without modification or with such modifications as the F107[Authority], on the application of any person concerned, may direct for the purpose of adapting them to the circumstances of the meeting.
(7) If at a meeting summoned for the purpose of approving any payment as required by paragraph (b) of subsection (5), a quorum is not present and after the meeting has been adjourned to a later date a quorum is again not present, the payment shall be deemed for the purposes of that subsection to have been approved.
Annotations
Amendments:
F107
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. no. 12, S.I. No. 335 of 2022.
Section 254
“Existing legal obligation”— definition and other provisions in relation to sections 251 to 253
254. (1) “Existing legal obligation” for the purposes of—
(a) section 251(3), means an obligation of the company concerned, or any body corporate associated with it, that was not entered into in connection with, or in consequence of, the event giving rise to the payment for loss of office in question,
(b) sections 252(4) and 253(3), means an obligation of the person making, or proposing to make, the payment that was not entered into for the purposes of, in connection with or in consequence of, the transfer in question.
(2) In the case of a payment to which both sections 251 and 252 apply, or to which both sections 251 and 253 apply, paragraph (a) of subsection (1) and not paragraph (b) of it shall have effect.
(3) Where in proceedings for the recovery of any payment which it is alleged is recoverable as having, by virtue of—
(a) subsections (1) and (3) of section 252, or
(b) subsections (1), (2) and (5) of section 253,
been received by any person in trust, it is shown that—
(i) the payment was made in pursuance of any arrangement entered into as part of the agreement for the transfer in question or within one year before or 2 years after the date of that agreement or the offer leading to it, and
(ii) the company or any person to whom the transfer was made was privy to that arrangement,
the payment shall be deemed, except in so far as the contrary is shown, to be one to which the subsections concerned apply.
(4) If, in connection with any such transfer as is mentioned in section 252 or 253—
(a) the price to be paid to a director of the company for any shares in the company held by him or her is in excess of the price which could at the time have been obtained by other holders of the like shares, or
(b) any valuable consideration is given to any such director,
the excess or the money value of the consideration, as the case may be, shall, for the purposes of that section, be deemed to have been a payment made to him or her by way of compensation for loss of office or as consideration for or in connection with his or her retirement from office.
(5) References in sections 251 to 253 to payments to any director of a company by way of compensation for loss of office or as consideration for or in connection with his or her retirement from office include references to payments to him or her by way of compensation for—
(a) loss of office as director of the company,
(b) the loss, while director of the company, or on or in connection with his or her ceasing to be a director of the company, of any other office in connection with the management of the company’s affairs or of any office as director or otherwise in connection with the management of the affairs of any subsidiary,
but do not include references to any bona fide payment by way of—
(i) damages for breach of contract, or
(ii) pension in respect of past services,
and, for the purposes of this subsection, “pension” includes any superannuation allowance, superannuation gratuity or similar payment.
(6) Nothing in section 251 or 252 shall be taken to prejudice—
(a) the operation of any rule of law requiring disclosure to be made with respect to any such payments as are mentioned in that section or with respect to any other like payments made or to be made to the directors of a company, or
(b) the operation of any rule of law or enactment in relation to the accountability (if any) of any director for any such payment received by him or her.
(7) References in sections 251 to 253 and this section to a director include references to a past director.
(8) For the purposes of subsection (1)(a) a body corporate is associated with a company if one is the subsidiary of the other or both are subsidiaries of the same body corporate.
Section 255
Contracts with sole members
255. (1) Subject to subsection (2), where a single-member company enters into a contract with the sole member of the company and the sole member also represents the company in the transaction, whether as a director or otherwise, the single-member company shall, unless the contract is in writing, ensure that the terms of the contract are forthwith set out in a written memorandum or are recorded in the minutes of the first meeting of the directors of the company following the making of the contract.
(2) Subsection (1) shall not apply to contracts entered into in the ordinary course of the company’s business.
(3) If a company fails to comply with subsection (1), the company and any officer of it who is in default shall be guilty of a category 3 offence.
(4) Subject to subsection (5), nothing in this section shall be taken to prejudice the operation of any other enactment (including a provision of this Act) or rule of law applying to contracts between a company and a director of that company.
(5) Failure to comply with subsection (1) with respect to a contract shall not affect the validity of that contract.
CHAPTER 5
Disclosure of interests in shares and debentures
Annotations
Modifications (not altering text):
C39
Application of chapter (ss. 256-269) restricted (5.12.2018) by Home Building Finance Ireland Act 2018 (28/2018), s. 26(1)(b), S.I. No. 518 of 2018.
Disapplication of certain provisions of Companies Act to HBFI
26. (1) The following provisions of the Companies Act shall not apply to HBFI or a HBFI group entity: ...
(b) Chapter 5 of Part 5.
...
Section 256
Interpretation generally (Chapter 5)
256. (1) In this Chapter—
(a) “body corporate of the same group” means, in relation to a company, a body corporate which belongs to the same group of companies as that company belongs to;
(b) “child” does not include a person who has attained the age of majority; and
(c) a reference to a child of a director or secretary shall be deemed to include a reference to a child of the director’s civil partner or (as the case may be) the secretary’s civil partner who is ordinarily resident with (as the case may be)—
(i) the director and the civil partner, or
(ii) the secretary and the civil partner.
(2) For the avoidance of doubt, the use of the words “aggregate interest” in any provision of this Chapter, with reference to the interest of a director or secretary and the spouse (or civil partner) and children of the director or secretary in shares or debentures, does not operate to limit the provision’s effect (and, accordingly, does not prevent the director or secretary having the benefit of the provision) in either the situation where—
(a) the director or secretary alone has an interest in shares or debentures reckonable for the purposes of the provision, or
(b) one or more, but not all, of any foregoing class of persons has or have alone such a reckonable interest.
Section 257
“Disclosable interest” — meaning of that term
257. (1) Subject to section 260, in this Chapter “disclosable interest” means, in relation to shares or debentures, any interest of any kind whatsoever in shares in, or debentures of, a body corporate.
(2) For that purpose there shall be disregarded any restraints or restrictions to which the exercise of any right attached to the interest is or may be subject.
(3) It is also immaterial—
(a) whether or not the interest is held alone, jointly or in common with any other person, or
(b) whether the shares or debentures are identifiable or not.
Section 258
Circumstances in which person is to be regarded as having disclosable interest in shares or debentures
258. (1) Without prejudice to the other circumstances in which a person may have such an interest, a person shall, for the purposes of this Chapter, be regarded as having a disclosable interest in shares or debentures if—
(a) the person enters into a contract for the purchase by him or her of them (whether for cash or other consideration),
(b) the person is the registered holder or joint holder of them,
(c) not being the registered holder, the person is entitled to exercise any right conferred by the holding of those shares or debentures or is entitled to control the exercise of any such right,
(d) a body corporate is interested in them and—
(i) that body corporate or its directors are accustomed to act in accordance with the person’s directions or instructions, or
(ii) the person is entitled to exercise or control the exercise of one third or more of the voting power at general meetings of that body corporate,
(e) otherwise than by virtue of having an interest under a trust—
(i) the person has a right to call for delivery of the shares or debentures to himself or herself or to his or her order, or
(ii) the person has a right to acquire an interest in shares or debentures, or is under an obligation to take an interest in shares or debentures,
whether in any case the right or obligation is conditional or absolute,
(f) the person is a beneficiary of a trust and—
(i) the property held on trust for that beneficiary includes any interest in shares or debentures, and
(ii) that person, apart from this paragraph, does not have an interest in the shares or debentures.
(2) For the purpose of subsection (1)(c), a person shall be taken to be entitled to exercise or control the exercise of any right conferred by the holding of shares or debentures if he or she—
(a) has a right (whether subject to conditions or not), the exercise of which would make him or her so entitled, or
(b) is under an obligation (whether so subject or not), the fulfilment of which would make him or her so entitled.
(3) For the purpose of subsection (1)(d)—
(a) “voting power” does not include any power to vote which arises only in specified circumstances,
(b) where a person is entitled to exercise or control the exercise of one third or more of the voting power at general meetings of a body corporate and that body corporate is entitled to exercise or control the exercise of any of the voting power at general meetings of another body corporate (the “relevant voting power”), then, for the purposes of that provision, the relevant voting power shall be taken to be exercisable by that person.
Section 259
Circumstances in which person shall be regarded as having ceased to have disclosable interest
259. A person shall, amongst other circumstances, be taken to have ceased to have a disclosable interest in shares or debentures for the purposes of this Chapter upon—
(a) delivery to another person’s order of the shares or debentures in fulfilment of a contract for the purchase of them by that other person or in satisfaction of a right of his or her to call for delivery of them, or
(b) failure by another person to deliver the shares or debentures in accordance with the terms of a contract or pursuant to a right to call for delivery of them, or
(c) the lapse of that person’s right to call for delivery of the shares or debentures.
Section 260
Interests that are not disclosable interests for the purposes of this Chapter
260. The following interests shall not constitute disclosable interests for the purposes of this Chapter—
(a) where property is held on trust and an interest in shares or debentures is comprised in that property—
(i) an interest in reversion or remainder,
(ii) an interest of a bare trustee, or
(iii) any discretionary interest,
(b) an interest of a person subsisting by virtue of—
(i) his or her holding—
(I) units in an authorised unit trust scheme within the meaning of the Unit Trusts Act 1990,
(II) units in an undertaking for collective investment in transferable securities within the meaning of the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations 2011 (S.I. No. 352 of 2011), or
(III) shares in an investment company within the meaning of Part 24,
or
(ii) a scheme made under section 46 of the Charities Act 1961,
(c) an interest for the life of himself or herself or of another person under a settlement in the case of which the property comprised in the settlement consists of or includes shares or debentures, and—
(i) the settlement is irrevocable, and
(ii) the settlor (within the meaning of section 10 of the Taxes Consolidation Act 1997) has no interest in any income arising under, or property comprised in, the settlement,
(d) an interest in shares or debentures held by a member of an authorised market operator carrying on business as a stock broker which is held by way of security only for the purposes of a transaction entered into by the person or other body concerned in the ordinary course of business of such person or other body,
(e) any power or discretion vested in a person by virtue only of such person having been duly appointed as or acting as—
(i) an attorney of a person with an interest in shares or debentures,
(ii) a proxy of a member of, or holder of debentures in, a company or a representative of a body corporate which is a member of the holder of debentures of a company,
(f) any interest in shares in, or debentures of, a body corporate where the aggregate interest of the director or secretary and spouse (or civil partner) and children of such director or secretary is in—
(i) shares representing 1 per cent or less, in nominal value, of the body corporate’s issued share capital of a class carrying rights to vote in all circumstances at general meetings of the body corporate (provided that the temporary suspension of voting rights in respect of shares comprised in issued share capital of a body corporate of any such class shall be disregarded), or
(ii) shares or debentures not carrying the right to vote at general meetings of the body corporate, save a right to vote which arises only in specified circumstances,
(g) as regards circumstances in which an offer is made in relation to shares in a body corporate, being an offer—
(i) to which the Irish Takeover Panel Act 1997 or the European Communities (Takeover Bids (Directive 2004/25/EC)) Regulations 2006 (S.I. No. 255 of 2006) applies or apply, and
(ii) which is conditional on acceptance to a given extent,
an interest in those shares that would have arisen but for the offer not being accepted to the required extent,
(h) such interests, or interests of such a class, as may be prescribed for the purposes of this subsection.
Section 261
Duty to notify disclosable interests — first of the 5 cases in which duty arises — interests held at commencement of Chapter
261. (1) Subject to subsection (3) and section 264, a person who, at the commencement of this Chapter—
(a) is a director or secretary of a company, and
(b) is aware of—
(i) the person’s having, or
(ii) the person’s spouse or civil partner or a child of the person’s having,
a disclosable interest in shares in, or debentures of, that company (the “relevant company”) or a body corporate of the same group,
has the following duty.
(2) That duty is to notify the relevant company in writing of the particulars specified in section 265 of the disclosable interest and the fact of its being so held.
(3) That duty does not arise if—
(a) the nature of the disclosable interest concerned is such as to constitute an interest of the kind specified in section 54 of the Act of 1990, and
(b) the relevant company has—
(i) before the commencement of this section, been notified, in accordance with Part IV of the Act of 1990, of the particulars required by that Part in relation to that interest, or
(ii) received, not later than 5 days after the commencement of this section, such particulars in relation to that interest by way of such a notification (being a notification sent not later than that commencement).
Section 262
Second and third cases in which duty to notify arises — interests acquired or ceasing to be held
262. (1) Subject to section 264, a person who—
(a) is a director or secretary of a company, and
(b) becomes aware of—
(i) the person’s having acquired or having ceased to have, or
(ii) the person’s spouse or civil partner, or a child of the person’s, having acquired or having ceased to have,
a disclosable interest in shares in, or debentures of, that company (the “relevant company”) or any body corporate of the same group,
has the following duty.
(2) That duty is to notify the relevant company in writing of the particulars specified in section 265 of the disclosable interest and the fact of its being so acquired or, as the case may be, of its so ceasing to be held.
(3) Subject to section 264, a person who—
(a) becomes aware of—
(i) the person’s having, or
(ii) the person’s spouse or civil partner or a child of the person’s having,
a disclosable interest in shares in, or debentures of, a company (the “relevant company”) or a body corporate of the same group, and
(b) becomes a director or secretary of the relevant company (not being the secretary of the relevant company at the time of so becoming a director or not being a director at the time of so becoming the secretary of the relevant company),
has the following duty.
(4) That duty is to notify the relevant company in writing of the particulars specified in section 265 of the disclosable interest and the fact of its being so held.
Section 263
Fourth and fifth cases in which duty to notify arises — grant or assignment of subscription rights, etc.
263. (1) Subject to section 264, a director or secretary of a company (the “relevant company”) who—
(a) (i) is granted by another body corporate of the same group a right to subscribe for shares in, or debentures of, that other body corporate, or
(ii) exercises such a right so granted,
or
(b) becomes aware of a spouse or civil partner of the director’s or secretary’s or a child of the director’s or secretary’s—
(i) having been granted by such a body corporate such a right of subscription, or
(ii) having exercised such a right so granted,
has, subject to subsection (3) and (5), the following duty.
(2) That duty is to notify the relevant company in writing of—
(a) the grant of the right of subscription, or the exercise of it, referred to in paragraph (a) or (b) of the preceding subsection (or, as the case may be, both the things referred to in those paragraphs),
(b) the number or amount, and class, of shares or debentures involved and the consideration payable, and
(c) if section 265(6) applies, the address there mentioned.
(3) If a director or secretary, at the time of the thing referred to in subsection (1)(a) being done, is not aware of the fact of the thing being done (the “relevant fact”) by reason of—
(a) in the case of the thing referred to in subsection (1)(a)(i), the grantor of the right not informing the director or secretary immediately of the grant,
(b) in the case of the thing referred to in subsection (1)(a)(ii), the thing being done on behalf of the director or secretary by another person pursuant to an authority conferred on the person by the director or secretary, or
(c) in either such case, other exceptional circumstances,
then the duty under subsection (2), with respect to that thing, only arises on the director or secretary becoming aware of the relevant fact.
(4) However, in any proceedings (civil or criminal) it shall be presumed, unless the contrary is shown, that none of the circumstances referred to in subsection (3) applies.
(5) If the aggregate interest of the director or secretary and spouse (or civil partner) and children of such director or secretary in shares in the body corporate concerned (both before and after the occurrence of the event or events referred to in subsection (2)(a)) is such as to fall within section 260(f)(i), then the duty of notification under subsection (2) does not arise.
(6) Subject to section 264, a director or secretary of a company (the “relevant company”) who—
(a) enters into a contract to sell shares in, or debentures of, the relevant company or any body corporate of the same group,
(b) assigns a right granted to him or her by the relevant company or a body corporate of the same group to subscribe for shares in, or debentures of, the relevant company or such body corporate, or
(c) becomes aware of a spouse or civil partner of the director’s or secretary’s or a child of the director’s or secretary’s—
(i) having entered into a contract to sell such shares or debentures, or
(ii) having assigned a right that has been granted to the spouse, civil partner or child by the relevant company or such body corporate to subscribe for shares in, or debentures of, the relevant company or such body corporate,
has, subject to subsection (8) and (10), the following duty.
(7) That duty is to notify the relevant company in writing of—
(a) the entering into of the contract or the assigning of the right referred to in paragraph (a), (b) or (c) of the preceding subsection (or, as the case may be, the doing of 2 or more of the things referred to in those paragraphs),
(b) the number or amount, and class, of shares or debentures involved and the consideration payable, and
(c) if section 265(6) applies, the address there mentioned.
(8) If a director or secretary, at the time of the thing referred to in subsection (6)(a) or (b) being done, is not aware of the fact of the thing being done (the “relevant fact”) by reason of—
(a) the thing being done on behalf of the director or secretary by another person pursuant to an authority conferred on the person by the director or secretary, or
(b) other exceptional circumstances,
then the duty under subsection (7), with respect to that thing, only arises on the director or secretary becoming aware of the relevant fact.
(9) However, in any proceedings (civil or criminal) it shall be presumed, unless the contrary is shown, that none of the circumstances referred to in subsection (8) applies.
(10) If the aggregate interest of the director or secretary and spouse (or civil partner) and children of such director or secretary in shares in the body corporate concerned (before the occurrence of the event or events referred to in subsection (7)(a)) is such as to fall within section 260(f)(i), then the duty of notification under subsection (7) does not arise.
Section 264
Application of sections 261 to 263 and exceptions to them
264. (1) With respect to the application of sections 261 to 263 (by virtue of sections 221 and 222) to shadow directors and de facto directors, the making of a notification by a person under section 261, 262 or 263 shall not, in itself, be proof that the person making the notification is a shadow director or de facto director.
(2) Nothing in sections 261 to 263 shall operate so as to impose an obligation with respect to shares in a body corporate which is the wholly owned subsidiary of another body corporate.
(3) Nothing in sections 261 to 263 shall operate to impose an obligation on a director or secretary of a company who is granted an option to subscribe for shares in, or debentures of, that company to make any notification to that company in respect of such grant.
Section 265
Mode of notification by directors and secretaries under this Chapter
265. (1) In relation to the acquisition or disposal by a director or secretary of a company of shares or debentures the means specified in subsection (2) shall, if the director or secretary opts to use them, constitute a sufficient notification in writing to the company, for the purposes of this Chapter, of the fact of their acquisition or disposal and the particulars of the disclosable interest.
(2) Those means are the delivery, within 30 days after the date of the instrument, to the company of an instrument of transfer in respect of the shares or debentures, being an instrument that identifies—
(a) the director or secretary by name,
(b) the shares or debentures in question,
(c) the purchase or sale price therefor, and
(d) if subsection (6) applies, the address there mentioned.
(3) In any case not falling within subsection (1) or where the director or secretary opts not to use the foregoing means in a case falling within subsection (1), the following means shall be used to notify in writing, for the purpose of section 261 or 262, the fact of a disclosable interest being held or of its being acquired or being ceased to be held (as the case may be) and the particulars thereof.
(4) Those means are the delivery to the company concerned (within 8 days after the date of the event giving rise to the duty to make the notification) of a statement in writing by or on behalf of the director or secretary containing the following particulars:
(a) a statement that the director or secretary, or his or her spouse or civil partner or a child of the director or secretary (as the case may be) has, has acquired or has ceased to have (as the case may be) a disclosable interest in shares in, or debentures of, the company or a body corporate of the same group,
(b) the number of shares or debentures and their class, and a statement of the names of the registered holders of the shares or debentures,
(c) in the case of an acquisition or disposal of shares or debentures, the consideration payable therefor, and
(d) if subsection (6) applies, the address there mentioned.
(5) The notification referred to in section 263(2) or (7) shall be made to the company within 5 days after the date of the event giving rise to the duty to make the notification; in a case where the circumstances referred to in subsection (3) or (8) of section 263 apply, the date of the event giving rise to the duty to make the notification is the date on which the director or secretary becomes aware of the relevant fact referred to in that subsection (3) or (8).
(6) A shadow director or de facto director shall, in any notification made by him or her under this Chapter, specify his or her address and this applies whether the notification is in respect of himself or herself or a spouse or civil partner of such director or a child of such director.
Section 266
Enforcement of notification obligation
266. (1) Where a person authorises any other person (the “agent”) to acquire or dispose of, on his or her behalf, interests in shares in, or debentures of, a company, the person shall secure that the agent notifies him or her immediately of acquisitions or disposals of interests in such shares or debentures effected by the agent which will or may give rise to any duty on the person’s part to make a notification under this Chapter with respect to his or her interest in those shares or debentures.
(2) Subject to the subsequent provisions of this section, where a person fails to fulfil, within the period specified by this Chapter in that behalf, a duty to which he or she is, by virtue of section 261, 262 or 263, subject, no right or interest of any kind whatsoever in respect of the shares or debentures concerned shall be enforceable by him or her, whether directly or indirectly, by action or legal proceeding.
(3) Where any right or interest is restricted under subsection (2)—
(a) any person in default as is mentioned in that subsection or any other person affected by such restriction may apply to the court for relief against a disability imposed by or arising out of that subsection,
(b) the court, on being satisfied that the default was accidental or due to inadvertence or some other sufficient cause or that on other grounds it is just and equitable to grant relief, may grant such relief either generally or as respects any particular right or interest, on such terms and conditions as it sees fit,
(c) where an applicant for relief under this subsection is a person referred to in subsection (2), the court may not grant such relief if it appears that the default has arisen as a result of any deliberate act or omission on the part of the applicant.
(4) Where a director or secretary is in default as mentioned in subsection (2), then, notwithstanding that default, that subsection shall not apply in respect of the shares or debentures concerned if the following condition is satisfied.
(5) That condition is that the identity of the director or secretary and his or her holding, acquisition and disposal (as the case may be) of the shares or debentures in question and the consideration paid or payable therefor has, from not later than 30 days after the date the duty arose, been apparent on the face of all or any of the following registers or documents of the company concerned (including some or all of them when consulted together), namely—
(a) the register of members,
(b) the register of directors and secretaries,
(c) the register of interests under section 267,
(d) documents made available by that company with those registers.
(6) If a company in general meeting passes a special resolution providing that the following protection shall apply in favour of a third party having the following dealing in relation to shares in, or debentures of, the company specified in the resolution then, upon production of a copy of such resolution by the secretary of the company to the third party, a third party having any dealing with the company or the registered holder of the shares or debentures in question shall be entitled to presume, without further enquiry, that—
(a) the provisions of this Chapter have been complied with in relation to the shares or debentures, and
(b) the registered holder is entitled to deal with the shares or debentures registered in his or her name.
(7) Subsection (2) shall not apply to a duty relating to a person ceasing to be interested in shares in, or debentures of, a company.
(8) A person who fails without reasonable excuse to comply with subsection (1) shall be guilty of a category 3 offence.
(9) A person who fails to fulfil, within the period specified in this Chapter in that behalf, a duty to which he or she is, by virtue of section 261, 262 or 263, subject shall be guilty of a category 3 offence.
(10) Where before the commencement of this section, default has been made in complying with section 53 of the Act of 1990 in relation to shares in, or debentures of, a company, the board of directors of the company, at any time before the expiry of 18 months after that commencement, may, if authorised by an ordinary resolution of the company in that behalf, resolve that any restrictions that continue to operate (by virtue of section 58(3) of the Act of 1990) in relation to the shares or debentures shall, on and from the time of their so resolving, cease to operate if—
(a) the person upon whom the duty to make the notification concerned under that section 53 fell presents evidence (by way of affidavit or such other satisfactory means as the board may specify) to the board that the default concerned was inadvertent, and
(b) the board is satisfied from that evidence that the default was inadvertent,
and, where the board so resolves, such restrictions shall cease to operate accordingly.
Section 267
Register of interests: contents and entries
267. (1) A company shall keep a register of interests (the “register of interests”) for the purposes of this Chapter.
(2) Sections 215 to 217 (rights of inspection, requests for copies, etc.) apply to the register of interests.
(3) Whenever the company receives information from a director or secretary of the company in consequence of the fulfilment of a duty to which he or she is, by virtue of section 261, 262 or 263, subject, the company shall within 3 days after the date of such receipt enter in the register of interests that information and the date of the entry.
(4) A company shall, whenever it grants to a director or secretary of the company a right to subscribe for shares in, or debentures of, the company, enter in the register of interests against his or her name—
(a) the date on which the right is granted,
(b) the period during which or time at which it is exercisable,
(c) the consideration for the grant (or, if it be the case that there is no consideration, that fact), and
(d) the description of shares or debentures involved and the number or amount thereof, and the price to be paid therefor.
(5) Whenever such a right as is mentioned in subsection (4) is exercised by a director or secretary, the company shall enter in the register of interests against his or her name—
(a) that fact (identifying the right),
(b) the number or amount of shares or debentures in respect of which it is exercised, and
(c) if it be the case that they were registered in his or her name, that fact, and if not, the name or names of the person or persons in whose name or names they were registered, together (if they were registered in the names of 2 persons or more) with the number or amount thereof registered in the name of each of them.
(6) The register of interests shall be so made up that the entries in it against the several names inscribed in it appear in chronological order.
(7) The nature and extent of an interest recorded in the register of interests of a director or secretary in any shares or debentures shall, if he or she so requires, be recorded in that register.
(8) A company shall not, by virtue of anything done for the purposes of this section, be affected with notice of, or put upon inquiry as to, the rights of any person in relation to any shares or debentures.
(9) If default is made by a company in complying with subsection (1) or any of subsections (3) to (7), the company and any officer of it who is in default shall be guilty of a category 3 offence.
Section 268
Supplemental provisions in relation to section 267
268. (1) Unless the register under section 267 is in such a form as to constitute in itself an index, the company shall keep an index of the names entered in it which shall—
(a) in respect of each name, contain a sufficient indication to enable the information inscribed against it to be readily found, and
(b) be kept at the same place as the register,
and the company shall, within 14 days after the date on which a name is entered in the register, make any necessary alteration in the index.
(2) In addition to the requirements of section 216, the register shall be, and remain, open and accessible to any person attending an annual general meeting of the company concerned at least one quarter hour before the appointed time for the commencement of the meeting and during the continuance of the meeting.
(3) If default is made by a company in complying with subsection (1) or (2), the company and any officer of it who is in default shall be guilty of a category 3 offence.
Section 269
Register of interests: removal of entries from it
269. (1) A company may remove an entry against a person’s name from the register required to be kept by it under section 267 (the “register”) if more than 6 years have elapsed after the date of the entry being made, and either—
(a) that entry recorded the fact that the person in question has ceased to have an interest notifiable under this Chapter in shares in, or debentures of, the company, or
(b) it has been superseded by a later entry made under section 267 against the same person’s name,
and, in a case falling within paragraph (a), the company may also remove that person’s name from the register.
(2) Where a company removes a name from the register pursuant to subsection (1), the company shall, within 14 days after the date of that removal, make any necessary alterations in any associated index.
(3) Entries in the register shall not be deleted except in accordance with subsections (1) and (2).
(4) If an entry is deleted from the register in contravention of subsection (1), the company concerned shall restore that entry to the register as soon as is reasonable and practicable.
(5) If default is made by a company in complying with subsection (2), (3) or (4), the company and any officer of it who is in default shall be guilty of a category 3 offence.
CHAPTER 6
Responsibilities of officers of company — provisions explaining what being “in default” means and presumption regarding that matter
Section 270
Meaning of “in default” in context of sanctions specified in respect of officers (whether directors or secretaries or not)
270. (1) For the purposes of any provision of this Act which provides that an officer of a company who is in default shall be guilty of an offence, an officer who is in default is any officer who authorises or who, in breach of his or her duty as such officer, permits the default mentioned in the provision.
(2) In this section “default” includes a refusal to do a thing or a contravention of a provision.
Annotations
Modifications (not altering text):
C40
Application of section extended (29.01.2020) by Migration of Participating Securities Act 2019 (50/2019), s. 7(2), S.I. No. 26 of 2020.
Offence in relation to failure to comply with certain provisions of section 5 or 6
7. (1) If a participating issuer makes default in complying with section 5 (4) or section 6 (1) or (4), the issuer and any officer of it who is in default shall be guilty of an offence and shall be liable on summary conviction to a class A fine or imprisonment for a term not exceeding 6 months or both.
(2) Section 270 of the Act of 2014 applies to the construction of the reference in subsection (1) to an officer of the issuer who is in default as it applies to the construction of any provision of the Act of 2014 which provides that an officer of a company who is in default shall be guilty of an offence.
Section 271
Presumption that default permitted and certain defence
271. (1) In this section—
(a) “basic facts concerning the default” means such of the facts, relating to the one or more acts or omissions that constituted the default, as can reasonably be regarded as indicating, at the relevant time, the general character of those acts or omissions,
(b) “permitted”, in relation to the default, means permitted in breach of the defendant’s duty as an officer of the company concerned,
(c) “relevant proceedings” means proceedings for an offence under a provision of this Act, being a provision which provides that an officer of a company who is in default shall be guilty of an offence,
(d) a reference to a defendant in those proceedings is a reference to—
(i) the defendant, or
(ii) if there is more than one defendant, each of the one or more persons, other than the company, alleged to be in default,
being, in every case, a person who was an officer of the company at the relevant time.
(2) In relevant proceedings, where it is proved that the defendant was aware of the basic facts concerning the default concerned, it shall be presumed that the defendant permitted the default unless the defendant shows that he or she took all reasonable steps to prevent it or that, by reason of circumstances beyond the defendant’s control, was unable to do so.
F108[Chapter 7
Early warning tools
Section 271A
Early warning tools
271A. (1) A director may have regard to early warning tools.
(2) For the purposes of this section, an early warning tool means a mechanism to alert the directors of the company to circumstances that could give rise to a likelihood that the company concerned will be unable to pay its debts (within the meaning of section 509(3)) and can identify the restructuring frameworks available to the company and signal to such directors the need to act without delay.]
Annotations
Amendments:
F108
Inserted (27.07.2022) by European Union (Preventive Restructuring) Regulations 2022 (S.I. No. 380 of 2022), reg. 7, subject to restriction on application in reg. 3.
PART 6
FINANCIAL STATEMENTS, ANNUAL RETURN AND AUDIT
Annotations
Modifications (not altering text):
C41
Application of Part (ss. 272-407) modified by Water Services Act 2013 (6/2013), s. 17B, as inserted (1.01.2023) by Water Services Act 2022 (39/2022), s. 15, S.I. No. 678 of 2022, art. 4(b).
[Preparation and audit of statutory financial statements
17B. (1) Part 6 of the Act of 2014 shall apply to Uisce Éireann subject to the modifications specified in subsections (2) to (7).
(2) The first statutory financial statements prepared under this section shall be in respect of the financial year specified in subsections (1)(b) or (2)(b) of section 17A, as the case may be, and subsequent financial statements shall be prepared in respect of each subsequent financial year.
(3) Uisce Éireann shall, not later than 2 months after the end of the financial year to which they relate, submit the statutory financial statements, prepared in accordance with Part 6 of the Act of 2014, to the Comptroller and Auditor General for audit.
(4) The Comptroller and Auditor General shall audit, and prepare a report in the form set out in section 336 of the Act of 2014 on, the statutory financial statements submitted to him or her under subsection (3).
(5) Uisce Éireann shall pay to the Comptroller and Auditor General in respect of the audit under this section such fees as are approved by the Minister, with the consent of the Minister for Public Expenditure and Reform.
(6) In relation to Uisce Éireann—
(a) a reference to "statutory auditor" in the Act of 2014 shall include a reference to the Comptroller and Auditor General, and
(b) a reference to "audit of the statutory financial statements" in the Act of 2014 shall include a reference to the audit of the statutory financial statements by the Comptroller and Auditor General under subsection (4).
(7) Chapters 18, 20 and 21 of Part 6 of the Act of 2014 shall not apply to the Comptroller and Auditor General in the performance of his or her functions in relation to Uisce Éireann, nor to the audit of Uisce Éireann’s statutory financial statements by him or her.
(8) In this section, "statutory financial statements" has the same meaning as it has in Part 6 of the Act of 2014.]
C42
Application of Part (ss. 272-407) modified (15.12.2021) by Land Development Agency Act 2021 (26/2021), s. 46, S.I. No. 712 of 2021.
Accounts of Agency and subsidiary DACs
46. (1) Part 6 of the Companies Act shall apply to the Agency and any subsidiary DAC subject to the modifications specified in subsections (2) to (6).
(2) The Agency and any subsidiary DAC shall keep in such form as may be approved by the Minister with the consent of the Minister for Public Expenditure and Reform all proper and usual accounts of money received and expended by it and of all financial transactions undertaken in the performance of its functions.
(3) Accounts kept in pursuance of this section shall clearly indicate—
(a) the costs and revenues that accrue to the Agency or, as the case may be, the subsidiary DAC in respect of each of the different activities in which it engages, and
(b) details of how the revenues that accrue to the Agency or, as the case may be, the subsidiary DAC from particular activities are assigned or allocated to other activities.
(4) Accounts of the Agency and any subsidiary DAC kept in pursuance of this section shall be signed by the chief executive (who shall be the officer accountable for such accounts for the purposes of the Comptroller and Auditor General Acts 1866 to 1998) and an appointed member of the Board.
(5) Accounts signed in pursuance of this section shall be submitted by the Agency or, as the case may be, the subsidiary DAC to the Comptroller and Auditor General for audit as soon as may be but not later than four months after the end of the financial year of the Agency for audit.
(6) A copy of the accounts of the Agency or of the subsidiary DAC as so audited shall be presented to the Minister as soon as may be and the Minister shall cause a copy of the accounts as so audited to be laid before each House of the Oireachtas.
C43
Application of Part (ss. 272-407) extended subject to necessary modifications (1.01.2019) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 7, subject to exclusions, reg. 9, and references construed, regs. 8, 10, in effect as per reg. 1(2), (3).
Application of Part 6 of Principal Act
7. Subject to these Regulations, Part 6 of the Principal Act shall apply to a qualifying partnership as if it were a company formed and registered under the Principal Act subject to any modifications necessary to take account of the fact that the qualifying partnership is unincorporated.
Interpretation of terms in Part 6 of Principal Act
8. (1) A reference in Part 6 of the Principal Act to the directors or to the secretary of a company shall, in relation to a qualifying partnership, be construed as a reference to the members of the qualifying partnership and -
(a) any duties, obligations or discretion imposed on, or granted to, such directors or secretary under the Principal Act shall be deemed to be imposed on, or granted to, such members, and
(b) any duties, obligations or discretion jointly imposed on or jointly granted to both a director and the secretary of a company together under the Principal Act shall be construed as being imposed on or granted to -
(i) where a qualifying partnership is not a limited partnership, 2 members of the qualifying partnership, and
(ii) where the qualifying partnership is a limited partnership -
(I) if there is only one general partner, that partner, or
(II) if there is more than one general partner, 2 of their number.
(2) A reference in Part 6 of the Principal Act to the officers of a company shall, in relation to a qualifying partnership, be construed as a reference to the members of the qualifying partnership, and any duties, obligations or discretion imposed on, or granted to, such officers under the Principal Act shall be deemed to be imposed on, or granted to, such members.
(3) Save where otherwise provided, a reference in Part 6 of the Principal Act to a directors’ report shall, in relation to a qualifying partnership, be construed as a reference to the partners’ report prepared under Regulation 18.
(4) A reference in Part 6 of the Principal Act to the date of a company’s incorporation shall, in relation to a qualifying partnership, be construed as a reference to the date on which the qualifying partnership was formed.
(5) A reference in Part 6 of the Principal Act to an action that is to be or may be carried out at a general meeting of a company shall, in relation to a qualifying partnership, be construed as a reference to an action that is to be or may be carried out at a meeting of the partners, or as otherwise determined in accordance with the requirements of any agreement governing the operation of the partnership.
(6) A reference in Part 6 and Schedules 3, 3A, 3B, 4 and 4A of the Principal Act to shares or share capital shall, in relation to a qualifying partnership, be construed in accordance with section 275(3) of the Principal Act.
(7) Save where otherwise provided, in relation to a limited partnership, nothing in these Regulations shall be construed as conferring any duty, obligation or discretion on a limited partner in a manner that is inconsistent with the Limited Partnerships Act 1907.
Non-application of Part 6 to qualifying partnerships that are credit institutions or insurance undertakings
9. (1) Part 6 of the Principal Act shall not apply to a qualifying partnership that is -
(a) a credit institution, or
(b) an insurance undertaking to the extent provided for -
(i) by regulations made under section 3 of the European Communities Act 1972to give effect to Community acts, or
(ii) by or under any other enactment, relating to accounts of credit institutions and insurance undertakings.
...
Application of definition of subsidiary undertaking
10. For the purposes of applying the definition of subsidiary undertaking in Part 6 of the Principal Act to a partnership -
(a) references to voting rights attaching to shares in a company shall be construed as references to votes or other rights exercisable by the partners in a partnership giving those partners the potential to exercise control or dominant influence over the activities of the partnership, and
(b) references to a company’s constitution shall be construed as references to any agreement governing the operation of the partnership.
...
C44
Part (ss. 272-407) applied with modifications (5.12.2018) by Home Building Finance Ireland Act 2018 (28/2018), s. 15, S.I. No. 518 of 2018.
Preparation and audit of statutory financial statements of HBFI and HBFI group entities
15. (1) Part 6 of the Companies Act shall apply to HBFI and any HBFI group entity subject to the modifications specified in subsections (2) to (7).
(2) HBFI and any HBFI group entity shall, not later than 2 months after the end of the financial year to which they relate, submit the statutory financial statements, prepared in accordance with Part 6 of the Companies Act, to the Comptroller and Auditor General for audit.
(3) The Comptroller and Auditor General shall—
(a) audit, and
(b) prepare a report in the form set out in section 336 of the Companies Act on, the statutory financial statements submitted to him or her under subsection (2).
(4) HBFI shall, as soon as practicable after receipt of the report of the Comptroller and Auditor General prepared under subsection (3), present to the Minister a copy of—
(a) the statutory financial statements submitted to the Comptroller and Auditor General under subsection (2), and
(b) the report prepared under subsection (3).
(5) The Minister shall cause a copy of the statutory financial statements and report presented to him or her under subsection (4) to be laid before each House of the Oireachtas as soon as practicable following their presentation.
(6) In relation to HBFI and any HBFI group entity—
(a) a reference to “statutory auditor” in the Companies Act shall include a reference to the Comptroller and Auditor General, and
(b) a reference to “audit of the statutory financial statements” in the Companies Act shall include a reference to the audit of the statutory financial statements by the Comptroller and Auditor General under subsection (3).
(7) Chapters 18, 20 and 21 of Part 6 of the Companies Act shall not apply to the Comptroller and Auditor General in the performance of his or her functions in relation to HBFI, or any HBFI group entity, nor to the audit of the statutory financial statements of HBFI, or any HBFI group entity, by him or her.
(8) In this section, “statutory financial statements” has the same meaning as it has in Part 6 of the Companies Act.
C45
Part (ss. 272-407) applied with modifications (13.01.2018) by European Union (Payment Services) Regulations 2018 (S.I. No. 6 of 2018), reg. 28(2), in effect as per reg. 1(2), (3).
Accounting and statutory audit
28. ...
(2) Part 6 of the Companies Act 2014 (No. 38 of 2014) shall apply mutatis mutandis to a payment institution to which that Act does not otherwise apply.
...
C46
Part (ss. 272-407) applied with modifications by European Communities (Electronic Money) Regulations 2011 (S.I. No. 193 of 2011), reg. 19(2), as substituted (13.01.2018) by European Union (Payment Services) Regulations 2018 (S.I. No. 6 of 2018), reg. 142(f), in effect as per reg. 1(2), (3).
[Accounting and statutory audit
19. ...
(2) Part 6 of the Companies Act 2014 (No. 38 of 2014) shall apply mutatis mutandis to an electronic money institution to which that Act does not otherwise apply.
...]
C47
Certain references construed and application of Part (ss. 272-407) extended (24.06.2015) by European Union (Credit Institutions: Financial Statements) Regulations 2015 (S.I. No. 266 of 2015), regs. 3, 4, 5 in effect as per reg. 1(2).
Application of Part 6 of Principal Act to credit institutions
3. (1) The provisions of Part 6 of the Principal Act shall apply to a credit institution except to the extent that they are disapplied or modified by these Regulations.
(2) A reference in the Principal Act to any provision of Part 6 of that Act shall be construed, for the purposes of its application to a credit institution, as a reference to that provision as applied by these Regulations.
(3) A reference in Part 6 of the Principal Act to Schedule 3 to that Act shall be construed, for the purposes of its application to a credit institution, as a reference to Schedule 1 to these Regulations.
(4) A reference in Part 6 of the Principal Act to Schedule 4 to that Act shall be construed, for the purposes of its application to a credit institution, as a reference to Schedule 2 to these Regulations.
Exceptions to disclosure by credit institution under sections 307 to 309 in the case of connected persons and certain officers
4. Sections 310 to 312 of the Principal Act shall apply to a credit institution in the same manner as they apply to a holding company of a credit institution.
Credit institution holding companies
5. (1) Section 293, as it applies by virtue of Regulation 3, of the Principal Act (obligation to prepare group financial statements) shall also apply to a holding company:
(a) which does not itself carry on any material business apart from the acquisition, management and disposal of interests in subsidiaries; and
(b) whose principal subsidiaries are wholly or mainly credit institutions.
...
C48
Certain references construed and application of Part (ss. 272-407) extended (17.06.2015) by European Union (Insurance Undertakings: Financial Statements) Regulations 2015 (S.I. No. 262 of 2015), regs. 3, 4 in effect as per reg. 1(2).
Application of Part 6 of Principal Act to insurance undertakings
3. (1) The provisions of Part 6 of the Principal Act shall apply to an insurance undertaking except to the extent that they are disapplied or modified by these Regulations.
(2) A reference in the Principal Act to any provision of Part 6 of that Act shall be construed, for the purposes of its application to an insurance undertaking, as a reference to that provision as applied by these Regulations.
(3) A reference in Part 6 of the Principal Act to Schedule 3 to that Act shall be construed, for the purposes of its application to an insurance undertaking, as a reference to Schedule 1 to these Regulations.
(4) A reference in Part 6 of the Principal Act to Schedule 4 to that Act shall be construed, for the purposes of its application to an insurance undertaking, as a reference to Schedule 2 to these Regulations.
Application of section 293 (as applied by Regulation 3) of Principal Act to certain undertakings
4. (1) Section 293, as it applies by virtue of Regulation 3, of the Principal Act (obligation to prepare group financial statements) shall also apply to a holding undertaking:
(a) which does not itself carry on any material business apart from the acquisition, management and disposal of interests in subsidiaries; and
(b) whose principal subsidiaries are wholly or mainly insurance undertakings.
...
Editorial Notes:
E74
Previous affecting provision: restriction on choice of auditor prohibited (17.06.2016) by European Union (Statutory Audits) (Directive 2006/43/EC, as amended by Directive 2014/56/EU, and Regulation (EU) No 537/2014) Regulations 2016 (S.I. No. 312 of 2016), reg. 57(1), in effect as per regs. 1(2), 3 and subject to transitional provision in reg. 143; revoked (21.09.2018) by Companies (Statutory Audits) Act 2018 (22/2018), s. 3(6), S.I. No. 366 of 2018, subject to transitional provisions.
CHAPTER 1
Preliminary
Section 272
What this Part contains and use of prefixes — “Companies Act” and “IFRS”
272. (1) This Part contains the provisions regarding—
(a) the accounting records to be kept, and the financial statements to be prepared, by companies,
(b) the periodic returns to be made by companies to the Registrar, and
(c) the auditing of financial statements of companies and matters related to the auditing of them and, in particular, the rules governing the appointment of statutory auditors to, and their removal from, office.
(2) Those financial statements shall be prepared in accordance with (as this Part authorises)—
(a) the requirements of F109[Schedule 3, 3A, 3B, 4 or 4A, as the case may be,] and the relevant requirements of this Part, or
(b) international financial reporting standards and the relevant requirements of this Part,
and the prefix—
(i) “Companies Act” is used in references in this Part to financial statements that must comply with the requirements referred to in paragraph (a), and
(ii) “IFRS” is used in references in this Part to financial statements that must comply with the requirements referred to in paragraph (b).
Annotations
Amendments:
F109
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 10, S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 273
Overall limitation on discretions with respect to length of financial year and annual return date
273. (1) The discretions of a company under this Part with respect to the length of its financial year or to its annual return date are subject to the overall limitation that those discretions must be exercised in a manner that results in compliance by the company with the following requirement.
(2) That requirement is that which arises under section 347(4) relating to the earliest date to which the documents annexed to an annual return must be made up.
Section 274
Interpretation (Part 6): provisions relating to financial statements
274. (1) In this Part—
“abridged financial statements”, in relation to a company, means the financial statements of the company F110[prepared in accordance with section 353], as appropriate;
“balance sheet”, in relation to a company, means a statement of assets, liabilities and financial position drawn up at a particular date showing the assets, liabilities and equity of the company at that date in a manner required by the financial reporting framework adopted by the company, and—
(a) for the avoidance of doubt, where the financial statements are prepared in accordance with IFRS, the expression means the statement of financial position referred to in those standards, and
(b) subsection (3) supplements this definition;
“Companies Act entity financial statements” shall be read in accordance with section 290;
“Companies Act financial statements” means Companies Act entity financial statements or Companies Act group financial statements;
“Companies Act group financial statements” shall be read in accordance with section 293;
“entity financial statements” means, in relation to a company, a summary (as at a particular date) respecting the company alone (as distinct from the company and any subsidiary undertakings) of its assets, liabilities and financial position, together with its profit or loss, since the date of its previous financial statements and generally comprises—
(a) a balance sheet,
(b) a profit and loss account, and
(c) other statements and notes attached to the foregoing and forming part of them,
and the expression “entity”, where used in relation to such a balance sheet or profit and loss account, shall be read accordingly;
“financial reporting framework” means the collective provisions and requirements (and, in particular, the applicable accounting standards) applied in the preparation of financial statements;
“financial statements”, in relation to a company, means entity financial statements and any group financial statements;
“group” means a holding undertaking and all its subsidiary undertakings;
“group financial statements” means, in relation to a holding company, a summary (as at a particular date) respecting the assets, liabilities and financial position of the company and its subsidiary undertakings as a whole, together with the profit or loss of the company and its subsidiary undertakings as a whole, since the date of the previous financial statements and generally comprises—
(a) a consolidated balance sheet,
(b) a consolidated profit and loss account, and
(c) other consolidated statements and notes attached to the foregoing and forming part of them,
and the expression “group”, where used in relation to such a balance sheet or profit and loss account, shall be read accordingly;
“IAS Regulation” means Regulation (EC) No. 1606/2002 of the European Parliament and of the Council of 19 July 2002 and a reference to Article 4 of that Regulation is, in the case of a private company limited by shares, a reference to Article 5 of that Regulation;
“IFRS” means international financial reporting standards;
“IFRS entity financial statements” shall be read in accordance with section 290;
“IFRS financial statements” means IFRS entity financial statements or IFRS group financial statements;
“IFRS group financial statements” shall be read in accordance with section 293;
“international financial reporting standards” means the international financial reporting standards, within the meaning of the IAS Regulation, adopted from time to time by the Commission of the European Union in accordance with the IAS Regulation;
“non-statutory financial statements”—
(a) in relation to a company, means any balance sheet or profit and loss account, or summary or abstract of a balance sheet or profit and loss account, relating to a financial year of the company that is published by the company otherwise than as part of the statutory financial statements of the company for that financial year, and
(b) in relation to a holding company, includes any information purporting to be a consolidated balance sheet or consolidated profit and loss account, or a summary or abstract of a consolidated balance sheet or consolidated profit and loss account, of the group consisting of the holding company and its subsidiary undertakings that is published otherwise than as part of the statutory financial statements of that group for that financial year,
and “non-statutory entity financial statements” shall be read accordingly;
“profit and loss account”, in relation to a company, means a statement of performance of the company showing revenues, expenses, gains and losses earned and incurred by the company during a period in a manner required by the financial reporting framework adopted by the company, and—
F111[(a) for the avoidance of doubt—
(i) in the case where the financial statements are prepared in accordance with IFRS, the expression means a statement of profit or loss and other comprehensive income or equivalent term referred to in those standards, and
(ii) in the case of a company not trading for the acquisition of gain by its members, the expression means an income and expenditure account, and references to—
(I) a profit and loss account, and
(II) in the case of group financial statements, a consolidated profit and loss account,
shall be read accordingly, and]
(b) subsection (4) supplements this definition;
“statutory financial statements”, in relation to a company, means—
(a) in the case of a company that is not a holding company or is a holding company that has availed itself of an exemption under this Part from the requirement to prepare group financial statements, the entity financial statements required by section 290, and
(b) in the case of a holding company that prepares group financial statements, the group financial statements required by section 293 together with the entity financial statements required by section 290.
(2) References in this Act to financial statements giving a true and fair view are references—
(a) in the case of Companies Act entity financial statements, to the requirement under section 291 that the entity financial statements prepared in accordance with that section give a true and fair view of the assets, liabilities, financial position and profit or loss of the company alone (as distinct from the company and any subsidiary undertakings),
(b) in the case of Companies Act group financial statements, to the requirement under section 294 that the group financial statements prepared in accordance with that section give a true and fair view of the assets, liabilities, financial position and profit or loss of the company and the subsidiary undertakings included in the consolidation taken as a whole, so far as concerns the members of the company, and
(c) in the case of IFRS entity financial statements and IFRS group financial statements, to the equivalent requirement under international financial reporting standards to present fairly the assets, liabilities, financial position, financial performance and cash flows of the company or group concerned.
(3) References in this Part to a company’s balance sheet include references to notes to the company’s financial statements giving information relating to the balance sheet, being information that is both—
(a) required by any provision of this Act (including IFRS or other applicable accounting standards), and
(b) required or permitted by any such provision to be given in a note to those financial statements.
(4) References in this Part to a company’s profit and loss account include references to notes to the company’s financial statements giving information relating to the profit and loss account, being information that is both—
(a) required by any provision of this Act (including IFRS or other applicable accounting standards), and
(b) required or permitted by any such provision to be given in a note to those financial statements.
(5) References in this Act to an undertaking being included in—
(a) the consolidation in relation to group financial statements, or
(b) consolidated group financial statements,
shall be read as references to the undertaking being included in the financial statements by the method of full (and not proportional) consolidation, and references to an undertaking being excluded from consolidation shall be read accordingly.
(6) A requirement imposed on the directors of a company to prepare financial statements is satisfied by the financial statements being caused to be prepared by the directors.
Annotations
Amendments:
F110
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 88(e), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F111
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 11, S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 275
Interpretation (Part 6): other definitions and construction provisions
275. (1) In this Part F112[and Part 26]—
F113["Accounting Directive" means Directive 2013/34/EU of the European Parliament and of the Council of 26 June 20132 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC;]
“accounting standards” means—
(a) statements of accounting standards, and
(b) any written interpretation of those standards,
issued by a body or bodies prescribed for the purposes of this definition under section 943(1)(h);
F113["amount of turnover", in relation to a company, means the amount of the turnover shown in the company’s profit and loss account;]
“associated undertaking” has the meaning given to it by F114[paragraph 21 of Schedule 4 or 4A, as the case may be];
“audit committee” means the committee established under section 167;
“audit exemption”, unless expressly provided otherwise, means—
(a) other than in Chapter 15, the audit exemption under that Chapter or Chapter 16, or
(b) in Chapter 15, the audit exemption under that Chapter;
“audit of the statutory financial statements” means work required to fulfil the duties imposed under section 336 on a statutory auditor of a company;
F113["balance sheet total", in relation to a company, means the aggregate of the amounts shown as assets in the company’s balance sheet;]
“credit institution” means—
(a) a company or undertaking that is the holder of a licence under section 9 of the Central Bank Act 1971,
(b) a company or undertaking engaged solely in the making of hire purchase agreements F115[(within the meaning of the Consumer Credit Act 1995)] and credit sale agreements (within the meaning of that Act), in respect of goods owned by the company or undertaking,
(c) a company or undertaking engaged in the business of accepting deposits F115[or other repayable funds from the public and] granting credit for its own account, or
(d) a company or undertaking that is a trustee savings bank licensed under the Trustee Savings Banks Act 1989;
“equity share capital” or “equity shares” means, in relation to a company, its allotted share capital excluding any part of it which, neither as respects dividends nor as respects capital, carries any right to participate beyond a specified amount in a distribution;
“fellow subsidiary undertakings” means 2 or more undertakings that are subsidiary undertakings of the same holding undertaking but which are not the holding undertaking or subsidiary undertaking of each other;
“group undertaking”, in relation to an undertaking, means an undertaking which is—
(a) a holding undertaking or subsidiary undertaking of that undertaking, or
(b) a subsidiary undertaking of any holding undertaking of that undertaking;
“higher holding undertaking” means an undertaking that is the holding undertaking of an undertaking that is itself a holding undertaking;
“holding undertaking” has the same meaning as “holding company” in section 8 has save that “company” in section 8 shall, for the purposes of this definition, include, as well as a body corporate—
(a) a partnership, and
(b) an unincorporated body of persons,
falling within the definition of “undertaking” in this subsection;
F113["ineligible entities" means undertakings that—
(a) have transferable securities admitted to trading on a regulated market of any Member State,
(b) are credit institutions,
(c) are insurance undertakings, or
(d) are—
(i) undertakings that—
(I) fall within any of the provisions of Schedule 5, or
(II) are otherwise designated, by or under any other enactment, to be entities referred to in point (1)(d) of Article 2 of the Accounting Directive,
or
(ii) undertakings that are designated, by or under the law of any other Member State, to be entities referred to in point (1)(d) of Article 2 of the Accounting Directive and "ineligible company" shall be read accordingly;]
“insurance undertaking” means an undertaking that is the holder of an authorisation within the meaning of—
(a) Regulation 2 of the European Communities (Non-Life Insurance) Regulations 1976 (S.I. No. 115 of 1976),
(b) Regulation 2 of the European Communities (Non-Life Insurance) Framework Regulations 1994 (S.I. No. 359 of 1994),
(c) Regulation 2 of the European Communities (Life Assurance) Regulations 1984 (S.I. No. 57 of 1984),
F116[(d) Regulation 2 of the European Communities (Life Assurance) Framework Regulations 1994 (S.I. No. 360 of 1994),
(e) European Communities (Reinsurance) Regulations 2006 (S.I. No. 380 of 2006), or
(f) Regulation 3 of the European Union (Insurance and Reinsurance) Regulations 2015 (S.I. No. 485 of 2015);]
F113["large company" shall be read in accordance with section 280H;
"medium company" shall be read in accordance with section 280F or 280G, as may be appropriate; and "medium group" shall be read accordingly;
"micro company" shall be construed in accordance with section 280D;
"micro companies regime" has the meaning assigned to it by section 280E;]
“net assets”, in relation to a company or group, means the total assets of the company or group less the total liabilities of it or them as shown in the financial statements of the company or group;
“participating interest” has the meaning given to it by F117[paragraph 23 of Schedule 4 or 4A as the case may be];
“publish”, in relation to a document, includes issue, circulate or otherwise make it available for public inspection in a manner calculated to invite the public generally, or any class of members of the public, to read the document, and cognate words shall be read accordingly;
“regulated market” has the same meaning as it has in the European Communities (Markets in Financial Instruments) Regulations 2007 (S.I. No. 60 of 2007);
F113["small company" shall be read in accordance with section 280A or 280B, as may be appropriate; and "small group" shall be read accordingly;
"small companies regime" has the meaning assigned to it by section 280C;]
“subsidiary undertaking” has the same meaning as “subsidiary” in section 7 has save that “company” in section 7 shall, for the purposes of this definition, include, as well as a body corporate—
(a) a partnership, and
(b) an unincorporated body of persons,
falling within the definition of “undertaking” in this subsection;
“turnover”, in relation to a company, means the amounts of revenue derived from the provision of goods and services falling within the company’s ordinary activities, after deduction of—
(a) trade discounts,
(b) value-added tax, and
(c) any other taxes based on the amounts so derived,
and, in the case of a company whose ordinary activities include the making or holding of investments, includes the gross revenue derived from such activities;
“undertaking” means—
(a) any body corporate,
(b) a partnership, or
(c) an unincorporated body of persons,
engaged for gain in the production, supply or distribution of goods, the provision of services or the making or holding of investments.
(2) For the purposes of this Part, the definition of “wholly owned subsidiary” in section 8(2) shall apply as if each reference in that definition to a company included a reference to an undertaking.
(3) In this Part references to shares—
(a) in relation to an undertaking with share capital, are references to allotted shares,
(b) in relation to an undertaking with capital but no share capital, are references to rights to share in the capital of the undertaking, and
(c) in relation to an undertaking without capital, are references to interests—
(i) conferring any rights to share in the profits or imposing liability to contribute to the losses of the undertaking, or
(ii) giving rise to an obligation to contribute to the debts or expenses of the undertaking in the event of a winding up.
(4) In this Part references to derivative financial instruments shall be deemed to include references to commodity-based contracts that give either contracting party the right to settle in cash or some other financial instrument except when such contracts—
(a) were entered into and continue to meet the company’s expected purchase, sale or usage requirements,
(b) were designed for such purpose at their inception, and
(c) are expected to be settled by delivery of the commodity.
F118[(5) A word or expression that is used in this Part, Part 26 or in Schedules 3, 3A, 3B, 4 or 4A and that is also used in the Accounting Directive shall have the same meaning in this Part, Part 26 or in those Schedules, as the case may be, as it has in the Accounting Directive.]
(6) F119[…]
Annotations
Amendments:
F112
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 12(a)(i), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F113
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 12(a)(ii), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F114
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 90(e)(i), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F115
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 12(a)(iii), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F116
Substituted and inserted (1.01.2016) by European Union (Insurance and Reinsurance) Regulations 2015 (S.I. No. 485 of 2015), reg. 316, in effect as per reg 1(2), subject to reg. 1(3).
F117
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 90(e)(ii), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F118
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 12(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F119
Deleted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 12(c), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Editorial Notes:
E75
The Financial Reporting Council Limited, being a company limited by guarantee, registered in England and Wales with registered number 02486368, is prescribed for the purposes of the definition of accounting standards in subs. (1) as a body that issues statements of accounting standards, as provided (28.03.2018) by Companies Act 2014 (Accounting Standards) (Prescribed Body) Regulations 2018 (S.I. No. 84 of 2018), in effect as per reg. 2.
Section 276
Construction of references to realised profits
276. (1) It is declared, for the avoidance of doubt, that references in this Part to realised profits, in relation to a company’s entity financial statements, are references to such profits of the company as fall to be treated as realised profits for the purposes of those financial statements in accordance with principles generally accepted with respect to the determination for accounting purposes of realised profits at the time when those financial statements are prepared.
(2) Subsection (1) is without prejudice to—
(a) the construction of any other expression by reference (where appropriate) to generally accepted accounting principles or practice, or
(b) any specific provision for the treatment of profits of any description as realised.
Section 277
Construction of references to exemption
F120[277. (1) Subsection (2) is in addition to the provision made by this Part enabling certain elections to be made by a company that qualifies for the small companies regime or the micro companies regime.
(2) Any provision of this Part providing for an exemption from a requirement of this Part does not prevent the company concerned, if it so chooses, from doing the thing that the provision provides it is exempted from doing (the "specified thing").
(3) If the company concerned chooses to do the specified thing—
(a) the provisions required by this Part to be complied with, in relation to the doing of such a thing, and
(b) the provisions specified by this Part to apply, in a case where such a thing is done,
as the case may be, shall be complied with or shall apply accordingly, but this does not prejudice any provision of this Part concerning the making of an election referred to in subsection (1) by a company there referred to (or concerning the effect of the company’s having so done).
(4) Subsection (2) applies whether the expression "shall be exempt" or "need not" or any other form of words is used in the provision concerned.]
Annotations
Amendments:
F120
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 13, S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 227A
F121[Certain companies may apply provisions of Act to certain earlier financial years
277A. (1) Subject to this section, the directors of a company may, before the operative date of the provisions of the Act of 2017 specified in subsection (4) (the "specified provisions of the Act of 2017"), opt to prepare and approve statutory financial statements for the company in accordance with those specified provisions for any financial year which commenced on or after 1 January 2015.
(2) All obligations and rights that arise under this Act consequent on or in respect of financial statements having been approved by directors of a company shall likewise arise in relation to financial statements approved by directors in a case falling within subsection (1).
(3) In determining whether a company or group qualifies as—
(a) a medium company under section 280F or 280G, as the case may be,
(b) a small company under section 280A or 280B, as the case may be, or
(c) a micro company under section 280D,
in relation to a financial year to which the specified provisions of the Act of 2017 have effect, the company or group, as may be appropriate shall be treated as having qualified as a medium company, small company or micro company, as the case may be, in any previous year in which it would have so qualified if the qualifying conditions applicable to that company or group, as the case may be, had had effect in relation to that previous year.
(4) Each of the following is a specified provision of the Act of 2017:
(a) section 3;
(b) section 4;
(c) sections 10 to 12;
(d) sections 15 to 25;
(e) paragraphs (a), (b) and (d) of section 26;
(f) sections 29 to 57;
(g) section 59;
(h) sections 62 to 64;
(i) sections 81 and 82;
(j) section 84;
(k) section 88;
(l) section 89.
(5) In this section—
"Act of 2017" means the Companies (Accounting) Act 2017;
"operative date" means the date on which the specified provision comes into operation pursuant to an order under section 1(2) of the Act of 2017;
"qualifying conditions" has the same meaning as it has—
(a) in relation to a medium company, in section 280F(7) or 280G(10), as the case may be,
(b) in relation to a small company, in section 280A(7) or 280B(10), as the case may be, and
(c) in relation to a micro company, in section 280D(7).]
Annotations
Amendments:
F121
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 14, S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Editorial Notes:
E76
The section heading is taken from the amending section in the absence of one included in the amendment.
Section 278
Accounting standards generally — power of Minister to specify
278. (1) The Minister may specify by regulations the accounting standards in accordance with which statutory financial statements are to be prepared but any such regulations shall not apply in any excepted case.
(2) In subsection (1) “excepted case” means—
(a) a case in which this Part permits (and the company concerned avails itself of that permission), or requires, statutory financial statements to be prepared in accordance with IFRS, or
(b) a case falling within section 279 or regulations made under section 280 and the holding company concerned avails itself of what is permitted by that section or those regulations.
Section 279
US accounting standards may, in limited cases, be availed of for particular transitional period
279. (1) In this section—
“relevant holding company” means a holding company—
(a) whose securities (or whose receipts in respect of those securities) are registered with the Securities and Exchange Commission of the United States of America, or which is otherwise subject to reporting to that Commission, under the laws of the United States of F122[America,]
F123[(aa) which was incorporated in the State prior to the commencement of section 1 of the Companies (Amendment) Act 2017, and]
(b) which—
(i) prior to 4 July 2012, has not made and was not required to make an annual return to the Registrar to which accounts were required to have been annexed, or
(ii) on or after 23 December 2009 but prior to 4 July 2012, used, in accordance with the provisions of the Companies (Miscellaneous Provisions) Act 2009, US accounting standards in the preparation of its Companies Act individual accounts or its Companies Act group accounts;
“relevant financial statements” means Companies Act entity financial statements and Companies Act group financial statements;
“US accounting standards” means US generally accepted accounting principles, that is to say, the standards and interpretations, in relation to accounting and financial statements, issued by any of the following bodies constituted under the laws of the United States of America or of a territorial unit of the United States of America—
(a) the Financial Accounting Standards Board,
(b) the American Institute of Certified Public Accountants,
(c) the Securities and Exchange Commission.
(2) This section applies to the relevant financial statements of a relevant holding company that are prepared for such of its financial years after it is incorporated in the State as end or ends not later than F124[31 December 2030].
(3) To the extent that the use of US accounting standards does not contravene any provision of this Part—
(a) a true and fair view of the assets and liabilities, financial position and profit or loss of a relevant holding company may be given by the use by that company of those standards in the preparation of its Companies Act entity financial statements, and
(b) a true and fair view of the assets and liabilities, financial position and profit or loss of a relevant holding company and its subsidiary undertakings as a whole may be given by the use by that relevant holding company of those standards in the preparation of its Companies Act group financial statements.
Annotations
Amendments:
F122
Substituted (18.07.2017) by Companies (Amendment) Act 2017 (13/2017), s. 1(a), S.I. No. 305 of 2017.
F123
Inserted (18.07.2017) by Companies (Amendment) Act 2017 (13/2017), s. 1(b), S.I. No. 305 of 2017.
F124
Substituted (18.07.2017) by Companies (Amendment) Act 2017 (13/2017), s. 1(c), S.I. No. 305 of 2017.
Section 280
Regulations may permit use of other internationally recognised accounting standards for a particular transitional period
280. (1) In this section “relevant financial statements” means Companies Act entity financial statements and Companies Act group financial statements.
(2) The Minister may make regulations providing for specified categories of holding companies and providing that—
(a) a true and fair view of the assets and liabilities, financial position and profit or loss of a holding company in such a category may be given by the preparation by it of its Companies Act entity financial statements for a specified number of its financial years in accordance with specified accounting standards, and
(b) a true and fair view of the assets and liabilities, financial position and profit or loss of a holding company in such a category and its subsidiary undertakings as a whole may be given by the preparation by that holding company of its Companies Act group financial statements for a specified number of its financial years in accordance with specified accounting standards.
(3) Regulations made under subsection (2) shall—
(a) specify the accounting standards, which shall be—
(i) internationally recognised, and
(ii) generally accepted accounting principles or practice of a jurisdiction to which a majority of the subsidiary undertakings of the holding company have a substantial connection,
(b) specify the number of financial years in respect of which the regulations apply, and the date on which the latest of such financial years shall end, which shall be not later than 31 December 2020, and
(c) provide that the preparation of such financial statements shall not contravene any provision of this Part.
F125[CHAPTER 1A
Qualification of company based on size of company]
Annotations
Amendments:
F125
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 15, S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 280A
F126[Qualification of company as small company: general
280A. (1) A company that is not excluded by subsection (4) qualifies as a small company in relation to its first financial year if the qualifying conditions are satisfied in respect of that year.
(2) A company that is not excluded by subsection (4) qualifies as a small company in relation to a subsequent financial year (in this subsection referred to as "relevant year") if the qualifying conditions—
(a) are satisfied in respect of the relevant year and the financial year immediately preceding the relevant year,
(b) are satisfied in respect of the relevant year and the company qualified as a small company in relation to the financial year immediately preceding the relevant year, or
(c) were satisfied in the financial year immediately preceding the relevant year and the company qualified as a small company in relation to that preceding financial year.
(3) The qualifying conditions for a small company are satisfied by a company if, in relation to a financial year, it fulfils 2 or more of the following requirements:
(a) the amount of turnover of the company does not exceed F127[€15 million];
(b) the balance sheet total of the company does not exceed F127[€7.5 million];
(c) the average number of employees does not exceed 50.
(4) This section shall not apply to a company if it is—
(a) a holding company, or
(b) an ineligible company.
(5) In the application of this section to any period which is a financial year but is not in fact a year, the amount specified in subsection (3)(a) shall be proportionately adjusted.
(6) For the purposes of subsection (3)(c), the average number of employees of a company shall be determined by applying the methods specified in section 317 for determining the number required by subsection (1)(a) of that section to be stated in a note to the financial statements of a company.
(7) In this section, "qualifying conditions" mean the requirements specified in subsection (3).]
Annotations
Amendments:
F126
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 15, S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F127
Substituted (1.07.2024) by European Union (Adjustments of Size Criteria for Certain Companies and Groups) Regulations 2024 (S.I. No. 301 of 2024), reg. 4(a), (b), in effect as per reg. 2.
Section 280B
F128[Qualification of company as small company: holding company
280B. (1) A holding company qualifies as a small company in relation to a financial year only if the group, in respect of which it is the holding company, qualifies as a small group in relation to that same financial year.
(2) A group that is not excluded by subsection (5) qualifies as a small group in relation to the first financial year of the holding company if the qualifying conditions are satisfied in respect of that year.
(3) A group that is not excluded by subsection (5) qualifies as a small group in relation to a subsequent financial year (in this subsection referred to as "relevant year") of the holding company if the qualifying conditions—
(a) are satisfied in respect of the relevant year and the financial year immediately preceding the relevant year,
(b) are satisfied in respect of the relevant year and the group qualified as a small group in relation to the financial year immediately preceding the relevant year, or
(c) were satisfied in the financial year immediately preceding the relevant year and the group qualified as a small group in relation to that preceding financial year.
(4) The qualifying conditions for a small group are satisfied by a group if, in relation to a financial year, it fulfils 2 or more of the following requirements:
F129[(a) the aggregate amount of turnover of the group does not exceed €15 million net (or €18 million gross);]
F129[(b) the aggregate balance sheet total of the group does not exceed €7.5 million net (or €9 million gross);]
(c) the aggregate average number of employees of the group does not exceed 50.
(5) This section shall not apply to a holding company of a group if any member of the group is an ineligible entity.
(6) In the application of this section to any period which is a financial year but is not in fact a year, the amounts specified in subsection (4)(a) shall be proportionally adjusted.
(7) The aggregate figures referred to in subsection (4) shall be ascertained by aggregating the equivalent figures determined in accordance with section 280A for each member of the group.
(8) Where a group proposes to satisfy the qualifying conditions referred to in subsection (4) on the basis of the requirements of paragraphs (a) and (b) of that subsection, it may do so on the basis of either the net figures or the gross figures respectively for both of the said paragraphs.
(9) The figures for each subsidiary undertaking shall be those included in its entity financial statements for the relevant financial year—
(a) if its financial year ends with that of the holding company, that financial year, and
(b) if not, its financial year ending last before the end of the financial year of the holding company.
(10) In this section—
"first financial year of a holding company" means the first financial year at the end of which the company qualifies as a holding company by virtue of having one or more subsidiaries;
"qualifying conditions" mean the requirements referred to in subsection (4).
(11) For the purposes of this section, in relation to the aggregate figures for turnover and balance sheet total—
"net" means after set-offs and other adjustments made to eliminate group transactions—
(i) in the case of Companies Act financial statements, in accordance with Schedule 4, and
(ii) in the case of IFRS financial statements, in accordance with international financial reporting standards;
"gross" means without those set-offs and other adjustments.]
Annotations
Amendments:
F128
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 15, S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F129
Substituted (1.07.2024) by European Union (Adjustments of Size Criteria for Certain Companies and Groups) Regulations 2024 (S.I. No. 301 of 2024), reg. 5(a), (b), in effect as per reg. 2.
Section 280C
F130[Small companies regime
280C. Where a company qualifies as a small company in accordance with section 280A or 280B, as may be appropriate, then, as provided in this Part, different rules may be applied (in this Act referred to as the "small companies regime") to the company in respect of financial statements and reports for a financial year in relation to which that company so qualifies as a small company.]
Annotations
Amendments:
F130
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 15, S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 280D
F131[Qualification of company as micro company
280D. (1) A company that is not excluded by subsection (4) qualifies as a micro company in relation to its first financial year if the qualifying conditions are satisfied in respect of that year.
(2) A company that is not excluded by subsection (4) qualifies as a micro company in relation to a subsequent financial year (in this subsection referred to as the "relevant year") if the qualifying conditions—
(a) are satisfied in respect of the relevant year and the financial year immediately preceding the relevant year,
(b) are satisfied in respect of the relevant year and the company qualified as a micro company in relation to the financial year immediately preceding the relevant year, or
(c) were satisfied in the financial year immediately preceding the relevant year and the company qualified as a micro company in relation to that preceding financial year.
(3) The qualifying conditions for a micro company are satisfied by a company if, in relation to a financial year, it—
(a) qualifies for the small companies regime, and
(b) fulfils 2 or more of the following requirements:
(i) the amount of turnover of the company does not exceed F132[€900,000];
(ii) the balance sheet total of the company does not exceed F132[€450,000];
(iii) the average number of employees does not exceed 10.
(4) This section shall not apply to a company if it is—
(a) an investment undertaking,
(b) a financial holding undertaking,
(c) a holding company that prepares group financial statements, or
(d) a subsidiary that is included in the consolidated financial statements of a higher holding undertaking.
(5) In the application of this section to any period which is a financial year but is not in fact a year, the amount specified in subsection (3)(b)(i) shall be proportionately adjusted.
(6) For the purposes of subsection (3)(b)(iii), the average number of employees of a company shall be determined by applying the methods specified in section 317 for determining the number required by subsection (1)(a) of that section to be stated in a note to the financial statements of a company.
(7) In this section, "qualifying conditions" mean the conditions specified in subsection (3).]
Annotations
Amendments:
F131
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 15, S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F132
Substituted (1.07.2024) by European Union (Adjustments of Size Criteria for Certain Companies and Groups) Regulations 2024 (S.I. No. 301 of 2024), reg. 6(a), (b), in effect as per reg. 2.
Section 280E
F133[Micro companies regime
280E. Where a company qualifies as a micro company in accordance with section 280D, then, as provided in this Part, different rules may be applied (in this Act referred to as the "micro companies regime") to the company in respect of financial statements and reports for a financial year in relation to which that company so qualifies as a micro company.]
Annotations
Amendments:
F133
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 15, S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 280F
F134[Qualification of company as medium company: general
280F. (1) A company that is not excluded by subsection (4) qualifies as a medium company in relation to its first financial year if the qualifying conditions are satisfied in respect of that year.
(2) A company that is not excluded by subsection (4) qualifies as a medium company in relation to a subsequent financial year (in this subsection referred to as "relevant year") if the qualifying conditions—
(a) are satisfied in respect of the relevant year and the financial year immediately preceding the relevant year,
(b) are satisfied in respect of the relevant year and the company qualified as a medium company in relation to the financial year immediately preceding the relevant year, or
(c) were satisfied in the financial year immediately preceding the relevant year and the company qualified as a medium company in relation to that preceding financial year.
(3) The qualifying conditions for a medium company are satisfied by a company if, in relation to a financial year, it fulfils 2 or more of the following requirements:
(a) the amount of turnover of the company does not exceed F135[€50 million];
(b) the balance sheet total of the company does not exceed F135[€25 million];
(c) the average number of employees does not exceed 250.
(4) This section shall not apply to a company if it is—
(a) a holding company,
(b) an ineligible company,
(c) a company that qualifies for the small companies regime, or
(d) a company that qualifies for the micro companies regime.
(5) In the application of this section to any period which is a financial year but is not in fact a year, the amount specified in subsection (3)(a) shall be proportionately adjusted.
(6) For the purposes of subsection (3)(c), the average number of employees of a company shall be determined by applying the methods specified in section 317 for determining the number required by subsection (1)(a) of that section to be stated in a note to the financial statements of a company.
(7) In this section, "qualifying conditions" mean the conditions referred to in subsection (3).]
Annotations
Amendments:
F134
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 15, S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F135
Substituted (1.07.2024) by European Union (Adjustments of Size Criteria for Certain Companies and Groups) Regulations 2024 (S.I. No. 301 of 2024), reg. 7(a), (b), in effect as per reg. 2.
Section 280G
F136[Qualification of company as medium company: holding company
280G. (1) A holding company qualifies as a medium company in relation to a financial year only if the group, in respect of which it is the holding company, qualifies as a medium group.
(2) A group that is not excluded by subsection (5) qualifies as a medium group in relation to the first financial year of the holding company if the qualifying conditions are satisfied in respect of that year.
(3) A group that is not excluded by subsection (5) qualifies as a medium group in relation to a subsequent financial year (in this subsection referred to as "relevant year") of the holding company if the qualifying conditions—
(a) are satisfied in respect of the relevant year and the financial year immediately preceding the relevant year,
(b) are satisfied in respect of the relevant year and the group qualified as a medium group in relation to the financial year immediately preceding the relevant year, or
(c) were satisfied in the financial year immediately preceding the relevant year and the group qualified as a medium group in relation to that preceding financial year.
(4) The qualifying conditions for a medium group are satisfied by a group if, in relation to a financial year, it fulfils 2 or more of the following requirements:
F137[(a) the aggregate amount of turnover of the group does not exceed €50 million net (or €60 million gross);]
F137[(b) the aggregate balance sheet total of the group does not exceed €25 million net (or €30 million gross);]
(c) the aggregate average number of employees of the group does not exceed 250.
(5) This section shall not apply to the holding company of a group if any member of the group is an ineligible entity.
(6) In the application of this section to any period which is a financial year but is not in fact a year, the amounts specified in subsection (4)(a) shall be proportionally adjusted.
(7) The aggregate figures referred to in subsection (4) shall be ascertained by aggregating the equivalent figures determined in accordance with section 280F for each member of the group.
(8) Where a group proposes to satisfy the qualifying conditions referred to in subsection (4) on the basis of the requirements of paragraphs (a) and (b) of that subsection, it may do so on the basis of either the net figures or the gross figures respectively for both of the said paragraphs.
(9) The figures for each subsidiary undertaking shall be those included in its entity financial statements for the relevant financial year—
(a) if its financial year ends with that of the holding company, that financial year, and
(b) if not, its financial year ending last before the end of the financial year of the holding company.
(10) In this section—
"first financial year of a holding company" means the first financial year at the end of which the company qualifies as a holding company by virtue of having one or more subsidiaries;
"qualifying conditions" mean the conditions referred to in subsection (4).
(11) For the purposes of this section, in relation to the aggregate figures for turnover and balance sheet total—
"net" means after set-offs and other adjustments made to eliminate group transactions—
(i) in the case of Companies Act financial statements, in accordance with Schedule 4, and
(ii) in the case of IFRS financial statements, in accordance with international financial reporting standards;
"gross" means without those set-offs and other adjustments.]
Annotations
Amendments:
F136
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 15, S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F137
Substituted (1.07.2024) by European Union (Adjustments of Size Criteria for Certain Companies and Groups) Regulations 2024 (S.I. No. 301 of 2024), reg. 8(a), (b), in effect as per reg. 2.
Section 280H
F138[Qualification of company as large company
280H. A company that does not qualify as—
(a) a small company in accordance with section 280A or 280B,
(b) a micro company in accordance with section 280D, or
(c) a medium company in accordance with section 280F or 280G,
shall be deemed to be a large company.]
Annotations
Amendments:
F138
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 15, S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 280I
F139[Treatment of qualifying conditions in respect of certain financial years
280I. (1) Where a monetary amount referred to in a relevant provision, in respect of the turnover or balance sheet total of a company or group, is amended by the adjustment of size regulations, a company or group shall, for the purposes of satisfying qualifying conditions under a relevant provision, treat all the amendments as applying either (as the company elects) to—
(a) each financial year beginning on or after 1 January 2024, or
(b) each financial year beginning on or after 1 January 2023, in accordance with Article 2(1) of the Commission Delegated Directive (EU) 2023/2775 of 17 October 20232.
(2) The relevant provisions shall apply to the financial year of a company or group in accordance with the election of the company or group under subsection (1).
(3) In this section—
"adjustment of size regulations" means the European Union (Adjustments of Size Criteria for Certain Companies and Groups) Regulations 2024;
"relevant provision" means sections 280A(3), 280B(4), 280D(3)(b), 280F(3) and 280G(4).]
Annotations
Amendments:
F139
Inserted (1.07.2024) by European Union (Adjustments of Size Criteria for Certain Companies and Groups) Regulations 2024 (S.I. No. 301 of 2024), reg. 9, in effect as per reg. 2.
CHAPTER 2
Accounting records
Annotations
Modifications (not altering text):
C49
Application of chapter (ss. 281-296) restricted (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 15, in effect as per reg. 1(2), (3).
Non-application of certain provisions of Principal Act
15. Sections 281 to 286, 305A, 312, 318, 319, 325(1)(c), (d) and (e), 326(1)(c) and (d) and (2)(d), 328, 338, 339, 341, 375, 381 to 385, 392, 396 to 398, 401 and 402 of the Principal Act shall not apply to a qualifying partnership.
Section 281
Obligation to keep adequate accounting records
281. A company shall keep or cause to be kept adequate accounting records.
Section 282
Basic requirements for accounting records
282. (1) For the purposes of this Part, adequate accounting records are those that are sufficient to—
(a) correctly record and explain the transactions of the company,
(b) enable, at any time, the assets, liabilities, financial position and profit or loss of the company to be determined with reasonable accuracy,
(c) enable the directors to ensure that any financial statements of the company, required to be prepared under section 290 or 293, and any directors’ report required to be prepared under section 325, comply with the requirements of this Act and, where applicable, Article 4 of the IAS Regulation, and
(d) enable those financial statements of the company so prepared to be audited.
(2) The accounting records shall be kept on a continuous and consistent basis, which is to say, the entries in them shall be made in a timely manner and be consistent from one period to the next; if those records are not kept by making entries in a bound book but by some other means, adequate precautions shall be taken for guarding against falsification and facilitating discovery of such falsification, should it occur.
(3) Without prejudice to the generality of subsections (1) and (2), accounting records kept pursuant to section 281 shall contain—
(a) entries from day to day of all sums of money received and expended by the company and the matters in respect of which the receipt and expenditure takes place,
(b) a record of the assets and liabilities of the company,
(c) if the company’s business involves dealing in goods—
(i) a record of all transactions whereby goods are purchased and whereby goods are sold, showing the goods and the sellers and buyers (except buyers of goods in ordinary retail trade) in sufficient detail to enable the goods and the sellers and buyers to be identified and a record of all the invoices relating to such purchases and sales,
(ii) statements of stock held by the company at the end of each financial year and all records of stocktakings from which any such statement of stock has been, or is to be, prepared,
and
(d) if the company’s business involves the provision or purchase of services, a record of all transactions whereby services are provided and whereby services are purchased, to whom they were provided or from whom they were purchased (unless provided or purchased by way of ordinary retail trade) and of all the invoices relating thereto.
(4) For the purposes of subsections (1) to (3), adequate accounting records shall be deemed to have been maintained if they comply with those subsections and explain the company’s transactions and facilitate the preparation of financial statements that give a true and fair view of the assets, liabilities, financial position and profit or loss of the company and, if relevant, the group and include any information and returns referred to in section 283(2).
(5) The adequate accounting records required by section 281 to be kept, including the information and returns referred to in this Chapter, shall be kept either—
(a) in written form in an official language of the State, or
(b) so as to enable the accounting records, including the information and returns, to be readily accessible and readily convertible into written form in an official language of the State.
(6) Subject to subsection (7), any computer (the “server computer”) that provides services to another computer, being services the provision of which to the latter is necessary so that the accounting records, and the other foregoing information and returns, stored in the latter can be accessed at all times, shall be kept in a place in the State.
(7) In any case where the accounting records are kept outside the State as mentioned in section 283(2)—
(a) save to the extent that the Minister by regulations provides otherwise, subsection (6) shall not apply,
(b) the Minister may by regulations impose requirements on the companies so keeping their accounting records (and which companies are not subject to subsection (6) by virtue of regulations under paragraph (a)) for the purpose of securing the effective access, in accordance with this Act, at all times to the accounting records stored in the computers concerned.
(8) A holding company which has a subsidiary undertaking in relation to which the preceding requirements of this section or similar such requirements do not apply shall take the following steps.
(9) Those steps are all reasonable steps to secure that the subsidiary undertaking keeps such adequate accounting records as will enable the directors of the holding company to ensure that any group financial statements required to be prepared under this Part comply with the requirements of this Part and, where applicable, Article 4 of the IAS Regulation.
Section 283
Where accounting records are to be kept
283. (1) Subject to subsection (2), a company’s accounting records shall be kept at its registered office or at such other place as the directors think fit.
(2) If accounting records are kept at a place outside the State, there shall be sent to and kept at a place in the State such information and returns relating to the business dealt with in the accounting records so kept as will—
(a) disclose with reasonable accuracy the assets, liabilities, financial position and profit or loss of that business at intervals not exceeding 6 months, and
(b) enable to be prepared in accordance with this Part (and, where applicable, Article 4 of the IAS Regulation) the company’s statutory financial statements required by section 290 or 293 and the directors’ report required by section 325.
Section 284
Access to accounting records
284. (1) A company shall make its accounting records, and any information and returns referred to in section 283(2), available in an official language of the State at all reasonable times for inspection without charge by the officers of the company and by other persons entitled pursuant to this Act to inspect the accounting records of the company.
(2) Where accounting records or any information and returns referred to in section 283(2) are kept in the manner referred to in section 282(5)(b) the obligation under subsection (1) shall be read as including a requirement the company secure that the records or information are converted, without charge, into written form in an official language of the State if the person making the request so requests.
(3) No member (not being a director) shall have any right of inspecting any financial statement or accounting record of the company except—
(a) as conferred by statute or by the company’s constitution, or
(b) authorised by the directors under subsection (4) or by the company in general meeting.
(4) The directors of a company shall from time to time determine whether and to what extent and at what times and places and under what conditions or regulations the financial statements and accounting records of the company or any of them shall be open to the inspection of its members, not being directors of the company.
Section 285
Retention of accounting records
285. An accounting record required to be kept by section 281 or information or a return referred to in section 283(2) shall be preserved by the company concerned for a period of at least 6 years after the end of the financial year containing the latest date to which the record, information or return relates.
Section 286
Accounting records: offences
286. (1) A company that contravenes section 281, 282, 283, 284 or 285 shall be guilty of—
(a) subject to paragraph (b), a category 2 offence, or
(b) if the contravention falls within a case to which subsection (3), (4) or (5) relates, a category 1 offence.
(2) A director of a company who fails to take all reasonable steps to secure compliance by the company with the requirements of any of sections 281 to 285, or has by his or her own intentional act been the cause of any default by the company under any of them, shall be guilty of—
(a) subject to paragraph (b), a category 2 offence, or
(b) if the contravention falls within a case to which subsection (3), (4) or (5) relates, a category 1 offence.
(3) This subsection relates to a case in which both of the following circumstances apply—
(a) the contravention arose in relation to a company that is subsequently wound up and that company is unable to pay its debts, and
(b) the contravention has—
(i) contributed to the company’s inability to pay all of its debts, or
(ii) resulted in substantial uncertainty as to the assets and liabilities of the company, or
(iii) substantially impeded the orderly winding up of the company.
(4) This subsection relates to a case in which the contravention persisted during a continuous period of 3 years or more.
(5) This subsection relates to a case in which the contravention involved the failure to correctly record and explain one or more transactions of a company the value or aggregate value of which transaction or transactions exceeded €1 million or 10 per cent of the net assets of the company, whichever is the greater.
(6) Subject to subsection (7), the reference in subsection (5) to the net assets of the company is a reference to net assets, as defined in section 275(1), of the company and for this purpose the amount of its net assets shall be ascertained by reference to the entity financial statements prepared under section 290 and laid in accordance with section 341 in respect of the last preceding financial year in respect of which such entity financial statements were so laid.
(7) Where no entity financial statements of the company have been prepared and laid under the foregoing sections before that time, the reference in subsection (5) to the net assets of the company shall be taken to be a reference to the amount of its called-up share capital at the time of the contravention.
(8) In any proceedings against a person in respect of an offence under subsection (2) consisting of a failure to take reasonable steps to secure compliance by a company with the requirements of any of sections 281 to 285, it shall be a defence to prove both of the following:
(a) that the defendant had reasonable grounds for believing and did believe that a competent and reliable person was—
(i) charged with the duty of undertaking that those requirements were complied with, and
(ii) in a position to discharge that duty,
and
(b) that the discharge of that duty by such competent and reliable person was monitored by the defendant, by means of reasonable methods properly used.
CHAPTER 3
Financial year
Section 287
Financial year end date
287. In this and each subsequent Chapter of this Part a reference to a company’s financial year end date is a reference to the last day of the financial year concerned of the company and a reference to its next financial year end date shall be read accordingly.
Section 288
Financial year
288. (1) A company’s first financial year is the period beginning with the date of its incorporation and ending on a date no more than 18 months after that date.
(2) Each subsequent financial year of a company begins with the day immediately after its previous financial year end date and, subject to subsection (4), continues for—
(a) 12 months, or
(b) such other period, not being more than 7 days shorter or longer than 12 months, as the directors may determine to its next financial year end date,
and the power of the directors to make such a determination is referred to in subsection (5) as the “subsection (2)(b) power”.
(3) Except where there are substantial reasons not to do so, which reasons shall be disclosed in the notes to the statutory financial statements of the company, the directors of a holding company shall ensure the financial year end dates of each of the subsidiary undertakings included in the consolidation concerned coincide with that of the holding company.
(4) Subject to the subsequent subsections of this section, a company may, by notice in the prescribed form, given to the Registrar, alter what for the time being is its current financial year end date or its previous financial year end date.
(5) Where a notice under subsection (4) is given to the Registrar then—
(a) each subsequent financial year end date shall, subject to any exercise of the subsection (2)(b) power or (where permitted by subsection (10)) further exercise of the power under subsection (4), be the anniversary of the new financial year end date specified in that notice, and
(b) in consequence, the commencement of each of the financial years that follow the new financial year end date so specified is postponed or, as the case may be, brought forward by the appropriate period of time.
(6) For the purposes of subsection (4) a company’s “previous financial year end date” means the date immediately preceding its current financial year.
(7) A notice under subsection (4) may not alter a financial year end date if the particular alteration specified in it would result in a financial year in excess of 18 months.
(8) A notice may not be given under subsection (4) in respect of a previous financial year end date if, at the date of the giving of the notice, the period for delivering to the Registrar financial statements and reports for that previous financial year has expired.
(9) Subject to subsection (10), a notice under subsection (4) purporting to alter a company’s current or previous financial year end date is not valid if given less than 5 years after the day on which there has fallen the new financial year end date specified in a previous notice given under that subsection.
(10) Subsection (9) does not apply to a notice given by a company—
(a) that is a subsidiary undertaking or holding undertaking of another EEA undertaking if the new financial year end date specified coincides with that of the other EEA undertaking, or
(b) that is being wound up, or
(c) where the F140[Authority], on application to him or her by the company, directs that it shall not apply.
(11) In this section “EEA undertaking” means an undertaking established under the law of the State or the law of any other EEA state.
Annotations
Amendments:
F140
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. no. 13, S.I. No. 335 of 2022.
CHAPTER 4
Statutory financial statements
Section 289
Statutory financial statements to give true and fair view
289. (1) The directors of a company shall not approve financial statements for the purposes of this Part unless they are satisfied that they give a true and fair view of the assets, liabilities and financial position, as at the end of the financial year, and profit or loss, for the financial year—
(a) in the case of the company’s entity financial statements, of the company alone (as distinct from the company and its subsidiary undertakings, if any, taken as a whole),
(b) in the case of the company’s group financial statements, of the company and all the subsidiary undertakings included in the consolidation taken as a whole, so far as concerns the members of the company.
(2) The statutory auditors of a company, in performing their functions under this Act in relation to the company’s statutory financial statements, shall have regard to the directors’ duty under subsection (1).
Section 290
Obligation to prepare entity financial statements under relevant financial reporting framework
290. (1) The directors of a company shall prepare entity financial statements for the company in respect of each financial year of it.
(2) The entity financial statements prepared under this section shall be the statutory financial statements of a company that does not prepare group financial statements under section 293.
(3) Subject to subsections (5) to (8) and section 296, a company’s entity financial statements shall be prepared either (as the company elects) in accordance with—
(a) section 291, or
(b) international financial reporting standards and section 292.
(4) Entity financial statements prepared in accordance with—
(a) section 291 shall be known, and are in this Act referred to, as “Companies Act entity financial statements” — and this also applies in any ensuing case where preparation of such statements in accordance with that section is obligatory, or
(b) international financial reporting standards and section 292 shall be known, and are in this Act referred to, as “IFRS entity financial statements” — and this also applies in any ensuing case where preparation of such statements in accordance with those standards and that section is obligatory.
(5) In respect of a company not trading for the acquisition of gain by its members, entity financial statements shall be prepared in accordance with section 291.
(6) F141[Subject to subsection (6A), after the first financial year] in which the directors of a company prepare IFRS entity financial statements (in this section referred to as the “first IFRS year”), all subsequent entity financial statements of the company shall be prepared in accordance with international financial reporting standards and section 292 unless there is a relevant change of circumstances as referred to in subsection (7).
F142[(6A) After a financial year in which the directors of a company prepare IFRS entity financial statements, the directors of the company may, notwithstanding that there is not a relevant change of circumstances as referred to in subsection (7), subsequently prepare Companies Act entity financial statements for the company provided they have not changed to preparing Companies Act entity financial statements in the period of 5 years preceding the first day of that financial year.
(6B) For the purposes of calculating the 5 year period referred to in subsection (6A), the reference to "changed to Companies Act entity financial statements" shall not be read as including a reference to a change to using those financial statements which was due to a relevant change in circumstances.]
(7) There is a relevant change of circumstances where at any time during or after the first IFRS year—
(a) the company becomes a subsidiary undertaking of another undertaking that does not prepare IFRS financial statements,
(b) the company, having re-registered as a private company limited by shares, ceases to be a company with securities admitted to trading on a regulated market in an EEA state, or
(c) a holding undertaking of the company ceases to be an undertaking with securities admitted to trading on a regulated market in an EEA state.
(8) Where, F143[in accordance with subsection (6A) or (7)], Companies Act entity financial statements are prepared in relation to a company, the directors of the company may subsequently prepare IFRS entity financial statements for the company and F143[subsections (6), (6A) and (7)] shall apply as if the financial year for which such IFRS entity financial statements are subsequently prepared was the first IFRS year.
Annotations
Amendments:
F141
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 16(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F142
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 16(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F143
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 16(c), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 291
Companies Act entity financial statements
291. (1) Companies Act entity financial statements in relation to a company for any financial year of it shall comprise—
(a) a balance sheet as at the financial year end date,
(b) a profit and loss account for the financial year, and
(c) any other additional statements and information required by the financial reporting framework adopted in relation to the company.
(2) Companies Act entity financial statements shall give a true and fair view of the assets, liabilities and financial position of the company as at the financial year end date and of the profit or loss of the company for the financial year.
F144[(3) Companies Act entity financial statements shall—
(a) as to the accounting principles to be applied, the form and content of the balance sheet and profit and loss account and the additional information to be provided by way of notes to the financial statements, comply with—
(i) in the case of a company that does not qualify for the small companies regime, the provisions of Schedule 3,
(ii) in the case of a company that qualifies for the small companies regime, the provisions of Schedule 3A or, if the company so elects, the provisions of Schedule 3, or
(iii) in the case of a small company that qualifies for the micro companies regime, the provisions of Schedule 3B or, if the company so elects, the provisions of either Schedule 3A or Schedule 3,
(b) comply with applicable accounting standards, and
(c) comply with the other provisions of this Act.]
F145[(3A) Companies Act entity financial statements shall state the following:
(a) the name and legal form of the company;
(b) the place of registration of the company and the number under which it is registered;
(c) the address of its registered office;
(d) where the company is being wound up, the information required by section 595.]
(4) Where compliance with F146[Schedule 3 or 3A, as the case may be,] applicable accounting standards and the other provisions of this Act as to the matters to be included in entity financial statements (or in notes to those financial statements) would not be sufficient to give a true and fair view of the matters referred to in subsection (2), the necessary additional information shall be given in the entity financial statements or a note to them.
(5) If in special circumstances compliance with any of the provisions of this Act (even if additional information were provided under subsection (4)) is inconsistent with the requirement to give a true and fair view of the matters referred to in subsection (2), the directors of the company shall depart from that provision to the extent necessary to give a true and fair view.
(6) Particulars of any departure under subsection (5), the reasons for it and its effect shall be given in a note to the financial statements of the company.
F147[(6A) In the case of a micro company that elects to adopt the micro company regime, it shall be presumed that compliance with—
(a) Schedule 3B,
(b) applicable accounting standards, and
(c) the other provisions of this Act,
shall be sufficient to give a true and fair view of the matters referred to in subsection (2), and accordingly, subsections (4), (5) and (6) shall not apply to a company that qualifies for the micro companies regime.]
(7) A company shall ensure—
(a) that its Companies Act entity financial statements include a statement as to whether they have been prepared in accordance with applicable accounting standards and identify the standards in question, and
(b) that any material departure from those standards, the effect of the departure and the reasons for it are noted in the Companies Act entity financial statements.
(8) Accounting standards are applicable to a company’s entity financial statements if those standards are, in accordance with their terms, relevant to the company’s circumstances and those entity financial statements.
(9) If a company fails to comply with any of subsections (2) to (7), the company and any officer of it who is in default shall be guilty of a category 2 offence.
(10) In any proceedings against a person in respect of an offence under subsection (9), it shall be a defence to prove that the defendant had reasonable grounds for believing and did believe that—
(a) a competent and reliable person was charged with the duty of ensuring that the provisions of the subsection concerned were complied with, and
(b) the latter person was in a position to discharge that duty.
(11) In subsection (9) “officer” includes any shadow director and de facto director.
Annotations
Amendments:
F144
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 17(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F145
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 17(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F146
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 17(c), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F147
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 17(d), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Modifications (not altering text):
C50
Section applied with modifications (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 11, in effect as per reg. 1(2), (3).
Application of section 291 of Principal Act
11. Section 291 of the Principal Act shall apply to a qualifying partnership as if -
(a) subsections (3)(b), (6A)(b), (7) and (8) were omitted,
(b) subsection (3A) read:
“(3A) Companies Act entity financial statements shall state the following:
(a) the firm name of the qualifying partnership;
(b) in the case of a limited partnership, the place of registration and the number under which it is registered;
(c) the address of the qualifying partnership’s principal place of business;
(d) where the qualifying partnership is being wound up under the Principal Act, the information required by section 595.”,
(c) in subsection (4), the reference to “applicable accounting standards” were omitted, and
(d) in subsection (9), “subsections (2) to (6)” were substituted for “subsections (2) to (7)”.
C51
Application of subs. (9) extended (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 42(1), (2), in effect as per reg. 1(2), (3).
Offences
42. (1) A qualifying partnership that fails to comply with any provision referred to in sections 291(9), 292(3), 294(9), 295(3), 324(6), 324(8), 355(7), 355(9), 356(5) or 1458(4) of the Principal Act as applied by these Regulations commits an offence.
(2) Where an offence under paragraph (1) is committed by a qualifying partnership and it is proved that the offence was committed with the consent or connivance, or was attributable to any wilful neglect, of a person who was -
(a) a member of the qualifying partnership,
(b) a director of such a member, or (c) a person purporting to act in either such capacity,
that person shall, as well as the qualifying partnership, be guilty of an offence and may be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
...
Section 292
IFRS entity financial statements
292. (1) Where the directors of a company prepare IFRS entity financial statements they shall comply with all IFRS in that regard and—
(a) shall make an unreserved statement in the notes to those entity financial statements that those financial statements have been prepared in accordance with international financial reporting standards, and
(b) shall ensure that those financial statements contain the additional information required by this Act other than that F148[required by Schedules 3, 3A, 3B, 4 and 4A].
(2) For the avoidance of doubt, the requirement for entity financial statements prepared in accordance with IFRS to present fairly the assets, liabilities, financial position, financial performance and cash flows is deemed to be equivalent to the true and fair view required by section 291(2).
F149[(2A) IFRS entity financial statements shall state the following:
(a) the name and legal form of the company;
(b) the place of registration of the company and the number under which it is registered;
(c) the address of its registered office;
(d) where the company is being wound up, the information required by section 595.]
(3) If a company fails to comply with F150[subsection (1) or (2A)], the company and any officer of it who is in default shall be guilty of a category 2 offence.
(4) In any proceedings against a person in respect of an offence under subsection (3), it shall be a defence to prove that the defendant had reasonable grounds for believing and did believe that—
(a) a competent and reliable person was charged with the duty of ensuring that the provisions of the subsection concerned were complied with, and
(b) the latter person was in a position to discharge that duty.
(5) In subsection (3) “officer” includes any shadow director and de facto director.
Annotations
Amendments:
F148
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 18(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F149
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 16(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F150
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 18(c), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Modifications (not altering text):
C52
Section applied with modifications (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 12, in effect as per reg. 1(2), (3).
Application of section 292 of Principal Act
12. Section 292 of the Principal Act shall apply to a qualifying partnership as if subsection (2A) read -
“(2A) IFRS entity financial statements shall state the following:
(a) the firm name of the qualifying partnership;
(b) in relation to a limited partnership, the place of registration and the number under which it is registered;
(c) the address of the qualifying partnership’s principal place of business;
(d) where the qualifying partnership is being wound up under the Principal Act, the information required by section 595.”.
C53
Application of subs. (3) extended (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 42(1), (2), in effect as per reg. 1(2), (3).
Offences
42. (1) A qualifying partnership that fails to comply with any provision referred to in sections 291(9), 292(3), 294(9), 295(3), 324(6), 324(8), 355(7), 355(9), 356(5) or 1458(4) of the Principal Act as applied by these Regulations commits an offence.
(2) Where an offence under paragraph (1) is committed by a qualifying partnership and it is proved that the offence was committed with the consent or connivance, or was attributable to any wilful neglect, of a person who was -
(a) a member of the qualifying partnership,
(b) a director of such a member, or (c) a person purporting to act in either such capacity,
that person shall, as well as the qualifying partnership, be guilty of an offence and may be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
...
Section 293
Obligation to prepare group financial statements under relevant financial reporting framework
293. (1) F151[Subject to subsections (1A) and (9), where at the end of its financial year] a company is a holding company, the directors of the company, as well as preparing entity financial statements for the financial year, shall prepare group financial statements for the holding company and all its subsidiary undertakings for that financial year.
F152[(1A) A holding company that qualifies for the small companies regime or the micro companies regime shall be exempt from the requirements of subsection (1) but may, however elect to prepare group financial statements.]
(2) Where a holding company prepares group financial statements under this section, there shall be associated with those group financial statements the entity financial statements prepared under section 290 and together they shall constitute the statutory financial statements of the company.
(3) Subject to subsections (5) to (9), F153[a company that is required to prepare group financial statements or has elected to prepare group financial statements] shall prepare the statements either (as the company elects) in accordance with—
(a) section 294, or
(b) international financial reporting standards and section 295.
(4) Group financial statements prepared in accordance with—
(a) section 294 shall be known, and are in this Act referred to, as “Companies Act group financial statements” — and this also applies in any ensuing case where preparation of such statements in accordance with that section is obligatory, or
(b) international financial reporting standards and section 295 shall be known, and are in this Act referred to, as “IFRS group financial statements” — and this also applies in any ensuing case where preparation of such statements in accordance with those standards and that section is obligatory.
(5) In respect of a group not trading for the acquisition of gain by its members, group financial statements shall be prepared in accordance with section 294.
(6) F154[Subject to subsection (6A), after the first financial year] in which the directors of a holding company prepare IFRS group financial statements (in this section referred to as the “first IFRS year”), all subsequent group financial statements shall be prepared in accordance with international financial reporting standards unless there is a relevant change of circumstances as referred to in subsection (7).
F155[(6A) After a financial year in which the directors of a holding company prepare IFRS group financial statements, the directors of the company may, notwithstanding that there is not a relevant change of circumstances as referred to in subsection (7), subsequently prepare Companies Act group financial statements for the company provided they have not changed to preparing Companies Act group financial statements in the period of 5 years preceding the first day of that financial year.
(6B) For the purposes of calculating the 5 year period referred to in subsection (6A), the reference to "changed to Companies Act group financial statements" shall not be read as including a reference to a change to using those financial statements which was due to a relevant change in circumstances.]
(7) There is a relevant change of circumstances where at any time during or after the first IFRS year—
(a) the company becomes a subsidiary undertaking of another undertaking that does not prepare IFRS group financial statements,
(b) the company, having re-registered as a private company limited by shares, ceases to be a company with securities admitted to trading on a regulated market in an EEA state, or
(c) a holding undertaking of the company ceases to be an undertaking with securities admitted to trading on a regulated market in an EEA state.
(8) F156[Where Companies Act group financial statements are prepared in relation to a company in accordance with subsection (6A) or (7) as the case may be], the directors of the company may subsequently prepare IFRS group financial statements for the company and F156[subsections (6), (6A) and (7)] shall apply as if the financial year for which such IFRS group financial statements are subsequently prepared was the first IFRS year.
(9) This section is subject to—
(a) F157[…]
(b) section 299 (holding company that is subsidiary undertaking of undertaking registered in EEA),
(c) section 300 (holding company that is subsidiary undertaking of undertaking registered outside EEA),
(d) section 301 (all subsidiaries excluded from consolidation), and
(e) section 302 (IFRS exemption).
Annotations
Amendments:
F151
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 19(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F152
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 19(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F153
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 19(c), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F154
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 19(d), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F155
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 16(e), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F156
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 19(f), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F157
Deleted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 19(g), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Modifications (not altering text):
C54
Application of section extended (24.06.2015) by European Union (Credit Institutions: Financial Statements) Regulations 2015 (S.I. No. 266 of 2015), reg. 5, in effect as per reg. 1(2).
Credit institution holding companies
5. (1) Section 293, as it applies by virtue of Regulation 3, of the Principal Act (obligation to prepare group financial statements) shall also apply to a holding company:
(a) which does not itself carry on any material business apart from the acquisition, management and disposal of interests in subsidiaries; and
(b) whose principal subsidiaries are wholly or mainly credit institutions.
(2) In paragraph (1)—
(a) the reference to the management of interests in subsidiaries includes a reference to the provision of services to subsidiaries; and
(b) “principal subsidiaries”, in relation to a holding company, means those subsidiaries of the company whose results or financial position would principally affect the figures shown in the group financial statements.
C55
Application of section extended (17.06.2015) by European Union (Insurance Undertakings: Financial Statements) Regulations 2015 (S.I. No. 262 of 2015), reg. 4, in effect as per reg. 1(2).
Application of section 293 (as applied by Regulation 3) of Principal Act to certain undertakings
4. (1) Section 293, as it applies by virtue of Regulation 3, of the Principal Act (obligation to prepare group financial statements) shall also apply to a holding undertaking:
(a) which does not itself carry on any material business apart from the acquisition, management and disposal of interests in subsidiaries; and
(b) whose principal subsidiaries are wholly or mainly insurance undertakings.
(2) In paragraph (1)—
(a) the reference to the management of interests in subsidiaries includes a reference to the provision of services to subsidiaries; and
(b) “principal subsidiaries”, in relation to a holding undertaking, means those subsidiaries of the undertaking whose results or financial position would principally affect the figures shown in the group financial statements.
Section 294
Companies Act group financial statements
294. (1) Companies Act group financial statements in relation to a holding company and its subsidiary undertakings included in the consolidation for any financial year of it shall comprise—
(a) a consolidated balance sheet dealing with the assets, liabilities and financial position of the holding company and its subsidiary undertakings (including those being wound up) as at the financial year end date,
(b) a consolidated profit and loss account dealing with the profit or loss of the holding company and its subsidiary undertakings (including those being wound up) for the financial year, and
(c) any other additional information required by the financial reporting framework adopted in relation to them.
(2) Companies Act group financial statements shall give a true and fair view of the assets, liabilities and financial position of the company and the undertakings included in the consolidation taken as a whole, as at the financial year end date and of the profit or loss of the company and those undertakings for the financial year so far as concerns the members of the company.
(3) Companies Act group financial statements shall comply with—
(a) F158[in the case of a holding company not qualifying for the small companies regime, the provisions of Schedule 4] as to the accounting principles to be applied, the form and content of the consolidated balance sheet and consolidated profit and loss account and the additional information to be provided by way of notes to the group financial statements,
F159[(aa) in the case of a holding company that qualifies for the small companies regime, the provisions of Schedule 4A or, if the company so elects, the provisions of Schedule 4,]
(b) applicable accounting standards, and
(c) the other provisions of this Act.
F160[(3A) Companies Act group financial statements shall state the following:
(a) the name and legal form of the holding company;
(b) the place of registration of the holding company and the number under which it is registered;
(c) the address of its registered office;
(d) where the holding company is being wound up, the information required by section 595.]
(4) Where compliance with F161[Schedule 4 or 4A, as the case may be,], applicable accounting standards and the other provisions of this Act as to the matters to be included in group financial statements (or in notes to those financial statements) would not be sufficient to give a true and fair view of the matters referred to in subsection (2), the necessary additional information shall be given in the group financial statements or a note to them.
(5) If in special circumstances compliance with any of the provisions of this Act (even if additional information were provided under subsection (4)) is inconsistent with the requirement to give a true and fair view of the matters referred to in subsection (2), the directors of the company shall depart from that provision to the extent necessary to give a true and fair view.
(6) Particulars of any departure under subsection (5), the reasons for it and its effect shall be given in a note to the financial statements.
(7) A company shall ensure—
(a) that its Companies Act group financial statements include a statement as to whether they have been prepared in accordance with applicable accounting standards and identify the standards in question, and
(b) that any material departure from those standards, the effect of the departure and the reasons for it are noted in the Companies Act group financial statements.
(8) Accounting standards are applicable to a holding company’s group financial statements if those standards are, in accordance with their terms, relevant to that company’s and its subsidiary undertakings’ circumstances and those group financial statements.
(9) If a company fails to comply with any of subsections (2) to (7), the company and any officer of it who is in default shall be guilty of a category 2 offence.
(10) In any proceedings against a person in respect of an offence under subsection (9), it shall be a defence to prove that the defendant had reasonable grounds for believing and did believe that—
(a) a competent and reliable person was charged with the duty of ensuring that the provisions of the subsection concerned were complied with, and
(b) the latter person was in a position to discharge that duty.
(11) In subsection (9) “officer” includes any shadow director and de facto director.
Annotations
Amendments:
F158
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 20(a)(i), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F159
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 20(a)(ii), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F160
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 20(c), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F161
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 20(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Modifications (not altering text):
C56
Section applied with modifications (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 13, in effect as per reg. 1(2), (3).
Application of section 294 of Principal Act
13. Section 294 of the Principal Act shall apply to a qualifying partnership as if -
(a) in subsection (1), “in relation to a holding undertaking that is a qualifying partnership” were substituted for “in relation to a holding company”, and every subsequent reference to “the holding company” in that section were read accordingly,
(b) subsections (3)(b), (7) and (8) were omitted,
(c) subsection (3A) read:
“(3A) Companies Act group financial statements shall state the following:
(a) the firm name of the qualifying partnership that is a holding undertaking;
(b) in relation to a limited partnership, the place of registration and the number under which it is registered;
(c) the address of the qualifying partnership’s principal place of business;
(d) where the qualifying partnership is being wound up under the Principal Act, the information required by section 595.”,
(d) in subsection (4), the reference to “applicable accounting standards” were omitted, and
(e) in subsection (9), “subsections (2) to (6)” were substituted for “subsections (2) to (7)”.
C57
Application of subs. (9) extended (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 42(1), (2), in effect as per reg. 1(2), (3).
Offences
42. (1) A qualifying partnership that fails to comply with any provision referred to in sections 291(9), 292(3), 294(9), 295(3), 324(6), 324(8), 355(7), 355(9), 356(5) or 1458(4) of the Principal Act as applied by these Regulations commits an offence.
(2) Where an offence under paragraph (1) is committed by a qualifying partnership and it is proved that the offence was committed with the consent or connivance, or was attributable to any wilful neglect, of a person who was -
(a) a member of the qualifying partnership,
(b) a director of such a member, or (c) a person purporting to act in either such capacity,
that person shall, as well as the qualifying partnership, be guilty of an offence and may be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
...
Section 295
IFRS group financial statements
295. (1) Where the directors of a holding company prepare IFRS group financial statements, they shall comply with all IFRS in that regard and—
(a) shall make an unreserved statement in the notes to those group financial statements that those financial statements have been prepared in accordance with international financial reporting standards, and
(b) shall ensure that those financial statements contain the additional information required by this Act, other than that F162[required by Schedules 3, 3A, 4 and 4A].
(2) For the avoidance of doubt, the requirement for group financial statements prepared in accordance with IFRS to present fairly the assets, liabilities, financial position, financial performance and cash flows is deemed to be equivalent to the true and fair view required by section 294(2).
F163[(2A) IFRS group financial statements shall state the following:
(a) the name and legal form of the holding company;
(b) the place of registration of the holding company and the number under which it is registered;
(c) the address of its registered office;
(d) where the holding company is being wound up, the information required by section 595.]
(3) If a company fails to comply with F164[subsection (1) or (2A)], the company and any officer of it who is in default shall be guilty of a category 2 offence.
(4) In any proceedings against a person in respect of an offence under subsection (3), it shall be a defence to prove that the defendant had reasonable grounds for believing and did believe that—
(a) a competent and reliable person was charged with the duty of ensuring that the provisions of the subsection concerned were complied with, and
(b) the latter person was in a position to discharge that duty.
(5) In subsection (3) “officer” includes any shadow director and de facto director.
Annotations
Amendments:
F162
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 21(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F163
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 21(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F164
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 21(c), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Modifications (not altering text):
C58
Section applied with modifications (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 14, in effect as per reg. 1(2), (3).
Application of section 295 of Principal Act
14. Section 295 of the Principal Act shall apply to a qualifying partnership as if -
(a) “partners in a holding undertaking that is a qualifying partnership” were substituted for “directors of a holding company”, and every subsequent reference to “the holding company” in that section were read accordingly, and
(b) subsection (2A) read:
“(2A) IFRS group financial statements shall state the following:
(a) the firm name of the qualifying partnership that is a holding undertaking;
(b) in relation to a limited partnership, the place of registration and the number under which it is registered;
(c) the address of the qualifying partnership’s principal place of business;
(d) where the qualifying partnership is being wound up under the Principal Act, the information required by section 595.”.
C59
Application of subs. (3) extended (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 42(1), (2), in effect as per reg. 1(2), (3).
Offences
42. (1) A qualifying partnership that fails to comply with any provision referred to in sections 291(9), 292(3), 294(9), 295(3), 324(6), 324(8), 355(7), 355(9), 356(5) or 1458(4) of the Principal Act as applied by these Regulations commits an offence.
(2) Where an offence under paragraph (1) is committed by a qualifying partnership and it is proved that the offence was committed with the consent or connivance, or was attributable to any wilful neglect, of a person who was -
(a) a member of the qualifying partnership,
(b) a director of such a member, or (c) a person purporting to act in either such capacity,
that person shall, as well as the qualifying partnership, be guilty of an offence and may be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
...
Section 296
Consistency of financial statements
296. (1) Subject to the provisions of this section, the directors of a holding company shall ensure that the entity financial statements of—
(a) the holding company, and
(b) each of the subsidiary undertakings of the holding company,
are prepared using the same financial reporting framework, except to the extent that, in their opinion, there are good reasons for not doing so, and those reasons are disclosed in the entity financial statements of the holding company.
(2) As respects financial statements of subsidiary undertakings, subsection (1) only applies to entity financial statements of subsidiary undertakings that are required to be prepared under this Act.
(3) Subsection (1) does not apply—
(a) where the directors do not prepare group financial statements for the holding company, or
(b) to the financial statements of undertakings which do not trade for the acquisition of gain by the members.
(4) Where the directors of the holding company prepare IFRS group financial statements and IFRS entity financial statements for the holding company, subsection (1) shall have effect as if paragraph (a) of it were omitted.
CHAPTER 5
Group financial statements: exemptions and exclusions
Section 297
Exemption from consolidation: size of group
297. F165[…]
Annotations
Amendments:
F165
Repealed (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 3(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Editorial Notes:
E77
Previous affecting provision: application of section restricted (24.06.2015) by European Union (Credit Institutions: Financial Statements) Regulations 2015 (S.I. No. 266 of 2015), reg. 8, in effect as per reg. 1(2).
E78
Previous affecting provision: application of Part restricted (17.06.2015) by European Union (Insurance Undertakings: Financial Statements) Regulations 2015 (S.I. No. 262 of 2015), reg. 6, in effect as per reg. 1(2).
Section 298
Application of section 297 in certain circumstances and cessation of exemption
298. F166[…]
Annotations
Amendments:
F166
Deleted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 3(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Editorial Notes:
E79
Previous affecting provision: application of section restricted (24.06.2015) by European Union (Credit Institutions: Financial Statements) Regulations 2015 (S.I. No. 266 of 2015), reg. 8, in effect as per reg. 1(2).
E80
Previous affecting provision: application of Part restricted (17.06.2015) by European Union (Insurance Undertakings: Financial Statements) Regulations 2015 (S.I. No. 262 of 2015), reg. 6, in effect as per reg. 1(2).
Section 299
Exemption from consolidation: holding company that is subsidiary undertaking of undertaking registered in EEA
299. (1) Subject to subsection (4), a holding company is exempt from the requirement to prepare group financial statements if that holding company (the “lower holding company”) is itself a subsidiary undertaking and its holding undertaking is established under the laws of an EEA state and one or other of the following cases applies.
(2) Those cases are—
(a) the lower holding company is a wholly owned subsidiary of that other holding undertaking,
F167[(aa) that other holding undertaking holds more than 90 per cent of the shares in the lower holding company and the remaining shareholders in, or members of, the lower holding company have approved the exemption,]
(b) that other holding undertaking holds F168[more than 50 per cent but not more than 90 per cent] of the shares in the lower holding company and notice requesting the preparation of group financial statements has not been served on the lower holding company by shareholders holding in aggregate—
(i) more than half of the remaining shares in the lower holding company, or
(ii) 5 per cent or more of the total shares in the lower holding company.
(3) The notice referred to in subsection (2)(b) shall be served on the lower holding company not later than 6 months after the end of the financial year before that to which it relates.
(4) Subsection (1) shall not apply unless the following conditions are satisfied—
(a) the lower holding company is included in consolidated accounts for a larger group drawn up to the same date, or to an earlier date in the same financial year, by a holding undertaking established under the laws of an EEA state,
(b) those accounts are drawn up and audited and the group’s consolidated annual report is drawn up in accordance with—
F169[(i) the provisions of the F170[Accounting Directive, other than the requirements laid down in Article 29a of that Directive], or]
(ii) international financial reporting standards,
(c) the lower holding company F169[discloses in the notes to its entity financial statements] that it is exempt from the obligation to prepare and deliver group financial statements,
(d) the lower holding company states in its entity financial statements the name of the holding undertaking which draws up the consolidated accounts referred to in paragraph (a) and—
F169[(i) the address of the holding undertaking’s registered office or, where the holding undertaking is incorporated outside the State, the registered office (howsoever described) of the undertaking in the country in which it is incorporated, or]
(ii) if the holding undertaking is unincorporated, the address of its principal place of business,
and
(e) the lower holding company delivers to the Registrar, within the period allowed for delivering its entity financial statements, copies of—
(i) the holding undertaking’s consolidated accounts, and
(ii) the consolidated annual report,
together with the auditors’ report on them.
(5) Shares held by directors of the lower holding company for the purpose of complying with any share qualification requirement shall be disregarded in determining for the purposes of subsection (2)(a) whether the company is a wholly owned subsidiary of another.
(6) F171[For the purposes of paragraphs (aa) and (b) of subsection (2)], shares held by a wholly owned subsidiary of the first-mentioned undertaking in that paragraph, or held on behalf of that undertaking or its wholly owned subsidiary, shall be attributed to that undertaking.
(7) Without prejudice to the construction provided in subsection (8) for the expression “consolidated annual report”, references in this section to—
(a) an undertaking established under the laws of an EEA State,
(b) consolidated accounts prepared by such an undertaking, and
(c) other relevant matters in that regard,
shall, in a case where the undertaking is a company registered under this Act or an existing company, be read, respectively, as references to—
(i) the company so registered or the existing company, as the case may be,
(ii) group financial statements prepared by the company, and
(iii) the matters provided by, or referred to in, this Part or any other enactment that correspond to those relevant matters.
F172[(8) In this section, "consolidated annual report" means the report prepared by management of the group in accordance with the Accounting Directive and is equivalent to the expression "directors’ report" as used in this Part.]
Annotations
Amendments:
F167
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 22(a)(i), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F168
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 22(a)(ii), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F169
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 22(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F170
Substituted (6.07.2024) by European Union (Corporate Sustainability Reporting) Regulations 2024 (S.I. No. 336 of 2024), reg. 3, in effect as per reg. 1(2).
F171
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 22(c), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F172
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 22(d), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 300
Exemption from consolidation: holding company that is subsidiary undertaking of undertaking registered outside EEA
300. (1) Subject to subsection (4), a holding company is exempt from the requirement to prepare group financial statements if the holding company (the “lower holding company”) is itself a subsidiary undertaking and its holding undertaking is not established under the laws of an EEA state and one or other of the following cases applies.
(2) Those cases are—
(a) the lower holding company is a wholly owned subsidiary of that other holding undertaking,
F173[(aa) that other holding undertaking holds more than 90 per cent of the shares in the lower holding company and the remaining shareholders in, or members of, the lower holding company have approved the exemption,]
(b) that other holding undertaking holds F174[more than 50 per cent but not more than 90 per cent] of the shares in the lower holding company and notice requesting the preparation of group financial statements has not been served on the lower holding company by shareholders holding in aggregate—
(i) more than half of the remaining shares in the lower holding company, or
(ii) 5 per cent or more of the total shares in the lower holding company.
(3) The notice referred to in subsection (2)(b) shall be served not later than 6 months after the end of the financial year before that to which it relates.
(4) Subsection (1) shall not apply unless the following conditions are satisfied:
(a) the lower holding company and all of its subsidiary undertakings are included in consolidated accounts for a larger group drawn up to the same date, or to an earlier date in the same financial year, by a holding undertaking;
F175[(b) those accounts and, where appropriate, the group’s consolidated annual report are drawn up—
(i) in accordance with the F176[Accounting Directive, other than the requirements laid down in Article 29a of that Directive],
(ii) in a manner equivalent to consolidated accounts and consolidated reports so drawn up,
(iii) in accordance with international financial reporting standards, or
(iv) in accordance with accounting standards of third countries determined as equivalent to international financial reporting standards pursuant to Commission Regulation (EC) No. 1569/2007 of 21 December 20073 establishing a mechanism for the determination of equivalence of accounting standards applied by third country issuers of securities pursuant to Directives 2003/71/EC and 2004/109/EC of the European Parliament and of the Council;]
(c) the consolidated accounts are audited by one or more persons authorised to audit accounts under the laws under which the holding undertaking which draws them up is established;
(d) the lower holding company F177[discloses in the notes to its entity financial statements] that it is exempt from the obligation to prepare and deliver group financial statements;
(e) the lower holding company states in its entity financial statements the name of the holding undertaking which draws up the consolidated accounts referred to in paragraph (a) and—
F177[(i) the address of the holding undertaking’s registered office and, where the holding undertaking is incorporated outside the State, the registered office (howsoever described) of the undertaking in the country in which it is incorporated, or]
(ii) if the holding undertaking is unincorporated, the address of its principal place of business;
and
(f) the lower holding company delivers to the Registrar, within the period allowed for delivering its entity financial statements, copies of—
(i) the other holding undertaking’s consolidated accounts, and
(ii) where appropriate, the consolidated annual report,
together with the auditors’ report on them.
(5) Shares held by directors of the lower holding company for the purpose of complying with any share qualification requirement shall be disregarded in determining for the purposes of subsection (2)(a) whether the company is a wholly owned subsidiary of another.
(6) F178[For the purposes of paragraphs (aa) and (b) of subsection (2)], shares held by a wholly owned subsidiary of the first-mentioned undertaking in that paragraph, or held on behalf of that undertaking or its wholly owned subsidiary, shall be attributed to that undertaking.
F179[(7) In this section, "consolidated annual report" means—
(a) the report prepared by management of the group in accordance with the Accounting Directive, or
(b) the report prepared by management of the group in a manner equivalent to consolidated reports referred to in subsection (4)(b) (ii),
and, in either case, is equivalent to the expression "directors’ report" as used in this Part.]
Annotations
Amendments:
F173
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 23(a)(i), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F174
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 23(a)(ii), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F175
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 23(b)(i), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F176
Substituted (6.07.2024) by European Union (Corporate Sustainability Reporting) Regulations 2024 (S.I. No. 336 of 2024), reg. 4, in effect as per reg. 1(2).
F177
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 23(b)(ii), (iii), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F178
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 23(c), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F179
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 23(d), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 301
Exemption from consolidation: holding company with all of its subsidiary undertakings excluded from consolidation
301. A holding company is exempt from the requirement to prepare group financial statements if, by virtue of section 303(2) or (3), all of its subsidiary undertakings could be excluded from the consolidation in Companies Act group financial statements.
Section 302
Exemption from consolidation where IFRS so permits
302. A holding company that prepares IFRS financial statements is exempt from the requirement to prepare group financial statements in the circumstances provided, and subject to compliance with the conditions in that behalf specified, in IFRS.
Section 303
Subsidiary undertakings included in the group financial statements
303. (1) In the case of Companies Act group financial statements, all of the subsidiary undertakings of the holding company shall be consolidated in the group financial statements, but this is subject to the exceptions authorised by the subsequent provisions of this section.
(2) A subsidiary undertaking may be excluded from consolidation in Companies Act group financial statements if its inclusion is not material for the purposes of giving a true and fair view; but 2 or more undertakings may be excluded only if they are not material, for those purposes, taken together.
(3) In addition, a subsidiary undertaking may be excluded from consolidation in Companies Act group financial statements where—
(a) severe long-term restrictions substantially hinder the exercise of the rights of the holding company over the assets or management of that subsidiary undertaking, or
(b) F180[in extremely rare cases, the information necessary] for the preparation of group financial statements in accordance with this Part cannot be obtained without disproportionate expense or undue delay, or
(c) the interest of the holding company is held exclusively with a view to subsequent resale.
(4) The reference in subsection (3)(a) to the rights of the holding company and the reference in subsection (3)(c) to the interest of the holding company are, respectively, to rights and interest held by or attributed to the holding company for the purposes of section 7 (definition of subsidiary) in the absence of which it would not be the holding company.
Annotations
Amendments:
F180
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 24, S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 304
Treatment of entity profit and loss account where group financial statements prepared
304. (1) Subject to subsection (3), subsection (2) applies with respect to the entity profit and loss account of a holding company where—
(a) F181[the company is required to prepare or elects to prepare (and, accordingly, does prepare)] group financial statements in accordance with this Act, and
(b) F181[the company’s entity balance sheet shows] the company’s profit or loss for the financial year determined in accordance with this Act.
(2) F181[The entity profit and loss account together with, in the case of a company which elects to apply the small companies regime, the information specified in paragraphs 52 and 53 of Schedule 3A, and in the case of all other companies the information specified in paragraphs 59 to 63 of Schedule 3] (information supplementing the profit and loss account) or equivalent information required by IFRS shall be approved in accordance with section 324 (approval by board of directors) but may be omitted from the company’s entity financial statements for the purposes of section 338 (circulation of financial statements), and shall also be exempt from the requirements of—
(a) section 339 (right of members to demand copies of financial statements),
(b) section 341 (financial statements to be laid before members), and
(c) section 347 (documents to be annexed to annual return).
(3) Subsection (2) does not apply unless the fact that it has been availed of is disclosed in the entity financial statements published with the group financial statements.
Annotations
Amendments:
F181
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 25, S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
CHAPTER 6
Disclosure of directors’ remuneration and transactions
Section 305
Disclosure of directors’ remuneration
305. (1) F182[Subject to subsection (14), the notes to the statutory financial statements] of a company shall disclose both for the current and the preceding financial year the following amounts in relation to directors of the company (and that expression includes the one or more persons who, at any time during the financial year concerned, were directors of it)—
(a) the aggregate amount of emoluments paid to or receivable by directors in respect of qualifying services,
(b) the aggregate amount of the gains by the directors on the exercise of share options during the financial year,
(c) the aggregate amount of the money or value of other assets, including shares but excluding share options, paid to or receivable by the directors under long term incentive schemes in respect of qualifying services,
(d) the aggregate amount of any contributions paid, treated as paid, or payable during the financial year to a retirement benefit scheme in respect of qualifying services of directors, identifying separately the amounts relating to—
(i) defined contribution schemes, and
(ii) defined benefit schemes,
and in each case showing the number of directors, if any, to whom retirement benefits are accruing under such schemes in respect of qualifying services,
(e) the aggregate amount of any compensation paid or payable to directors in respect of loss of office or other termination payments in the financial year.
(2) F183[Subject to subsection (14), the notes to the statutory financial statements] of a company shall disclose both for the current and the preceding financial year the following amounts in relation to the one or more persons who are past directors of it or past directors of its holding undertaking—
(a) the aggregate amount paid or payable for such directors’ retirement benefits,
(b) the aggregate amount of any compensation paid or payable to such directors in respect of loss of office or other termination benefits.
(3) In this section “qualifying services”, in relation to any person, means his or her services as a director of the company and his or her services, while director of the company, as director of any of its subsidiary undertakings or otherwise in connection with the management of the affairs of the company or any of its subsidiary undertakings.
(4) For the purpose of subsection (1)(a), “emoluments”, in relation to a director, includes salaries, fees and percentages, bonuses, any sums paid by way of expenses allowance in so far as those sums are chargeable to income tax, and, subject to subsection (5), the estimated money value of any other benefits received by him or her otherwise than in cash.
(5) However, for the purpose of subsection (1)(a), “emoluments”, in relation to a director, does not include—
(a) the value of any share options granted to him or her or gains made by him or her on the exercise of share options,
(b) any contributions paid, treated as paid or payable in respect of him or her to a retirement benefit scheme or any benefits to which he or she is entitled from such a scheme,
(c) any money or other assets paid to or receivable by him or her under any long term incentive scheme.
(6) In subsections (1)(b) and (c) and (5)(a)—
“shares” means quoted shares (that is to say shares quoted on any securities or other market referred to in section 1072) or shares that are redeemable in cash or puttable in cash;
F184["share options" means options over quoted shares or shares that are redeemable in cash or puttable in cash.]
(7) In subsection (1)(c), “long term incentive scheme” means any agreement or arrangement under which money or other assets may become receivable by a director and which includes one or more qualifying conditions with respect to services or performance which cannot be fulfilled within a single financial year; and for this purpose the following shall be disregarded:
(a) bonuses the amount of which falls to be determined by reference to service or performance within a single year;
(b) compensation for loss of office and other termination payments; and
(c) retirement benefits.
(8) The amount to be shown for the purpose of subsection (2)(a) shall not include any retirement benefits paid or receivable under a retirement benefit scheme if the scheme is such that the contributions under it are substantially adequate for the maintenance of the scheme.
(9) However the amount to be so shown shall include any retirement benefits paid or receivable in respect of any qualifying services of a past-director of the company, whether to or by him or her, on his or her nomination or by virtue of dependence on or other connection with him or her, to or by any other person.
(10) The amount to be shown for the purpose of subsection (2)(a) shall distinguish between retirement benefits in respect of services as director, whether of the company or its subsidiary undertakings, and other retirement benefits.
(11) For the purposes of this section—
“contribution”, in relation to a retirement benefit scheme, means any payment (including an insurance premium) made for the purposes of the scheme by or in respect of persons rendering services in respect of which retirement benefits will or may become payable under the scheme, except that it does not include any payment in respect of 2 or more persons if the amount paid in respect of each of them is not ascertainable;
“retirement benefits” includes any pension, superannuation allowance, superannuation gratuity or similar payment;
“retirement benefit scheme” means a scheme for the provision of retirement benefits in respect of services as director or otherwise which is maintained in whole or in part by means of contributions.
(12) The amounts to be shown for the purpose of subsections (1)(e) and (2)(b)—
(a) shall include any sums paid to or receivable by a director or past director—
(i) by way of compensation for loss of office or other termination payment as director of the company,
(ii) while director of the company, or on or in connection with his or her ceasing to be a director of the company, by way of—
(I) compensation for loss of any other office in connection with the management of the company’s affairs or other termination payment in respect of such office, or
(II) compensation for loss of office or other termination payment as director or otherwise in connection with the management of the affairs of any of its subsidiary undertakings,
and
(b) shall distinguish between compensation or termination payments in respect of the office of director, whether of the company or of its subsidiary undertakings, and compensation or termination payments in respect of other offices,
and, for the purposes of this section, references to termination payments include references to sums paid or payable as consideration for or in connection with a person’s retirement from office.
(13) The amounts to be shown for the purpose of subsections (1) and (2)—
(a) shall include all relevant sums paid by or receivable from—
(i) the company,
(ii) the company’s subsidiary undertakings,
(iii) any holding undertaking of the company, and
(iv) any other person,
except sums to be accounted for to the company or any of its subsidiary undertakings or, by virtue of section 253, to past or present members of the company or any of its subsidiary undertakings or any class of those members, and
(b) shall distinguish, in the case of the amount to be shown for the purpose of subsection (1)(e) or (2)(b), between the sums respectively paid by or receivable from the company, the company’s subsidiary undertakings, any holding undertaking of the company and any other persons.
F185[(14) A company that qualifies for the micro companies regime shall be exempt from the requirements of this section.]
Annotations
Amendments:
F182
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 26(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F183
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 26(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F184
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 26(c), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F185
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 26(d), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 305A
F186[Payments to third parties for services of directors
305A. (1) Subject to subsection (3), the notes to the statutory financial statements of a company shall disclose, both for the current and the preceding financial year, the aggregate amount of any consideration paid to, or receivable by, third parties for making available the services of any person—
(a) as a director of the company,
(b) as director of any of its subsidiary undertakings, or
(c) otherwise in connection with the management of the company’s affairs or any of its subsidiary undertakings.
(2) The amount to be shown for the purposes of subsection (1) shall—
(a) include all relevant sums paid by or receivable from—
(i) the company,
(ii) the company’s subsidiary undertakings,
(iii) any holding undertaking of the company, and
(iv) any other person,
and
(b) distinguish between the sums respectively paid by, or receivable from, the company, the company’s subsidiary undertakings, any holding undertaking of the company and any other persons.
(3) A company that qualifies for the micro companies regime shall be exempt from the requirements of this section.
(4) For the purposes of subsection (1)—
(a) (i) the reference to "consideration" includes benefits otherwise than in cash and the reference to "the aggregate amount" is to the estimated monetary value of the benefits, and
(ii) the nature of any such consideration referred to in subparagraph (i) shall be disclosed,
and
(b) the reference to "third parties" means a person other than—
(i) the director or a person connected with that director,
(ii) a body corporate controlled by that director, or
(iii) the company or any of its subsidiary undertakings.]
Annotations
Amendments:
F186
Inserted (9.06.2017) by Companies (Accounting) Act (9/2017), s. 27, S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Modifications (not altering text):
C60
Application of section restricted (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 15, in effect as per reg. 1(2), (3).
Non-application of certain provisions of Principal Act
15. Sections 281 to 286, 305A, 312, 318, 319, 325(1)(c), (d) and (e), 326(1)(c) and (d) and (2)(d), 328, 338, 339, 341, 375, 381 to 385, 392, 396 to 398, 401 and 402 of the Principal Act shall not apply to a qualifying partnership.
Section 306
Supplemental provisions in relation to section 305
F187[306. (1) The amounts to be shown for the purpose of section 305 in relation to a director shall include all amounts paid or payable to a person connected with a director within the meaning of section 220.
(2) The amounts to be shown for the purpose of section 305 for any financial year shall be the sums receivable in respect of that year, whenever paid, or, in the case of sums not receivable in respect of a period, the sums paid during that year, so, however, that where—
(a) any sums are not shown in the statutory financial statements for the relevant financial year on the ground that the person receiving them is liable to account for them as mentioned in subsection (13)(a) of section 305, but the liability is thereafter wholly or partly released or is not enforced within a period of 2 years, or
(b) any sums paid by the way of expenses allowance are chargeable to income tax after the end of the relevant financial year,
those sums shall, to the extent to which the liability is released or not enforced or they are chargeable as so mentioned, as the case may be, be shown in the first statutory financial statements in which it is practicable to show them and shall be distinguished from the amounts to be shown in those statements apart from this provision.
(3) Where it is necessary to do so for the purpose of making any distinction required by sections 305, 305A or this section in any amount to be shown for the purpose of any one of those sections, the directors may apportion any payments between the matters in respect of which they have been paid or which are receivable or have been paid or are payable to third parties in such manner as they think appropriate.
(4) If, in the case of any statutory financial statements, the requirements of section 305, 305A or this section are not complied with, it shall be the duty of the statutory auditors of the company by whom the statutory financial statements are examined to include in the report on those statements, so far as they are reasonably able to do so, a statement giving the required particulars.
(5) In sections 305 and 305A, any reference to a company’s subsidiary undertaking—
(a) in relation to a person who is or was, while a director of the company, a director also, by virtue of the company’s nomination, direct or indirect, of any other body corporate, shall, subject to paragraph (b), include that body corporate, whether or not it is or was in fact the company’s subsidiary undertaking, and
(b) shall—
(i) for the purpose of subsections (3) to (6) and (8) to (10) of section 305, be taken as referring to a subsidiary undertaking at the time the services were rendered, and, for the purpose of subsection (12) of that section, be taken as referring to a subsidiary undertaking immediately before the loss of office as director of the company, and
(ii) for the purpose of subsection (1) of section 305A, be taken as referring to a subsidiary undertaking at the time the services were rendered.
(6) In sections 305 and 305A and this section, "director" includes any shadow director and de facto director.]
Annotations
Amendments:
F187
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 28, S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 307
Obligation to disclose information about directors’ benefits: loans, quasi-loans, credit transactions and guarantees
307. (1) Subject to sections 308 and 309, the entity financial statements of a company shall disclose, both for the current and the preceding financial year, in the notes to the statements the particulars specified in subsection (3), (4), (5), (6) or (7), as appropriate, of—
(a) loans, quasi-loans and credit transactions entered into by the company with or for its directors, directors of its holding undertaking or persons connected with such directors,
(b) any agreement by the company to enter into any loans, quasi-loans and credit transactions with or for its directors, directors of its holding undertaking or persons connected with such directors,
(c) guarantees entered into and security provided by the company on behalf of its directors, directors of its holding undertaking or persons connected with such directors in connection with a loan, quasi-loan or credit transaction entered into with or for those directors or other persons,
(d) any agreement by the company to enter into guarantees or provide any security on behalf of its directors, directors of its holding undertaking or persons connected with such directors in connection with a loan, quasi-loan or credit transaction entered into with or for those directors or other persons, and
(e) any of the following arrangements made by the company or which it takes part in, namely—
(i) an assignment to it, or an assumption by it, of any rights, obligations or liabilities under a transaction which, if it had been entered into by the company, would have fallen into any of the preceding paragraphs,
(ii) an arrangement under which—
(I) another person enters into a transaction which, if it had been entered into by the company, would have fallen into any of the preceding paragraphs or subparagraph (i), and
(II) that other person, in pursuance of the arrangement, has obtained or is to obtain any benefit from the company or its holding undertaking or a subsidiary undertaking of the company or its holding undertaking.
(2) Subject to sections 308 and 309, the group financial statements of a holding company shall disclose, both for the current and the preceding financial year, in the notes to the statements the particulars specified in subsection (3), (4), (5), (6) or (7), as appropriate, of—
(a) loans, quasi-loans and credit transactions entered into by the company or any of its subsidiary undertakings with or for its directors, directors of its holding undertaking or persons connected with such directors,
(b) any agreement by the company or any of its subsidiary undertakings to enter into any loans, quasi-loans and credit transactions with or for its directors, directors of its holding undertaking or persons connected with such directors,
(c) guarantees entered into and security provided by the company or any of its subsidiary undertakings on behalf of its directors, directors of its holding undertaking or persons connected with such directors in connection with a loan, quasi-loan or credit transaction entered into with or for those directors or other persons,
(d) any agreement by the company or any of its subsidiary undertakings to enter into guarantees or provide any security on behalf of its directors, directors of its holding undertaking or persons connected with such directors in connection with a loan, quasi-loan or credit transaction entered into with or for those directors or other persons, and
(e) any of the following arrangements made by the company or any of its subsidiary undertakings or which it or any of them takes part in, namely:
(i) an assignment to the company or the subsidiary undertaking, or an assumption by the company or the subsidiary undertaking, of any rights, obligations or liabilities under a transaction which, if it had been entered into by the company or undertaking, would have fallen into any of the preceding paragraphs;
(ii) an arrangement under which—
(I) another person enters into a transaction which, if it had been entered into by the company or the subsidiary undertaking (each of which is referred to in clause (II) as a “relevant entity”), would have fallen into any of the preceding paragraphs or subparagraph (i), and
(II) that other person, in pursuance of the arrangement, has obtained or is to obtain any benefit from—
(A) if the relevant entity is the company — the company or its holding undertaking or a subsidiary undertaking of the company or its holding undertaking,
(B) if the relevant entity is the subsidiary undertaking — the subsidiary undertaking or its holding undertaking or a subsidiary undertaking of the first-mentioned subsidiary undertaking or its holding undertaking.
(3) The particulars mentioned in subsections (1) and (2) in respect of arrangements comprising loans, quasi-loans or credit transactions referred to in paragraph (a) of either subsection are, separately for each director or other person—
(a) the name of the person for whom the arrangements were made and where that person is or was connected with a director of the company or undertaking, the name of the director,
(b) the value of the arrangements at the beginning and end of the financial year,
(c) advances made under the arrangements during the financial year,
(d) amounts repaid under the arrangements during the financial year,
(e) the amounts of any allowance made during the financial year in respect of any failure or anticipated failure by the borrower to repay the whole or part of the outstanding amount,
(f) F188[amounts outstanding under the arrangements waived] during the financial year,
(g) an indication of the interest rate, and
(h) the arrangements’ other main conditions.
(4) The particulars mentioned in subsections (1) and (2) in respect of an agreement to enter into loans, quasi-loans or credit transactions referred to in paragraph (b) of either subsection are, separately for each director or other person—
(a) the name of the person for whom the agreement was made and where that person is or was connected with a director of the company or undertaking, the name of the director,
(b) the value of the arrangements agreed to,
(c) an indication of the interest rate, and
(d) the agreement’s other main conditions.
(5) The particulars mentioned in subsections (1) and (2) in respect of arrangements comprising guarantees entered into or security provided in connection with a loan, quasi-loan or credit transaction referred to in paragraph (c) of either subsection are, separately for each director or other person—
(a) the name of the person for whom the arrangements were made and where that person is or was connected with a director of the company or the undertaking, the name of the director,
(b) the amount of the maximum liability that may be incurred by the company (or any of its subsidiary undertakings),
(c) any amount paid and any liability incurred by the company (or any of its subsidiary undertakings) for the purpose of fulfilling the guarantee or on foot of the provision of security (including any loss incurred by reason of enforcement of the guarantee or loss of the security), and
(d) the arrangements’ main terms.
(6) The particulars mentioned in subsections (1) and (2) in respect of agreements to enter into guarantees or provide security in connection with a loan, quasi-loan or credit transaction referred to in paragraph (d) of either subsection are, separately for each director or other person—
(a) the name of the person for whom the agreement was made and where that person is or was connected with a director of the company or the undertaking, the name of the director,
(b) the amount of the maximum liability that may be incurred by the company (or any of its subsidiary undertakings), and
(c) the agreement’s main terms.
(7) The particulars mentioned in subsections (1) and (2) in respect of an arrangement referred to in paragraph (e) of either subsection are—
(a) in the case of an arrangement referred to in subparagraph (i) or (ii) of that paragraph (e), whichever of the particulars specified in any of subsections (3) to (6) would have to be disclosed if the arrangement had fallen into a preceding paragraph of subsection (1) or, as the case may be, subsection (2) or (in the case of an arrangement referred to in subparagraph (ii) of that paragraph (e)) subparagraph (i) of that paragraph (e), and
(b) in addition -in the case of an arrangement referred to in subparagraph (ii) of that paragraph (e) -the amount of the benefit referred to in that subparagraph obtained or to be obtained by the other person referred to therein.
(8) There shall also be stated, both for the current and the preceding financial year in the notes to the financial statements (whether entity or group financial statements)—
(a) the total of the amounts stated for the purposes of paragraphs (b) to (f) of subsection (3) (that is to say a separate total for the amounts stated for each of those paragraphs),
(b) the total of the amounts stated for the purposes of paragraphs (b) and (c) of subsection (5) (that is to say a separate total for the amounts stated for each of those paragraphs), and
(c) the amounts stated for the purposes of subsection (3)(b) expressed as a percentage of the net assets of the company at the beginning and end of the financial year.
(9) The disclosure required by subsection (8) is extended by section 308(5) to (8), in the manner specified in those provisions, to persons who are officers (but not directors) of the company, holding undertaking or subsidiary undertaking concerned.
(10) Where at any time during the financial year the aggregate of the amounts outstanding under all arrangements of the type referred to in subsections (3)(f) and (5)(b) amount to more than 10 per cent of the net assets of the company, the aggregate amount shall be stated and the percentage of net assets that the total represents.
Annotations
Amendments:
F188
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 29, S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 308
Supplemental provisions in relation to section 307 (including certain exemptions from its terms)
308. (1) References in section 307 and this section to a director of the company or the undertaking are references to the person who was a director of the company or the undertaking at any time in the financial year to which the financial statements relate (or, as the case may be, the preceding financial year) and “director” in those sections includes any shadow director and de facto director.
(2) The requirements of section 307 apply in relation to every loan, quasi-loan, credit transaction or guarantee or agreement referred to in that section subsisting at any time in the financial year to which the financial statements relate (or, as the case may be, the preceding financial year)—
(a) whenever it was entered into,
(b) whether or not the person concerned was a director of the company or the undertaking in question at the time it was entered into,
(c) in the case of an arrangement entered into involving a subsidiary undertaking of that company, whether or not that undertaking was a subsidiary undertaking at the time it was entered into, and
(d) whether or not the transaction or agreement was prohibited by section 239.
(3) The requirements of section 307(1) to (8) do not apply in relation to an individual director and persons connected with him or her if the aggregate value of all agreements, transactions and arrangements referred to in section 307(1) and (2) did not, at any time during the financial year, exceed €7,500 for that director and those persons.
(4) Where a holding company avails itself of an exemption under this Part from the requirement to prepare group financial statements in relation to any financial year, section 307(2) shall have effect in relation to the company and that financial year as if “entity financial statements” were substituted for “group financial statements”.
(5) In addition to, and not in derogation from any of its requirements in relation to directors, subsection (8) of section 307 applies, subject to subsection (3) and section 310, to persons who are officers (but not directors) of the company, holding company or subsidiary undertaking concerned and, accordingly operates, with respect to such officers, to require to be disclosed, both for the current and the preceding financial year, in the notes to the financial statements (whether entity or group financial statements) the matters mentioned in that subsection, but separately from the disclosures under it in respect of directors.
(6) For the purposes of that application, the following provisions of section 307 and this section have effect subject to the following modifications:
(a) the references in section 307(1) and (2) to directors are to be read as references to officers (not being directors) of the company, holding undertaking or subsidiary undertaking concerned;
(b) subsection (3)(b) to (f) and subsection (5)(b) and (c) of section 307 are to be read as if they applied to officers (not being directors) of the company, holding undertaking or subsidiary undertaking concerned;
(c) the following references to director in this section, namely, the first and second references to director in subsection (1) and each such reference in subsections (2) and (3), are to be read as references to an officer who is not a director.
(7) The operation of subsection (8) of section 307, as applied by virtue of subsections (5) and (6), also requires the number of officers mentioned in subsection (5), arrangements in respect of whom are the subject of the matters disclosed pursuant to that subsection (8), as so applied, to be stated in the notes to the financial statements concerned.
(8) For the purposes of section 307 and this section—
(a) “quasi-loan”, “credit transaction”, “guarantee” and “value of the arrangement” have the meanings given to them by section 219,
(b) section 220 shall apply in determining whether a person is connected with a director or not,
(c) section 219(7) shall apply in determining whether or not a transaction or arrangement is made for a person.
Section 309
Other arrangements and transactions in which the directors, etc., have material interest
309. (1) F189[Subject to subsection (1A) and section 310], the entity financial statements of a company shall disclose, both for the current and the preceding financial year, in the notes to the statements the particulars specified in subsection (3) of any other arrangement or transaction not dealt with by section 305, 307 or 308 entered into by the company in which a person, who at any time during the financial year was a director, a director of its holding undertaking or a person connected with such a director, had, directly or indirectly, a material interest.
F190[(1A) A company that qualifies for the micro companies regime shall be exempt from the requirements of subsection (1).]
(2) Subject to section 310, the group financial statements of a holding company shall disclose, both for the current and the preceding financial year, in the notes to the statements the particulars specified in subsection (3) of any other arrangement or transaction not dealt with by section 305, 307 or 308 entered into by the company or any of its subsidiary undertakings in which a person, who at any time during the financial year was a director, a director of its holding undertaking or a person connected with such a director, had, directly or indirectly, a material interest.
(3) The particulars mentioned in subsections (1) and (2) are—
(a) particulars of the principal terms of the arrangement or transaction,
(b) the name of the director or other person with the material interest, and
(c) the nature of the interest.
(4) For the purposes of subsections (1) and (2)—
(a) an arrangement or transaction between a company and a director of the company or of its holding undertaking or a person connected with such a director shall (if it would not otherwise be so treated) be treated as an arrangement or transaction in which that director is interested, and
(b) an interest in such an arrangement or transaction is not material if in the opinion of the majority of the directors (other than that director) of the company which is preparing the financial statements in question it is not material (but without prejudice to the question whether or not such an interest is material in any case where those directors have not considered the matter).
(5) Subsections (1) and (2) do not apply in relation to the following arrangements or transactions—
(a) an arrangement or transaction between one company and another in which a director of the first company or of its subsidiary undertaking or holding undertaking is interested only by virtue of his or her being a director of the other,
(b) a contract of service between a company and one of its directors or a director of its holding undertaking or between a director of a company and any of that company’s subsidiary undertakings, and
(c) an arrangement or transaction which was not entered into during the financial year concerned and which did not subsist at any time during that year.
(6) Subsections (1) and (2) do not apply to any arrangement or transaction with a company or any of its subsidiary undertakings in which a director of the company or of its holding undertaking, or a person connected with such a director, had, directly or indirectly, a material interest if—
(a) the value of each arrangement or transaction in which that director or other person had, directly or indirectly, a material interest and which was made after the commencement of the financial year with the company or any of its subsidiary undertakings, and
(b) the value of each such arrangement or transaction which was made before the commencement of the financial year less the amount (if any) by which the liabilities of the person for whom the arrangement or transaction was made have been reduced,
did not at any time during the financial year exceed in the aggregate €5,000 or, if more, did not exceed €15,000 or one per cent of the value of the net assets of the company preparing the entity or group financial statements, whichever is the less.
(7) Where a holding company avails itself of an exemption under this Part from the requirement to prepare group financial statements in relation to any financial year, subsection (2) shall have effect in relation to the company and that financial year as if “entity financial statements” were substituted for “group financial statements”.
(8) For the purposes of this section—
(a) section 220 shall apply in determining whether a person is connected with a director or not,
(b) “arrangement” includes an agreement, and
(c) “director” includes any shadow director and de facto director.
Annotations
Amendments:
F189
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 30(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F190
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 30(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 310
Credit Institutions: exceptions to disclosure by holding company under sections 307 to 309 in the case of connected persons and certain officers
310. (1) As respects any financial statements prepared by any company which is the holding company of a credit institution the requirements of section 307 do not apply in relation to any of the following to which the credit institution is a party, namely:
(a) a loan, quasi-loan or other transaction referred to in section 307(1)(a) or (2)(a) entered into with or for a person connected with a director of that holding company or institution;
(b) an agreement referred to in section 307(1)(b) or (2)(b) to enter into a loan, quasi-loan or other transaction referred to in that provision with or for a person connected with a director of that holding company or institution;
(c) a guarantee entered into or security provided as mentioned in section 307(1)(c) or (2)(c) on behalf of a person connected with any of the directors referred to in that provision (being any of the directors of the holding company or institution) in connection with a loan, quasi-loan or credit transaction entered into with or for such a person so connected;
(d) an agreement as mentioned in section 307(1)(d) or (2)(d) to enter into a guarantee or provide security on behalf of a person connected with any of the directors mentioned in that provision (being any of the directors of the holding company or institution) in connection with a loan, quasi-loan or credit transaction entered into with or for such a person so connected; or
(e) an arrangement referred to in subparagraph (i) or (ii) of section 307(1)(e) or (2)(e) where the transaction referred to in that subparagraph (that is to say, a transaction that, if it had been made by the institution, would have fallen into a preceding paragraph of section 307(1) or (2), as the case may be, or (in the case of that subparagraph (ii)) that subparagraph (i)) was entered into with or for a person connected with a director of that holding company or institution.
(2) As respects any financial statements prepared by any company that is the holding company of a credit institution, the extension of section 307(8) by section 308(5) does not apply in relation to any transaction, arrangement or agreement made by that credit institution for or with—
(a) any of its officers, or
(b) any of the officers of the holding company.
(3) As respects any financial statements prepared by any company that is the holding company of a credit institution, the requirements of subsection (1) or (2) of section 309 do not apply in relation to any arrangement or transaction referred to in that subsection (1) or (2) to which the credit institution is a party if the only person referred to in that subsection (1) or (2), as the case may be, who has, directly or indirectly, a material interest in the arrangement or transaction is a person connected with any of the directors referred to in that subsection (1) or (2), as the case may be.
(4) In a case that would fall within subsection (3) but for the fact that both—
(a) a person (the “connected person”) connected with any of the directors referred to in subsection (1) or (2), as the case may be, of section 309, and
(b) a director or directors referred to in that subsection (1) or (2), as the case may be,
have, directly or indirectly, a material interest in the arrangement or transaction concerned to which the credit institution referred to in subsection (3) is a party, then the particulars of the material interest to be disclosed under section 309 need not include the name of the connected person nor (if his or her interest is different from that of the foregoing director or directors) the nature of the connected person’s interest.
(5) A word or expression used in this section and also used in sections 307 to 309 has the same meaning in this section as it has in those sections.
Annotations
Modifications (not altering text):
C61
Application of section extended (24.06.2015) by European Union (Credit Institutions: Financial Statements) Regulations 2015 (S.I. No. 266 of 2015), reg. 4, in effect as per reg. 1(2).
Exceptions to disclosure by credit institution under sections 307 to 309 in the case of connected persons and certain officers
4. Sections 310 to 312 of the Principal Act shall apply to a credit institution in the same manner as they apply to a holding company of a credit institution.
Section 311
Credit Institutions: disclosures by holding company of aggregate amounts in respect of connected persons
311. (1) In this section—
“relevant period” means the financial year to which the financial statements concerned relate;
“relevant persons” means persons who, at any time during the financial year to which the financial statements concerned relate, were connected with a director of the company or the institution referred to in subsection (2);
“relevant transaction, arrangement or agreement” shall be read in accordance with subsection (3);
“transactions, arrangements or agreements” means any of the following classes of transactions, arrangements or agreements:
(a) loans, quasi-loans or credit transactions entered into with or for relevant persons;
(b) agreements to enter into any loans, quasi-loans or credit transactions with or for relevant persons;
(c) guarantees entered into or security provided on behalf of relevant persons in connection with a loan, quasi-loan or credit transaction entered into with or for such persons;
(d) agreements to enter into guarantees or provide any security on behalf of relevant persons in connection with a loan, quasi-loan or credit transaction entered into with or for such persons;
(e) arrangements referred to in subparagraph (i) or (ii) of either section 307(1)(e) or (2)(e) where the transactions referred to in that subparagraph (that is to say, transactions that, if they had been made by the institution, would have fallen into a preceding paragraph of section 307(1) or (2), as the case may be, or (in the case of that subparagraph (ii)) that subparagraph (i)) were entered into with or for relevant persons.
(2) The group financial statements of a company which is the holding company of a credit institution shall contain a statement, by way of notes to those statements, of the matters specified in subsection (3) in relation to transactions, arrangements or agreements made by the credit institution.
(3) The matters mentioned in subsection (2) are:
(a) the aggregate amounts outstanding at the end of the relevant period under transactions, arrangements or agreements made by the institution and coming within any particular paragraph of subsection (1) (which transactions, arrangements or agreements, coming within any particular such paragraph, are referred to subsequently in this section as “relevant transactions, arrangements or agreements”);
(b) the aggregate maximum amounts outstanding during the relevant period under relevant transactions, arrangements or agreements made by the institution;
(c) the number of relevant persons for or with whom relevant transactions, arrangements and agreements that subsisted at the end of the relevant period were made by the institution; and
(d) the maximum number of relevant persons for or with whom relevant transactions, arrangements and agreements that subsisted at any time during the relevant period were made by the institution.
(4) A transaction, arrangement or agreement to which subsection (2) applies need not be included in the statement referred to in that subsection if—
(a) it is entered into by the institution concerned in the ordinary course of its business, and
(b) its value is not greater, and its terms no more favourable,
in respect of the person for or with whom it is made, than that or those which—
(i) the institution ordinarily offers, or
(ii) it is reasonable to expect the institution to have offered,
to or in respect of a person of the same financial standing but unconnected with the institution.
(5) In reckoning the aggregate maximum amounts or the maximum number of persons referred to in subsection (3)(b) or (d), as appropriate, there shall not be counted, as the case may be—
(a) relevant transactions, arrangements and agreements made by the institution concerned for or with a person if the aggregate maximum amount outstanding during the relevant period under relevant transactions, arrangements and agreements made for or with him or her by it does not exceed €7,500, or
(b) a person for or with whom such transactions, arrangements and agreements have been so made and for whom the aggregate maximum amount outstanding as mentioned in paragraph (a) does not exceed the amount there mentioned.
(6) For the purposes of this section, “amount outstanding” means the amount of the outstanding liabilities of the person for or with whom the transaction, arrangement or agreement in question was made, or, in the case of a guarantee of security, the amount guaranteed or secured.
(7) Where a holding company avails itself of an exemption under this Part from the requirement to prepare group financial statements in relation to any financial year, subsection (2) shall have effect in relation to the company and that financial year as if “entity financial statements” were substituted for “group financial statements”.
(8) A word or expression used in this section and also used in sections 307 to 309 has the same meaning in this section as it has in those sections.
Annotations
Modifications (not altering text):
C62
Application of section extended (24.06.2015) by European Union (Credit Institutions: Financial Statements) Regulations 2015 (S.I. No. 266 of 2015), reg. 4, in effect as per reg. 1(2).
Exceptions to disclosure by credit institution under sections 307 to 309 in the case of connected persons and certain officers
4. Sections 310 to 312 of the Principal Act shall apply to a credit institution in the same manner as they apply to a holding company of a credit institution.
Section 312
Credit Institutions: requirement for register, etc., in the case of holding company as respects certain information
312. (1) Subject to section 313, a company which is the holding company of a credit institution shall maintain a register containing a copy of every transaction, arrangement or agreement made by that institution of which particulars—
(a) are required by section 307(1) or (2) or section 309(1) or (2) to be disclosed, or
(b) would, but for section 310, be required by any such provision to be disclosed,
in the company’s entity or group financial statements for the current financial year and for each of the preceding 10 financial years or, if such a transaction, arrangement or agreement is not in writing, a written memorandum setting out its terms.
(2) Subsection (1) shall not require a company to keep in its register a copy of any transaction, arrangement or agreement made by the credit institution for or with a connected person if—
(a) it is entered into in the ordinary course of the institution’s business, and
(b) its value is not greater, and its terms no more favourable, in respect of the person for or with whom it is made, than that or those which—
(i) the institution ordinarily offers, or
(ii) it is reasonable to expect the institution to have offered,
to or in respect of a person of the same financial standing but unconnected with the institution.
(3) Subject to section 313, a company which is the holding company of a credit institution shall, before the annual general meeting of the holding company, make available, at its registered office for inspection by its members, the statement specified in subsection (5).
(4) That statement shall be made so available for a period of not less than 15 days ending with the date of the meeting.
(5) The statement mentioned in subsection (3) (referred to in subsections (6) to (8) as the “statement”) is one containing the particulars of transactions, arrangements and agreements made by the credit institution which the holding company would, but for section 310, be required by section 307(1) or (2) or section 309(1) or (2) to disclose in its entity or group financial statements for the last complete financial year preceding the meeting referred to in that subsection.
(6) The statement shall also be made available for inspection by the members at that annual general meeting.
(7) This section shall not require the inclusion in the statement of particulars of any transaction, arrangement or agreement made by the credit institution if—
(a) it is entered into in the ordinary course of the institution’s business, and
(b) its value is not greater, and its terms no more favourable, in respect of the person for or with whom it is made, than that or those which—
(i) the institution ordinarily offers, or
(ii) it is reasonable to expect the institution to have offered,
to or in respect of a person of the same financial standing but unconnected with the institution.
(8) This section shall not require the inclusion in the statement of particulars of any transaction, arrangement or agreement if, by reason of—
(a) the company’s not taking advantage of section 310, or
(b) the company’s being required by a rule, instrument, direction or requirement referred to in section 313 to disclose such information in the following manner, the company has included in its entity or group financial statements for the last complete financial year mentioned in subsection (5) the particulars referred to in section 307(1) or (2) or section 309(1) or (2), as the case may be, of the transaction, arrangement or agreement which, but for either of those reasons, it would not have disclosed in those financial statements by virtue of section 310.
(9) A company shall, if required by the F191[Authority, produce to the Authority for inspection the register kept by it in accordance with subsection (1) and shall give the Authority such facilities for inspecting and taking copies of the contents of the register as the Authority] may require.
(10) It shall be the duty of the statutory auditors of the company to examine any such statement specified in subsection (5) before it is made available to the members of the company in accordance with subsections (3) and (4) and to make a report to the members on that statement; and the report shall be annexed to the statement before it is made so available.
(11) A report under subsection (10) shall state whether in the opinion of the statutory auditors the statement contains the particulars required by subsection (5) and, where their opinion is that it does not, they shall include in the report, so far as they are reasonably able to do so, a statement giving the required particulars.
(12) Where a company fails to comply with subsection (1), (3) or (9), the company and every person who at the time of that failure is a director of the company shall be guilty of a category 3 offence.
(13) In any proceedings against a person in respect of an offence under subsection (12) (being an offence consisting of a failure to comply with subsection (1) or (3)), it shall be a defence to prove that the defendant took all reasonable steps for securing compliance with subsection (1) or (3), as the case may be.
(14) A word or expression used in this section and also used in sections 307 to 309 has the same meaning in this section as it has in those sections.
Annotations
Amendments:
F191
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. no. 14, S.I. No. 335 of 2022.
Modifications (not altering text):
C63
Application of section restricted (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 15, in effect as per reg. 1(2), (3).
Non-application of certain provisions of Principal Act
15. Sections 281 to 286, 305A, 312, 318, 319, 325(1)(c), (d) and (e), 326(1)(c) and (d) and (2)(d), 328, 338, 339, 341, 375, 381 to 385, 392, 396 to 398, 401 and 402 of the Principal Act shall not apply to a qualifying partnership.
C64
Application of section extended (24.06.2015) by European Union (Credit Institutions: Financial Statements) Regulations 2015 (S.I. No. 266 of 2015), reg. 4, in effect as per reg. 1(2).
Exceptions to disclosure by credit institution under sections 307 to 309 in the case of connected persons and certain officers
4. Sections 310 to 312 of the Principal Act shall apply to a credit institution in the same manner as they apply to a holding company of a credit institution.
Section 313
Requirements of banking law not prejudiced by sections 307 to 312 and minimum monetary threshold for section 312
313. (1) Nothing in sections 307 to 312 prejudices the operation of any—
(a) rule or other instrument, or
(b) direction or requirement,
made, issued, granted or otherwise created under the Central Bank Acts 1942 to 2010 or any other enactment requiring the holding company of a credit institution to disclose particulars, whether in financial statements prepared by it or otherwise, of transactions, arrangements or agreements (whether of the kind described in section 239 or not) entered into by the credit institution.
(2) So far as those requirements relate to section 307(1) or (2), the requirements of section 312(1) or (3) do not apply in relation to an individual director and persons connected with him or her if the aggregate value of all arrangements, transactions and agreements referred to in section 307(1) and (2) did not at any time during the financial year exceed €7,500 for that individual director and those persons.
(3) So far as those requirements relate to any arrangement or transaction with a credit institution or any of its subsidiary undertakings in which a director of the institution or of its holding undertaking, or a person connected with such a director, had, directly or indirectly, a material interest, the requirements of section 312(1) or (3) do not apply if—
(a) the value of each such arrangement or transaction which was made after the commencement of the financial year with the institution or any of its subsidiary undertakings, and
(b) the value of each such arrangement or transaction which was made before the commencement of the financial year less the amount (if any) by which the liabilities of the person for whom the arrangement or transaction was made have been reduced,
did not at any time during the financial year exceed in the aggregate €5,000 or, if more, did not exceed €15,000 or one per cent of the value of the net assets of the company preparing the entity or group financial statements, whichever is the less.
CHAPTER 7
Disclosure required in notes to financial statements of other matters
Section 314
Information on related undertakings
314. (1) F192[Subject to subsection (2A) and the other provisions of this section, where at the end of a financial year] of the company, a company—
(a) has a subsidiary undertaking, or
(b) holds an interest in any class of equity shares equal to 20 per cent or more of all such interests (in that class) in an undertaking that is not its subsidiary undertaking (in this section referred to as an “undertaking of substantial interest”),
a note shall be included in the statutory financial statements of the company for that year distinguishing between the subsidiary undertakings and the undertakings of substantial interest and giving the following information in relation to them:
(i) the name and registered office or, if there is no registered office, the principal place of business of each subsidiary undertaking or undertaking of substantial interest and the nature of the business carried on by it;
(ii) the identity of each class of shares held by the company in each subsidiary undertaking or undertaking of substantial interest and the proportion of the nominal value of the allotted shares in the subsidiary undertaking or undertaking of substantial interest of each such class represented by the shares of that class held by the company;
(iii) the aggregate amount of the net assets of each subsidiary undertaking or undertaking of substantial interest as at the end of the financial year of the subsidiary undertaking or undertaking of substantial interest ending with or last before the end of the financial year of the company to which the statutory financial statements relate; and
(iv) the profit or loss of the subsidiary undertaking or undertaking of substantial interest for its financial year identified in paragraph (iii).
(2) F193[Subject to subsection (2A) and the other provisions of this section, the notes to the] statutory financial statements of a company shall contain the following particulars regarding each undertaking of which the company is a member having unlimited liability unless the information is not material to the true and fair view given by the statutory financial statements of the company:
(a) the name and registered office of each such undertaking;
(b) if the undertaking does not have a registered office, its principal place of business; and
(c) the legal form of the undertaking.
F194[(2A) A company that qualifies for the small companies regime or for the micro companies regime shall be exempt from the requirements of this section.]
(3) Subsection (1) is subject to section 315 which provides for exemptions in respect of the information specified in subsection (1)(iii) and (iv).
(4) Subsections (1) and (2) are subject to section 316 which provides for exemptions generally in respect of the information specified in them.
(5) For the avoidance of doubt, the information required by subsections (1) and (2) is required for the financial year to which the statutory financial statements relate and comparable information for the preceding financial year need not be given.
(6) For the purposes of paragraph (b) of subsection (1), interests held by persons acting in their own name but on behalf of the first-mentioned company in that subsection shall be deemed to be held by that company and “an interest in any class of equity shares” in subsection (1) includes an interest in an instrument that is convertible into equity shares as well as an option to acquire equity shares.
Annotations
Amendments:
F192
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 31(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F193
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 31(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F194
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 31(c), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 315
Information on related undertakings: exemption from disclosures
315. The information on related undertakings required by paragraphs (iii) (net assets) and (iv) (profit or loss) of section 314(1) need not be given in statutory financial statements—
(a) in respect of a subsidiary undertaking of a company, if the company prepares group financial statements and either—
(i) the subsidiary undertaking is consolidated in the statutory financial statements prepared by the company, or
(ii) the interest of the company in the equity shares of the subsidiary undertaking is included in or in a note to the company’s statutory financial statements by way of the equity method of accounting,
or
(b) in respect of a subsidiary undertaking of a company, if the company is exempt from the requirement to prepare group financial statements because it is relying on the consolidated accounts of a higher holding undertaking in accordance with section 299 or 300 or in accordance with IFRS, and either—
(i) the subsidiary undertaking is consolidated in the consolidated accounts of the higher holding undertaking, or
(ii) the interest of the company in the equity shares of the subsidiary undertaking is included in or in a note to the higher holding undertaking’s consolidated accounts by way of the equity method of accounting,
or
(c) in respect of an undertaking of substantial interest of a company, if the interest in the equity shares of the undertaking of substantial interest is included in or in a note to the company’s statutory financial statements by way of the equity method of accounting, or
F195[(d) in respect of an undertaking of substantial interest of a company, if the undertaking is not required to publish its balance sheet, or]
(e) in relation to any undertaking, if the information required by paragraphs (iii) and (iv) of section 314(1) is not material to the true and fair view given by the statutory financial statements.
Annotations
Amendments:
F195
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 32, S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 316
Information on related undertakings: provision for certain information to be annexed to annual return
316. (1) If the directors of a company form the opinion that the number of undertakings in respect of which the company is required to disclose information under section 314 is such that compliance with the provisions of that section would result in a note to the statutory financial statements of excessive length, the information mentioned in that section need only be given in such a note in respect of—
(a) the undertakings whose assets, liabilities, financial position or profit or loss, in the opinion of the directors, principally affected the amounts shown in the company’s statutory financial statements, and
(b) undertakings excluded from the consolidation under section 303(3).
(2) If advantage is taken of subsection (1)—
(a) there shall be included in the notes to the company’s statutory financial statements a statement that the information given deals only with the undertakings mentioned in that subsection, and
(b) the information specified in section 348(4) shall be annexed to the annual return of the company to which the statutory financial statements are annexed.
(3) If a company fails to comply with subsection (2), the company and any officer of it who is in default shall be guilty of a category 3 offence.
(4) In subsection (3) “officer” includes any shadow director and de facto director.
Annotations
Modifications (not altering text):
C65
Application of subs. (3) extended (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 42(5)(a), (b), in effect as per reg. 1(2), (3).
Offences
42. ...
(5) (a) A qualifying partnership that fails to comply with any provision referred to in sections 316(3), 325(6), 332(4), 335(3), 335(6), 337(5), 340(7), 343(11), 347(5), 348(6), 374(4), 376(3), 377(7), 1459 or 1460 of the Principal Act as applied by these Regulations commits an offence.
(b) Where an offence under subparagraph (a) is committed by a qualifying partnership and it is proved that the offence was committed with the consent or connivance, or was attributable to any wilful neglect, of a person who was -
(i) a member of the qualifying partnership,
(ii) a director of such a member, or
(iii) a person purporting to act in either such capacity,
that person shall, as well as the qualifying partnership, be guilty of an offence and may be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
...
Section 317
Disclosures of particulars of staff
317. (1) F196[Subject to subsections (7) and (7A), the following information shall] be given in the notes to the entity financial statements of a company with respect to the employees of the company—
(a) the average number of persons employed by the company in the financial year concerned, and
(b) the average number of persons employed within each category of persons employed by the company in that year.
(2) In respect of all persons employed by the company during the financial year who are taken into account in determining the relevant annual number for the purposes of subsection (1)(a) there shall also be stated the aggregate amounts respectively of—
(a) wages and salaries paid or payable in respect of that year to those persons,
(b) social insurance costs incurred by the company on their behalf,
(c) other retirement benefit costs so incurred, and
(d) other compensation costs of those persons (such costs to be specified by type) incurred by the company in the financial year.
(3) In relation to the aggregate of all amounts stated for the purposes of subsection (2) there shall be shown the amount capitalised into assets and the amount treated as an expense or loss of the financial year.
(4) The categories of persons employed by the company by reference to which the number required to be disclosed by subsection (1)(b) is to be determined shall be such as the directors may select, having regard to the manner in which the company’s activities are organised.
(5) For the purposes of subsection (1)(a) and (b), the average number of persons employed by the company shall be determined by dividing the relevant annual number by the number of months in the financial year of the company.
(6) For the purposes of subsection (5), the relevant annual number shall be determined by ascertaining for each month in the financial year of the company concerned—
(a) in the case of subsection (1)(a), the number of persons employed under contracts of service by the company in that month (whether throughout the month or not), and
(b) in the case of subsection (1)(b), the number of persons in the category in question of persons so employed,
and, in either case, adding together all the monthly numbers.
(7) Where the company prepares group financial statements, those group financial statements shall contain the information required by subsections (1) to (3) for the company and its subsidiary undertakings included in the consolidation taken as a whole and subsections (4) to (6) have effect as if references in them to the company were references to the company and its subsidiary undertakings included in the consolidation.
F197[(7A) (a) A company that qualifies for the small companies regime shall only be required to provide the information referred to in subsection (1) (a).
(b) Where a company qualifies for the small companies regime but elects to prepare group financial statements—
(i) those group financial statements shall contain the information required by subsection (1)(a) for the company and its subsidiary undertakings included in the consolidation taken as a whole, and
(ii) subsections (5) and (6) have effect as if references in those subsections to the company were references to the company and its subsidiary undertakings included in the consolidation.
(7B) A company that qualifies for the micro companies regime shall be exempt from the requirements of this section.]
(8) In this section—
“retirement benefit costs” includes any expenses incurred by the company in respect of—
(a) any retirement benefit scheme established for the purpose of providing retirement benefits for persons currently or formerly employed by the company,
(b) any amounts set aside for the future payment of retirement benefits directly by the company to current or former employees, and
(c) any retirement benefits paid directly by the company to such persons without first being so set aside;
“social insurance costs” means any contribution by a company to any state social insurance, social welfare, social security or retirement benefit scheme (including provision amounting to such under the Social Welfare Acts) or to any fund or arrangement, being a fund or arrangement connected with such a scheme, and “social insurance” means any such scheme, fund or arrangement;
“wages and salaries” in a company’s profit and loss account shall be determined by reference to payments made or expenses incurred in respect of all persons employed by the company during the financial year concerned who are taken into account in determining the relevant annual number for the purposes of subsection (1)(a).
Annotations
Amendments:
F196
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 33(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F197
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 33(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 318
Details of authorised share capital, allotted share capital and movements
318. (1) F198[Subject to subsection (9), the following information shall be given] in the notes to the entity financial statements of a company with respect to the company’s share capital:
(a) the number and aggregate nominal value of the shares comprised in the authorised (if any) share capital;
(b) where shares of more than one class have been allotted, the number and aggregate nominal value of shares of each class allotted;
(c) in relation to each class of allotted share capital, the amount that has been called up on those shares and of this the amount that has been fully paid up at the financial year end date;
(d) an analysis of allotted and called up share capital by class between—
(i) shares presented as share capital, and
(ii) shares presented as a liability;
and
(e) where shares are held as treasury shares, the number and aggregate nominal value of the treasury shares and, where shares of more than one class have been allotted, the number and aggregate nominal value of each class held as treasury shares.
(2) In the case of any part of the allotted share capital that consists of redeemable shares, the following information shall be given:
(a) the earliest and latest dates on which the company has power to redeem those shares;
(b) whether those shares must be redeemed in any event or are liable to be redeemed at the option of the company or the shareholder and at who’s option; and
(c) whether any (and, if so, what) premium is payable on redemption.
(3) If the company has allotted any shares during the financial year to which the entity financial statements relate, the following information shall be given:
(a) the reason for making the allotment;
(b) the classes of shares allotted;
(c) in respect of each class of shares, the number allotted, their aggregate nominal value and the consideration received by the company for the allotment; and
(d) whether the shares are presented as share capital or as a liability.
(4) With respect to any contingent right to the allotment of shares in the company, the following particulars shall be given:
(a) the number, description and amount of the shares in relation to which the right is exercisable;
(b) the period during which it is exercisable; and
(c) the price to be paid for the shares allotted.
(5) In subsection (4), “contingent right to the allotment of shares” means any option to subscribe for shares and any other right to require the allotment of shares to any person whether arising on the conversion into shares of securities of any other description or otherwise.
(6) Subject to subsection (7), where the company is a holding company, the number, description and nominal value of the shares in the company held by its subsidiary undertakings or their nominees and the consideration paid for those shares shall be disclosed in the notes to the entity financial statements of the company.
(7) Subsection (6) does not apply in relation to any shares—
(a) in the case of which the subsidiary undertaking is concerned as personal representative, or
(b) subject to subsection (8), in the case of which the subsidiary undertaking is concerned as trustee.
(8) The restriction on the application of subsection (6) by subsection (7)(b) does not have effect if the company or a subsidiary undertaking of the company is beneficially interested under the trust and is not so interested only by way of security for the purposes of a transaction entered into by it in the ordinary course of a business which includes the lending of money.
F199[(9) A company that qualifies for the small companies regime or the micro companies regime shall be exempt from the requirements of this section.]
Annotations
Amendments:
F198
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 34(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F199
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 34(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Modifications (not altering text):
C66
Application of section restricted (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 15, in effect as per reg. 1(2), (3).
Non-application of certain provisions of Principal Act
15. Sections 281 to 286, 305A, 312, 318, 319, 325(1)(c), (d) and (e), 326(1)(c) and (d) and (2)(d), 328, 338, 339, 341, 375, 381 to 385, 392, 396 to 398, 401 and 402 of the Principal Act shall not apply to a qualifying partnership.
Section 319
Financial assistance for purchase of own shares
319. (1) F200[Subject to subsection (4), the entity financial statements of a company] shall show the aggregate amount of financial assistance provided by the company, in the financial year to which the financial statements relate, that is permitted by section 82 (including the aggregate amount of any outstanding loans, guarantees and securities at the financial year end date) and shall separately disclose the aggregate of—
(a) the amount of any money provided, in that financial year, by the company in accordance with a scheme referred to in section 82(6)(f), and
(b) the amount of any loans referred to in section 82(6)(g) that have been made in that financial year by the company.
(2) F201[Subject to subsection (4), where a company] prepares group financial statements, those group financial statements shall contain the information required by subsection (1) for the company and its subsidiary undertakings included in the consolidation taken as a whole.
(3) The entity and group financial statements shall show for the financial year immediately preceding the financial year to which those statements relate amounts corresponding to the amounts required to be shown by subsection (1) in those statements for the latter year.
F202[(4) A company that qualifies for the small companies regime or the micro companies regime shall be exempt from the requirements of this section.]
Annotations
Amendments:
F200
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 35(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F201
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 35(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F202
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 35(c), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Modifications (not altering text):
C67
Application of section restricted (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 15, in effect as per reg. 1(2), (3).
Non-application of certain provisions of Principal Act
15. Sections 281 to 286, 305A, 312, 318, 319, 325(1)(c), (d) and (e), 326(1)(c) and (d) and (2)(d), 328, 338, 339, 341, 375, 381 to 385, 392, 396 to 398, 401 and 402 of the Principal Act shall not apply to a qualifying partnership.
Section 320
Holding of own shares or shares in holding undertaking
320. (1) Where a company, F203[a nominee of the company or a person acting in that person’s own name but on behalf of the company], holds shares in the company or an interest in such shares, such shares or interest shall not be shown as an asset but the consideration paid for such shares or interest—
(a) shall be shown in the company’s entity financial statements as a deduction from the company’s capital and reserves (and the profits available for distribution shall accordingly be restricted by the amount of such deduction); and
(b) shall be shown in the company’s group financial statements, if any, as a deduction from group capital and reserves.
(2) Where a company, F204[a nominee of the company or a person acting in that person’s own name but on behalf of the company], holds shares in its holding undertaking or an interest in such shares, the profits of the company available for distribution shall be restricted by the amount of the consideration paid for such shares or interest.
(3) In addition to the requirements of subsection (2), in the case of the holding of shares by a company,F205[ a nominee of the company or a person acting in that person’s own name but on behalf of the company, in its holding company (or the holding by a company, its nominee or a person acting in that person’s own name but on behalf of the company of an interest in such shares)], the consideration paid for such shares or interest shall be shown in the holding company’s group financial statements, if any, as a deduction from group capital and reserves.
(4) The notes to the company’s entity financial statements (and, as the case may be, the group financial statements of the company or its holding company) shall give separately for the shares referred to in each of the preceding subsections—
(a) the number and aggregate nominal value of those shares and, where shares of more than one class have been acquired, the number and aggregate nominal value of F206[each class of such shares, at the beginning and end of the financial year together with the consideration paid for such shares,]
F207[(aa) a reconciliation of the number and nominal value of each class of such shares from the beginning of the financial year to the end of the financial year showing all changes during the financial year, including further acquisitions, disposals and cancellations, in each case showing the value of the consideration paid or received, if any,
(ab) the reasons for any acquisitions made during the financial year,
(ac) the proportion of called-up share capital held at the beginning and end of the financial year, and]
(b) particulars of any restriction on profits available for distribution by virtue of the application of subsection (1) or (2).
Annotations
Amendments:
F203
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 36(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F204
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 36(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F205
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 36(c), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F206
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 36(d)(i), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F207
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 36(d)(ii), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Modifications (not altering text):
C68
Section applied with modifications (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 16, in effect as per reg. 1(2), (3).
Application of section 320 of Principal Act
16. Section 320 of the Principal Act shall apply to a qualifying partnership only in so far as that qualifying partnership holds shares in its holding undertaking or an interest in such shares.
Section 321
Disclosure of accounting policies
321. (1) A company shall disclose in the notes to its entity financial statements the accounting policies adopted by the company in determining—
(a) the items and amounts to be included in its balance sheet, and
(b) the items and amounts to be included in its profit and loss account.
(2) Where a company prepares group financial statements, the notes to those financial statements shall disclose the accounting policies adopted by the company in determining—
(a) the items and amounts to be included in its consolidated balance sheet, and
(b) the items and amounts to be included in its consolidated profit and loss account.
F208[(3) Where a company changes an accounting policy adopted by the company and has disclosed such change in the notes to the entity financial statements or group financial statements, the notes to those financial statements shall also disclose—
(a) the reason for the change in accounting policy, and
(b) to the extent practicable, the impact of the change in accounting policy on the financial statements for the current financial year and on the financial statements of preceding years.]
Annotations
Amendments:
F208
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 37, S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 322
Disclosure of remuneration for audit, audit-related and non-audit work
322. (1) In this section—
“group auditor” means the statutory auditor carrying out the audit of group financial statements;
“remuneration” includes benefits in kind, reimbursement of expenses and other payments in cash.
(2) Subject to subsection (5), a company shall disclose in the notes to its entity financial statements relating to each financial year the following information:
(a) the remuneration for all work in each category specified in subsection (3) that was carried out—
(i) for the company,
(ii) in respect of that financial year,
by the statutory auditors of the company;
(b) the remuneration for all work in each category specified in subsection (3) that was carried out—
(i) for the company,
(ii) in respect of the preceding financial year,
by the statutory auditors of the company;
(c) where all or part of the remuneration referred to in paragraph (a) or (b) is in the form of a benefit in kind, the nature and estimated monetary value of the benefit.
(3) Remuneration shall be disclosed under subsection (2) for each of the following categories of work:
(a) the audit of entity financial statements;
(b) other assurance services;
(c) tax advisory services;
(d) other non-audit services.
(4) Where the statutory auditors of a company are a statutory audit firm (within the meaning of F209[Part 27]), any work carried out by a partner in the firm or a statutory auditor on its behalf is considered for the purposes of this section to have been carried out by the audit firm.
(5) A company need not make the disclosure required by subsection (2) where—
F210[(a) the company qualifies for the small companies regime or the micro companies regime, or]
F211[(b) the company qualifies as a medium company in accordance with section 280F or 280G, or]
(c) the company is a subsidiary undertaking, the holding company of which is required to prepare and does prepare group financial statements, provided that—
(i) the subsidiary undertaking is included in the group financial statements, and
(ii) the information specified in subsection (8) is disclosed in the notes to the group financial statements.
(6) Where a company that F212[qualifies as a medium company in accordance with section 280F or 280G] does not make the disclosure of information required by subsection (2) it shall provide such information to the Supervisory Authority when requested so to do.
(7) A holding company that prepares group financial statements shall disclose in the notes to those statements relating to each financial year the following information:
(a) the remuneration for all work in each category specified in subsection (8) that was carried out in respect of that financial year by the group auditor for the holding company and the subsidiary undertakings included in the consolidation;
(b) the remuneration for all work in each category specified in subsection (8) that was carried out in respect of the preceding financial year by the group auditor for the holding company and those undertakings;
(c) where all or part of the remuneration referred to in paragraph (a) or (b) is in the form of a benefit in kind, the nature and estimated monetary value of the benefit.
(8) Remuneration shall be disclosed under subsection (7) for each of the following categories of work:
(a) the audit of the group financial statements;
(b) other assurance services;
(c) tax advisory services;
(d) other non-audit services.
(9) Where more than one statutory auditor (whether a statutory auditor or a statutory audit firm) has been appointed as the statutory auditors of a company in a single financial year, separate disclosure in respect of the remuneration of each of them shall be provided in the notes to the company’s entity financial statements.
Annotations
Amendments:
F209
Substituted (21.09.2018) by Companies (Statutory Audits) Act 2018 (22/2018), s. 6, S.I. No. 366 of 2018.
F210
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 38(a)(i), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F211
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 38(a)(ii), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F212
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 38(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Editorial Notes:
E81
Previous affecting provision: subs. (4) amended (17.06.2016) by European Union (Statutory Audits) (Directive 2006/43/EC, as amended by Directive 2014/56/EU, and Regulation (EU) No 537/2014) Regulations 2016 (S.I. No. 312 of 2016), reg. 8, in effect as per regs. 1(2), 3 and subject to transitional provision in reg. 143; further amended as per F-note above.
Section 323
Information on arrangements not included in balance sheet
323. (1) F213[Subject to the provisions of this section,] the nature and business purpose of any arrangements of a company that are not included in its balance sheet and the financial impact on the company of those arrangements shall be provided in the notes to the statutory financial statements of the company if the risks or benefits arising from such arrangements are material and in so far as the disclosure of such risks or benefits is necessary for assessing the financial position of the company.
F214[(1A) A company that—
(a) qualifies for the small companies regime shall be exempt from the requirement to disclose the financial impact on the company of arrangements referred to in subsection (1), and
(b) qualifies for the micro companies regime shall be exempt from the requirements of subsection (1).]
(2) In the case of a holding company that prepares group financial statements—
(a) subsection (1) shall be read as requiring the information there referred to in respect of arrangements there referred to, whether of the company or of any subsidiary undertaking included in the consolidation, to be provided in the notes to the group financial statements in so far as the disclosure of the risks or benefits concerned is necessary for assessing the financial position, taken as a whole, of the holding company and the subsidiary undertakings included in the consolidation, and
(b) the notes to the entity financial statements of the holding company shall not be required to provide information that is provided in the notes to its group financial statements in compliance with subsection (1), as it is to be read in accordance with this subsection.
Annotations
Amendments:
F213
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 39(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F214
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 39(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
CHAPTER 8
Approval of statutory financial statements
Section 324
Approval and signing of statutory financial statements by board of directors
324. (1) F215[Subject to subsection (1A), where the directors of a company] are satisfied that the statutory financial statements of the company give a true and fair view and otherwise comply with this Act or, where applicable, with Article 4 of the IAS Regulation, those statements shall be approved by the board of directors and signed on their behalf by 2 directors, where there are 2 or more directors.
F216[(1A) In the case of the statutory financial statements of a company that qualifies for the micro companies regime, compliance with the minimum requirements of this Act in relation to its financial statements shall be presumed to give a true and fair view for the purposes of subsection (1).]
(2) Without prejudice to the generality of section 11 and its application to the other provisions of this section, where the company has a sole director subsection (1) operates to require that director, if he or she is satisfied as to the matters referred to in that subsection in respect of the statements, to approve and sign the statutory financial statements.
(3) Where group financial statements are prepared, the group financial statements and the entity financial statements of the holding company shall be approved by the board of directors of that company at the same time.
(4) The signature or signatures evidencing approval of the financial statements by the board shall be inserted on the face of the entity balance sheet and any group balance sheet.
F217[(4A) If the statutory financial statements of a company that qualifies for the small companies regime or the micro companies regime, as the case may be, are prepared in accordance with the small companies regime or the micro companies regime as appropriate, the balance sheet shall contain, in a prominent position above the signature or signatures referred to in subsection (4), a statement that the statutory financial statements concerned have been so prepared in accordance with the small companies regime or the micro companies regime, as may be appropriate.]
(5) Every copy of every balance sheet which is laid before the members in general meeting or which is otherwise circulated, published or issued shall state the names of the persons who signed the balance sheet on behalf of the board of directors.
(6) If statutory financial statements are approved which do not give a true and fair view or otherwise comply with the requirements of this Act or, where applicable, of Article 4 of the IAS Regulation, every director of the company who is party to their approval, and who knows that they do not give such view or otherwise so comply or is reckless as to whether that is so, shall be guilty of a category 2 offence.
(7) For that purpose, every director of the company at the time the statutory financial statements are approved shall be taken to be a party to their approval unless he or she shows that he or she took all reasonable steps to prevent their being approved.
(8) If any copy of a balance sheet is—
(a) laid before the members or otherwise issued, circulated or published without the balance sheet (the original of it as distinct from the copy) having been signed as required by this section or without the required statement of the signatory’s name on the copy being included, or
(b) delivered to the Registrar without the balance sheet (the original of it as distinct from the copy) having been signed as required by this section or without the required statement of the signatory’s name on the copy being included,
the company and any officer of it who is in default shall be guilty of a category 2 offence.
(9) Subsection (8) shall not prohibit the issue, circulation or publication of—
(a) a fair and accurate summary of any statutory financial statement after such statutory financial statement shall have been signed on behalf of the directors,
(b) a fair and accurate summary of the profit or loss figures for part of the company’s financial year.
(10) In subsection (8) “officer” includes any shadow director and de facto director.
F218[(11) In this section, "minimum requirements of this Act", in relation to a company that qualifies for the micro companies regime, means the provisions of this Act with which the company is obliged to comply, having availed of the exemptions to which it is entitled by virtue of qualifying for the micro companies regime.]
Annotations
F215
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 40(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F216
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 40(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F217
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 40(c), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F218
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 40(d), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Modifications (not altering text):
C69
Section applied with modifications (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 17, in effect as per reg. 1(2), (3).
Application of section 324 of Principal Act
17. Section 324 of the Principal Act shall apply to a qualifying partnership subject to the following modifications:
(a) where a qualifying partnership is not a limited partnership, the statutory financial statements shall be approved by the members and signed on their behalf by at least 2 of their number;
(b) where the qualifying partnership is a limited partnership -
(i) if there is only one general partner, the statutory financial statements shall be approved by that partner and shall bear the signature of that partner, or
(ii) if there is more than one general partner, the statutory financial statements shall be approved by the general partners and signed on their behalf by at least 2 of their number.
C70
Application of subss. (6), (8) extended (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 42(1), (2), in effect as per reg. 1(2), (3).
Offences
42. (1) A qualifying partnership that fails to comply with any provision referred to in sections 291(9), 292(3), 294(9), 295(3), 324(6), 324(8), 355(7), 355(9), 356(5) or 1458(4) of the Principal Act as applied by these Regulations commits an offence.
(2) Where an offence under paragraph (1) is committed by a qualifying partnership and it is proved that the offence was committed with the consent or connivance, or was attributable to any wilful neglect, of a person who was -
(a) a member of the qualifying partnership,
(b) a director of such a member, or (c) a person purporting to act in either such capacity,
that person shall, as well as the qualifying partnership, be guilty of an offence and may be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
...
CHAPTER 9
Directors’ report
Section 325
Obligation to prepare directors’ report for every financial year
325. (1) F219[Subject to subsection (1A), the directors] of a company shall for each financial year prepare a report (a “directors’ report”) dealing with the following matters:
(a) general matters in relation to the company and the directors as specified in section 326;
(b) a business review in accordance with section 327;
(c) information on the acquisition or disposal of own shares as specified in section 328;
(d) information on interests in shares or debentures as specified in section 329;
(e) statement on relevant audit information as specified in section 330;
and containing the notice referred to in section 331 that (if such be the case) has been issued in that financial year in respect of the company under section 33AK of the Central Bank Act 1942.
F220[(1A) The directors of a company that—
(a) qualifies for the small companies regime shall not be required to include in the directors’ report, a business review referred to in subsection (1)(b), and
(b) qualifies for the micro companies regime shall be exempt from the requirement to prepare a directors’ report under subsection (1) provided that the information required under section 328 is included as a note or a footnote to the balance sheet.]
F221[(2) Subsection (1) is in addition to the other requirements of this Act that apply in certain cases with regard to the inclusion of matters in a directors’ report, namely the requirements of –
(a) section 167(3) (statement as to establishment or otherwise of an audit committee in the case of a relevant private company),
(b) section 225(2) (directors’ compliance statement in case of a company to which that section applies), and
(c) sections 1589, 1590 and 1596 (information on key intangible resources and sustainability reporting in the case of a company to which those sections apply).]
(a) section 167(3) (statement as to establishment or otherwise of an audit committee in the case of F1[a relevant private company]), and
(b) section 225(2) (directors’ compliance statement in case of a company to which that section applies).
(3) For a financial year in which—
(a) the company is a holding company, and
(b) the directors of the company prepare group financial statements,
the directors shall also prepare a directors’ report that is a consolidated report (a “group directors’ report”) dealing, to the extent provided in the following provisions of this Part, with the company and its subsidiary undertakings included in the consolidation taken as a whole.
(4) Where group financial statements are published with entity financial statements, it is sufficient to prepare the group directors’ report referred to in subsection (3) (as distinct from that report and a directors’ report in respect of the holding company as well) provided that any information relating to the holding company only, being information which would otherwise be required to be provided by subsection (1) or section 167(3) or 225(2), is provided in the group directors’ report.
(5) A group directors’ report may, where appropriate, give greater emphasis to the matters that are significant to the company and its subsidiary undertakings included in the consolidation taken as a whole.
(6) If a director fails to fulfil his or her obligation under F222[subsections (1), (1A), (3) or (4)], he or she shall be guilty of a category 3 offence.
(7) Without limiting the obligations of the directors of a company under this section or subsection (6), it shall be the duty of a person who is a shadow director or de facto director of a company to ensure that the requirements of F223[subsections (1), (1A), (3) and (4)] are complied with in relation to the company.
(8) If a person fails to comply with his or her duty under subsection (7), the person shall be guilty of a category 3 offence.
Annotations
Amendments:
F219
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 41(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F220
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 41(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F221
Substituted (6.07.2024) by European Union (Corporate Sustainability Reporting) Regulations 2024 (S.I. No. 336 of 2024), reg. 5, in effect as per reg. 1(2).
F222
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 41(d), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F223
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 41(e), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Modifications (not altering text):
C71
Section applied with modifications (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 18, in effect as per reg. 1(2), (3).
Application of section 325 of Principal Act
18. Subject to this Regulation and to Regulation 15, the members of a qualifying partnership shall prepare a report (in these Regulations referred to as a “partners’ report”) in accordance with the requirements of section 325 of the Principal Act as if -
(a) every reference to the company mentioned in subsection (1) of that section were a reference to the qualifying partnership,
(b) every reference to a director were a reference to the members of the qualifying partnership,
(c) paragraph (3)(a) read “the qualifying partnership is a holding undertaking, and”, and
(d) every reference to a “group directors’ report” were a reference to a “group partners’ report”.
C72
Application of subs. (1)(c)-(e) restricted (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 15, in effect as per reg. 1(2), (3).
Non-application of certain provisions of Principal Act
15. Sections 281 to 286, 305A, 312, 318, 319, 325(1)(c), (d) and (e), 326(1)(c) and (d) and (2)(d), 328, 338, 339, 341, 375, 381 to 385, 392, 396 to 398, 401 and 402 of the Principal Act shall not apply to a qualifying partnership.
C73
Application of subs. (6) extended (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 42(5)(a), (b), in effect as per reg. 1(2), (3).
Offences
42. ...
(5) (a) A qualifying partnership that fails to comply with any provision referred to in sections 316(3), 325(6), 332(4), 335(3), 335(6), 337(5), 340(7), 343(11), 347(5), 348(6), 374(4), 376(3), 377(7), 1459 or 1460 of the Principal Act as applied by these Regulations commits an offence.
(b) Where an offence under subparagraph (a) is committed by a qualifying partnership and it is proved that the offence was committed with the consent or connivance, or was attributable to any wilful neglect, of a person who was -
(i) a member of the qualifying partnership,
(ii) a director of such a member, or
(iii) a person purporting to act in either such capacity,
that person shall, as well as the qualifying partnership, be guilty of an offence and may be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
...
Editorial Notes:
E82
Previous affecting provision: subs. (2)(a) amended (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 41(c), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4; subsection substituted (6.07.2024) as per F-note above.
Section 326
Directors’ report: general matters
326. (1) The directors’ report for a financial year shall state—
(a) the names of the persons who, at any time during the financial year, were directors of the company,
(b) the principal activities of the company during the course of the year,
(c) a statement of the measures taken by the directors to secure compliance with the requirements of sections 281 to 285, with regard to the keeping of accounting records and the exact location of those records,
(d) the amount of any interim dividends paid by the directors during the year and the amount, if any, that the directors recommend should be paid by way of final dividend.
(2) Where relevant in a particular financial year, the directors’ report shall state—
(a) particulars of any important events affecting the company which have occurred since the end of that year,
(b) an indication of the activities, if any, of the company in the field of research and development,
(c) an indication of the existence of branches (within the meaning of Council Directive 89/666/EEC) of the company outside the State and the country in which each such branch is located,
(d) political donations made during the year that are required to be disclosed by the Electoral Act 1997.
(3) F224[Subject to subsection (3A), where material for an assessment] of the company’s financial position and profit or loss, the directors’ report shall describe the use of financial instruments by the company and discuss, in particular—
(a) the financial risk management objectives and policies of the company, including the policy for hedging each major type of forecasted transaction for which hedge accounting is used, and
(b) the exposure of the company to price risk, credit risk, liquidity risk and cash flow risk.
F225[(3A) A company that qualifies for the small companies regime or the micro companies regime shall be exempt from the requirements of subsection (3).]
(4) In relation to a group directors’ report, subsections (1)(b) and (c), (2) and (3) shall have effect as if the reference to the company were a reference to the company and its subsidiary undertakings included in the consolidation.
Annotations
Amendments:
F224
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 42(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F225
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 42(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Modifications (not altering text):
C74
Application of subss. (1)(c), (d) and (2)(d) restricted (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 15, in effect as per reg. 1(2), (3).
Non-application of certain provisions of Principal Act
15. Sections 281 to 286, 305A, 312, 318, 319, 325(1)(c), (d) and (e), 326(1)(c) and (d) and (2)(d), 328, 338, 339, 341, 375, 381 to 385, 392, 396 to 398, 401 and 402 of the Principal Act shall not apply to a qualifying partnership.
Section 327
Directors’ report: business review
327. (1) F226[Subject to subsection (1A), the directors’ report for a financial year] shall contain—
(a) a fair review of the business of the company, and
(b) a description of the principal risks and uncertainties facing the company.
F227[(1A) A company that qualifies for the small companies regime or the micro companies regime shall be exempt from the requirements of subsection (1).]
(2) The review required by subsection (1) shall be a balanced and comprehensive analysis of—
(a) the development and performance of the business of the company during the financial year, and
(b) the assets and liabilities and financial position of the company at the end of the financial year,
consistent with the size and complexity of the business.
(3) The review required by subsection (1) shall, to the extent necessary for an understanding of such development, performance or financial position or assets and liabilities, include—
(a) an analysis of financial key performance indicators, and
(b) where appropriate, an analysis using non-financial key performance indicators, including information relating to environmental and employee matters.
F228[(3A) Notwithstanding the generality of subsection (1A), where a company that qualifies for the small companies regime or the micro companies regime, as the case may be, elects to provide the information required by subsection (1), it shall be exempt from the requirements of subsection (3)(b).]
(4) The directors’ report shall, where appropriate, include additional explanations of amounts included in the statutory financial statements of the company.
(5) The review required by subsection (1) shall include an indication of likely future developments in the business of the company.
(6) In relation to a group directors’ report, this section has effect as if the references to the company were references to the company and its subsidiary undertakings included in the consolidation.
(7) In this section, “key performance indicators” means factors by reference to which the development, performance and financial position of the business of the company can be measured effectively.
Annotations
Amendments:
F226
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 43(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F227
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 43(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F228
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 43(c), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Modifications (not altering text):
C75
Requirements under subs. (3)(b) deemed to be met in certain circumstances (21.08.2017) by European Union (Disclosure of Non-Financial and Diversity Information by certain large undertakings and groups) Regulations 2017 (S.I. No. 360 of 2017), reg. 5(12), in effect as per reg. 1(3).
Non-financial statement
5. (1) The directors of an applicable company shall, for each financial year, include in the directors’ report a statement containing non-financial information (in these Regulations referred to as a “non-financial statement”).
...
(8) The information required under paragraphs (2) to (7) may be set out in a separate statement in accordance with paragraphs (9) and (10).
...
(12) Where an applicable company provides the non-financial statement referred to in paragraph (1) or the separate statement referred to in paragraph (8), the applicable company is deemed to have met the requirements of section 327(3)(b) of the Principal Act.
Section 328
Directors’ report: acquisition or disposal of own shares
328. Where, at any time during a financial year of a company, shares in the company—
(a) are held or acquired by the company, including by forfeiture or surrender in lieu of forfeiture, or
(b) are held or acquired by any subsidiary undertaking of the company, the directors’ report with respect to that financial year of the company shall state—
(i) the number and nominal value of any shares of the company held by the company or any subsidiary undertaking at the beginning and end of the financial year together with the consideration paid for F229[such shares,]
(ii) a reconciliation of the number and nominal value of such shares from the beginning of the financial year to the end of the financial year showing all changes during the year including further acquisitions, disposals and cancellations, in each case showing the value of the consideration paid or received, F230[if any,]
F231[(iii) the reasons for any acquisitions made during the financial year, and
(iv) the proportion of called-up share capital held at the beginning and end of the financial year.]
Annotations
Amendments:
F229
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 44(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F230
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 44(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F231
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 44(c), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Modifications (not altering text):
C76
Application of section restricted (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 15, in effect as per reg. 1(2), (3).
Non-application of certain provisions of Principal Act
15. Sections 281 to 286, 305A, 312, 318, 319, 325(1)(c), (d) and (e), 326(1)(c) and (d) and (2)(d), 328, 338, 339, 341, 375, 381 to 385, 392, 396 to 398, 401 and 402 of the Principal Act shall not apply to a qualifying partnership.
Section 329
Directors’ report: interests in shares and debentures
329. (1) The directors’ report in respect of a financial year shall, as respects each person who, at the end of that year, was a director of the company—
(a) state whether or not he or she was, at the end of that financial year, interested in shares in, or debentures of, the company or any group undertaking of that company,
(b) state, if he or she was so interested at the end of that year, the number and amount of shares in, and debentures of, the company and each other undertaking (specifying it) in which he or she was then interested,
(c) state whether or not he or she was, at the beginning of the financial year (or, if he or she was not then a director, when he or she became a director), interested in shares in, or debentures of, the company or any other group undertaking, and
(d) state, if he or she was so interested at either of the immediately preceding dates, the number and amount of shares in, and debentures of, the company and each other undertaking (specifying it) in which he or she was so interested at the beginning of the financial year or, as the case may be, when he or she became a director.
(2) The reference in subsection (1) to the time when a person became a director shall, in case of a person who became a director on more than one occasion, be read as a reference to the time when he or she first became a director.
(3) The information required by subsection (1) to be given in respect of the directors of the company shall also be given in respect of the person who was the secretary of the company at the end of the financial year concerned.
(4) For the purposes of this section, references to interests of a director and secretary in shares or debentures are references to all interests required to be recorded in the register of interests under section 267 and includes interests of shadow directors and de facto directors required to be so registered.
Section 330
Directors’ report: statement on relevant audit information
330. (1) The directors’ report in relation to a company shall contain a statement to the effect that, in the case of each of the persons who are directors at the time the report is approved in accordance with section 332—
(a) so far as the director is aware, there is no relevant audit information of which the company’s statutory auditors are unaware, and
(b) the director has taken all the steps that he or she ought to have taken as a director in order to make himself or herself aware of any relevant audit information and to establish that the company’s statutory auditors are aware of that information.
(2) In this section “relevant audit information” means information needed by the company’s statutory auditors in connection with preparing their report.
(3) A director is regarded as having taken all the steps that he or she ought to have taken as a director in order to do the things mentioned in subsection (1)(b) if he or she has—
(a) made such enquiries of his or her fellow directors (if any) and of the company’s statutory auditors for that purpose, and
(b) taken such other steps (if any) for that purpose,
as are required by his or her duty as a director of the company to exercise reasonable care, skill and diligence.
(4) Nothing in this section shall be read as reducing in any way the statutory and professional obligations of the statutory auditors in relation to forming their opinion on the matters specified in section 336.
(5) Where a directors’ report containing the statement required by this section is approved in accordance with section 332 but the statement is false, every director of the company who—
(a) knew that the statement was false, or was reckless as to whether it was false, and
(b) failed to take reasonable steps to prevent the report from being so approved,
shall be guilty of a category 2 offence.
Section 331
Directors’ report: copy to be included of any notice issued under certain banking legislation
331. The directors’ report shall contain a copy of any Disclosure Notice issued in respect of the company under section 33AK (inserted by the Central Bank and Financial Services Authority of Ireland Act 2003 and amended by the Central Bank Reform Act 2010) of the Central Bank Act 1942 during the financial year to which the report relates.
Section 332
Approval and signing of directors’ report
332. (1) The directors’ report and, where applicable, the group directors’ report shall be approved by the board of directors making the report and signed on their behalf by 2 directors, where there are 2 or more directors.
(2) Without prejudice to the generality of section 11 and its application to the other provisions of this section, where the company has a sole director subsection (1) operates to require that director to approve and sign the report or reports concerned.
(3) Every copy of every directors’ report which is laid before the members in general meeting or which is otherwise circulated, published or issued shall state the names of the persons who signed it on behalf of the board of directors.
(4) If any copy of a directors’ report is—
(a) laid before the members, or otherwise issued, circulated or published without the report (the original of it as distinct from the copy) having been signed as required by this section or without the required statement of the signatory’s name on the copy being included, or
(b) delivered to the Registrar without the report (the original of it as distinct from the copy) having been signed as required by this section or without the required statement of the signatory’s name on the copy being included,
the company and any officer of it who is in default shall be guilty of a category 3 offence.
(5) In subsection (4) “officer” includes any shadow director and de facto director.
Annotations
Modifications (not altering text):
C77
Section applied with modifications (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 19, in effect as per reg. 1(2), (3).
Application of section 332 of Principal Act
19. Section 332 of the Principal Act shall apply to a qualifying partnership with the following modifications:
(a) where the qualifying partnership is not a limited partnership, the partners’ report shall be approved by the members and signed on their behalf by at least 2 of their number;
(b) where the qualifying partnership is a limited partnership -
(i) if there is only one general partner, the partners’ report shall be approved by that general partner and shall bear the signature of that partner, or
(ii) if there is more than one general partner, the partners’ report shall be approved by the general partners and signed on their behalf by at least 2 of their number.
C78
Application of subs. (4) extended (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 42(5)(a), (b), in effect as per reg. 1(2), (3).
Offences
42. ...
(5) (a) A qualifying partnership that fails to comply with any provision referred to in sections 316(3), 325(6), 332(4), 335(3), 335(6), 337(5), 340(7), 343(11), 347(5), 348(6), 374(4), 376(3), 377(7), 1459 or 1460 of the Principal Act as applied by these Regulations commits an offence.
(b) Where an offence under subparagraph (a) is committed by a qualifying partnership and it is proved that the offence was committed with the consent or connivance, or was attributable to any wilful neglect, of a person who was -
(i) a member of the qualifying partnership,
(ii) a director of such a member, or
(iii) a person purporting to act in either such capacity,
that person shall, as well as the qualifying partnership, be guilty of an offence and may be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
...
CHAPTER 10
Obligation to have statutory financial statements audited
Section 333
Statutory financial statements must be audited (unless audit exemption availed of)
333. The directors of a company shall arrange for the statutory financial statements of the company for a financial year to be audited by statutory auditors unless the company is entitled to, and chooses to avail itself of, the audit exemption.
Section 334
Right of members to require audit despite audit exemption otherwise being available
334. (1) Any member or members of a company holding shares in the company that confer, in aggregate, not less than one-tenth of the total voting rights in the company may serve a notice in writing on the company stating that that member or those members do not wish the audit exemption to be available to the company in a financial year specified in the notice.
(2) A notice under subsection (1) may be served on the company either—
(a) during the financial year immediately preceding the financial year to which the notice relates, or
(b) during the financial year to which the notice relates (but not later than 1 month before the end of that year).
(3) The reference in subsection (1) to a voting right in a company shall be read as a reference to a right exercisable for the time being to cast, or to control the casting of, a vote at general meetings of members of the company, not being such a right that is exercisable only in special circumstances.
(4) For the avoidance of doubt, the reference in subsection (1) to the one or more members not wishing the audit exemption to be available to the company in a specified financial year is, if the company is a subsidiary undertaking, a reference to their not wishing the audit exemption to be available to the subsidiary undertaking irrespective of whether its holding company and any other undertakings in the group avail themselves of the audit exemption in that year.
(5) In this section “audit exemption” does not include the dormant company audit exemption referred to in section 365.
Annotations
Modifications (not altering text):
C79
Section applied with modifications (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 20, in effect as per reg. 1(2), (3).
Application of section 334 of Principal Act
20. A partner in a qualifying partnership, including a limited partner in a limited partnership, may serve the notice referred to in section 334(1) of the Principal Act on the qualifying partnership stating that the partner does not wish the audit exemption to be availed of by the qualifying partnership in the financial year specified in the notice.
Section 335
Statement to be included in balance sheet if audit exemption availed of
335. (1) If a company avails itself of the audit exemption in a financial year, the balance sheet prepared by the company in respect of that year shall contain a statement by the directors of the company that, in respect of that year—
(a) the company is availing itself of the audit exemption (and the exemption shall be expressed to be “the exemption provided for by Chapter 15 of Part 6 of the Companies Act 2014”),
(b) the company is availing itself of the exemption on the grounds that section 358 or 359, as appropriate, is complied with,
(c) no notice under subsection (1) of section 334 has, in accordance with subsection (2) of that section, been served on the company, and
(d) the directors acknowledge the obligations of the company, under this Act, to—
(i) keep adequate accounting records and prepare financial statements which give a true and fair view of the assets, liabilities and financial position of the company at the end of its financial year and of its profit or loss for such a year, and
(ii) otherwise comply with the provisions of this Act relating to financial statements so far as they are applicable to the company.
(2) The statement required by subsection (1) shall appear in the balance sheet in a position immediately above the signatures of the directors required by section 324 or, as the case may be, the statement required by section 355.
(3) If subsection (1) or (2) is not complied with, the company concerned and any officer of it who is in default shall be guilty of a category 3 offence.
(4) If the company referred to in subsection (1) is a holding company that prepares group financial statements for the financial year concerned, that subsection shall be read as applying both to its entity balance sheet and its group balance sheet.
(5) Whenever a company has availed itself of the audit exemption in respect of a financial year, the company shall, if required by the F232[Authority] to do so—
(a) give to the F232[Authority] such access to and facilities for inspecting and taking copies of the books and documents of the company, and
(b) furnish to the F232[Authority such information, as the Authority] may reasonably require for the purpose of satisfying himself or herself that the company did, in respect of that financial year, comply with section 358 or 359, as appropriate.
(6) If a company fails to comply with a requirement under subsection (5), the company and any officer of it who is in default shall be guilty of a category 4 offence.
(7) Where—
(a) the audit exemption, as referred to in section 359(1), applies to a group, and
(b) any subsidiary undertaking in that group relies on that exemption (and does not have its statutory financial statements for the year concerned audited in consequence),
references in this section to a company availing itself of the audit exemption shall be read, as respects that subsidiary undertaking, as including references to such an undertaking and subsection (3) shall be read accordingly.
(8) In this section “audit exemption” does not include the dormant company audit exemption referred to in section 365 but that section makes similar provision, by applying and adapting its terms, to that made by this section.
Annotations
Amendments:
F232
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. nos. 15-17, S.I. No. 335 of 2022.
Modifications (not altering text):
C80
Application of subss. (3), (6) extended (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 42(5)(a), (b), in effect as per reg. 1(2), (3).
Offences
42. ...
(5) (a) A qualifying partnership that fails to comply with any provision referred to in sections 316(3), 325(6), 332(4), 335(3), 335(6), 337(5), 340(7), 343(11), 347(5), 348(6), 374(4), 376(3), 377(7), 1459 or 1460 of the Principal Act as applied by these Regulations commits an offence.
(b) Where an offence under subparagraph (a) is committed by a qualifying partnership and it is proved that the offence was committed with the consent or connivance, or was attributable to any wilful neglect, of a person who was -
(i) a member of the qualifying partnership,
(ii) a director of such a member, or
(iii) a person purporting to act in either such capacity,
that person shall, as well as the qualifying partnership, be guilty of an offence and may be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
...
CHAPTER 11
Statutory auditors’ report
Section 336
Statutory auditors’ report on statutory financial statements
336. (1) The report required by section 391 to be made by the statutory auditors of a company on statutory financial statements to be laid before the company in general meeting shall comply with the requirements of this section.
F233[(2) The statutory auditors’ report shall be in writing and shall—
(a) F234[identify] the entity financial statements, and where appropriate, the group financial statements, that are the subject of the audit and the financial reporting framework that has been applied in their preparation,
(b) include a description of the scope of the audit identifying the auditing standards in accordance with which the audit was conducted, and
(c) identify the place of establishment of the statutory auditors who made the report.]
(3) The statutory auditors’ report shall state clearly the statutory auditors’ opinion as to—
(a) F235[subject to subsection (3A), whether the statutory financial statements] give a true and fair view—
(i) in the case of an entity balance sheet, of the assets, liabilities and financial position of the company as at the end of the financial year,
(ii) in the case of an entity profit and loss account, of the profit or loss of the company for the financial year,
(iii) in the case of group financial statements, of the assets, liabilities and financial position as at the end of the financial year and of the profit or loss for the financial year of the undertakings included in the consolidation as a whole, so far as concerns the members of the company,
(b) whether the statutory financial statements have been properly prepared in accordance with the relevant financial reporting framework and, in particular, with the requirements of this Act (and, where applicable, Article 4 of the IAS Regulation).
F236[(3A) In the case of the statutory financial statements of a company that qualifies for the micro companies regime, compliance with the minimum requirements of this Act (within the meaning of section 324(11)) in relation to its financial statements is presumed to give a true and fair view as required by subsection (3).]
(4) The statutory auditors’ report shall also state—
(a) whether they have obtained all the information and explanations which, to the best of their knowledge and belief, are necessary for the purposes of their audit,
(b) whether, in their opinion, the accounting records of the company were sufficient to permit the financial statements to be readily and properly audited,
(c) whether, in their opinion, information and returns adequate for their audit have been received from branches of the company not visited by them, and
(d) in the case of entity financial statements, whether the company’s balance sheet and, except where the exemption in section 304 is availed of, the profit and loss account are in agreement with the accounting records and returns.
F233[(5) F237[Subject to subsection (5B), the statutory auditors] report shall—
(a) state whether, in their opinion, based on the work undertaken in the course of the audit—
(i) the information given in the directors’ report for the financial year for which statutory financial statements are prepared is consistent with the company’s statutory financial statements in respect of the financial year concerned, and
(ii) the directors’ report has been prepared in accordance with F238[applicable legal requirements, excluding the requirements on sustainability reporting in Part 28],
and
(b) state whether, based on their knowledge and understanding of the company and its environment obtained in the course of the audit, they have identified material misstatements in the directors’ report and, where they have so identified such misstatements, give an indication of the nature of each of such misstatements.]
F239[(5A) The statutory auditors’ report shall provide a statement on any material uncertainty relating to events or conditions that may cast significant doubt about the entity’s ability to continue as a going concern.]
F240[(5B) Subsection (5) shall not apply in the case of a company that qualifies for the micro companies regime and has availed itself of the exemption, referred to in section 325(1A), from preparing a directors’ report.]
(6) The statutory auditors’ report shall—
(a) in relation to each matter referred to in subsections (3) to (5) contain a statement or opinion, as the case may be, which shall be either—
(i) unqualified, or
(ii) qualified,
and
(b) include a reference to any matters to which the statutory auditors wish to draw attention by way of emphasis without qualifying the report.
(7) For the purposes of subsection (6)(a)(ii), a statement or opinion may be qualified, including to the extent of an adverse opinion or a disclaimer of opinion, where there is a disagreement or limitation in scope of work.
F241[(8) If in the case of any statutory financial statements—
(a) the requirements of any of sections 305 to 312 are not complied with by a company, and
(b) the company is not a company that is entitled to, and has availed itself of, an exemption from providing the information,
the statutory auditors of the company by whom the financial statements are examined shall include in their report, so far as they are reasonably able to do so, a statement giving the required particulars.]
(9) Where the entity financial statements of a holding company are combined with (that is to say, associated with) the group financial statements, the statutory auditors’ report on the group financial statements shall be so combined with the report on the entity financial statements.
F239[(9A)(a) Subject to paragraph (b), where the statutory audit was carried out by more than one statutory auditor, the statutory auditors shall agree on the results of the statutory audit and submit a joint report and opinion.
(b) In the case of disagreement, each statutory auditor shall submit F234[his or her] opinion in a separate paragraph of the audit report and shall state F234[his or her] reason for such disagreement.]
F242[(10) The Supervisory Authority may prescribe additional requirements, by reference to auditing standards within the meaning of section 1461, in relation to the content of the statutory auditors’ report for all undertakings, or a class of undertakings, only—
(a) if those requirements are necessary in order to give effect to legal requirements in the State relating to the scope of statutory audits, or
(b) to the extent necessary to add to the credibility and quality of the report.]
Annotations
Amendments:
F233
Substituted (17.06.2016) by European Union (Statutory Audits) (Directive 2006/43/EC, as amended by Directive 2014/56/EU, and Regulation (EU) No 537/2014) Regulations 2016 (S.I. No. 312 of 2016), reg. 9(a) and (b), in effect as per regs. 1(2), 3 and subject to transitional provision in reg. 143.
F234
Substituted (21.09.2018) by Companies (Statutory Audits) Act 2018 (22/2018), s. 7(a), (b), S.I. No. 366 of 2018.
F235
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 45(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F236
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 45(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F237
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 45(c), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F238
Substituted (6.07.2024) by European Union (Corporate Sustainability Reporting) Regulations 2024 (S.I. No. 336 of 2024), reg. 6, in effect as per reg. 1(2).
F239
Inserted (17.06.2016) by European Union (Statutory Audits) (Directive 2006/43/EC, as amended by Directive 2014/56/EU, and Regulation (EU) No 537/2014) Regulations 2016 (S.I. No. 312 of 2016), reg. 9(c) and (d), in effect as per regs. 1(2), 3 and subject to transitional provision in reg. 143.
F240
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 45(d), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F241
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 45(e), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F242
Inserted (21.09.2018) by Companies (Statutory Audits) Act 2018 (22/2018), s. 7(c), S.I. No. 366 of 2018.
Section 337
Signature of statutory auditor’s report
337. (1) The report of the statutory auditor shall state the name of the statutory auditor and be signed, as provided for in subsection (2), and bear the date of the signature or signatures.
F243[(2) Where the auditor is—
(a) a statutory auditor (within the meaning of F244[Part 27]), the report shall be signed by the statutory auditor (or, where more than one, each statutory auditor), or
(b) a statutory audit firm (within the meaning of F244[Part 27]), the report shall be signed by—
(i) the statutory auditor (or, where more than one, each statutory auditor) designated by the statutory audit firm for the particular audit engagement as being primarily responsible for carrying out the statutory audit on behalf of the audit firm,
(ii) in the case of a group audit, at least the statutory auditor (or, where more than one, each statutory auditor) designated by the statutory audit firm as being primarily responsible for carrying out the statutory audit at the level of the group,
(iii) where more than one statutory audit firm has been simultaneously engaged, by the statutory auditors designated by the statutory audit firms for the particular audit engagement as being primarily responsible for carrying out the statutory audit on behalf of the audit firm, or
(iv) in the case of a group audit, where more than one statutory audit firm has been simultaneously engaged, by the statutory auditors designated by the statutory audit firms for the particular audit engagement as being primarily responsible for carrying out the statutory audit at the level of the group,
in his or her own name, for and on behalf of the audit firm.]
(3) Every copy of the report of the statutory auditor which is laid before the members in general meeting or which is otherwise circulated, published or issued shall state the name of the statutory auditor or auditors and bear their signature and the date of the latter.
(4) The copy of the statutory auditor’s report which is delivered to the Registrar shall state the name of the statutory auditor or auditors and bear their signature (in the typeset form specified in section 347(2)) and the date of the signature.
(5) If a copy of a statutory auditor’s report—
(a) is laid before the members, or otherwise issued, circulated or published without the report (the original of it as distinct from the copy) being signed and dated as required by this section, or without the copy including the required statement of the statutory auditor’s or auditors’ name and the other particulars specified in subsection (2), or
(b) is delivered to the Registrar without the report (the original of it as distinct from the copy) being signed and dated as required by this section, or without the copy including the required statement of the statutory auditor’s or auditors’ name and the other particulars specified in subsection (3),
the company and any officer of it who is in default shall be guilty of a category 3 offence.
(6) In subsection (5) “officer” includes any shadow director and de facto director.
Annotations
Amendments:
F243
Substituted (17.06.2016) by European Union (Statutory Audits) (Directive 2006/43/EC, as amended by Directive 2014/56/EU, and Regulation (EU) No 537/2014) Regulations 2016 (S.I. No. 312 of 2016), reg. 10, in effect as per regs. 1(2), 3 and subject to transitional provision in reg. 143.
F244
Substituted (21.09.2018) by Companies (Statutory Audits) Act 2018 (22/2018), s. 8, S.I. No. 366 of 2018.
Modifications (not altering text):
C81
Application of subs. (5) extended (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 42(5)(a), (b), in effect as per reg. 1(2), (3).
Offences
42. ...
(5) (a) A qualifying partnership that fails to comply with any provision referred to in sections 316(3), 325(6), 332(4), 335(3), 335(6), 337(5), 340(7), 343(11), 347(5), 348(6), 374(4), 376(3), 377(7), 1459 or 1460 of the Principal Act as applied by these Regulations commits an offence.
(b) Where an offence under subparagraph (a) is committed by a qualifying partnership and it is proved that the offence was committed with the consent or connivance, or was attributable to any wilful neglect, of a person who was -
(i) a member of the qualifying partnership,
(ii) a director of such a member, or
(iii) a person purporting to act in either such capacity,
that person shall, as well as the qualifying partnership, be guilty of an offence and may be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
...
CHAPTER 12
Publication of financial statements
Section 338
Circulation of statutory financial statements
338. (1) A copy of each of the documents specified in subsection (2) concerning the company there referred to shall be sent to—
(a) every member of the company (whether that person is or is not entitled to receive notices of general meetings of the company),
(b) every holder of debentures of the company (whether that person is or is not so entitled), and
(c) all persons, other than members or holders of debentures of the company, who are so entitled,
not less than 21 days before the date of the meeting of the company at which copies of those documents are to be laid in accordance with section 341.
(2) F245[Subject to subsection (2A), the documents] referred to in subsection (1) are—
(a) the statutory financial statements of a company for the financial year concerned,
(b) the directors’ report in relation to it, including any group directors’ report, for that financial year,
(c) the statutory auditors’ report on those financial statements and that directors’ report.
F246[(2A) Subsection (2)(b) shall not apply to a company that qualifies for the micro companies regime and has availed itself of the exemption, under section 325(1A), from preparing a directors’ report.]
(3) If the copies of the documents referred to in subsection (1) are sent less than 21 days before the date of the meeting referred to in that subsection they shall, notwithstanding that fact, be deemed to have been duly sent if it is so agreed by all the members entitled to attend and vote at the meeting.
(4) References in this section to sending to any person copies of the documents specified in subsection (2) include references to using electronic communications for sending copies of those documents to such address as may for the time being be notified to the company by that person for that purpose.
(5) Unless the company’s constitution provides otherwise, copies of the foregoing documents are also to be treated, for the purposes of this section, as sent to a person where—
(a) the company and that person have agreed to his or her having access to the documents on a website (instead of their being sent to him or her),
(b) the documents are documents to which that agreement applies, and
(c) that person is notified, in a manner for the time being agreed for the purpose between him or her and the company, of—
(i) the publication of the documents on a website,
(ii) the address of that website, and
(iii) the place on that website where the documents may be accessed, and how they may be accessed.
(6) For the purposes of this section documents treated in accordance with subsection (5) as sent to any person are to be treated as sent to him or her not less than 21 days before the date of a meeting if, and only if—
(a) the documents are published on the website throughout a period beginning at least 21 days before the date of the meeting and ending with the conclusion of the meeting, and
(b) the notification given for the purposes of paragraph (c) of that subsection is given not less than 21 days before the date of the meeting.
(7) Nothing in subsection (6) shall invalidate the proceedings of a meeting where—
(a) any documents that are required to be published as mentioned in paragraph (a) of that subsection are published for a part, but not all, of the period mentioned in that paragraph, and
(b) the failure to publish those documents throughout that period is wholly attributable to circumstances which it would not be reasonable to have expected the company to prevent or avoid.
(8) Where copies of documents are sent out under this section over a period of days, references elsewhere in this Act to the day on which those copies are sent out shall be read as references to the last day of that period.
(9) If default is made in complying with this section, the company concerned and any officer of it who is in default shall be guilty of a category 3 offence.
(10) In subsection (9) “officer” includes any shadow director and de facto director.
Annotations
Amendments:
F245
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 46(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F246
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 46(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Modifications (not altering text):
C82
Application of section restricted (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 15, in effect as per reg. 1(2), (3).
Non-application of certain provisions of Principal Act
15. Sections 281 to 286, 305A, 312, 318, 319, 325(1)(c), (d) and (e), 326(1)(c) and (d) and (2)(d), 328, 338, 339, 341, 375, 381 to 385, 392, 396 to 398, 401 and 402 of the Principal Act shall not apply to a qualifying partnership.
Section 339
Right to demand copies of financial statements and reports
339. (1) Any member of a company and any holder of debentures of the company shall be entitled to be furnished by the company, on demand and without charge, with a copy of—
(a) the company’s statutory financial statements for the most recent financial year,
(b) F247[subject to subsection (1A),] the directors’ report for that year, and
(c) the statutory auditors’ report for that year on those financial statements and that directors’ report.
F248[(1A) Subsection (1)(b) shall not apply to a company that qualifies for the micro companies regime and has availed itself of the exemption, under section 325(1A), from preparing a directors’ report.]
(2) If the group financial statements do not deal with a subsidiary undertaking of the company, any member of the company shall be entitled to demand to be furnished by the company, without charge, with a copy of the statutory financial statements of such subsidiary undertaking for the most recent financial year which have been sent to the members of that subsidiary undertaking, together with a copy of the directors’ and statutory auditors’ reports.
(3) Without prejudice to subsection (2) but subject to subsection (4), any member of the company shall be entitled to be furnished, within 14 days after the date on which he or she has made a demand in that behalf to the company, with a copy of any statutory financial statement (including every document required by law to be annexed thereto and a copy of the directors’ and auditors’ reports) of any subsidiary undertaking of the company laid before any annual general meeting of such subsidiary undertaking, at a charge not exceeding €3.00 for each financial year’s financial statements so furnished.
(4) A member shall not be entitled to be furnished with a copy of any statements referred to in subsection (3) laid before an annual general meeting held more than 10 years before the date on which the demand under that subsection is made.
(5) Copies of financial statements need not be sent to any member of a company if, on the application either of the company or of any person who claims to be aggrieved, the court is satisfied that the rights conferred by this section are being abused and orders that such copies need not be sent.
(6) The court may order the company’s costs on such an application to be paid in whole or in part by the member whose demands for copies of statements are the subject of the application to the court.
(7) Any obligation by virtue of subsection (1) or (2) to furnish a person with a document may, unless the company’s constitution provides otherwise, be complied with by using electronic communications for sending that document to such address as may for the time being be notified to the company by that person for that purpose.
(8) If a demand made under this section by a member of a company is not complied with within 14 days after the date on which the demand is made then (unless it is proved that the member has already made a demand for and been furnished with a copy of the financial statements for the financial year concerned) the company and any officer of it who is in default shall be guilty of a category 3 offence.
(9) In the case of any default under this section, the court may direct that the copies demanded shall be sent to the member demanding them.
(10) In subsection (8), “officer” includes any shadow director and de facto director.
Annotations
Amendments:
F247
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 47(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F248
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 47(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Modifications (not altering text):
C83
Application of section restricted (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 15, in effect as per reg. 1(2), (3).
Non-application of certain provisions of Principal Act
15. Sections 281 to 286, 305A, 312, 318, 319, 325(1)(c), (d) and (e), 326(1)(c) and (d) and (2)(d), 328, 338, 339, 341, 375, 381 to 385, 392, 396 to 398, 401 and 402 of the Principal Act shall not apply to a qualifying partnership.
Section 340
Requirements in relation to publication of financial statements
340. (1) If a company publishes its statutory financial statements, it shall also publish with those statutory financial statements any directors’ report prepared in accordance with section 325 and any statutory auditors’ report made under section 391 in the form required by section 336.
(2) Where a company is required to prepare group financial statements for a financial year, it shall not publish entity financial statements for that year unless they are combined with the group financial statements and published together as the statutory financial statements of the company.
(3) Where a company publishes its abridged financial statements prepared in accordance with section 353 F249[…], it shall also publish with those abridged financial statements any report in relation to those abridged financial statements specified in section 356 and, if the statutory auditors of the company have refused to provide the directors of the company with a report under that section, an indication of the refusal.
(4) If a company publishes non-statutory financial statements (and that expression shall be read as including any abbreviated accounts relating to any period), it shall also publish a statement indicating—
(a) the reason for the preparation of the non-statutory financial statements,
(b) that the non-statutory financial statements are not the statutory financial statements of the company,
(c) whether statutory financial statements dealing with any financial year with which the non-statutory financial statements purport to deal have been annexed to the annual return and delivered to the Registrar and, if not, an indication of when they are likely to be so delivered,
(d) whether the statutory auditors of the company have made a report under section 391 in the form required by section 336 in respect of the statutory financial statements of the company which relate to any financial year with which the non-statutory financial statements purport to deal,
(e) whether any matters referred to in the statutory auditors’ report were qualified or unqualified, or whether the statutory auditors’ report included a reference to any matters to which the statutory auditors drew attention by way of emphasis without qualifying the report.
(5) Where a company publishes non-statutory financial statements, it shall not publish with those financial statements any such statutory auditors’ report as is mentioned in subsection (4)(d).
(6) Where a holding company publishes non-statutory entity financial statements dealing with the company alone (as distinct from the company and its subsidiary undertakings), it shall indicate in a note to those financial statements whether or not group financial statements have been prepared for that period and, if so, where they can be obtained.
(7) If a company fails to comply with any of subsections (1) to (6), the company and any officer of it who is in default shall be guilty of a category 3 offence.
(8) In subsection (7) “officer” includes any shadow director and de facto director.
Annotations
Amendments:
F249
Deleted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 48, S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Modifications (not altering text):
C84
Application of subs. (7) extended (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 42(5)(a), (b), in effect as per reg. 1(2), (3).
Offences
42. ...
(5) (a) A qualifying partnership that fails to comply with any provision referred to in sections 316(3), 325(6), 332(4), 335(3), 335(6), 337(5), 340(7), 343(11), 347(5), 348(6), 374(4), 376(3), 377(7), 1459 or 1460 of the Principal Act as applied by these Regulations commits an offence.
(b) Where an offence under subparagraph (a) is committed by a qualifying partnership and it is proved that the offence was committed with the consent or connivance, or was attributable to any wilful neglect, of a person who was -
(i) a member of the qualifying partnership,
(ii) a director of such a member, or
(iii) a person purporting to act in either such capacity,
that person shall, as well as the qualifying partnership, be guilty of an offence and may be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
...
Section 341
Financial statements and reports to be laid before company in general meeting
341. (1) The directors of a company shall, in respect of each financial year, lay before the company in general meeting copies of—
(a) the statutory financial statements of the company for the financial year,
(b) F250[subject to subsection (1A), the directors’ report], including any group directors’ report, for the financial year,
(c) the statutory auditors’ report on those financial statements and that directors’ report.
F251[(1A) Subsection (1)(b) shall not apply to a company that qualifies for the micro companies regime and has availed itself of the exemption, under section 325(1A), from preparing a directors’ report.]
(2) Those financial statements and those reports of the directors and the statutory auditors for a financial year shall be so laid not later than 9 months after the financial year end date.
(3) The statutory auditors’ report shall be open to inspection by any member at the general meeting.
(4) Where section 175(3) (dispensing with the holding of an annual general meeting) is availed of, then subsections (1) and (3) shall be disregarded and subsection (2) shall apply as if the reference in it to the laying of financial statements by the time referred to in that subsection were a reference to those statements being provided, by that time, to all the members (entitled to attend and vote at an annual general meeting) for the purpose of their signing the written resolution referred to in section 175(3).
Annotations
Amendments:
F250
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 49(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F251
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 49(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Modifications (not altering text):
C85
Application of section restricted (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 15, in effect as per reg. 1(2), (3).
Non-application of certain provisions of Principal Act
15. Sections 281 to 286, 305A, 312, 318, 319, 325(1)(c), (d) and (e), 326(1)(c) and (d) and (2)(d), 328, 338, 339, 341, 375, 381 to 385, 392, 396 to 398, 401 and 402 of the Principal Act shall not apply to a qualifying partnership.
CHAPTER 13
Annual return and documents annexed to it
Section 342
Annual return
342. In this Act “annual return” means a return that, in accordance with the provisions of this Part, has to be made by a company to the Registrar in respect of successive periods as determined in accordance with those provisions.
Section 343
Obligation to make annual return
343. (1) In this section “annual return date”, in relation to a company, means the date in relation to that company as provided under section 345 and “first annual return date”, in relation to a company, shall be read accordingly.
(2) Subject to the provisions of this section, a company shall deliver to the Registrar an annual return in accordance with subsection (4) not later than F252[56 days] after the annual return date of the company.
(3) However, if the annual return is made up to an earlier date than the company’s annual return date, it shall be so delivered not later than F252[56 days] after that earlier date.
(4) An annual return of a company shall—
(a) be in the prescribed form and contain the prescribed information, and
(b) be made up to a date that is not later than its annual return date,
except that the first annual return falling to be made by a company after it is incorporated shall be made up to the date that is its first annual return date.
(5) The court, on an application made (on notice to the Registrar) by a company, may, if it is satisfied that it would be just to do so, make an order extending the time for the purposes of subsection (2) or (3) in which the annual return of the company in relation to a particular period may be delivered to the Registrar; only one such order may be made as respects the particular period to which the return concerned of the company relates.
(6) Within 28 days after the date on which an order under subsection (5) is made, or such longer period as the court may allow on the making of the order, the company to which the order relates shall deliver a certified copy of the order to the Registrar; if the order is not received by the Registrar within whichever foregoing period is applicable it shall not be valid for the purposes of subsection (5).
(7) In respect of an annual return that is to be delivered on or after the commencement of this section, the court for the purposes of subsection (5) shall be the District Court for the District Court district where the registered office of the company is located or the High Court.
(8) Subsection (2) shall not apply in respect of any annual return date that falls during a period when the company is in the course of being wound up and a liquidator stands appointed to it.
(9) Subsection (2) shall not apply in respect of any annual return date that falls during a period when the company is in the course of being voluntarily struck off the register by the Registrar pursuant to sections 731 to 733 but—
(a) subsection (10) has effect as regards the interpretation of this subsection, and
(b) in addition to the foregoing, the exemption conferred by this subsection shall cease to apply where the company is not ultimately dissolved on foot of that procedure or, if it is dissolved on foot thereof, where it is subsequently restored to the register.
(10) For the purposes of subsection (9), the period when the company is in the course of being voluntarily struck off the register by the Registrar pursuant to sections 731 to 733 shall only be regarded as having commenced on the publication by the Registrar of a notice under section 732 in relation to that application.
(11) If a company fails to comply with the requirements of this section, the company and any officer of it who is in default shall be guilty of a category 3 offence.
F253[(11A) Section 1(1) of the Probation of Offenders Act 1907 shall not apply to an offence under this section.]
(12) In subsection (11) “officer” includes any shadow director and de facto director.
Annotations
Amendments:
F252
Substituted (16.12.2020) by Companies (Amendment) Act 2019 (10/2019), s. 1(a), (b), S.I. No. 631 of 2020.
F253
Inserted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 21, S.I. No. 639 of 2024.
Modifications (not altering text):
C86
Subs. (4) applied with modifications (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 21, in effect as per reg. 1(2), (3).
Application of section 343 of Principal Act
21. Section 343(4) of the Principal Act shall apply to a qualifying partnership as if it read:
“(4) An annual return of a qualifying partnership shall -
(a) be in the form specified by the Minister, and
(b) be made up to a date that is not later than its annual return date, except that the first annual return falling to be made by a qualifying partnership after it is formed shall be made up to the date that is its first annual return date.”.
C87
Application of subs. (11) extended (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 42(5)(a), (b), in effect as per reg. 1(2), (3).
Offences
42. ...
(5) (a) A qualifying partnership that fails to comply with any provision referred to in sections 316(3), 325(6), 332(4), 335(3), 335(6), 337(5), 340(7), 343(11), 347(5), 348(6), 374(4), 376(3), 377(7), 1459 or 1460 of the Principal Act as applied by these Regulations commits an offence.
(b) Where an offence under subparagraph (a) is committed by a qualifying partnership and it is proved that the offence was committed with the consent or connivance, or was attributable to any wilful neglect, of a person who was -
(i) a member of the qualifying partnership,
(ii) a director of such a member, or
(iii) a person purporting to act in either such capacity,
that person shall, as well as the qualifying partnership, be guilty of an offence and may be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
...
Editorial Notes:
E83
Power pursuant to subs. (4) exercised (11.06.2023) by Companies Act 2014 (Forms) Regulations 2023 (S.I. No. 295 of 2023), in effect as per reg. 1(2).
E84
Power pursuant to subs. (4)(a) exercised (16.12.2020) by Companies Act 2014 (Forms) Regulations 2020 (S.I. No. 627 of 2020), in effect as per reg. 1(2).
E85
Previous affecting provision: power pursuant to subs. (4) exercised (21.03.2018) by Companies Act 2014 (Forms) Regulations 2018 (S.I. No. 95 of 2018); revoked (16.12.2020) by Companies Act 2014 (Forms) Regulations 2020 (S.I. No. 627 of 2020), reg. 7, in effect as per reg. 1(2).
Section 344
Special provision for annual return delivered in a particular form
344. F254[…]
Annotations
Amendments:
F254
Repealed (16.12.2020) by Companies (Statutory Audits) Act 2018 (22/2018), s. 3(a), S.I. No. 630 of 2020.
Section 345
Annual return date
345. (1) Unless it is altered by the company or the Registrar in accordance with section 346, the annual return date of a company in any year shall be the date determined by this section.
(2) In the case of a company incorporated before the commencement of this section—
(a) the company’s existing annual return date (as determined in accordance with the prior Companies Acts) shall be taken to be its annual return date falling next after that commencement, and
(b) the annual return date of the company, in each subsequent year, shall be the anniversary of the date referred to in paragraph (a).
(3) In the case of a company incorporated on or after the commencement of this section—
(a) the first annual return date of the company shall be the date 6 months after the date of its incorporation, and
(b) the annual return date of the company, in each subsequent year, shall be the anniversary of its first annual return date.
Section 346
Alteration of annual return date
346. (1) Where the annual return of a company is made up in any year to a date earlier than its annual return date, the company’s annual return date shall thereafter be each anniversary of the date to which that annual return is made up unless the company—
(a) elects in the annual return to retain its existing annual return date, or
(b) establishes a new annual return date in accordance with subsection (2),
but, for the avoidance of doubt, an election under paragraph (a) does not operate to make the next annual return date of the company fall in any year other than in the year in which it would have fallen had the election not been made.
(2) Save in the case of a company delivering its first annual return and subject to subsections (3) and (4), a company may establish a new annual return date by delivering an annual return to the Registrar made up to its existing annual return date in accordance with section 343(2), being an annual return—
(a) that is so delivered not later than F255[56 days] after its existing annual return date, and
(b) to which there is annexed a notification in the prescribed form nominating the new annual return date,
but, notwithstanding anything to the contrary in this Act, the company shall not be required to annex statutory financial statements, or the other documents referred to in section 347(1), to such a return.
(3) The new annual return date established pursuant to subsection (2) shall be a date falling within the period of 6 months following the existing annual return date.
(4) Where a company has established a new annual return date pursuant to subsection (2), it shall not establish a further new annual return date pursuant to that subsection until at least 5 years have elapsed since the establishment of the first-mentioned new annual return date.
(5) Where it appears to the Registrar desirable for a holding company or a holding company’s subsidiary undertaking to extend its annual return date so that the subsidiary undertaking’s annual return date may correspond with that of the holding company, the Registrar may, on the application or with the consent of the directors of the company or undertaking whose annual return date is to be extended, direct that an extension is to be permitted in the case of that company or undertaking.
(6) Where the annual return date of a company or subsidiary undertaking in a year is altered pursuant to subsection (2) or (5), its annual return date thereafter shall be each anniversary of the date so altered, but subject to any subsequent invocation, in accordance with their terms, of the preceding provisions of this section.
Annotations
Amendments:
F255
Substituted (16.12.2020) by Companies (Statutory Audits) Act 2018 (22/2018), s. 9, S.I. No. 630 of 2020.
Section 347
Documents to be annexed to annual return: all cases
347. (1) Subject to the provisions of F256[this Part and Part 28], there shall be annexed to the annual return a copy of the following documents that have been, or are to be, laid before the relevant general meeting:
(a) the statutory financial statements of the company;
(b) F257[subject to subsection (1A), the directors’ report], including any group directors’ report; and
(c) the statutory auditors’ report on those financial statements and that directors’ report;
and “relevant general meeting” in this subsection means the general meeting of the company held during the period to which the annual return relates or, if the most recent statutory financial statements of the company and the other foregoing documents have not been required to be laid before such a meeting, the next general meeting held after the return’s delivery to the Registrar before which those statements and other documents are required to be laid.
F258[(1A) Subsection (1)(b) shall not apply to a company that qualifies for the micro companies regime and has availed itself of the exemption, under section 325(1A), from preparing a directors’ report.]
(2) The reference in subsection (1) to a copy of a document is a reference to a copy that satisfies the following conditions:
(a) it is a true copy of the original save for the difference that the signature or signatures on the original, and any date or dates thereon, shall appear in typeset form on the copy; and
(b) it is accompanied by a certificate of a director and the secretary of the company, that bears the signature of the director and the secretary in electronic or written form, stating that the copy is a true copy of the original (and one such certificate relating to all of the documents mentioned in subsection (1) suffices and the foregoing statement need not be qualified on account of the difference permitted by paragraph (a) as to the form of a signature or of a date).
(3) Where any document referred to in subsection (1) that has been annexed to the annual return is in a language other than the English language or the Irish language, there shall be annexed to each such document a translation of it in the English language or the Irish language certified in the prescribed manner to be a correct translation.
(4) Every document annexed to the annual return in accordance with subsection (1) shall cover the period—
(a) in the case of the first annual return to which such documents are annexed — since the incorporation of the company, and
(b) in any other case — since the end of the period covered by the statutory financial statements annexed to the preceding annual return,
and shall be made up to a date falling not more than 9 months before the date to which the annual return is made up.
(5) If a company fails to comply with subsection (1), (3) or (4), the company and any officer of it who is in default shall be guilty of a category 3 offence.
(6) In subsection (5) “officer” includes any shadow director and de facto director.
Annotations
Amendments:
F256
Substituted (6.07.2024) by European Union (Corporate Sustainability Reporting) Regulations 2024 (S.I. No. 336 of 2024), reg. 7, in effect as per reg. 1(2).
F257
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 50(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F258
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 50(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Modifications (not altering text):
C88
Section applied with modifications (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 22, in effect as per reg. 1(2), (3).
Application of section 347 of Principal Act
22. Section 347(1) of the Principal Act shall apply to a qualifying partnership as if it read:
“(1) Subject to the provisions of this Part, there shall be annexed to the annual return a copy of the following documents:
(a) the statutory financial statements of the qualifying partnership;
(b) the partners’ report, including any group partners’ report;
(c) the statutory auditors’ report on those financial statements and that partners’ report.”.
C89
Application of subs. (5) extended (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 42(5)(a), (b), in effect as per reg. 1(2), (3).
Offences
42. ...
(5) (a) A qualifying partnership that fails to comply with any provision referred to in sections 316(3), 325(6), 332(4), 335(3), 335(6), 337(5), 340(7), 343(11), 347(5), 348(6), 374(4), 376(3), 377(7), 1459 or 1460 of the Principal Act as applied by these Regulations commits an offence.
(b) Where an offence under subparagraph (a) is committed by a qualifying partnership and it is proved that the offence was committed with the consent or connivance, or was attributable to any wilful neglect, of a person who was -
(i) a member of the qualifying partnership,
(ii) a director of such a member, or
(iii) a person purporting to act in either such capacity,
that person shall, as well as the qualifying partnership, be guilty of an offence and may be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
...
Section 348
Documents to be annexed to annual returns: certain cases
348. (1) Where a holding company that prepares Companies Act financial statements has availed itself of the exemption in section 299 (subsidiary undertaking of higher EEA holding undertaking) and does not prepare group financial statements because it has relied on the following consolidated accounts and annual report prepared by a higher holding undertaking in which it and all of its subsidiary undertakings are consolidated, the holding company shall annex to its annual return a copy of the following documents:
(a) the consolidated accounts referred to in section 299(4)(a);
(b) the consolidated annual report referred to in section 299(4)(b); and
(c) the report of the person responsible for auditing the consolidated accounts referred to in section 299(4)(a).
(2) Where a holding company that prepares Companies Act financial statements has availed itself of the exemption in section 300 (subsidiary undertaking of higher non-EEA holding undertaking) and does not prepare group financial statements because it has relied on the following consolidated accounts and any annual report prepared by a higher holding undertaking in which it and all of its subsidiary undertakings are consolidated, the holding company shall annex to its annual return a copy of the following documents:
(a) the consolidated accounts referred to in section 300(4)(a);
(b) any consolidated annual report referred to in section 300(4)(b); and
(c) the report of the person or persons responsible for auditing the accounts referred to in paragraph (a), being the person or persons mentioned in section 300(4)(c).
(3) Where a holding company that prepares IFRS financial statements has availed itself of the exemptions in IFRS and does not prepare group financial statements because it has relied on consolidated accounts and an annual report prepared by its higher holding undertaking in which it and all of its subsidiary undertakings are consolidated, the holding company shall annex to its annual return a copy of the following documents:
(a) the consolidated accounts on which it has so relied;
(b) the consolidated annual report of the higher holding undertaking; and
(c) the report of the person or persons auditing those accounts on those accounts and that annual report.
(4) Where a company has relied on the exemption in section 316(1) regarding information on related undertakings, the company shall annex to the annual return to which the statutory financial statements referred to in that provision are annexed the full information concerned, that is say—
(a) the information referred to in section 316(1), and
(b) the information referred to in section 314(1) and (2), not falling within paragraph (a), that it would have disclosed in the notes to those statements but for its reliance on that exemption.
(5) Where any document required to be annexed to the annual return by this section is in a language other than the English language or the Irish language, there shall be annexed to the copy of that document delivered a translation of it into the English language or the Irish language, certified in the prescribed manner to be a correct translation.
(6) If a company fails to comply with any of subsections (1) to (5), the company and any officer of it who is in default shall be guilty of a category 3 offence.
(7) The reference in subsection (1), (2) or (3) to a copy of a document is a reference to a copy that satisfies the following conditions:
(a) it is a true copy of the original save for the difference that the signature or signatures on the original, and any date or dates thereon, shall appear in typeset form on the copy; and
(b) it is accompanied by a certificate of a director and the secretary of the company, that bears the signature of the director and the secretary in electronic or written form, stating that the copy is a true copy of the original (and one such certificate relating to all of the documents mentioned in subsection (1), (2) or (3), as the case may be, suffices and the foregoing statement need not be qualified on account of the difference permitted by paragraph (a) as to the form of a signature or of a date).
(8) In subsection (6) “officer” includes any shadow director and de facto director.
Annotations
Modifications (not altering text):
C90
Application of subs. (6) extended (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 42(5)(a), (b), in effect as per reg. 1(2), (3).
Offences
42. ...
(5) (a) A qualifying partnership that fails to comply with any provision referred to in sections 316(3), 325(6), 332(4), 335(3), 335(6), 337(5), 340(7), 343(11), 347(5), 348(6), 374(4), 376(3), 377(7), 1459 or 1460 of the Principal Act as applied by these Regulations commits an offence.
(b) Where an offence under subparagraph (a) is committed by a qualifying partnership and it is proved that the offence was committed with the consent or connivance, or was attributable to any wilful neglect, of a person who was -
(i) a member of the qualifying partnership,
(ii) a director of such a member, or
(iii) a person purporting to act in either such capacity,
that person shall, as well as the qualifying partnership, be guilty of an offence and may be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
...
Section 349
First annual return: exception from requirement to annex statutory financial statements
349. Notwithstanding anything to the contrary in this Act, a company shall not be required to annex statutory financial statements, or the other documents referred to in section 347(1), to the first annual return falling to be made by the company after it is incorporated.
CHAPTER 14
Exclusions, exemptions and special arrangements with regard to public disclosure of financial information
Annotations
Modifications (not altering text):
C91
Application of part restricted (24.06.2015) by European Union (Credit Institutions: Financial Statements) Regulations 2015 (S.I. No. 266 of 2015), reg. 8, in effect as per reg. 1(2).
Non-application of certain provisions of Principal Act to credit institutions
8. (1) A credit institution shall not qualify as a small or medium company for the purposes of Chapter 14 of Part 6 of the Principal Act.
(2) In addition to what is provided by paragraph (1) each provision of the Principal Act specified in the Table to this Regulation, in so far as it is not already disapplied by that Act to such an institution, shall not apply to a credit institution.
(3) Section 357 of the Principal Act shall not apply to a credit institution.
Table
Sections 297 and 298 (Exemption from consolidation: size of group)
Sections 358 to 364 (Audit exemption)
Section 365 (Dormant company audit exemption)
Section 377 (Small and medium sized companies)
Section 378 (Application of this Chapter in cases where audit exemption available, etc.)
C92
Application of part restricted (17.06.2015) by European Union (Insurance Undertakings: Financial Statements) Regulations 2015 (S.I. No. 262 of 2015), reg. 6, in effect as per reg. 1(2).
Non-application of certain provisions of Principal Act to insurance undertakings
6. (1) An insurance undertaking shall not qualify as a small or medium company for the purposes of Chapter 14 of Part 6 of the Principal Act and any reference in that Part to a small or medium company shall be read as excluding a reference to an insurance undertaking.
(2) In addition to what is provided by paragraph (1), each provision of the Principal Act specified in the Table to this Regulation, in so far as it is not already disapplied by that Act to such an undertaking, shall not apply to an insurance undertaking.
(3) Section 357 of the Principal Act shall not apply to an insurance undertaking.
Table
Sections 297 and 298 (Exemption from consolidation: size of group)
Sections 358 to 364 (Audit exemption)
Section 365 (Dormant company audit exemption)
Section 377 (Small and medium sized companies)
Section 378 (Application of this Chapter in cases where audit exemption available, etc.)
Section 350
Qualification of company as small or medium company
350. F259[…]
Annotations
Amendments:
F259
Repealed (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 3(c), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 351
Exemptions in respect of directors’ report in the case of small and medium companies
351. F260[…]
Annotations
Amendments:
F260
Repealed (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 3(d), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 352
Exemption from filing certain information for small and medium companies
F261[352. (1) The exemption in subsection (2) is available for a company that—
(a) qualifies for the small companies regime (or the micro companies regime), and
(b) has not elected to prepare group financial statements in accordance with section 293.
(2) That exemption is an exemption from the requirement in section 347 to annex to the company’s annual return the following documents:
(a) the statutory financial statements of the company;
(b) the directors’ report (except where that company qualifies for the micro companies regime and has not elected to prepare the directors’ report);
(c) the statutory auditors’ report on those financial statements and that directors’ report.
(3) If a company that qualifies for the small companies regime or the micro companies regime avails itself of the exemption provided by this section, it shall instead annex to its annual return a copy of each of the following documents:
(a) abridged financial statements prepared in accordance with section 353 and which have been approved and signed in accordance with section 355;
(b) a special statutory auditors’ report prepared in accordance with section 356.
(4) A reference in subsection (3) to a copy of a document is a reference to a copy that satisfies the following conditions:
(a) it is a true copy of the original save for the difference that the signature or signatures on the original, and any date or dates thereon, shall appear in typeset form on the copy;
(b) it is accompanied by a certificate of a director and the secretary of the company, that bears the signature of the director and the secretary in electronic or written form, stating that the copy is a true copy of the original (and one such certificate relating to all of the documents mentioned in subsection (3) suffices and the foregoing statement need not be qualified on account of the difference permitted by paragraph (a) as to the form of a signature or of a date).]
Annotations
Amendments:
F261
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 51, S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Modifications (not altering text):
C93
Subs. (4)(b) applied with modifications (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 23, in effect as per reg. 1(2), (3).
Application of section 352 of Principal Act
23. Section 352(4)(b) of the Principal Act shall apply to a qualifying partnership with the following modifications:
(a) where the qualifying partnership is not a limited partnership, the certificate shall be of at least 2 members of the qualifying partnership and shall bear the signature of those members;
(b) where the qualifying partnership is a limited partnership -
(i) if there is only one general partner, the certificate shall be of that partner and shall bear that partner’s signature, or
(ii) if there is more than one general partner, the certificate shall be of at least 2 general partners and shall bear the signature of those partners.
Section 353
Abridged financial statements for a small company
353. (1) For the purposes of section 352, the abridged financial statements of a company that qualifies as a small company shall, in the manner set out in this section, be extracted from the statutory financial statements of the company prepared under section 290.
(2) Where the statutory financial statements of the company are IFRS financial statements, the abridged financial statements shall comprise—
(a) the balance sheet of the company,
(b) those notes to the financial statements that provide the information required by sections 305 to 321, F262[…]
F263[(c) any other notes to the financial statements including the notes relating to income statement items applicable to the small or micro company concerned, and]
F264[(d) the statement of changes in equity of the company.]
(3) Where the statutory financial statements of the company are Companies Act financial statements, the abridged financial statements shall comprise—
(a) the balance sheet of the company,
(b) those notes to the financial statements that provide the information required by sections 305 to 321,
F265[(c) any other notes to the financial statements, including the notes relating to profit and loss account items applicable to the small or micro company concerned and, in particular, the information required by paragraph 53 of Schedule 3A in the case of a small company,]
F266[(d) the information required by paragraph 48 of Schedule 3A in the case of a small company or paragraph 33 of Schedule 3B in the case of a micro company, even where the company has elected to include it in the profit and loss account, and]
F267[(e) any information provided in accordance with subsections (4), (5) and (6) of section 291.]
(4) Section 274(3) (references to balance sheet to include certain notes) does not apply to this section.
Annotations
Amendments:
F262
Deleted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 52(a)(i), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F263
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 52(a)(ii), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F264
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 52(a)(iii), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F265
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 52(b)(i), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F266
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 52(b)(ii), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F267
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 52(b)(iii), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Modifications (not altering text):
C94
Subs. (2)(b) applied with modifications and references construed (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 24, in effect as per reg. 1(2), (3).
Application of section 353 of Principal Act
24. The references in section 353(2)(b) and (3)(b) of the Principal Act to sections 305 to 321 shall, in relation to a qualifying partnership -
(a) be read as excluding sections 305A, 318, 319 and, subject to paragraph (b), section 320 of the Principal Act, and
(b) notwithstanding paragraph (a), where the qualifying partnership concerned holds shares in its holding undertaking, or an interest in such shares, be read as including section 320 of the Principal Act.
C95
References construed (1.06.2015) by Companies Act 2014 (Commencement) Order 2015 (S.I. No. 169 of 2015), art. 5.
5. For the avoidance of doubt, in a case in which financial statements of a company are prepared before the 1st day of June 2015, references in sections 353 and 354 of the Act of 2014 to section 290 of that Act are to be read, by virtue of Schedule 6 to the Act of 2014, as references to the corresponding provision of the prior Companies Acts.
Section 354
Abridged financial statements for a medium company
354. F268[…]
Annotations
Amendments:
F268
Repealed (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 3(e), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Editorial Notes:
E86
Previous affecting provision: references construed (1.06.2015) by Companies Act 2014 (Commencement) Order 2015 (S.I. No. 169 of 2015), art. 5.
5. For the avoidance of doubt, in a case in which financial statements of a company are prepared before the 1st day of June 2015, references in sections 353 and 354 of the Act of 2014 to section 290 of that Act are to be read, by virtue of Schedule 6 to the Act of 2014, as references to the corresponding provision of the prior Companies Acts.
Section 355
Approval and signing of abridged financial statements
355. (1) Where the directors of a company are satisfied that the requirements of section 353 F269[…] have been complied with as regards the preparation of the abridged financial statements, those financial statements shall be approved by the board of directors and signed on their behalf by 2 directors, where there are 2 or more directors.
(2) Without prejudice to the generality of section 11 and its application to the other provisions of this section, where the company has a sole director subsection (1) operates to require that director, if he or she is satisfied as to the matters referred to in that subsection in respect of the statements, to approve and sign the abridged financial statements.
(3) In addition to the preceding requirements, there shall be included the following statement on the face of the F270[balance sheet forming part of the abridged financial statements], namely a statement by the directors of the company that:
(a) they have relied on the specified exemption contained in section 352;
(b) they have done so on the ground that the company is entitled to the benefit of that exemption as a small company F271[…]; and
(c) the abridged financial statements have been properly prepared in accordance with section 353 F272[…].
(4) The signatures or signature required by subsection (1) or (2), as the case may be, shall be inserted on the face of the F273[balance sheet forming part of the abridged financial statements] immediately after the statement referred to in subsection (3).
(5) Every copy of every F274[balance sheet forming part of the abridged financial statements] which is approved by the board of directors or which is circulated, published or issued shall state the names of the persons who signed the balance sheet on behalf of the board of directors.
F275[(6) The following requirements apply to the documents annexed to the annual return under section 352(3) and delivered to the Registrar:
(a) the copy of the abridged financial statements required by section 352(3)(a) shall state the names of the directors who signed the balance sheet on behalf of the board of directors;
(b) the copy of the special statutory auditors’ report required by section 352(3)(b) shall state the name of the statutory auditors who signed the report and, if different, the name of the statutory auditors who signed the report under section 391.]
(7) If abridged financial statements are approved which have not been prepared in accordance with the requirements of section 353 F276[…], every director of the company who is party to their approval, and who knows that they have not been so prepared or is reckless as to whether they have been so prepared, shall be guilty of a category 2 offence.
(8) For that purpose, every director of the company at the time the abridged financial statements are approved shall be taken to be a party to their approval unless he or she shows that he or she took all reasonable steps to prevent their being approved.
(9) If the requirements of subsection (6) as regards documents annexed to an annual return under section 352(3) F277[…] are not complied with, the company concerned and any officer of it who is in default shall be guilty of a category 2 offence.
(10) In subsection (9) “officer” includes any shadow director and de facto director.
Annotations
Amendments:
F269
Deleted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 53(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F270
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 53(b)(i), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F271
Deleted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 53(b)(ii), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F272
Deleted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 53(b)(iii), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F273
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 53(c), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F274
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 53(d), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F275
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 53(e), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F276
Deleted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 53(f), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F277
Deleted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 53(g), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Modifications (not altering text):
C96
Section applied with modifications (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 25, in effect as per reg. 1(2), (3).
Application of section 355 of Principal Act
25. Section 355 of the Principal Act shall apply to a qualifying partnership subject to the following modifications:
(a) where the qualifying partnership is not a limited partnership, the abridged financial statements referred to in subsection 355(1) of the Principal Act shall be approved by the members and signed on their behalf by at least 2 of their number;
(b) where the qualifying partnership is a limited partnership -
(i) if there is only one general partner, the abridged financial statements referred to in subsection 355(1) of the Principal Act shall be approved by that general partner and shall bear the signature of that partner, or
(ii) if there is more than one general partner, the abridged financial statements referred to in subsection 355(1) of the Principal Act shall be approved by the general partners and signed on their behalf by at least 2 of their number.
C97
Application of subss. (7), (9) extended (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 42(1), (2), in effect as per reg. 1(2), (3).
Offences
42. (1) A qualifying partnership that fails to comply with any provision referred to in sections 291(9), 292(3), 294(9), 295(3), 324(6), 324(8), 355(7), 355(9), 356(5) or 1458(4) of the Principal Act as applied by these Regulations commits an offence.
(2) Where an offence under paragraph (1) is committed by a qualifying partnership and it is proved that the offence was committed with the consent or connivance, or was attributable to any wilful neglect, of a person who was -
(a) a member of the qualifying partnership,
(b) a director of such a member, or (c) a person purporting to act in either such capacity,
that person shall, as well as the qualifying partnership, be guilty of an offence and may be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
...
Section 356
Special report of the statutory auditors on abridged financial statements
356. (1) There shall accompany abridged financial statements annexed to the annual return and delivered to the Registrar a copy of a special report of the statutory auditors of the company to the directors of it containing—
(a) a statement of the statutory auditors with respect to the matters set out in subsection (2) on those abridged financial statements, and
(b) a copy of the statutory auditors’ report under section 391 in the form required by section 336.
(2) Where—
(a) the directors of a company propose to annex to the annual return abridged financial statements for any financial year prepared pursuant to section 353 F278[…], and
(b) the statutory auditors of the company are of opinion that the directors of the company are entitled, for that purpose, to rely on the exemption contained in section 352 and the abridged financial statements have been properly prepared pursuant to section 353 F279[…],
it shall be the duty of the statutory auditors of the company to state in the special report referred to in subsection (1) that, in the opinion of those auditors—
(i) the directors of the company are entitled to annex those abridged financial statements to the annual return, and
(ii) the abridged financial statements so annexed are properly so prepared.
(3) With respect to the statutory auditors’ special report referred to in subsection (1) (a copy (as that expression is to be read in accordance with F280[section 352(4)]) of which is to be delivered to the Registrar), the original of that report shall be signed by the statutory auditors and bear the date of such signing; the requirements of section 337(2) with respect to the signing of the report there referred to shall also apply with respect to the signing of the special report.
(4) Every copy of the special report of the statutory auditors prepared in accordance with subsection (1) that is circulated, published or issued shall state the name of the statutory auditors providing the report and, if different, the names of the statutory auditors who provided the report under section 391.
(5) If a company fails to comply with subsection (1) or (4), the company and any officer of it who is in default shall be guilty of a category 2 offence.
(6) In subsection (5) “officer” includes any shadow director and de facto director.
Annotations
Amendments:
F278
Deleted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 54(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F279
Deleted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 54(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F280
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 54(c), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Modifications (not altering text):
C98
Application of subs. (5) extended (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 42(1), (2), in effect as per reg. 1(2), (3).
Offences
42. (1) A qualifying partnership that fails to comply with any provision referred to in sections 291(9), 292(3), 294(9), 295(3), 324(6), 324(8), 355(7), 355(9), 356(5) or 1458(4) of the Principal Act as applied by these Regulations commits an offence.
(2) Where an offence under paragraph (1) is committed by a qualifying partnership and it is proved that the offence was committed with the consent or connivance, or was attributable to any wilful neglect, of a person who was -
(a) a member of the qualifying partnership,
(b) a director of such a member, or (c) a person purporting to act in either such capacity,
that person shall, as well as the qualifying partnership, be guilty of an offence and may be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
...
Section 357
Subsidiary undertakings exempted from annexing their statutory financial statements to annual return
357. (1) Where a company is a subsidiary undertaking of a holding undertaking that is established under the laws of an EEA state, the company shall, as respects any particular financial year of the company, stand exempted from the provisions of sections 347 and 348 if, but only if, the following conditions are satisfied:
(a) every person who is a shareholder of the company on the date of the holding of the next annual general meeting of the company after the end of that financial year or on the next annual return date of the company after the end of that financial year, whichever is the earlier, shall declare his or her consent to the exemption;
(b) there is in force in respect of the whole of that financial year an irrevocable guarantee by the holding undertaking of all F281[commitments entered into by the company, including amounts shown as liabilities in the statutory financial statements] of the company in respect of that financial year;
(c) the company has notified in writing every person referred to in paragraph (a) of the guarantee;
(d) the statutory financial statements of the company for that financial year are consolidated in the consolidated accounts prepared by the holding undertaking;
(e) the exemption of the company under this section is disclosed in a note to those consolidated accounts;
(f) a notice stating that the company has availed itself of the exemption under this section in respect of that financial year together with—
(i) a copy of the guarantee and notification referred to in paragraphs (b) and (c), and
(ii) a declaration by the company in writing that paragraph (a) has been complied with in relation to the exemption,
is annexed to the annual return for the financial year made by the company to the Registrar;
F282[(g) the consolidated accounts of the holding undertaking are drawn up in accordance with the requirements of the Accounting Directive or in accordance with international financial reporting standards and are audited in accordance with Article 34 of that Directive; and]
(h) a copy of the consolidated accounts of the holding undertaking together with the report of the auditors on them are annexed to the annual return of the company referred to in paragraph (f).
(2) Where any document referred to in subsection (1) that has been annexed to the annual return is in a language other than the English language or the Irish language, there shall be annexed to each such document a translation of it in the English language or the Irish language certified in the prescribed manner to be a correct translation.
(3) Section 299(7) (construction of certain references) shall apply to subsection (1) in a case where the holding undertaking referred to in subsection (1) is a company registered under this Act or an existing company.
(4) Section 347(2) applies for the purpose of the construction of the reference to a copy of a document in subsection (1)(h) of this section as it applies for the purpose of the construction of the reference to a copy of a document in section 347(1).
Annotations
Amendments:
F281
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 55(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F282
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 55(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Modifications (not altering text):
C99
Subs. (1)(a) applied with modifications (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 26, in effect as per reg. 1(2), (3).
Application of section 357 of Principal Act
26. The reference in section 357(1)(a) of the Principal Act to every person who is a shareholder declaring his or her consent shall, in relation to a qualifying partnership, be construed as a reference to every person who is a partner, including a limited partner, declaring his or her consent.
C100
Application of section restricted (24.06.2015) by European Union (Credit Institutions: Financial Statements) Regulations 2015 (S.I. No. 266 of 2015), reg. 8, in effect as per reg. 1(2).
Non-application of certain provisions of Principal Act to credit institutions
8. ...
(3) Section 357 of the Principal Act shall not apply to a credit institution.
C101
Application of section restricted (17.06.2015) by European Union (Insurance Undertakings: Financial Statements) Regulations 2015 (S.I. No. 262 of 2015), reg. 6, in effect as per reg. 1(2).
Non-application of certain provisions of Principal Act to insurance undertakings
6. ...
(3) Section 357 of the Principal Act shall not apply to an insurance undertaking.
CHAPTER 15
Audit exemption
Annotations
Modifications (not altering text):
C102
Application of Part restricted (24.06.2015) by European Union (Credit Institutions: Financial Statements) Regulations 2015 (S.I. No. 266 of 2015), reg. 8, in effect as per reg. 1(2).
Non-application of certain provisions of Principal Act to credit institutions
8. ...
(2) In addition to what is provided by paragraph (1) each provision of the Principal Act specified in the Table to this Regulation, in so far as it is not already disapplied by that Act to such an institution, shall not apply to a credit institution.
...
Table
...
Sections 358 to 364 (Audit exemption)
...
C103
Application of Part restricted (17.06.2015) by European Union (Insurance Undertakings: Financial Statements) Regulations 2015 (S.I. No. 262 of 2015), reg. 6, in effect as per reg. 1(2).
Non-application of certain provisions of Principal Act to insurance undertakings
6. ...
(2) In addition to what is provided by paragraph (1), each provision of the Principal Act specified in the Table to this Regulation, in so far as it is not already disapplied by that Act to such an undertaking, shall not apply to an insurance undertaking.
...
Table
...
Sections 358 to 364 (Audit exemption)
...
Section 358
Main conditions for audit exemption — non-group situation
358. (1) Subject to subsection (3) and the other provisions of this Chapter, section 360 (audit exemption) applies to a company in respect of its statutory financial statements for a particular financial year if the company qualifies as a small company in relation to that financial year.
(2) For the purposes of this section, whether a company qualifies as a small company shall be determined in accordance with F283[sections 280A and 280B].
(3) Section 360 does not apply to a company in respect of its statutory financial statements for a particular financial year during any part of which the company was a group company (within the meaning of section 359) unless the group qualifies, under section 359, as a small group in relation to that financial year (and the other relevant provisions of this Chapter are complied with).
(4) In subsection (3) “group”, in relation to a group company, shall be read in accordance with section 359(1)(b).
(5) Nothing in this section prejudices the operation of Chapter 16 (special audit exemption for dormant companies).
Annotations
Amendments:
F283
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 56, S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 359
Main conditions for audit exemption — group situation
359. (1) In this section—
(a) “group company” means a company that is a holding company or a subsidiary undertaking; and
(b) references to the group, in relation to a group company, are references to that company, together with all its associated undertakings, and for the purposes of this paragraph undertakings are associated if one is the subsidiary undertaking of the other or both are subsidiary undertakings of a third undertaking.
(2) Subject to this Chapter, section 360 (audit exemption) applies to any group company in respect of its statutory financial statements for a particular financial year if the F284[group, would qualify under section 280B as a small group] in relation to that financial year.
(3) F285[…]
(4) F285[…]
(5) F285[…]
(6) F285[…]
(7) F285[…]
(8) F285[…]
(9) F285[…]
(10) F285[…]
(11) F285[…]
(12) F285[…]
(13) Nothing in this section nor in any subsequent provision of this Chapter prejudices the operation of Chapter 16 (special audit exemption for dormant companies).
Annotations
Amendments:
F284
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 57(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F285
Deleted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 57(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 360
Audit exemption
360. (1) The following provisions (the “audit exemption”) have effect where, by virtue of section 358 or 359, as appropriate, this section applies in respect of the statutory financial statements of F286[a company or a group company] for a particular financial year—
(a) without prejudice to section 384(2), section 333 (obligation to have statutory financial statements audited) shall not apply F287[to the entity financial statements of the company or the group company or the group financial statements of the holding company] in respect of that financial year, and
(b) unless and until circumstances (if any) arise by reason of which F288[the company or group company] is not entitled to the audit exemption in respect of that financial year, the provisions specified in subsection (2) shall not apply to F288[the company or group company] in respect of that year.
(2) The provisions mentioned in subsection (1) are those provisions of this Act, being provisions that—
(a) confer any powers on statutory auditors or require anything to be done by or to or as respects statutory auditors, or
(b) make provision on the basis of a report of statutory auditors having been prepared in relation to the statutory financial statements of a company in a financial year,
and, without prejudice to the generality of the foregoing, include the provisions specified in the Table to this section in so far, and only in so far, as they make provision of the foregoing kind.
Table
|
Section 121(3) and (4) (report of statutory auditors on statutory financial statements for purposes of distribution); |
|
Section 306(4) (statement of particulars of non-compliance with section 305 or 306); |
|
Section 322 (disclosure of remuneration for audit, audit-related work and non-audit work); |
|
Section 330 (statement on relevant audit information); |
|
Section 336 (form of statutory auditors’ report); |
|
Section 337 (signature of statutory auditor’s report); |
|
Section 338 (circulation of statutory financial statements); |
|
Section 339 (right of members to demand copies of financial statements and reports); |
|
Section 340 (requirements in relation to publication of financial statements); |
|
Section 341 (financial statements and reports to be laid before company in general meeting); |
|
Section 347 (documents to be annexed to annual return); |
|
Section 356 (special report on abridged financial statements); |
|
Section 380 and sections 382 to 385 (dealing with appointment of statutory auditors); |
|
Sections 390 to 393 (obligations of statutory auditors). |
Annotations
Amendments:
F286
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 58(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F287
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 58(b)(i), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F288
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 58(b)(ii), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 361
Audit exemption not available where notice under section 334 served
361. (1) Notwithstanding that section 358 is complied with, a company is not entitled to the audit exemption referred to in that section in a financial year if a notice, with respect to that year, is served, under and in accordance with section 334(1) and (2), on the company.
(2) Notwithstanding that section 359 is complied with—
(a) a holding company and the other members of the group are not entitled to the audit exemption referred to in that section in a financial year if a notice, with respect to that year, is served, under and in accordance with section 334(1) and (2), on the holding company (irrespective of whether such a notice is served under and in accordance with those provisions on one or more of the other members of the group),
(b) where no such notice has been served, under and in accordance with those provisions, on the holding company but one has been so served on another member of the group, then that member is not entitled to the audit exemption in the year concerned irrespective of whether its holding company and any other members of the group avail themselves of the audit exemption in that year (but this paragraph is not to be read as diminishing the extent of the audit exemption, so far as it relates to the holding company’s group financial statements, that is availed of by the holding company).
Section 362
Audit exemption not available where company or subsidiary undertaking falls within a certain category
362. F289[(1) Notwithstanding that section 358 is complied with, a company is not entitled to the audit exemption referred to in that section if the company is a relevant securitisation company.]
F290[(2) Notwithstanding that section 359 is complied with, a holding company and the other members of the group are not entitled to the audit exemption referred to in that section if—
(a) the holding company is a relevant securitisation company, or
(b) any of those other members is a relevant securitisation company.]
(3) In this section “relevant securitisation company” means—
(a) a qualifying company within the meaning of section 110 of the Taxes Consolidation Act 1997; or
(b) a financial vehicle corporation (“FVC”) within the meaning of—
(i) in the period before 1 January 2015, Article 1(1) of Regulation (EC) No. 24/2009 of the European Central Bank of 19 December 2008 concerning statistics on the assets and liabilities of financial vehicle corporations engaged in securitisation transactions; or
(ii) subject to subsection (4), in the period on or after 1 January 2015, Article 1(1) of Regulation (EU) No. 1075/2013 of the European Central Bank of 18 October 2013 concerning statistics on the assets and liabilities of financial vehicle corporations engaged in securitisation transactions (recast).
(4) If a Regulation is made by the European Central Bank concerning statistics on the assets and liabilities of financial vehicle corporations engaged in securitisation transactions that—
(a) contains a different definition of financial vehicle corporation (“FVC”) from that referred to in subparagraph (ii) of subsection (3)(b), the reference in that provision to that definition shall be read as a reference to the definition contained in the Regulation so made, or
(b) amends the definition so referred to, the reference in that provision to that definition shall be read as a reference to that definition as it stands so amended.
Annotations
Amendments:
F289
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 59(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F290
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 59(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 363
F291[Audit exemption (non-group situation) not available in certain cases
363. (1) Subject to subsection (2) and notwithstanding that section 358 is complied with, a company is not entitled to the audit exemption referred to in that section in respect of its statutory financial statements for the 2 financial years immediately succeeding a financial year (in this section referred to as the "relevant financial year") where the company failed to deliver to the Registrar, in compliance with section 343, the company’s annual return to which the statutory financial statements or (as appropriate) abridged financial statements for the relevant financial year are annexed.
(2) Subsection (1) shall not apply in the case of an annual return of a company which is the company’s first annual return referred to in section 349.]
Annotations
Amendments:
F291
Substituted (21.09.2018) by Companies (Statutory Audits) Act 2018 (22/2018), s. 10, S.I. No. 366 of 2018.
F292
Substituted by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 22, not commenced as of date of revision.
Modifications (not altering text):
C104
Prospective affecting provision: section substituted by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 22, not commenced as of date of revision.
F292[363. (1) Subject to subsection (2), and notwithstanding that section 358 is complied with, a company is not entitled to the audit exemption referred to in that section in respect of its statutory financial statements for the 2 financial years immediately succeeding a financial year (in this section referred to as the ‘relevant financial year’) where the company—
(a) failed to deliver to the Registrar, in compliance with section 343, the company’s annual return in respect of the relevant financial year, and
(b) previously failed to deliver to the Registrar, in compliance with section 343, the company’s annual return in respect of any of the 5 financial years immediately preceding the relevant financial year.
(2) The following shall be disregarded for the purposes of paragraph (b) of subsection (1):
(a) a failure by a company to deliver its annual return which is the company’s first annual return as referred to in section 349;
(b) a failure by a company to deliver its annual return before the operative date.
(3) In this section, “operative date” means the date of commencement of section 22 of the Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024.]
Editorial Notes:
E87
Previous affecting provision: subs. (1)(b) amended (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 60, S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4; section substituted as per F-note above.
Section 364
F293[Audit exemption (group situation) not available in certain cases
364. (1) Subject to subsection (3), in this section a reference to a relevant body is a reference to the holding company or any other member of the group.
(2) Subject to subsection (4) and notwithstanding that section 359 is complied with, a holding company and the other members of the group are not entitled to the audit exemption referred to in that section in respect of their statutory financial statements for the 2 financial years immediately succeeding a financial year (in this section referred to as the "relevant financial year") where any relevant body failed to deliver to the Registrar, in compliance with section 343, the annual return of that relevant body to which such body’s statutory financial statements or (as appropriate) abridged financial statements for the relevant financial year are annexed.
(3) There shall not be reckoned as another member of the group for the purposes of this section (other than for the purposes of the expression "other members of the group" in subsection (2)) a subsidiary undertaking that is not a company registered under this Act or an existing company and the construction provided for by subsection (1) (of references to each of the relevant bodies) shall be read accordingly.
(4) Subsection (2) shall not apply in the case of an annual return which is a relevant body’s first annual return referred to in section 349.]
Annotations
Amendments:
F293
Substituted (21.09.2018) by Companies (Statutory Audits) Act 2018 (22/2018), s. 10, S.I. No. 366 of 2018.
Editorial Notes:
E88
Previous affecting provision: subss. (2)(b), (3) and (4) amended (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 61(c), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4; section substituted as per F-note above.
CHAPTER 16
Special audit exemption for dormant companies
Section 365
Dormant company audit exemption
365. (1) Subject to subsection (5), subsection (3) applies to a company in respect of its statutory financial statements for a financial year if the directors of the company are of the opinion that the company will satisfy the condition specified in subsection (2) in respect of that year and decide that the company should avail itself of subsection (3) in that year (and that decision is recorded by the directors in the minutes of the meeting concerned).
(2) The condition mentioned in subsection (1) is that in respect of the year concerned the company is dormant that is to say, during that year—
(a) it has no significant accounting transaction, and
(b) its assets and liabilities comprise only permitted assets and liabilities.
(3) The following provisions (the “dormant company audit exemption”) have effect where, by virtue of the preceding subsections, this subsection applies in respect of the statutory financial statements of a company for a particular financial year—
(a) without prejudice to section 384(2), section 333 (obligation to have statutory financial statements audited) shall not apply to the company in respect of that financial year, and
(b) unless and until circumstances, if any, arise in that financial year by reason of which the company is not entitled to that audit exemption in respect of that financial year, the provisions specified in subsection (4) shall not apply to the company in respect of that year.
(4) The provisions mentioned in subsection (3) are those provisions of this Act, being provisions that—
(a) confer any powers on statutory auditors or require anything to be done by or to or as respects statutory auditors, or
(b) make provision on the basis of a report of statutory auditors having been prepared in relation to the statutory financial statements of a company in a financial year,
and, without prejudice to the generality of the foregoing, include the provisions specified in the Table to section 360 in so far, and only in so far, as they make provision of the foregoing kind.
(5) Section 363 shall apply for the purposes of this section as it applies for the purpose of section 358 with the substitution in subsection (1)—
(a) for the reference to section 358 being complied with of a reference to the condition specified in subsection (2) of this section being satisfied, and
(b) for the reference to the audit exemption referred to in section 358 of a reference to the dormant company audit exemption.
(6) Section 335 shall apply for the purposes of this section as it applies for the purpose of section 358 with—
(a) the substitution, in subsection (1), of the following paragraphs for paragraphs (a) and (b):
“(a) the company is availing itself of the audit exemption (and the exemption shall be expressed to be ‘the exemption provided for by Chapter 16 of Part 6 of the Companies Act 2014’);
(b) the company is availing itself of the exemption on the grounds that the condition specified in section 365(2) is satisfied;”,
and
(b) the omission of subsections (1)(c) and (7).
(7) In this section—
“permitted assets and liabilities” are investments in shares of, and amounts due to or from, other group undertakings;
“significant accounting transaction” means a transaction that is required by sections 281 and 282 to be entered in the company’s accounting records.
(8) In determining whether or when a company is dormant for the purposes of this section, there shall be disregarded—
(a) any transaction arising from the taking of shares in the company by a subscriber to the constitution as a result of an undertaking of his or her in connection with the formation of the company,
(b) any transaction consisting of the payment of—
(i) a fee to the Registrar on a change of the company’s name,
(ii) a fee to the Registrar on the re-registration of the company, or
(iii) a fee to the Registrar for the registration of an annual return (including any fee of an increased amount by virtue of regulations under section 889(6)).
Annotations
Modifications (not altering text):
C105
Application of section restricted (24.06.2015) by European Union (Credit Institutions: Financial Statements) Regulations 2015 (S.I. No. 266 of 2015), reg. 8, in effect as per reg. 1(2).
Non-application of certain provisions of Principal Act to credit institutions
8. ...
(2) In addition to what is provided by paragraph (1) each provision of the Principal Act specified in the Table to this Regulation, in so far as it is not already disapplied by that Act to such an institution, shall not apply to a credit institution.
...
Table
...
Section 365 (Dormant company audit exemption)
...
C106
Application of section restricted (17.06.2015) by European Union (Insurance Undertakings: Financial Statements) Regulations 2015 (S.I. No. 262 of 2015), reg. 6, in effect as per reg. 1(2).
Non-application of certain provisions of Principal Act to insurance undertakings
6. ...
(2) In addition to what is provided by paragraph (1), each provision of the Principal Act specified in the Table to this Regulation, in so far as it is not already disapplied by that Act to such an undertaking, shall not apply to an insurance undertaking.
...
Table
...
Section 365 (Dormant company audit exemption)
...
CHAPTER 17
Revision of defective statutory financial statements
Section 366
Voluntary revision of defective statutory financial statements
366. (1) If it appears to the directors of a company that—
(a) any statutory financial statements of the company (referred to subsequently in this Chapter as the “original statutory financial statements”), or
(b) any directors’ report (referred to subsequently in this Chapter as the “original directors’ report”),
in respect of a particular financial year, did not comply with the requirements of this Act or, where applicable, of Article 4 of the IAS Regulation, they may prepare revised financial statements or a revised directors’ report in respect of that year.
(2) Where copies of the original statutory financial statements or original directors’ report have been laid before the company in general meeting or delivered to the Registrar, the revisions shall be confined to—
(a) the correction of those respects in which the original statutory financial statements or original directors’ report did not comply with the requirements of this Act or, where applicable, of Article 4 of the IAS Regulation, and
(b) the making of any necessary consequential alterations.
(3) Where the reason for the revision of the statutory financial statements is—
(a) that information that should have been included by way of note to the financial statements was not so included, or
(b) information provided in a note to the financial statements was incorrect or incomplete,
then—
(i) in a case where the amounts and presentation of the profit and loss account, balance sheet or other statements required by the financial reporting framework are not affected by reason thereof — the revision may be effected by supplementary note, and
(ii) in all other cases — revised financial statements shall be prepared.
(4) Where the reason for the revision of the directors’ report is—
(a) that information that should have been included in the report was not so included, or
(b) information provided in the report was incorrect or incomplete,
then—
(i) in a case where the additional information to be provided by way of revision does not affect other information included in the report — the revision may be effected by supplementary note, and
(ii) in all other cases — a revised directors’ report shall be prepared.
(5) Where the statutory financial statements for any financial year are revised, the next statutory financial statements prepared after the date of revision shall refer to the fact that a previous set of financial statements was revised and provide particulars of the revision, its effect and the reasons for the revision in a note to the financial statements.
Section 367
Content of revised financial statements or revised report
367. (1) Subject to section 379, the provisions of this Act as to the matters to be included in the statutory financial statements of a company shall apply to revised financial statements as if the revised financial statements were prepared and approved by the directors as at the date of the original statutory financial statements.
(2) In particular, section 289 shall apply so as to require a true and fair view to be shown in the revised financial statements of the matters referred to in that section viewed as at the date of the original statutory financial statements.
(3) In the case of Companies Act financial statements, F294[paragraph 14(b) of Schedule 3, 3A or 3B, as may be appropriate,] shall apply to revised financial statements as if the reference in that provision to the date on which the financial statements were signed was to the date on which the original statutory financial statements were signed.
(4) The provisions of this Act as to the matters to be included in a directors’ report apply to a revised directors’ report as if the revised report were prepared and approved by the directors of the company as at the date of the original directors’ report.
Annotations
Amendments:
F294
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 62, S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 368
Approval and signature of revised financial statements
368. (1) Section 324 (approval and signing of statutory financial statements) shall apply to revised financial statements save that, in the case of a revision effected by supplementary note, it shall apply as if it required a signature or signatures on the supplementary note instead of on the balance sheet.
(2) Where copies of the original statutory financial statements have been sent to members under section 338, laid before the members in general meeting under section 341 or delivered to the Registrar under section 347, the directors shall, before approving the revised financial statements under section 324, cause the following statements to be made in a prominent position in the revised financial statements or, in the case of a revision effected by supplementary note, in that note—
(a) in the case of a revision effected by replacement—
(i) a statement clearly identifying the replacement financial statements as being revised financial statements, and
(ii) statements as to the following matters:
(I) that the revised financial statements replace the original statutory financial statements for the financial year, specifying it;
(II) that they are now the statutory financial statements of the company for that financial year;
(III) that they have been prepared as at the date of the original financial statements and not as at the date of the revision and, accordingly, do not deal with events and transactions between those dates;
(IV) the respects in which the original statutory financial statements did not comply with the requirements of this Act or, where applicable, of Article 4 of the IAS Regulation; and
(V) any significant amendments made consequential upon the remedying of those defects;
(b) in the case of a revision effected by supplementary note, statements as to the following matters:
(i) that the note revises in certain respects the original statutory financial statements of the company and is to be treated as forming part of those original statutory financial statements; and
(ii) that the statutory financial statements have been revised as at the date of the original statutory financial statements and not as at the date of the revision and, accordingly, do not deal with events and transactions between those dates;
and shall, when approving the revised financial statements, cause the date on which the approval is given to be stated in them (or, in the case of revision effected by supplementary note, in that note).
(3) Without prejudice to the generality of subsection (1), subsections (8) to (10) of section 324 shall have effect as if, in addition to the references in that subsection (8) to the requirements as to the signing of the balance sheet and the inclusion of a statement of the signatory’s name, there were included references in that subsection to each of the requirements of paragraph (a) or (b), as the case may be, of subsection (2).
Section 369
Approval and signature of revised directors’ report
369. (1) Section 332 (approval and signing of directors’ report) shall apply to a revised directors’ report save that, in the case of a revision effected by supplementary note, it shall apply as if it required a signature or signatures on the supplementary note instead of on the report.
(2) Where copies of the original directors’ report have been sent to members under section 338, laid before the members in general meeting under section 341 or delivered to the Registrar under section 347, the directors shall, before approving the revised directors’ report under section 332, cause statements as to the following matters to be made in a prominent position in the revised directors’ report or, in the case of a revision effected by supplementary note, in that note—
(a) in the case of a revision effected by replacement—
(i) that the revised directors’ report replaces the original directors’ report for the financial year, specifying it,
(ii) that it has been prepared as at the date of the original directors’ report and not as at the date of the revision and, accordingly, does not deal with events and transactions between those dates,
(iii) the respects in which the original directors’ report did not comply with the requirements of this Act or, where applicable, of Article 4 of the IAS Regulation, and
(iv) any significant amendments made consequential upon the remedying of those defects,
(b) in the case of a revision effected by supplementary note—
(i) that the note revises in certain respects the original directors’ report of the company and is to be treated as forming part of that original directors’ report, and
(ii) that the directors’ report has been revised as at the date of the original directors’ report and not as at the date of the revision and accordingly does not deal with events and transactions between those dates,
and shall, when approving the revised directors’ report, cause the date on which the approval is given to be stated in them (or, in the case of revision effected by supplementary note, in that note).
(3) Without prejudice to the generality of subsection (1), subsections (4) and (5) of section 332 shall have effect as if, in addition to the references in that subsection (4) to the requirements as to the signing of the directors’ report and the inclusion of the signatory’s name, there were included references in that subsection to each of the requirements of paragraph (a) or (b), as the case may be, of subsection (2).
Section 370
Statutory auditors’ report on revised financial statements and revised report
370. (1) Subject to section 371 and subsection (3), a company’s current statutory auditors shall make a report or, as the case may be, a further report of the kind referred to in section 391, in the form required by section 336, to the company’s members under this section on revised financial statements prepared under section 366.
(2) In that case, section 392 (assessment of accounting records) and section 393 (reporting of offences) shall apply with the necessary modifications.
(3) Where the statutory auditors’ report on the original statutory financial statements was not made by the company’s current statutory auditors, the directors of the company may resolve that the report required by subsection (1) is to be made by the person or persons who made the first-mentioned report, provided that that person or those persons agree to do so and the person or persons would be qualified for appointment as statutory auditors of the company.
(4) Where the person or persons so qualified agree to make that report (and proceed to do so)—
(a) subsection (2) (application of sections 392 and 393) equally applies in such a case, and
(b) subsequent references in this Chapter, in relation to a report under this section, to statutory auditors shall be read as references to that person or those persons.
(5) Subject to section 379, a statutory auditors’ report under this section shall state whether, in the statutory auditors’ opinion, the revised financial statements have been properly prepared in accordance with the relevant financial reporting framework and, in particular, the provisions of this Act or, where applicable, of Article 4 of the IAS Regulation and, in relation to the latter, whether a true and fair view as at the date the original statutory financial statements were approved by the directors is given by the revised financial statements with respect to the matters set out in section 336.
(6) The report shall also state whether, in the statutory auditors’ opinion, the original statutory financial statements failed to comply with the requirements of this Act or, where applicable, of Article 4 of the IAS Regulation in the respects identified by the directors in the statement required by section 368(2) to be made in the revised financial statements or supplementary note, as the case may be.
(7) The statutory auditors shall also consider whether the information contained in the directors’ report for the financial year for which the revised financial statements are prepared (or where that report has been revised under this Chapter, the revised directors’ report) is consistent with those financial statements, and—
(a) if they are of the opinion that it is, or
(b) if they are of the opinion that it is not,
they shall state that fact in their report under this section.
(8) Section 337 (signature of statutory auditor’s report) shall apply to a statutory auditors’ report under this section as it applies to a statutory auditors’ report referred to in section 336 with the necessary modifications.
(9) A statutory auditors’ report under this section shall, upon being signed under section 337 as so applied, be, as from the date of signature, the statutory auditors’ report on the statutory financial statements of the company in place of the report on the original statutory financial statements.
Section 371
Cases where company has availed itself of audit exemption
371. (1) Section 370 does not apply to a company that is entitled to, and avails itself of, the audit exemption unless subsection (2) applies.
(2) Where as a result of the revisions to the statutory financial statements a company which, in respect of the original statutory financial statements, was entitled to, and availed itself of, the audit exemption becomes a company which is no longer entitled to that exemption, the company shall cause a report by the statutory auditors of the company on the revised financial statements to be prepared.
(3) The report made in accordance with subsection (2) shall be delivered to the Registrar within 2 months after the date of the revision of the financial statements.
Section 372
Statutory auditors’ report on revised directors’ report alone
372. (1) Subject to subsection (2), a company’s current statutory auditors shall make a report or, as the case may be, a further report, in the form required by section 336, to the company’s members on any revised directors’ report prepared under section 366 if the relevant statutory financial statements have not been revised at the same time.
(2) Where the statutory auditors’ report on the original statutory financial statements was not made by the company’s current statutory auditors, the directors of the company may resolve that the report required by subsection (1) is to be made by the person or persons who made the first-mentioned report, provided that that person or those persons agree to do so and the person or persons would be qualified for appointment as statutory auditors of the company.
(3) Where the person or persons so qualified agree to make that report (and proceed to do so), subsequent references in this Chapter, in relation to a report under this section, to statutory auditors shall be read as references to that person or those persons.
(4) The report shall state that the statutory auditors have considered whether the information given in the revised report is consistent with the original statutory financial statements for the relevant year (specifying it) and—
(a) if they are of the opinion that it is, or
(b) if they are of the opinion that it is not,
they shall state that fact in their report.
(5) Section 337 (signature of statutory auditor’s report) shall apply to a statutory auditors’ report under this section as it applies to a statutory auditors’ report under section 336 with the necessary modifications.
Section 373
Effect of revision
373. (1) Upon the directors approving revised financial statements under section 324 as applied by section 368, the provisions of this Act shall have effect as if the revised financial statements were, as from the date of their approval, the statutory financial statements of the company in place of the original statutory financial statements.
(2) In particular, the revised financial statements shall thereupon be the company’s statutory financial statements for the relevant financial year for the purposes of—
(a) section 339 (right to demand copies of financial statements and reports) and section 340 (requirements in relation to publication of financial statements), and
(b) each of the following (but only, in each case, if the requirements of the section concerned have not been complied with prior to the date of revision)—
(i) section 338 (circulation of statutory financial statements),
(ii) section 341 (financial statements and reports to be laid before the members in general meeting), and
(iii) section 347 (documents to be annexed to annual return: all cases).
(3) Upon the directors approving a revised directors’ report under section 332 as applied by section 369, the provisions of this Act shall have effect as if the revised report were, as from the date of its approval, the directors’ report in place of the original directors’ report.
(4) In particular, the revised report shall thereupon be the directors’ report for the relevant financial year for the purposes of—
(a) section 339 (right of members to demand copies of financial statements and reports), and
(b) each of the following (but only, in each case, if the requirements of the section concerned have not been complied with prior to the date of revision):
(i) section 338 (circulation of statutory financial statements);
(ii) section 341 (financial statements and reports to be laid before the members in general meeting); and
(iii) section 347 (documents to be annexed to annual return: all cases).
Section 374
Publication of revised financial statements and reports
374. (1) This section has effect where the directors have prepared revised financial statements or a revised directors’ report under section 366 and copies of the original statutory financial statements or original directors’ report have been sent to any person under section 338.
(2) The directors shall send to any such person—
(a) in the case of a revision effected by replacement, a copy of the revised financial statements, or (as the case may be) the revised directors’ report, together with a copy of the statutory auditors’ report on those financial statements, or (as the case may be) on that report, or
(b) in the case of a revision effected by supplementary note, a copy of that note together with a copy of the statutory auditors’ report on the revised financial statements, or (as the case may be) on the revised directors’ report,
not more than 28 days after the date of revision.
(3) The directors shall also, not more than 28 days after the date of revision, send a copy of the revised financial statements or (as the case may be) the revised directors’ report, together with a copy of the statutory auditors’ report on those financial statements or (as the case may be) on that report, to any person who is not a person entitled to receive a copy under section 338 but who is, as at the date of revision—
(a) a member of the company,
(b) a holder of any debentures of the company, or
(c) a person who is entitled to receive notice of general meetings.
(4) If default is made in complying with this section, each of the directors who approved the revised financial statements under section 324 as applied by section 368 or the revised directors’ report under section 332 as applied by section 369 shall be guilty of a category 3 offence.
(5) Where, prior to the date of revision of the original statutory financial statements, the company—
(a) had completed sending copies of those financial statements under section 338, references in this Act to the day on which financial statements are sent under section 338 shall be read as references to the day on which the original statutory statements were sent under that section (applying subsection (8) of it as necessary) despite the fact that those financial statements have been revised, or
(b) had not completed sending copies of those financial statements under section 338, the foregoing references in this Act shall be read as references to the day, or the last day, on which the revised financial statements are sent under this section.
Annotations
Modifications (not altering text):
C107
Application of subs. (4) extended (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 42(5)(a), (b), in effect as per reg. 1(2), (3).
Offences
42. ...
(5) (a) A qualifying partnership that fails to comply with any provision referred to in sections 316(3), 325(6), 332(4), 335(3), 335(6), 337(5), 340(7), 343(11), 347(5), 348(6), 374(4), 376(3), 377(7), 1459 or 1460 of the Principal Act as applied by these Regulations commits an offence.
(b) Where an offence under subparagraph (a) is committed by a qualifying partnership and it is proved that the offence was committed with the consent or connivance, or was attributable to any wilful neglect, of a person who was -
(i) a member of the qualifying partnership,
(ii) a director of such a member, or
(iii) a person purporting to act in either such capacity,
that person shall, as well as the qualifying partnership, be guilty of an offence and may be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
...
Section 375
Laying of revised financial statements or a revised report
375. (1) This section has effect where the directors of a company have prepared revised financial statements or a revised directors’ report under section 366 and copies of the original statutory financial statements or directors’ report have been laid before a general meeting of the company under section 341.
(2) A copy of the revised financial statements or (as the case may be) the revised directors’ report, together with a copy of the statutory auditors’ report on those financial statements, or (as the case may be) on that report, shall be laid before the next general meeting of the company held after the date of revision at which any statutory financial statements for a financial year are laid, unless the revised financial statements, or (as the case may be) the revised directors’ report, have already been laid before an earlier general meeting.
Annotations
Modifications (not altering text):
C108
Application of section restricted (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 15, in effect as per reg. 1(2), (3).
Non-application of certain provisions of Principal Act
15. Sections 281 to 286, 305A, 312, 318, 319, 325(1)(c), (d) and (e), 326(1)(c) and (d) and (2)(d), 328, 338, 339, 341, 375, 381 to 385, 392, 396 to 398, 401 and 402 of the Principal Act shall not apply to a qualifying partnership.
Section 376
Delivery of revised financial statements or a revised report
376. (1) This section has effect where the directors of a company have prepared revised financial statements or a revised directors’ report under section 366 and a copy of the original statutory financial statements or directors’ report, as annexed to the company’s annual return, has been delivered to the Registrar under section 343.
(2) The directors of the company shall, within 28 days after the date of revision, deliver to the Registrar—
(a) in the case of a revision effected by replacement, a copy of the revised financial statements or (as the case may be) the revised directors’ report, together with a copy of the statutory auditors’ report on those financial statements or (as the case may be) on that report, or
(b) in the case of a revision effected by supplementary note, a copy of that note, together with a copy of the statutory auditors’ report on the revised financial statements or (as the case may be) on the revised report.
(3) If a director fails to comply with subsection (2), he or she shall be guilty of a category 3 offence.
(4) Without limiting the obligations of the directors of a company under this section or subsection (3), it shall be the duty of a person who is a shadow director or de facto director of a company to ensure that the requirements of subsection (2) are complied with in relation to the company.
(5) If a person fails to comply with his or her duty under subsection (4), the person shall be guilty of a category 3 offence.
(6) If the original statutory financial statements or directors’ report in respect of the company have been registered by the Registrar prior to the date of receipt by the Registrar of the revised financial statements or (as the case may be) the revised directors’ report, then, despite anything in section 373(2), this section shall operate so as to require—
(a) that the revised financial statements or (as the case may be) the revised directors’ report be placed on the register, and
(b) notwithstanding the taking of such action, that the original statutory financial statements or directors’ report continue to remain on the register.
(7) Section 347(2) applies for the purposes of the construction of references to a copy of a document in subsection (2) of this section as it applies for the purpose of the construction of the reference to a copy of a document in section 347(1).
(8) In this section “date of revision” means the date of revision of the original statutory financial statements.
Annotations
Modifications (not altering text):
C109
Application of subs. (3) extended (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 42(5)(a), (b), in effect as per reg. 1(2), (3).
Offences
42. ...
(5) (a) A qualifying partnership that fails to comply with any provision referred to in sections 316(3), 325(6), 332(4), 335(3), 335(6), 337(5), 340(7), 343(11), 347(5), 348(6), 374(4), 376(3), 377(7), 1459 or 1460 of the Principal Act as applied by these Regulations commits an offence.
(b) Where an offence under subparagraph (a) is committed by a qualifying partnership and it is proved that the offence was committed with the consent or connivance, or was attributable to any wilful neglect, of a person who was -
(i) a member of the qualifying partnership,
(ii) a director of such a member, or
(iii) a person purporting to act in either such capacity,
that person shall, as well as the qualifying partnership, be guilty of an offence and may be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
...
Section 377
Small and medium companies
377. (1) This section has effect (subject to section 379(2)) where the directors have prepared revised financial statements under section 366 and the company, prior to the date of revision, has, taking advantage of the exemption for a small F295[…] company conferred by section 352, delivered to the Registrar abridged financial statements.
(2) Where the abridged financial statements so delivered to the Registrar would, if they had been prepared by reference to the matters taken account of in the revised financial statements, not comply with the provisions of this Act or, where applicable, of Article 4 of the IAS Regulation whether because—
(a) the company would not have qualified as a small F296[…] company in the light of the revised financial statements, or
(b) the financial statements have been revised in a manner which affects the content of the abridged financial statements,
the directors of the company shall have the following duty.
(3) That duty is to cause the company either—
(a) to deliver to the Registrar, within 28 days after the date of revision, a copy of the revised financial statements, together with a copy of the directors’ report and the statutory auditors’ report on the revised financial statements, or
(b) if, on the basis of the revised financial statements, the company would be entitled under section 352 to do so, to prepare revised abridged financial statements under section 353 F297[…] and deliver them to the Registrar, together with a statement as to the effect of the revisions made,
and F298[sections 352 and 353] shall be read as being applicable in the circumstances referred to in paragraph (b) as they are applicable in circumstances not falling within this Chapter.
(4) Where the abridged financial statements would, if they had been prepared by reference to the matters taken account of in the revised financial statements, comply with the requirements of this Act, or, where that Article is applicable, the relevant requirements of this Act and the requirements of Article 4 of the IAS Regulation, the directors of the company shall have the following duty.
(5) That duty is to cause the company to deliver to the Registrar—
(a) a note stating that the statutory financial statements of the company for the relevant financial year (specifying it) have been revised in a respect which has no bearing on the abridged financial statements delivered for that year, and
(b) a copy of the statutory auditors’ report on the revised financial statements.
(6) Revised abridged financial statements referred to in subsection (3)(b) or a note under subsection (5) shall be delivered to the Registrar within 28 days after the date of revision.
(7) If a director fails to comply with his or her duty under subsection (2) or (4), he or she shall be guilty of a category 3 offence.
(8) Without limiting the obligations of the directors of a company under this section or subsection (7), it shall be the duty of a person who is a shadow director or de facto director of a company to ensure that the requirements of subsections (3) and (5) are complied with in relation to the company.
(9) If a person fails to comply with his or her duty under subsection (8), the person shall be guilty of a category 3 offence.
(10) Section 347(2) applies for the purposes of the construction of references to a copy of a document in subsection (3) or (5) of this section as it applies for the purpose of the construction of the reference to a copy of a document in section 347(1).
(11) In this section “date of revision” means the date of revision of the original statutory financial statements.
Annotations
Amendments:
F295
Deleted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 63(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F296
Deleted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 63(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F297
Deleted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 63(c)(i), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F298
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 63(c)(ii), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Modifications (not altering text):
C110
Application of subs. (7) extended (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 42(5)(a), (b), in effect as per reg. 1(2), (3).
Offences
42. ...
(5) (a) A qualifying partnership that fails to comply with any provision referred to in sections 316(3), 325(6), 332(4), 335(3), 335(6), 337(5), 340(7), 343(11), 347(5), 348(6), 374(4), 376(3), 377(7), 1459 or 1460 of the Principal Act as applied by these Regulations commits an offence.
(b) Where an offence under subparagraph (a) is committed by a qualifying partnership and it is proved that the offence was committed with the consent or connivance, or was attributable to any wilful neglect, of a person who was -
(i) a member of the qualifying partnership,
(ii) a director of such a member, or
(iii) a person purporting to act in either such capacity,
that person shall, as well as the qualifying partnership, be guilty of an offence and may be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
...
C111
Application of section restricted (24.06.2015) by European Union (Credit Institutions: Financial Statements) Regulations 2015 (S.I. No. 266 of 2015), reg. 8, in effect as per reg. 1(2).
Non-application of certain provisions of Principal Act to credit institutions
8. (1) A credit institution shall not qualify as a small or medium company for the purposes of Chapter 14 of Part 6 of the Principal Act.
(2) In addition to what is provided by paragraph (1) each provision of the Principal Act specified in the Table to this Regulation, in so far as it is not already disapplied by that Act to such an institution, shall not apply to a credit institution.
...
Table
...
Section 377 (Small and medium sized companies)
S...
C112
Application of section restricted (17.06.2015) by European Union (Insurance Undertakings: Financial Statements) Regulations 2015 (S.I. No. 262 of 2015), reg. 6, in effect as per reg. 1(2).
Non-application of certain provisions of Principal Act to insurance undertakings
6. (1) An insurance undertaking shall not qualify as a small or medium company for the purposes of Chapter 14 of Part 6 of the Principal Act and any reference in that Part to a small or medium company shall be read as excluding a reference to an insurance undertaking.
(2) In addition to what is provided by paragraph (1), each provision of the Principal Act specified in the Table to this Regulation, in so far as it is not already disapplied by that Act to such an undertaking, shall not apply to an insurance undertaking.
...
Table
...
Section 377 (Small and medium sized companies)
...
Section 378
Application of this Chapter in cases where audit exemption available, etc.
378. Where, based on the revised financial statements prepared under section 366, a company—
(a) is entitled to, and avails itself of, the audit exemption in respect of the financial year concerned, or
(b) would have been entitled, but for the time that it takes to complete the preparation of those revised statements resulting in the directors not being able to make a decision in accordance with section 358(1) or (2) or section 365(1) (as the case may be) in that regard, to avail itself of the audit exemption in respect of that year,
this Chapter shall have effect as if any reference in it to a statutory auditors’ report, or to the making of such a report, were omitted.
Annotations
Modifications (not altering text):
C113
Application of section restricted (24.06.2015) by European Union (Credit Institutions: Financial Statements) Regulations 2015 (S.I. No. 266 of 2015), reg. 8, in effect as per reg. 1(2).
Non-application of certain provisions of Principal Act to credit institutions
8. ...
(2) In addition to what is provided by paragraph (1) each provision of the Principal Act specified in the Table to this Regulation, in so far as it is not already disapplied by that Act to such an institution, shall not apply to a credit institution.
...
Table
...
Section 378 (Application of this Chapter in cases where audit exemption available, etc.)
C114
Application of section restricted (17.06.2015) by European Union (Insurance Undertakings: Financial Statements) Regulations 2015 (S.I. No. 262 of 2015), reg. 6, in effect as per reg. 1(2).
Non-application of certain provisions of Principal Act to insurance undertakings
6. ...
(2) In addition to what is provided by paragraph (1), each provision of the Principal Act specified in the Table to this Regulation, in so far as it is not already disapplied by that Act to such an undertaking, shall not apply to an insurance undertaking.
...
Table
...
Section 378 (Application of this Chapter in cases where audit exemption available, etc.)
Section 379
Modifications of Act
379. (1) Where the provisions of the Act as to the matters to be included in the statutory financial statements of a company or (as the case may be) in a directors’ report have been amended after the date of the original statutory financial statements or (as the case may be) directors’ report but prior to the date of revision, references in sections 366 and 370(3) to the provisions of this Act shall be read as references to the provisions of this Act as in force at the date of approval of the original statutory financial statements or (as the case may be) directors’ report.
(2) Where the provisions of section 353 F299[…] as to the matters to be included in abridged financial statements have been amended after the date of delivery of the original abridged financial statements but prior to the date of revision of the revised financial statements or report, references in section 370 to the provisions of this Act or to any particular provision of it shall be read as references to the provisions of this Act, or to the particular provision, as in force at the date of approval of the original abridged financial statements.
F300[(3) Where before the repeal of section 354 by section 3(1) of the Companies (Accounting) Act 2017, a medium company referred to in section 354 has prepared and filed abridged financial statements for a financial year in accordance with that section, the company may prepare and file revised abridged financial statements in respect of that financial year as if the said section 354 had not been repealed.]
Annotations
Amendments:
F299
Deleted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 64(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F300
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 64(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
CHAPTER 18
Appointment of statutory auditors
Section 380
Statutory auditors — general provisions (including as to the interpretation of provisions providing for auditors’ term of office)
380. (1) One or more statutory auditors shall be appointed in accordance with this Chapter for each financial year of the company.
(2) For convenience of expression (but save in certain instances where use of the singular form is more appropriate) the plural form — “statutory auditors” — is used throughout this Part irrespective of the fact that a single statutory auditor has been or is to be so appointed.
(3) A reference elsewhere in this Act to statutory auditors shall be read accordingly.
(4) The appointment of a firm (not being a body corporate) by its firm name to be the statutory auditors of a company shall be deemed to be an appointment of those persons who are—
(a) from time to time during the currency of the appointment the partners in that firm as from time to time constituted, and
(b) qualified to be statutory auditors of that company.
(5) Any—
(a) reference in this Chapter to a person being appointed statutory auditor of a company to hold office until the conclusion of the next annual general meeting of the company, or
(b) provision otherwise of this Chapter stating that a person appointed statutory auditor shall hold such office until the conclusion of such a general meeting,
shall be read as meaning that the person shall hold such office until the conclusion of such a general meeting save where one of the following sooner happens—
(i) the person’s resignation (in accordance with this Part) or death,
(ii) the termination of the person’s office (or his or her removal otherwise from office) pursuant to this Part, or
F301[(iii) the person’s becoming disqualified from holding office by virtue of F302[the relevant provisions (within the meaning of section 900)].]
F303[(6) A contractual clause which has the effect of restricting the choice by the general meeting of shareholders or members of a company pursuant to this Part to certain categories or lists of statutory auditors as regards the appointment of a particular statutory auditor to carry out the statutory audit of that company shall be prohibited and shall be void.]
Annotations
Amendments:
F301
Substituted (17.06.2016) by European Union (Statutory Audits) (Directive 2006/43/EC, as amended by Directive 2014/56/EU, and Regulation (EU) No 537/2014) Regulations 2016 (S.I. No. 312 of 2016), reg. 11, in effect as per regs. 1(2), 3 and subject to transitional provision in reg. 143.
F302
Substituted (21.09.2018) by Companies (Statutory Audits) Act 2018 (22/2018), s. 11(a), S.I. No. 366 of 2018.
F303
Inserted (21.09.2018) by Companies (Statutory Audits) Act 2018 (22/2018), s. 11(b), S.I. No. 366 of 2018.
Modifications (not altering text):
C115
Section applied with modifications (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 27, in effect as per reg. 1(2), (3).
Application of section 380 of Principal Act
27. Section 380 of the Principal Act shall apply to a qualifying partnership as if -
(a) subsection (1) read:
“(1) The partners in a qualifying partnership shall appoint one or more statutory auditors for each financial year of the partnership.”,
and
(b) subsection (5) were omitted.
Section 381
Remuneration of statutory auditors
381. (1) The remuneration of the statutory auditors—
(a) where they are appointed by the directors pursuant to this Chapter, shall be agreed with the directors,
(b) where they are—
(i) appointed by the members pursuant to this Chapter, or
(ii) deemed under section 383(2) to be re-appointed,
may be fixed by the members—
(I) at the annual general meeting or extraordinary general meeting concerned and thereafter at each annual general meeting subsequent to that meeting falling during the auditors’ term of office, or
(II) in such other manner as the members may from time to time resolve,
or
(c) where they are appointed by the F304[Authority pursuant to section 385, may be fixed by the Authority or, to the extent, and in the circumstances, that the Authority] authorises such to be done, by the directors or members.
(2) For the purposes of this section, any sums paid by the company in respect of the statutory auditors’ expenses shall be deemed to be included in the expression “remuneration”.
Annotations
Amendments:
F304
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. no. 18, S.I. No. 335 of 2022.
Modifications (not altering text):
C116
Application of section restricted (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 15, in effect as per reg. 1(2), (3).
Non-application of certain provisions of Principal Act
15. Sections 281 to 286, 305A, 312, 318, 319, 325(1)(c), (d) and (e), 326(1)(c) and (d) and (2)(d), 328, 338, 339, 341, 375, 381 to 385, 392, 396 to 398, 401 and 402 of the Principal Act shall not apply to a qualifying partnership.
Section 382
Appointment of statutory auditors — first such appointments and powers of members vis a vis directors
382. (1) The first statutory auditors of a company may be appointed by the directors at any time before the first annual general meeting of the company.
(2) Statutory auditors so appointed shall hold office until the conclusion of that first annual general meeting save that the company may, at a prior general meeting, remove any such auditors and appoint in their place as statutory auditors of the company any other persons who have been nominated for such appointment by any member of the company.
(3) Notice of the nomination of those persons for such appointment shall have been given to the members of the company not less than 14 days before the date of the prior meeting.
(4) If the directors of the company fail to exercise their powers under subsection (1), the company in general meeting may appoint the first statutory auditors of the company and, in the event of their doing so, those powers of the directors shall then cease.
(5) Statutory auditors appointed by the company in general meeting pursuant to subsection (2) or (4) shall hold office until the conclusion of the first annual general meeting of the company.
Annotations
Modifications (not altering text):
C117
Application of section restricted (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 15, in effect as per reg. 1(2), (3).
Non-application of certain provisions of Principal Act
15. Sections 281 to 286, 305A, 312, 318, 319, 325(1)(c), (d) and (e), 326(1)(c) and (d) and (2)(d), 328, 338, 339, 341, 375, 381 to 385, 392, 396 to 398, 401 and 402 of the Principal Act shall not apply to a qualifying partnership.
Section 383
Subsequent appointments of statutory auditors (including provision for automatic re-appointment of auditors at annual general meetings)
383. (1) Subject to subsection (2), a company shall at each annual general meeting appoint statutory auditors to hold office from the conclusion of that until the conclusion of the next annual general meeting.
(2) Subject to subsection (3), at any annual general meeting a retiring statutory auditor, however appointed under this Part, shall be deemed to be re-appointed without any resolution being passed unless—
(a) he or she is not qualified for re-appointment, or
(b) a resolution has been passed at that meeting appointing somebody instead of him or her or providing expressly that he or she shall not be re-appointed, or
(c) he or she has given the company notice in writing, in accordance with section 400, of his or her unwillingness to be re-appointed.
(3) Where notice is given of an intended resolution to appoint some other person or persons in place of a retiring statutory auditor, and by reason of the death, incapacity or disqualification of that person or of all those persons, as the case may be, the resolution cannot be proceeded with, the retiring statutory auditor shall not be automatically re-appointed by virtue of subsection (2).
(4) A retiring statutory auditor, however appointed under this Part, shall also be deemed to be re-appointed, as of the date on which the last member to sign it signed the resolution, in a case where the members of the company (by signing the resolution referred to in section 175(3)) have relieved the company of the obligation to hold an annual general meeting.
Annotations
Modifications (not altering text):
C118
Application of section restricted (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 15, in effect as per reg. 1(2), (3).
Non-application of certain provisions of Principal Act
15. Sections 281 to 286, 305A, 312, 318, 319, 325(1)(c), (d) and (e), 326(1)(c) and (d) and (2)(d), 328, 338, 339, 341, 375, 381 to 385, 392, 396 to 398, 401 and 402 of the Principal Act shall not apply to a qualifying partnership.
Section 384
Appointment of statutory auditors by directors in other cases, etc.
384. (1) Where any casual vacancy in the office of statutory auditors arises, it shall be the duty of the directors to appoint statutory auditors to the company as soon as may be after that vacancy has arisen.
(2) Whenever by reason of circumstances arising the company is not entitled to the audit exemption in respect of the financial year concerned, it shall be the duty of the directors of the company to appoint statutory auditors of the company as soon as may be after those circumstances arise.
(3) Statutory auditors appointed pursuant to subsection (1) or (2) shall hold office until the conclusion of the next annual general meeting of the company held after their appointment.
Annotations
Modifications (not altering text):
C119
Application of section restricted (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 15, in effect as per reg. 1(2), (3).
Non-application of certain provisions of Principal Act
15. Sections 281 to 286, 305A, 312, 318, 319, 325(1)(c), (d) and (e), 326(1)(c) and (d) and (2)(d), 328, 338, 339, 341, 375, 381 to 385, 392, 396 to 398, 401 and 402 of the Principal Act shall not apply to a qualifying partnership.
Section 385
Appointment of statutory auditors: failure to appoint
385. (1) Where at an annual general meeting of a company no statutory auditors are appointed by the members and the company is not entitled to avail itself of the audit exemption, the F305[Authority] may appoint one or more persons to fill the position of statutory auditors of the company.
(2) A company shall—
(a) within one week after the date on which the F305[Authority’s power under subsection (1) becomes exercisable in relation to the company, give the Authority] notice in writing of that fact, and
(b) where a resolution removing the statutory auditors is passed, give notice of that fact in the prescribed form to the Registrar within 14 days after the date of the meeting at which the resolution removing the statutory auditors was passed.
(3) If a company fails to give notice as required by subsection (2)(a) or (b), the company and any officer of it who is in default shall be guilty of a category 3 offence.
(4) Statutory auditors appointed pursuant to subsection (1) shall hold office until the conclusion of the next annual general meeting of the company held after their appointment.
Annotations
Amendments:
F305
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. nos. 19, 20, S.I. No. 335 of 2022.
Modifications (not altering text):
C120
Application of section restricted (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 15, in effect as per reg. 1(2), (3).
Non-application of certain provisions of Principal Act
15. Sections 281 to 286, 305A, 312, 318, 319, 325(1)(c), (d) and (e), 326(1)(c) and (d) and (2)(d), 328, 338, 339, 341, 375, 381 to 385, 392, 396 to 398, 401 and 402 of the Principal Act shall not apply to a qualifying partnership.
CHAPTER 19
Rights, obligations and duties of statutory auditors
Section 386
Right of access to accounting records
386. Statutory auditors of a company shall have a right of access at all reasonable times to the accounting records of the company.
Section 387
Right to information and explanations concerning company
387. (1) Statutory auditors of a company may require from the officers of the company such information and explanations as appear to the auditors to be within the officers’ knowledge or can be procured by them and which the statutory auditors think necessary for the performance of their duties.
(2) Without limiting subsection (1), an officer of a company shall be guilty of a category 2 offence if the officer fails to comply—
(a) within 2 days after the date on which it is made, with a requirement made of him or her by the statutory auditors of the company to provide to those auditors any information or explanations that those auditors require as statutory auditors of the company, or
(b) within 2 days after the date on which it is made, with a requirement made of him or her by the statutory auditors of the holding company of that company to provide to those auditors any information or explanations that those auditors require as statutory auditors of the holding company,
being, in either case, information or explanations that is or are within the knowledge of, or can be procured by, the officer.
(3) In any proceedings against a person in respect of an offence under subsection (2), it shall be a defence to prove that it was not reasonably possible for the person to comply with the requirement under subsection (2)(a) or (b) to which the offence relates within the time specified in that provision but that he or she complied with it as soon as was reasonably possible after the expiration of such time.
(4) In this section “officer”, in relation to a company, includes any employee of the company and any shadow director and de facto director of it.
Annotations
Modifications (not altering text):
C121
Subs. (4) applied with modifications (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 28, in effect as per reg. 1(2), (3).
Application of section 387 of Principal Act
28. Notwithstanding Regulation 8(2), the reference in section 387(4) of the Principal Act to “an officer, in relation to a company” shall, in relation to a qualifying partnership, be construed as including a reference to any employee of the partnership.
C122
Application of section extended (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 42(7), (9), in effect as per reg. 1(2), (3).
Offences
42. ...
(7) If any person who is a -
(a) partner in a qualifying partnership,
(b) employee of a qualifying partnership, or
(c) director of a member of a qualifying partnership,
fails to comply with a requirement referred to in section 387 of the Principal Act as applied by these Regulations, that person commits an offence and shall be liable -
(i) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or
(ii) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 3 years or both.
...
(9) In any proceedings against a person in respect of an offence referred to in section 387 or 388 of the Principal Act as applied by these Regulations, it shall be a defence to prove -
(a) that it was not reasonably possible for the person to comply with the requirement to which the offence relates within the time specified in the relevant provision of the Principal Act, and
(b) that the person complied with the requirement to which the offence relates as soon as was reasonably possible after the expiration of such time.
...
Section 388
Right to information and explanations concerning subsidiary undertakings
388. (1) Where a company (in this section referred to as the “holding company”) has a subsidiary undertaking, then—
(a) where the subsidiary undertaking is either—
(i) an existing company, a company registered under this Act or a body established in the State, or
(ii) a partnership or unincorporated body of persons having its principal place of business in the State,
it shall be the duty of the subsidiary undertaking and the statutory auditors, if any, of it to give to the statutory auditors of the holding company such information and explanations as the second-mentioned statutory auditors may reasonably require for the purposes of their duties as statutory auditors of the holding company,
(b) in any other case, it shall be the duty of the holding company, if required by its statutory auditors to do so, to take all such steps as are reasonably open to it to obtain from the subsidiary undertaking such information and explanations as are mentioned in paragraph (a).
(2) If an undertaking, body or other person fails to comply, within 5 days after the date on which it is made, with a requirement made of it or him or her under subsection (1)(a) or (b), the undertaking, body or other person, and any officer of the undertaking or body who is in default, shall be guilty of a category 2 offence.
(3) In any proceedings against a person in respect of an offence under subsection (2), it shall be a defence to prove that it was not reasonably possible for the person to comply with the requirement under subsection (1)(a) or (b) to which the offence relates within the time specified in subsection (2) but that he or she complied with it as soon as was reasonably possible after the expiration of such time.
(4) In subsection (2) “officer”, in relation to an undertaking or body, includes any employee of the undertaking or body and, if it is a company, any shadow director and de facto director of it.
Annotations
Modifications (not altering text):
C123
Application of section extended (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 42(7)-(9), in effect as per reg. 1(2), (3).
Offences
42. ...
(7) If any person who is a -
(a) partner in a qualifying partnership,
(b) employee of a qualifying partnership, or
(c) director of a member of a qualifying partnership,
fails to comply with a requirement referred to in section 387 of the Principal Act as applied by these Regulations, that person commits an offence and shall be liable -
(i) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or
(ii) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 3 years or both.
(8) If an undertaking, body or other person fails to comply with a requirement referred to in section 388 of the Principal Act as applied by these Regulations, that undertaking, body or other person, and any officer or employee of that undertaking, body or other person, shall be guilty of an offence and shall be liable -
(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or
(b) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 3 years or both.
(9) In any proceedings against a person in respect of an offence referred to in section 387 or 388 of the Principal Act as applied by these Regulations, it shall be a defence to prove -
(a) that it was not reasonably possible for the person to comply with the requirement to which the offence relates within the time specified in the relevant provision of the Principal Act, and
(b) that the person complied with the requirement to which the offence relates as soon as was reasonably possible after the expiration of such time.
...
Section 389
Offence to make false statements to statutory auditors
389. (1) An officer of a company who knowingly makes a statement to which this section applies that is misleading or false in a material particular, or makes such a statement being reckless as to whether it is so, shall be guilty of a category 2 offence.
(2) This section applies to any statement made to the statutory auditors of a company (whether orally or in writing) which conveys, or purports to convey, any information or explanation which they require under this Act, or are entitled so to require, as statutory auditors of the company.
(3) In this section “officer”, in relation to a company, includes any employee of the company and any shadow director and de facto director of it.
Annotations
Modifications (not altering text):
C124
Subs. (3) applied with modifications (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 29, in effect as per reg. 1(2), (3).
Application of section 389 of Principal Act
29. Notwithstanding Regulation 8(2), the reference in section 389(3) of the Principal Act to an officer, in relation to a company, shall, in relation to a qualifying partnership, be construed as including -
(a) a limited partner, and
(b) any employee of the partnership.
C125
Application of section extended (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 42(10), in effect as per reg. 1(2), (3).
Offences
42. ...
(10) If a person who is a partner in, or employee of, a qualifying partnership makes a statement referred to in section 389 of the Principal Act as applied by these Regulations -
(a) knowing that it is misleading or false in a material particular, or
(b) being reckless as to whether it is misleading or false in a material particular, that person commits an offence and shall be liable -
(i) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or
(ii) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 3 years or both.
Section 390
Obligation to act with professional integrity
390. Without prejudice to the F306[Part 27], the one or more persons who are appointed as statutory auditors of a company shall be under a general duty to carry out the audit services concerned with professional integrity.
Annotations
Amendments:
F306
Substituted (21.09.2018) by Companies (Statutory Audits) Act 2018 (22/2018), s. 12, S.I. No. 366 of 2018.
Editorial Notes:
E89
Previous affecting provision: section amended (17.06.2016) by European Union (Statutory Audits) (Directive 2006/43/EC, as amended by Directive 2014/56/EU, and Regulation (EU) No 537/2014) Regulations 2016 (S.I. No. 312 of 2016), reg. 12, in effect as per regs. 1(2), 3 and subject to transitional provision in reg. 143; amendment substituted as per F-note above.
Section 391
Statutory auditors’ report on statutory financial statements
391. The statutory auditors of a company shall make, in the form set out in section 336, a report to the members on all statutory financial statements laid before the members during their tenure of office.
Annotations
Modifications (not altering text):
C126
Section applied with modifications (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 30, in effect as per reg. 1(2), (3).
Application of section 391 of Principal Act
30. The reference in section 391 of the Principal Act to a report to the members shall, in relation to a qualifying partnership, be construed as a reference to a report to the partners.
Section 392
Report to Registrar and to Director: accounting records
392. (1) If, at any time, the statutory auditors of a company form the opinion that the company is contravening, or has contravened, any of sections 281 to 285 the statutory auditors shall—
(a) as soon as may be, by recorded delivery, serve a notice in writing on the company stating their opinion, and
(b) not later than 7 days after the date of service of such notice on the company, notify the Registrar in the prescribed form of the notice and the Registrar shall forthwith forward a copy of the notice to the F307[Authority].
(2) Where the statutory auditors form the opinion that the company has contravened any of sections 281 to 285 but that, following such contravention, the directors of the company have taken the necessary steps to ensure that those provisions are complied with, subsection (1)(b) shall not apply.
(3) This section shall not require the statutory auditors to make the notifications referred to in subsection (1) if they are of the opinion that the contraventions concerned are minor or otherwise immaterial in nature.
(4) Where the statutory auditors of a company make a notification pursuant to subsection (1)(b), they shall, if requested F307[by the Authority]—
(a) furnish to the F307[Authority] such information, including an explanation of the reasons for their opinion that the company had contravened any of sections 281 to 285, and
(b) give to the F307[Authority] such access to documents, including facilities for inspecting and taking copies,
being information or documents in their possession or control and relating to the matter the subject of the notification, F307[as the Authority] may require.
(5) Any written information given in response to a request of the F307[Authority] under subsection (4) shall in all legal proceedings (other than proceedings for an offence) be admissible without further proof, until the contrary is shown, as evidence of the facts stated in it.
(6) No professional or legal duty to which statutory auditors are subject by virtue of their appointment as statutory auditors of a company shall be regarded as contravened by, and no liability to the company, its shareholders, creditors or other interested parties shall attach to, statutory auditors, by reason of their compliance with an obligation imposed on them by or under this section.
(7) Nothing in this section compels the disclosure by any person of any information that the person would be entitled to refuse to produce on the grounds of legal professional privilege or authorises the inspection or copying of any document containing such information that is in the person’s possession.
(8) A person who fails to make the notification required by subsection (1)(a) or (b) or to comply with a request under subsection (4)(a) or (b) shall be guilty of a category 3 offence.
Annotations
Amendments:
F307
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. nos. 21-26, S.I. No. 335 of 2022.
Modifications (not altering text):
C127
Application of section restricted (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 15, in effect as per reg. 1(2), (3).
Non-application of certain provisions of Principal Act
15. Sections 281 to 286, 305A, 312, 318, 319, 325(1)(c), (d) and (e), 326(1)(c) and (d) and (2)(d), 328, 338, 339, 341, 375, 381 to 385, 392, 396 to 398, 401 and 402 of the Principal Act shall not apply to a qualifying partnership.
Section 393
Report to Registrar and Director: category 1 and 2 offences
393. (1) Where, in the course of, and by virtue of, their carrying out an audit of the financial statements of the company, information comes into the possession of the statutory auditors of a company that leads them to form the opinion that F308[there are reasonable grounds for believing that a category 1 or 2 offence may have been committed by the company or an officer or agent of it,] the statutory auditors shall, forthwith after having formed it, notify that opinion to the F309[Authority and provide the Authority] with particulars of the grounds on which they have formed that opinion.
(2) Where the statutory auditors of a company notify the F309[Authority of any matter pursuant to subsection (1), they shall, in addition to performing their obligations under that subsection, if requested by the Authority]—
(a) furnish the F309[Authority with such further information in their possession or control relating to the matter as the Authority] may require, including further information relating to the particulars of the grounds on which they formed the opinion referred to in that subsection,
(b) give the F309[Authority such access to books and documents in their possession or control relating to the matter as the Authority] may F310[require,]
(c) give the F309[Authority such access to facilities for the taking of copies of or extracts from those books and documents as the Authority] may F310[require, and]
F311[(d) furnish the Authority with such copies of, or extracts from, those books and documents as the Authority may require, accompanied by a certificate of the statutory auditors, bearing their signatures, stating that the copies or extracts so furnished are a true copy of, or extract from, the original books or documents concerned.]
(3) Any written information given in response to a request of the F309[Authority] under subsection (2) shall in all legal proceedings (other than proceedings for an offence) be admissible without further proof, until the contrary is shown, as evidence of the facts stated in it.
(4) No professional or legal duty to which statutory auditors are subject by virtue of their appointment as statutory auditors of a company shall be regarded as contravened by, and no liability to the company, its shareholders, creditors or other interested parties shall attach to, statutory auditors, by reason of their compliance with an obligation imposed on them by or under this section.
(5) Nothing in this section compels the disclosure by any person of any information that the person would be entitled to refuse to produce on the grounds of legal professional privilege or authorises the inspection or copying of any document containing such information that is in the person’s possession.
(6) A person who contravenes subsection (1) or fails to comply with a request under subsection (2) shall be guilty of a category 3 offence.
Annotations
Amendments:
F308
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 65, S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F309
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. nos. 27-32, S.I. No. 335 of 2022.
F310
Substituted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 23(a), (b), S.I. No. 639 of 2024.
F311
Inserted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 23(c), S.I. No. 639 of 2024.
Modifications (not altering text):
C128
Subs. (1) applied with modifications (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 31, in effect as per reg. 1(2), (3).
Application of section 393 of Principal Act
31. Section 393 of the Principal Act shall apply to a qualifying partnership as if, in subsection (1), “an offence under Regulation 42(1), (7), (8), (10), (11) or (12) of the European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019” were substituted for “a category 1 or 2 offence”.
C129
Application of subs. (6) extended (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 42(13), in effect as per reg. 1(2), (3).
Offences
42. ...
(13) If a person, being the statutory auditor of a qualifying partnership, fails to comply with a requirement referred to in section 393(6) or 400(8)(a) of the Principal Act as applied by these Regulations, that person shall be guilty of an offence and shall be liable on summary conviction to a class A fine or imprisonment for a term not exceeding 6 months or both.
...
CHAPTER 20
Removal and resignation of statutory auditors
Section 394
Removal of statutory auditors: general meeting
394. A company may, by ordinary resolution at a general meeting, remove a statutory auditor and appoint, in his or her place, any other person or persons, being a person or persons—
(a) who have been nominated for appointment by any member of the company and who are qualified by virtue of F312[Part 27] to be statutory auditors of the company, and
(b) of whose nomination notice has been given to its members,
but this is—
(i) subject to section 395, and
(ii) without prejudice to any rights of the statutory auditor in relation to his or her removal under this section.
Annotations
Amendments:
F312
Substituted (21.09.2018) by Companies (Statutory Audits) Act 2018 (22/2018), s. 13, S.I. No. 366 of 2018.
Modifications (not altering text):
C130
Section applied with modifications (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 32, in effect as per reg. 1(2), (3).
Application of section 394 of Principal Act
32. Section 394 of the Principal Act shall apply to a qualifying partnership as if it read:
“394. The partners in a qualifying partnership may remove a statutory auditor from office before the end of the auditor’s term of office and appoint, in his or her place, any other person or persons, being a person or persons who is or are qualified by virtue of Part 27 to be statutory auditors of the company, but this is subject to section 395.”.
Editorial Notes:
E90
Previous affecting provision: para. (a) amended (17.06.2016) by European Union (Statutory Audits) (Directive 2006/43/EC, as amended by Directive 2014/56/EU, and Regulation (EU) No 537/2014) Regulations 2016 (S.I. No. 312 of 2016), reg. 13, in effect as per regs. 1(2), (3) and subject to transitional provision in reg. 143; amendment substituted as per F-note above.
Section 395
Restrictions on removal of statutory auditor
395. (1) The passing of a resolution to which this section applies shall not be effective with respect to the matter it provides for unless—
(a) in case the resolution provides for the auditor’s removal from office, there are good and substantial grounds for the removal related to the conduct of the auditor with regard to the performance of his or her duties as auditor of the company or otherwise, or
(b) in the case of any other resolution to which this section applies, the passing of the resolution is, in the company’s opinion, in the best interests of the company,
but—
(i) for the foregoing purposes, diverging opinions on accounting treatments or audit procedures cannot constitute the basis for the passing of any such resolution, and
(ii) in paragraph (b) “best interests of the company” does not include any illegal or improper motive with regard to avoiding disclosures or detection of any failure by the company to comply with this Act.
(2) This section applies to—
(a) a resolution removing a statutory auditor from office,
(b) a resolution at an annual general meeting appointing somebody other than the retiring statutory auditor as statutory auditor,
(c) a resolution providing expressly that the retiring statutory auditor shall not be re-appointed.
Annotations
Modifications (not altering text):
C131
Section applied with modifications (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 33, in effect as per reg. 1(2), (3).
Application of section 395 of Principal Act
33. Section 395 of the Principal Act shall apply to a qualifying partnership as if it read:
“395. (1) A statutory auditor of a qualifying partnership shall not be removed from office before the end of that auditor’s term of office unless there are good and substantial grounds for the removal related to the conduct of the auditor with regard to the performance of his or her duties as auditor of the qualifying partnership or otherwise.
(2) For the purpose of paragraph (1), diverging opinions on accounting treatments or audit procedures cannot constitute good and substantial grounds for the removal from office of a statutory auditor.”.
Section 396
Extended notice requirement in cases of certain appointments, removals, etc., of auditors
396. (1) Extended notice shall be required for:
(a) a resolution at an annual general meeting of a company appointing as statutory auditors any persons other than the incumbent statutory auditors or providing expressly that the incumbent statutory auditors shall not be re-appointed;
(b) a resolution at a general meeting of a company removing statutory auditors from office; and
(c) a resolution at a general meeting of a company filling a casual vacancy in the office of statutory auditor.
(2) For the purpose of this section extended notice shall comprise the following requirements:
(a) the company shall be given by the person proposing the resolution not less than 28 days’ notice of the intention to move any such resolution; and
(b) on receipt of notice of such an intended resolution, the company—
(i) shall forthwith send a copy of it to the incumbent statutory auditors or the person (if any) whose ceasing to hold the office of statutory auditor of the company occasioned the casual vacancy, and
(ii) shall give its members notice of any such resolution at the same time and in the same manner as it gives notice of the meeting or, if that is not practicable, shall give them notice of it, either by advertisement in a daily newspaper circulating in the district in which the registered office of the company is situate or in any other mode allowed by this Act, not less than 21 days before the date of the meeting.
(3) If, after notice of the intention to move such a resolution has been given to the company, a meeting is called for a date 28 days or less after the date on which the notice has been given, the notice though not given within the time required by subsection (2) shall be deemed to have been properly given for the purposes of that subsection.
Annotations
Modifications (not altering text):
C132
Application of section restricted (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 15, in effect as per reg. 1(2), (3).
Non-application of certain provisions of Principal Act
15. Sections 281 to 286, 305A, 312, 318, 319, 325(1)(c), (d) and (e), 326(1)(c) and (d) and (2)(d), 328, 338, 339, 341, 375, 381 to 385, 392, 396 to 398, 401 and 402 of the Principal Act shall not apply to a qualifying partnership.
Section 397
Right of statutory auditors to make representations where their removal or non-re-appointment proposed
397. (1) In this section “relevant meeting” means the meeting at which the resolution mentioned in section 396(1)(a) or (b), as the case may be, is to be considered.
(2) Subject to subsection (4), where notice is given of such an intended resolution as is mentioned in section 396(1)(a) or (b) and the statutory auditors there mentioned make, in relation to the intended resolution, representations in writing to the company (not exceeding a reasonable length) and request their notification to be sent to members of the company, the company shall, unless the representations are received by it too late for it to do so—
(a) in any notice of the resolution given to members of the company, state the fact of the representations having been made, and
(b) send a copy of the representations to every member of the company to whom notice of the relevant meeting is sent (whether before or after receipt of the representations by the company).
(3) If a copy of the representations is not sent as is mentioned in subsection (2) (because either they were received too late or because of the company’s default) the statutory auditors concerned may (without prejudice to their right to be heard orally) require that the representations shall be read out at the relevant meeting.
(4) Copies of the representations need not be sent out and the representations need not be read out at the relevant meeting as mentioned in subsection (2) or (3) if, on the application either of the company or of any other person who claims to be aggrieved, the court is satisfied that the rights conferred by this section are being abused to secure needless publicity for defamatory matter and orders that those things need not be done.
(5) The court may order the company’s costs on such an application to be paid in whole or in part by the statutory auditors concerned notwithstanding that they are not a party to the application.
Annotations
Modifications (not altering text):
C133
Application of section restricted (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 15, in effect as per reg. 1(2), (3).
Non-application of certain provisions of Principal Act
15. Sections 281 to 286, 305A, 312, 318, 319, 325(1)(c), (d) and (e), 326(1)(c) and (d) and (2)(d), 328, 338, 339, 341, 375, 381 to 385, 392, 396 to 398, 401 and 402 of the Principal Act shall not apply to a qualifying partnership.
Section 398
Statutory auditors removed from office: their rights to get notice of, attend and be heard at general meeting
398. (1) Statutory auditors of a company who have been removed shall be entitled to attend—
(a) the next annual general meeting of the company after their removal, and
(b) the general meeting of the company at which it is proposed to consider a resolution for the filling of the vacancy occasioned by their removal,
and to receive all notices of, and other communications relating to, any such meeting which a member of the company is entitled to receive and to be heard at any general meeting that such a member attends on any part of the business of the meeting which concerns them as former statutory auditors of the company.
(2) Subject to subsection (4), where notice is given of such an intended resolution as is mentioned in subsection (1) and the statutory auditors there mentioned make, in relation to the intended resolution, representations in writing to the company (not exceeding a reasonable length) and request their notification to be sent to members of the company, the company shall, unless the representations are received by it too late for it to do so—
(a) in any notice of the resolution given to members of the company state the fact of the representations having been made, and
(b) send a copy of the representations to every member of the company to whom notice of the meeting is sent (whether before or after receipt of the representations by the company).
(3) If a copy of the representations is not sent as is mentioned in subsection (2) (because either they were received too late or because of the company’s default) the statutory auditors concerned may (without prejudice to their right to be heard orally) require that the representations shall be read out at the meeting.
(4) Copies of the representations need not be sent out and the representations need not be read out at the meeting as mentioned in subsection (2) or (3) if, on the application either of the company or of any other person who claims to be aggrieved, the court is satisfied that the rights conferred by this section are being abused to secure needless publicity for defamatory matter and orders that those things need not be done.
(5) The court may order the company’s costs on such an application to be paid in whole or in part by the statutory auditors concerned notwithstanding that they are not a party to the application.
Annotations
Modifications (not altering text):
C134
Application of section restricted (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 15, in effect as per reg. 1(2), (3).
Non-application of certain provisions of Principal Act
15. Sections 281 to 286, 305A, 312, 318, 319, 325(1)(c), (d) and (e), 326(1)(c) and (d) and (2)(d), 328, 338, 339, 341, 375, 381 to 385, 392, 396 to 398, 401 and 402 of the Principal Act shall not apply to a qualifying partnership.
Section 399
Removal of statutory auditors: statement from statutory auditors where audit exemption availed of by company
399. (1) If a company, which avails itself of the audit exemption—
(a) decides that the appointment of persons as statutory auditors to the company should not be continued during the whole or part of a financial year in which the exemption is being availed of in relation to the company, and
(b) decides, accordingly, to terminate the appointment of those persons as statutory auditors to the company,
then—
(i) the statutory auditors shall, within the period of 21 days after the date of their being notified by the company of that decision, serve a notice on the company containing the statement referred to in subsection (2),
(ii) unless and until the statutory auditors serve such a notice, any purported termination of their appointment as statutory auditors to the company shall not have effect.
(2) The statement to be contained in a notice under subsection (1)(i) shall be whichever of the following is appropriate, namely:
(a) a statement to the effect that there are no circumstances connected with the decision of the company referred to in subsection (1) that the statutory auditors concerned consider should be brought to the notice of the members or creditors of the company; or
(b) a statement of any such circumstances as mentioned in paragraph (a).
(3) Where a notice under subsection (1)(i) is served on a company—
(a) the statutory auditors concerned shall, within 14 days after the date of such service, send a copy of the notice to the Registrar, and
(b) subject to subsection (4), the company shall, if the notice contains a statement referred to in subsection (2)(b), within 14 days after the date of such service, send a copy of the notice to every person who is entitled under section 338 to be sent copies of the documents referred to in that section.
(4) Copies of a notice served on a company under subsection (1) need not be sent to the persons specified in subsection (3)(b), if, on the application of the company concerned or any other person who claims to be aggrieved, the court is satisfied that the notice contains material which has been included to secure needless publicity for defamatory matter and orders that that thing need not be done.
(5) The court may order the company’s costs on such an application to be paid in whole or in part by the statutory auditors concerned notwithstanding that they are not a party to the application.
(6) Section 398 shall not apply to statutory auditors as respects their removal from office in the circumstances referred to in subsection (1).
Annotations
Modifications (not altering text):
C135
Section applied with modifications (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 34, in effect as per reg. 1(2), (3).
Application of section 399 of Principal Act
34. Section 399 of the Principal Act shall apply to a qualifying partnership as if subsections (3)(b), (4), (5) and (6) were omitted.
Section 400
Resignation of statutory auditors: general
400. (1) Statutory auditors of a company may, by a notice in writing that complies with subsection (3) served on the company and stating their intention to do so, resign from the office of statutory auditors to the company.
(2) The resignation shall take effect on the date on which the notice is so served or on such later date as may be specified in the notice.
(3) A notice under subsection (1) shall contain either—
(a) a statement to the effect that there are no circumstances connected with the resignation to which it relates that the statutory auditors concerned consider should be brought to the notice of the members or creditors of the company, or
(b) a statement of any such circumstances as mentioned in paragraph (a).
(4) Where a notice under subsection (1) is served on a company—
(a) the statutory auditors concerned shall, within 14 days after the date of such service, send a copy of the notice to the Registrar, and
(b) subject to subsection (5), the company shall, if the notice contains a statement referred to in subsection (3)(b), not later than 14 days after the date of such service, send a copy of the notice to every person who is entitled under section 338 to be sent copies of the documents referred to in that section.
(5) Copies of a notice served on a company under subsection (1) need not be sent to the persons specified in subsection (4)(b) if, on the application of the company concerned or any other person who claims to be aggrieved, the court is satisfied that the notice contains material which has been included to secure needless publicity for defamatory matter and orders that that thing need not be done.
(6) The court may order the company’s costs on such an application to be paid in whole or in part by the statutory auditors concerned notwithstanding that they are not a party to the application.
(7) This section shall also apply to a notice given by statutory auditors referred to in section 383(2)(c) indicating their unwillingness to be re-appointed and, accordingly, for that purpose this section shall have effect as if—
(a) the following subsection were substituted for subsection (1):
“(1) Statutory auditors of a company may, by a notice in writing that complies with subsection (3) and which is served on the company, indicate their unwillingness to be re-appointed as statutory auditors to the company.”,
(b) subsection (2) were omitted, and
(c) the reference to the statutory auditors’ resignation in subsection (3) were a reference to the indication of their unwillingness to be re-appointed.
(8) A person who fails to comply with—
(a) subsection (3) or (4)(a), or
(b) either such provision as it applies by virtue of subsection (7),
shall be guilty of a category 3 offence.
(9) If default is made in complying with subsection (4)(b) or that provision as it applies by virtue of subsection (7), the company concerned and any officer of it who is in default shall be guilty of a category 3 offence.
(10) In subsection (9) “officer” includes any shadow director and de facto director.
Annotations
Modifications (not altering text):
C136
Section applied with modifications (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 35, in effect as per reg. 1(2), (3).
Application of section 400 of Principal Act
35. Section 400 of the Principal Act shall apply to a qualifying partnership as if subsections (4)(b), (5), (6), (7), (8)(b) and (9) were omitted.
C137
Application of subs. (8)(a) extended (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 42(13), in effect as per reg. 1(2), (3).
Offences
42. ...
(13) If a person, being the statutory auditor of a qualifying partnership, fails to comply with a requirement referred to in section 393(6) or 400(8)(a) of the Principal Act as applied by these Regulations, that person shall be guilty of an offence and shall be liable on summary conviction to a class A fine or imprisonment for a term not exceeding 6 months or both.
...
Section 401
Resignation of statutory auditor: requisition of general meeting
401. (1) A notice served by statutory auditors on a company under section 400 which contains a statement in accordance with subsection (3)(b) of that section may also requisition the convening by the directors of the company of a general meeting of the company for the following purpose.
(2) That purpose is the purpose of receiving and considering such information and explanation of the circumstances connected with the statutory auditors’ resignation from office as they may wish to give to the meeting.
(3) Where the statutory auditors make such a requisition, the directors of the company shall, within 14 days after the date of service on the company of the foregoing notice, proceed duly to convene a general meeting of the company for a day not more than 28 days after the date of such service.
(4) Subject to subsection (5), where—
(a) a notice served on a company under section 400 contains a statement in accordance with subsection (3)(b) of that section, and
(b) the statutory auditors concerned request the company to circulate to its members—
(i) before the next general meeting after their resignation, or
(ii) before any general meeting at which it is proposed to fill the vacancy caused by their resignation or convened pursuant to a requisition referred to in subsection (1),
a further statement in writing prepared by the statutory auditors of circumstances connected with their resignation that the statutory auditors consider should be brought to the notice of the members, the company shall—
(i) in any notice of the meeting given to members of the company state the fact of the statement having been made, and
(ii) send a copy of the statement to the Registrar and to every person who is entitled under section 338 to be sent copies of the documents referred to in that section.
(5) Subsection (4) need not be complied with by the company concerned if, on the application either of the company or any other person who claims to be aggrieved, the court is satisfied that the rights conferred by this section are being abused to secure needless publicity for defamatory matter and orders that that subsection need not be complied with.
(6) The court may order the company’s costs on such an application to be paid in whole or in part by the statutory auditors concerned notwithstanding that they are not a party to the application.
(7) If default is made in complying with subsection (3) or (4), the company concerned and any officer of it who is in default shall be guilty of a category 3 offence.
(8) In subsection (7) “officer” includes any shadow director and de facto director.
Annotations
Modifications (not altering text):
C138
Application of section restricted (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 15, in effect as per reg. 1(2), (3).
Non-application of certain provisions of Principal Act
15. Sections 281 to 286, 305A, 312, 318, 319, 325(1)(c), (d) and (e), 326(1)(c) and (d) and (2)(d), 328, 338, 339, 341, 375, 381 to 385, 392, 396 to 398, 401 and 402 of the Principal Act shall not apply to a qualifying partnership.
Section 402
Resignation of statutory auditors: right to get notice of, attend, and be heard at general meeting
402. (1) Statutory auditors of a company who have resigned from the office of statutory auditors shall be permitted by the company to attend—
(a) the next annual general meeting of the company after their resignation, and
(b) any general meeting of the company at which it is proposed to fill the vacancy caused by their resignation or convened pursuant to a requisition of theirs referred to in section 401(1),
and, for that purpose, the company shall—
(i) send them all notices of, and other communications relating to, any such meeting that a member of the company is entitled to receive, and
(ii) permit them to be heard at any such meeting which they attend on any part of the business of the meeting which concerns them as former statutory auditors of the company.
(2) If default is made in complying with subsection (1), the company concerned and any officer of it who is in default shall be guilty of a category 3 offence.
(3) In subsection (2) “officer” includes any shadow director and de facto director.
Annotations
Modifications (not altering text):
C139
Application of section restricted (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 15, in effect as per reg. 1(2), (3).
Non-application of certain provisions of Principal Act
15. Sections 281 to 286, 305A, 312, 318, 319, 325(1)(c), (d) and (e), 326(1)(c) and (d) and (2)(d), 328, 338, 339, 341, 375, 381 to 385, 392, 396 to 398, 401 and 402 of the Principal Act shall not apply to a qualifying partnership.
CHAPTER 21
Notification to Supervisory Authority of certain matters and auditors acting while subject to disqualification order
Section 403
Duty of auditor to notify Supervisory Authority regarding cessation of office
403. (1) Where, for any reason, during the period between the conclusion of the last annual general meeting and the conclusion of the next annual general meeting of a company, a statutory auditor ceases to hold office by virtue of section 394 or 400, the auditor shall—
(a) in such form and manner as the Supervisory Authority specifies, and
(b) within 30 days after the date of that cessation,
notify the Supervisory Authority that the auditor has ceased to hold office.
(2) That notification shall be accompanied by—
(a) in the case of resignation of the auditor, the notice served by the auditor under section 400(1), or
(b) in the case of removal of the auditor at a general meeting pursuant to section 394, a copy of any representations in writing made to the company, pursuant to section 397(2), by the outgoing auditor in relation to the intended resolution except where such representations were not sent out to the members of the company in consequence of an application to the court under section 397(4).
(3) Where, in the case of resignation, the notice served under section 400(1) is to the effect that there are no circumstances connected with the resignation to which it relates that the auditor concerned considers should be brought to the notice of members or creditors of the company, the notification under subsection (1) shall also be accompanied by a statement of the reasons for the auditor’s resignation.
(4) In this section—
(a) “resignation” includes an indication of unwillingness to be re-appointed at an annual general meeting; and
(b) a reference to a notice served under section 400(1) includes a reference to a notice given by the auditor that is referred to in section 383(2)(c).
Annotations
Modifications (not altering text):
C140
Section applied with modifications (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 36, in effect as per reg. 1(2), (3).
Application of section 403 of Principal Act
36. Section 403 of the Principal Act shall apply to a qualifying partnership as if it read:
“403. (1) Where, for any reason, a statutory auditor of a qualifying partnership ceases to hold office before the end of the auditor’s term of office, the auditor shall -
(a) in such form and manner as the Supervisory Authority specifies, and
(b) within 30 days after the date of that cessation,
notify the Supervisory Authority that the auditor has ceased to hold office.
(2) The notification under paragraph (1) shall be accompanied by -
(a) in the case of resignation of the auditor, the notice served by the auditor under section 400(1), and
(b) a copy of any representations in writing made to the qualifying partnership by the outgoing auditor in relation to the auditor ceasing to hold office.
(3) Where -
(a) a statutory auditor ceases to hold office due to his or her resignation, and
(b) the notice served under section 400(1) states that there are no circumstances connected with the resignation to which it relates that the auditor concerned considers should be brought to the notice of partners in or creditors of the partnership,
the notice shall be accompanied by a statement of the reasons for the auditor’s resignation.”.
Section 404
Duty of company to notify Supervisory Authority of auditor’s cessation of office
404. (1) Where, for any reason, during the period between the conclusion of the last annual general meeting and the conclusion of the next annual general meeting of a company, a statutory auditor ceases to hold office by virtue of section 394 or 400, the company shall—
(a) in such form and manner as the Supervisory Authority specifies, and
(b) within 30 days after the date of that cessation,
notify the Supervisory Authority that the auditor has ceased to hold office.
(2) That notification shall be accompanied by—
(a) in the case of resignation of the auditor, the notice served by the auditor under section 400(1), or
(b) in the case of removal of the auditor at a general meeting pursuant to section 394—
(i) a copy of the resolution removing the auditor, and
(ii) a copy of any representations in writing made to the company, pursuant to section 397(2), by the outgoing auditor in relation to the intended resolution except where such representations were not sent out to the members of the company in consequence of an application to the court under section 397(4).
(3) In this section—
(a) “resignation” includes an indication of unwillingness to be re-appointed at an annual general meeting; and
(b) a reference to a notice served under section 400(1) includes a reference to a notice given by the auditor that is referred to in section 383(2)(c).
Annotations
Modifications (not altering text):
C141
Section applied with modifications (1.01.2020) by European Union (Qualifying Partnerships: Accounting and Auditing) Regulations 2019 (S.I. No. 597 of 2019), reg. 37, in effect as per reg. 1(2), (3).
Application of section 404 of Principal Act
37. Section 404 of the Principal Act shall apply to a qualifying partnership as if it read:
“404. (1) Where, for any reason, a statutory auditor of a qualifying partnership ceases to hold office before the end of the auditor’s term of office, the partners in the qualifying partnership shall -
(a) in such form and manner as the Supervisory Authority specifies, and
(b) within 30 days after the date of that cessation,
notify the Supervisory Authority that the auditor has ceased to hold office.
(2) The notification under subsection (1) shall be accompanied by -
(a) a statement by the partners of the reasons for the auditor’s ceasing to hold office, and
(b) a copy of any representations in writing made to the qualifying partnership by the outgoing auditor in relation to the auditor ceasing to hold office.”.
Section 405
Prohibition on acting in relation to audit while disqualification order in force
405. (1) If a person who is subject or deemed to be subject to a disqualification order (within the meaning of Chapter 4 of Part 14)—
(a) becomes, or remains more than 28 days after the date of the making of the order, a partner in a firm of statutory auditors,
(b) gives directions or instructions in relation to the conduct of any part of the audit of the financial statements of a company, or
(c) works in any capacity in the conduct of an audit of the financial statements of a company,
he or she shall be guilty of a category 2 offence.
(2) Where a person is convicted of an offence under subsection (1), the period for which he or she was disqualified by virtue of the foregoing order shall be extended for—
(a) a further period of 10 years beginning after the date of conviction, or
(b) such other (shorter or longer) further period as the court, on the application of the prosecutor or the defendant and having regard to all the circumstances of the case, may order.
(3) Section 847 shall not apply to a person convicted of an offence under subsection (1).
CHAPTER 22
False statements — offence
Section 406
False statements in returns, financial statements, etc.
406. If a person in any return, statement, financial statement or other document required by or for the purposes of any provision of this Part intentionally makes a statement, false in any material particular, knowing it to be so false, the person shall be guilty of a category 2 offence.
CHAPTER 23
Transitional
Section 407
Transitional provision — companies accounting by reference to Sixth Schedule to Act of 1963
407. (1) Notwithstanding anything in this Part, the directors of an existing company may, in respect of a financial year to which this section applies, opt to prepare financial statements (and approve them) in accordance with the provisions of the Act of 1963 and the Sixth Schedule thereto.
(2) This section applies to a financial year of an existing private company that satisfies the following conditions—
(a) it begins before the commencement of this section and ends thereafter, and
(b) accounts in respect of it could, but for the repeal of the prior Companies Acts, have been prepared by the directors of the company in accordance with the provisions of the Act of 1963 and the Sixth Schedule thereto (as distinct from the Companies (Amendment) Act 1986 and the other provisions of the prior Companies Acts or regulations made under the European Communities Act 1972).
(3) All obligations and rights that arise under this Act consequent on or in respect of financial statements having been approved by the directors of a company shall likewise arise in relation to financial statements approved by directors in a case falling within subsection (1).
(4) In this section—
“accounts” means accounts under the Act of 1963;
“existing private company” shall have the meaning given to it by section 15 but with the omission of all the words appearing after paragraphs (a) and (b) of that definition in section 15.
PART 7
CHARGES AND DEBENTURES
CHAPTER 1
Interpretation
Section 408
Definitions (Part 7)
408. (1) In this Part—
“charge”, in relation to a company, means a mortgage or a charge, in an agreement (written or oral), that is created over an interest in any property of the company (and in section 409(8) and sections 414 to 421 includes a judgment mortgage) but does not include a mortgage or a charge, in an agreement (written or oral), that is created over an interest in—
(a) cash,
(b) money credited to an account of a financial institution, or any other deposits,
F313[(c) shares, including shares in a body corporate, bonds or debt instruments,]
(d) units in collective investment undertakings or money market instruments, or
(e) claims and rights (such as dividends or interest) in respect of any thing referred to in any of paragraphs (b) to (d);
“property”, in relation to a company, includes any assets or undertaking of the company.
(2) Any exclusion provided in subsection (1) to what is defined in that subsection as constituting a “charge” may be varied by order made by the Minister if the Minister considers that it is necessary or expedient to do so in consequence of any Community act adopted after the commencement of this section relating to financial collateral arrangements.
(3) For the avoidance of doubt, in the case of a mortgage or charge created over both—
(a) an interest in anything specified in any of paragraphs (a) to (e) of subsection (1); and
(b) any property, assets or undertaking not falling within any of those paragraphs,
the mortgage or charge shall, other than to the extent to which it is created over an interest in anything specified in any of the foregoing paragraphs of subsection (1), be regarded as a charge within the meaning of this Part.
Annotations
Amendments:
F313
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 98(c), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
CHAPTER 2
Registration of charges and priority
Section 409
Registration of charges created by companies
409. (1) Every charge created, after the commencement of this section, by a company shall be void against the liquidator and any creditor of the company unless either the procedure set out in—
(a) subsection (3) — the “one-stage procedure”, or
(b) subsection (4) — the “two-stage procedure”,
with respect to the charge’s registration is complied with.
(2) If, in purported compliance with the requirements of this Part as to the taking of steps in that behalf, there is received by the Registrar particulars of a charge that omit the required particulars in respect of one or more properties to which the charge relates, subsection (1) shall be read as operating to render void (as against the liquidator and any creditor of the company) the charge as it relates to the particular property or properties in respect of which that omission occurs but not otherwise.
(3) The procedure for registration under this subsection referred to in subsection (1) as the one-stage procedure consists of the taking of steps so that there is received by the Registrar, not later than 21 days after the date of the charge’s creation, the prescribed particulars, in the prescribed form, of the charge.
(4) The procedure for registration under this subsection referred to in subsection (1) as the two—stage procedure consists of the following, namely the taking of steps:
(a) so that there is received by the Registrar a notice stating the company’s intention to create the charge (being a notice in the prescribed form and containing the prescribed particulars of the charge); and
(b) so that, not later than 21 days after the date of the Registrar’s receipt of the notice under paragraph (a) (the “first-mentioned notice”), there is received by the Registrar a notice, in the prescribed form, stating that the charge referred to in the first-mentioned notice has been created.
(5) If the requirement under paragraph (b) of subsection (4) is not complied with, within the period specified in that paragraph, the notice received under paragraph (a) of that subsection in relation to the charge shall be removed by the Registrar from the register.
(6) Subsection (1) is without prejudice to any contract or obligation for repayment of the money secured by the charge concerned and when a charge becomes void under that subsection, the money secured by it shall immediately become payable.
(7) Where a charge comprises property outside the State, the prescribed particulars, in the prescribed form (and, as the case may be, the notice under subsection (4)(b)) may be sent for registration under this section, notwithstanding that further proceedings may be necessary to make the charge valid or effectual according to the law of the country in which the property is situate.
(8) If there is a change among the one or more persons entitled to a charge registered under this Part, the fact of that change having occurred, and particulars of the person or persons now entitled to the charge, may be delivered, in the prescribed form, to the Registrar and registered by him or her.
(9) Nothing in this section or any other provision of this Part authorises the delivery to the Registrar of a deed, or any supplemental document to it, and this Part does not impose or confer any duty or power on the Registrar to examine any deed or any supplemental document to it.
Section 410
Duty of company with respect to registration under section 409 and right of others to effect registration
410. (1) It shall be the duty of the company that creates the charge to comply with the procedure under section 409(3) or (4) with respect to the charge’s registration but this is without prejudice to subsection (2).
(2) Any person interested in the charge may use the procedure under section 409(3) or (4) with respect to its registration and the person’s using that procedure (and in compliance with section 409(3) or (4)) shall have the same effect as if the company had used that procedure (and in compliance with section 409(3) or (4)).
(3) Where such a person uses that procedure (and in compliance with section 409(3) or (4)), the person may recover from the company the amount of fees properly paid by that person to the Registrar in respect of the registration of the charge concerned.
Section 411
Duty of company to register charges existing on property acquired
411. (1) Where a company acquires any property which is subject to a charge that, if it had been created by the company after the acquisition of the property, would have given rise to the duty under section 409(1) on the part of the company with respect to the charge’s registration, then the company shall have the following duty.
(2) That duty is to take steps so that there is received by the Registrar, not later than 21 days after the date on which acquisition of the property concerned is completed, the prescribed particulars, in the prescribed form, of the charge.
(3) If default is made in complying with this section, the company and any officer of the company who is in default shall be guilty of a category 4 offence.
Section 412
Priority of charges
412. (1) For the purposes of this section—
(a) “relevant rule of law” means a rule of law that governs the priority of charges created by a company, and for the avoidance of doubt, any enactment governing the priority of such charges is not encompassed by that expression,
(b) the reference in subsection (2) to any priority that one charge, by virtue of a person’s not having notice of a matter, enjoys over another charge or charges shall be deemed to include a reference to any priority that an advance made on foot of a charge, by virtue of a person’s not having notice of a matter, enjoys over a subsequent charge or charges.
(2) On and from the commencement of this section, any relevant rule of law shall stand modified in the manner specified in subsection (3), but not so as to displace any priority, whether before or after that commencement, that one charge, by virtue of a person’s not having notice of a matter, enjoys over another charge or charges.
(3) That modification is that, for the part of the rule that operates by reference to the time of creation of the 2 or more charges concerned, there shall be substituted a part that operates by reference to—
(a) the dates of receipt by the Registrar of the prescribed particulars of the 2 or more charges concerned, or
(b) if the date of receipt by the Registrar of the prescribed particulars of the 2 or more charges is the same, the respective times, on the date concerned, of receipt by the Registrar of those particulars.
(4) References in subsection (3) to the date, or time, of receipt of the prescribed particulars are references to—
(a) if the procedure under subsection (3) of section 409 is complied with in relation to a particular charge, the date, or time, of receipt by the Registrar of the prescribed particulars, in the prescribed form, of the charge, or
(b) if the procedure under subsection (4) of section 409 is complied with in relation to a particular charge, the date, or time, of receipt by the Registrar of the notice, in the prescribed form and containing the prescribed particulars, in relation to the charge under paragraph (a) of that subsection (4).
(5) Subsections (2) and (3) shall not affect any agreement between persons in whose favour charges have been created in relation to the priority that those charges shall, as between them, have.
(6) Subject to subsection (7) in relation to particulars of a charge received by the Registrar pursuant to section 409(3) or (4), the following provisions apply so far as those particulars consist of particulars of a negative pledge, any events that crystallise a floating charge or any restrictions on the use of any charged asset (and particulars of any such matter are referred to subsequently in this subsection as “extraneous material”):
(a) F314[the Registrar shall not be under any duty to enter in the register] under section 414 particulars of the extraneous material pursuant to that section;
(b) the fact that the Registrar has received the particulars of the extraneous material shall have no legal effect;
but nothing in the foregoing affects the validity of the receipt by the Registrar of the other particulars of the charge.
(7) Subsection (6) does not apply to particulars of a negative pledge included in particulars of a floating charge granted by a company to the Central Bank for the purposes of either providing or securing collateral.
(8) In this section “negative pledge” means any agreement entered into by the company concerned and any other person or persons that—
(a) provides that the company shall not, or shall not otherwise than in specified circumstances—
(i) borrow moneys or otherwise obtain credit from any person other than that person or those persons,
(ii) create or permit to subsist any charge, lien or other encumbrance or any pledge over the whole or any part of the property of the company, or
(iii) alienate or otherwise dispose of in any manner any of the property of the company,
or
(b) contains a prohibition, either generally or in specified circumstances, on the doing by the company of one or more things referred to in one, or more than one, provision of paragraph (a).
Annotations
Amendments:
F314
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 66, S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 413
Registration and priority of judgment mortgages
413. (1) If judgment is recovered against a company and that judgment is subsequently converted into a judgment mortgage affecting any property of the company, the judgment mortgage shall be void against the liquidator and any creditor of the company unless the procedure set out in subsection (2) with respect to the judgment mortgage’s registration is complied with.
(2) The procedure for registration under this subsection consists of the taking of steps so that there is received by the Registrar, together with the relevant judgment mortgage document, the prescribed particulars, in the prescribed form, of the judgment mortgage, not later than 21 days after the following date.
(3) That date is the date on which notification by the Property Registration Authority of the judgment mortgage’s creation is received by the judgment creditor.
(4) In subsection (2) the “relevant judgment mortgage document” means a certified copy of, as appropriate—
(a) Form 60, 60A or 60B set out in the Schedule of Forms to the Land Registration Rules 2012 (S.I. No. 483 of 2012) as amended by the Land Registration Rules 2013 (S.I. No. 389 of 2013), or
(b) Form 16 set out in the Schedule to the Registration of Deeds (No. 2) Rules 2009 (S.I. No. 457 of 2009),
used for the purposes of converting the judgment concerned into a judgment mortgage.
(5) For the purposes of this section, it shall be presumed, until the contrary is proved, that the judgment creditor received notification, of the judgment mortgage’s creation, from the Property Registration Authority on the third day after the date on which that notification is sent by it to the judgment creditor or his or her agent.
(6) If rules are made under section 126 of the Registration of Title Act 1964 or, as the case may be, section 48 of the Registration of Deeds and Title Act 2006—
(a) replacing a form that is referred to in subsection (4)(a) or (b), as appropriate, the reference in that provision to the form shall be read as a reference to the form as so replaced, or
(b) amending a form that is so referred to, the reference in that provision to the form shall be read as a reference to the form as it stands so amended.
(7) This section shall not apply to any judgment mortgage created before the commencement of this section.
Section 414
Register of charges
414. (1) The Registrar shall keep, in relation to each company, a register in the prescribed form, of the charges requiring registration under this Part, and shall, on payment of such fee as may be prescribed, enter in the register, in relation to such charges, the following particulars:
(a) without prejudice to paragraphs (e) and (f), in the case of a charge created by the company, the date of its creation and—
(i) where the procedure for registration under section 409(3) is complied with, the date and time of receipt by the Registrar under that provision of the prescribed particulars, in the prescribed form, of the charge, and
(ii) where the procedure for registration under section 409(4) is complied with, the respective dates and times of receipt by the Registrar of the notices under paragraphs (a) and (b) of that provision in relation to the charge;
(b) without prejudice to paragraphs (e) and (f), in the case of a charge existing on property acquired by the company, the date of the acquisition of the property by the company;
(c) without prejudice to paragraphs (e) and (f), in the case of a judgment mortgage, the date of the mortgage’s creation and the date and time, in relation to it, of receipt by the Registrar, under section 413(2), of the prescribed particulars in the prescribed form together with the relevant judgment mortgage document referred to in that provision;
(d) without prejudice to paragraphs (e) and (f), in the case of floating charge granted by the company to the Central Bank for the purposes either of providing or securing collateral, particulars of any provision of the charge that has the effect of prohibiting or restricting the company from issuing further securities that rank equally with that charge or modifying the ranking of that charge in relation to securities previously issued by the company;
(e) short particulars of the property charged; and
(f) the persons entitled to the charge.
(2) The register kept in pursuance of this section shall be open to inspection by any person on payment of such fee, if any, as may be prescribed.
Annotations
Editorial Notes:
E91
Power pursuant to subss. (1), (2) exercised (11.06.2023) by Companies Act 2014 (Fees) Regulations 2023 (S.I. No. 294 of 2023), in effect as per reg. 1(2).
E92
Previous affecting provision: power pursuant to subs. (1) exercised (8.12.2021) by Companies Act 2014 (Fees) (No. 2) Regulations 2021 (S.I. No. 674 of 2021), in effect as per reg. 1(2); revoked (11.06.2023) by Companies Act 2014 (Fees) Regulations 2023 (S.I. No. 294 of 2023), reg. 5, in effect as per reg. 1(2).
E93
Previous affecting provision: power pursuant to subss. (1), (2) exercised (1.08.2021) by Companies Act 2014 (Fees) Regulations 2021 (S.I. No. 395 of 2021), in effect as per reg. 1(2); revoked (8.12.2021) by Companies Act 2014 (Fees) (No. 2) Regulations 2021 (S.I. No. 674 of 2021), reg. 6, in effect as per reg. 1(2).
E94
Previous affecting provision: power pursuant to subss. (1), (2) exercised (16.12.2020) by Companies Act 2014 (Fees) Regulations 2020 (S.I. No. 626 of 2020), in effect as per reg. 1(2); revoked (1.08.2021) by Companies Act 2014 (Fees) Regulations 2021 (S.I. No. 395 of 2021), reg. 5, in effect as per reg. 1(2).
E95
Previous affecting provision: power pursuant to subs. (2) exercised (1.06.2015) by Companies Act 2014 (Fees) Regulations 2015 (S.I. No. 213 of 2015), in effect as per reg. 1(2); revoked (16.12.2020) by Companies Act 2014 (Fees) Regulations 2020 (S.I. No. 626 of 2020), reg. 5, in effect as per reg. 1(2).
Section 415
Certificate of registration
415. (1) The Registrar shall give a certificate of the registration of any charge registered in pursuance of this Part.
(2) Subject to subsection (3), such a certificate shall be conclusive evidence that the requirements of this Part as to the registration of the charge have been complied with.
(3) To the extent that the particulars of a charge delivered to the Registrar in purported compliance with this Part omit the required particulars in respect of one or more properties to which the charge relates, the evidential effect of the certificate provided under subsection (2) shall not extend to the particular property or properties in respect of which that omission occurs.
(4) Without prejudice to the generality of the definition, in section 408, of that expression, in subsection (3) “property” includes an interest in, or right over, property.
Section 416
Entries of satisfaction and release of property from charge
416. (1) The Registrar may exercise the powers under subsection (2), on evidence being given to his or her satisfaction with respect to any charge registered under this Part—
(a) that the debt in relation to which the charge was created has been paid or satisfied in whole or in part, or
(b) that part of the property charged has been released from the charge or has ceased to form part of the company’s property,
and, where the satisfaction or release has not been signed by or on behalf of the chargee, after giving notice to the person who, for the time being, stands registered as the person entitled to such charge or to the judgment creditor, as the case may be.
(2) Those powers are to enter on the register a memorandum—
(a) of satisfaction in whole or in part, or
(b) of the fact that part of the property has been released from the charge or has ceased to form part of the company’s property,
as the case may be.
(3) Where the Registrar enters such a memorandum of satisfaction in whole, he or she shall, if required, furnish the company with a copy of it.
(4) The Registrar may accept as evidence of a satisfaction or release referred to in subsection (1)(a) or (b) a statement in the prescribed form signed by a director and secretary of the company, or by 2 directors of the company, stating that the satisfaction or release has occurred.
(5) Where a person signs a statement referred to in subsection (4) knowing it to be false, the person shall be guilty of a category 2 offence.
(6) Where a person signs a statement referred to in subsection (4) and in doing so did not honestly believe on reasonable grounds that the statement was true, and the court considers that the making of that statement—
(a) contributed to the company being unable to pay its debts,
(b) prevented or impeded the orderly winding up of the company, or
(c) facilitated the defrauding of the creditors of the company,
the court, on the application of the liquidator or examiner or receiver of the property of, or any creditor or contributor of, the company, may, if it thinks it proper to do so, make the following declaration.
(7) That declaration is that that signatory shall be personally liable, without limitation of liability, for all or such part as the court may specify of the debts and other liabilities of the company.
Section 417
Extension of time for registration of charges and rectification of register
417. (1) The court may grant the following relief where it is satisfied that the omission to register a charge within the time required by this Part or that the omission or misstatement of any particular with respect to any such charge or in a memorandum of satisfaction—
(a) was accidental or due to inadvertence or to some other sufficient cause, or
(b) is not of a nature to prejudice the position of creditors or shareholders of the company,
or that on other grounds it is just and equitable to grant that relief in respect of such an omission or misstatement.
(2) That relief is to order, on such terms and conditions as seem to the court just and expedient, that the time for registration shall be extended, or, as the case may be, that the omission or misstatement shall be rectified.
(3) An application for relief under this section may be made on behalf of the company or any other person interested.
Section 418
Copies of instruments creating charges to be kept
418. (1) A company shall keep a copy of every instrument creating any charge in relation to it and requiring registration under this Part, including, in the case of a judgment mortgage, a copy of the relevant judgment mortgage document that was received by the Registrar.
(2) All such copies kept by the company shall be kept at the same place.
(3) Sections 215 to 217 (rights of inspection, etc.) apply to those copies.
(4) If default is made in complying with subsection (1) or (2), the company concerned and any officer of it who is in default shall be guilty of a category 3 offence.
Section 419
Registration of charges created prior to commencement of this Part
419. (1) Notwithstanding section 4, sections 99 to 106, 108 to 110 and 112 of the Act of 1963 shall continue to apply to charges (within the meaning of Part IV of that Act) created before the commencement of this Part.
(2) For the avoidance of doubt, the cases in which those provisions of the Act of 1963 continue to apply include any case where, as respects a charge (within the meaning of Part IV of that Act) created before the commencement of this Part, the time allowed under those provisions for the registration of that charge under that Part IV has not expired on that commencement, and the foregoing reference to the time allowed under those provisions includes the time allowed under those provisions as extended by an order (if such has been made) under section 106 of the Act of 1963.
Section 420
Transitional provisions in relation to priorities of charges
420. (1) In this section “charge to which the special transitional case applies” means a charge referred to in the case set out in section 419(2).
(2) Subject to subsection (3), the modification by section 412 of any rule of law there referred to (in this section referred to as the “section 412 rule modification”) shall not apply in relation to the issue of the priority of any charge (within the meaning of Part IV of the Act of 1963), created before the commencement of this Part, as against a charge falling within this Part created on or after that commencement.
(3) The section 412 rule modification shall apply in relation to the issue of the priority of a charge to which the special transitional case applies (as against a charge falling within this Part created on or after commencement of that Part) if the first-mentioned charge has not been registered under Part IV of the Act of 1963 before that commencement.
(4) For the purposes of the application of the section 412 rule modification to the issue of priority falling within subsection (3), references in section 412 to the date, or time, of receipt of the prescribed particulars shall, in relation to a charge to which the special transitional case applies, be read as references to the date, or time, of delivery to, or receipt by, the Registrar (under and in compliance with Part IV of the Act of 1963, as continued by section 419) of the matters that are required by that Part to be so delivered or received for the purposes of registering the charge thereunder.
(5) Non-compliance with the requirement in the second sentence of section 102(1) of the Act of 1963 shall be disregarded for the purposes of subsection (4).
Section 421
Netting of Financial Contracts Act 1995 not to affect registration requirements
421. Nothing in section 4(1) of the Netting of Financial Contracts Act 1995 affects—
(a) the requirement to register a charge under this Part, or
(b) the consequences of failing to register a charge under this Part.
CHAPTER 3
Provisions as to debentures
Section 422
Liability of trustees for debenture holders
422. (1) Subject to the provisions of this section, the following provision shall be void, namely, any provision contained—
(a) in a trust deed for securing an issue of debentures, or
(b) in any contract with the holders of debentures secured by a trust deed,
in so far as it would have the effect of exempting a trustee of it from, or indemnifying him or her against, liability for breach of trust where he or she fails to show the degree of care and diligence required of him or her as trustee, having regard to the provisions of the trust deed conferring on him or her any powers, authorities or discretions.
(2) Subsection (1) shall not invalidate—
(a) any release otherwise validly given in respect of anything done or omitted to be done by a trustee before the giving of the release, or
(b) any provision enabling such a release to be given—
(i) on the agreement to the provision of a majority of not less than three-fourths in value of the debenture holders present and voting in person or, where proxies are permitted, by proxy at a meeting summoned for the purpose, and
(ii) either with respect to specific acts or omissions or on the trustee dying or ceasing to act.
(3) Subsection (1) shall not operate—
(a) to invalidate any provision in force on 1 April 1964 so long as any person then entitled to the benefit of that provision or afterwards given the benefit of it under subsection (4), remains a trustee of the deed in question, or
(b) to deprive any person of any exemption or right to be indemnified in respect of anything done or omitted to be done by him or her while any such provision was in force.
(4) While any trustee of a trust deed remains entitled to the benefit of a provision saved by subsection (3), the benefit of that provision may be given either—
(a) to all trustees of the deed present and future, or
(b) to any named trustee or proposed trustees of the deed,
by a resolution passed by a majority of not less than three-fourths in value of the debenture holders present in person or, where proxies are permitted, by proxy at a meeting summoned for the purpose in accordance with the provisions of the deed, or if the deed makes no provision for summoning meetings, a meeting summoned for the purpose in any manner approved by the court.
Section 423
Perpetual debentures
423. A condition contained in any debentures or in any deed for securing any debentures shall not be invalid by reason only that the debentures are by those means made irredeemable or redeemable only on the happening of a contingency however remote, or on the expiration of a period however long, notwithstanding any rule of law to the contrary.
Section 424
Power to re-issue redeemed debentures
424. (1) Where a company has redeemed any debentures then—
(a) unless any provision to the contrary, whether express or implied, is contained in the constitution or in any contract entered into by the company, or
(b) unless the company has, by passing a resolution to that effect or by some other act, shown its intention that the debentures shall be cancelled,
the company shall have power to re-issue the debentures either by re-issuing the same debentures or by issuing other debentures in their place.
(2) Subject to section 425, on a re-issue of redeemed debentures, the person entitled to the debentures shall have the same priorities as if the debentures had never been redeemed.
(3) Where a company has deposited any of its debentures to secure advances from time to time on current account or otherwise, the debentures shall not be deemed to have been redeemed by reason only of the account of the company having ceased to be in debit whilst the debentures have remained so deposited.
Section 425
Saving of rights of certain mortgagees in case of re-issued debentures
425. Where any debentures which have been redeemed before 1 April 1964 are re-issued on, or subsequently to, that date, the re-issue of the debentures shall not prejudice, and shall be deemed never to have prejudiced, any right or priority which any person would have had under or by virtue of any charge created before that date if section 104 of the Companies (Consolidation) Act 1908 had been enacted in—
(a) the Act of 1963, or
(b) in the case of a re-issue occurring on or after the commencement of this section, this Act,
instead of section 95 of the Act of 1963 or section 424, as the case may be.
Section 426
Specific performance of contracts to subscribe for debentures
426. A contract with a company to take up and pay for any debentures of the company may be enforced by an order for specific performance.
CHAPTER 4
Prohibition on Registration of Certain Matters affecting Shareholders or Debentureholders
Section 427
Registration against company of certain matters prohibited
427. (1) Subject to subsection (3), the Registrar has, in relation to any company, no jurisdiction to accept receipt of, or to register in the register—
(a) an order of any authority (whether judicial or otherwise) affecting a shareholder or debentureholder of the company, or
(b) any notice of the making thereof.
(2) Any jurisdiction of an authority (whether judicial or otherwise) subsisting before the commencement of this section to make an order requiring that there be registered in the register, or that there be received by the Registrar—
(a) an order of that authority affecting a shareholder or debentureholder of a company, or
(b) a notice of the making of an order referred to in paragraph (a),
shall, after that commencement, cease to be exercisable.
(3) Nothing in this section affects the jurisdiction of any authority (whether judicial or otherwise) under Chapter 3 of Part 13 or Chapter 2 of Part 14.
PART 8
RECEIVERS
Annotations
Modifications (not altering text):
C142
Part applied with modifications (12.03.2015) by Irish Collective Asset-management Vehicles Act 2015 (2/2015), s. 153, S.I. No. 85 of 2015; this part commenced (1.06.2015) by Companies Act 2014 (Commencement) Order 2015 (S.I. No. 169 of 2015).
Receivers
153. (1) The provisions of Part 8 of the Companies Act 2014 , and the other provisions of that Act relating to receivers, apply, subject to the necessary modifications and to the specific modifications specified in subsection (2), in relation to an ICAV as if it were an investment company.
(2) The modifications are the following:
(a) references to the Registrar are to the Bank;
(b) references to the prescribed form are to such form as may be specified by the Bank;
(c) references in section 431(1) (e) to such further or other information as may be prescribed are to such further or other information as may be specified by the Bank;
(d) in section 439(4) the reference to section 220 is to section 77 of this Act and paragraphs (b) and (c) are omitted;
(e) the references in section 447 to the Director of Corporate Enforcement include the Bank.
CHAPTER 1
Interpretation
Section 428
Appointment of receiver under powers contained in instrument: construction of such reference
428. In this Part any reference to the appointment of a receiver under powers contained in any instrument includes a reference to an appointment made under powers which, by virtue of any enactment, are implied in and have effect as if contained in an instrument.
CHAPTER 2
Appointment of Receivers
Section 429
Notification that receiver has been appointed
429. (1) Where a receiver of the property of a company has been appointed, every invoice, order for goods or business letter issued by or on behalf of the company or the receiver, being a document on or in which the name of the company appears, shall contain a statement that a receiver has been appointed.
(2) Where—
(a) a receiver of the property of a company has been appointed, and
(b) a winding up of the company is taking place (whether that winding up has commenced before or after that appointment),
every invoice, order for goods or business letter issued by or on behalf of the company or the receiver, being a document on or in which the name of the company appears, shall, in addition to the statement referred to in subsection (1), contain a statement that the company is being wound up.
(3) Where a receiver of the property of a company has been appointed, then—
(a) any website of the company, and
(b) any electronic mail sent to a third party by, or on behalf of, the company,
shall contain a statement that a receiver has been appointed (and such a statement on a website shall be in a prominent and easily accessible place on it).
(4) Where—
(a) a receiver of the property of a company has been appointed, and
(b) a winding up of the company is taking place (whether that winding up has commenced before or after that appointment),
then—
(i) any website of the company, and
(ii) any electronic mail sent to a third party by, or on behalf of, the company,
shall, in addition to the statement referred to in subsection (3), contain a statement that the company is being wound up (and such a statement on a website shall be in a prominent and easily accessible place on it).
(5) In subsections (3) and (4), “third party” means a person other than—
(a) an officer or employee of the company concerned, or
(b) a holding company or subsidiary of the company or an officer or employee of that holding company or subsidiary.
(6) If default is made in complying with subsection (1) or (2)—
(a) the company and any officer of the company who is in default, and
(b) any of the following persons who knowingly and intentionally authorises or permits the default, namely, any liquidator of the company and any receiver,
shall be guilty of a category 4 offence.
(7) If default is made in complying with the requirement under subsection (3) or (4) concerning the company’s website, the company concerned and any officer of it who is in default shall be guilty of a category 4 offence.
(8) If default is made by a company, or any person acting on its behalf, in complying with the requirement under subsection (3) or (4) concerning electronic mail, then—
(a) in every case, the company and any officer of it who is in default, and
(b) where the default is made by a person acting on the company’s behalf, that person,
shall be guilty of a category 4 offence.
Section 430
Information to be given when receiver is appointed in certain circumstance
430. (1) Where a receiver of the whole, or substantially the whole, of the property of a company (referred to subsequently in this section and sections 431 and 432 as the “receiver”) is appointed on behalf of the holders of any debentures of the company secured by a floating charge, then subject to the provisions of this section and section 431—
(a) the receiver shall forthwith send notice to the company of his or her appointment,
(b) there shall, within 14 days after the date of receipt of the notice, or such longer period as may be allowed by the court or by the receiver, be made out and submitted to the receiver in accordance with section 431 a statement in the prescribed form as to the affairs of the company, and
(c) the receiver shall, within 2 months after the date of receipt of that statement, send to:
(i) the Registrar;
(ii) the court;
(iii) the company;
(iv) any trustees for the debenture holders on whose behalf he or she was appointed; and
(v) so far as he or she is aware of their addresses, all such debenture holders;
a copy of the statement and of any comments he or she sees fit to make on it.
(2) In subsection (3) “initial period of 6 months”, in relation to the receiver, means the period of 6 months falling after the date of his or her appointment.
(3) The receiver shall send to the Registrar—
(a) within 30 days after the expiration of—
(i) the initial period of 6 months, and
(ii) each subsequent period of 6 months,
and
(b) within 30 days after the date on which he or she ceases to act as receiver of the property of the company,
an abstract in the prescribed form showing—
(i) the assets of the company of which he or she has taken possession since his or her appointment, their estimated value and the proceeds of sale of any such assets since his or her appointment,
(ii) his or her receipts and payments during that period of 6 months or, where he or she ceases to act as mentioned above, during the period from the end of the period to which the last preceding abstract related up to the date of his or her so ceasing, and
(iii) the aggregate amounts of his or her receipts and of his or her payments during all preceding periods since his or her appointment.
(4) Where a receiver ceases to act as receiver of the property of the company, the abstract under subsection (3) shall be accompanied by a statement from the receiver of his or her opinion as to whether or not the company is solvent and the Registrar shall, on receiving the statement, forward a copy of it to the F315[Authority].
(5) Where a receiver is appointed under the powers contained in any instrument, this section shall have effect with the omission of the references to the court in subsection (1), and in any other case, references to the court shall be taken as referring to the court by which the receiver was appointed.
(6) Subsection (1) shall not apply in relation to the appointment of a receiver to act with an existing receiver or in place of a receiver dying or ceasing to act, except that, where that subsection applies to a receiver who dies or ceases to act before it has been fully complied with, the references in paragraphs (b) and (c) of it to the receiver shall (subject to subsection (7)) include references to his or her successor and to any continuing receiver. Nothing in this subsection shall be taken as limiting the meaning of the “receiver” where used in or in relation to subsection (3).
(7) This section and section 431, where the company is being wound up, shall apply notwithstanding that the receiver and the liquidator are the same person, but with any necessary modifications arising from that fact.
(8) Nothing in subsection (3) shall be taken to prejudice the duty of the receiver to render proper accounts of his or her receipts and payments to the persons to whom, and at the times at which, he or she may be required to do so apart from that subsection.
(9) Where the Registrar becomes aware of the appointment of a receiver referred to in this section, he or she shall forthwith inform the F315[Authority] of the appointment.
(10) If the receiver makes default in complying with this section, he or she shall be guilty of a category 4 offence.
Annotations
Amendments:
F315
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. nos. 33, 34, S.I. No. 335 of 2022.
F316
Substituted by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 24(a), not commenced as of date of revision.
F317
Inserted by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 24(b), not commenced as of date of revision.
Modifications (not altering text):
C143
Prospective affecting provision: subs. (3)(b) amended and subs. (3A) inserted by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 24, not commenced as of date of revision.
(3) The receiver shall send to the Registrar— ...
(b) within F316[7 days] after the date on which he or she ceases to act as receiver of the property of the company,
...
F317[(3A) (a) The receiver shall, on the request of a person referred to in paragraph (b), send to the person, not later than 7 days after the date of the request, the following information in the prescribed form:
(i) the terms upon which the receiver is entitled to remuneration in accordance with the instrument under which he or she stands appointed, including either—
(I) the amount to be paid by way of remuneration to the receiver in respect of his or her appointment, or
(II) where it is not practicable to ascertain that amount, the estimated amount expected to be paid by way of remuneration to the receiver in respect of his or her appointment,
or
(ii) where an order of the court is made under section 444, the amount fixed under that order to be paid by way of remuneration to the receiver.
(b) The following persons may make a request for the purposes of paragraph (a):
(i) a member of the company;
(ii) a creditor of the company;
(iii) such other persons as may be prescribed.
(c) The information required to be sent to a person under paragraph (a) may be sent by electronic means if—
(i) it is sent to an email address at which the person has agreed in writing to receive the information, and
(ii) a record that the email has been sent is made for the sender by the email system used.]
Editorial Notes:
E96
Power pursuant to subs. (3) exercised (16.12.2020) by Companies Act 2014 (Forms) Regulations 2020 (S.I. No. 627 of 2020), in effect as per reg. 1(2).
Section 431
Contents of statement to be submitted to receiver
431. (1) The statement as to the affairs of a company required by section 430 (the “statement”) to be submitted to the receiver (or his or her successor) shall show as at the date of the receiver’s appointment—
(a) particulars of the company’s assets, debts and liabilities,
(b) the names and residences of its creditors,
(c) the securities held by those creditors respectively,
(d) the dates when those securities were respectively given, and
(e) such further or other information as may be prescribed.
(2) The statement shall be submitted by, and be verified by affidavit of, one or more of the persons who are, at the date of the receiver’s appointment, the directors of the company, or by such of the persons referred to subsequently in this subsection as the receiver (or his or her successor) may require to submit and verify the statement, that is, persons—
(a) who are or have been officers of the company,
(b) who have taken part in the formation of the company at any time within one year before the date of the receiver’s appointment,
(c) who are in the employment of the company or have been in the employment of the company within that year, and are, in the opinion of the receiver, capable of giving the information required,
(d) who are or have been within that year, officers of or in the employment of a company which is, or within that year was, an officer of the company to which the statement relates.
(3) Any person making the statement and affidavit shall be allowed, and shall be paid by the receiver (or his or her successor) out of his or her receipts, such costs and expenses incurred in and about the preparation and making of the statement and affidavit as the receiver (or his or her successor) may consider reasonable, subject to an appeal to the court.
(4) Where the receiver is appointed under the powers contained in any instrument, this section shall have effect with the substitution, for references to an affidavit, of references to a statutory declaration; and in any other case, references to the court shall be taken to refer to the court by which the receiver was appointed.
(5) If any person to whom subsection (2) applies makes default in complying with the requirements of this section, he or she shall, unless he or she can prove to the satisfaction of the court that it was not possible for him or her to comply with the requirements of this section, be guilty of a category 3 offence.
(6) References in this section to the receiver’s successor include references to a continuing receiver.
Section 432
Consequences of contravention of section 430(1)(b) or 431
432. Where, in contravention of sections 430(1)(b) and 431, a statement of affairs is not submitted to the receiver as required by those provisions, the court may, on the application of the receiver or any creditor of the company, and notwithstanding section 431(5), make whatever order it thinks fit, including an order compelling compliance with sections 430 and 431.
Section 433
Disqualification for appointment as receiver
433. (1) None of the following persons shall be qualified for appointment as receiver of the property of a company:
(a) an undischarged bankrupt;
(b) a person who is, or who has, within the period of 12 months before the date of commencement of the receivership been, an officer or employee of the company;
(c) a parent, spouse, civil partner, brother, sister or child of an officer of the company;
(d) a person who is a partner of, or in the employment of, an officer or employee of the company;
(e) a person who is not qualified by virtue of this subsection for appointment as receiver of the property of any other body corporate which is that company’s subsidiary or holding company or a subsidiary of that company’s holding company, or would be so disqualified if the body corporate were a company;
(f) a body corporate.
(2) References in subsection (1) to—
(a) a child of an officer shall be deemed to include a child of the officer’s civil partner who is ordinarily resident with the officer and the civil partner,
(b) an officer or employee of the company include a statutory auditor.
(3) If a receiver of the property of a company becomes disqualified by virtue of this section, he or she shall thereupon vacate his or her office and give notice in writing within 14 days after the date of vacation to—
(a) the company,
(b) the Registrar,
(c) (i) the debenture-holder, if the receiver was appointed by a debenture-holder, or
(ii) the court, if the receiver was appointed by the court,
that he or she has vacated it by reason of such disqualification.
(4) Subsection (3) is without prejudice to sections 430(3), 436 and 441.
(5) Nothing in this section shall require a receiver appointed before 1 August 1991 to vacate the office to which he or she was so appointed.
(6) Any person who acts as a receiver when disqualified by this section from so doing or who fails to comply with subsection (3), if that subsection applies to him or her, shall be guilty of a category 2 offence.
Section 434
Resignation of receiver
434. (1) A receiver of the property of a company appointed under the powers contained in any instrument may resign, provided he or she has given at least 30 days’ prior notice of the date on which the resignation will take effect to—
(a) the holders of charges (whether fixed or floating) over all or any part of the property of the company, and
(b) the company or its liquidator.
(2) A receiver appointed by the court may resign only with the authority of the court and on such terms and conditions, if any, as may be specified by the court.
(3) If a person makes default in complying with subsection (1) or (2), he or she shall be guilty of a category 4 offence.
Section 435
Removal of receiver
435. (1) The court may, on cause shown, remove a receiver of the property of a company and appoint another receiver.
(2) Notice of proceedings in which such removal is sought shall be served on the receiver and on the person who appointed him or her not less than 7 days before the date of the hearing of such proceedings and, in any such proceedings, the receiver and the person who appointed him or her may appear and be heard.
Section 436
Notice to Registrar of appointment of receiver, and of receiver ceasing to act
436. (1) If any person obtains an order for the appointment of a receiver of the property of a company or appoints such a receiver under any powers contained in any instrument, he or she—
(a) shall cause to be published in Iris Oifigiúil, and
(b) shall deliver to the Registrar,
within 7 days after the date of the order or of the appointment, a notice in the prescribed form.
(2) When any person appointed receiver of the property of a company ceases to act as such receiver, he or she shall, on so ceasing, deliver to the Registrar a notice in the prescribed form.
(3) If a person makes default in complying with subsection (1) or (2), he or she shall be guilty of a category 4 offence.
Annotations
Amendments:
F318
Substituted by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 25(a), (c), not commenced as of date of revision.
F319
Inserted by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 25(b), not commenced as of date of revision.
Modifications (not altering text):
C144
Prospective affecting provision: subss. (1) and (2) amended and subs. (1A) inserted by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 25, not commenced as of date of revision.
436. (1) If any person obtains an order for the appointment of a receiver of the property of a company or appoints such a receiver under any powers contained in any instrument, he or she—
(a) shall cause to be published in Iris Oifigiúil, and
(b) shall deliver to the Registrar,
within 7 days after the date of the order or of the appointment, a notice in the F318[prescribed form specifying the information referred to in subsection (1A)].
F319[(1A) The notice referred to in subsection (1) shall specify the following information:
(a) the property of the company in respect of which the receiver is appointed;
(b) the date of appointment of the receiver;
(c) the nature of the appointment of the receiver in respect of the property concerned;
(d) whether the company will continue to trade following the appointment of the receiver;
(e) such further or other information as may be prescribed.]
(2) When any person appointed receiver of the property of a company ceases to act as such receiver, he or she shall, F318[within 7 days after the date on which he or she so ceases], deliver to the Registrar a notice in the prescribed form.
Editorial Notes:
E97
Power pursuant to subs. (1) exercised (16.12.2020) by Companies Act 2014 (Forms) Regulations 2020 (S.I. No. 627 of 2020), in effect as per reg. 1(2).
CHAPTER 3
Powers and Duties of Receivers
Section 437
Powers of receiver
437. (1) Subject to the provisions of this section, a receiver of the property of a company has power to do, in the State and elsewhere, all things necessary or convenient to be done for or in connection with, or as incidental to, the attainment of the objectives for which the receiver was appointed.
(2) Without limiting the generality of subsection (1) but subject to subsection (4), a receiver of the property of a company has (in addition to any powers conferred by the order or instrument referred to in subsection (4) or by any other law) power to do one or more of the following things for the purpose of attaining the objectives for which he or she was appointed.
(3) Those things are:
(a) to enter into possession and take control of property of the company in accordance with the terms of the order or instrument referred to in subsection (4);
(b) to lease, let on hire or dispose of property of the company;
(c) to grant options over property of the company on such conditions as the receiver thinks fit;
(d) to borrow money on the security of property of the company;
(e) to insure property of the company;
(f) to repair, renew or enlarge property of the company;
(g) to convert property of the company into money;
(h) to carry on any business of the company;
(i) to take on lease or on hire, or to acquire, any property necessary or convenient in connection with the carrying on of a business of the company;
(j) to execute any document, bring or defend any proceedings or do any other act or thing in the name of and on behalf of the company;
(k) to draw, accept, make and endorse a bill of exchange or promissory note;
(l) to use a seal of the company;
(m) to engage or discharge employees on behalf of the company;
(n) to appoint a solicitor, accountant or other professionally qualified person to assist the receiver;
(o) to appoint an agent to do any business that the receiver is unable to do, or that it is unreasonable to expect the receiver to do, in person;
(p) where a debt or liability is owed to the company, to prove the debt or liability in a bankruptcy, insolvency or winding up and, in connection therewith, to receive dividends and to assent to a proposal for a composition or a scheme of arrangement;
(q) if the receiver was appointed under an instrument that created a charge on uncalled share capital of the company—
(i) to make a call in the name of the company for the payment of money unpaid on the company’s shares, or
(ii) on giving a proper indemnity to a liquidator of the company, to make a call in the liquidator’s name for the payment of money unpaid on the company’s shares;
(r) to enforce payment of any call that is due and unpaid, whether the calls were made by the receiver or otherwise;
(s) to make or defend an application for the winding up of the company;
(t) to refer to arbitration or mediation, any question affecting the company.
(4) Subsections (1) and (2) are subject to any provision of the order of the court by which, or the instrument under which, the receiver was appointed, being a provision that limits the receiver’s powers in any way.
(5) The conferral on a receiver, by this section, of powers in relation to property of a company does not affect any rights in relation to that property of any other person other than the company.
(6) In subsections (3) and (5) a reference, in relation to a receiver, to property of a company is a reference to the property of the company in relation to which the receiver was appointed; this subsection is in addition to section 2(9) providing for construction of references to a receiver of property of a company.
Section 438
Power of receiver and certain others to apply to court for directions and receiver’s liability on contracts
438. (1) Where a receiver of the property of a company is appointed under the powers contained in any instrument, any of the following persons may apply to the court for directions in relation to any matter in connection with the performance or otherwise, by the receiver, of his or her functions, that is to say:
(a) (i) the receiver;
(ii) an officer of the company;
(iii) a member of the company;
(iv) employees of the company comprising at least half in number of the persons employed in a permanent capacity by the company;
(v) a creditor of the company;
and
(b) (i) a liquidator;
(ii) a contributory;
and, on any such application, the court may give such directions, or make such order declaring the rights of persons before the court or otherwise, as the court thinks just.
(2) An application to the court under subsection (1), except an application under that subsection by the receiver, shall be supported by such evidence that the applicant is being unfairly prejudiced by any actual or proposed act or omission of the receiver as the court may require.
(3) For the purposes of subsection (1), “creditor” means one or more creditors to whom the company is indebted by more, in aggregate, than €13,000.
(4) A receiver of the property of a company shall be personally liable on any contract entered into by him or her in the performance of his or her functions (whether such contract is entered into by the receiver in the name of such company or in his or her own name as receiver or otherwise) unless the contract provides that he or she is not to be personally liable on such contract.
(5) In those circumstances, the receiver shall be entitled in respect of that liability to indemnity out of the assets of the company; but nothing in subsection (4) or this subsection shall be taken as—
(a) limiting any right to indemnity which the receiver would have apart from this subsection, or
(b) limiting the receiver’s liability on contracts entered into without authority or as conferring any right to indemnity in respect of that liability.
(6) Subsection (7) applies where a receiver of the property of a company has been appointed or purported to be appointed and it is subsequently discovered that the charge or purported charge in respect of which he or she was so appointed or purported to be appointed was not effective as a charge on such property or on some part of such property.
(7) Where this subsection applies, the court may, if it thinks fit, on the application of the receiver referred to in subsection (6), order that he or she be relieved wholly, or to such extent as the court shall think fit, from personal liability in respect of anything done or omitted by him or her in relation to any property purporting to be comprised in the charge by virtue of which he or she was appointed or purported to be appointed which, if such property had been effectively included in such charge or purported charge, would have been properly done or omitted by him or her and he or she shall be relieved from personal liability accordingly.
(8) In the event of such an order being made, the person by whom such receiver was appointed or purported to be appointed shall be personally liable for everything for which, but for such order, such receiver would have been liable.
Section 439
Duty of receiver selling property to get best price reasonably obtainable, etc.
439. (1) A receiver of the property of a company shall, in selling property of the company, exercise all reasonable care to obtain the best price reasonably obtainable for the property as at the time of sale.
(2) Notwithstanding the provisions of any instrument and, in the case of paragraph (b), section 438(4) and (5)—
(a) it shall not be a defence to any action or proceeding brought against a receiver in respect of a breach of his or her duty under subsection (1) that the receiver was acting as the agent of the company or under a power of attorney given by the company, and
(b) a receiver shall not be entitled to be compensated or indemnified by the company for any liability he or she may incur as a result of a breach of his or her duty under that subsection.
(3) A receiver shall not sell by private contract a non-cash asset of the requisite value to a person who is, or who, within 3 years prior to the date of appointment of the receiver, has been, an officer of the company unless the receiver has given at least 14 days’ notice of his or her intention to do so to all creditors of the company who are known to the receiver or who have been intimated to the receiver.
(4) In this section—
“non-cash asset” and “requisite value” have the meanings given to them by section 238;
“officer” includes a person connected (within the meaning of section 220) with—
(a) a director of the company,
(b) a shadow director of it, or
(c) a de facto director of it.
Section 440
Preferential payments when receiver is appointed under floating charge
440. (1) Where either—
(a) a receiver of the property of a company is appointed on behalf of the holders of any debentures of the company secured by F320[any charge created as a floating charge by the company], or
(b) possession is taken by or on behalf of those debenture holders of any property comprised in or subject to the charge,
then, if the company is not at the time in the course of being wound up, the debts which in every winding up are, under the provisions of Part 11 relating to preferential payments, to be paid in priority to all other debts, shall be paid out of any assets coming to the hands of the receiver or other person taking possession as mentioned above in priority to any claim for principal or interest in respect of the debentures.
(2) In the application of the foregoing provisions, section 621(2)(c) shall be read as if the provision for payment of accrued holiday remuneration becoming payable on the termination of employment before or by the effect of the winding-up order or resolution were a provision for payment of such remuneration becoming payable on the termination of employment before or by the effect of the appointment of the receiver or possession being taken as mentioned above.
(3) For the purposes of this section, the periods of time mentioned in the foregoing provisions of Part 11 shall be reckoned as beginning after the date of the appointment of the receiver or of possession being taken as mentioned above, as the case may be.
(4) Any payments made under this section shall be recouped so far as may be out of the assets of the company available for payment of general creditors.
Annotations
Amendments:
F320
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 98(d), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Modifications (not altering text):
C145
Application of section construed by Taxes Consolidation Act 1997 (39/1997), s. 1080A(8)(d) as inserted (1.08.2020) by Financial Provisions (Covid-19) (No. 2) Act 2020 (8/2020), s. 6, commenced on enactment.
Interest on overdue tax - supplementary provision
1080A. ...
(8) Subject to subsection (9)—
(a) every enactment relating to the recovery of tax,
(b) every rule of court so relating,
(c) section 81 of the Bankruptcy Act 1988, and
(d) sections 440 and 621 of the Companies Act 2014,
shall apply to the recovery of any amount of interest payable on that tax as if that amount of interest were a part of that tax.
Section 441
Delivery to Registrar of accounts of receivers
441. (1) In this section “initial period of 6 months”, in relation to a receiver, means the period of 6 months falling after the date of his or her appointment.
(2) Except where section 430(3) applies, a receiver of the property of a company shall send to the Registrar—
(a) within 30 days after the expiration of—
(i) the initial period of 6 months, and
(ii) each subsequent period of 6 months,
and
(b) within 30 days after the date on which he or she ceases to act as receiver of the property of the company,
an abstract in the prescribed form showing—
(i) the assets of the company of which he or she has taken possession since his or her appointment, their estimated value and the proceeds of sale of any such assets since his or her appointment,
(ii) his or her receipts and payments during that period of 6 months or, where he or she ceases to act as mentioned above, during the period from the end of the period to which the last preceding abstract related up to the date of his or her so ceasing, and
(iii) the aggregate amounts of his or her receipts and of his or her payments during all preceding periods since his or her appointment.
(3) A receiver who makes default in complying with subsection (2) shall be guilty of a category 4 offence.
Annotations
Amendments:
F321
Substituted by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 26, not commenced as of date of revision.
Modifications (not altering text):
C146
Prospective affecting provision: subs. (2)(b) amended by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 26, not commenced as of date of revision.
(b) within F321[7 days] after the date on which he or she ceases to act as receiver of the property of the company,
Editorial Notes:
E98
Power pursuant to subs. (2)(b) exercised (16.12.2020) by Companies Act 2014 (Forms) Regulations 2020 (S.I. No. 627 of 2020), in effect as per reg. 1(2).
CHAPTER 4
Regulation of Receivers and Enforcement of their Duties
Section 442
Enforcement of duty of receivers to make returns
442. (1) Subsection (2) applies if a receiver of the property of a company—
(a) having made default in filing, delivering or making any return, account or other document, or in giving any notice, which a receiver is by law required to file, deliver, make or give, fails to make good the default within 14 days after the date of service on him or her of a notice requiring him or her to do so, or
(b) having been appointed under the powers contained in any instrument, has, after being required at any time by the liquidator of the company to do so, failed to render proper accounts of his or her receipts and payments and to vouch those receipts and payments and to pay over to the liquidator the amount properly payable to him or her.
(2) Where this subsection applies, the court may, on an application made for the purpose, make an order directing the receiver to make good the default within such time as may be specified in the order.
(3) In the case of any such default as is mentioned in subsection (1)(a), any member or creditor of the company or the Registrar may make an application for the purposes of this section.
(4) In the case of any such default as is mentioned in subsection (1)(b), the liquidator of the company is alone entitled to make an application for the purposes of this section.
(5) In either of the foregoing cases, the order under this section may provide that all costs of and incidental to the application shall be borne by the receiver.
(6) Nothing in this section shall be taken to prejudice the operation of any enactments imposing penalties on receivers in respect of any such default as is mentioned in subsection (1).
Section 443
Power of court to order the return of assets improperly transferred
443. (1) Where a receiver of the property of a company is appointed and, on the application of the receiver or any creditor or member of the company, it can be shown to the satisfaction of the court that—
(a) any property of the company of any kind whatsoever was disposed of either by way of conveyance, transfer, mortgage, security, loan, or in any way whatsoever whether by act or omission, direct or indirect, and
(b) the effect of such disposal was to perpetrate a fraud on the company, its creditors or members,
the court may, if it deems it just and equitable to do so, make the following order.
(2) That order of the court is one requiring any person who appears to have the use, control or possession of such property or the proceeds of the sale or development of it to deliver it or pay a sum in respect of it to the receiver on such terms or conditions as the court sees fit.
(3) Subsection (1) shall not apply to any conveyance, mortgage, delivery of goods, payment, execution or other act relating to property made or done by or against a company to which section 604 applies.
(4) In deciding whether it is just and equitable to make an order under this section, the court shall have regard to the rights of persons who have bona fide and for value acquired an interest in the property the subject of the application.
Section 443A
F322[Remuneration of receivers
443A. Subject to section 444, a receiver has an entitlement to remuneration upon the terms agreed, fixed or otherwise set in the manner specified in the instrument under which he or she is appointed and the terms upon which the receiver has, in accordance with that instrument, such an entitlement may be expressed to be—
(a) by way of a relevant percentage,
(b) by reference to time expended in the conduct of the receivership, or
(c) otherwise by reference to any method or thing.]
Annotations
Amendments:
F322
Inserted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 27, S.I. No. 639 of 2024.
Editorial Notes:
E99
The section heading is taken from the amending section in the absence of one included in the amendment.
Section 444
Power of court to fix remuneration of receiver
444. (1) Where a person has, under the powers contained in any instrument, been appointed as receiver of the property of a company the court may, on an application made by the liquidator of a company or by any creditor or member of the company, make the following order.
(2) That order of the court is one fixing the amount to be paid by way of remuneration to that receiver and such an order may be made notwithstanding that his or her remuneration has been fixed by or under that instrument.
F323[(2A) In fixing the amount to be paid by way of remuneration to a receiver under subsection (2), the court shall take the following into account:
(a) the time properly required to be given by the person as receiver and by his or her assistants in attending to the company’s affairs;
(b) the complexity (or otherwise) of the case;
(c) any respects in which, in connection with the company’s affairs, there falls on the receiver any responsibility of an exceptional kind or degree;
(d) the effectiveness with which the receiver appears to be carrying out, or to have carried out, his or her duties;
(e) the value and nature of the property with which the receiver has to deal.]
(3) Subject to subsection (4), the power of the court under subsection (1) shall, where no previous order has been made in relation to the matter concerned under that subsection—
(a) extend to fixing the remuneration for any period before the making of the order or the application for it,
(b) be exercisable notwithstanding that the receiver has died or ceased to act before the making of the order or the application for it, and
(c) if the receiver has been paid or has retained for his or her remuneration for any period before the making of the order any amount in excess of that fixed by the court for that period, extend to requiring him or her or his or her personal representatives to account for the excess or such part of it as may be specified in the order.
(4) The power conferred by subsection (3)(c) shall not be exercised in relation to any period before the making of the application for the order unless, in the opinion of the court, there are special circumstances making it proper for the power to be so exercised.
(5) The court may from time to time, on an application made by the liquidator or by any creditor or member of the company or by the receiver, vary or amend an order made under subsection (1).
(6) Nothing in this section shall affect a receiver’s right to indemnity out of the assets of the company provided by section 438.
Annotations
Amendments:
F323
Inserted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 28, S.I. No. 639 of 2024.
Section 445
Court may end or limit receivership on application of liquidator
445. (1) On the application of the liquidator of a company that is being wound up (other than by means of a members’ voluntary winding up) and in respect of the property of which a receiver has been appointed (whether before or after the commencement of the winding up), the court may make the following order.
(2) That order of the court is one—
(a) that the receiver shall cease to act as such from a date specified by the court, and prohibiting the appointment of any other receiver, or
(b) that the receiver shall, from a date specified by the court, act as such only in respect of certain assets specified by the court.
(3) An order under subsection (1) may be made on such terms and conditions as the court thinks fit.
(4) The court may from time to time, on an application made either by the liquidator or by the receiver, discharge or amend an order made under subsection (1).
(5) A copy of an application made under this section shall be served on the receiver and on the person who appointed him or her not less than 7 days before the date of the hearing of the application, and the receiver and any such person may appear before and be heard by the court in respect of the application.
(6) Except as provided in subsection (2), no order made under this section shall affect any security or charge over the undertaking or property of the company.
Section 446
Director of Corporate Enforcement may request production of receiver’s books
446. (1) The F324[Authority, where it] considers it necessary or appropriate, make the following request of the receiver of the property of a company or companies (specifying the reason why the request is being made).
(2) That request is that the receiver produce to the F324[Authority] the receiver’s books for examination, either in regard to a particular receivership or to all receiverships undertaken by the receiver.
(3) The receiver of whom a request under subsection (1) is made shall—
(a) furnish the books to the F324[Authority],
(b) answer any questions concerning the content of the books and the conduct of the particular receivership or receiverships, and
(c) give to the F324[Authority] all assistance in the matter as the receiver is reasonably able to give.
(4) A request under subsection (1) may not be made in respect of books relating to a receivership that has concluded more than 6 years prior to the date of the request.
(5) If a receiver fails to comply with a request under subsection (1) or do any of the things referred to in subsection (3)(b) and (c), he or she shall be guilty of a category 3 offence.
Annotations
Amendments:
F324
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. nos. 35-38, S.I. No. 335 of 2022.
Section 447
Prosecution of offences committed by officers and members of company
447. (1) If it appears to the receiver of the property of a company, in the course of the receivership, that any past or present officer, or any member, of the company has been guilty of any offence in relation to the company, the receiver shall forthwith report the matter to the Director of Public Prosecutions.
(2) Where the receiver reports a matter under subsection (1) to the Director of Public Prosecutions, the receiver shall—
(a) provide to the Director of Public Prosecutions such information, relating to the matter in question, as he or she may require, and
(b) give to him or her such access to, and facilities for, inspecting and taking copies of such documents, being documents in the possession or under the control of the receiver and relating to the matter in question, as he or she may require.
(3) Where a foregoing report is made by the receiver, the receiver shall also report the matter to the F325[Authority].
(4) Where a matter is reported by the receiver under F325[subsection (3) to the Authority], the receiver shall—
(a) provide to the F325[Authority, such information, relating to the matter in question, as it] may require, and
(b) give to F325[it such access to, and facilities for inspecting and taking copies of such documents, being documents in the possession or under the control of the receiver and relating to the matter in question, as it] may require.
(5) If, where any matter is reported under subsection (1) or (3) to—
(a) the Director of Public Prosecutions, or
(b) the F325[Authority],
the Director of Public Prosecutions or, as the case may be, the F325[Authority considers] that the case is one in which a prosecution ought to be instituted and institutes proceedings accordingly, it shall be the duty of each of the following to give all assistance in connection with the prosecution which he or she is reasonably able to give.
(6) The persons referred to in subsection (5) are the receiver of the company and—
(a) every officer (past or present) of the company, and
(b) every agent (past or present) of the company,
other than the defendant in the proceedings.
(7) For the purposes of subsection (6), “agent”, in relation to a company, includes—
(a) the bankers and solicitors of the company, and
(b) any persons employed by the company as auditors, accountants, book-keepers or taxation advisers, or other persons employed by it in a professional, consultancy or similar capacity, whether those persons are (or were) or are not (or were not) officers of the company.
(8) If any person fails or neglects to give assistance in the manner required by subsection (5), the court may, on the application of the Director of Public Prosecutions or, as the case may be, the F325[Authority], direct that person to comply with the requirements of that subsection.
(9) Where any such application is made in relation to a receiver, the court may, unless it appears that the failure or neglect to comply was due to the receiver not having in his or her hands sufficient assets of the company to enable him or her so to do, direct that the costs of the application shall be borne by the receiver personally.
Annotations
Amendments:
F325
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. nos. 39-45, S.I. No. 335 of 2022.
Section 448
Reporting to Director of Corporate Enforcement of misconduct by receivers
448. (1) Where a disciplinary committee or tribunal (however called) of a prescribed professional body—
(a) finds that a member of that body who is conducting or has conducted a receivership has not maintained appropriate records in relation to that activity, or
(b) has reasonable grounds for believing that such a member has committed a category 1 or 2 offence during the course of conducting a receivership,
the professional body shall report the matter, giving details of the finding or, as the case may be, of the alleged offence, to the F326[Authority] forthwith.
(2) If a professional body fails to comply with this section, it, and any officer of the body to whom the failure is attributable, shall be guilty of a category 3 offence.
Annotations
Amendments:
F326
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. no. 46, S.I. No. 335 of 2022.
Editorial Notes:
E100
Power pursuant to section exercised (19.12.2018) by Companies Act 2014 (Prescribed Professional Bodies) Regulations 2018 (S.I. No. 570 of 2018).
PART 9
REORGANISATIONS, ACQUISITIONS, MERGERS AND DIVISIONS
CHAPTER 1
Schemes of Arrangement
Section 449
Interpretation (Chapter 1)
449. (1) In this Chapter—
“arrangement”, in relation to a company, includes a reorganisation of the share capital of the company by the consolidation of shares of different classes or by the division of shares into shares of different classes or by both those methods;
“debenture trustees”, in relation to a company, means the trustees of a deed securing the issue of debentures by the company;
“new company” shall be read in accordance with section 455(1)(b)(ii); “old company” shall be read in accordance with section 455(1)(b)(ii); “scheme circular” shall be read in accordance with section 452(1)(a);
“scheme meeting” means a meeting of creditors (or any class of creditors) or of members (or any class of members) for the purpose of their considering, and voting on, a resolution proposing that the compromise or arrangement concerned be agreed to;
“scheme order” means an order of the court under section 453(2)(c) sanctioning a compromise or arrangement referred to in section 450;
“special majority” means a majority in number representing at least 75 per cent in value of the creditors or class of creditors or members or class of members, as the case may be, present and voting either in person or by proxy at the scheme meeting.
(2) A reference in this Chapter to a compromise or arrangement that is proposed between a company and its creditors (or any class of them) or its members (or any class of them) includes a reference to circumstances in which a compromise or arrangement is proposed between a company and both—
(a) its creditors (or any class of them), and
(b) its members (or any class of them),
and, accordingly, the powers under this Chapter are exercisable, and the duties under this Chapter are to be carried out, in the latter circumstances as in the former.
Section 450
Scheme meetings — convening of such by directors and court’s power to summon such meetings
450. (1) Where a compromise or arrangement is proposed between a company and—
(a) its creditors or any class of them, or
(b) its members or any class of them,
the directors of the company may convene—
(i) the appropriate scheme meetings of the creditors or the class concerned of them, or
(ii) the appropriate scheme meetings of the members or the class concerned of them.
(2) References in subsections (1) and (5) to the appropriate scheme meetings of creditors or members, as the case may be, are references to either—
(a) separate scheme meetings of the particular creditors or members (as appropriate) who fall into the separate classes that, under the general law, are required to be constituted for the purpose of voting on the proposals for the compromise or arrangement, or
(b) where, under the general law, no such separate classes are required to be constituted for that purpose, a single scheme meeting of the creditors or members (as appropriate).
(3) Where a compromise or arrangement referred to in subsection (1) is proposed and the directors of the company do not exercise the powers under that subsection, the court may, on the application, at any time, of any of the following persons, order a scheme meeting or scheme meetings of the creditors or members (or, as the case may be, the class of either of them concerned) to be summoned in such manner as the court directs.
(4) The persons referred to in subsection (3) are:
(a) the company;
(b) any creditor or member of the company;
(c) in the case of a company being wound up, the liquidator.
(5) Without prejudice to the court’s jurisdiction under section 453(2)(c) to determine whether the scheme meetings that have been held comply with the general law referred to in subsection (2), the court, in exercising its jurisdiction to summon meetings under subsection (3), may, in its discretion, where it considers just and convenient to do so, give directions as to what are the appropriate scheme meetings that must be held in the circumstances concerned.
(6) If the compromise or arrangement is proposed between the company and a class of its creditors or members, then—
(a) the reference in subsection (2) to creditors or members, where it first occurs, is a reference to that class of creditors or members, as appropriate (the “predicate class”), and
(b) the references in paragraphs (a) and (b) of that subsection to separate classes of creditors or members are references to separate classes of creditors or members, as appropriate, who fall within the predicate class.
Annotations
Modifications (not altering text):
C147
Application of section restricted (13.01.2018) by European Union (Payment Services) Regulations 2018 (S.I. No. 6 of 2018), reg. 59, in effect as per reg. 1(2), (3).
Effect of section 450 of Companies Act 2014
59. If a transaction is both a proposed acquisition and a compromise or arrangement for the purposes of section 450 of the Companies Act 2014, the court shall not make an order under that section in relation to the transaction until after the end of the assessment period in relation to the transaction.
Section 451
Court’s power to stay proceedings or restrain further proceedings
451. (1) This section applies where one or more scheme meetings is convened under section 450(1) or an application is made under section 450(3) in relation to a company.
(2) Where this section applies the court may, on the application of any of the following persons, on such terms as seem just, stay all proceedings or restrain further proceedings against the company for such period as the court sees fit.
(3) The persons referred to in subsection (2) are:
(a) the company;
(b) the directors of the company;
(c) any creditor or member of the company;
(d) in the case of a company being wound up, the liquidator.
Section 452
Information as to compromises or arrangements with members and creditors
452. (1) Where a scheme meeting is convened or summoned under section 450 there shall—
(a) with every notice convening or summoning the meeting which is sent to a creditor or member of the company concerned, be sent also a circular (in this section referred to as a “scheme circular”)—
(i) explaining the effect of the compromise or arrangement,
(ii) stating any material interests of the directors of the company, whether as directors or as members or as creditors of the company or otherwise, and the effect thereon of the compromise or arrangement, in so far as it is different from the effect on the like interests of other persons,
(iii) where the compromise or arrangement affects the rights of debenture holders of the company, giving the like explanation in relation to the debenture trustees as it is required under subparagraph (ii) to give in relation to the company’s directors,
(b) in every notice convening or summoning the meeting which is given by advertisement, be included the scheme circular or a notification of the place at which and the manner in which creditors or members entitled to attend the meeting may obtain copies of the scheme circular.
(2) Where a notice given by advertisement includes a notification that copies of the scheme circular can be obtained by creditors or members entitled to attend the scheme meeting, every such creditor or member shall, on making application in the manner indicated by the notice, be furnished by the company free of charge with a copy of the scheme circular.
(3) Each director and debenture trustee shall provide the company in writing with the information concerning such director or debenture trustee, as the case may be, that is required for the scheme circular.
(4) Subject to subsection (6), if a company fails to comply with any requirement of this section, the company and any officer of it who is in default shall be guilty of a category 3 offence.
(5) For the purpose of subsection (4), any liquidator of the company and any debenture trustee of the company shall be deemed to be an officer of the company.
(6) In any proceedings against a person in respect of an offence under subsection (4), it shall be a defence to prove that the default was due to the refusal of any other person, being a director or debenture trustee, to supply the necessary particulars as to his or her interests.
(7) References in this section to directors include references to shadow directors and to de facto directors.
Section 453
Circumstances in which compromise or arrangement becomes binding on creditors or members concerned
453. (1) If the following conditions are satisfied, a compromise or arrangement shall be binding, with effect from the date of delivery referred to in section 454(1), on all the creditors or class of creditors referred to in section 450(1)(a) or all the members or class of members referred to in section 450(1)(b) (or both as the case may be) and also on—
(a) the company, or
(b) in the case of a company in the course of being wound up, on the liquidator and contributories of the company.
(2) The conditions referred to in subsection (1) are:
(a) a special majority at the scheme meeting, or, where more than one scheme meeting is held, at each of the scheme meetings, votes in favour of a resolution agreeing to the compromise or arrangement;
(b) notice—
(i) of the passing of such resolution or resolutions at the scheme meeting or scheme meetings, and
(ii) that an application will be made under paragraph (c) to the court in relation to the compromise or arrangement,
is advertised once in at least 2 daily newspapers circulating in the district where the registered office or principal place of business of the company is situated; and
(c) the court, on application to it, sanctions the compromise or arrangement.
(3) Section 192 shall apply to any such resolution as is mentioned in subsection (2)(a) which is passed at any adjourned scheme meeting.
(4) Where a State authority is a creditor of the company, such authority shall be entitled to accept proposals under this section notwithstanding—
(a) that any claim of such authority as a creditor would be impaired under the proposals, or
(b) any other enactment.
(5) In subsection (4) “State authority” means the State, a Minister of the Government, a local authority or the Revenue Commissioners.
Annotations
Modifications (not altering text):
C148
Application of subs. (2)(c) restricted (1.01.2016) by European Union (Insurance and Reinsurance) Regulations 2015 (S.I. No. 485 of 2015), reg. 71.
Effect of Companies Act 2014
71. If a transaction is both a proposed acquisition and a compromise or arrangement for the purposes of section 450 of the Act of 2014, the Court shall not make an order under section 453(2)(c) of that Act in relation to the transaction until after the end of the assessment period in relation to the transaction.
Section 454
Supplemental provisions in relation to section 453
454. (1) Where a scheme order is made, the company shall cause a copy of it to be delivered to the Registrar within 21 days after the date of making of the order; the scheme order shall take effect immediately upon such delivery of that copy.
(2) The company shall attach to every copy of the constitution of the company issued by it after the scheme order has been made a copy of that order.
(3) If default is made in complying with subsection (1) or (2), the company concerned and any officer of it who is in default shall be guilty of a category 3 offence.
Section 455
Provisions to facilitate reconstruction and amalgamation of companies
455. (1) Where—
(a) an application is made to the court for the sanctioning of a compromise or arrangement under section 453(2)(c), and
(b) it is shown to the court that—
(i) the compromise or arrangement has been proposed for the purposes of or in connection with a scheme for the reconstruction of any company or companies or the amalgamation of any 2 or more companies, and
(ii) under the scheme the whole or any part of the undertaking, assets or liabilities of any company concerned in the scheme (in this section referred to as an “old company”) is to be transferred to another company (in this section referred to as the “new company”),
the court may, either by the scheme order or by any subsequent order, make provision for all or any of the matters set out in subsection (2).
(2) The matters for which the court may make such provision are:
(a) the transfer to the new company of the whole or any part of the undertaking, assets or liabilities of any old company;
(b) the allotting or appropriation by the new company of any shares, debentures, policies or other like interests in that company which, under the compromise or arrangement, are to be allotted or appropriated by that company to or for any person;
(c) the continuation by or against the new company of any legal proceedings pending by or against any old company;
(d) the dissolution, with or without winding up, of any old company;
(e) the provision to be made for any persons who, within such time and in such manner as the court directs, dissent from the compromise or arrangement;
(f) such incidental, consequential and supplemental matters as are necessary to secure that the reconstruction or amalgamation shall be fully and effectively carried out.
(3) Where the scheme order or a subsequent order under this section provides for the transfer of assets or liabilities, those assets shall, by virtue of the order, be transferred to and vest in, and those liabilities shall, by virtue of the order, be transferred to and become the liabilities of the new company, and in the case of any assets, if the order so directs, freed from any charge which is, by virtue of the compromise or arrangement, to cease to have effect.
(4) Where provision of the kind set out in subsection (2) is made by—
(a) the scheme order — every company in relation to which the order is made (other than the company the compromise or arrangement in relation to which has been sanctioned by the court), or
(b) a subsequent order — every company (without exception) in relation to which the order is made,
shall cause a copy of it to be delivered to the Registrar within 21 days after the date of making of the order.
(5) If default is made by a company in complying with subsection (4), the company and any officer of it who is in default shall be guilty of a category 3 offence.
(6) In this section, “assets” includes property, rights and powers of every description, and “liabilities” includes duties.
CHAPTER 2
Acquisitions
Section 456
Interpretation (Chapter 2)
456. (1) In this Chapter—
“assenting shareholder” means a holder of any of the shares affected in respect of which a scheme, contract or offer has become binding or been approved or accepted and section 459(8) supplements this definition;
“call notice” shall be read in accordance with section 457(4)(a);
“dissenting shareholder” means a holder of any of the shares affected in respect of which the scheme, contract or offer has not become binding or been approved or accepted or who has failed or refused to transfer his or her shares in accordance with the scheme, contract or offer and section 459(8) supplements this definition;
“information notice” shall be read in accordance with section 457(6);
“offeree company” shall be read in accordance with section 457(1);
“offeror” shall be read in accordance with section 457(1);
“relevant scheme, contract or offer” has the meaning assigned to it by section 457(1);
“shares affected” means the shares the acquisition of the beneficial ownership of which by an offeror is involved in the scheme, contract or offer referred to in section 457(1).
(2) The application of this Chapter is restricted, as was the position in the case of the corresponding provisions of the Act of 1963, by the regulations made under section 3 of the European Communities Act 1972 that are referred to in paragraph 11 of Schedule 6.
Section 457
Right to buy out shareholders dissenting from scheme or contract approved by majority and right of such shareholders to be bought out
457. (1) In this section “relevant scheme, contract or offer” means a scheme, contract or offer involving the acquisition by a person (in this Chapter referred to as the “offeror”) of the beneficial ownership of all the shares (other than the shares in which the offeror already has a beneficial interest) in the capital of a company (in this section referred to as the “offeree company”).
(2) This section applies where the relevant scheme, contract or offer—
(a) has become binding or been approved or accepted in respect of not less than 80 per cent in value of the shares affected, and
(b) has become so binding or been so approved or accepted not later than the date 4 months after the date of publication generally to the holders of the shares affected of the terms of such scheme, contract or offer,
but subject to section 458 as regards the right of the offeror under subsection (3) (offeror’s right of buy-out).
(3) Where this section applies, the offeror shall be entitled to acquire the beneficial ownership of all or any of the remaining shares affected from the dissenting shareholder or shareholders on—
(a) the same terms as have become binding or been approved or accepted as mentioned in subsection (2), or
(b) where an application is made under section 459(5)(a), any different terms that the court specifies,
but only if, in either case, the following conditions are satisfied.
(4) Those conditions for such acquisition of the shares of a dissenting shareholder are:
(a) the offeror, at any time before the expiration of the period of 6 months after the date of the publication referred to in subsection (2)(b), gives notice in the prescribed form to the dissenting shareholder that the offeror desires to acquire the beneficial ownership of his or her shares (which notice is referred to in this section as the “call notice”); and
(b) either—
(i) 30 days pass after the date that the call notice was given without an application being made to the court under section 459(5)(a) by the dissenting shareholder or, following such an application to the court by the dissenting shareholder, the court nonetheless approves such acquisition; or
(ii) an application is made to the court under section 459(5)(a) by the dissenting shareholder within that period but is withdrawn.
(5) Where the scheme, contract or offer provides that an assenting shareholder may elect between 2 or more sets of terms for the acquisition by the offeror of the beneficial ownership of the shares affected—
(a) the call notice shall be accompanied by, or embody, a notice stating the alternative sets of terms between which assenting shareholders are entitled to elect and specifying which of those sets of terms shall be applicable to the dissenting shareholder if he or she does not, before the expiration of 14 days after the date of the giving of the notice, notify to the offeror in writing his or her election as between such alternative sets of terms, and
(b) the terms upon which the offeror shall under this section be entitled and bound to acquire the beneficial ownership of the shares of the dissenting shareholder shall be the set of terms which the dissenting shareholder shall so notify or, in default of such notification, the set of terms so specified as applicable, but subject, in either case, to subsection (3)(b).
(6) Save where the offeror has given a call notice to the particular dissenting shareholder, the offeror shall, within 30 days after the date of the scheme, contract or offer becoming binding, approved or accepted, give notice of that fact in the prescribed manner to each of the dissenting shareholders (which notice is in this section referred to as an “information notice”).
(7) The offeror shall be bound to acquire the beneficial ownership of the remaining shares affected on the same terms as have become binding or been approved or accepted (or, where an application is made under section 459(5)(b), on any different terms that the court specifies) if—
(a) the offeror has become entitled to acquire the shares under subsection (3), or
(b) save where paragraph (a) applies, the dissenting shareholder, at any time within 3 months after the date of the giving of the information notice to him or her, requires the offeror to acquire his or her shares.
(8) Where the consideration for the acquisition pursuant to subsection (3) or (7) of the share or shares of a person who is resident in the State is paid, wholly or partly, in cash by way of cheque that cheque shall, unless that person agrees otherwise, be one drawn upon an account operated with a clearing bank or such other credit institution as may be prescribed, being an account operated with that bank or other institution at a branch of it established in the State.
Annotations
Editorial Notes:
E101
Power pursuant to section exercised (9.11.2015) by Companies Act 2014 (Section 457 Forms) Regulations 2015 (S.I. 498 of 2015), in effect as per reg. 1.
Section 458
Additional requirement to be satisfied, in certain cases, for right to buy out to apply
458. (1) Unless the additional requirement in subsection (3) is satisfied, an offeror is not entitled, in the case set out in subsection (2), to serve a call notice or to acquire the shares of a dissenting shareholder under section 457(3); but this section does not affect the right of a dissenting shareholder under section 457(7) (right to be bought out).
(2) The case referred to in subsection (1) is one in which shares in the offeree company are, at the date of the publication mentioned in section 457(2)(b), already in the beneficial ownership of the offeror to a value greater than 20 per cent of the aggregate value of those shares and the shares affected.
(3) The additional requirement referred to in subsection (1) is that the assenting shareholders, besides holding not less than 80 per cent in value of the shares affected, are not less than 50 per cent in number of the holders of those shares.
Section 459
Supplementary provisions in relation to sections 457 and 458 (including provision for applications to court)
459. (1) Subject to subsections (3) and (4), a call notice and an information notice shall—
(a) be signed by or on behalf of the offeror,
(b) be given to the shareholder—
(i) by delivering it to the shareholder, or
(ii) by leaving it at the address of the shareholder as entered in the register of members of the offeree company; or
(iii) by sending it by post in a prepaid letter—
(I) to the address of the shareholder as entered in the foregoing register, or
(II) to the address, if any, within the State supplied by the shareholder in writing to the offeree company for the giving of notices to him or her;
or
(iv) if the conditions specified in subsection (2) are satisfied, by electronic means.
(2) The conditions referred to in subsection (1)(b)(iv) are—
(a) the shareholder has consented in writing to the offeror’s using electronic means to give notices in relation to him or her,
(b) at the time the electronic means are used to give the notice or notices in relation to the shareholder, no notice in writing has been received by the offeror from the shareholder stating he or she has withdrawn the consent referred to in paragraph (a), and
(c) the particular means used to give the notice or notices electronically are those that the shareholder has consented to.
(3) Where there are several like call notices or information notices given, one or more of which has been signed by or on behalf of the offeror (being a body corporate), the call notices or the information notices not so signed shall, for the purposes of subsection (1)(a), be deemed to be so signed if such unsigned call or information notices state the name of the director who has so signed at least one of those call or, as the case may be, information notices.
(4) Call notices and information notices shall be deemed to be correctly given for the purposes of subsection (1)(b)—
(a) to the joint holders of a share, by giving the notice to the joint holder first named in the register of members in respect of the share,
(b) to the persons entitled to a share in consequence of the death or bankruptcy of a shareholder—
(i) by delivering it to the persons claiming to be so entitled, or
(ii) by leaving it at the address supplied to the offeree company by the persons claiming to be so entitled, or
(iii) by sending it by post in a prepaid letter to the persons claiming to be so entitled by name or by the title of representatives of the deceased or the assignee in bankruptcy or by any like description at the address supplied to the offeree company by the persons claiming to be so entitled, or
(iv) where such persons have not notified the company in writing of such death or bankruptcy—
(I) by leaving it at the address of the shareholder as entered in the register of members of the offeree company, or
(II) by sending it by post in a prepaid letter to—
(A) the address of the shareholder as entered in the foregoing register, or
(B) the address, if any, within the State supplied in writing by the shareholder to the offeree company for the giving of notices to him or her,
or
(c) to shareholders with addresses entered in the register of members of the offeree company or who have supplied in writing to the offeree company addresses for the giving of notices to them, being (in either case) addresses which are in jurisdictions outside the State whose laws regulate the communication into those jurisdictions of schemes, contracts or offers to which this Chapter applies, by advertisement published in Iris Oifigiúil.
(5) A dissenting shareholder may—
(a) following receipt of a call notice, apply to the court for an order permitting the shareholder to retain his or her shares or varying the terms of the scheme, contract or offer as they apply to that shareholder, or
(b) in a case where the offeror is bound to acquire his or her shares by virtue of section 457(7)(a), apply to the court for an order varying the terms of the scheme, contract or offer as they apply to that dissenting shareholder,
and the court may, on such an application, make such order as it thinks fit (including one providing for a variation such as to require payment to the dissenting shareholder of a cash consideration).
(6) Where an offeror has become bound to acquire the shares of dissenting shareholders, the offeror shall, within 30 days after the date on which the offeror becomes so bound or, if an application to the court by a dissenting shareholder is then pending, as soon as may be after that application is disposed of—
(a) deliver to the offeree company—
(i) a copy of the form of any call notice or information notice given,
(ii) a list of the persons served with any call notice or information notice and the number of shares affected held by them,
(iii) an instrument of transfer of the shares of the dissenting shareholders executed—
(I) on behalf of the dissenting shareholders as transferor by any person appointed by the offeror, and
(II) by the transferee (being either the offeror or a subsidiary of the offeror or a nominee of the offeror or of such a subsidiary),
(b) pay to or vest in the offeree company the amount or other consideration representing the price payable by the offeror for the shares, the beneficial ownership of which by virtue of this Chapter the offeror is entitled to acquire.
(7) Where an offeror has complied with subsection (6), the offeree company shall—
(a) thereupon register as the holder of those shares the person who executed such instrument as the transferee,
(b) pay any sums received by the offeree company under this section into a separate bank account and, for a period of 7 years after the date of such receipt, hold any such sums and any other consideration so received on trust for the several persons entitled to the shares in respect of which those sums or other consideration were respectively received,
F327[(c) after the expiry of the period of 7 years referred to in paragraph (b), realise as soon as practicable any shares, other securities or other property vested in it as consideration and lodge the proceeds so realised and any money standing to the credit of the bank account referred to in paragraph (b), together with the names of the persons believed by the offeree company to be entitled thereto, to an account as the Minister for Public Expenditure and Reform may nominate and operated under the control of the Accountant of the Courts of Justice (in this section referred to as the "nominated account"),]
(d) for as long as shares in the offeror are vested in the offeree company (where shares in the offeror have been issued as all or part of the consideration) not be entitled to exercise any right of voting conferred by those shares except by and in accordance with instructions given by the shareholder in respect of whom those shares were so issued or his or her successor-in-title.
(8) Where the relevant scheme, contract or offer becomes binding on or is approved or accepted by a person in respect of a part only of the shares held by him or her, he or she shall be treated as an assenting shareholder as regards that part of his or her holding and as a dissenting shareholder as regards the remainder of his or her holding.
F328[(9) (a) Where the offeree company is unable to realise under subsection (7)(c) the shares, other securities or other property vested in it as consideration, such shares, other securities, or other property and any money standing to the credit of the bank account referred to in subsection (7)(b) shall continue to be held on trust by the offeree company concerned for the persons whom the offeree company believes are entitled thereto until such time as—
(i) the shares, other securities, or other property and any money standing to the credit of the bank account referred to in subsection (7)(b) are claimed by a person claiming to be entitled thereto, or
(ii) the shares, other securities or other property are realised by the offeree company concerned.
(b) Where the offeree company realises the shares, other securities or other property referred to in paragraph (a)(ii), it shall lodge the proceeds so realised and any money standing to the credit of the bank account referred to in subsection (7)(b), together with the names of the persons believed by the offeree company to be entitled thereto, to the nominated account.
(10) Any person claiming to be entitled to any moneys which were lodged to the nominated account under subsection (7)(c) or (9)(b) may make an application to the court in that regard and the court may, where it is satisfied that the person so claiming is so entitled, order that payment be made to that person.
(11) After the expiry of the period of 7 years after the date of any lodgment to the nominated account made under subsection (7)(c), (9)(b) or (13), the amount of the lodgment remaining unclaimed shall be paid into the Exchequer.
(12) Any person claiming to be entitled to any moneys which were paid into the Exchequer under subsection (11) may make an application to the court in that regard and the court may, where it is satisfied that the person so claiming is so entitled, order that the Minister for Public Expenditure and Reform make payment to that person and that Minister shall issue such sum as may be necessary to provide for that payment.
(13) Where, before the commencement of section 175 of the Consumer Rights Act 2022—
(a) money standing to the credit of the bank account referred to in subsection (7)(b) was, after the expiry of the period of 7 years referred to in that subsection, transferred pursuant to the previous subsection (7)(c) to the Minister for Public Expenditure and Reform together with the names of the persons believed by the offeree company to be entitled thereto, that money shall, on the commencement of section 175 of the Consumer Rights Act 2022, be lodged by that Minister, together with those names, to the nominated account, and
(b) any shares, other securities or other property vested in the offeree company as consideration were, after the expiry of the period of 7 years referred to in subsection (7)(b), transferred pursuant to the previous subsection (7)(c) to the Minister for Public Expenditure and Reform—
(i) those shares, other securities or other property shall, on the commencement of section 175 of the Consumer Rights Act 2022, be returned to the offeree company concerned to be held by that company on trust for the persons whom the company believes are entitled thereto,
(ii) the offeree company concerned shall as soon as practicable realise such shares, other securities or other property and shall lodge the proceeds so realised, together with the names of the persons believed by the company to be entitled thereto to the nominated account,
(iii) where the offeree company is unable to realise the shares, other securities or other property vested in it as consideration, such shares, other securities, or other property shall continue to be held on trust by the offeree company concerned for the persons whom the offeree company believes are entitled thereto until such time as the shares, other securities or other property are claimed by a person claiming to be entitled thereto or are realised by the offeree company concerned, and
(iv) where the offeree company has realised the shares, other securities or other property concerned, it shall lodge the proceeds together with the names of the persons believed by the company to be entitled thereto to the nominated account.
(14) On and after the commencement of section 175 of the Consumer Rights Act 2022, any person claiming to be entitled to any moneys which were lodged to the nominated account under subsection (13)(a) or any sum representing the value of the proceeds lodged to the nominated account under subsection (13)(b), whether that claim arises before or after the commencement of section 175 of the Consumer Rights Act 2022, may make an application to the court in that regard, and the court may, where it is satisfied that the person claiming is so entitled, order that payment be made to that person.
(15) No liability shall attach to the Minister for Public Expenditure and Reform in respect of or arising from any action or omission of the offeree company or any other person in relation to—
(a) the shares, other securities or other property vested in the offeree company as consideration referred to in this section, or
(b) the proceeds or moneys referred to in this section prior to or subsequent to their lodgment to the nominated account.
(16) In this section, "previous subsection (7)(c)" means subsection (7)(c) as it stood enacted immediately before the commencement of section 175 of the Consumer Rights Act 2022.]
Annotations
Amendments:
F327
Substituted (29.11.2022) by Consumer Rights Act 2022 (37/2022), s. 175(a), S.I. No. 596 of 2022.
F328
Inserted (29.11.2022) by Consumer Rights Act 2022 (37/2022), s. 175(b), S.I. No. 596 of 2022.
Section 460
Construction of certain references in Chapter to beneficial ownership, application of Chapter to classes of shares, etc.
460. (1) In the application of this Chapter to an offeree company, the share capital of which consists of 2 or more classes of shares, references in this Chapter to the shares in the capital of the offeree company shall be read as references to the shares in its capital of a particular class.
(2) For the purposes of this Chapter—
(a) shares in the offeree company in the beneficial ownership of a subsidiary of the offeror shall be deemed to be in the beneficial ownership of the offeror, and
(b) the acquisition of the beneficial ownership of shares in the offeree company by a subsidiary of the offeror shall be deemed to be the acquisition of such beneficial ownership by the offeror.
(3) Where a person agrees to acquire shares in an offeree company, such person shall be deemed, for the purposes of this Chapter, to have acquired the beneficial interest in those shares and it shall be immaterial that any other person has any interest in those shares.
(4) For the purposes of this Chapter, shares shall not be treated as not being in the beneficial ownership of the offeror merely by reason of the fact that—
(a) those shares are or may become subject to a charge in favour of another person, or
(b) those shares are the subject of a revocable or irrevocable undertaking on the part of their holder to accept an offer if such offer is made.
CHAPTER 3
Mergers
Section 461
Interpretation (Chapter 3)
461. (1) In this Chapter—
“director”, in relation to a company which is being wound up, means liquidator;
“merger” means—
(a) a merger by acquisition,
(b) a merger by absorption, or
(c) a merger by formation of a new company,
within, in each case, the meaning of section 463;
“merging company” means—
(a) in relation to a merger by acquisition or a merger by absorption, a company that is, in relation to that merger, a transferor company or the successor company, and
(b) in relation to a merger by formation of a new company, a company that is, in relation to that merger, a transferor company;
“share exchange ratio” means the number of shares or other securities in any successor company that the common draft terms of merger provide to be allotted to members of any transferor company for a given number of their shares or other securities in the transferor company;
“successor company”, in relation to a merger, means the company to which assets and liabilities are to be, or have been, transferred from the transferor company or companies, by way of that merger;
“transferor company”, in relation to a merger, means a company, the assets and liabilities of which are to be, or have been, transferred to the successor company by way of that merger.
(2) References in this Chapter to the acquisition of a company are references to the acquisition of the assets and liabilities of the company by way of a merger under this Chapter.
Section 462
Requirements for Chapter to apply
462. This Chapter applies only if—
(a) none of the merging companies is a public limited company, and
F329[(b) one, at least, of the merging companies is a private company limited by shares or a designated activity company limited by shares.]
Annotations
Amendments:
F329
Substituted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 29, S.I. No. 639 of 2024.
Section 463
Mergers to which Chapter applies — definitions and supplementary provision
463. (1) In this Chapter “merger by acquisition” means an operation in which a company acquires all the assets and liabilities of one or more other companies that is or are dissolved without going into liquidation in exchange for the issue to the members of that company or those companies of shares in the first-mentioned company, with or without any cash payment.
F330[(2) In this Chapter “merger by absorption” means an operation whereby, on being dissolved and without going into liquidation, one or more companies transfers or transfer all of its or their assets and liabilities to a company that is the holder of the shares representing the capital of the first-mentioned company or companies.]
(3) In this Chapter “merger by formation of a new company” means an operation in which one or more companies, on being dissolved without going into liquidation, transfers all its or their assets and liabilities to a company that it or they form — the “other company”— in exchange for the issue to its or their members of shares representing the capital of the other company, with or without any cash payment.
(4) Where a company is being wound up it may become a party to a merger by acquisition, a merger by absorption or a merger by formation of a new company, provided that the distribution of its assets to its shareholders has not begun at the date, under section 466(5), of the common draft terms of merger.
Annotations
Amendments:
F330
Substituted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 30, S.I. No. 639 of 2024.
Section 464
Merger may not be put into effect save in accordance with the relevant provisions of this Act
464. (1) A merger may not be put into effect save under and in accordance with—
(a) the Summary Approval Procedure and the appropriate provisions of this Chapter where such procedure is employed, or
(b) in the absence of the Summary Approval Procedure being employed for that purpose, the relevant provisions of this Chapter,
but this is without prejudice to the alternative of proceeding under Chapter 1 to achieve the same or a similar result to that which can be achieved by such an operation.
(2) The reference in subsection (3) to a merger taking effect under this Chapter or in section 465 to proceeding under this Chapter includes a reference to a case in which the Summary Approval Procedure and the appropriate provisions of this Chapter are employed for that purpose.
(3) A merger shall not take effect under this Chapter (or any operation to the same or similar effect under Chapter 1) in the absence of the approval, authorisation or other consent, if any, that is required by any other enactment or a Community act for the merger to take effect.
Section 465
Chapters 1 and 3: mutually exclusive modes of proceeding to achieve merger
465. All the elements of the operation constituting a merger shall be effected by proceeding either under this Chapter or under Chapter 1 and not by proceeding partly, as regards some of its elements, under one of those Chapters and partly, as regards other of its elements, under the other of those Chapters.
Section 466
Common draft terms of merger
466. (1) Where a merger is proposed to be entered into, the directors of the merging companies shall draw up common draft terms of merger and approve those terms in writing.
(2) The common draft terms of merger shall state, at least:
(a) in relation to each of the transferor companies—
(i) its name,
(ii) its registered office, and
(iii) its registered number;
(b) in relation to the successor company—
(i) where the successor company is an existing company, the particulars specified in subparagraphs (i) to (iii) of paragraph (a), or
(ii) where the successor company is a new company yet to be formed, what are proposed as the particulars specified in subparagraphs (i) and (ii) of that paragraph;
(c) except in the case of a merger by absorption—
(i) the proposed share exchange ratio and amount of any cash payment,
(ii) the proposed terms relating to allotment of shares or other securities in the successor company, and
(iii) the date from which the holding of shares or other securities in the successor company will entitle the holders to participate in profits and any special conditions affecting that entitlement;
(d) the date from which the transactions of the transferor company or companies are to be treated for accounting purposes as being those of the successor company;
(e) the rights, if any, to be conferred by the successor company on members of the transferor company or companies enjoying special rights or on holders of securities other than shares representing a transferor company’s capital, and the measures proposed concerning them;
(f) any special advantages granted to—
(i) any director of a merging company, or
(ii) any person appointed under section 468;
(g) the successor company’s constitution;
(h) information on the evaluation of the assets and liabilities to be transferred to the successor company; and
(i) the dates of the financial statements of every merging company which were used for the purpose of preparing the common draft terms of merger.
(3) The common draft terms of merger may include such additional terms as are not inconsistent with this Chapter.
(4) The common draft terms of merger shall not provide for any shares in the successor company to be exchanged for shares in a transferor company held either—
(a) by the successor company itself or its nominee on its behalf, or
(b) by the transferor company itself or its nominee on its behalf.
(5) The date of the common draft terms of merger shall, for the purposes of this Chapter, be the date when the common draft terms of merger are approved in writing under subsection (1) by the boards of directors of the merging companies; where the dates on which those terms are so approved by each of the boards of directors are not the same, then, for the foregoing purposes, the date shall be the latest date on which those terms are so approved by a board of directors.
Section 467
Directors’ explanatory report
467. (1) Except in the case of a merger by absorption and subject to subsection (4), a separate written report (the “explanatory report”) shall be prepared in respect of each of the merging companies by the directors of each such company.
(2) The explanatory report shall at least give particulars of, and explain—
(a) the common draft terms of merger, and
(b) the legal and economic grounds for and implications of the common draft terms of merger with particular reference to the proposed share exchange ratio, organisation and management structures, recent and future commercial activities and the financial interests of the holders of the shares and other securities in the company.
(3) On the explanatory report being prepared in relation to a company, the board of directors of it shall approve the report in writing.
(4) This section shall not apply if the following condition is, or (as appropriate) the following 2 conditions are, satisfied:
(a) other than in a case falling within paragraph (b), all of the holders of shares conferring the right to vote at general meetings of each of the merging companies have agreed that this section shall not apply; or
(b) where a requirement for the taking effect of a vote (whether a vote generally or of the type to which this subsection applies) by holders of shares of any of the merging companies is that a holder of securities of the company has consented thereto—
(i) the agreement mentioned in paragraph (a) exists, and
(ii) all of the holders of securities of the company or companies in respect of which the requirement mentioned in this paragraph operates have agreed that this section shall not apply.
Section 468
Expert’s report
468. (1) Subject to subsection (2), there shall, in accordance with this section, be appointed one or more persons to—
(a) examine the common draft terms of merger, and
(b) make a report on those terms to the shareholders of the merging companies.
(2) Subsection (1) shall not apply where—
(a) the merger is a merger by absorption,
(b) the merger is a merger in which the successor company (not being a company formed for the purposes of the merger) holds 90 per cent or more (but not all) of the shares carrying the right to vote at a general meeting of the transferor company or at general meetings of each of the transferor companies, or
(c) every member of every merging company agrees that such report is not necessary.
(3) The functions referred to in subsection (1)(a) and (b) shall be performed either—
(a) in relation to each merging company, by one or more persons appointed for that purpose in relation to the particular company by its directors (and the directors of each company may appoint the same person or persons for that purpose), or
(b) in relation to all the merging companies, by one or more persons appointed for that purpose by the court, on the application to it of all of the merging companies.
(4) The person so appointed, or each person so appointed, is referred to in this Chapter as an “expert” and a reference in this Chapter to a report of an expert or other action (including an opinion) of an expert shall, in a case where there are 2 or more experts, be read as reference to a joint report or joint other action (including an opinion) of or by them.
(5) A person shall not be appointed an expert unless the person is a qualified person.
(6) A person is a qualified person for the purposes of this section if the person—
(a) is a statutory auditor, and
(b) is not—
(i) a person who is or, within the period of 12 months before the date of the common draft terms of merger has been, an officer or employee of any of the merging companies,
(ii) except with the leave of the court, a parent, spouse, civil partner, brother, sister or child of an officer of any of the merging companies (and a reference in this subparagraph to a child of an officer shall be deemed to include a child of the officer’s civil partner who is ordinarily resident with the officer and the civil partner), or
(iii) a person who is a partner, or in the employment, of an officer or employee of any of the merging companies.
(7) The report of the expert shall be made available not less than 30 days before the date of the passing of the resolution referred to in section 202(1)(a)(ii) or 473, as the case may be, by each of the merging companies, shall be in writing and shall—
(a) state the method or methods used to arrive at the proposed share exchange ratio,
(b) give the opinion of the expert as to whether the proposed share exchange ratio is fair and reasonable,
(c) give the opinion of the expert as to the adequacy of the method or methods used in the case in question,
(d) indicate the values arrived at using each such method,
(e) give the opinion of the expert as to the relative importance attributed to such methods in arriving at the values decided on, and
(f) specify any special valuation difficulties which have arisen.
(8) The expert may—
(a) require each of the merging companies and their officers to give to the expert such information and explanations (whether oral or in writing), and
(b) make such enquiries,
as the expert thinks necessary for the purposes of making the report.
(9) If a merging company fails to give to the expert any information or explanation in the power, possession or procurement of that company, on a requirement being made of it under subsection (8)(a) by the expert, that company and any officer of it who is in default shall be guilty of a category 2 offence.
(10) If a merging company makes a statement (whether orally or in writing), or provides a document, to the expert that conveys or purports to convey any information or explanation the subject of a requirement made of it under subsection (8)(a) by the expert and—
(a) that information is false or misleading in a material particular, and
(b) the company knows it to be so false or misleading or is reckless as to whether it is so false or misleading,
the company and any officer of it who is in default shall be guilty of a category 2 offence.
(11) If a person appointed an expert under subsection (3)(a) or (b) ceases to be a qualified person, that person—
(a) shall immediately cease to hold office, and
(b) shall give notice in writing of the fact of the person’s ceasing to be a qualified person to each merging company and (in the case of an appointment under subsection (3)(b)) to the court within 14 days after the date of that cessation,
but without prejudice to the validity of any acts done by the person under this Chapter before that cessation.
(12) A person who purports to perform the functions of an expert (in respect of the merger concerned) under this Chapter after ceasing to be a qualified person (in respect of that merger) shall be guilty of a category 2 offence.
Section 469
Merger financial statement
469. (1) Where—
(a) the latest statutory financial statements of any of the merging companies relate to a financial year ended more than 6 months before the date of the common draft terms of merger, and
(b) the Summary Approval Procedure is not being employed to effect the merger,
then, subject to subsection (6), if that company is availing itself of the exemption from the requirement to hold a general meeting provided by section 473(6), that company shall prepare a merger financial statement in accordance with the provisions of this section.
(2) The merger financial statement shall be drawn up—
(a) in the format of the last annual balance sheet, if any, of the company and in accordance with the provisions of Part 6, and
(b) as at a date not earlier than the first day of the third month preceding the date of the common draft terms of merger.
(3) Valuations shown in the last annual balance sheet, if any, shall, subject to the exceptions provided for under subsection (4), only be altered to reflect entries in the accounting records of the company.
(4) Notwithstanding subsection (3), the following shall be taken into account in preparing the merger financial statement—
(a) interim depreciation and provisions, and
(b) material changes in actual value not shown in the accounting records.
(5) The provisions of Part 6 relating to the statutory auditor’s report on the last statutory financial statements of the company concerned shall apply, with any necessary modifications, to the merger financial statement required of the company by subsection (1).
(6) This section shall not apply to a merging company if the following condition is, or (as appropriate) the following 2 conditions are, satisfied:
(a) other than in a case falling within paragraph (b), all of the holders of shares conferring the right to vote at general meetings of the company have agreed that this section shall not apply; or
(b) where a requirement for the taking effect of a vote (whether a vote generally or of the type to which this subsection applies) by holders of shares of the company is that a holder of securities of the company has consented thereto—
(i) the agreement mentioned in paragraph (a) exists, and
(ii) all of the holders of securities in respect of which the requirement mentioned in this paragraph operates have agreed that this section shall not apply.
Section 470
Registration and publication of documents
470. (1) Subject to subsections (4)(a) and (5), each of the merging companies shall deliver to the Registrar—
(a) a copy of the common draft terms of merger as approved in writing by the boards of directors of the companies, and
(b) a notice, in the prescribed form, specifying—
(i) its name,
(ii) its registered office,
(iii) its legal form, and
(iv) its registered number.
(2) Notice of delivery of the common draft terms of merger to the Registrar shall be published—
(a) by the Registrar, in the CRO Gazette, and
(b) by each merging company, in one national daily newspaper.
(3) The notice published in accordance with subsection (2) shall include:
(a) the date of delivery of the documentation under subsection (1);
(b) the matters specified in subsection (1)(b);
(c) a statement that copies of the common draft terms of merger, the directors’ explanatory report, the statutory financial statements referred to in section 471(1) and the expert’s report (where relevant) are available for inspection by the respective members of each merging company at each company’s registered office; and
(d) a statement that a copy of the common draft terms of merger can be obtained from the Registrar.
(4) With regard to subsections (1) and (2)—
(a) compliance with those subsections is not required in a case where the Summary Approval Procedure is employed to effect the merger, and
(b) subject to that, those subsections shall be complied with by each of the merging companies at least 30 days before the date of the passing of the resolution on the common draft terms of merger by each such company in accordance with section 473.
(5) This section shall not apply in relation to a merging company if the company—
(a) publishes, free of charge on its website for a continuous period of at least 2 months, commencing at least 30 days before the date of the general meeting which, by virtue of section 473, is to consider the common draft terms of merger and ending at least 30 days after that date, a copy of the common draft terms of merger, approved pursuant to section 466(1), and
(b) causes to be published in the CRO Gazette and once at least in 1 daily newspaper circulating in the district in which the registered office or principal place of business of the company is situate notice of publication on its website of the common draft terms of merger.
(6) Where, in the period referred to in subsection (5)(a), access to the company’s website is disrupted for a continuous period of at least 24 hours or for separate periods totalling not less than 72 hours, the period referred to in subsection (5)(a) shall be extended for a period corresponding to the period or periods of disruption.
Section 471
Inspection of documents
471. (1) Subject to subsection (5), each of the merging companies shall, in accordance with subsection (3), make available for inspection free of charge by any member of the company at its registered office during business hours:
(a) the common draft terms of merger;
(b) subject to subsection (2), the statutory financial statements for the preceding 3 financial years of each company (audited, where required by that Part, in accordance with Part 6);
(c) except in the case of a merger by absorption or in any other case where such a report is not required to be prepared by that section, the explanatory report relating to each of the merging companies referred to in section 467;
(d) if such a report is required to be prepared by that section, the expert’s report relating to each of the merging companies referred to in section 468; and
(e) each merger financial statement, if any, in relation to one or, as the case may be, more than one of the merging companies, required to be prepared by section 469.
(2) For the purposes of paragraph (b) of subsection (1)—
(a) if any of the merging companies has traded for less than 3 financial years before the date of the common draft terms of merger, then, as respects that company, that paragraph is satisfied by the statutory financial statements for those financial years for which the company has traded (audited, where required by that Part, in accordance with Part 6) being made available as mentioned in that subsection by each of the merging companies, or
(b) if, by reason of its recent incorporation, the obligation of any of the foregoing companies to prepare its first financial statements under Part 6 had not arisen as of the date of the common draft terms of merger, then the reference in that paragraph to the financial statements of that company shall be disregarded.
(3) The provisions of subsection (1) shall apply in the case of each of the merging companies for a period of 30 days before the date of the passing of—
(a) where the Summary Approval Procedure is employed to effect the merger, the resolution referred to in section 202(1)(a)(ii) by each such company, and
(b) where that procedure is not employed for that purpose, the resolution on the common draft terms of merger by each such company in accordance with section 473.
(4) Section 127(1) (access to documents during business hours) shall apply in relation to subsection (1) as it applies in relation to the relevant provisions of Part 4.
(5) Subsection (1) shall not apply in relation to a merging company if it publishes free of charge on its website the documents specified in that subsection for a continuous period of at least 2 months, commencing at least 30 days before—
(a) where the Summary Approval Procedure is employed to effect the merger, the date of the resolution referred to in section 202(1)(a)(ii) of the company, and
(b) where that procedure is not employed for that purpose, the date of the general meeting of the company which, by virtue of section 473, is to consider the common draft terms of merger,
and ending at least 30 days after that date.
(6) Where, in the period referred to in subsection (5), access to the company’s website is disrupted for a continuous period of at least 24 hours or for separate periods totalling not less than 72 hours, the period referred to in subsection (5) shall be extended for a period corresponding to the period or periods of disruption.
(7) A reference in this section to statutory financial statements shall be deemed to include a reference to a directors’ report and a reference to auditing shall, in the case of such a report, be read as a reference to the operation referred to in section 336(5).
Section 472
Non-application of subsequent provisions of Chapter where Summary Approval Procedure employed and effect of resolution referred to in section 202(1)(a)(ii)
472. (1) Without prejudice to subsections (2) and (3), the subsequent sections of this Chapter apply unless the Summary Approval Procedure is employed by the merging companies to effect the merger.
(2) Where the Summary Approval Procedure is employed for that purpose then, as provided for in Chapter 7 of Part 4, on the passing of the resolution referred to in section 202(1)(a)(ii) by each of the merging companies, the merger shall, in accordance with the common draft terms of merger and any supplemental document, take effect on the date specified in those terms or in that supplemental document and section 480(3) shall apply as regards the effects of that merger with any necessary modifications.
(3) Notwithstanding that the Summary Approval Procedure is employed by the merging companies to effect the merger, then, in addition to the application of section 480(3) by virtue of subsection (2)—
(a) section 479 (preservation of rights of holders of securities),
(b) section 483 (civil liability of directors and experts), and
(c) section 484 (criminal liability for untrue statements in merger documents),
shall apply where that procedure is employed.
(4) In this section “supplemental document” means the document referred to in section 209(1).
Section 473
General meetings of merging companies
473. (1) In this section a reference to a general meeting, without qualification, is a reference to a general meeting referred to in subsection (2).
(2) Subject to subsection (6), the subsequent steps under this Chapter in relation to the merger shall not be taken unless the common draft terms of merger have been approved by a special resolution passed at a general meeting of each of the merging companies, being a meeting held not earlier than 30 days after the date of the publication by the company of the notice referred to in section 470(2)(b) or, as the case may be, the notice in the daily newspapers referred to in section 470(5)(b).
(3) Subject to section 474(2), the notice convening that meeting shall contain a statement of every shareholder’s entitlement to obtain on request, free of charge, full or, if so desired, partial copies of the documents referred to in section 471(1) (and, accordingly, every shareholder has, subject to the foregoing provision, that entitlement).
(4) The directors of each transferor company shall inform—
(a) the general meeting of that company, and
(b) as soon as practicable, the directors of the successor company,
of any material change in the assets and liabilities of that transfer or company between the date of the common draft terms of merger and the date of that general meeting.
(5) The directors of the successor company shall inform the general meeting of that company of all changes of which they have been informed pursuant to subsection (4).
(6) Approval, by means of a special resolution, of the common draft terms of merger is not required—
(a) in the case of any transferor company in a merger by absorption, or
(b) in the case of the successor company in a merger by acquisition, if the conditions specified in subsection (7) have been satisfied.
(7) The conditions referred to in subsection (6)(b) are the following:
(a) the notice required to be published under section 470(2)(b) was published in accordance with section 470(2)(b) in respect of the successor company before the commencement of the period (in this subsection referred to as the “notice period”) of 30 days before the date of the passing by the transferor company of the resolution referred to in this section (or, where there is more than one transferor company and the dates on which each of them has passed such a resolution are not the same, the earliest date on which such a resolution was passed by one of them);
(b) the members of the successor company were entitled, during the notice period—
(i) to inspect, at the registered office of the successor company, during ordinary hours of business, copies of the documents referred to in section 471(1), and
(ii) to obtain copies of those documents or any part of them on request;
(c) the right, conferred by subsection (8), to requisition a general meeting has not been exercised during the notice period.
(8) One or more members of the successor company who hold or together hold not less than 5 per cent of the paid-up capital of the company which carries the right to vote at general meetings of the company (excluding any shares held as treasury shares) may require the convening of a general meeting of the company to consider the common draft terms of merger, and section 178(3) to (7) apply, with any necessary modifications, in relation to the requisition.
Section 474
Electronic means of making certain information available for purposes of section 473
474. (1) For the purposes of section 473, but subject to subsection (2), where a shareholder has consented to the use by the company of electronic means for conveying information, the copies of the documents referred to in section 471(1) may be provided, by electronic mail, to that shareholder by the company and the notice convening the general meeting referred to in section 473(2) shall contain a statement to that effect.
(2) The entitlement referred to in section 473(3) shall not apply where, for the period specified in subsection (3), copies of the documents referred to in section 471(1) are available to download and print, free of charge, from the company’s website by shareholders of the company.
(3) The period referred to in subsection (2) is a continuous period of at least 2 months, commencing at least 30 days before the date of the general meeting which, by virtue of section 473, is to consider the common draft terms of merger and ending at least 30 days after that date.
Section 475
Meetings of classes of shareholders
475. (1) Where the share capital of any of the merging companies is divided into shares of different classes the provisions referred to in subsection (2), with the exclusions specified in subsection (3), shall apply with respect to the variation of the rights attached to any such class that is entailed by the merger.
(2) Those provisions are the provisions of Chapter 4 of Part 3 on the variation of the rights attached to any class of shares in a company.
(3) There is excluded the following from the foregoing provisions: sections 88(9) and 89.
Section 476
Purchase of minority shares
476. (1) Where the special resolution referred to in section 473 has been passed by each of the merging companies (or such of them as are required by that section to pass such a resolution), a minority shareholder in a transferor company may, not later than 15 days after the relevant date, request the successor company in writing to acquire his or her shares in the transferor company for cash.
(2) Where a request is made by a minority shareholder in accordance with subsection (1), the successor company shall purchase the shares of the minority shareholder at a price determined in accordance with the share exchange ratio set out in the common draft terms of merger and the shares so purchased by the successor company shall be treated as treasury shares within the meaning of section 106.
(3) Nothing in this section limits the power of the court to make any order necessary for the protection of the interests of a dissenting minority in a merging company.
(4) In this Chapter—
“minority shareholder”, in relation to a transferor company, means—
(a) in a case where the successor company (not being a company formed for the purpose of the merger) holds 90 per cent or more (but not all) of the shares carrying the right to vote at general meetings of the transferor company, any other shareholder in the company, or
(b) in any other case, a shareholder in the company who voted against the special resolution;
“relevant date” means—
(a) in relation to a minority shareholder referred to in paragraph (a) of the definition of “minority shareholder” in this subsection, the date of publication of the notice of delivery of the common draft terms of merger under section 470(2)(b), or
(b) in relation to a minority shareholder referred to in paragraph (b) of that definition of “minority shareholder”, the date on which the resolution of the transferor company was passed.
Section 477
Application for confirmation of merger by court
477. (1) An application under this section to the court for an order confirming a merger shall be made jointly by all the merging companies.
(2) That application shall be accompanied by a statement of the size of the shareholding of any shareholder who has requested the purchase of his or her shares under section 476 and of the measures which the successor company proposes to take to comply with the shareholder’s request.
Section 478
Protection of creditors
478. A creditor of any of the merging companies who, at the date of publication of the notice under section 470(2)(b) is entitled to any debt or claim against the company, shall be entitled to be heard in relation to the confirmation by the court of the merger under section 480.
Section 479
Preservation of rights of holders of securities
479. (1) Subject to subsection (2), holders of securities, other than shares, in any of the companies being acquired to which special rights are attached shall be given rights in the successor company at least equivalent to those they possessed in the company being acquired.
(2) Subsection (1) shall not apply—
(a) where the alteration of the rights in the acquiring company has been approved—
(i) by a majority of the holders of such securities at a meeting held for that purpose, or
(ii) by the holders of those securities individually,
or
(b) where the holders of those securities are entitled under the terms of those securities to have their securities purchased by the successor company.
Section 480
Confirmation order
480. (1) Where an application is made under section 477 to the court for an order confirming a merger this section applies.
(2) The court, on being satisfied that—
(a) the requirements of this Chapter have been complied with,
(b) proper provision has been made for—
(i) any minority shareholder in any of the merging companies who has made a request under section 476, and
(ii) any creditor of any of the merging companies who objects to the merger in accordance with section 478,
(c) the rights of holders of securities other than shares in any of the companies being acquired are safeguarded in accordance with section 479, and
(d) where applicable, the relevant provisions of Chapter 4 of Part 3 on the variation of the rights attached to any class of shares in any of the merging companies have been complied with,
may make an order confirming the merger with effect from such date as the court appoints (the “effective date”).
(3) The order of the court confirming the merger shall, from the effective date, have the following effects:
(a) all the assets and liabilities of the transferor company or companies are transferred to the successor company;
F331[(aa) any fully paid shares previously issued by a successor company, and held by a transferor company, and which are acquired by that successor company in itself pursuant to a merger under this Chapter, shall be deemed to be treasury shares held by the successor company concerned to which section 109 applies;]
(b) in the case of a merger by acquisition or a merger by formation of a new company, where no request has been made by minority shareholders under section 476, all remaining members of the transferor company or companies except the successor company (if it is a member of a transferor company) become members of the successor company;
(c) the transferor company or companies is or are dissolved;
(d) all legal proceedings pending by or against any transferor company shall be continued with the substitution, for the transferor company, of the successor company as a party;
(e) the successor company is obliged to make to the members of the transferor company or companies any cash payment required by the common draft terms of merger;
(f) every contract, agreement or instrument to which a transferor company is a party shall, notwithstanding anything to the contrary contained in that contract, agreement or instrument, be read and have effect as if—
(i) the successor company had been a party thereto instead of the transferor company,
(ii) for any reference (however worded and whether express or implied) to the transferor company there were substituted a reference to the successor company, and
(iii) any reference (however worded and whether express or implied) to the directors, officers, representatives or employees of the transferor company, or any of them—
(I) were, respectively, a reference to the directors, officers, representatives or employees of the successor company or to such director, officer, representative or employee of the successor company as the successor company nominates for that purpose, or
(II) in default of such nomination, were, respectively, a reference to the director, officer, representative or employee of the successor company who corresponds as nearly as may be to the first-mentioned director, officer, representative or employee;
(g) every contract, agreement or instrument to which a transferor company is a party becomes a contract, agreement or instrument between the successor company and the counterparty with the same rights, and subject to the same obligations, liabilities and incidents (including rights of set-off), as would have been applicable thereto if that contract, agreement or instrument had continued in force between the transferor company and the counterparty;
(h) any money due and owing (or payable) by or to a transferor company under or by virtue of any such contract, agreement or instrument as is mentioned in paragraph (g) shall become due and owing (or payable) by or to the successor company instead of the transferor company; and
(i) an offer or invitation to treat made to or by a transferor company before the effective date shall be read and have effect, respectively, as an offer or invitation to treat made to or by the successor company.
(4) The following provisions have effect for the purposes of subsection (3)—
(a) “instrument” in that subsection includes—
(i) a lease, conveyance, transfer, charge or any other instrument relating to real property (including chattels real); and
(ii) an instrument relating to personalty;
(b) paragraph (f)(ii) of that subsection applies in the case of references to the transferor company and its successors and assigns as it applies in the case of references to the transferor company personally;
(c) paragraph (g) of that subsection applies in the case of rights, obligations and liabilities mentioned in that paragraph whether they are expressed in the contract, agreement or instrument concerned to be personal to the transferor company or to benefit or bind (as appropriate) the transferor company and its successors and assigns.
(5) Without prejudice to subsections (6) and (7), the successor company shall comply with registration requirements and any other special formalities required by law and as directed by the court for the transfer of the assets and liabilities of the transferor company or companies to be effective in relation to other persons.
(6) There shall be entered by the keeper of any register in the State—
(a) upon production of a certified copy of the order under subsection (2); and
(b) without the necessity of there being produced any other document (and, accordingly, any provision requiring such production shall, if it would otherwise apply, not apply),
the name of the successor company in place of any transferor company in respect of the information, act, ownership or other matter in that register and any document kept in that register.
(7) Without prejudice to the generality of subsection (6), the Property Registration Authority, as respects any deed (within the meaning of section 32 of the Registration of Deeds and Title Act 2006) registered by that Authority or produced for registration by it, shall, upon production of the document referred to in subsection (6)(a) but without the necessity of there being produced that which is referred to in subsection (6)(b), enter the name of the successor company in place of any transferor company in respect of such deed.
(8) Without prejudice to the application of subsection (6) to any other type of register in the State, each of the following shall be deemed to be a register in the State for the purposes of that subsection:
(a) the register of members of a company referred to in section 169;
(b) the register of holders of debentures of a public limited company kept pursuant to section 1120;
(c) the register kept by a public limited company for the purposes of sections 1048 to 1053;
(d) the register of charges kept by the Registrar pursuant to section 414;
(e) the Land Registry;
(f) any register of shipping kept under the Mercantile Marine Act 1955.
(9) If the taking effect of the merger would fall at a time (being the time ascertained by reference to the general law and without regard to this subsection) on the particular date appointed under subsection (2) that is a time that would not, in the opinion of the court, be suitable having regard to the need of the parties to co-ordinate various transactions, the court may, in appointing a date under subsection (2) with respect to when the merger takes effect, specify a time, different from the foregoing, on that date when the merger takes effect and, where such a time is so specified—
(a) the merger takes effect on that time of the date concerned, and
(b) references in this section to the effective date shall be read accordingly.
Annotations
Amendments:
F331
Inserted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 20, S.I. No. 335 of 2022.
Modifications (not altering text):
C149
Order made under subs. (2) may be regarded as a conveyance on sale in certain circumstances as provided by Taxes Consolidation Act 1997 (39/1997), s. 79(11)(a)(ii) as inserted (25.12.2017) by Finance Act 2017 (41/2017), s. 66(b), commenced on enactment.
Foreign currency: computation of income and chargeable gains.
79.— ...
[(11) In the case of—
(a) a merger undertaken in accordance with Chapter 3 of Part 9 of the Companies Act 2014 —
(i) the resolution referred to in paragraph (a)(ii) of section 202(1) of that Act, in the case of a merger effected by way of the summary approval procedure (within the meaning of section 202 of that Act), or
(ii) the order made under section 480(2) of that Act, in the case of a merger effected otherwise than by way of the summary approval procedure (within the foregoing meaning),
shall be regarded as a conveyance on sale, or
...]
C150
Order made under subs. (2) may be regarded as a conveyance on sale in certain circumstances as provided by Taxes Consolidation Act 1997 (39/1997), s. 80(11)(a)(ii), (12) as inserted (25.12.2017) by Finance Act 2017 (41/2017), s. 67(c), commenced on enactment.
Taxation of certain foreign currencies.
80.— ...
[(11) In the case of—
(a) a merger undertaken in accordance with Chapter 3 of Part 9 of the Companies Act 2014 —
(i) the resolution referred to in paragraph (a)(ii) of section 202(1) of that Act, in the case of a merger effected by way of the summary approval procedure (within the meaning of section 202 of that Act), or
(ii) the order made under section 480(2) of that Act, in the case of a merger effected otherwise than by way of the summary approval procedure (within the foregoing meaning),
shall be regarded as a conveyance on sale, or
...
(12) This section shall not apply unless the scheme of reconstruction or amalgamation or the merger is effected for bona fide commercial reasons and does not form part of a scheme or arrangement of which the main purpose, or one of the main purposes, is avoidance of liability to any tax or duty.]
Section 481
Certain provisions not to apply where court so orders
481. Where the court makes an order confirming a merger under this Chapter, the court may, if it sees fit for the purpose of enabling the merger properly to have effect, include in the order provision permitting—
(a) the giving of financial assistance which may otherwise be prohibited under section 82,
(b) a reduction in company capital which may otherwise be restricted under section 84.
Section 482
Registration and publication of confirmation of merger
482. (1) If the court makes an order confirming a merger, a certified copy of the order shall forthwith be sent to the Registrar by such officer of the court as the court may direct.
(2) Where the Registrar receives a certified copy of the order of the court in accordance with subsection (1), the Registrar shall—
(a) on, or as soon as practicable after, the effective date — register in the register that certified copy and the dissolution of the transferor company or companies, and
(b) within 14 days after the date of that delivery — cause to be published in the CRO Gazette notice that a copy of an order of the court confirming the merger has been delivered to him or her.
Section 483
Civil liability of directors and experts
483. (1) Any shareholder of any of the merging companies who has suffered loss or damage by reason of misconduct in the preparation or implementation of the merger by a director of any such company or by the expert, if any, who has made a report under section 468 shall be entitled to have such loss or damage made good to him or her by—
(a) in the case of misconduct by a person who was a director of that company at the date of the common draft terms of merger — that person,
(b) in the case of misconduct by any expert who made a report under section 468 in respect of any of the merging companies — that person.
(2) Without prejudice to the generality of subsection (1), any shareholder of any of the merging companies who has suffered loss or damage arising from the inclusion of any untrue statement in any of the following, namely:
(a) the common draft terms of merger;
(b) the explanatory report, if any, referred to in section 467;
(c) the expert’s report, if any, under section 468;
(d) the merger financial statement, if any, prepared under section 469,
shall, subject to subsections (3) and (4), be entitled to have such loss or damage made good to him or her—
(i) in the case of the document or report referred to in paragraph (a), (b) or (d) — by every person who was a director of that company at the date of the common draft terms of merger, or
(ii) in the case of the report referred to in paragraph (c) — by the person who made that report in relation to that company.
(3) A director of a company shall not be liable under subsection (2) if he or she proves—
(a) that the document or report referred to in subsection (2)(a), (b) or (d), as the case may be, was issued without his or her knowledge or consent and that, on becoming aware of its issue, he or she forthwith informed the shareholders of that company that it was issued without his or her knowledge or consent, or
(b) that as regards every untrue statement he or she had reasonable grounds, having exercised all reasonable care and skill, for believing and did, up to the time the merger took effect, believe that the statement was true.
(4) A person who makes a report under section 468 in relation to a company shall not be liable in the case of any untrue statement in the report if he or she proves—
(a) that, on becoming aware of the statement, he or she forthwith informed that company and its shareholders of the untruth, or
(b) that he or she was competent to make the statement and that he or she had reasonable grounds for believing and did up to the time the merger took effect believe that the statement was true.
Section 484
Criminal liability for untrue statements in merger documents
484. (1) Where any untrue statement has been included in—
(a) the common draft terms of merger,
(b) the explanatory report, if any, referred to in section 467, or
(c) the merger financial statement, if any, prepared under section 469,
the following:
(i) each of the persons who was a director of any of the merging companies at the date of the common draft terms of merger or, in the case of the foregoing explanatory report or merger financial statement, at the time of the report’s or statement’s preparation; and
(ii) any person who authorised the issue of the document;
shall be guilty of a category 2 offence.
(2) Where any untrue statement has been included in the expert’s report prepared under section 468, the expert and any person who authorised the issue of the report shall be guilty of a category 2 offence.
(3) In any proceedings against a person in respect of an offence under subsection (1) or (2), it shall be a defence to prove that, having exercised all reasonable care and skill, the defendant had reasonable grounds for believing and did, up to the time of the issue of the document concerned, believe that the statement concerned was true.
CHAPTER 4
Divisions
Section 485
Interpretation (Chapter 4)
485. (1) In this Chapter—
“director”, in relation to a company which is being wound up, means liquidator; “division” means—
(a) a division by acquisition, or
(b) a division by formation of new companies,
within, in each case, the meaning of section 487;
“share exchange ratio” means the number of shares or other securities in any of the successor companies that the draft terms of division provide to be allotted to members of the transferor company for a given number of their shares or other securities in the transferor company;
“successor company” shall be read in accordance with section 487(1);
“transferor company” shall be read in accordance with section 487(1).
(2) A reference in this Chapter to a company involved in a division shall—
(a) in the case of a division by acquisition, be read as a reference to a company that is, in relation to that division, the transferor company or a successor company (other than a new company formed for the purpose of the acquisition concerned),
(b) in the case of a division by formation of new companies, be read as a reference to a company that is, in relation to that division, the transferor company.
(3) References in this Chapter to the acquisition of a company are references to the acquisition of the assets and liabilities of the company by way of a division under this Chapter.
Section 486
Requirements for Chapter to apply
486. This Chapter applies only if—
(a) none of the companies involved in the division is a public limited company, and
(b) one, at least, of the companies involved in the division is a private company limited by shares.
Section 487
Divisions to which this Chapter applies — definitions and supplementary provisions
487. (1) In this Chapter “division by acquisition” means an operation consisting of the following:
(a) 2 or more companies (each of which is referred to in this Chapter as a “successor company”), of which one or more but not all may be a new company, acquire between them all the assets and liabilities of another company that is dissolved without going into liquidation (referred to in this Chapter as the “transferor company”); and
(b) such acquisition is—
(i) in exchange for the issue to the shareholders of the transferor company of shares in one or more of the successor companies, with or without any cash payment, and
(ii) with a view to the dissolution of the transferor company.
(2) In this Chapter “division by formation of new companies” means an operation consisting of the same elements as a division by acquisition (as defined in subsection (1)) consists of save that the successor companies have been formed for the purposes of the acquisition of the assets and liabilities referred to in that subsection.
(3) Where a company is being wound up it may become a party to a division by acquisition or a division by formation of new companies, provided that the distribution of its assets to its shareholders has not begun at the date, under section 490(7), of the common draft terms of division.
Section 488
Division may not be put into effect save under and in accordance with this Chapter
488. (1) A division may not be put into effect save under and in accordance with the provisions of this Chapter but this is without prejudice to the alternative of proceeding under Chapter 1 to achieve the same or a similar result to that which can be achieved by such an operation.
(2) A division shall not take effect under this Chapter (or any operation to the same or similar effect under Chapter 1) in the absence of the approval, authorisation or other consent, if any, that is required by any other enactment or a Community act for the division to take effect.
Section 489
Chapters 1 and 4: mutually exclusive modes of proceeding to achieve division
489. All the elements of the operation constituting a division shall be effected by proceeding either under this Chapter or under Chapter 1 and not by proceeding partly, as regards some of its elements, under one of those Chapters and partly, as regards other of its elements, under the other of those Chapters.
Section 490
Common draft terms of division
490. (1) Where a division is proposed to be entered into, the directors of the companies involved in the division shall draw up common draft terms of division and approve those terms in writing.
(2) The common draft terms of division shall state, at least:
(a) in relation to the transferor company—
(i) its name,
(ii) its registered office, and
(iii) its registered number;
(b) in relation to each of the successor companies—
(i) where any of those is an existing company, the particulars specified in subparagraphs (i) to (iii) of paragraph (a), or
(ii) where any of those is a new company yet to be formed, what are proposed as the particulars specified in subparagraphs (i) and (ii) of that paragraph;
(c) the proposed share exchange ratio and amount of any cash payment;
(d) the proposed terms relating to allotment of shares or other securities in the successor companies;
(e) the date from which the holding of shares or other securities in the successor companies will entitle the holders to participate in profits and any special conditions affecting that entitlement;
(f) the date from which the transactions of the transferor company are to be treated for accounting purposes as being those of any of the successor companies;
(g) the rights, if any, to be conferred by the successor companies on members of the transferor company enjoying special rights or on holders of securities other than shares representing the transferor company’s capital, and the measures proposed concerning them;
(h) any special advantages granted to—
(i) any director of a company involved in a division, or
(ii) any person appointed under section 492;
(i) the constitution of each of the successor companies;
(j) information on the evaluation of the assets and liabilities to be transferred to successor companies; and
(k) the dates of the financial statements, if any, of every company involved in the division which were used for the purpose of preparing the common draft terms of division.
(3) The common draft terms of division may include such additional terms as are not inconsistent with this Chapter.
(4) The common draft terms of division shall not provide for any shares in any of the successor companies to be exchanged for shares in the transferor company held either—
(a) by the successor companies themselves or their nominees on their behalf, or
(b) by the transferor company or its nominee on its behalf.
(5) Without prejudice to subsection (6), where—
(a) an asset of the transferor company is not allocated by the common draft terms of division, and
(b) it is not possible, by reference to an interpretation of those terms, to determine the manner in which it is to be allocated,
the asset or the consideration therefor shall be allocated to the successor companies in proportion to the share of the net assets allocated to each of those companies under the common draft terms of division.
(6) If provision is not made by the common draft terms of division for the allocation of an asset acquired by, or otherwise becoming vested in, the transferor company on or after the date of those draft terms then, subject to any provision the court may make in an order under section 503, the asset or the consideration therefor shall be allocated in the manner specified in subsection (5).
(7) The date of the common draft terms of division shall, for the purposes of this Chapter, be the date when the common draft terms of division are approved in writing under subsection (1) by the boards of directors of the companies involved in the division; where the dates on which those terms are so approved by each of the boards of directors are not the same, then, for the foregoing purposes, the date shall be the latest date on which those terms are so approved by a board of directors.
Section 491
Directors’ explanatory report
491. (1) Subject to subsections (4) and (5), a separate written report (the “explanatory report”) shall be prepared in respect of each of the companies involved in the division by the directors of each such company.
(2) The explanatory report shall at least give particulars of, and explain—
(a) the common draft terms of division, and
(b) the legal and economic grounds for and implications of the common draft terms of division with particular reference to the proposed share exchange ratio, organisation and management structures, recent and future commercial activities and the financial interests of holders of the shares and other securities in the company.
(3) On the explanatory report being prepared in relation to a company, the board of directors of it shall approve the report in writing.
(4) This section shall not apply if the following condition is, or (as appropriate) the following 2 conditions are, satisfied:
(a) other than in a case falling within paragraph (b), all of the holders of shares conferring the right to vote at general meetings of each of the companies involved in the division have agreed that this section shall not apply; or
(b) where a requirement for the taking effect of a vote (whether a vote generally or of the type to which this subsection applies) by holders of shares of any of the companies involved in the division is that a holder of securities of the company has consented thereto—
(i) the agreement mentioned in paragraph (a) exists, and
(ii) all of the holders of securities of the company or companies in respect of which the requirement mentioned in this paragraph operates have agreed that this section shall not apply.
(5) This section shall not apply in relation to a company involved in a division by formation of new companies where the shares in each of the acquiring companies are allocated to the shareholders of the transferor company in proportion to their rights in the capital of that company.
Section 492
Expert’s report
492. (1) Subject to subsections (2) and (13), there shall, in accordance with this section, be appointed one or more persons to—
(a) examine the common draft terms of division, and
(b) make a report on those terms to the shareholders of the companies involved in the division.
(2) Subsection (1) shall not apply where—
(a) the division is a division in which one of the successor companies (not being a company formed for the purposes of the division) holds 90 per cent or more (but not all) of the shares carrying the right to vote at a general meeting of the transferor company, or
(b) every member of every company involved in the division agrees that such report is not necessary.
(3) The functions referred to in subsection (1)(a) and (b) shall be performed either—
(a) in relation to each company involved in the division, by one or more persons appointed for that purpose in relation to the particular company by its directors (and the directors of each company may appoint the same person or persons for that purpose), or
(b) in relation to all the companies involved in the division, by one or more persons appointed for that purpose by the court, on the application to it of all of the companies so involved.
(4) The person so appointed, or each person so appointed, is referred to in this Chapter as an “expert” and a reference in this Chapter to a report of an expert or other action (including an opinion) of an expert shall, in a case where there are 2 or more experts, be read as reference to a joint report or joint other action (including an opinion) of or by them.
(5) A person shall not be appointed an expert unless the person is a qualified person.
(6) A person is a qualified person for the purposes of this section if the person—
(a) is a statutory auditor, and
(b) is not—
(i) a person who is or, within the period of 12 months before the date of the common draft terms of division has been, an officer or employee of any of the companies involved in the division,
(ii) except with the leave of the court, a parent, spouse, civil partner, brother, sister or child of an officer of any of the companies involved in the division (and a reference in this subparagraph to a child of an officer shall be deemed to include a child of the officer’s civil partner who is ordinarily resident with the officer and the civil partner), or
(iii) a person who is a partner, or in the employment, of an officer or employee of any of the companies involved in the division.
(7) The report of the expert shall be made available not less than 30 days before the date of the passing of the resolution referred to in section 496 by each of the companies involved in the division, shall be in writing and shall—
(a) state the method or methods used to arrive at the proposed share exchange ratio,
(b) give the opinion of the expert as to whether the proposed share exchange ratio is fair and reasonable,
(c) give the opinion of the expert as to the adequacy of the method or methods used in the case in question,
(d) indicate the values arrived at using each such method,
(e) give the opinion of the expert as to the relative importance attributed to such methods in arriving at the values decided on, and
(f) specify any special valuation difficulties which have arisen.
(8) The expert may—
(a) require each of the companies involved in the division and their officers to give to the expert such information and explanations (whether oral or in writing), and
(b) make such enquiries,
as the expert thinks necessary for the purposes of making the report.
(9) If a company involved in the division fails to give to the expert any information or explanation in the power, possession or procurement of that company, on a requirement being made of it under subsection (8)(a) by the expert, that company and any officer of it who is in default shall be guilty of a category 2 offence.
(10) If a company involved in the division makes a statement (whether orally or in writing), or provides a document, to the expert that conveys or purports to convey any information or explanation the subject of a requirement made of it under subsection (8)(a) by the expert and—
(a) that information is false or misleading in a material particular, and
(b) the company knows it to be so false or misleading or is reckless as to whether it is so false or misleading,
the company and any officer of it who is in default shall be guilty of a category 2 offence.
(11) If a person appointed an expert under subsection (3)(a) or (b) ceases to be a qualified person, that person—
(a) shall immediately cease to hold office, and
(b) shall give notice in writing of the fact of the person’s ceasing to be a qualified person to each company involved in the division and (in the case of an appointment under subsection (3)(b)) to the court within 14 days after the date of that cessation,
but without prejudice to the validity of any acts done by the person under this Chapter before that cessation.
(12) A person who purports to perform the functions of an expert (in respect of the division concerned) under this Chapter after ceasing to be a qualified person (in respect of that division) shall be guilty of a category 2 offence.
(13) This section shall not apply in relation to a company involved in a division by formation of new companies where the shares in each of the successor companies are allocated to the shareholders of the transferor company in proportion to their rights in the capital of that company.
Section 493
Division financial statement
493. (1) Subject to subsection (6), where—
(a) the latest statutory financial statements of any of the companies involved in the division relate to a financial year ended more than 6 months before the date of the common draft terms of division, and
(b) that company is availing itself of the exemption from the requirement to hold a general meeting provided by section 496(6),
then that company shall prepare a division financial statement in accordance with the provisions of this section.
(2) The division financial statement shall be drawn up—
(a) in the format of the last annual balance sheet, if any, of the company and in accordance with the provisions of Part 6, and
(b) as at a date not earlier than the first day of the third month preceding the date of the common draft terms of division.
(3) Valuations shown in the last annual balance sheet, if any, shall, subject to the exceptions provided for under subsection (4), only be altered to reflect entries in the accounting records of the company.
(4) Notwithstanding subsection (3), the following shall be taken into account in preparing the division financial statement—
(a) interim depreciation and provisions, and
(b) material changes in actual value not shown in the accounting records.
(5) The provisions of Part 6 relating to the statutory auditor’s report on the last statutory financial statements of the company concerned shall apply, with any necessary modifications, to the division financial statement required of the company by subsection (1).
(6) This section shall not apply to a company involved in a division if the following condition is, or (as appropriate) the following 2 conditions are, satisfied:
(a) other than in a case falling within paragraph (b), all of the holders of shares conferring the right to vote at general meetings of the company have agreed that this section shall not apply; or
(b) where a requirement for the taking effect of a vote (whether a vote generally or of the type to which this subsection applies) by holders of shares of the company is that a holder of securities of the company has consented thereto—
(i) the agreement mentioned in paragraph (a) exists, and
(ii) all of the holders of securities in respect of which the requirement mentioned in this paragraph operates have agreed that this section shall not apply.
Section 494
Registration and publication of documents
494. (1) Subject to subsection (5), each of the companies involved in the division shall deliver to the Registrar—
(a) a copy of the common draft terms of division as approved in writing by the board of directors of the companies, and
(b) a notice, in the prescribed form, specifying—
(i) its name,
(ii) its registered office,
(iii) its legal form, and
(iv) its registered number.
(2) Notice of delivery of the common draft terms of division to the Registrar shall be published:
(a) by the Registrar, in the CRO Gazette; and
(b) by each company involved in the division, in one national daily newspaper.
(3) The notice published in accordance with subsection (2) shall include:
(a) the date of delivery of the documentation under subsection (1);
(b) the matters specified in subsection (1)(b);
(c) a statement that copies of the common draft terms of division, the directors’ explanatory report, the statutory financial statements referred to in section 495(1) and the expert’s report (where relevant) are available for inspection by the respective members of each company involved in the division at each company’s registered office; and
(d) a statement that a copy of the common draft terms of division can be obtained from the Registrar.
(4) Subsections (1) and (2) shall be complied with by each of the companies involved in the division at least 30 days before the date of the passing of the resolution on the common draft terms of division by each such company in accordance with section 496.
(5) This section shall not apply in relation to a company involved in the division if the company—
(a) publishes, free of charge on its website for a continuous period of at least 2 months, commencing at least 30 days before the date of the general meeting which, by virtue of section 496, is to consider the common draft terms of division and ending at least 30 days after that date, a copy of the common draft terms of division, as approved pursuant to section 490(1), and
(b) causes to be published in the CRO Gazette and once at least in 2 daily newspapers circulating in the district in which the registered office or principal place of business of the company is situate notice of publication on its website of the common draft terms of division.
(6) Where, in the period referred to in subsection (5)(a), access to the company’s website is disrupted for a continuous period of at least 24 hours or for separate periods totalling not less than 72 hours, the period referred to in subsection (5)(a) shall be extended for a period corresponding to the period or periods of disruption.
Section 495
Inspection of documents
495. (1) Subject to subsection (5), each of the companies involved in the division shall, in accordance with subsection (3), make available for inspection free of charge by any member of the company at its registered office during business hours:
(a) the common draft terms of division;
(b) subject to subsection (2), the statutory financial statements for the preceding 3 financial years of each company (audited, where required by that Part, in accordance with Part 6);
(c) the explanatory report relating to each of the companies involved in the division referred to in section 491;
(d) if such a report is required to be prepared by that section, the expert’s report relating to each of the companies involved in the division referred to in section 492;
(e) each division financial statement, if any, in relation to one or, as the case may be, more than one of the companies involved in the division, required to be prepared by section 493.
(2) For the purposes of paragraph (b) of subsection (1)—
(a) if any of the companies involved in the division has traded for less than 3 financial years before the date of the common draft terms of division, then, as respects that company, that paragraph is satisfied by the statutory financial statements for those financial years for which the company has traded (audited, where required by that Part, in accordance with Part 6) being made available as mentioned in that subsection by each of the companies involved in the division, or
(b) if, by reason of its recent incorporation, the obligation of any of the foregoing companies to prepare its first financial statements under Part 6 had not arisen as of the date of the common draft terms of division, then the reference in that paragraph to the financial statements of that company shall be disregarded.
(3) The provisions of subsection (1) shall apply in the case of each of the companies involved in the division for a period of 30 days before the date of the passing of the resolution on the common draft terms of division by each such company in accordance with section 496.
(4) Section 127(1) (access to documents during business hours) shall apply in relation to subsection (1) as it applies in relation to the relevant provisions of Part 4.
(5) Subsection (1) shall not apply in relation to a company involved in a division if it publishes free of charge on its website the documents specified in that subsection for a continuous period of at least 2 months, commencing at least 30 days before the date of the general meeting which, by virtue of section 496, is to consider the common draft terms of division and ending at least 30 days after that date.
(6) Where, in the period referred to in subsection (5), access to the company’s website is disrupted for a continuous period of at least 24 hours or for separate periods totalling not less than 72 hours, the period referred to in subsection (5) shall be extended for a period corresponding to the period or periods of disruption.
(7) A reference in this section to statutory financial statements shall be deemed to include a reference to a directors’ report and a reference to auditing shall, in the case of such a report, be read as a reference to the operation referred to in section 336(5).
Section 496
General meetings of companies involved in a division
496. (1) In this section—
(a) a reference to a general meeting, without qualification, is a reference to a general meeting referred to in subsection (2),
(b) a reference to a successor company does not include a reference to a new such company formed for the purposes of the division.
(2) Subject to subsection (6), the subsequent steps under this Chapter in relation to the division shall not be taken unless the common draft terms of division have been approved by a special resolution passed at a general meeting of each of the companies involved in the division, being a meeting held not earlier than 30 days after the date of the publication by the company of the notice referred to in section 494(2)(b).
(3) Subject to section 497(2), the notice convening that meeting shall contain a statement of every shareholder’s entitlement to obtain on request, free of charge, full or, if so desired, partial copies of the documents referred to in section 495(1) (and, accordingly, every shareholder has, subject to the foregoing provision, that entitlement).
(4) The directors of the transferor company shall inform—
(a) the general meeting of that company, and
(b) as soon as practicable, the directors of the successor companies,
of any material change in the assets and liabilities of the transferor company between the date of the common draft terms of division and the date of that general meeting.
(5) The directors of the successor companies shall inform the general meetings of those companies of all changes of which they have been informed pursuant to subsection (4).
(6) Approval, by means of a special resolution, of the common draft terms of division is not required in the case of a particular successor company in a division by acquisition if the conditions specified in subsection (7) have been satisfied in relation to that successor company (the “particular successor company”).
(7) The conditions referred to in subsection (6) are the following:
(a) the notice required to be published under section 494(2)(b) was published in accordance with section 494(2)(b) in respect of the particular successor company before the commencement of the period (in this subsection referred to as the “notice period”) of 30 days before the date of the passing by the transferor company of the resolution referred to in this section;
(b) the members of the particular successor company were entitled, during the notice period—
(i) to inspect, at the registered office of that successor company, during ordinary hours of business, copies of the documents referred to in section 495(1), and
(ii) to obtain copies of those documents or any part of them on request;
(c) the right, conferred by subsection (8), to requisition a general meeting has not been exercised during the notice period.
(8) One or more members of the particular successor company who hold or together hold not less than 5 per cent of the paid-up capital of the company which carries the right to vote at general meetings of the company (excluding any shares held as treasury shares) may require the convening of a general meeting of the company to consider the common draft terms of division, and section 178(3) to (7) apply, with any necessary modifications, in relation to the requisition.
Section 497
Electronic means of making certain information available for purposes of section 496
497. (1) For the purposes of section 496, but subject to subsection (2), where a shareholder has consented to the use by the company of electronic means for conveying information, the copies of the documents referred to in section 495(1) may be provided, by electronic mail, to that shareholder by the company and the notice convening the general meeting referred to in section 496(2) shall contain a statement to that effect.
(2) The entitlement referred to in section 496(3) shall not apply where, for the period specified in subsection (3), copies of the documents referred to in section 495(1) are available to download and print, free of charge, from the company’s website by shareholders of the company.
(3) The period referred to in subsection (2) is a continuous period of at least 2 months, commencing at least 30 days before the date of the general meeting which, by virtue of section 496, is to consider the common F332[draft terms of division] and ending at least 30 days after that date.
(4) Where, in the period referred to in subsection (3), access to the company’s website is disrupted for a continuous period of at least 24 hours or for separate periods totalling not less than 72 hours, the period referred to in subsection (3) shall be extended for a period corresponding to the period or periods of disruption.
Annotations
Amendments:
F332
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 98(e), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 498
Meetings of classes of shareholder
498. (1) Where the share capital of any of the companies involved in the division is divided into shares of different classes the provisions referred to in subsection (2), with the exclusions specified in subsection (3), shall apply with respect to the variation of the rights attached to any such class that is entailed by the division.
(2) Those provisions are the provisions of Chapter 4 of Part 3 on the variation of the rights attached to any class of shares in a company.
(3) There is excluded the following from the foregoing provisions: sections 88(9) and 89.
Section 499
Purchase of minority shares
499. (1) Where the special resolution referred to in section 496 has been passed by each of the companies involved in the division (or such of them as are required by that section to pass such a resolution), a minority shareholder in the transferor company may, not later than 15 days after the relevant date, request the successor companies in writing to acquire his or her shares in the transferor company for cash.
(2) Where a request is made by a minority shareholder in accordance with subsection (1), the successor companies (or such one, or more than one of them, as they may agree among themselves) shall purchase the shares of the minority shareholder at a price determined in accordance with the share exchange ratio set out in the common draft terms of division and the shares so purchased by any successor company shall be treated as treasury shares within the meaning of section 106.
(3) Nothing in this section limits the power of the court to make any order necessary for the protection of the interests of a dissenting minority in a company involved in a division.
(4) In this Chapter—
“minority shareholder”, in relation to the transferor company, means—
(a) in a case where a successor company (not being a company formed for the purpose of the division) holds 90 per cent or more (but not all) of the shares carrying the right to vote at general meetings of the transferor company, any other shareholder in the company, or
(b) in any other case, a shareholder in the company who voted against the special resolution;
“relevant date” means—
(a) in relation to a minority shareholder referred to in paragraph (a) of the definition of “minority shareholder” in this subsection, the date of publication of the notice of delivery of the common draft terms of division under section 494(2)(b), or
(b) in relation to a minority shareholder referred to in paragraph (b) of that definition of “minority shareholder”, the date on which the resolution of the transferor company was passed.
Section 500
Application for confirmation of division by court
500. (1) An application under this section to the court for an order confirming a division shall be made jointly by all the companies involved in the division.
(2) The application shall be accompanied by a statement of the size of the shareholding of any shareholder who has requested the purchase of his or her shares under section 499 and of the measures which the successor companies propose to take to comply with the shareholder’s request.
Section 501
Protection of creditors and allocation of liabilities
501. (1) A creditor of any of the companies involved in a division who, at the date of publication of the notice under section 494(2)(b) is entitled to any debt or claim against the company, shall be entitled to be heard in relation to the confirmation by the court of the division under section 503.
(2) Without prejudice to subsection (3), where—
(a) a liability of the transferor company is not allocated by the common draft terms of division, and
(b) it is not possible, by reference to an interpretation of those terms, to determine the manner in which it is to be allocated,
the liability shall become, jointly and severally, the liability of the successor companies.
(3) If provision is not made by the common draft terms of division for the allocation of a liability incurred by, or which otherwise becomes attached to, the transferor company on or after the date of those draft terms then, subject to any provision the court may make in an order under section 503, the liability shall become, jointly and severally, the liability of the successor companies.
Section 502
Preservation of rights of holders of securities
502. (1) Subject to subsection (2), holders of securities, other than shares, in the transferor company to which special rights are attached shall be given rights in one or more of the successor companies at least equivalent to those they possessed in the transferor company.
(2) Subsection (1) shall not apply—
(a) where the alteration of the rights in a successor company has been approved—
(i) by a majority of the holders of such securities at a meeting held for that purpose, or
(ii) by the holders of those securities individually,
or
(b) where the holders of those securities are entitled under the terms of those securities to have their securities purchased by a successor company.
Section 503
Confirmation order
503. (1) Where an application is made under section 500 to the court for an order confirming a division this section applies.
(2) The court, on being satisfied that—
(a) the requirements of this Chapter have been complied with,
(b) proper provision has been made for—
(i) any minority shareholder in any of the companies involved in the division who has made a request under section 499, and
(ii) any creditor of any of the companies who objects to the division in accordance with section 501,
(c) the rights of holders of securities other than shares in the transferor company are safeguarded in accordance with section 502, and
(d) where applicable, the relevant provisions of Chapter 4 of Part 3 on the variation of the rights attached to any class of shares in any of the companies involved in the division have been complied with,
may make an order confirming the division with effect from such date as the court appoints (the “effective date”).
(3) In the case of an asset or liability (including any contractual right or obligation or the obligation to make any cash payment), references in subsequent provisions of this section to the relevant successor company or companies are references to such one or (as the case may be) more than one of the successor companies—
(a) as provided for in respect of the matter concerned by the common draft terms of division, or
(b) in the cases or circumstances specified in whichever of the following is applicable, namely, section 490(5) or (6) or section 501(2) or (3)—
(i) subject to where it permits such provision by an order of the court, as provided for in that applicable provision (including, where relevant, as regards the nature of the joint liability), or
(ii) as provided for in an order of the court under this section.
(4) The order of the court confirming the division shall, from the effective date, have the following effects:
(a) each asset and liability of the transferor company is transferred to the relevant successor company or companies;
(b) where no request has been made by minority shareholders under section 499, all remaining members of the transferor company except any successor company (if it is a member of the transferor company) become members of the successor companies or any of them as provided by the common draft terms of division;
(c) the transferor company is dissolved;
(d) all legal proceedings pending by or against the transferor company shall be continued with the substitution, for the transferor company, of the successor companies or such of them as the court before which the proceedings have been brought may order;
(e) the relevant successor company or companies is or are obliged to make to the members of the transferor company any cash payment required by the common draft terms of division;
(f) every contract, agreement or instrument to which the transferor company is a party shall, notwithstanding anything to the contrary contained in that contract, agreement or instrument, be read and have effect as if—
(i) the relevant successor company or companies had been a party or parties thereto instead of the transferor company,
(ii) for any reference (however worded and whether express or implied) to the transferor company there were substituted a reference to the relevant successor company or companies, and
(iii) any reference (however worded and whether express or implied) to the directors, officers, representatives or employees of the transferor company, or any of them—
(I) were, respectively, a reference to the directors, officers, representatives or employees of the relevant successor company or companies or to such director, officer, representative or employee of that company or those companies as that company nominates or, as the case may be, those companies nominate for that purpose, or
(II) in default of such nomination, were, respectively, a reference to the director, officer, representative or employee of the relevant successor company or companies who corresponds as nearly as may be to the first-mentioned director, officer, representative or employee;
(g) every contract, agreement or instrument to which the transferor company is a party becomes a contract, agreement or instrument between the relevant successor company or companies and the counterparty with the same rights, and subject to the same obligations, liabilities and incidents (including rights of set-off), as would have been applicable thereto if that contract, agreement or instrument had continued in force between the transferor company and the counterparty;
(h) any money due and owing (or payable) by or to the transferor company under or by virtue of any such contract, agreement or instrument as is mentioned in paragraph (g) shall become due and owing (or payable) by or to the relevant successor company or companies instead of the transferor F333[company;]
(i) an offer or invitation to treat made to or by the transferor company before the effective date shall be read and have effect, respectively, as an offer or invitation to treat made to or by the relevant successor company or F333[companies; and]
F334[(j) any fully paid shares previously issued by a successor company, and held by a transferor company, and which are acquired by a successor company in itself pursuant to a division under this Chapter, shall be deemed to be treasury shares held by the successor company concerned to which section 109 applies.]
(5) The following provisions have effect for the purposes of subsection (4)—
(a) “instrument” in that subsection includes—
(i) a lease, conveyance, transfer or charge or any other instrument relating to real property (including chattels real); and
(ii) an instrument relating to personalty;
(b) paragraph (f)(ii) of that subsection applies in the case of references to the transferor company and its successors and assigns as it applies in the case of references to the transferor company personally;
(c) paragraph (g) of that subsection applies in the case of rights, obligations and liabilities mentioned in that paragraph whether they are expressed in the contract, agreement or instrument concerned to be personal to the transferor company or to benefit or bind (as appropriate) the transferor company and its successors and assigns.
(6) Without prejudice to subsections (7) and (8), such of the successor companies as is or are appropriate shall comply with registration requirements and any other special formalities required by law and as directed by the court for the transfer of the assets and liabilities of the transferor company to be effective in relation to other persons.
(7) There shall be entered by the keeper of any register in the State—
(a) upon production of a certified copy of the order under subsection (2); and
(b) without the necessity of there being produced any other document (and, accordingly, any provision requiring such production shall, if it would otherwise apply, not apply),
the name of the relevant successor company (or, as appropriate, the names of the relevant successor companies) in place of the transferor company in respect of the information, act, ownership or other matter in that register and any document kept in that register.
(8) Without prejudice to the generality of subsection (7), the Property Registration Authority, as respects any deed (within the meaning of section 32 of the Registration of Deeds and Title Act 2006) registered by that Authority or produced for registration by it, shall, upon production of the document referred to in subsection (7)(a) but without the necessity of there being produced that which is referred to in subsection (7)(b), enter the name of the relevant successor company (or, as appropriate, the names of the relevant successor companies) in place of the transferor company in respect of such deed.
(9) Without prejudice to the application of subsection (7) to any other type of register in the State, each of the following shall be deemed to be a register in the State for the purposes of that subsection:
(a) the register of members of a company referred to in section 169;
(b) the register of holders of debentures of a public limited company kept pursuant to section 1120;
(c) the register kept by a public limited company for the purposes of sections 1048 to 1053;
(d) the register of charges kept by the Registrar pursuant to section 414;
(e) the Land Registry;
(f) any register of shipping kept under the Mercantile Marine Act 1955.
(10) If the taking effect of the division would fall at a time (being the time ascertained by reference to the general law and without regard to this subsection) on the particular date appointed under subsection (2) that is a time that would not, in the opinion of the court, be suitable having regard to the need of the parties to co-ordinate various transactions, the court may, in appointing a date under subsection (2) with respect to when the division takes effect, specify a time, different from the foregoing, on that date when the division takes effect and, where such a time is so specified—
(a) the division takes effect on that time of the date concerned, and
(b) references in this section to the effective date shall be read accordingly.
Annotations
Amendments:
F333
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 21(a), (b), S.I. No. 335 of 2022.
F334
Inserted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 21(c), S.I. No. 335 of 2022.
Section 504
Certain provisions not to apply where court so orders
504. Where the court makes an order confirming a division under this Chapter, the court may, if it sees fit for the purpose of enabling the division properly to have effect, include in the order provision permitting—
(a) the giving of financial assistance which may otherwise be prohibited under section 82,
(b) a reduction in company capital which may otherwise be restricted under section 84.
Section 505
Registration and publication of confirmation of division
505. (1) If the court makes an order confirming a division, a certified copy of the order shall forthwith be sent to the Registrar by such officer of the court as the court may direct.
(2) Where the Registrar receives a certified copy of the order of the court in accordance with subsection (1), the Registrar shall—
(a) on, or as soon as practicable after, the effective date — register that certified copy and the dissolution of the transferor company, and
(b) within 14 days after the date of that delivery — cause to be published in the CRO Gazette notice that a copy of an order of the court confirming the division has been delivered to him or her.
Section 506
Civil liability of directors and experts
506. (1) Any shareholder of any of the companies involved in the division who has suffered loss or damage by reason of misconduct in the preparation or implementation of the division by a director of any such company or by the expert, if any, who has made a report under section 492 shall be entitled to have such loss or damage made good to him or her by—
(a) in the case of misconduct by a person who was a director of that company at the date of the common draft terms of division — that person,
(b) in the case of misconduct by any expert who made a report under section 492 in respect of any of the companies involved in the division — that person.
(2) Without prejudice to the generality of subsection (1), any shareholder of any of the companies involved in the division who has suffered loss or damage arising from the inclusion of any untrue statement in any of the following, namely:
(a) the common draft terms of division;
(b) the explanatory report referred to in section 491;
(c) the expert’s report, if any, under section 492;
(d) the division financial statement, if any, prepared under section 493,
shall, subject to subsections (3) and (4), be entitled to have such loss or damage made good to him or her—
(i) in the case of the document or report referred to in paragraph (a), (b) or (d) — by every person who was a director of that company at the date of the common draft terms of division, or
(ii) in the case of the report referred to in paragraph (c) — by the person who made that report in relation to that company.
(3) A director of a company shall not be liable under subsection (2) if he or she proves—
(a) that the document or report referred to in subsection (2)(a), (b) or (d), as the case may be, was issued without his or her knowledge or consent and that, on becoming aware of its issue, he or she forthwith informed the shareholders of that company that it was issued without his or her knowledge or consent, or
(b) that as regards every untrue statement he or she had reasonable grounds, having exercised all reasonable care and skill, for believing and did, up to the time the division took effect, believe that the statement was true.
(4) A person who makes a report under section 492 in relation to a company shall not be liable in the case of any untrue statement in the report if he or she proves—
(a) that, on becoming aware of the statement, he or she forthwith informed that company and its shareholders of the untruth, or
(b) that he or she was competent to make the statement and that he or she had reasonable grounds for believing and did up to the time the division took effect believe that the statement was true.
Section 507
Criminal liability for untrue statements in division documents
507. (1) Where any untrue statement has been included in—
(a) the common draft terms of division,
(b) the explanatory report referred to in section 491, or
(c) the division financial statement, if any, prepared under section 493,
the following:
(i) each of the persons who was a director of any of the companies involved in the division at the date of the common draft terms of division or, in the case of the foregoing explanatory report or division financial statement, at the time of the report’s or statement’s preparation; and
(ii) any person who authorised the issue of the document,
shall be guilty of a category 2 offence.
(2) Where any untrue statement has been included in the expert’s report prepared under section 492, the expert and any person who authorised the issue of the report shall be guilty of a category 2 offence.
(3) In any proceedings against a person in respect of an offence under subsection (1) or (2), it shall be a defence to prove that, having exercised all reasonable care and skill, the defendant had reasonable grounds for believing and did, up to the time of the issue of the document concerned, believe that the statement concerned was true.
PART 10
EXAMINERSHIPS
Annotations
Modifications (not altering text):
C151
Part applied with modifications (1.01.2022) by Housing (Regulation of Approved Housing Bodies) Act 2019 (47/2019), s. 56, S.I. No. 728 of 2021. The modifications listed in subs. (2) are mentioned in the relevant sections.
Examinership: modification of Part 10 of Act of 2014 for purposes of application to AHBs
56. (1) For the purposes of the application of Part 10 of the Act of 2014 to a company that is an AHB, that Part shall apply to such a company subject to the modifications specified in subsection (2) and any other modifications necessary for those purposes.
(2) The modifications referred to in subsection (1) are that— ...
Editorial Notes:
E102
Form prescribed for the purposes of Part (1.05.2017) by Industrial and Provident Societies (Notice of Petition for Appointment of an Examiner to an Industrial and Provident Society) (Form) Regulations 2017 (S.I. No. 163 of 2017), reg. 2, in effect as per reg. 1(2).
CHAPTER 1
Interpretation
Section 508
Interpretation (Part 10)
508. (1) In this Part—
“court” shall be read in accordance with section 509(7);
“director” includes a shadow director;
“examiner” means an examiner appointed under section 509;
“independent expert” shall be read in accordance with section 511(2);
“insurer” has the same meaning as it has in the Insurance Act 1989;
“interested party”, in relation to a company to which section 509 relates, means—
(a) a creditor of the company, or
(b) a member of the company;
F335["Preventive Restructuring Directive" means Directive (EU) 2019/1023 of the European Parliament and of the Council of 20 June 20192 on preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to increase the efficiency of procedures concerning restructuring, insolvency and discharge of debt, and amending Directive (EU) 2017/1132;]
“petition” means a petition referred to in section 509(1) (and, for the purposes of the Circuit Court’s jurisdiction under this Part, “petition” includes any originating process specified by rules of court for those purposes) and references to the presentation of a petition are references to its presentation under section 509(1).
F335[(1A) A word or expression that is used in Chapter 2 or 7 of Part 5, this Part or Part 11 and that is also used in the Preventive Restructuring Directive shall have the same meaning in Chapter 2 or 7 of Part 5, this Part or Part 11, as the case may be, as it has in the Preventive Restructuring Directive.]
(2) This Part is subject to the Insolvency Regulation.
(3) The provisions of Chapter 15 of Part 11 apply to proceedings under this Part with the substitution of references to “examiner” for references to “liquidator” and any other necessary modifications.
Annotations
Amendments:
F335
Inserted (27.07.2022) by European Union (Preventive Restructuring) Regulations 2022 (S.I. No. 380 of 2022) reg. 8(a), (b), subject to restriction on application in reg. 3.
Modifications (not altering text):
C152
Application of Part modified (1.01.2022) by Housing (Regulation of Approved Housing Bodies) Act 2019 (47/2019), s. 56(1), (2)(a), S.I. No. 728 of 2021.
Examinership: modification of Part 10 of Act of 2014 for purposes of application to AHBs
56. (1) For the purposes of the application of Part 10 of the Act of 2014 to a company that is an AHB, that Part shall apply to such a company subject to the modifications specified in subsection (2) and any other modifications necessary for those purposes.
(2) The modifications referred to in subsection (1) are that—
(a) in section 508(1), the following definitions are inserted:
"approved housing body", "dwelling2 and "Regulator" have the meanings given to them, respectively, by section 2 of the Housing (Regulation of Approved Housing Bodies) Act 2019;
...
CHAPTER 2
Appointment of examiner
Section 509
Power of court to appoint examiner
509. (1) Subject to subsection (2), where it appears to the court that—
(a) a company is, or is likely to be, unable to pay its debts,
(b) no resolution subsists for the winding up of the company, and
(c) no order has been made for the winding up of the company,
the court may, on application by petition presented, appoint an examiner to the company for the purpose of examining the state of the company’s affairs and performing such functions in relation to the company as may be conferred by or under this Part.
F336[(2) The court shall not make an order under this section unless it is satisfied that –
(a) there is a reasonable prospect of the survival of the company and the whole or any part of its undertaking as a going concern, and
(b) the individual to be appointed as examiner has, in cases including cross-border elements, in addition to meeting the requirements of section 519, sufficient experience and expertise to perform the role, having due consideration to the examiner’s experience and to the specific features of the case.]
(3) For the purposes of F336[this section, sections 224A, 271A and 520A], a company is unable to pay its debts if—
(a) it is unable to pay its debts as they fall due,
(b) the value of its assets is less than the amount of its liabilities, taking into account its contingent and prospective liabilities, or
(c) the circumstances set out in section 570(a), (b) or (c) are applicable to the company.
(4) In deciding whether to make an order under this section, the court may also have regard to whether the company has sought from its creditors significant extensions of time for the payment of its debts, from which it could reasonably be inferred that the company was likely to be unable to pay its debts.
(5) The court shall not make an order under this section unless—
(a) the court is satisfied that the company has no obligations in relation to a bank asset that has been transferred to the National Asset Management Agency or a NAMA group entity, or
(b) if the company has any such obligation—
(i) a copy of the petition has been served on that Agency, and
(ii) the court has heard that Agency in relation to the making of the order.
(6) In subsection (5) “bank asset” and “NAMA group entity” have the same respective meanings as in the National Asset Management Agency Act 2009.
(7) In this section “court” means—
(a) in the case of any company (including one referred to in paragraph (b)), the High Court; or
(b) in the case of a company that, in respect of the latest financial year of the company that has ended prior to the date of the presentation of the petition, fell to be treated as a small company by virtue of F337[section 280A or 280B], the Circuit Court,
and—
(i) subject to subsection (9), all subsequent references to the court in this Part shall, as respects the powers and jurisdiction of the court with respect to an examinership on foot of an appointment made under this section by the Circuit Court, be read accordingly; and
(ii) the jurisdiction under section 512(7) to appoint an examiner on an interim basis, and the jurisdiction to do the things referred to in section 513, are likewise available to the Circuit Court in the case of a company specified in paragraph (b).
(8) For the purpose of paragraph (b) of subsection (7), if the latest financial year of the company concerned ended within 3 months prior to the date of the presentation of the petition, the reference in that paragraph to the latest financial year of the company shall be read as a reference to the financial year of the company that preceded its latest financial year (but that reference shall only be so read if that preceding financial year ended no more than 15 months prior to the date of the presentation of the petition).
(9) Subsection (7) does not confer on the Circuit Court any jurisdiction that is provided under this Part to hear a petition for the winding up of, or to wind up, a company.
(10) The jurisdiction of the Circuit Court under this Part in relation to a company shall be exercisable by the judge of the Circuit Court—
(a) for the circuit in which the registered office of the company is situated at the time of the presentation of the petition or in which it has, at that time, its principal place of business, or
(b) if, at that time, there is no registered office of the company and its principal place of business is outside the State, for the Dublin Circuit.
(11) On the making of an order appointing an examiner to a company, the proper officer of the Central Office of the High Court or, as the case may be, the county registrar shall, on request and payment of the prescribed fee and subject to any conditions that may be specified in rules of court, give to the examiner concerned—
(a) a copy of the order, certified by the officer to be a true copy, and
(b) any other prescribed particulars.
Annotations
Amendments:
F336
Inserted (27.07.2022) by European Union (Preventive Restructuring) Regulations 2022 (S.I. No. 380 of 2022) reg. 9(a), (b), subject to restriction on application in reg. 3.
F337
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 88(b)(i), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Editorial Notes:
E103
Form and fees prescribed (1.05.2017) by Industrial and Provident Societies (Notice of Petition for Appointment of an Examiner to an Industrial and Provident Society) (Form) Regulations 2017 (S.I. No. 163 of 2017), reg. 2, and Industrial and Provident Societies (Notice of Petition for Appointment of an Examiner to an Industrial and Provident Society) (Fee) Regulations 2017 (S.I. No. 164 of 2017), in effect as per reg. 1(2).
Section 510
Petition for court
510. (1) Subject to subsections (2) and (3), a petition in relation to a company may be presented by all or any of the following (separately or together):
(a) the company;
(b) the directors of the company;
(c) a creditor, or a contingent or prospective creditor (including an employee), of the company;
(d) a member or members of the company holding at the date of the presentation of the petition not less than one tenth of such of the paid-up share capital of the company as carries at that date the right of voting at general meetings of the company.
(2) Where the company referred to in section 509 is the holding company of an insurer, a petition may be presented only by the Central Bank, and subsection (1) shall not apply to the company.
(3) Where the company referred to in section 509 is—
(a) the holding company of a credit institution, or
(b) a company which one or more trustee savings banks have been reorganised into pursuant to an order under section 57 of the Trustee Savings Banks Act 1989,
a petition may be presented only by the Central Bank, and subsection (1) shall not apply to the company.
(4) Where the company referred to in section 509 is a Schedule 5 company, the following provisions shall apply:
(a) a petition may be presented by—
(i) any of the persons referred to in paragraph (a), (b), (c) or (d) of subsection (1) (including by one or more of such persons acting together);
(ii) the Central Bank; or
(iii) one or more of such persons and the Central Bank acting together;
(b) if the Central Bank does not present a petition—
(i) the petitioner shall, before he or she presents the petition at the office of the court, cause to be received by the Central Bank a notice in writing of his or her intention to present the petition, and shall serve a copy of the petition on the Central Bank as soon as may be after the presentation of it at that office;
(ii) the Central Bank shall be entitled to appear and be heard at any hearing relating to the petition.
(5) In this section “Schedule 5 company” means a company falling within any provision (in so far as applicable to a private company limited by shares) of Schedule 5.
Annotations
Modifications (not altering text):
C153
Application of Part modified (1.01.2022) by Housing (Regulation of Approved Housing Bodies) Act 2019 (47/2019), s. 56(1), (2)(b), S.I. No. 728 of 2021.
Examinership: modification of Part 10 of Act of 2014 for purposes of application to AHBs
56. (1) For the purposes of the application of Part 10 of the Act of 2014 to a company that is an AHB, that Part shall apply to such a company subject to the modifications specified in subsection (2) and any other modifications necessary for those purposes.
(2) ...
(b) in section 510, the following subsection is inserted after subsection (5):
(6) Where the company referred to in section 509 is an approved housing body, the following provisions shall apply:
(a) a petition may be presented by—
(i) any of the persons referred to in paragraph (a), (b), (c) or (d) of subsection (1) (including by any one or more of such persons acting together),
(ii) the Regulator, or
(iii) one or more of such persons and the Regulator acting together;
(b) if the Regulator does not present a petition—
(i) the petitioner shall, before the petitioner presents the petition at the office of the court, cause to be received by the Regulator a notice, in writing, of the petitioner’s intention to present the petition, and shall serve a copy of the petition on the Regulator as soon as may be after the presentation of it at that office,
(ii) the Regulator shall be entitled to appear and be heard at any hearing relating to the petition.
...
Section 511
Independent expert’s report
511. (1) In addition to the matters specified in section 512, a petition shall be accompanied by a report in relation to the company prepared by a person who is either the statutory auditor of the company or a person who is qualified to be appointed as an examiner of the company.
(2) The person who undertakes the preparation of that report is referred to in this Part as the “independent expert”.
(3) The report of the independent expert shall comprise the following:
(a) the names and addresses of the officers of the company;
(b) the names of any other bodies corporate of which the directors of the company are also directors;
(c) a statement as to the affairs of the company, showing in so far as it is reasonably possible to do so, particulars of the company’s assets and liabilities (including contingent and prospective liabilities) as at the latest practicable date, the names and addresses of its creditors, the securities held by each of them and the dates when the securities were given to each of them;
(d) his or her opinion as to whether any deficiency between the assets and liabilities of the company has been satisfactorily accounted for or, if not, as to whether there is evidence of a substantial F338[dissipation] of property that is not adequately accounted for;
(e) his or her opinion as to whether the company, and the whole or any part of its undertaking, would have a reasonable prospect of survival as a going concern and a statement of the conditions which he or she considers are essential to ensure such survival, whether as regards the internal management and controls of the company or otherwise;
(f) his or her opinion as to whether the formulation, acceptance and confirmation of proposals for a compromise or scheme of arrangement would offer a reasonable prospect of the survival of the company, and the whole or any part of its undertaking, as a going concern;
F339[(g) his or her opinion as to whether an attempt to continue the whole or any part of the undertaking meets the best-interest-of-creditors test and would be likely to be more advantageous to the members as a whole than a winding-up of the company;]
(h) recommendations as to the course he or she thinks should be taken in relation to the company including, if warranted, draft proposals for a compromise or scheme of arrangement;
(i) his or her opinion as to whether the facts disclosed would warrant further inquiries with a view to proceedings under sections 610 and 611 or section 722;
(j) details of the extent of the funding required to enable the company to continue trading during the period of protection and the sources of that funding;
(k) his or her recommendations as to which liabilities incurred before the presentation of the petition should be paid;
(l) his or her opinion as to whether the work of the examiner would be assisted by a direction of the court in relation to the role or membership of any creditor’s committee referred to in section 538; and
(m) such other matters as he or she thinks relevant.
Annotations
Amendments:
F338
Substituted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 5, S.I. No. 673 of 2021.
F339
Substituted (27.07.2022) by European Union (Preventive Restructuring) Regulations 2022 (S.I. No. 380 of 2022) reg. 10, subject to restriction on application in reg. 3.
Section 512
Supplemental provisions in relation to sections 510 and 511 — other matters to be mentioned in petition, hearing of petition, etc.
512. (1) A petition shall nominate a person to be appointed as examiner.
(2) A petition shall be accompanied—
(a) by a consent signed by the person nominated to be examiner, and
(b) if proposals for a compromise or scheme of arrangement in relation to the company’s affairs have been prepared for submission to interested parties for their approval, by a copy of the proposals.
(3) The court shall not give a hearing to a petition presented by a contingent or prospective creditor until such security for costs has been given as the court thinks reasonable.
(4) The court shall not give a hearing to a petition if a receiver stands appointed to the whole or any part of the property or undertaking of the company the subject of the petition and such receiver has stood so appointed for a continuous period of at least 3 days prior to the date of the presentation of the petition.
(5) On hearing a petition the court may dismiss it, or adjourn the hearing conditionally or unconditionally, or make any interim order, or any other order it thinks fit.
(6) Without prejudice to the generality of subsection (5), an interim order under that subsection may restrict the exercise of any powers of the directors or of the company (whether by reference to the consent of the court or otherwise).
(7) Without limiting subsection (5) or (6), on or after the presentation of a petition, the court may, on application to it, appoint an examiner to the company on an interim basis.
Section 513
Cases in which independent expert’s report not available at required time: powers of court
513. (1) If a petition is presented and the court is satisfied—
(a) that, by reason of exceptional circumstances outside the control of the petitioner, the report of the independent expert is not available in time to accompany the petition, and
(b) that the petitioner could not reasonably have anticipated the circumstances referred to in paragraph (a),
and, accordingly, the court is unable to consider the making of an order under section 509, the court may make an order under this section placing the company concerned under the protection of the court for such period as the court thinks appropriate in order to allow for the submission of the independent expert’s report.
(2) That period shall be a period that expires not later than the 10th day after the date of the making of the order concerned or, if the 10th day after that date would fall on a Saturday, Sunday or public holiday, the first following day that is not a Saturday, Sunday or public holiday.
(3) For the avoidance of doubt, the fact that a receiver stands appointed to the whole or any part of the property or undertaking of the company at the time of the presentation of a petition in relation to the company shall not, in itself, constitute, for the purposes of subsection (1), exceptional circumstances outside the control of the petitioner.
(4) If the petition concerned has been presented by any of the persons referred to in section 510(1)(c) or (d) and an order under subsection (1) is made in relation to the company concerned, the directors of the company shall co-operate in the preparation of the report of the independent expert, particularly in relation to the matters specified in section 511(3)(a) to (c).
(5) If the directors of the company concerned fail to comply with subsection (4), the petitioner concerned or the independent expert may apply to the court for an order requiring the directors to do specified things by way of compliance with subsection (4) and the court may, as it thinks fit, grant such an order accordingly.
(6) If the report of the independent expert is submitted to the court before the expiry of the period of protection specified in an order under subsection (1), the court shall proceed to consider the petition together with the report as if they were presented in accordance with section 509.
(7) If the report of the independent expert is not submitted to the court before the expiry of the period of protection specified in an order under subsection (1), then, at the expiry of that period, the company concerned shall cease to be under the protection of the court, but without prejudice to the presentation of a further petition.
Section 514
Certain liabilities may not be certified under section 529(2)
514. Any liabilities incurred by the company concerned during the period of protection specified in an order under section 513(1) may not be the subject of a certificate under section 529(2).
Section 515
Creditors to be heard
515. (1) The court shall not make an order dismissing a petition presented to it or an order appointing an examiner to a company without having afforded each creditor of the company who has indicated to the court his or her desire to be heard in the matter an opportunity to be so heard.
(2) Nothing in this section shall affect the power of the court under section 512(5) or (7) to make an interim order, including the appointment of an examiner on an interim basis, in the matter.
Section 516
Availability of independent expert’s report
516. (1) The independent expert shall supply a copy of the report prepared by him or her under section 511 to the company concerned or any interested party on written application being made to the independent expert in that behalf.
(2) If the court, on application to it in that behalf, directs that that supply may be the subject of such omission, there may be omitted from any copy of the report supplied to the company or an interested party such parts of it as are specified in the direction of the court.
(3) The court may, in particular, on such an application, direct that there may be omitted from such a supply of a copy of the report any information the inclusion of which in such a copy would be likely to prejudice the survival of the company or the whole or any part of its undertaking as a going concern.
(4) If—
(a) the company concerned is a company referred to in section 509(4), and
(b) the Central Bank does not propose to present, or has not presented, (whether alone or acting together with other persons) a petition in relation to the company,
the independent expert shall, as soon as may be after it is prepared, supply a copy of the report prepared by him or her under section 511 to the Central Bank and subsections (2) and (3) shall not apply to such a copy.
Annotations
Modifications (not altering text):
C154
Application of Part modified (1.01.2022) by Housing (Regulation of Approved Housing Bodies) Act 2019 (47/2019), s. 56(1), (2)(c), S.I. No. 728 of 2021.
Examinership: modification of Part 10 of Act of 2014 for purposes of application to AHBs
56. (1) For the purposes of the application of Part 10 of the Act of 2014 to a company that is an AHB, that Part shall apply to such a company subject to the modifications specified in subsection (2) and any other modifications necessary for those purposes.
(2) ...
(c) in section 516, the following subsection is inserted after subsection (4):
(5) If—
(a) the company concerned, being an approved housing body, is a company referred to in section 509, and
(b) the Regulator does not propose to present, or has not presented, (whether alone or acting together with other persons) a petition in relation to the company,
the independent expert shall, as soon as may be after it is prepared, supply a copy of the report prepared by him or her under section 511 to the Regulator and subsections (2) and (3) shall not apply to such a copy.
...
Section 517
Related companies
517. (1) Subject to subsections (2), (3), (6) and (8), where the court appoints an examiner to a company, it may, at the same or any time thereafter, make an order—
(a) appointing the examiner to be examiner for the purposes of this Act to a related company; or
(b) conferring on the examiner, in relation to such company, all or any of the functions conferred on him or her in relation to the first-mentioned company.
(2) In deciding whether to make an order under subsection (1), the court shall have regard to whether the making of the order would be likely to facilitate the survival of the company, or of the related company, or both, and the whole or any part of its or their undertaking, as a going concern.
(3) However, the court shall not, in any case, make such an order unless it is satisfied that there is a reasonable prospect of the survival of the related company, and the whole or any part of its undertaking, as a going concern.
(4) A related company to which an examiner is appointed by an order under subsection (1) shall be deemed to be under the protection of the court for the period beginning on the date of the making of the order and continuing for the period during which the company to which it is related is under such protection.
(5) Where an examiner stands appointed to 2 or more related companies, he or she shall have the same functions in relation to each company, taken separately, unless the court otherwise directs.
(6) The court shall not make an order under this section unless—
(a) the court is satisfied that the related company has no obligations in relation to a bank asset that has been transferred to the National Asset Management Agency or a NAMA group entity, or
(b) if the related company has any such obligation—
(i) a copy of the application for the order has been served on that Agency, and
(ii) the court has heard that Agency in relation to the making of the order.
(7) In subsection (6) “bank asset” and “NAMA group entity” have the same respective meanings as in the National Asset Management Agency Act 2009.
(8) The Circuit Court shall only have jurisdiction to make an order referred to in subsection (1)(a) or (b) if the related company is a company that, in respect of the latest financial year of it that has ended prior to the relevant time referred to in subsection (1), fell to be treated as a small company by virtue of F340[section 280A or 280B].
(9) For the purposes of subsection (8), if the latest financial year of the company concerned ended within 3 months prior to the relevant time referred to in subsection (1), the reference in subsection (8) to the latest financial year of the company shall be read as a reference to the financial year of the company that preceded its latest financial year (but that reference shall only be so read if that preceding financial year ended no more than 15 months prior to the relevant time referred to in subsection (1)).
Annotations
Amendments:
F340
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 88(b)(ii), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 518
Duty to act in utmost good faith
518. The court may decline to hear a petition presented to it or, as the case may be, may decline to continue hearing such a petition if it appears to the court that, in the preparation or presentation of the petition or in the preparation of the report of the independent expert, the petitioner or independent expert—
(a) has failed to disclose any information available to him or her which is material to the exercise by the court of its powers under this Part; or
(b) has in any other way failed to exercise utmost good faith.
Section 519
Qualification of examiners
519. (1) A person shall not be qualified to be appointed or act as an examiner of a company unless he or she would be qualified to act as its liquidator (but disregarding for this purpose the requirements of section 634 concerning professional indemnity cover).
(2) A person who acts as examiner of a company when he or she is not qualified to do so under subsection (1) shall be guilty of a category 2 offence.
Section 520
Effect of petition to appoint examiner on creditors and others
520. (1) Subject to section 513, a company is, for the purposes of this Part, under the protection of the court during the following period.
(2) That period is one—
(a) beginning with the date of the presentation of a petition in relation to the company, and
(b) (subject to F341[section 534(3) and (4)] ending on—
(i) the expiry of 70 days after that date, or
(ii) the withdrawal of, or refusal by the court of, the petition,
whichever first happens.
(3) The reference in subsection (2) to the refusal by the court of the petition shall be deemed to include a reference to its deciding to decline to hear, or to continue to hear, the petition under section 518.
(4) For so long as a company is under the protection of the court in a case under this Part, the following provisions shall have effect:
(a) no proceedings for the winding up of the company may be commenced or resolution for winding up passed in relation to the company and any resolution so passed shall have no effect;
(b) no receiver over any part of the property or undertaking of the company shall be appointed, or, if so appointed before the presentation of a petition shall, subject to section 522, be able to act;
(c) no attachment, sequestration, distress or execution shall be put into force against the property or effects of the company, except with the consent of the examiner;
(d) where any claim against the company is secured by a mortgage, charge, lien or other encumbrance or a pledge of, on or affecting the whole or any part of the property, effects or income of the company, no action may be taken to realise the whole or any part of that security, except with the consent of the examiner;
(e) no steps may be taken to repossess goods in the company’s possession under any hire-purchase agreement (within the meaning of section 530), except with the consent of the examiner;
(f) where, under any enactment, rule of law or otherwise, any person other than the company is liable to pay all or any part of the debts of the company—
(i) no attachment, sequestration, distress or execution shall be put into force against the property or effects of such person in respect of the debts of the company; and
(ii) no proceedings of any sort may be commenced against such person in respect of the debts of the company;
(g) no order for relief shall be made under section 212 against the company in respect of complaints as to the conduct of the affairs of the company or the exercise of the powers of the directors prior to the presentation of the petition.
(5) Subject to F342[subsections (4) and (5A)], no other proceedings in relation to the company may be commenced except by leave of the court and subject to such terms as the court may impose and the court may, on the application of the examiner, make such order as it thinks proper in relation to any existing proceedings including an order to stay such proceedings.
F343[(5A) Notwithstanding subsections (4) and (5), nothing in this section shall prevent an employee of the company from seeking to commence or advance actions or proceedings falling within subsection (4) against the company.]
(6) Complaints concerning the conduct of the affairs of the company while it is under the protection of the court shall not constitute a basis for the making of an order for relief under section 212.
Annotations
Amendments:
F341
Substituted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 3(2) and sch. 2, S.I. No. 639 of 2024.
F342
Substituted (27.07.2022) by European Union (Preventive Restructuring) Regulations 2022 (S.I. No. 380 of 2022) reg. 11(a), subject to restriction on application in reg. 3.
F343
Inserted (27.07.2022) by European Union (Preventive Restructuring) Regulations 2022 (S.I. No. 380 of 2022) reg. 11(b), subject to restriction on application in reg. 3.
Editorial Notes:
E104
Previous affecting provision: subsection(2)(b) substituted (21.08.2020) by Companies (Miscellaneous Provisions (Covid-19) Act 2020 (9/2020), s. 12, S.I. No. 320 of 2020; substituted as per F-note above.
Section 520A
F344[Restrictions on certain contracts during examinership
520A. (1) In respect of any executory contract concluded between a creditor and a company to which the circumstances in paragraphs (a) to (c) of section 509(1) apply, the creditor shall not –
(a) withhold performance of,
(b) terminate,
(c) accelerate, or
(d) in any other way modify,
the contract to the detriment of the company, notwithstanding any contractual clause to the contrary, solely by reason of –
(i) the making of an application by petition to appoint an examiner to the company under section 509,
(ii) the appointment of an interim examiner to the company under section 512,
(iii) the appointment of an examiner to a related company to the company under section 517, or
(iv) the company being placed under the protection of the court under section 520.
(2) For so long as a company is under the protection of the court in a case under this Part, any creditor with a claim to which section 520 applies shall not, in respect of any essential executory contract concluded between that creditor and the company –
(a) withhold performance of,
(b) terminate,
(c) accelerate, or
(d) in any other way modify,
the contract to the detriment of the company, solely by virtue of the fact that the company is deemed to be unable to pay its debts within the meaning of section 509(3).
(3) In this section –
"executory contract" means a contract between a company and one or more creditors under which the parties still have obligations to perform at the commencement of the period referred to in section 520(2);
"essential executory contract" shall have the same meaning as it has in Article 7(4) of the Preventive Restructuring Directive.]
Annotations
Amendments:
F344
Inserted (27.07.2022) by European Union (Preventive Restructuring) Regulations 2022 (S.I. No. 380 of 2022) reg. 12, subject to restriction on application in reg. 3.
Section 521
Restriction on payment of pre-petition debts
521. (1) No payment may be made by a company, during the period it is under the protection of the court, by way of satisfaction or discharge of the whole or a part of a liability incurred by the company before the date of the presentation of the petition in relation to it unless—
(a) the report of the independent expert contains a recommendation that the whole or, as the case may be, the part of that liability should be discharged or satisfied, or
(b) the court authorises such payment under subsection (2).
(2) The court may, on application being made to it in that behalf by the examiner or any interested party, authorise the discharge or satisfaction, in whole or in part, by the company concerned of a liability referred to in subsection (1) if it is satisfied that a failure to discharge or satisfy, in whole or in part, that liability would considerably reduce the prospects of the company or the whole or any part of its undertaking surviving as a going concern.
Section 522
Effect on receiver or provisional liquidator of order appointing examiner
522. (1) Where, at the date of the presentation of a petition in relation to a company, a receiver stands appointed to the whole or any part of the property or undertaking of that company the court may make such order as it thinks fit, including an order as to any or all of the following matters:
(a) that the receiver shall cease to act as such from a date specified by the court;
(b) that the receiver shall, from a date specified by the court, act as such only in respect of certain assets specified by the court;
(c) directing the receiver to deliver all books, papers and other records, which relate to the property or undertaking of the company (or any part of it) and are in his or her possession or control, to the examiner within a period to be specified by the court;
(d) directing the receiver to give the examiner full particulars of all his or her dealings with the property or undertaking of the company.
(2) Where, at the date of the presentation of a petition in relation to a company, a provisional liquidator stands appointed to that company, the court may make such order as it thinks fit, including an order as to any or all of the following matters:
(a) that the provisional liquidator be appointed as examiner of the company;
(b) appointing some other person as examiner of the company;
(c) that the provisional liquidator shall cease to act as such from a date specified by the court;
(d) directing the provisional liquidator to deliver all books, papers and other records, which relate to the property or undertaking of the company (or any part of it) and are in his or her possession or control, to the examiner within a period to be specified by the court;
(e) directing the provisional liquidator to give the examiner full particulars of all his or her dealings with the property or undertaking of the company.
(3) The court shall not make an order under subsection (1)(a) or (b) or subsection (2)(c) unless the court is satisfied that there is a reasonable prospect of the survival of the company, and the whole or any part of its undertaking, as a going concern; this subsection is in addition to sections 509(2) and 517(3).
(4) Where the court makes an order under subsection (1) or (2), it may, for the purpose of giving full effect to the order, include such conditions in the order and make such ancillary or other orders as it deems fit.
(5) Where a petition is presented in respect of a company at a date subsequent to the presentation of a petition for the winding up of that company, but before a provisional liquidator has been appointed or an order made for its winding up, both petitions shall be heard together.
Section 523
Disapplication of section 440 to receivers in certain circumstances
523. (1) This section applies where either—
(a) an examiner has been appointed to a company, or
(b) an examiner has not been appointed to a company but, in the opinion of the court, such an appointment may yet be made.
(2) Where this section applies, on application being made to it in that behalf, the court may, subject to subsections (4) and (5), make, in relation to a receiver who stands appointed to the whole or any part of the property or undertaking of the company referred to in subsection (1), the following order.
(3) That order of the court is one providing that section 440 shall not apply as respects payments made by the receiver out of assets coming into his or her hands as such receiver.
(4) The court shall only make such an order if it would, in the opinion of the court, be likely to facilitate the survival of the company, and the whole or any part of its undertaking, as a going concern.
(5) An order referred to in subsection (2) shall not be made without each creditor of the company of the following class being afforded an opportunity to be heard, namely a creditor any of the debts owed to whom by the company are debts which in a winding up are (by virtue of the provisions of Part 11 relating to preferential payments) required to be paid in priority to all other debts.
(6) Subsection (2) is without prejudice to the generality of section 522(1).
CHAPTER 3
Powers of examiner
Section 524
Powers of an examiner
524. (1) Any provision of this Act relating to the rights and powers of a statutory auditor of a company and the supplying of information to and co-operation with such auditor shall, with the necessary modifications, apply to an examiner.
(2) Notwithstanding any provision of this Act relating to notice of general meetings, an examiner shall have power to convene, set the agenda for, and preside at meetings of the board of directors and general meetings of the company to which he or she is appointed and to propose motions or resolutions and to give reports to such meetings.
(3) An examiner shall be entitled to reasonable notice of, to attend and be heard at, all meetings of the board of directors of a company and all general meetings of the company to which he or she is appointed.
(4) For the purpose of subsection (3) “reasonable notice” shall be deemed to include a description of the business to be transacted at any such meeting.
(5) An examiner has the power referred to in subsection (6) where he or she becomes aware of any actual or proposed act, omission, course of conduct, decision or contract, by or on behalf of—
(a) the company to which he or she has been appointed,
(b) that company’s officers, employees, members or creditors, or
(c) any other person,
in relation to the income, assets or liabilities of the company which, in the examiner’s opinion, is or is likely to be to the detriment of the company, or any interested party.
(6) That power of the examiner is to take whatever steps are necessary, subject to the right of parties acquiring an interest in good faith and for value in such income, assets or liabilities, to halt, prevent or rectify the effects of such act, omission, course of conduct, decision or contract.
(7) The examiner may apply to the court—
(a) to determine any question arising in the course of his or her office, or
(b) for the exercise in relation to the company of all or any of the following powers which the court may exercise under this Act, namely those exercisable by it upon the application of any member, contributory, creditor or director of a company.
(8) The examiner shall, if so directed by the court, have power to ascertain and agree claims against the company to which he or she has been appointed.
(9) No professional or legal duty to which an examiner is subject by virtue of his or her appointment as such to a company shall be regarded as contravened by, and no liability to the company, its shareholders, creditors or other interested parties shall attach to, an examiner by reason of his or her compliance with an obligation imposed on the examiner by or under this section.
Section 525
Repudiation by examiner of contracts made before period of protection and of negative pledge clauses whenever made: prohibitions and restrictions
525. (1) Without prejudice to subsection (2), nothing in section 524 shall enable an examiner to repudiate a contract that has been entered into by the company to which he or she has been appointed prior to the period during which the company is under the protection of the court.
(2) A provision referred to in subsection (4) shall not be binding on the company at any time after the service of the notice under subsection (3)(b) and before the expiration of the period during which the company is under the protection of the court if the following 2 conditions are satisfied.
(3) Those conditions are—
(a) the examiner is of the opinion that the provision, were it to be enforced, would be likely to prejudice the survival of the company or the whole or any part of its undertaking as a going concern; and
(b) the examiner serves a notice on the other party or parties to the agreement in which the provision is contained informing the party or parties of that opinion.
(4) The provision referred to in subsection (2) is a provision of an agreement entered into by the company concerned and any other person or persons at any time (including a time that is prior to the period during which the company is under the protection of the court) that provides that the company shall not, or shall not otherwise than in specified circumstances—
(a) borrow moneys or otherwise obtain credit from any person other than that person or those persons; or
(b) create or permit to subsist any mortgage, charge, lien or other encumbrance or any pledge over the whole or any part of the property or undertaking of the company.
Section 526
Production of documents and evidence
526. (1) It shall be the duty of the officers and agents of a company or a related company to which an examiner has been appointed to—
(a) produce to the examiner all books and documents of, or relating to, any such company which are in their custody or power,
(b) attend before the examiner when required by the examiner so to do, and
(c) otherwise give to the examiner all assistance in connection with the examiner’s functions which they are reasonably able to give.
(2) If the examiner considers that a person, other than an officer or agent of any foregoing company, is or may be in possession of any information concerning the company’s affairs, the examiner may require that person to—
(a) produce to the examiner any books or documents in his or her custody or power relating to the company,
(b) attend before the examiner, and
(c) otherwise give to the examiner all assistance in connection with the examiner’s functions which that person is reasonably able to give,
and it shall be the duty of that person to comply with the requirement.
(3) If the examiner has reasonable grounds for believing that a director of any foregoing company maintains or has maintained a bank account of any description, whether alone or jointly with another person and whether in the State or elsewhere, into or out of which there has been paid—
(a) any money which has resulted from or been used in the financing of any transaction, arrangement or agreement particulars of which have not been disclosed in the financial statements of any company for any financial year as required by this Act, or
(b) any money which has been in any way connected with any act or omission, or series of acts or omissions, which, on the part of that director, constituted misconduct (whether fraudulent or not) towards that company or its members,
the examiner may require the director to produce to the examiner all documents in the director’s possession, or under his or her control, relating to that bank account and it shall be the duty of the director to comply with the requirement.
(4) In subsection (3)—
“bank account” includes an account with any person exempt by virtue of section 7(4) of the Central Bank Act 1971 from the requirement of holding a licence under section 9 of that Act; “director” means—
(a) any present or past director (including any present or past shadow director); and
(b) any person connected, within the meaning of section 220, with such a director.
(5) An examiner may examine on oath, either by word of mouth or on written interrogatories, the officers and agents of any such company or other person as is mentioned in subsection (1) or (2) in relation to that company’s affairs and may—
(a) administer an oath accordingly, or
(b) reduce the answers of such person to writing and require him or her to sign them.
(6) If any officer or agent of a foregoing company or other such person—
(a) refuses to produce to the examiner any book or document which it is his or her duty under this section to produce,
(b) refuses to attend before the examiner when requested by the examiner to do so, or
(c) refuses to answer any question which is put to him or her by the examiner with respect to the affairs of the company,
the examiner may provide a certificate under his or her hand to the court stating that such a refusal has occurred.
(7) On such a certificate being provided to it, the court may enquire into the case and, after hearing any witnesses who may be produced against or on behalf of the officer, agent or other person to whom the certificate relates or any statement which may be offered in defence, make any order or direction it thinks fit.
(8) Without prejudice to the generality of subsection (7), the court may, after a hearing under that subsection, make a direction—
(a) to the person concerned to attend or re-attend before the examiner or produce particular books or documents or answer particular questions put to him or her by the examiner, or
(b) that the person concerned need not produce a particular book or document or answer a particular question put to him or her by the examiner.
(9) Section 795 shall apply for the purposes of this section as it applies for the purposes of Part 13 and, accordingly, for the purpose of this section, references in section 795 to Part 13, or relevant provisions of that Part, shall be read as references to this section.
(10) In this section—
(a) any reference to officers or to agents includes a reference to past, as well as present, officers or agents, as the case may be; and
(b) “agents”, in relation to a company, includes—
(i) the bankers and solicitors of the company; and
(ii) any persons employed by the company as auditors, accountants, book-keepers or taxation advisers, or other persons employed by it in a professional, consultancy or similar capacity, whether those persons are (or were) or are not (or were not) officers of the company.
Section 527
No lien over company’s books, records, etc.
527. (1) Without prejudice to subsections (2) and (3), where the court has appointed an examiner to a company or a company is under the protection of the court, no person shall be entitled as against the examiner to—
(a) withhold possession of—
(i) any deed, instrument, or other document belonging to the company, or
(ii) any accounting records, receipts, bills, invoices, or other papers of a like nature relating to the accounts or trade, dealings or business of the company,
or
(b) claim any lien on any document or paper referred to in paragraph (a).
(2) Where a mortgage, charge or pledge has been created by the deposit of any such document or paper with a person, the production of the document or paper to the examiner by the person shall not operate to prejudice the person’s rights under the mortgage, charge or pledge (other than any right to possession of the document or paper).
(3) Where by virtue of this section an examiner has possession of—
(a) any document or papers of a receiver, or
(b) any documents or papers that a receiver is entitled to examine,
the examiner shall, unless the court otherwise orders, make the document or papers available for inspection by the receiver at all reasonable times.
Section 528
Further powers of court
528. (1) Where it appears to the court, on the application of the examiner, that, having regard to the matters referred to in subsection (2), it is just and equitable to do so, it may make an order that all or any of the functions which are vested in the directors (whether by virtue of the constitution of the company or by law or otherwise) shall be performable only by the examiner.
(2) The matters to which the court is to have regard for the purpose of subsection (1) are:
(a) that the affairs of the company are being conducted, or are likely to be conducted, in a manner which is calculated or likely to prejudice the interests of the company or of its employees or of its creditors as a whole; or
(b) that it is expedient, for the purpose of preserving the assets of the company or of safeguarding the interests of the company or of its employees or of its creditors as a whole, that the carrying on of the business of the company by, or the performance of the functions of, its directors or management should be curtailed or regulated in any particular respect; or
(c) that the company, or its directors, have resolved that such an order should be sought; or
(d) any other matter in relation to the company the court thinks relevant.
(3) Where the court makes an order under subsection (1), it may, for the purpose of giving full effect to the order, include such conditions in the order and make such ancillary or other orders as it sees fit.
(4) On an application under subsection (1), in addition to the powers under that subsection and subsection (3), the court may, having regard to the matters referred to in subsection (2), provide, by an order under subsection (1) or by a further order, that the examiner shall have all or any of the powers that he or she would have if he or she were a liquidator appointed by the court in respect of the company.
(5) Where such an order so provides, the court shall have all the powers that it would have if it had made a winding-up order and appointed a liquidator in respect of the company concerned.
Section 529
Incurring of certain liabilities by examiner
529. (1) Any liabilities incurred by the company during the protection period which are specified in subsection (2) shall be treated as expenses properly incurred, for the purpose of section 554, by the examiner.
F345[(2) The liabilities referred to in subsection (1) are those certified in writing by the examiner, at the time they are incurred, to have been incurred in circumstances where, in the opinion of the examiner, the survival of the company as a going concern during the protection period would otherwise be seriously prejudiced, and shall include, at least:
(a) the payment of fees for and costs of negotiating or confirming a scheme of arrangement;
(b) the payment of fees for and costs of seeking professional advice connected with the examinership;
(c) without prejudice to other protections provided in any other enactment, the payment of employees’ wages for work already carried out;
(d) any payments and disbursements made in the ordinary course of business other than those referred to in paragraphs (a), (b) or (c).]
F346[(2A) In the event of any subsequent winding up of a company under Part 11 within 6 months of the end of the protection period, liabilities referred to in subsection (1) incurred as part of a transaction that was –
(a) reasonable, and
(b) immediately necessary for the negotiation of the scheme of arrangement,
shall not be declared void, voidable or unenforceable on the ground that the transaction is detrimental to the general body of creditors unless there are other reasons why the transaction should be declared void, voidable or unenforceable.]
(3) In this section “protection period” means the period, beginning with the appointment of an examiner, during which the company is under the protection of the court.
Annotations
Amendments:
F345
Substituted (27.07.2022) by European Union (Preventive Restructuring) Regulations 2022 (S.I. No. 380 of 2022) reg. 13(a), subject to restriction on application in reg. 3.
F346
Inserted (27.07.2022) by European Union (Preventive Restructuring) Regulations 2022 (S.I. No. 380 of 2022) reg. 13(b), subject to restriction on application in reg. 3.
Section 530
Power to deal with charged property, etc.
530. (1) Where, on an application by the examiner, the court is satisfied that—
(a) the disposal (with or without other assets) of any property of the company concerned which is subject to a security which, as created, was a floating charge, or
(b) the exercise by the examiner of his or her powers in relation to such property,
would be likely to facilitate the survival of the whole or any part of the company as a going concern, the court may by order authorise the examiner to dispose of the property, or exercise his or her powers in relation to it, as the case may be, as if it were not subject to the security.
(2) Where, on an application by the examiner, the court is satisfied that the disposal (with or without other assets) of—
(a) any property of the company concerned subject to a security other than a security to which subsection (1) applies, or
(b) any goods in the possession of the company concerned under a hire-purchase agreement,
would be likely to facilitate the survival of the whole or any part of the company as a going concern, the court may by order authorise the examiner to dispose of the property as if it were not subject to the security or to dispose of the goods as if all rights of the owner under the hire-purchase agreement were vested in the company.
(3) Where property is disposed of under subsection (1), the holder of the security shall have the same priority in respect of any property of the company directly or indirectly representing the property disposed of as he or she would have had in respect of the property subject to the security.
(4) An order under subsection (2) shall include a condition that—
(a) the net proceeds of the disposal of the property or goods concerned; and
(b) where those proceeds are less than such amount as may be determined by the court to be the net amount which would be realised on a sale of the property or goods concerned in the open market by a willing vendor, such sums as may be required to make good the deficiency,
shall be applied towards discharging the sums secured by the security or payable under the hire-purchase agreement.
(5) Where a condition imposed in pursuance of subsection (4) relates to 2 or more securities, that condition operates to require the net proceeds of the disposal and, where paragraph (b) of that subsection applies, the sums mentioned in that paragraph to be applied towards discharging the sums secured by those securities in the order of their priorities.
(6) A certified copy of an order under subsection (1) or (2) in relation to a security shall, within 7 days after the date of the making of the order, be delivered by the examiner to the Registrar.
(7) If the examiner, without reasonable excuse, fails to comply with subsection (6), he or she shall be guilty of a category 4 offence.
(8) References in this section to a hire-purchase agreement include references to—
(a) a conditional sale agreement;
(b) a retention of title agreement; and
(c) an agreement for the bailment of goods which is capable of subsisting for more than 3 months.
Section 531
Notification of appointment of examiner
531. (1) Where a petition has been presented, notice of the petition in the prescribed form shall, within 3 days after the date of its presentation, be delivered by the petitioner to the Registrar.
(2) An examiner shall, within the respective periods specified in subsection (3), cause to be published in Iris Oifigiúil and in at least 2 daily newspapers circulating in the district in which the registered office or principal place of business of the company is situated a notice of his or her appointment and the date of that appointment.
(3) The periods referred to in subsection (2) are—
(a) 21 days after the date of the examiner’s appointment — in the case of Iris Oifigiúil, and
(b) 3 days after the date of the examiner’s appointment — in the other case referred to in that subsection.
(4) An examiner shall, within 3 days after the date of his or her appointment, deliver to the Registrar a copy of the order appointing him or her.
(5) Where a company is (by virtue of section 520) under, for the purposes of this Part, the protection of the court, every invoice, order for goods or business letter issued by or on behalf of the company, being a document on or in which the name of the company appears, shall, immediately after the mention of that name, include the words “in examination under Part 10 of the Companies Act 2014”.
(6) A website of a company that is (by virtue of section 520) under, for the purposes of this Part, the protection of the court, and any electronic mail sent to a third party by, or on behalf of, such a company, shall contain a statement that the company is in examination under this Part (and such a statement on a website shall be in a prominent and easily accessible place on it).
(7) In subsection (6) “third party” means a person other than—
(a) an officer or employee of the company concerned, or
(b) a holding company or subsidiary of the company or an officer or employee of that holding company or subsidiary.
(8) A person who fails to comply with subsection (1), (2), (4) or (5) shall be guilty of a category 4 offence.
(9) If default is made in complying with the requirement under subsection (6) concerning the company’s website, the company concerned and any officer of it who is in default shall be guilty of a category 4 offence.
(10) If default is made by a company, or any person acting on its behalf, in complying with the requirement under subsection (6) concerning electronic mail, then—
(a) in every case, the company and any officer of it who is in default, and
(b) where the default is made by a person acting on the company’s behalf, that person,
shall be guilty of a category 4 offence.
Section 532
General provisions as to examiners — resignation, filling of vacancy, etc.
532. (1) An examiner may resign or, on cause shown, be removed by the court.
(2) If, for any reason, a vacancy occurs in the office of examiner, the court, on application to it, may by order fill the vacancy.
(3) An application for an order under subsection (2) may be made by—
(a) any committee of creditors established under section 538 in relation to the company concerned, or
(b) the company concerned, or
(c) any interested party.
(4) An examiner shall be described by the style of “the examiner” of the particular company in respect of which he or she is appointed and not by his or her name.
(5) The acts of an examiner shall be valid notwithstanding any defects that may afterwards be discovered in his or her appointment or qualification.
(6) An examiner shall be personally liable on any contract entered into by him or her in the performance of his or her functions (whether such contract is entered into by the examiner in the name of the company concerned or in his or her own name as examiner or otherwise) unless the contract provides that he or she is not to be personally liable on such contract.
(7) The examiner shall, in respect of that personal liability, be entitled to indemnity out of the assets of the company concerned.
(8) Nothing in subsection (6) or (7) shall be taken as limiting any right to indemnity which the examiner would have apart from either subsection, or as limiting the examiner’s liability on contracts entered into without authority or as conferring any right to indemnity in respect of that liability.
(9) A company to which an examiner has been appointed or an interested party may apply to the court for the determination of any question arising out of the performance or otherwise by the examiner of his or her functions.
Section 533
Hearing regarding irregularities
533. (1) Where, arising out of the presentation to it of the report of the independent expert or otherwise, it appears to the court that there is evidence of a substantial disappearance of property of the company concerned that is not adequately accounted for, or of other serious irregularities in relation to the company’s affairs having occurred, the court shall, as soon as it is practicable, hold a hearing to consider that evidence.
(2) If, before the hearing referred to in subsection (1) is held, the court directs the examiner to do so, the examiner shall prepare a report setting out any matters which the examiner considers will assist the court in considering the evidence concerned on that hearing.
(3) The examiner shall supply a copy of a report prepared by him or her under subsection (2) to the company concerned on the same day as he or she causes the report to be delivered to the office of the court.
(4) The examiner shall also supply a copy of a report prepared by him or her under subsection (2) to each person who is mentioned in the report and any interested party on written application being made to him or her in that behalf.
(5) If the court, on application to it in that behalf, directs that that supply may be the subject of such omission, there may be omitted from any copy of the report supplied to a person referred to in subsection (4) or an interested party such parts of it as are specified in the direction of the court.
(6) The court may, in particular, on such an application, direct that there may be omitted from such a supply of a copy of the report any information the inclusion of which in such a copy would be likely to prejudice the survival of the company or the whole or any part of its undertaking as a going concern.
(7) If the company concerned is a company referred to in section 510(2), (3) or (4), the examiner shall, as soon as may be after it is prepared, supply a copy of the report prepared by him or her under subsection (2) to the Central Bank, and subsections (5) and (6) shall not apply to such a copy.
(8) The following persons shall be entitled to appear and be heard at a hearing under this section:
(a) the examiner;
(b) if the court decided to hold a hearing under this section because of matters contained in the report of the independent expert, the independent expert;
(c) the company concerned;
(d) any interested party;
(e) any person who is referred to in the report of the independent expert or the report prepared under subsection (2);
(f) if the company concerned is a company referred to in section 510(2), (3) or (4) — the Central Bank;
(g) irrespective of whether it constitutes any of the foregoing kinds of company — the F347[Authority].
(9) The court may, on a hearing under this section, make such order or orders as it deems fit (including, where appropriate, an order for the trial of any issue relating to the matter concerned).
(10) The court may, if it considers it appropriate to do so, direct that a certified copy of an order under subsection (9) shall be delivered to the Registrar by the examiner or such other person as it may specify.
Annotations
Amendments:
F347
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. no. 47, S.I. No. 335 of 2022.
Modifications (not altering text):
C155
Application of Part modified (1.01.2022) by Housing (Regulation of Approved Housing Bodies) Act 2019 (47/2019), s. 56(1), (2)(d), S.I. No. 728 of 2021.
Examinership: modification of Part 10 of Act of 2014 for purposes of application to AHBs
56. (1) For the purposes of the application of Part 10 of the Act of 2014 to a company that is an AHB, that Part shall apply to such a company subject to the modifications specified in subsection (2) and any other modifications necessary for those purposes.
(2) ...
(d) in section 533—
(i) the following subsection is inserted after subsection (7):
(7A) If the company concerned is a company referred to in section 510(6), the examiner shall, as soon as may be after it is prepared, supply a copy of the report prepared by him or her under subsection (2) to the Regulator, and subsections (5) and (6) shall not apply to such a copy.
and
(ii) in subsection (8), the following paragraph is inserted after paragraph (f):
(fa) if the company concerned is a company referred to in section 510(6) - the Regulator;
...
Section 534
Report by examiner
534. (1) An examiner shall—
(a) as soon as practicable after he or she is appointed, formulate proposals for a compromise or scheme of arrangement in relation to the company concerned,
(b) without prejudice to any other provision of this Act, perform such other functions as the court may direct the examiner to perform.
(2) Notwithstanding any provision of Part 4 relating to notice of general meetings (but subject to notice of not less than 3 days in any case) the examiner shall—
(a) convene and preside at such meetings of members and creditors as he or she thinks proper for the purpose of F348[section 540,]
F349[(aa) ensure that every member or creditor, or class of members or creditors, whose interests or claims will be impaired by the proposals is invited to attend a meeting convened in accordance with paragraph (a), and]
(b) in accordance with section 536, report on those proposals to the court, within 35 days after the date of his or her appointment or such longer period as the court may allow.
(3) F350[Where], on the application of the examiner, the court is satisfied that the examiner would be unable to report under subsection (2) to the court within the period of 70 days referred to in section 520(2) but that he or she would be able to report under that subsection to the court if that period were extended, the court may by order extend that period by not more than 30 days to enable him or her to do so.
F351[(3A) F352[…]]
(4) Where the examiner has submitted a report under this section to the court and, but for this subsection, the period mentioned in section 520(2) (and any extended period allowed under subsection (3)) F353[…] would expire, the court may, of its own motion or on the application of the examiner, extend the period concerned by such period as the court considers necessary to enable it to take a decision under F354[section 541, but the total duration of the period referred to in section 520(2), any extended period allowed under subsection (3), F353[…] and any further extended period allowed under this subsection, shall not exceed 12 months.].
(5) The examiner shall supply a copy of his or her report under this section—
(a) to the company concerned on the same day as he or she causes the report to be delivered to the office of the court, and
(b) to any interested party on written application being made to him or her in that behalf.
(6) The examiner shall, as soon as may be after it is prepared, supply a copy of his or her report under this section to—
(a) if the company concerned is a company referred to in section 510(2), (3) or (4) — the Central Bank, and
(b) irrespective of whether it constitutes any of the foregoing kinds of company — the F355[Authority].
(7) If the court, on application to it in that behalf, directs that that supply may be the subject of such omission, there may be omitted from any copy of the report supplied under subsection (5)(b) to an interested party such parts of it as are specified in the direction of the court.
(8) The court may, in particular, on such an application, direct that there may be omitted from such a supply of a copy of the report any information the inclusion of which in such a copy would be likely to prejudice the survival of the company or the whole or any part of its undertaking as a going concern.
Annotations
Amendments:
F348
Substituted (27.07.2022) by European Union (Preventive Restructuring) Regulations 2022 (S.I. No. 380 of 2022) reg. 14(a)(i), (b), subject to restriction on application in reg. 3.
F349
Inserted (27.07.2022) by European Union (Preventive Restructuring) Regulations 2022 (S.I. No. 380 of 2022) reg. 14(a)(ii), subject to restriction on application in reg. 3.
F350
Substituted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 3(2) and sch. 2, S.I. No. 639 of 2024.
F351
Inserted (21.08.2020) by Companies (Miscellaneous Provisions (Covid-19) Act 2020 (9/2020), s. 13(b), (c), S.I. No. 320 of 2020. Note extension of interim period by statutory instrument made under s. 12A was NOT renewed in relation to this section by Companies Act 2014 (Section 12A(1)) (Covid-19) (No. 2) Order 2022 (S.I. No. 648 of 2022) from 31.12.2022.
F352
Repealed (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 3(1) and sch. 1, S.I. No. 639 of 2024.
F353
Deleted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 3(2) and sch. 2, S.I. No. 639 of 2024.
F354
Inserted (27.07.2024) by European Union (Preventive Restructuring) Regulations 2022 (S.I. No. 380 of 2022), reg. 14.
F355
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. no. 48, S.I. No. 335 of 2022.
Modifications (not altering text):
C156
Application of Part modified (1.01.2022) by Housing (Regulation of Approved Housing Bodies) Act 2019 (47/2019), s. 56(1), (2)(e), S.I. No. 728 of 2021.
Examinership: modification of Part 10 of Act of 2014 for purposes of application to AHBs
56. (1) For the purposes of the application of Part 10 of the Act of 2014 to a company that is an AHB, that Part shall apply to such a company subject to the modifications specified in subsection (2) and any other modifications necessary for those purposes.
(2) ...
(e) in section 534(6) —
(i) in paragraph (a), “and” is deleted, and
(ii) the following paragraph is inserted after paragraph (a):
“(aa) if the company concerned is a company referred to in section 510(6) - the Regulator, and”,
...
Editorial Notes:
E105
Previous affecting provision: subs. (4) amended (21.08.2020) by Companies (Miscellaneous Provisions (Covid-19) Act 2020 (9/2020), s. 13(b), (c), S.I. No. 320 of 2020. Note extension of interim period by statutory instrument made under s. 12A was NOT renewed in relation to this section by Companies Act 2014 (Section 12A(1)) (Covid-19) (No. 2) Order 2022 (S.I. No. 648 of 2022) from 31.12.2022; repealed (3.12.2024) as per F-note above.
E106
Previous affecting provision: subs. (3) amended (21.08.2020) by Companies (Miscellaneous Provisions (Covid-19) Act 2020 (9/2020), s. 13(a), S.I. No. 320 of 2020. Note extension of interim period by statutory instrument made under s. 12A was NOT renewed in relation to this section by Companies Act 2014 (Section 12A(1)) (Covid-19) (No. 2) Order 2022 (S.I. No. 648 of 2022) from 31.12.2022; substituted (3.12.2024) as per F-note above.
Section 535
Procedure where examiner unable to secure agreement or formulate proposals for compromise or scheme of arrangement
535. (1) If the examiner is not able to—
(a) enter into an agreement with the interested parties and any other persons concerned in the matter, or
(b) formulate proposals for a compromise or scheme of arrangement in relation to the company concerned,
the examiner may apply to the court for the grant of directions in the matter.
(2) The court may, on such an application, give such directions or make such order as it deems fit, including, if it considers it just and equitable to do so, an order for the winding up of the company.
Section 536
Content of examiner’s report
536. An examiner’s report under section 534 shall include:
(a) the proposals placed before the required meetings;
(b) any modification of those proposals adopted at any of those meetings;
(c) the outcome of each of the required meetings;
(d) the recommendation of the committee of creditors, if any;
(e) a statement of the assets and liabilities (including contingent and prospective liabilities) of the company as at the date of his or her report;
(f) a list of the creditors of the company, the amount owing to each such creditor, the nature and value of any security held by any such creditor, and the priority accorded under sections 621 and 622 to any such creditor or any other statutory provision or rule of law;
(g) a list of the officers of the company;
(h) the examiner’s recommendations;
(i) such other matters as the examiner deems appropriate or the court directs.
Section 537
Repudiation of certain contracts
537. (1) Where proposals for a compromise or scheme of arrangement are to be formulated in relation to a company, the company may, subject to the approval of the court, affirm or repudiate any contract under which some element of performance other than payment remains to be rendered both by the company and the other contracting party or parties.
(2) Any person who suffers loss or damage as a result of such repudiation shall stand as an unsecured creditor for the amount of such loss or damage.
(3) In order to facilitate the formulation, consideration or confirmation of a compromise or scheme of arrangement, the court may hold a hearing and make an order determining the amount of any such loss or damage mentioned in subsection (2) and the amount so determined shall be due by the company to the creditor as a judgment debt.
(4) Where the examiner is not a party to an application to the court for the purposes of subsection (1), the company shall serve notice of such application on the examiner and the examiner may appear and be heard on the hearing of any such application.
(5) Where the court approves the affirmation or repudiation of a contract under this section, it may, in giving such approval, make such orders as it thinks fit for the purposes of giving full effect to its approval, including orders as to notice to, or declaring the rights of, any party affected by such affirmation or repudiation.
Section 538
Appointment of creditors’ committee
538. (1) An examiner may, and if so directed by the court shall, appoint a committee of creditors to assist the examiner in the performance of his or her functions.
(2) Save as otherwise directed by the court, a committee appointed under subsection (1) shall consist of not more than 5 members and shall include the holders of the 3 largest unsecured claims who are willing to serve.
(3) The examiner shall provide such a committee with a copy of any proposals for a compromise or scheme of arrangement and the committee may express an opinion on the proposals on its own behalf or on behalf of the creditors or classes of creditors represented on the committee.
(4) As soon as practicable after the appointment of a committee under subsection (1), the examiner shall meet with the committee to transact such business as may be necessary.
Section 539
Proposals for compromise or scheme of arrangement
539. (1) Proposals for a compromise or scheme of arrangement under this Part in relation to a company shall—
(a) specify each class of members and creditors of the company,
F356[(aa) identify the company concerned,
(ab) identify the examiner,]
(b) specify any class of members and creditors whose interests or claims will not be impaired F357[by the proposals, including the reasons why it is proposed not to impair such interests or claims],
(c) specify any class of members and creditors whose interests or claims will be impaired F357[by the proposals, including the interests or claims impaired by such proposals],
(d) provide equal treatment for each claim or interest of a particular class unless the holder of a particular claim or interest agrees to less favourable treatment,
F356[(da) identify the terms of the proposals including, in particular –
(i) any proposed restructuring measures,
(ii) where applicable, the proposed duration of any proposed restructuring measures,
(iii) the arrangements with regard to informing and consulting employees or employees’ representatives,
(iv) where applicable, the overall consequences as regards employment such as dismissals, short-time working arrangements or similar, and
(v) any new financing anticipated as part of the restructuring measures and the reason why the new financing is necessary to implement the plan,]
(e) provide for the implementation of the proposals,
F356[(ea) provide a statement of reasons which explains why the proposals provide a reasonable prospect of facilitating the survival of the company and the whole or part of its undertaking as a going concern, and includes details of the necessary pre-conditions for the success of the proposals,]
(f) if the examiner considers it necessary or desirable to do so to facilitate the survival of the company, and the whole or any part of its undertaking, as a going concern, specify whatever changes should be made in relation to the management or direction of the company,
(g) if the examiner considers it necessary or desirable to do so to facilitate such survival, specify any changes he or she considers should be made in the constitution of the company, whether as regards the management or direction of the company or otherwise,
(h) include such other matters as the examiner deems appropriate.
F356[(1A) As a minimum, creditors of secured and unsecured claims shall be treated in separate classes for the purposes of the proposals under subsection (1).]
(2) A statement of the assets and liabilities (including contingent and prospective liabilities) of the company as at the F357[date of the proposals, including a value for the assets, a description of the economic situation of the company and the position of its employees, and a description of the causes and extent of the difficulties of the company,] shall be attached to each copy of the proposals to be submitted to meetings of members and creditors under section 540.
F357[(3) There shall also be attached to each such copy of the proposals, for each class of members and creditors, a description of –
(a) the respective values of interests or claims in each class,
(b) the interests or claims impaired by the proposals, and
(c) the estimated financial outcome of a winding up of the company.]
(4) The court may direct that the proposals include whatever other provisions it deems fit.
(5) For the purposes of this section and sections 541 to 543, a creditor’s claim against a company is impaired if the creditor receives less in payment of his or her claim than the full amount due in respect of the claim at the date of presentation of the petition for the appointment of the examiner.
(6) For the purposes of this section and sections 541 to 543, the interest of a member of a company in the company is impaired if—
(a) the nominal value of his or her shareholding in the company is reduced, or
(b) where the member is entitled to a fixed dividend in respect of his or her shareholding in the company, the amount of that dividend is reduced, or
(c) the member is deprived of all or any part of the rights accruing to him or her by virtue of his or her shareholding in the company, or
(d) the percentage of his or her interest in the total issued share capital of the company is reduced, or
(e) the member is deprived of his or her shareholding in the company.
F356[(7) In this section, "restructuring measures" has the same meaning as given to "restructuring" in point (1) of Article 2(1) of the Preventive Restructuring Directive.]
Annotations
Amendments:
F356
Inserted (27.07.2022) by European Union (Preventive Restructuring) Regulations 2022 (S.I. No. 380 of 2022) reg. 15(a)(i), (iv), (v), (b), (e), subject to restriction on application in reg. 3.
F357
Substituted (27.07.2022) by European Union (Preventive Restructuring) Regulations 2022 (S.I. No. 380 of 2022) reg. 15(a)(ii), (iii), (c), (d), subject to restriction on application in reg. 3.
Modifications (not altering text):
C157
Application of Part modified (1.01.2022) by Housing (Regulation of Approved Housing Bodies) Act 2019 (47/2019), s. 56(1), (2)(f), S.I. No. 728 of 2021.
Examinership: modification of Part 10 of Act of 2014 for purposes of application to AHBs
56. (1) For the purposes of the application of Part 10 of the Act of 2014 to a company that is an AHB, that Part shall apply to such a company subject to the modifications specified in subsection (2) and any other modifications necessary for those purposes.
(2) ...
(f) in section 539(1), the following paragraph is inserted after paragraph (g):
“(ga) in the case of a company referred to in section 510(6), include proposals for the protection of dwellings provided or managed in furtherance of the primary object or primary objects of the company as specified in section 25 (2)(b)(i) of the Housing (Regulation of Approved Housing Bodies) Act 2019,”
...
Section 540
Consideration by members and creditors of proposals
540. (1) This section applies to a meeting of members or creditors or any class of members or creditors summoned to consider proposals for a compromise or scheme of arrangement in relation to a company to which an examiner has been appointed.
(2) Save where expressly provided otherwise in this section, this section shall not authorise, at such a meeting, anything to be done in relation to such proposals by any member or creditor.
(3) At a meeting to which this section applies a modification of the proposals may be put to the meeting but may only be accepted with the consent of the examiner.
(4) F358[Subject to subsection (4A), proposals] shall be deemed to have been accepted by a meeting of creditors or of a class of creditors when a majority in number representing a majority in value of the claims represented at that meeting have voted, either in person or by proxy, in favour of the resolution for the proposals.
F359[(4A) Creditors or classes of creditors whose interests or claims will not be impaired by the proposals shall not have voting rights in the adoption of the proposals, and the majority calculated in accordance with subsection (4) shall not take into account the number and value of the claims of any such creditors.]
(5) Nothing in subsection (4) shall, in the case of a creditor who abstains from voting, or otherwise fails to cast a vote, in respect of the proposals, be read as permitting such an abstention or failure to be regarded as a casting by that person of a vote against the proposals.
(6) Where a State authority is a creditor of the company, such authority shall be entitled to accept proposals under this section notwithstanding—
(a) that any claim of such authority as a creditor would be impaired under the proposals, or
(b) any other enactment.
(7) In subsection (6) “State authority” means the State, a Minister of the Government, a local authority or the Revenue Commissioners.
(8) Section 192 shall apply to any resolution to which subsection (4) relates which is passed at any adjourned meeting.
(9) Subsection (1)(a)(iii) and (b), and subsections (2) to (7), of section 452 shall apply to meetings under this section with the modifications specified in subsection (10) and any other necessary modifications.
(10) The modifications mentioned in subsection (9) are—
(a) the reference in paragraph (a)(iii) of section 452(1) to the explanation required to be given under paragraph (a)(ii) of section 452(1) in relation to the company’s directors shall be read as a reference to the explanation required to be given under subsection (11) of this section in relation to those directors, and
(b) the reference in section 452(5) to a liquidator of the company shall be read as a reference to the examiner of the company.
(11) With every notice summoning a meeting to which this section applies which is sent to a creditor or member, there shall be sent also a statement explaining the effect of the compromise or scheme of arrangement and in particular stating any material interests of the directors of the company, whether as directors or as members or as creditors of the company or otherwise and the effect thereon of the compromise or arrangement, in so far as it is different from the effect on the like interest of other persons.
(12) Without prejudice to subsections (1) to (11), in the case of a company referred to in section 510(3) or (4), the examiner shall also afford the Central Bank an opportunity to consider the proposals for a compromise or scheme of arrangement and, for this purpose, shall furnish to the Central Bank a statement containing the like information to that referred to in subsection (11).
Annotations
Amendments:
F358
Substituted (27.07.2022) by European Union (Preventive Restructuring) Regulations 2022 (S.I. No. 380 of 2022) reg. 16(a), subject to restriction on application in reg. 3.
F359
Inserted (27.07.2022) by European Union (Preventive Restructuring) Regulations 2022 (S.I. No. 380 of 2022) reg. 16(b), subject to restriction on application in reg. 3.
Modifications (not altering text):
C158
Application of Part modified (1.01.2022) by Housing (Regulation of Approved Housing Bodies) Act 2019 (47/2019), s. 56(1), (2)(g), S.I. No. 728 of 2021.
Examinership: modification of Part 10 of Act of 2014 for purposes of application to AHBs
56. (1) For the purposes of the application of Part 10 of the Act of 2014 to a company that is an AHB, that Part shall apply to such a company subject to the modifications specified in subsection (2) and any other modifications necessary for those purposes.
(2) ...
(g) in section 540, the following subsection is inserted after subsection (12):
“(13) Without prejudice to subsections (1) to (11), in the case of a company referred to in section 510(6), the examiner shall also afford the Regulator an opportunity to consider the proposals for a compromise or scheme of arrangement and, for this purpose, shall furnish to the Regulator a statement containing the like information to that referred to in subsection (11).”
...
Section 541
Confirmation of proposals
541. (1) The report of the examiner under section 534 shall be set down for consideration by the court as soon as may be after receipt of the report by the court.
(2) The following persons may appear and be heard at a hearing under subsection (1):
(a) the company concerned;
(b) the examiner;
(c) any creditor or member whose claim or interest would be impaired if the proposals were implemented;
(d) the directors of the company;
(e) if the company concerned is a company referred to in section 510(2), (3) or (4) — the Central Bank.
(3) At a hearing under subsection (1), the court may, as it thinks proper, subject to the provisions of this section and sections 542 and 543—
(a) confirm,
(b) confirm subject to modifications, or
(c) refuse to confirm,
the proposals for the compromise or arrangement concerned (referred to subsequently in this section as “proposals”).
F360[(3A) Where the court confirms proposals under subsection (3) (with or without modification), the conditions of such confirmation shall be clearly specified by the court and shall confirm at least the following:
(a) a majority in number of creditors whose interests or claims would be impaired by implementation of the proposals, representing a majority in value of the claims that would be impaired by implementation of the proposals, have accepted the proposals in accordance with section 540;
(b) the exercise of voting rights has been carried out in accordance with section 540;
(c) creditors with sufficient commonality of interest in the same class have been treated equally, and in a manner proportionate to their claim;
(d) notice of the proposals has been given to all members and creditors whose interests or claims will be impaired by the proposals in accordance with subsection 540(11);
(e) where there are dissenting creditors, that the proposals satisfy the best-interest-of-creditors test;
(f) where applicable, that any new financing is necessary to implement the proposals and does not unfairly prejudice the interests of creditors.
(3B) Where any proposals have not been accepted in accordance with section 540, the court may, upon the application of the examiner or with the examiner’s agreement, confirm the proposals under subsection (3) (with or without modification) if –
(a) the proposals have been accepted by –
(i) a majority of the voting classes of creditors whose interests or claims would be impaired by the proposals, provided that at least one of those classes is a class of secured creditors, or is senior to the class of ordinary unsecured creditors, or
(ii) where the classes of creditors specified in subparagraph (i) have not accepted the proposals, at least one voting class of creditors whose interests or claims would be impaired by the proposals other than a class of creditors which, upon a valuation of the company as a going concern, would not receive any payment or keep any interest, or which could be reasonably presumed not to receive any payment or keep any interest, if the normal ranking of liquidation priorities under sections 621 and 622 were applied,
and
(b) the court is satisfied that –
(i) the conditions specified in paragraphs (b) to (f) of subsection (3A) have been met, and
(ii) no class of creditors whose interests or claims will be impaired by the proposals can, under the scheme of arrangement, receive or keep more than the full amount of its interests or claims.]
(4) The court shall not confirm any proposals unless—
(a) at least one class of creditors whose interests or claims would be impaired by implementation of the proposals has accepted the proposals, and
F361[(b) the court is satisfied that –
(i) the conditions specified in subsection (3A) or (3B) have been met,
(ii) the proposals are fair and equitable in relation to any class of members or creditors that has not accepted the proposals and whose interests or claims would be impaired by implementation, and
(iii) the proposals are not unfairly prejudicial to the interests of any interested party,
and in any case shall not confirm any proposals if the sole or primary purpose of them is the avoidance of payment of tax due.]
F360[(4A) The court shall refuse to confirm any proposals where the proposals would not have a reasonable prospect of facilitating the survival of the company, or the whole or part of its undertaking as a going concern.]
F361[(5) Without prejudice to subsections (3B), (4) and (4A), the court shall not confirm any proposals in respect of a company to which an examiner has been appointed under section 517 if –
(a) the proposals would have the effect of impairing the interests of the creditors of the company in such a manner as to unfairly favour the interests of the creditors or members of any company to which it is related, being a company to which that examiner has been appointed under section 509 or, as the case may be, section 517, or
(b) the court is satisfied that the proposals do not satisfy the best-interests-of-creditors test where such proposals are challenged by one or more creditors on the basis that they do not satisfy the best-interests-of-creditors test.]
F361[(6) Where the court confirms proposals (with or without modification), the proposals shall be binding on –
(a) all the members or class or classes of members, as the case may be, impaired by the proposals, unless the member or class or classes of members, as the case may be, was not given notice of a meeting they would have been entitled to attend under section 534, and
(b) the company.]
F361[(7) Where the court confirms the proposals (with or without modification), the proposals shall, notwithstanding any other enactment, be binding on –
(a) all the creditors or the class or classes of creditors, as the case may be, impaired by the proposals in respect of any claim or claims against the company, unless the creditor or class or classes of creditors, as the case may be, was not given notice of a meeting they would have been entitled to attend under section 534, and
(b) any person other than the company who, under any enactment, rule of law or otherwise, is liable for all or any part of the debts of the company.]
Annotations
Amendments:
F360
Inserted (27.07.2022) by European Union (Preventive Restructuring) Regulations 2022 (S.I. No. 380 of 2022) reg. 17(a), (c), subject to restriction on application in reg. 3.
F361
Substituted (27.07.2022) by European Union (Preventive Restructuring) Regulations 2022 (S.I. No. 380 of 2022) reg. 17(b), (d), (e), (f), subject to restriction on application in reg. 3.
Modifications (not altering text):
C159
Application of Part modified (1.01.2022) by Housing (Regulation of Approved Housing Bodies) Act 2019 (47/2019), s. 56(1), (2)(h), S.I. No. 728 of 2021.
Examinership: modification of Part 10 of Act of 2014 for purposes of application to AHBs
56. (1) For the purposes of the application of Part 10 of the Act of 2014 to a company that is an AHB, that Part shall apply to such a company subject to the modifications specified in subsection (2) and any other modifications necessary for those purposes.
(2) ...
(h) in section 541(2), the following paragraph is inserted after paragraph (d):
“(da) if the company concerned is a company referred to in section 510(6) - the Regulator;”
...
Section 542
Supplemental provisions in relation to section 541
542. (1) Any amendments of the constitution of the company concerned which are specified in the relevant proposals shall, after confirmation of the proposals by the court under section 541 and notwithstanding any other provisions of this Act, take effect from a date fixed by the court.
(2) Where the court confirms proposals under section 541 it may make such orders for the implementation of its decision as it deems fit.
(3) A compromise or scheme of arrangement, proposals for which have been confirmed under section 541, shall come into effect from a date fixed by the court, which date (unless the court deems it appropriate to fix a later one) shall be a date falling no later than 21 days after the date of the proposals’ confirmation.
(4) On the confirmation of proposals, a certified copy of any order made by the court under section 541 shall be delivered by the examiner, or by such person as the court may direct, to the Registrar.
(5) Where—
(a) the court refuses to confirm proposals under section 541, or
(b) the report of an examiner under section 534 concludes that, following the required meetings of creditors of a company under this Part, it has not been possible to reach agreement on a compromise or scheme of arrangement,
the court may, if it considers it just and equitable to do so, make an order for the winding up of the company, or any other order as it deems fit.
(6) Notwithstanding—
(a) subsection (4), or any other provision of this Part, nothing in this Part shall prevent the examiner from including in a report under section 534 proposals which will not involve the impairment of the interests of members or creditors of the company nor the court from confirming any such proposals, or
(b) any foregoing provision of this Part or any provision of Part 3, nothing in this Part or Part 3 shall prevent the examiner from including in a report under section 534 proposals which provide for a reduction of the company’s company capital nor, subject to subsection (7), the court from confirming any such proposals.
(7) If the extent of the reduction of the company’s company capital provided for in the proposals as referred to in subsection (6)(b) would, in the opinion of the court, and having regard to—
(a) the scale and nature of the business that the company carries on, and
(b) the likely liabilities it will incur on an on-going basis after the period of protection has expired,
result in the company’s having an amount of company capital that is manifestly inadequate, the court shall not confirm the proposals or, where appropriate, shall confirm the proposals subject to a modification that a lower level of reduction, as determined by the court, of the company’s company capital shall have effect under the compromise or scheme of arrangement.
(8) References in section 541 or any other provision of this Part to acceptance by a class of creditors or members of proposals are references to the proposals’ acceptance at the relevant meeting held under section 540, that is to say acceptance signified by a resolution passed, at that meeting, by the requisite majority referred to in (in the case of creditors) section 540(4) or (in the case of members) section 191(1).
Section 543
Objection to confirmation by court of proposals
543. (1) At a hearing under section 541 in relation to proposals referred to in that section, a member or creditor whose interest or claim would be impaired by the proposals may object in particular to their confirmation by the court on any of the following grounds—
(a) that there was some material irregularity at or in relation to a meeting to which section 540 applies;
(b) that acceptance of the proposals by the meeting was obtained by improper means;
(c) that the proposals were put forward for an improper purpose;
(d) that the proposals unfairly prejudice the interests of the F362[objector;]
F363[(e) that the proposals fail to satisfy the best-interest-of-creditors test;
(f) that the proposals breach the conditions specified in section 541(3B)(a)(ii).]
F363[(1A) Where a member or creditor objects to the confirmation by the court of the proposals on the grounds set out in subsection (1)(e) or (1)(f), the court shall take a decision on the valuation of the company’s business.]
F363[(1B) For the purpose of taking a decision on a valuation in accordance with subsection (1A), the court may have regard to –
(a) the report of the independent expert prepared in accordance with section 511,
(b) the examiner’s report prepared in accordance with section 534, and
(c) the evidence of any other properly qualified experts that it considers appropriate to appoint or hear.]
F363[(1C) For the purpose of subsection (1B)(c), any party entitled to be heard at a hearing under section 541 may place expert evidence before the court for its consideration.]
(2) Any person who voted to accept the proposals referred to in section 541 may not object to their confirmation by the court except on the grounds—
(a) that such acceptance was obtained by improper means; or
(b) that after voting to accept the proposals the person became aware that the proposals were put forward for an improper purpose.
(3) Where the court upholds an objection under this section, the court may make such order as it deems fit, including an order that the decision of any meeting be set aside and an order that any meeting be reconvened.
Annotations
Amendments:
F362
Substituted (27.07.2022) by European Union (Preventive Restructuring) Regulations 2022 (S.I. No. 380 of 2022) reg. 18(a)(i), subject to restriction on application in reg. 3.
F363
Inserted (27.07.2022) by European Union (Preventive Restructuring) Regulations 2022 (S.I. No. 380 of 2022) reg. 18(a)(ii), (b), subject to restriction on application in reg. 3.
Section 544
Provisions with respect to leases
544. (1) Subject to subsection (3), proposals for a compromise or scheme of arrangement shall not contain, nor shall any modification by the court under section 541 of such proposals result in their containing, a provision providing for either or both—
(a) a reduction in the amount of any rent or other periodical payment reserved under a lease of land that falls to be paid after the date from which the compromise or scheme of arrangement would come into effect under section 542(3) or the complete extinguishment of the right of the lessor to any such payments;
(b) as respects a failure—
(i) to pay an amount of rent or make any periodical payment reserved under a lease of land; or
(ii) to comply with any other covenant or obligation of such a lease, that falls to be paid or complied with after the date referred to in paragraph (a), a requirement that the lessor under such a lease shall not exercise, or shall only exercise in specified circumstances, any right, whether under the lease or otherwise, to—
(I) recover possession of the land concerned;
(II) effect a forfeiture of the lease or otherwise enter on the land;
(III) recover the amount of such rent or other payment; or
(IV) claim damages or other relief in respect of the failure to comply with such a covenant or obligation.
(2) Subject to subsection (3), proposals for a compromise or scheme of arrangement in relation to a company shall not be held by the court to satisfy the condition specified in section 541(4)(b)(ii) if the proposals contain a provision relating to a lease of, or any hiring agreement in relation to, property other than land and, in the opinion of the court—
(a) the value of that property is substantial; and
(b) that provision is of like effect to a provision referred to in subsection (1)(a) or (b).
(3) Subsection (1) or (2) shall not apply if the lessor or owner of the property concerned has consented in writing to the inclusion of the provision referred to in subsection (1) or (2) in the proposals for the compromise or scheme of arrangement.
(4) In deciding, for the purposes of subsection (2), whether the value of the property concerned is substantial, the matters to which the court shall have regard shall include the length of the unexpired term of the lease or hiring agreement concerned.
CHAPTER 4
Liability of third parties for debts of a company in examination
Section 545
What this Chapter contains
545. This Chapter contains provisions—
(a) specifying the effect on the liability of a person (under a guarantee or otherwise) to another person in respect of a debt of a company in examination under this Part where a compromise or scheme of arrangement takes effect in relation to the latter;
(b) restricting the enforcement of that liability by that other person unless a certain procedure is employed; and
(c) providing for other matters relating to the foregoing (including a saver for cases falling within section 520(4)(f) or where, by operation of any rule of law, a discharge or release of the first-mentioned person’s liability occurs).
Section 546
Definitions (Chapter 4)
546. In this Chapter—
“creditor” shall be read in accordance with section 547;
“debt” shall be read in accordance with section 547;
“liability” shall be read in accordance with section 547;
“third person” shall be read in accordance with section 547.
Section 547
Circumstances in relation to which subsequent provisions of this Chapter have effect
547. Subject to section 548(2), the subsequent sections of this Chapter have effect in relation to the following liability (the “liability”), namely the liability—
(a) of any person (the “third person”) whether under a guarantee or otherwise;
(b) in respect of a debt (the “debt”) of a company to which an examiner has been appointed that is owed to another (the “creditor”).
Section 548
General rule: liability of third person not affected by compromise or scheme of arrangement
548. (1) Notwithstanding section 541(7), the liability shall not be affected by the fact that the debt is the subject of a compromise or scheme of arrangement that has taken effect under section 542(3), but this is subject to subsections (2) and (3).
(2) The third person and the creditor may provide in an agreement between them that the liability shall be so affected.
(3) Neither subsection (1) nor any of the subsequent provisions of this Chapter shall apply if the third person is a company to which an examiner has been appointed.
Section 549
Enforcement by creditor of liability: restrictions in that regard unless certain procedure employed to the benefit of third person
549. (1) If the creditor proposes to enforce, by legal proceedings or otherwise, the obligation of the third person in respect of the liability, then he or she shall—
(a) if 14 days or more notice is given of such meeting, at least 14 days before the day on which the meeting concerned under section 540 to consider the proposals is held, or
(b) if less than 14 days’ notice is given of such meeting, not more than 48 hours after he or she has received notice of such meeting,
serve a notice on the third person containing the following offer.
(2) That offer is an offer in writing by the creditor to transfer to the third person (which the creditor is, by virtue of this section, empowered to do) any rights, so far as they relate to the debt, he or she may have under section 540 to vote in respect of proposals for a compromise or scheme of arrangement in relation to the company.
(3) If that offer is accepted by the third person, that offer shall, if the third person furnishes to the examiner at the meeting concerned, a copy of the offer and informs the examiner of his or her having accepted it, operate, without the necessity for any assignment or the execution of any other instrument, to entitle the third person to exercise the rights referred to in subsection (2).
(4) However neither that transfer nor any vote cast by the third person on foot of the transfer shall operate to prejudice the right of the creditor to object to the proposals under section 543.
(5) If the creditor fails to make the offer referred to in subsection (1) in accordance with that subsection, then, subject to subsection (6), the creditor may not enforce by legal proceedings or otherwise the obligation of the third person in respect of the liability.
(6) Subsection (5) shall not apply if—
(a) a compromise or scheme of arrangement in relation to the company is not entered into or does not take effect under section 542(3); and
(b) in either of those cases, the creditor has obtained the leave of the court to enforce the obligation of the third person in respect of the liability.
Section 550
Payment by third person to creditor post period of protection — statutory subrogation in favour of third person in certain circumstances
550. (1) This section applies where the third person makes a payment to the creditor in respect of the liability after the period of protection in relation to the company concerned has expired.
(2) Where this section applies any amount that would, but for the foregoing payment, be payable to the creditor in respect of the debt under a compromise or scheme of arrangement that has taken effect under section 542(3) in relation to the company shall become and be payable to the third person upon and subject to the same terms and conditions as the compromise or scheme of arrangement provided that it was to be payable to the creditor.
Section 551
Saving for cases falling within section 520(4)(f) and cases where third person discharged or released from liability
551. Nothing in this Chapter shall affect the operation of—
(a) section 520(4)(f); or
(b) any rule of law whereby any act done by the creditor results in the third person being discharged or released from his or her obligation in respect of the liability.
CHAPTER 5
Conclusion of examinership
Section 552
Cessation of protection of company and termination of appointment of examiner
552. (1) Subject to the provisions of that section, the protection granted by virtue of section 520 to a company shall cease—
(a) on the coming into effect of a compromise or scheme of arrangement under this Part in relation to the company; or
(b) on such earlier date as the court may direct.
F364[(1A) Where the court is making an order in accordance with subsection (1)(b), it may take into account:
(a) that the protection granted by virtue of section 520 no longer fulfils the objective of supporting the negotiations on a scheme of arrangement;
(b) where the company or the examiner has requested that the protection granted by virtue of section 520 be ceased;
(c) one or more creditors or one or more classes of creditors are, or would be, unfairly prejudiced by the continuation of the protection granted by virtue of section 520;
(d) that the continuation of the protection granted by virtue of section 520 would likely give rise to the insolvency of a creditor of the company.]
(2) Where a company ceases to be under the protection of the court, the appointment of the examiner shall terminate on the date of such cessation.
Annotations
Amendments:
F364
Inserted (27.07.2022) by European Union (Preventive Restructuring) Regulations 2022 (S.I. No. 380 of 2022) reg. 19, subject to restriction on application in reg. 3.
Section 553
Revocation
553. (1) The company or any interested party may, within 180 days after the date of confirmation by the court, under section 541, of the proposals in relation to the company, apply to the court for revocation of that confirmation on the grounds that it was procured by fraud.
(2) On such an application, the court, if satisfied that that confirmation was procured by fraud, may revoke the confirmation on such terms and conditions, particularly with regard to the protection of the rights of parties acquiring interests or property in good faith and for value in reliance on that confirmation, as it deems fit.
(3) As soon as practicable after the revocation under this section of such a confirmation, a certified copy of the order made by the court shall be delivered to—
(a) the Registrar;
(b) if the company to which the order relates is a company referred to in section 510(2), (3) or (4) — the Central Bank;
(c) irrespective of whether it constitutes any of the foregoing kinds of company — the F365[Authority],
by such person as the court may direct.
Annotations
Amendments:
F365
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. no. 49, S.I. No. 335 of 2022.
Modifications (not altering text):
C160
Application of Part modified (1.01.2022) by Housing (Regulation of Approved Housing Bodies) Act 2019 (47/2019), s. 56(1), (2)(i), S.I. No. 728 of 2021.
Examinership: modification of Part 10 of Act of 2014 for purposes of application to AHBs
56. (1) For the purposes of the application of Part 10 of the Act of 2014 to a company that is an AHB, that Part shall apply to such a company subject to the modifications specified in subsection (2) and any other modifications necessary for those purposes.
(2) ...
(i) in section 553(3), the following paragraph is inserted after paragraph (b):
“(ba) if the company to which the order relates is a company referred to in section 510(6) - the Regulator;”
Section 554
Costs and remuneration of examiners
554. (1) The court may from time to time make such orders as it thinks proper for payment of the remuneration and costs of, and reasonable expenses properly incurred by, an examiner.
(2) Unless the court otherwise orders, the remuneration, costs and expenses of an examiner shall be paid and the examiner shall be entitled to be indemnified in respect thereof out of the revenue of the business of the company to which he or she has been appointed, or the proceeds of realisation of the assets (including investments).
(3) The remuneration, costs and expenses of an examiner which have been sanctioned by order of the court (other than the expenses referred to in subsection (4)) shall be paid in full and shall be paid before any other claim, secured or unsecured, under any compromise or scheme of arrangement or in any receivership or winding up of the company to which he or she has been appointed.
(4) Liabilities incurred by the company to which an examiner has been appointed that, by virtue of section 529, are treated as expenses properly incurred by the examiner shall be paid in full and shall be paid before any other claim (including a claim secured by a floating charge), but after any claim secured by a mortgage, charge, lien or other encumbrance of a fixed nature or a pledge, under any compromise or scheme of arrangement or in any receivership or winding up of the company.
(5) In subsections (3) and (4), references to a claim shall be deemed to include references to any payment in a winding up of the company in respect of the costs, charges and expenses of that winding up (including the remuneration of any liquidator).
(6) Subject to subsection (7), the functions of an examiner may be performed by him or her with the assistance of persons appointed or employed by him or her for that purpose.
(7) An examiner shall, in so far as is reasonably possible, make use of the services of the staff and facilities of the company to which the examiner has been appointed to assist the examiner in the performance of his or her functions.
(8) In considering any matter relating to the costs, expenses and remuneration of an examiner the court shall have particular regard to subsection (7).
Section 555
Publicity
555. (1) An examiner or, where appropriate, such other person as the court may direct, shall, within 14 days after the date of delivery to the Registrar of every order made under section 533, 541 or 553, cause to be published in the CRO Gazette notice of such delivery.
(2) Where a person fails to comply with this section, that person and, where that person is a company, the company and any officer of it who is in default, shall be guilty of a category 4 offence.
Section 556
Hearing of proceedings otherwise than in public
556. The whole or part of any proceedings under this Part may be heard otherwise than in public if the court, in the interests of justice, considers that the interests of the company concerned or of its creditors as a whole so require.
Section 557
Power of court to order the return of assets which have been improperly transferred
557. (1) Where, on the application of an examiner of a company that is under the protection of the court it can be shown to the satisfaction of the court that—
(a) any property of the company of any kind whatsoever was disposed of either by way of conveyance, transfer, mortgage, security, loan, or in any way whatsoever whether by act or omission, direct or indirect; and
(b) the effect of such disposal was to perpetrate a fraud on the company, its creditors or members,
the court may, if it deems it just and equitable to do so, make the following order.
(2) That order of the court is one requiring any person who appears to have the use, control or possession of such property or the proceeds of the sale or development of it to deliver it or pay a sum in respect of it to the examiner on such terms or conditions as the court sees fit.
(3) Subsection (1) shall not apply to any conveyance, mortgage, delivery of goods, payment, execution or other act relating to property made or done by or against a company to which section 604 applies.
(4) In deciding whether it is just and equitable to make an order under this section, the court shall have regard to the rights of persons who have bona fide and for value acquired an interest in the property the subject of the application.
Section 558
Reporting to Director of Corporate Enforcement of misconduct by examiners
558. (1) Where a disciplinary committee or tribunal (however called) of a prescribed professional body—
(a) finds that a member of that body who is conducting or has conducted an examinership has not maintained appropriate records in relation to that activity; or
(b) has reasonable grounds for believing that such a member has committed a category 1 or 2 offence during the course of conducting an examinership,
the professional body shall report the matter, giving details of the finding or, as the case may be, of the alleged offence, to the F366[Authority] forthwith.
(2) If a professional body fails to comply with this section, it, and any officer of the body to whom the failure is attributable, shall be guilty of a category 3 offence.
Annotations
Amendments:
F366
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. no. 50, S.I. No. 335 of 2022.
Editorial Notes:
E107
Power pursuant to section exercised (19.12.2018) by Companies Act 2014 (Prescribed Professional Bodies) Regulations 2018 (S.I. No. 570 of 2018).
PART 10A
RESCUE PROCESS FOR SMALL AND MICRO COMPANIES
CHAPTER 1
Interpretation]
Annotations
Amendments:
F367
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
Section 558A
F368[Interpretation (Part 10A)
558A. (1) In this Part—
"director" includes a shadow director;
"eligible company" means a company which qualifies as—
(a) a small company in accordance with section 280A, or
(b) a micro company in accordance with section 280D;
"excludable debt" has the meaning assigned to it by section 558L(4);
"interested party", in relation to an eligible company, means—
(a) a creditor of the eligible company, or
(b) a member of the eligible company;
"process adviser" means—
(a) except as specified in paragraphs (b) and (c), a process adviser appointed by the directors of an eligible company by resolution mentioned in section 558E or 558ZX,
(b) in Chapter 2 of this Part, a process adviser acting under that Chapter, and
(c) in sections 558ZP, 558ZQ and 558ZAI and Chapter 11 of this Part—
(i) except where the context otherwise requires, a process adviser acting under Chapter 2 of this Part, or
(ii) a process adviser appointed by the directors of an eligible company by resolution mentioned in section 558E or 558ZX;
"relevant court", in relation to an eligible company, means, subject to section 558ZAF, the court determined by the process adviser under section 558H;
"rescue period", in relation to an eligible company, means the period—
(a) beginning with the passing of the resolution mentioned in section 558E(2) appointing a process adviser in respect of the eligible company, and
(b) ending on—
(i) the date on which the appointment of the process adviser is terminated under section 558ZK, or
F369[(ii) where a person appointed as the process adviser of an eligible company ceases to act under paragraph (a), (b), (c) or (d) of section 558ZX(1) and the directors of the eligible company do not appoint another person to be a process adviser under that subsection, the date on which a notice delivered to the Registrar under paragraph (a) of section 558ZX(1A) is received by the Registrar;]
"rescue plan" has the meaning assigned to it by section 558B.
(2) For the purposes of sections 558Q, 558Y, 558Z and 558ZD, a member’s claim against an eligible company is impaired if—
(a) the nominal value of his or her shareholding in the eligible company is reduced,
(b) where the member is entitled to a fixed dividend in respect of his or her shareholding in the eligible company, the amount of that dividend is reduced,
(c) the member is deprived of all or any part of the rights accruing to him or her by virtue of his or her shareholding in the eligible company,
(d) the percentage of his or her interest in the total issued share capital of the eligible company is reduced, or
(e) the member is deprived of his or her shareholding in the eligible company.
(3) For the purposes of sections 558Q, 558Y, 558Z and 558ZD, a creditor’s claim against an eligible company is impaired if the creditor receives less in payment of his or her claim than the full amount due in respect of the claim at the date of passing of the resolution for the appointment of the process adviser.]
Annotations
Amendments:
F368
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
F369
Substituted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 31, S.I. No. 639 of 2024.
F371[CHAPTER 2
Introductory
Section 558B
Requirements where eligible company wishes to avail of rescue plan
558B. (1) This section applies where—
(a) the conditions specified in subsection (2) are met in relation to an eligible company, and
(b) the directors of the eligible company F370[wish it to avail] of a rescue plan.
(2) The conditions referred to in subsection (1) are—
(a) the eligible company is, or is likely to be, unable to pay its debts,
(b) no resolution subsists for the winding up of the eligible company,
(c) no order has been made for the winding up of the eligible company,
(d) the directors of the eligible company have not passed a resolution for the appointment of a process adviser in respect of the eligible company during the period of 5 years ending on the date on which it is proposed that F370[such a resolution be passed by the directors of] the eligible company,
(e) no examiner has been appointed to the eligible company during the period of 5 years referred to in paragraph (d).
(3) For the purposes of subsection (2)(a), an eligible company is unable to pay its debts if—
(a) it is unable to pay its debts as they fall due,
(b) the value of its assets is less than the amount of its liabilities, taking into account its contingent and prospective liabilities, or
(c) the circumstances set out in section 570(a), (b) or (c) are applicable to the eligible company.
(4) A director of the eligible company shall—
(a) make a full inquiry into the affairs of the eligible company,
(b) prepare in the prescribed form a statement specifying the information set out in subsection (5),
(c) by statutory declaration confirm that he or she has complied with paragraph (a), and
(d) submit the statement and the statutory declaration to a process adviser.
(5) The information referred to in subsection (4)(b) is—
(a) particulars of the eligible company’s assets, debts and liabilities,
(b) the names and addresses of the eligible company’s creditors,
(c) particulars of each security given by the eligible company, including the name of the secured creditor and the date on which it was given, and
(d) such further or other information as may be prescribed.
(6) Where any false or misleading statement has been included in the statement of affairs referred to in subsection (4), any director of the eligible company who is in default shall be guilty of a category 2 offence.
(7) In any proceedings against a person in respect of an offence under subsection (6), it shall be a defence to prove that, having exercised all reasonable skill and care, the defendant had reasonable grounds for believing and did, up to the time of the issue of the document concerned, believe that the statement concerned was true.
(8) In this section, "rescue plan" means a plan for an eligible company under this Part that is intended to secure the survival of the company, and the whole or any part of its undertaking, as a going concern.]
Annotations
Amendments:
F370
Substituted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 32(a), (b), S.I. No. 639 of 2024.
F371
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
Editorial Notes:
E108
Power pursuant to subs. (4)(b) exercised (8.12.2021) by Companies Act 2014 (Prescribed Form and Notice) Regulations 2021, S.I. No. 675 of 2021, in effect as per reg. 1(2).
Section 558C
F372[Process adviser to determine whether eligible company has reasonable prospect of survival
558C. (1) This section applies where a director of an eligible company submits a statement and a statutory declaration to a process adviser under section 558B(4).
(2) The process adviser shall determine whether there is a reasonable prospect of the survival of the eligible company, and the whole or any part of its undertaking, as a going concern.
(3) In making a determination under subsection (2), the process adviser shall have regard to—
(a) the statement, and
(b) such of the matters specified in subsection (4) as appear to the process adviser to be relevant in the circumstances.
(4) The matters referred to in subsection (3) are—
(a) the nature of, and prospects for, the business of the eligible company,
(b) the availability of funding for, and investment in, the eligible company in the future, including expressions of interest by external funders,
(c) the cost structure of the eligible company, including any cost reductions already achieved or that may be achieved,
(d) whether projections and business plans for the eligible company are based on objective and independent evidence,
(e) whether the eligible company can generate a sufficient return to remunerate investment and repay funding,
(f) the wider economic situation,
(g) the circumstances of the market in which the eligible company is operating, including the likely future prospects of the market,
F373[(h) the expertise, brand, social and cultural importance and historic success of the eligible company,]
(i) where the eligible company is part of a group of companies, the place of the company in the structure of the group and its prospects in that context,
(j) whether a secured creditor has expressed an interest in (or attempted to initiate) a trading receivership,
(k) such other matters as the process adviser considers relevant in the circumstances.
(5) The process adviser shall—
(a) hold a meeting with the directors of the eligible company for the purpose of informing the directors of the determination and the reasons for it, and
(b) give the directors of the eligible company confirmation in writing of the determination and the reasons for it.]
Annotations
Amendments:
F372
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
F373
Substituted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 33, S.I. No. 639 of 2024.
Section 558D
F374[Process adviser to prepare report
558D. (1) This section applies where the process adviser determines under section 558C that there is a reasonable prospect of the survival of the eligible company, and the whole or any part of its undertaking, as a going concern.
(2) The process adviser shall—
(a) prepare a report relating to the eligible company specifying the matters set out in subsection (3), and
(b) submit a copy of the report to the directors of the eligible company.
(3) The matters referred to in subsection (2)(a) are—
(a) that the company is an eligible company which meets the conditions in section 558B(2),
(b) the names and addresses of the officers of the eligible company,
(c) the names of any other bodies corporate of which the directors of the eligible company are also directors,
(d) a statement as to the affairs of the eligible company, showing—
(i) in so far as it is reasonably practicable to do so, particulars of the eligible company’s assets and liabilities (including contingent and prospective liabilities) as at the latest practicable date,
(ii) the names and addresses of its creditors,
(iii) the securities held by each of them, and
(iv) the dates when the securities were given to each of them,
(e) the process adviser’s opinion as to whether any deficiency between the assets and liabilities of the eligible company has been satisfactorily accounted for or, if not, as to whether there is evidence of a substantial dissipation of property that is not adequately accounted for,
(f) a statement of the conditions or other matters which the process adviser considers are essential to ensure that the eligible company, and the whole or any part of its undertaking, would have a reasonable prospect of survival as a going concern, whether as regards the internal management and controls of the company or otherwise,
(g) the process adviser’s opinion as to whether the preparation, approval and taking effect of a rescue plan would offer a reasonable prospect of the survival of the eligible company, and the whole or any part of its undertaking, as a going concern,
(h) the process adviser’s opinion as to whether an attempt to continue the whole or any part of the undertaking would be likely to be more advantageous to the members as a whole and the creditors as a whole than a winding up of the eligible company,
(i) recommendations as to the course the process adviser thinks should be taken and the matters the process adviser thinks should be taken into account in relation to the eligible company including, if warranted, a draft of a rescue plan,
(j) details of the extent of the funding required to enable the eligible company to continue trading during the rescue period and the sources of that funding,
(k) the process adviser’s recommendations as to which liabilities incurred before the appointment of a process adviser should be paid,
(l) information about how this Part operates and its general effect, including information about the process of appointing a process adviser and potential costs and fees,
(m) the process adviser’s recommendation as to which court should be the relevant court for the purposes of any proceedings under this Part relating to the eligible company,
(n) such other matters as the process adviser thinks relevant, and
(o) such other matters as may be prescribed.]
Annotations
Amendments:
F374
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
F375[CHAPTER 3
Appointment of process adviser
Section 558E
Resolution to appoint process adviser
558E. (1) This section applies where a process adviser submits a report under section 558D(2)(b) to the directors of an eligible company.
(2) The directors of the eligible company may call a meeting of its board of directors at which a resolution to appoint a process adviser in respect of the eligible company shall be proposed and considered.
(3) Any meeting called under subsection (2) shall be held before the expiry of the period of 7 days beginning on the date on which the directors of the eligible company receive the process adviser’s report.]
Annotations
Amendments:
F375
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
Section 558F
F376[Process adviser’s duty to keep determination under section 558C under review
558F. (1) This section applies where a process adviser is appointed in respect of an eligible company and is without prejudice to section 558S(2).
(2) The process adviser shall keep under review during the rescue period the determination made in relation to the eligible company under section 558C.
(3) If, at any time during the rescue period, the process adviser determines, having regard to the matters specified in subsection (4), that there is no longer a reasonable prospect of the survival of the eligible company, and the whole or any part of its undertaking, as a going concern, the process adviser shall immediately—
(a) give notice of the determination to the directors of the eligible company, and
(b) resign as process adviser in respect of the eligible company in accordance with section 558ZW.
(4) The matters referred to in subsection (3) are—
(a) any material change in the circumstances of the eligible company,
(b) the discovery of any material inaccuracy in the information provided to the process adviser that was relied upon for the determination under section 558C, or
(c) such other matter as the process adviser considers relevant.]
Annotations
Amendments:
F376
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
Section 558G
F377[Duties of directors of eligible company in relation to process adviser
558G.(1) This section applies where a process adviser is appointed in respect of an eligible company.
(2) Where the process adviser gives notice to the directors of the eligible company under section 558F, the directors shall, as soon as reasonably practicable after the notice is given, take such steps as they consider appropriate for the purpose of protecting the interests of employees of the company.
(3) During the rescue period, the directors of the eligible company shall—
(a) co-operate with the process adviser for any purpose relating to the performance by the process adviser of his or her functions under this Part, and
(b) without prejudice to any other requirement imposed on them by or under this Part, disclose to the process adviser any information relating to the performance of those functions that is available to them.]
Annotations
Amendments:
F377
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
Section 558H
F378[Process adviser’s duty to determine relevant court
558H. (1) This section applies where a process adviser is appointed in respect of an eligible company.
(2) The process adviser shall, having regard to the matters mentioned in subsection (3), determine whether any proceedings under this Part relating to the eligible company shall be brought in the Circuit Court or the High Court.
(3) The matters referred to in subsection (2) are—
(a) the need to minimise costs by refraining from bringing proceedings in the High Court unless there are good reasons for doing so,
(b) the need for an efficient and expeditious conclusion to any proceedings brought under this Part, and
(c) any other relevant matter.
(4) Before making a determination under subsection (2), the process adviser shall consult the directors of the eligible company.
(5) The jurisdiction of the Circuit Court under this Part in relation to an eligible company shall be exercisable by a judge of the Circuit Court—
(a) for the circuit in which the registered office of the eligible company is situated at the time of the appointment of the process adviser or in which it has, at that time, its principal place of business, or
(b) if, at that time, there is no registered office of the eligible company and its principal place of business is outside the State, for the Dublin Circuit.]
Annotations
Amendments:
F378
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
Section 558I
F379[Process adviser’s duty to seek provision of email addresses
558I. (1) This section applies where a process adviser is appointed in respect of an eligible company by virtue of the passing of a resolution referred to in section 558E(2).
(2) As soon as practicable after the appointment, the process adviser shall give to each person specified in F380[subsection (4)] a notice in writing—
(a) requesting that the person provide the process adviser with an email address that the process adviser may use for the purpose of giving the person any notices and other documents that the process adviser is required or authorised to give to the person under this Part, and
(b) informing each such person that, if no email address is provided, the process adviser shall give the person those notices and other documents by sending them by post in accordance with section 558ZAI.
(3) Notice under subsection (2) shall be given—
(a) where the process adviser is aware of the person’s email address, by electronic means to that email address, or
(b) in any other case, in accordance with section 558ZAI(4).
(4) The persons are—
(a) employees of the eligible company,
(b) members of the eligible company,
(c) creditors of the eligible company,
(d) the Revenue Commissioners, and
(e) such other persons as may be prescribed.
(5) The process adviser shall keep records and supporting evidence of the means by which notice is given under this section.]
Annotations
Amendments:
F379
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
F380
Substituted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 34, S.I. No. 639 of 2024.
Section 558J
F381[Process adviser to give notice of appointment
558J. (1) This section applies where a process adviser is appointed in respect of an eligible company by virtue of the passing of a resolution referred to in section 558E(2).
(2) The process adviser shall, as soon as practicable and in any event no later than 2 working days after the passing of the resolution—
(a) deliver to the Registrar a notice of his or her appointment in the prescribed form, and
(b) file with the office of the relevant court a copy of—
(i) the resolution,
(ii) the process adviser’s determination made under section 558C and his or her report prepared under section 558D, and
(iii) where a process adviser has determined under section 558H(2) that proceedings under this Part in relation to an eligible company should be brought in the High Court, the reasons for the determination,
and
(c) make arrangements for a notice of his or her appointment and the date of that appointment to be published in Iris Oifigiúil.
(3) The directors of the eligible company shall ensure that, within 48 hours after the passing of the resolution, a notice in the prescribed form stating that the process adviser has been appointed and the date of the appointment is placed on any website of the company in a prominent and easily accessible place.
(4) The directors of the eligible company shall ensure that the notice referred to in subsection (3) remains on the website during the rescue period.
(5) The process adviser shall keep records and supporting evidence of the means by which he or she has complied with the requirement imposed by subsection (2)(c).
(6) A person who fails to comply with a requirement imposed by this section shall be guilty of a category 3 offence.]
Annotations
Amendments:
F381
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
Editorial Notes:
E109
Power pursuant to subs. (2)(a), (3) exercised (8.12.2021) by Companies Act 2014 (Prescribed Form and Notice) Regulations 2021 (S.I. No. 675 of 2021, in effect as per reg. 1(2).
Section 558K
F382[Process adviser to give notice to employees, creditors, etc.
558K. (1) This section applies where a process adviser is appointed in respect of an eligible company by virtue of the passing of a resolution referred to in section 558E(2).
(2) The process adviser shall, as soon as practicable and in any event no later than 5 days after the passing of the resolution, give to the persons specified in subsection (3)—
(a) a notice in the prescribed form setting out—
(i) the fact of his or her appointment as process adviser and the date of the passing of the resolution in respect of same,
(ii) any payments that the process adviser considers are required to be made in order for the eligible company to continue trading,
(iii) the fact that any liabilities arising after the appointment of the process adviser that are properly incurred by the process adviser under this Part shall be paid in full, and
(iv) the determination made under section 558H(2) as to whether any proceedings shall be brought in the Circuit Court or the High Court, as the case may be,
(b) in a case where the person is a creditor of the eligible company, a notice requiring the person to provide the process adviser with information about the matters set out in subsection (4),
(c) in a case where the person is a party to a contract to which section 558P applies and the process adviser is considering repudiating the contract, a statement of that fact, and
(d) copies of—
(i) the determination made under section 558C and the report prepared under section 558D, and
(ii) such other documents as may be prescribed.
(3) The persons referred to in subsection (2) are—
(a) employees of the eligible company,
(b) creditors of the eligible company,
(c) the Revenue Commissioners, and
(d) such other persons as may be prescribed.
(4) The matters referred to in subsection (2)(b) are—
(a) the nature of the person’s claim,
(b) the nature of any evidence supporting the claim,
(c) any credit terms offered by the person to the eligible company,
(d) any security held by the person over any assets of the eligible company,
(e) any related party transactions with the eligible company,
(f) any other matter that the person considers to be relevant for the purposes of the preparation of a rescue plan in accordance with section 558Q, and
(g) such other matters as may be prescribed.
(5) The process adviser shall keep records and supporting evidence of the means by which notice is given under this section.
(6) A process adviser who fails to comply with any requirement imposed by this section shall be guilty of a category 3 offence.
(7) In this section, "related party transaction" means a transaction between an eligible company and its related party.]
Annotations
Amendments:
F382
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
F383
Substituted by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 35, not commenced as of date of revision.
Modifications (not altering text):
C161
Prospective affecting provision: subs. (2)(a)(iii) amended by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 35, not commenced as of date of revision.
(iii) the fact that any liabilities arising after the appointment of the process adviser that are F383[incurred by the eligible company] under this Part shall be paid in full, and
Editorial Notes:
E110
Power pursuant to subs. (2)(a) exercised (8.12.2021) by Companies Act 2014 (Prescribed Form and Notice) Regulations 2021 (S.I. No. 675 of 2021, in effect as per reg. 1(2).
Section 558L
F384[Notice to creditor where eligible company has excludable debt
558L. (1) This section applies where—
(a) a process adviser is appointed in respect of an eligible company by virtue of the passing of a resolution referred to in section 558E(2), and
(b) the eligible company has an excludable debt.
(2) As soon as practicable after the passing of the resolution, the process adviser shall give a notice to the creditor concerned requiring the creditor to inform the process adviser, within 14 days after the giving of the notice, if the creditor objects to the inclusion of the excludable debt in the rescue plan on any of the grounds specified in subsection (3).
(3) The grounds are—
(a) the eligible company has failed at any time to comply with a requirement relating to tax imposed by or under—
(i) this Act, or
(ii) any other enactment,
(b) the Revenue Commissioners are conducting an audit or intervention into the eligible company,
(c) the eligible company is a party to an appeal in relation to a requirement relating to tax imposed by this Act or any other enactment, or
(d) such other ground as may be prescribed.
(4) In this section, "excludable debt", in relation to an eligible company, means—
(a) any liability of the eligible company arising out of any tax, duty, levy or other charge of a similar nature owed or payable to the State,
(b) any debt or liability of the eligible company arising under the Redundancy Payments Acts 1967 to 2014,
(c) any debt or liability of the eligible company arising under the Protection of Employees (Employers’ Insolvency) Acts 1984 to 2020,
(d) any debt or liability of the eligible company arising under the Social Welfare Consolidation Act 2005, or
(e) any debt or liability of the eligible company arising under such other enactment as may be prescribed.]
Annotations
Amendments:
F384
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
Section 558M
F385[Relevant court’s powers where receiver or provisional liquidator previously appointed
558M. (1) This section applies where a process adviser is appointed in respect of an eligible company by virtue of the passing of a resolution referred to in section 558E(2).
(2) Subsection (3) applies where, at the date of the passing of the resolution—
(a) a receiver stands appointed to the whole or any part of the property or undertaking of the eligible company, but
(b) the receiver has not stood so appointed for a continuous period of 3 working days or more.
(3) On an application by the eligible company or the process adviser for direction as to the effect of the appointment of the process adviser on the appointment of the receiver, the relevant court (or, if the receiver was appointed by the High Court, the High Court only) may make such order as it thinks fit, including an order as to any or all of the following matters:
(a) that the receiver shall cease to act as such from a date specified by the relevant court;
(b) that the receiver shall, from a date specified by the relevant court, act as such only in respect of certain assets specified by the relevant court;
(c) directing the receiver to deliver all books, papers and other records, which relate to the property or undertaking of the eligible company (or any part of it) and are in his or her possession or control, to the process adviser within a period to be specified by the relevant court;
(d) directing the receiver to give the process adviser full particulars of all his or her dealings with the property or undertaking of the eligible company.
(4) The relevant court shall not make an order under subsection (3)(a) or (b) unless the relevant court is satisfied that there is a reasonable prospect of the survival of the eligible company, and the whole or any part of its undertaking, as a going concern.
(5) Where the relevant court makes an order under subsection (3), it may, for the purpose of giving full effect to the order, include such conditions in the order and make such ancillary or other orders as it deems fit.
(6) Subsection (7) applies where, at the date of the passing of the resolution, a provisional liquidator stands appointed to the eligible company.
(7) On an application by the eligible company or the process adviser for direction as to the effect of the appointment of the process adviser on the appointment of the provisional liquidator, the High Court may make such order as it thinks fit, including an order as to any or all of the following matters—
(a) that the provisional liquidator shall cease to act as such from a date specified by the High Court,
(b) directing the provisional liquidator to deliver all books, papers and other records, which relate to the property or undertaking of the eligible company (or any part of it) and are in his or her possession or control, to the process adviser within a period to be specified by the High Court,
(c) directing the provisional liquidator to give the process adviser full particulars of all his or her dealings with the property or undertaking of the eligible company.
(8) The High Court shall not make an order under subsection (7), unless the High Court is satisfied that there is a reasonable prospect of the survival of the eligible company, and the whole or any part of its undertaking, as a going concern.
(9) Where the High Court makes an order under subsection (7), it may, for the purpose of giving full effect to the order, include such conditions in the order and make such ancillary or other orders as it deems fit.
(10) An application under this section shall be made on notice to the creditors of the eligible company.
(11) Where the receiver was appointed by the High Court, references in subsections (3) to (5) to the relevant court shall be construed as references to the High Court.]
Annotations
Amendments:
F385
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
Section 558N
F386[Relevant court’s power to stay proceedings or restrain further proceedings
558N. (1) This section applies where a process adviser is appointed in respect of an eligible company.
(2) Where the relevant court is satisfied that, having regard to the report prepared under section 558D and such other matters as it sees fit, there is a reasonable prospect of the survival of the eligible company, and the whole or any part of its undertaking, as a going concern, it may, on the application of any of the persons specified in subsection (3)—
(a) stay all proceedings or restrain any further proceedings against the eligible company for the relevant period on such terms as seem just, or
(b) order that the provisions set out in subsection (4), or such other provision as the relevant court may specify, shall have effect in relation to the eligible company for the relevant period.
(3) The persons referred to in subsection (2) are—
(a) the eligible company,
(b) the directors of the eligible company, and
(c) the process adviser.
(4) The provisions referred to in subsection (2)(b) are as follows, namely:
(a) no proceedings for the winding up of the eligible company may be commenced or resolution for winding up passed in relation to the company and any resolution so passed shall have no effect;
(b) no receiver over any part of the property or undertaking of the eligible company shall be appointed or, if a receiver has been so appointed before the appointment of the process adviser in respect of the company, the receiver shall, subject to any order under section 558M, cease to act;
(c) no attachment, sequestration, distress or execution shall be put into force against the property or effects of the eligible company, except with the consent of the process adviser;
(d) where any claim against the eligible company is secured by a mortgage, charge, lien or other encumbrance or a pledge of, on or affecting the whole or any part of the property, effects or income of the company, no action may be taken to realise the whole or any part of that security, except with the consent of the process adviser;
(e) no steps may be taken to repossess goods in the eligible company’s possession under any hire-purchase agreement (within the meaning of section 558ZV), except with the consent of the process adviser;
(f) where, by or under any enactment, rule of law or otherwise, any person other than the eligible company is liable to pay all or any part of the debts of the company—
(i) no attachment, sequestration, distress or execution shall be put into force against the property or effects of such person in respect of the debts of the eligible company, and
(ii) no proceedings of any sort may be commenced against such person in respect of the debts of the eligible company;
(g) no order for relief shall be made under section 212 against the eligible company in respect of complaints as to the conduct of the affairs of the company or the exercise of the powers of the directors—
(i) prior to the passing of the resolution appointing the process adviser in respect of the eligible company, or
(ii) on or after the passing of such resolution;
(h) no proceedings for the appointment of an examiner to the eligible company may be brought.
(5) An application under subsection (2) shall be made on notice to all interested parties and other persons directly affected.
(6) The relevant court shall not stay or restrain proceedings or make an order under subsection (2) without having afforded each creditor of the eligible company who has indicated to the court his or her desire to be heard in the matter an opportunity to be so heard.
(7) In this section, "relevant period", in relation to an eligible company, means—
(a) the rescue period, or
(b) such other period as the relevant court sees fit.]
Annotations
Amendments:
F386
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
Section 558O
F387[Require-ments following giving of notice to creditor under section 558K
558O. (1) This section applies where the process adviser appointed in respect of an eligible company gives a creditor of the company a notice under section 558K(2)(b).
(2) Where the creditor receives the notice, he or she shall—
(a) within 7 days of receipt of the notice, acknowledge receipt of such notice in writing, and
(b) within 14 days of receipt of the notice, provide the process adviser with the information required by the notice.
(3) Where a creditor fails to comply with subsection (2)(a), the process adviser shall give a notice (a "reminder notice") to the creditor requiring the creditor, within 72 hours of receipt of the reminder notice, to acknowledge receipt of the notice given under section 558K(2)(b).
(4) Where a creditor fails to comply with a reminder notice, the creditor shall be deemed to have received the notice given under section 558K(2)(b).
(5) Where a creditor fails to comply with subsection (2)(b), the process adviser shall—
(a) estimate the value of the creditor’s claim (any such value being referred to in this subsection as "the estimated value"), and
(b) give a notice to the creditor—
(i) specifying the estimated value, and
(ii) informing the creditor that, unless the creditor supplies the process adviser with the information required by the notice under subsection (2)(b) within 72 hours after the giving of the notice under this subsection, the estimated value may be used by the process adviser for the purposes of preparing a rescue plan under section 558Q.
(6) In estimating the value of a claim under subsection (5)(a), the process adviser shall take into account any information relating to the claim contained in the books and documents of the eligible company that are available to him or her.
(7) The process adviser shall keep records and supporting evidence of the means by which a reminder notice was given.
(8) A person who fails to comply with subsection (3) or (7) shall be guilty of a category 3 offence.]
Annotations
Amendments:
F387
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
Section 558P
F388[Repudiation, affirmation and variation of certain contracts
558P. (1) This section applies where—
(a) a process adviser is appointed in respect of an eligible company, and
(b) the eligible company is a party to a contract (a "relevant contract") under which some element of performance other than payment remains to be rendered both by the company and the other contracting party or parties (such party or parties being referred to in this section as the "relevant person").
(2) The process adviser shall consider, having regard in particular to the matters specified in subsection (3), whether it is necessary for the survival of the eligible company, and the whole or any part of its undertaking, as a going concern, that the relevant contract be repudiated.
(3) The matters referred to in subsection (2) are as follows, namely:
(a) whether repudiation of the relevant contract would be likely to be more advantageous for the relevant person than a winding up of the eligible company or receivership;
(b) whether, if not repudiated, the relevant contract would be burdensome to, and surplus to the requirements of, the eligible company;
(c) whether the process adviser would be able to prepare a rescue plan if the contract were not repudiated.
(4) Where, having complied with subsection (2), the process adviser proposes to repudiate the relevant contract, the process adviser shall—
(a) subject to the approval of the relevant court, repudiate the relevant contract, or
(b) subject to subsection (11), where the process adviser considers that it would be appropriate to do so in all the circumstances, comply with subsections (7) to (10) instead of applying to the relevant court under subsection (5) in pursuance of paragraph (a).
(5) On the application of the process adviser in pursuance of subsection (4)(a), the relevant court—
(a) may, if satisfied that the condition in subsection (6) is met—
(i) approve the repudiation of the relevant contract with effect from the day on which the rescue plan takes effect under section 558ZB or 558ZE, as the case may be, and
(ii) determine the amount of any loss or damage suffered by the relevant person as a result of the repudiation, or
(b) shall, if not so satisfied, dismiss the application.
(6) The condition referred to in subsection (5) is that it is necessary for the survival of the eligible company, and the whole or any part of its undertaking, as a going concern, that the relevant contract be repudiated.
(7) In any case where subsection (4)(b) applies, the process adviser shall give a notice to the relevant person—
(a) informing the relevant person that the process adviser proposes to repudiate the relevant contract,
(b) setting out the reasons why the process adviser considers that it is necessary for the survival of the eligible company, and the whole or any part of its undertaking, as a going concern that the relevant contract be repudiated,
(c) informing the relevant person that, in the event of repudiation of the relevant contract, the relevant person would stand as an unsecured creditor for the amount of loss or damage suffered by the relevant person as a result of the repudiation,
(d) specifying the terms on which the process adviser proposes to repudiate the contract (including the amount of any loss or damage suffered by the relevant person as a result of the repudiation, as determined by the process adviser),
(e) informing the relevant person that the relevant person has a right to participate in any meeting held under section 558T,
(f) informing the relevant person that, in the event that a rescue plan including provision for the repudiation of the relevant contract is approved at such a meeting, the relevant person would have a right under section 558ZC (subject to any application to the relevant court under subsection (5)) to object to—
(i) the repudiation, and
(ii) the amount determined in respect of any loss or damage,
(g) offering the relevant person an opportunity to propose to the process adviser—
(i) modifications of the terms on which the relevant contract would be repudiated, or
(ii) a variation of the terms of the relevant contract in order to avoid the repudiation of the relevant contract,
(h) in any case where the process adviser considers it appropriate to do so, offering the relevant person a variation of the terms of the relevant contract in order to avoid repudiation of the relevant contract,
(i) informing the relevant person that—
(i) the repudiation of the relevant contract, or
(ii) any variation of the terms of the relevant contract agreed by the process adviser and the relevant person in pursuance of paragraph (h), would take effect on the coming into effect of the rescue plan in accordance with this Part, and
(j) requesting that the relevant person respond to the notice within a reasonable period (being, except where a shorter period is agreed, at least 10 days after the date on which notice is given) after the giving of the notice.
(8) Where—
(a) the relevant person proposes any modifications under subsection (7)(g), the process adviser shall consider the modifications and may—
(i) include in the rescue plan provision repudiating the relevant contract on the terms agreed between the process adviser and the relevant person, or
(ii) reject the modifications proposed by the relevant person and give the relevant person a notice under subsection (9),
(b) the process adviser and the relevant person agree on a variation of the terms of the relevant contract, include in the rescue plan provision affirming the relevant contract subject to that variation, or
(c) the relevant person—
(i) objects to the proposed repudiation of the contract and does not offer any modifications, or
(ii) fails to respond to the notice given under subsection (7) within the period specified in it,
the process adviser shall give the relevant person a notice under subsection (9).
(9) Where the process adviser considers that the relevant contract should be repudiated, the process adviser shall give a notice to the relevant person—
(a) informing the relevant person that the process adviser shall include in the rescue plan provision repudiating the relevant contract,
(b) informing the relevant person that the repudiation will take effect on the date (if any) on which the rescue plan takes effect in accordance with the provisions of this Part,
(c) specifying the amount determined by the process adviser in respect of loss or damage arising from such repudiation,
(d) informing the relevant person that the relevant person has a right to participate in any meeting held under section 558T, and
(e) informing the relevant person that, in the event that a rescue plan including provision for the repudiation of the relevant contract is approved at such a meeting, the relevant person has a right under section 558ZC to object to—
(i) the repudiation of the relevant contract, and
(ii) the amount determined in respect of loss or damage.
(10) Where the relevant contract is a lease, the process adviser shall assess loss or damage for the purposes of any calculation under subsection (7)(d) or (9)(c) by reference to the following—
(a) income shortfall,
(b) letting void,
(c) letting rent-free,
(d) reletting costs,
(e) marketing costs, and
(f) any other losses or costs that may arise.
(11) In any case where the process adviser is complying with the requirement imposed by subsection (4)(b), the process adviser may at any time cease complying with that subsection (and subsections (7) to (10)) and comply instead with the requirement imposed by subsection (4)(a).
(12) Where by virtue of subsection (4) the relevant contract is repudiated, the relevant person shall stand as an unsecured creditor for the amount of loss or damage suffered as a result of the repudiation.
(13) Any amount payable by the eligible company to the relevant person in respect of any loss or damage suffered by the relevant person as a result of the repudiation of a relevant contract which is—
(a) determined by the relevant court under subsection (5)(a)(ii), or
(b) included in the rescue plan by virtue of this section,
shall be due by the eligible company to the relevant person as a judgment debt.
(14) The relevant person has a right to participate in any meeting held under section 558T notwithstanding any approval given by the relevant court under subsection (5)(a).
(15) Where the process adviser wishes to affirm the relevant contract (other than under subsection (8)(b))—
(a) he or she shall apply to the relevant court, and
(b) the relevant court may approve the affirmation by the process adviser of the relevant contract.
(16) Where the relevant court approves the repudiation or affirmation of a relevant contract under subsection (5) or (15) or by virtue of section 558ZD(11), it may, in giving such approval, make such orders as it thinks fit for the purposes of giving full effect to its approval, including orders as to notice to, or declaring the rights of, any party affected by such affirmation or repudiation.
(17) For the avoidance of doubt, a process adviser shall have authority on behalf of the eligible company to repudiate or affirm (with or without variation) a relevant contract in pursuance of the provisions of this section.]
Annotations
Amendments:
F388
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
F389[CHAPTER 4
Rescue plan
Section 558Q
Process adviser’s duty to prepare rescue plan
558Q. (1) This section applies where a process adviser is appointed in respect of an eligible company by virtue of the passing of a resolution referred to in section 558E(2).
(2) As soon as practicable after the passing of the resolution, the process adviser shall prepare a rescue plan for the eligible company.
(3) In preparing the rescue plan, the process adviser shall take account of—
(a) any information provided by creditors by virtue of section 558K(2)(b) or 558O(2)(b), and
(b) where no such information is provided, any values of claims that the process adviser has estimated under section 558O(5).
(4) Where—
(a) the process adviser has given a notice to a creditor under section 558L in respect of an excludable debt, and
(b) the creditor concerned has not informed the process adviser of an objection within the time specified in the notice,
the process adviser shall include the excludable debt in the rescue plan.
(5) Where the process adviser has given a notice to a person under section 558P(9) in respect of a contract, the process adviser shall include in the rescue plan provision repudiating the contract unless it appears to the process adviser that circumstances have changed since the notice was given and it would no longer be appropriate to do so.
(6) The rescue plan shall—
(a) specify each class of members and creditors of the eligible company,
(b) specify any class of members and creditors whose interests or claims will not be impaired by the rescue plan,
(c) specify any class of members and creditors whose interests or claims will be impaired by the rescue plan,
(d) provide equal treatment for each claim or interest of a particular class unless the holder of a particular claim or interest agrees to less favourable treatment,
(e) if the process adviser considers it necessary or desirable to do so in order to facilitate the survival of the eligible company, and the whole or any part of its undertaking, as a going concern, specify any changes that should be made in relation to the management or direction of the company,
(f) if the process adviser considers it necessary or desirable to do so in order to facilitate such survival, specify any changes that he or she considers should be made in the constitution of the eligible company, whether as regards the management or direction of the company or otherwise,
(g) provide for its implementation (including any changes specified under paragraphs (e) and (f)) and the time within which it is to be implemented, and
(h) include such other matters as the process adviser deems appropriate.
(7) A director who fails, without lawful excuse, to implement any provision of the rescue plan which takes effect and which imposes a requirement on the directors of the eligible company within the time for implementing the rescue plan specified under subsection (6)(g) shall be guilty of a category 3 offence.]
Annotations
Amendments:
F389
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
Section 558R
F390[Further provision with respect to leases
558R. (1) Subject to F391[subsection (2)], a rescue plan for an eligible company shall not contain provision that provides for either or both of the following—
(a) a reduction in the amount of any rent or other periodical payment reserved under a lease of land that falls to be paid after the date from which the rescue plan would come into effect under section 558ZB or 558ZE, as the case may be, or the complete extinguishment of the right of the lessor to any such payments;
(b) as respects a failure—
(i) to pay an amount of rent or make any periodical payment reserved under a lease of land, or
(ii) to comply with any other covenant or obligation of such a lease, that falls to be paid or complied with after the date referred to in paragraph (a), a requirement that the lessor under such a lease shall not exercise, or shall only exercise in specified circumstances, any right, whether under the lease or otherwise, to—
(I) recover possession of the land concerned;
(II) effect a forfeiture of the lease or otherwise enter on the land;
(III) recover the amount of such rent or other payment; or
(IV) claim damages or other relief in respect of the failure to comply with such a covenant or obligation.
(2) Subsection (1) shall not apply if the lessor or owner of the property concerned has consented in writing in the prescribed form to the inclusion of the provision referred to in subsection (1) in the rescue plan.]
Annotations
Amendments:
F390
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
F391
Substituted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 36, S.I. No. 639 of 2024.
Section 558S
F392[Procedure where process adviser unable to prepare rescue plan
558S. (1) This section applies where the process adviser appointed in respect of an eligible company is unable to prepare a rescue plan for the company.
(2) As soon as practicable after the process adviser becomes aware of that fact, the process adviser shall—
(a) prepare a report setting out the matters specified in subsection (3),
(b) give a copy of the report to the directors of the eligible company, and
(c) give notice of that fact to—
(i) employees of the eligible company,
(ii) members of the eligible company,
(iii) creditors, and
(iv) the Revenue Commissioners.
(3) The matters referred to in subsection (2)(a) are—
(a) the reasons why a rescue plan could not be prepared for the eligible company, and
(b) recommendations as to the next steps to be taken by the directors of the eligible company (including the winding up of the company).
(4) The recommendations of the process adviser referred to in subsection (3)(b) shall not be binding on the eligible company or the directors of the company.
(5) Notwithstanding subsection (4), where—
(a) the process adviser recommends that the eligible company be wound up,
(b) the directors of the eligible company decide that the company should continue to trade,
(c) the eligible company continues to trade in pursuance of that decision, and
(d) within 6 months of that decision the eligible company is wound up,
the court may take that decision into account for the purposes of any application under section 610.]
Annotations
Amendments:
F392
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
F393[CHAPTER 5
Consideration of rescue plan
Section 558T
Process adviser’s duty to call meeting of members and creditors
558T. (1) This section applies where a process adviser has prepared a rescue plan under section 558Q.
(2) As soon as practicable after preparing the rescue plan, the process adviser shall call—
(a) the appropriate meetings of the creditors or the class concerned of them, and
(b) the appropriate meetings of the members or the class concerned of them,
for the purpose of considering the rescue plan.
(3) References in subsection (2) to the appropriate meetings of creditors or members as the case may be, are references to either—
(a) separate meetings of the particular creditors or members (as appropriate) who fall into the separate classes that, under the general law, are required to be constituted for the purpose of voting on the rescue plan, or
(b) where, under the general law, no such separate classes are required to be constituted for that purpose, a single meeting of the creditors or members (as appropriate).
(4) A meeting under this section shall be fixed for a date no later than 49 days after the date on which the process adviser is appointed.
(5) A meeting under this section shall be held at such place as is, in the opinion of the process adviser, the most convenient for the majority of the members or creditors or all, as the case may be.
(6) Different times or places may be named for the meetings of members and for those of creditors.
(7) Where an excludable debt is included in the rescue plan, the creditor concerned shall be entitled to vote at any meeting called under this section.]
Annotations
Amendments:
F393
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
Section 558U
F394[Notice of meeting under section 558T
558U. (1) This section applies where a process adviser calls a meeting under section 558T.
(2) The process adviser shall, at least 7 days before the day appointed for the meeting, give notice in writing in the prescribed form to every person entitled to attend the meeting of the time and place appointed for the meeting.
(3) Notice under this section shall be accompanied by—
(a) the rescue plan prepared under section 558Q,
(b) a statement of the assets and liabilities (including contingent and prospective liabilities) of the eligible company as at the date on which the rescue plan was prepared under that section,
(c) a description of the likely financial outcome of a winding up of the eligible company or of the application of a receivership to that company for each class of members and creditors,
(d) a statement by the process adviser explaining—
(i) the effect of the rescue plan,
(ii) the reasons why it is fair and equitable and not unfairly prejudicial,
(iii) the likely consequences of a failure to approve the rescue plan (including winding up or receivership), and
(iv) where appropriate, the process adviser’s views on the likely outcome for creditors if the eligible company were to be wound up,
(e) information about any changes in the management or direction of the eligible company that are specified in the rescue plan,
(f) a statement outlining any material interests of the directors of the eligible company and the effect of the rescue plan to the extent it is different to like interests of other persons,
(g) information about the procedure for agreeing to, proposing modifications to or objecting to the rescue plan at the meeting,
(h) a general and a special form of proxy (with neither the name nor description of the process adviser or any other person printed or inserted in the body of any such instrument of proxy),
(i) a statement setting out—
(i) the remuneration payable to, and the costs and expenses incurred by, the Chapter 2 process adviser under this Part, and
(ii) the remuneration payable to, and the costs and expenses incurred by, the process adviser appointed in respect of the eligible company by virtue of the passing of a resolution mentioned in section 558E(2) under this Part during the relevant period,
(j) an estimate of the additional remuneration that would be payable to, and the costs and expenses that would be incurred by, the process adviser under this Part if the rescue plan were to be approved pursuant to section 558ZB,
(k) an estimate of the additional remuneration that would be payable to, and the costs and expenses that would be incurred by, the process adviser under this Part if the rescue plan were not to be approved pursuant to section 558ZB, and
(l) such other documents and information as may be prescribed.
(4) The process adviser shall keep records and supporting evidence of the means by which notice is given to persons under this section.
(5) The proceedings at the meeting shall, unless the relevant court otherwise orders, be valid notwithstanding the fact that any member or creditor fails to receive notice of the meeting for any reason, unless the relevant court considers that the member or creditor has been materially prejudiced by that failure.
(6) In this section—
"Chapter 2 process adviser", in relation to an eligible company, means the person who performed the duties imposed on a process adviser by Chapter 2 of this Part in respect of the company;
"relevant period", in relation to a process adviser, appointed in respect of an eligible company by virtue of the passing of a resolution mentioned in section 558E(2), means the period—
(a) beginning with the date of the passing of the resolution, and
(b) ending on the date on which the rescue plan is prepared under section 558Q.
(7) A person who fails to comply with this section shall be guilty of a category 3 offence.]
Annotations
Amendments:
F394
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
Editorial Notes:
E111
Power pursuant to subs. (2) exercised (8.12.2021) by Companies Act 2014 (Prescribed Form and Notice) Regulations 2021 (S.I. No. 675 of 2021, in effect as per reg. 1(2).
Section 558V
F395[Proceedings at meeting under section 558T
558V. (1) This section applies in relation to a meeting called by the process adviser under section 558T.
(2) The process adviser or, if the process adviser is unable to act, someone nominated by him or her shall be chairperson.
(3) The chairperson may, with the consent of the meeting, adjourn it from time to time and from place to place but the adjourned meeting shall be held at the same place as the original meeting unless in the resolution for adjournment another place is specified.
(4) The chairperson of the meeting shall cause—
(a) minutes of the proceedings at the meeting to be drawn up and entered in a book kept for that purpose and signed by him or her, and
(b) a list of members or creditors present at the meeting to be made and kept in such form as may be prescribed and such list shall be signed by him or her.
(5) Other than on the matter of an adjournment, a meeting may not act for any purpose, unless there are present or represented at the meeting—
(a) where only one meeting of members and one meeting of creditors requires to be held by virtue of section 558T—
(i) at least 2 members, and
(ii) at least 3 creditors entitled to vote or all the creditors entitled to vote if the number entitled to vote shall not exceed 3,
or
(b) where separate meetings require to be held by virtue of that section in respect of members and creditors (or any class of members or creditors)—
(i) in the case of a meeting of members, at least 2 members, or
(ii) in the case of a creditors’ meeting, at least 3 creditors entitled to vote or all the creditors entitled to vote if the number entitled to vote shall not exceed 3.
(6) If within 30 minutes from the time appointed for the meeting a quorum of members or creditors, as the case may be, is not present or represented, the meeting shall be adjourned to the same day in the following week at the same time and place or to such other day or time or place as the chairperson may appoint.
(7) However, the day so appointed by the chairperson shall be not less than 4 nor more than 10 days after the day from which the meeting was adjourned.
(8) A person who fails to comply with subsection (4)(a) or (b) shall be guilty of a category 3 offence.]
Annotations
Amendments:
F395
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
Section 558W
F396[Proxies
558W. (1) This section applies where the process adviser appointed in respect of an eligible company calls a meeting of the members and creditors of the company under section 558T.
(2) A member or creditor of the eligible company may vote either in person or by proxy.
(3) An instrument of proxy shall be in the prescribed form.
(4) A member or a creditor may appoint any person a special proxy to vote at the meeting or any adjournment thereof.
(5) Subject to section 558X(2) a member or a creditor may appoint any person a general proxy.
(6) A member or a creditor may appoint the process adviser to act as his or her general or special proxy.]
Annotations
Amendments:
F396
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
Editorial Notes:
E112
Power pursuant to subs. (3) exercised (8.12.2021) by Companies Act 2014 (Prescribed Form and Notice) Regulations 2021 (S.I. No. 675 of 2021), in effect as per reg. 1(2).
Section 558X
F397[Supplemen-tal provisions in relation to section 558W
558X. (1) Every instrument of proxy shall be lodged with the process adviser not later than four o’clock in the afternoon of the day before the meeting or adjourned meeting at which it is to be used.
(2) No person who is a minor shall be appointed a general or special proxy.
(3) In the case of a creditor or member who is incapable of writing because of blindness or other physical infirmity, an instrument of proxy of that creditor or member may, subject to subsection (4), be accepted if that creditor or member has attached his or her signature or mark to the proxy in the presence of a witness and that witness has added to the signature of that creditor or member the witness’s description and residence.
(4) Subsection (3) applies only if—
(a) all insertions in the instrument of proxy are in the handwriting of the witness, and
(b) the witness has certified, at the foot of the instrument of proxy, that all such insertions have been made by the witness at the request and in the presence of the creditor before the creditor attached his or her signature or mark or, as the case may be, the member before the member attached his or her signature or mark.
(5) Where a company is a creditor, any person who is duly authorised under the seal of that company to act generally on behalf of that company at meetings of members and creditors may fill in and sign the instrument of proxy on that company’s behalf and appoint himself or herself to be that company’s proxy.
(6) The instrument of proxy so filled in and signed by such person shall be received and dealt with as a proxy of that company but this is without prejudice to section 558ZAG.]
Annotations
Amendments:
F397
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
Section 558Y
F398[Consideration by members and creditors of rescue plan
558Y. (1) This section applies to a meeting of members or creditors or any class of members or creditors called to consider a rescue plan for an eligible company in respect of which a process adviser has been appointed.
(2) Save where expressly provided otherwise in this section, this section shall not authorise, at such meeting, anything to be done in relation to such rescue plan by any member or creditor.
(3) At a meeting to which this section applies a modification of the rescue plan may be put to the meeting but may be accepted only with the consent of the process adviser.
(4) A rescue plan shall be deemed to have been accepted by a meeting of members or creditors or of a class of members or creditors when 60 per cent in number representing a majority in value of the claims represented at that meeting have voted, either in person or by proxy, in favour of the resolution for the rescue plan.
(5) Subject to section 558Z, a rescue plan shall be binding on—
(a) all the members or class or classes of members, as the case may be, affected by the rescue plan,
(b) all the creditors or the class or classes of creditors, as the case may be, affected by the rescue plan,
(c) the eligible company concerned, and
(d) the directors of the eligible company,
F399[where] it is accepted by at least one class of creditors whose interests or claims would be impaired by implementation of the rescue plan and 21 days pass from the date of filing of the notice of approval with the office of the relevant court under section 558Z(6), and no objection is filed in accordance with section 558ZC.
(6) Nothing in subsection (4) shall, in the case of a member or creditor who abstains from voting, or otherwise fails to cast a vote, in respect of the rescue plan, be read as permitting such an abstention or failure to be regarded as a casting by that person of a vote against the rescue plan.
(7) Where a State authority is a creditor of the eligible company, such authority shall be entitled to accept a rescue plan under this section notwithstanding—
(a) that any claim of such authority as a creditor would be impaired under the rescue plan, or
(b) any other enactment.
(8) In subsection (7) "State authority" means the State, a Minister of the Government, a local authority or the Revenue Commissioners.
(9) Section 192 shall apply to any resolution to which subsection (4) relates which is passed at any adjourned meeting.]
Annotations
Amendments:
F398
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
F399
Substituted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 37, S.I. No. 639 of 2024.
Section 558Z
F400[Notification of approval of rescue plan
558Z. (1) This section applies where a rescue plan for an eligible company is approved in accordance with section 558Y.
(2) The process adviser shall, within 48 hours after the approval of the rescue plan, give notice of the approval in the prescribed form to the persons specified in subsection (3).
(3) The persons referred to in subsection (2) are—
(a) employees of the eligible company,
(b) the Revenue Commissioners,
(c) any creditor or member whose claim or interest would be impaired if the rescue plan were implemented, and
(d) such other persons as may be prescribed.
(4) Every notice given to persons referred to in subsection (3) shall be accompanied by the following documents—
(a) a copy of the rescue plan as approved under section 558Y,
(b) a statement by the process adviser explaining—
(i) the effect of the rescue plan,
(ii) the reasons why it is fair and equitable and not unfairly prejudicial, and
(iii) the likely consequences of any failure to implement the rescue plan (including winding up or receivership),
(c) a statement outlining any material interests of the directors of the eligible company and the effect of the rescue plan to the extent it is different to like interests of other persons,
(d) information in relation to the procedure for filing an objection to the approved rescue plan pursuant to section 558ZC, including:
(i) the identification of the relevant court office in which an objection should be filed,
(ii) a statement that an objector has 21 days to file an objection from the date notice of approval is filed with the relevant court office and providing the date on which notice of approval was filed,
(iii) a statement that if no objection is filed within the 21 day period, the rescue plan will become binding,
(iv) a statement that the person may only make submissions on any objection validly filed unless that objection is upheld, and
(v) a statement that a person may make submissions more generally only where the relevant court upholds an objection and seeks to modify the rescue plan,
(e) a copy of the prescribed form for making an objection, and
(f) any such further information as may be prescribed.
(5) The process adviser shall, within 48 hours after the approval of the rescue plan, deliver notice of the approval of the rescue plan to the Registrar.
(6) The process adviser shall, within 48 hours after the approval of the rescue plan, file notice of the approval of the rescue plan with the office of the relevant court.
(7) The process adviser shall keep records and supporting evidence of the means by which notice is given under this section.
(8) If default is made in complying with this section, the process adviser shall be guilty of a category 3 offence.
(9) Any bona fide error made by the process adviser in complying with the requirements of this section shall not of itself invalidate any approval or any steps taken pursuant to such an approval.]
Annotations
Amendments:
F400
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
F401
Substituted by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 38(a), (b), not commenced as of date of revision.
Modifications (not altering text):
C162
Prospective affecting provision: subss. (5), (6) amended by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 38(a), (b), not commenced as of date of revision.
(5) The process adviser shall, within 48 hours after the approval of the rescue plan, F401[deliver notice in the prescribed form] of the approval of the rescue plan to the Registrar.
(6) The process adviser shall, within 48 hours after the approval of the rescue plan, F401[file notice in the prescribed form] of the approval of the rescue plan with the office of the relevant court.
Editorial Notes:
E113
Power pursuant to subs. (2) exercised (8.12.2021) by Companies Act 2014 (Prescribed Form and Notice) Regulations 2021 (S.I. No. 675 of 2021, in effect as per reg. 1(2).
Section 558ZA
F402[Process adviser’s report
558ZA. (1) This section applies where the meeting or meetings required to be held under section 558T (the "required meetings") has, or have, taken place.
(2) The process adviser shall, within 49 days of his or her appointment, prepare a report setting out—
(a) the rescue plan that was considered at the required meetings,
(b) any modification of that plan that was agreed to at the required meetings,
(c) the outcome of the required meetings,
(d) a statement of the assets and liabilities (including contingent and prospective liabilities) of the eligible company as at the date of the report,
(e) a list of the creditors of the eligible company, the amount owing to each such creditor, the nature and value of any security held by any such creditor, and the priority accorded under sections 621 and 622 to any such creditor or any other statutory provision or rule of law,
(f) a list of the officers of the eligible company,
(g) the process adviser’s recommendations,
(h) the remuneration payable to, and the costs and expenses incurred by, the process adviser under this Part as at the date of the report, and
(i) such other matters as the process adviser deems appropriate.
(3) The process adviser shall give a copy of the report to—
(a) the eligible company concerned,
(b) employees of the eligible company,
F403[(c) the Authority]
(d) the office of the relevant court, and
(e) any interested party who, by written application to the process adviser, requests a copy of the report.
(4) The process adviser shall comply with the requirements imposed by subsection (3)(a) and (b) within 49 days of his or her appointment.
(5) If the relevant court, on an application to it in that behalf, so directs, there may be omitted from any copy of the report given under subsection (3)(e) to an interested party such parts of it as are specified in the direction of the relevant court.
(6) The relevant court may, in particular, on such an application, direct that there may be omitted from a copy of the report given under subsection (3)(e) any information the inclusion of which in such a copy would be likely to prejudice the survival of the eligible company, or the whole or any part of its undertaking, as a going concern.]
Annotations
Amendments:
F402
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
F403
Substituted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 39, S.I. No. 639 of 2024.
F404[CHAPTER 6
Objections to rescue plan
Section 558ZB
Confirmation of rescue plan
558ZB. (1) Subject to subsection (2), a rescue plan shall, notwithstanding any other enactment, become binding within the 21 days from the date of filing of the notice of approval with the office of the relevant court under section 558Z(6), provided no objection is filed by a creditor or a member within the 21 days from the date of filing of the notice of approval.
(2) Notwithstanding subsection (1), where a rescue plan is not compliant with this Act, the rescue plan shall not become binding.
(3) Where an objection is filed within the 21 days referred to in subsection (1), the provisions of sections 558ZD and 558ZZ apply.]
Annotations
Amendments:
F404
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
Section 558ZC
F405[Objection to rescue plan
558ZC. (1) A creditor or member may, subject to this section, file an objection to a rescue plan.
(2) Notice of an objection shall be sent in the prescribed form to—
(a) the process adviser, and
(b) the office of the relevant court.
(3) An objection may be made to a rescue plan on any of the following grounds—
(a) that the rescue plan unfairly prejudices the interests of the objector,
(b) that the rescue plan is unfair and inequitable in relation to the objector,
(c) that there was some material irregularity at or in relation to a meeting to which section 558Y applies,
(d) that a member or creditor has been materially prejudiced by not receiving notice of the meeting or any other notice required to be sent under the Act,
(e) that acceptance of the rescue plan by the meeting was obtained by improper means,
(f) that the rescue plan was put forward for an improper purpose,
(g) that it is not necessary for the survival of the eligible company, and the whole or any part of its undertaking, as a going concern that the contract specified in the objection be repudiated or affirmed,
(h) that the amount of loss or damage determined in respect of the repudiation of the contract specified in the objection is inadequate or excessive,
(i) that the provisions with respect to leases in section 558R apply,
(j) that the sole or primary purpose of the rescue plan is the avoidance of payment of tax due,
(k) that the rescue plan contains an unlawful provision, or
(l) such other grounds as may be prescribed.
(4) Any person who voted to accept the rescue plan referred to in section 558Y may not file an objection under this section except on the grounds—
(a) that such acceptance was obtained by improper means, or
(b) that after voting to accept the rescue plan the person became aware that the rescue plan was put forward for an improper purpose.
(5) Where the relevant court has approved under section 558P the affirmation or repudiation of a contract, an objection may not be made on the ground specified in subsection (3)(g) or (h).
(6) Objections filed in accordance with this section shall be considered by the relevant court in accordance with section 558ZD.]
Annotations
Amendments:
F405
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
F406
Inserted by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 40, not commenced as of date of revision.
Modifications (not altering text):
C163
Prospective affecting provision: subss. (7), (8) inserted by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 40, not commenced as of date of revision.
F406[(7) Where a process adviser receives notice of the filing of an objection to a rescue plan under subsection (2)(a), he or she shall, within 5 days after receipt of that notice, notify the Registrar in the prescribed form of the filing of the objection.
(8) A person who fails to comply with a requirement imposed by subsection (7) shall be guilty of a category 3 offence.]
Editorial Notes:
E114
Power pursuant to subs. (2) exercised (8.12.2021) by Companies Act 2014 (Prescribed Form and Notice) Regulations 2021 (S.I. No. 675 of 2021, in effect as per reg. 1(2).
Section 558ZD
F407[Court hearing in case of objection
558ZD. (1) An objection by a creditor or member under section 558ZC shall be set down for hearing by the relevant court as soon as may be after receipt of the objection by the relevant court.
(2) The following persons may appear and be heard at a hearing under subsection (1):
(a) the eligible company;
(b) the process adviser;
(c) any creditor or member whose claim or interest would be impaired if the rescue plan were implemented;
(d) the directors of the eligible company;
(e) any other person the relevant court considers appropriate.
(3) Any person entitled to appear and be heard at a hearing under subsection (1) shall be limited in the person’s submissions to the issues raised in any notice of objection under section 558ZC unless—
(a) an objection is upheld,
(b) the relevant court proposes to modify the F408[rescue plan, or]
(c) the High Court considers winding up the company.
(4) Where an objection is made under section 558ZC, the onus of proof shall be on the process adviser to establish that the objection should not be upheld.
(5) At a hearing under subsection (1) the relevant court may, as it thinks proper, subject to the provisions of this section and section 558ZE—
(a) dismiss the objection, or
(b) uphold the objection.
(6) Subject to subsection (8), an objection shall not be dismissed if the rescue plan contains a provision relating to a lease of, or any hiring agreement in relation to, property other than land and, in the opinion of the relevant court—
(a) subject to section 558R(1) the value of that property is substantial, and
(b) that provision is of like effect to a provision referred to in section 558R(1)(a) or (b).
(7) In deciding, for the purpose of subsection (6), whether the value of the property concerned is substantial, the matters to which the relevant court shall have regard shall include the length of the unexpired term of the lease or hiring agreement concerned.
(8) If the lessor or owner of the property concerned has consented in writing in the prescribed form to the inclusion of the provision referred to in subsection (6) in the rescue plan—
(a) subsection (6) shall not apply, and
(b) subsection (9)(a) shall not be subject to section 558R(1).
(9) Where the relevant court upholds an objection under this section, the relevant court may make such order as it deems fit, including, but not limited to the following, namely:
(a) an order modifying the rescue plan;
(b) an order approving the modifications of the rescue plan;
(c) an order that the decision of any meeting be set aside;
(d) an order that any meeting be reconvened.
(10) The relevant court shall not approve a modified rescue plan unless the relevant court is satisfied that—
(a) the modified rescue plan is fair and equitable in relation to any member or creditor whose interests or claims would be impaired by implementation,
(b) the modified rescue plan is not unfairly prejudicial to the interests of any interested party, and
(c) the modified rescue plan is compliant with this Act,
and in any case shall not approve any modified rescue plan if the sole or primary purpose of it is the avoidance of payment of tax due.
(11) Where the relevant court dismisses an objection under section 558ZC(3)(g), the relevant court shall be deemed to have approved the repudiation of the contract concerned.
(12) Where the relevant court dismisses an objection or approves a modified rescue plan, the rescue plan shall, subject to section 558ZZ(9) be binding on all the members or class or classes of members, as the case may be, affected by the rescue plan and also on the eligible company.
(13) Where the relevant court dismisses an objection or approves a modified rescue plan, the rescue plan shall, notwithstanding any other enactment but subject to section 558ZZ(10), be binding on all the creditors or the class or classes of creditors, as the case may be, affected by the rescue plan in respect of any claim or claims against the eligible company and any person other than the company who, under any enactment, rule of law or otherwise, is liable for all or any part of the debts of the company.]
Annotations
Amendments:
F407
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
F408
Subsituted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 41, S.I. No. 639 of 2024.
Section 558ZE
F409[ Supplemental provisions in relation to section 558ZD and section 558ZZ
558ZE. (1) Where the relevant court dismisses an objection or approves modified terms of a rescue plan under section 558ZD or 558ZZ, it may make such orders for the implementation of its decision as it deems fit.
(2) Where any objection under section 558ZD or 558ZZ is dismissed, the rescue plan shall come into effect immediately (unless the relevant court deems it appropriate to fix a later date).
(3) Where the relevant court approves a modified rescue plan under section 558ZD such a plan shall, subject to any further modifications made under section 558ZZ(6)(b), come into effect from a date fixed by the relevant court, which date (unless the relevant court deems it appropriate to fix a later one) shall be a date falling no later than 21 days after the date of the approval of the rescue plan.
(4) Where the relevant court dismisses an objection or approves a modified rescue plan, a certified copy of any order made by the relevant court under section 558ZD or 558ZZ shall be delivered by the process adviser, or by such person as the relevant court may direct, to the Registrar.
(5) Where the High Court upholds an objection under section 558ZD, the High Court may, if it considers it just and equitable to do so, make an order for the winding up of the eligible company, or any other order as it deems fit.
(6) Nothing in Chapter 6 confers on the Circuit Court any jurisdiction to hear a petition for the winding up of, or to wind up, a company.
(7) Notwithstanding—
(a) subsection (4), or any other provision of Chapter 3, nothing in this Part shall prevent the process adviser from including in a modified rescue plan any provisions that will not involve the impairment of the interests of members or creditors of the eligible company, or
(b) any foregoing provision of Chapter 3, nothing in Chapter 3 shall prevent the process adviser from including in a rescue plan any provision that provides for a reduction of the eligible company’s company capital nor, subject to subsection (8), the relevant court from approving any such provision in the context of a modified rescue plan.
(8) If the extent of the reduction of the eligible company’s company capital provided for in any modified rescue plan as referred to in subsection (7)(b) would, in the opinion of the relevant court, and having regard to—
(a) the scale and nature of the business that the eligible company carries on, and
(b) the likely liabilities it will incur on an on-going basis,
result in the eligible company’s having an amount of the eligible company capital that is manifestly inadequate, the relevant court shall not approve the modified rescue plan or, where appropriate, shall approve the modified rescue plan subject to a modification that a lower level of reduction, as determined by the relevant court, of the eligible company’s company capital shall have effect under the rescue plan.]
Annotations
Amendments:
F409
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
F410[CHAPTER 7
Liability of third parties for debts of company
Section 558ZF
Definitions (Chapter 7) and savings
558ZF. (1) In this Chapter—
"creditor" shall be read in accordance with section 558ZG;
"debt" shall be read in accordance with section 558ZG;
"liability" shall be read in accordance with section 558ZG;
"third person" shall be read in accordance with section 558ZG.
(2) Nothing in this Chapter shall affect the operation of—
(a) section 558N(4)(f), or
(b) any rule of law whereby any act done by the creditor results in the third person being discharged or released from his or her obligation in respect of the liability.]
Annotations
Amendments:
F410
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
Section 558ZG
F411[ Circumstances in relation to which subsequent provisions of Chapter have effect
558ZG. Subject to section 558ZH(2), the subsequent sections of this Chapter have effect in relation to the following liability (the "liability"), namely the liability—
(a) of any person (the "third person") whether under a guarantee or otherwise;
(b) in respect of a debt (the "debt") of an eligible company to which a process adviser has been appointed that is owed to another (the "creditor").]
Annotations
Amendments:
F411
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
Section 558ZH
F412[General rule: liability of third person not affected by rescue plan
558ZH. (1) Notwithstanding the confirmation of a rescue plan, the liability of a third person shall not be affected by the fact that the debt is the subject of a rescue plan that has taken effect under section 558ZB or 558ZE, but this is subject to subsections (2) and (3).
(2) The third person and the creditor may provide in an agreement between them that the liability of a third person shall be so affected.
(3) Neither subsection (1) nor any of the subsequent provisions of this Chapter shall apply if the third person is an eligible company in respect of which a process adviser has been appointed.]
Annotations
Amendments:
F412
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
Section 558ZI
F413[Enforcement by creditor of liability: restrictions in that regard unless certain procedure employed to benefit of third person
558ZI. (1) If the creditor proposes to enforce, by legal proceedings or otherwise, the obligation of the third person in respect of the liability, then he or she shall, not more than 48 hours after he or she has received notice of a meeting under section 558Y, give a notice to the third person containing the following offer.
(2) That offer is an offer in writing by the creditor to transfer to the third person (which the creditor is, by virtue of this section, empowered to do) any rights, so far as they relate to the debt, he or she may have under section 558Y to vote in respect of a rescue plan for the eligible company.
(3) If that offer is accepted by the third person, that offer shall, if the third person furnishes to the process adviser at the meeting concerned, a copy of the offer and informs the process adviser of his or her having accepted it, operate, without the necessity for any assignment or the execution of any other instrument, to entitle the third person to exercise the rights referred to in subsection (2).
(4) However, neither that transfer nor any vote cast by the third person on foot of the transfer shall operate to prejudice the right of the creditor to object to the rescue plan under section 558ZC.
(5) If the creditor fails to make the offer referred to in subsection (1) in accordance with that subsection, then, subject to subsection (6), the creditor may not enforce by legal proceedings or otherwise the obligation of the third person in respect of the liability.
(6) Subsection (5) shall not apply if—
(a) a rescue plan for the eligible company does not take effect under section 558ZB or 558ZE, and
(b) in either of those cases, the creditor has obtained the leave of the relevant court to enforce the obligation of the third person in respect of the liability.]
Annotations
Amendments:
F413
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
Section 558ZJ
F414[Payment by third person to creditor post rescue period - statutory subrogation in favour of third person in certain circumstances
558ZJ. (1) This section applies where the third person makes a payment to the creditor in respect of the liability after the rescue period in relation to the eligible company concerned has expired.
(2) Where this section applies any amount that would, but for the foregoing payment, be payable to the creditor in respect of the debt under a rescue plan that has taken effect under section 558ZB or 558ZE in relation to the company shall become and be payable to the third person upon and subject to the same terms and conditions as the rescue plan provided that it was to be payable to the creditor.]
Annotations
Amendments:
F414
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
F415[CHAPTER 8
Conclusion of rescue process
Section 558ZK
Conclusion of rescue period and termination of appointment of process adviser
558ZK. The appointment of a process adviser in respect of an eligible company shall be terminated—
(a) where a rescue plan for the eligible company takes effect under section 558ZB or 558ZE, on the date on which it takes effect under the section concerned,
(b) where no rescue plan for the eligible company is approved at a meeting held under section 558T, on the date on which the process adviser gives a copy of his or her report to the eligible company under section 558ZA(3),
(c) where—
(i) the relevant court upholds an objection to a rescue plan for the eligible company, and
(ii) no rescue plan takes effect for the eligible company,
on the date on which the relevant court upholds the objection or such later date as may be fixed by the relevant court, or
(d) on such other date as may be prescribed.]
Annotations
Amendments:
F415
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
F416
Inserted by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 42(a), (b), not commenced as of date of revision.
Modifications (not altering text):
C164
Prospective affecting provision: section designated subsection (1) and subss. (2) and (3) inserted by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 42(a), (b), not commenced as of date of revision.
558ZK. F416[(1)] The appointment of a process adviser in respect of an eligible company shall be terminated—
...
F416[(2) Where the appointment of the process adviser is terminated under paragraph (b) of subsection (1), he or she shall, within 5 days after the date referred to in that subsection, deliver a notice in the prescribed form confirming the termination of his or her appointment in accordance with that subsection to—
(a) the Registrar, and
(b) the office of the relevant court.
(3) A person who fails to comply with a requirement imposed by subsection (2) shall be guilty of a category 3 offence.]
Section 558ZL
F417[Power of relevant court to revoke rescue plan where fraud
558ZL. (1) An eligible company or any interested party may, within 180 days after the date on which the rescue plan for the company takes effect under section 558ZB or 558ZE, apply to the court for revocation of the rescue plan on the grounds that it was procured by fraud.
(2) On such application, the court may, if satisfied that that rescue plan was procured by fraud, revoke the rescue plan on such terms and conditions, particularly with regard to the protection of the rights of parties acquiring interests or property in good faith and for value in reliance on that rescue plan, as it deems fit.
(3) As soon as practicable after the revocation under this section of such a rescue plan, a certified copy of the order made by the court shall be delivered to—
(a) the Registrar, and
(b) the Director,
by such person as the court may direct.]
Annotations
Amendments:
F417
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
Section 558ZM
F418[Power of relevant court to order the return of assets improperly transferred
558ZM. (1) Where, on the application of the process adviser for an eligible company at any time during the rescue period, it can be shown to the satisfaction of the relevant court that—
(a) any property of the eligible company of any kind whatsoever was disposed of either by way of conveyance, transfer, mortgage, security, loan, or in any way whatsoever whether by act or omission, direct or indirect, and
(b) the effect of such disposal was to perpetrate a fraud on the eligible company, its creditors or members,
the relevant court may, if it deems it just and equitable to do so, make the following order.
(2) That order of the relevant court is one requiring any person who appears to have the use, control or possession of such property or the proceeds of the sale or development of it to deliver it or pay a sum in respect of it to the process adviser on such terms or conditions as the relevant court sees fit.
(3) Subsection (1) shall not apply to any conveyance, mortgage, delivery of goods, payment, execution or other act relating to property made or done by or against an eligible company to which section 604 applies.
(4) In deciding whether it is just and equitable to make an order under this section, the relevant court shall have regard to F419[the rights of persons who have bona fide] and for value acquired an interest in the property subject of the application.]
Annotations
Amendments:
F418
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
F419
Substituted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 43, S.I. No. 639 of 2024.
Section 558ZN
F420[Director’s power to examine books and records
558ZN. (1) In this section—
"appropriate person" in relation to the eligible company referred to in subsection (2), means any of the following—
(a) the eligible company,
(b) irrespective of the time at which he or she holds or held such status—
(i) a process adviser of the eligible company,
(ii) an officer of the eligible company, or
(iii) a receiver appointed to any property of the eligible company;
"books and records" means the books and records of the eligible company and, in addition, in the case of a request made of a process adviser, the books and records of the process adviser.
(2) At any time during the rescue period relating to an eligible company or after its conclusion, the F421[Authority] may, F421[where it considers it necessary] or appropriate, request (specifying the reason why the request is being made) an appropriate person to produce to the F421[Authority] the books and records for examination, and the appropriate person shall comply with the request.
(3) In the case of a request of a process adviser under subsection (2), the request may relate to a particular eligible company in respect of which the process adviser is acting, or has acted, as process adviser under this Part or to all eligible companies in respect of which the process adviser is so acting or has so acted.
(4) An appropriate person shall—
(a) answer any questions of the F421[Authority] concerning the content of the books and records requested to be produced under subsection (2),
(b) if he or she is a process adviser, answer any questions of the F421[Authority] concerning a particular eligible company in respect of which the process adviser is acting, or has acted, as process adviser under this Part or, as the case may be, all eligible companies in respect of which the process adviser is so acting or has so acted,
(c) give to the F421[Authority] such assistance in the matter as the appropriate person is reasonably able to give.
(5) An appropriate person shall give to the F421[Authority] such access and facilities as are necessary for inspecting and taking copies of books and records requested to be produced by him or her under subsection (2).
(6) A request under subsection (2) may not be made in respect of books and records relating to a rescue period that has ended more than 6 years prior to the date of the request.
(7) An appropriate person who—
(a) fails to comply with a request under subsection (2),
(b) fails to answer any question under subsection (4)(a) or (b),
(c) fails to give the F421[Authority] the assistance referred to in subsection (4)(c), or
(d) without lawful excuse, fails to give the F421[Authority] the access or facilities referred to in subsection (5),
shall be guilty of a category 2 offence.
(8) Nothing in this section shall be taken as excluding or restricting any statutory rights of the Government, a Minister of the Government or a person acting under the authority of the Government or a Minister of the Government, or the powers of any person under Part 13.]
Annotations
Amendments:
F420
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
F421
Subsituted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 44(a), (b), S.I. No. 639 of 2024.
Section 558ZO
F422[Reporting to Director of Corporate Enforcement of misconduct by process advisers
558ZO. (1) Wh5ere a disciplinary committee or tribunal (however called) of a prescribed professional body—
(a) finds that a member of that body who is or has acted as a process adviser in respect of an eligible company under this Part has not maintained appropriate records as required by this Part,
(b) has reasonable grounds for believing that such a member has committed a category 1 or 2 offence while so acting,
the professional body shall report the matter, giving details of the finding or, as the case may be, of the alleged offence, to the F423[Authority] forthwith.
(2) If a professional body fails to comply with this section, it, and any officer of the body to whom the failure is attributable, shall be guilty of a category 3 offence.]
Annotations
Amendments:
F422
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
F423
Substituted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 45, S.I. No. 639 of 2024.
F424[CHAPTER 9
Enforcement
Section
Offence of acting as process adviser when unqualified
558ZP. (1) A person may not act as a process adviser under this Part in respect of an eligible company unless the person is qualified under section 633 for appointment as a liquidator of the eligible company.
(2) A person who contravenes subsection (1) shall be guilty of a category 2 offence.]
Annotations
Amendments:
F424
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
Section 558ZQ
F425[Offence where director fails to disclose information or misleads process adviser
558ZQ. (1) A director of an eligible company who intentionally—
(a) fails to disclose to the process adviser appointed in respect of the eligible company any relevant information—
(i) that is available to him or her, and
(ii) that he or she has been required to produce by the process adviser,
(b) provides any false or misleading information to the process adviser in respect of the eligible company, or
(c) fails to disclose to the process adviser in respect of the eligible company any information available to him or her that the director knows, or ought to know, is relevant information,
shall be guilty of a category 2 offence.
(2) In subsection (1), "relevant information" means information which is material to the exercise by the process adviser of his or her functions under this Part.]
Annotations
Amendments:
F425
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
Section 558ZR
F426[Prosecution of officers and members of company
558ZR. (1) This section applies where a process adviser has been appointed in relation to an eligible company.
(2) If it appears to the process adviser, at any time during the rescue period, that any past or present officer, or any member, of the eligible company has been guilty of any offence in relation to the company, the process adviser shall forthwith report the matter to the Director of Public Prosecutions.
(3) Where the process adviser reports a matter under subsection (2) to the Director of Public Prosecutions, the process adviser shall—
(a) provide to the Director of Public Prosecutions such information, relating to the matter in question, as he or she may require, and
F427[(b) give to him or her such access to, and facilities for inspecting and taking copies of, such documents, being documents in the possession or under the control of the process adviser and relating to the matter in question, as he or she may require.]
F427[(4) Where a foregoing report is made by the process adviser, the process adviser shall also report the matter to the Authority forthwith.].
F427[(5) Where a matter is reported by the process adviser under subsection (4) to the Authority, the process adviser shall—
(a) provide to the Authority such information relating to the matter in question as it may require, and
(b) give to the Authority such access to, and facilities for inspecting and taking copies of, such documents, being documents in the possession or under the control of the process adviser and relating to the matter in question, as it may require.]
(6) If, where any matter is reported under subsection (2) or (4) to—
(a) the Director of Public Prosecutions, or
(b) the F427[Authority],
and the Director of Public Prosecutions or, as the case may be, the F427[Authority] considers that the case is one in which a prosecution ought to be instituted and institutes proceedings accordingly, it shall be the duty of each of the persons mentioned in subsection (7) to give all assistance in connection with the prosecution which he or she is reasonably able to give.
(7) The persons referred to in subsection (6) are the process adviser and—
(a) every officer (past or present) of the eligible company, and
(b) every agent (past or present) of the eligible company,
other than the defendant in the proceedings.
(8) For the purposes of subsection (7), "agent", in relation to the eligible company, includes—
(a) the bankers and solicitors of the eligible company, and
(b) any persons employed by the eligible company as auditors, accountants, book-keepers or taxation advisers, or other persons employed by it in a professional, consultancy or similar capacity, whether those persons are (or were) or are not (or were not) officers of the eligible company.
(9) If any person fails or neglects to give assistance in the manner required by subsection (6), the court may, on the application of the Director of Public Prosecutions or, as the case may be, the F427[Authority], direct that person to comply with the requirements of that subsection.
(10) Where any such application is made in relation to a process adviser, the court may, unless it appears that the failure or neglect to comply was due to the process adviser not having in his or her hands sufficient assets of the eligible company to enable him or her so to do, direct that the costs of the application shall be borne by the process adviser personally.]
Annotations
Amendments:
F426
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
F427
Substituted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 46(a)-(d), S.I. No. 639 of 2024.
F428[CHAPTER 10
Powers of process adviser
Section 558ZS
Powers of process adviser
558ZS. (1) Any provision of this Act relating to the rights and powers of a statutory auditor of an eligible company and the supplying of information to and co-operation with such auditor shall, with the necessary modifications, apply to a process adviser appointed in respect of the company.
(2) Notwithstanding any provision of this Act relating to notice of general meetings, a process adviser shall have power to convene, set the agenda for, and preside at meetings of the board of directors and general meetings of the eligible company in respect of which he or she is appointed and to propose motions or resolutions and to give reports to such meetings.
(3) A process adviser shall be entitled to reasonable notice of, to attend and be heard at, all meetings of the board of directors of the eligible company and all general meetings of the company in respect of which he or she is appointed.
(4) For the purpose of subsection (3) "reasonable notice" shall be deemed to include a description of the business to be transacted at any such meeting.
(5) A process adviser has the power referred to in subsection (6) where he or she becomes aware of any actual or proposed act, omission, course of conduct, decision or contract by or on behalf of—
(a) the eligible company in respect of which he or she has been appointed,
(b) the eligible company’s officers, employees, members or creditors, or
(c) any other person,
in relation to the income, assets or liabilities of the eligible company which, in the process adviser’s opinion, is or is likely to be to the detriment of the company, or any interested party.
(6) That power of the process adviser is to take whatever steps are necessary, subject to the right of parties acquiring an interest in good faith and for value in such income, assets or liabilities, to halt, prevent or rectify the effects of such act, omission, course of conduct, decision or contract.]
Annotations
Amendments:
F428
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
Section 558ZT
F429[Production of documents and evidence
558ZT. (1) It shall be the duty of the officers and agents of an eligible company in respect of which a process adviser has been appointed or of a related company to—
(a) produce to the process adviser all books and documents of, or relating to, any such company which are in their custody or power,
(b) attend before the process adviser when required by the process adviser so to do, and
(c) otherwise give to the process adviser all assistance in connection with the process adviser’s functions which they are reasonably able to give.
(2) If the process adviser considers that a person, other than an officer or agent of any foregoing company, is or may be in possession of any information concerning the company’s affairs, the process adviser may require that person to—
(a) produce to the process adviser any books or documents in his or her custody or power relating to the company,
(b) attend before the process adviser, and
(c) otherwise give to the process adviser all assistance in connection with the process adviser’s functions which that person is reasonably able to give,
and it shall be the duty of that person to comply with the requirement.
(3) If the process adviser has reasonable grounds for believing that a director of any foregoing company maintains or has maintained a bank account of any description, whether alone or jointly with another person and whether in the State or elsewhere, into or out of which there has been paid—
(a) any money which has resulted from or been used in the financing of any transaction, arrangement or agreement particulars of which have not been disclosed in the financial statements of any company for any financial year as required by this Act, or
(b) any money which has been in any way connected with any act or omission, or series of acts or omissions, which, on the part of that director, constituted misconduct (whether fraudulent or not) towards that company or its members,
the process adviser may require the director to produce to the process adviser all documents in the director’s possession, or under his or her control, relating to that bank account and it shall be the duty of the director to comply with the requirement.
(4) In subsection (3)—
"bank account" includes an account with any person exempt by virtue of section 7 (4) of the Central Bank Act 1971 from the requirement of holding a licence under section 9 of that Act;
"director" means—
(a) any present or past director (including any present or past shadow director), and
(b) any person connected, within the meaning of section 220, with such a director.
(5) A process adviser may examine on oath, either by word of mouth or on written interrogatories, the officers and agents of an eligible company or other person as is mentioned in subsection (1) or (2) in relation to that company’s affairs and may—
(a) administer an oath accordingly, or
(b) reduce the answers of such person to writing and require him or her to sign them.
(6) If any officer or agent of a foregoing company or other such person—
(a) refuses to produce to the process adviser any book or document which it is his or her duty under this section to produce,
(b) refuses to attend before the process adviser when requested by the process adviser to do so, or
(c) refuses to answer any question which is put to him or her by the process adviser with respect to the affairs of the company,
the process adviser may provide a certificate under his or her hand to the relevant court stating that such a refusal has occurred.
(7) On such a certificate being provided to it, the relevant court may enquire into the case and, after hearing any witnesses who may be produced against or on behalf of the officer, agent or other person to whom the certificate relates or any statement which may be offered in defence, make any order or direction it thinks fit.
(8) Without prejudice to the generality of subsection (7), the relevant court may, after a hearing under that subsection, make a direction—
(a) to the person concerned to attend or re-attend before the process adviser or produce particular books or documents or answer particular questions put to him or her by the process adviser, or
(b) that the person concerned need not produce a particular book or document or answer a particular question put to him or her by the process adviser.
(9) Section 795 shall apply for the purposes of this section as it applies for the purposes of Part 13 and, accordingly, for the purpose of this section, references in section 795 to Part 13, or relevant provisions of that Part, shall be read as references to this section.
(10) In this section—
(a) any reference to officers or to agents includes a reference to past, as well as present, officers or agents, as the case may be;
(b) "agents", in relation to a company, includes—
(i) the bankers and solicitors of the company, and
(ii) any persons employed by the company as auditors, accountants, book-keepers or taxation advisers, or other persons employed by it in a professional, consultancy or similar capacity, whether those persons are (or were) or are not (or were not) officers of the company.]
Annotations
Amendments:
F429
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
Section 558ZU
F430[No lien over eligible company’s books, records, etc.
558ZU. (1) Without prejudice to subsections (2) and (3), where a process adviser is appointed in respect of an eligible company by virtue of section 558E(2), no person shall be entitled as against the process adviser to—
(a) withhold possession of—
(i) any deed, instrument or other document belonging to the eligible company, or
(ii) any accounting records, receipts, bills, invoices, or other papers of a like nature relating to the accounts or trade, dealings or business of the eligible company,
or
(b) claim any lien on any document or paper referred to in paragraph (a).
(2) Where a mortgage, charge or pledge has been created by the deposit of any such document or paper with a person, the production of the document or paper to the process adviser by the person shall not operate to prejudice the person’s rights under the mortgage, charge or pledge (other than any right to possession of the document or paper).
(3) Where by virtue of this section a process adviser has possession of—
(a) any document or papers of a receiver, or
(b) any documents or papers that a receiver is entitled to examine,
the process adviser shall, unless the relevant court otherwise orders, make the document or papers available for inspection by the receiver at all reasonable times.]
Annotations
Amendments:
F430
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
Section 558ZV
F431[Power to deal with charged property etc.
558ZV. (1) Where, on an application by the process adviser appointed in respect of an eligible company, the relevant court is satisfied that—
(a) the disposal (with or without other assets) of any property of the eligible company which is subject to a security which, as created, was a floating charge, or
(b) the exercise by the process adviser of his or her powers in relation to such property,
would be likely to facilitate the survival of the whole or any part of the eligible company as a going concern, the relevant court may by order authorise the process adviser to dispose of the property, or exercise his or her powers in relation to it, as the case may be, as if it were not subject to the security.
(2) Where, on an application by the process adviser appointed in respect of an eligible company, the relevant court is satisfied that the disposal (with or without other assets) of—
(a) any property of the eligible company subject to a security other than a security to which subsection (1) applies, or
(b) any goods in the possession of the eligible company under a hire-purchase agreement,
would be likely to facilitate the survival of the whole or any part of the eligible company as a going concern, the relevant court may by order authorise the process adviser to dispose of the property as if it were not subject to the security or to dispose of the goods as if all rights of the owner under the hire-purchase agreement were vested in the company.
(3) Where property is disposed of under subsection (1), the holder of the security shall have the same priority in respect of any property of the eligible company directly or indirectly representing the property disposed of as he or she would have had in respect of the property subject to the security.
(4) An order under subsection (2) shall include a condition that—
(a) the net proceeds of the disposal of the property or goods concerned, and
(b) where those proceeds are less than such amount as may be determined by the relevant court to be the net amount which would be realised on a sale of the property or goods concerned in the open market by a willing vendor, such sums as may be required to make good the deficiency,
shall be applied towards discharging the sums secured by the security or payable under the hire-purchase agreement.
(5) Where a condition imposed in pursuance of subsection (4) relates to 2 or more securities, that condition operates to require the net proceeds of the disposal and, where paragraph (b) of that subsection applies, the sums mentioned in that paragraph to be applied towards discharging the sums secured by those securities in the order of their priorities.
(6) A certified copy of an order under subsection (1) or (2) in relation to a security shall, within 7 days after the date of the making of the order, be delivered by the process adviser to the Registrar.
(7) If the process adviser, without reasonable excuse, fails to comply with subsection (6), he or she shall be guilty of a category 4 offence.
(8) References in this section to a hire-purchase agreement include references to—
(a) a conditional sale agreement;
(b) a retention of title agreement; and
(c) an agreement for the bailment of goods which is capable of subsisting for more than 3 months.]
Annotations
Amendments:
F431
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
Section 558ZW
F432[Resignation of process adviser
558ZW. (1) The process adviser appointed in respect of an eligible company may, by a notice in writing that complies with subsection (3) given to the company and stating his or her intention to do so, resign as process adviser.
(2) The resignation shall take effect on the date on which the notice is so given or on such later date as may be specified in the notice.
(3) A notice under subsection (1) shall contain either—
(a) a statement to the effect that there are no circumstances connected with the resignation to which it relates that the process adviser concerned considers should be brought to the notice of the members or creditors of the eligible company, or
(b) a statement of any such circumstances as are mentioned in paragraph (a).
(4) Where a notice under subsection (1) is given to an eligible company—
(a) the process adviser concerned shall, within 7 days after the date of such service, send a copy of the notice to the Registrar and the office of the relevant court, and
(b) subject to subsection (5), the eligible company shall, if the notice contains a statement referred to in subsection (3)(b), not later than 14 days after the date of such service, send a copy of the notice to every creditor and member in accordance with subsection (5).
(5) Copies of a notice given to an eligible company under subsection (1) need not be given to the members and creditors of the company if, on the application of the company concerned or any other person who claims to be aggrieved, the relevant court is satisfied that the notice contains material which has been included to secure needless publicity for a defamatory matter and orders that that thing need not be done.
(6) The relevant court may order the eligible company’s costs on an application such as is referred to in subsection (5) to be paid in whole or in part by the process adviser concerned notwithstanding that he or she is not a party to the application.
(7) A person who fails to comply with this section shall be guilty of a category 3 offence.]
Annotations
Amendments:
F432
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
F433
Substituted by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 47, not commenced as of date of revision.
Modifications (not altering text):
C165
Prospective affecting provision: subs. (4)(a) amended by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 47, not commenced as of date of revision.
(a) the process adviser concerned shall, within 7 days after the date of such service, send a F433[copy of the notice in such form or manner as may be prescribed] to the Registrar and the office of the relevant court, and
Section 558ZX
F434[General provisions as to process advisers - resignation, filling of vacancy, etc.
558ZX. (1) Where the person appointed as the process adviser of an eligible company—
(a) dies,
(b) becomes incapable (whether through ill-health or otherwise) of performing the functions of a process adviser in relation to the eligible company,
(c) resigns as process adviser, or
(d) is no longer qualified to perform the functions conferred on a process adviser by this Act,
the directors of the eligible company shall, as soon as practicable after becoming aware of the fact, consider whether to pass a resolution appointing another person as process adviser.
(2) Where the directors of the eligible company pass a resolution appointing a new process adviser, they shall, within 48 hours of the appointment—
(a) deliver notice of the appointment to—
(i) the Registrar, and
(ii) the office of the relevant court,
and
(b) give notice of the appointment to the persons mentioned in subsection (3).
(3) The persons are—
(a) employees of the eligible company,
(b) members of the eligible company,
(c) creditors of the eligible company,
(d) the Revenue Commissioners, and
(e) such other persons as may be prescribed.
(4) A process adviser shall be described by the style of "the process adviser" of the particular eligible company in respect of which he or she is appointed and not by his or her name.
(5) In carrying out the functions conferred on a process adviser under this Part, a process adviser shall be deemed to be an officer of the court.
(6) The acts of a process adviser shall be valid notwithstanding any defects that may afterwards be discovered in his or her appointment or qualification.
(7) A process adviser shall be personally liable on any contract entered into by him or her in the performance of his or her functions (whether such contract is entered into by the process adviser in the name of the eligible company concerned or in his or her own name as process adviser or otherwise) unless the contract provides that he or she is not to be personally liable on such contract.
(8) The process adviser shall, in respect of that personal liability, be entitled to indemnity out of the assets of the eligible company concerned.
(9) Nothing in subsection (7) or (8) shall be taken as limiting any right to indemnity which the process adviser would have apart from either subsection, or as limiting the process adviser’s liability on contracts entered into without authority or as conferring any right to indemnity in respect of that liability.]
Annotations
Amendments:
F434
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
F435
Inserted by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 48(a), (c), not commenced as of date of revision.
F436
Substituted by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 48(b), not commenced as of date of revision.
Modifications (not altering text):
C166
Prospective affecting provision: subss. (1A), (10) inserted, subs. (2)(a) amended by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 48(a)-(c), not commenced as of date of revision.
F435[(1A) Where the directors of the eligible company do not pass a resolution appointing a new process adviser they shall, as soon as practicable and in any case not later than 7 days after becoming aware of the process adviser ceasing to act, deliver a notice in the prescribed form confirming that they have not passed such a resolution to—
(a) the Registrar, and
(b) the office of the relevant court.]
(2) Where the directors of the eligible company pass a resolution appointing a new process adviser, they shall, within 48 hours of the appointment—
(a) deliver F436[notice of the appointment in the prescribed form] to—
...
F435[(10) A person who fails to comply with a requirement imposed by subsection (1), (1A) or (2) shall be guilty of a category 3 offence.]
F437[CHAPTER 11
Process adviser: remuneration, costs and expenses
Section 558ZY
Process adviser: remuneration, costs and expenses
558ZY. (1) The relevant court may from time to time make such orders as it thinks proper for payment of the remuneration and costs of, and reasonable expenses properly incurred by, a process adviser.
(2) Unless the relevant court otherwise orders, the remuneration, costs and expenses of a process adviser shall be paid and the process adviser shall be entitled to be indemnified in respect thereof out of the revenue of the business of the eligible company to which he or she has been appointed, or the proceeds of realisation of the assets (including investments).
(3) Subject to subsection (4), the functions of a process adviser may be performed by him or her with the assistance of persons appointed or employed by him or her for that purpose.
(4) A process adviser shall, in so far as is reasonably possible, make use of the services of the staff and facilities of the eligible company to which the process adviser has been appointed to assist the process adviser in the performance of his or her functions.
F438[(4A) Where a process adviser does not make use of the services of the staff and facilities of the eligible company in accordance with subsection (4), the relevant court may request a written report from the process adviser stating the reasons for not doing so.]
(5) In considering any matter relating to the costs, expenses and remuneration of a process adviser the relevant court shall have particular regard to F439[subsection (4) and any written report provided to it in accordance with subsection (4A)].]
Annotations
Amendments:
F437
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
F438
Inserted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 49(a), S.I. No. 639 of 2024.
F439
Substituted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 49(b), S.I. No. 639 of 2024.
Section 558ZZ
F440[Application to relevant court for review of remuneration etc. of process adviser
558ZZ. (1) This section applies where notice of approval of a rescue plan for an eligible company is filed with the office of the relevant court under section 558Z(6).
(2) Any creditor or member of the eligible company may apply to the relevant court, within 21 days after the date on which the notice of approval is filed, to review the remuneration, costs and expenses, claimed by a process adviser under this Part.
(3) Notice of objection shall be sent in the prescribed form to—
(a) the process adviser, and
(b) the office of the relevant court.
(4) Where no application is filed under subsection (2) within 21 days of the notice of approval under section 558ZB(1), the remuneration, costs and expenses of the process adviser shall be deemed to be fixed in the amount set out in the process adviser’s report.
(5) An application under subsection (2) shall be heard after the hearing of any objection under section 558ZD.
(6) On the making of an application under subsection (2), the relevant court may, as it thinks fit—
(a) confirm the amount stated in the process adviser’s report under section 558ZA, or
(b) subject to any order made by virtue of section 558ZY(1), alter that amount and make any consequential modifications to the rescue plan.
(7) If, on an application under subsection (2)—
(a) the relevant court does not reduce the process adviser’s remuneration, costs and expenses, the applicant shall bear the costs, fees and expenses of the application, or
(b) the relevant court does reduce the process adviser’s remuneration, costs and expenses, the court may make such order as it deems fit as to the costs, fees and expenses of the application.
(8) In deciding on the merits of an application under subsection (2), the relevant court shall have regard to all the circumstances, including in particular—
(a) whether the process adviser had proper regard to section 558ZY(4),
(b) the time properly required to be given by the process adviser and by his or her assistants during the rescue period,
(c) the complexity (or otherwise) of the case,
(d) the effectiveness with which the process adviser appears to have carried out his or her duties, and
(e) the value and nature of the property with which the process adviser has to deal.
(9) Where the relevant court dismisses an application under subsection (2) or approves a modified rescue plan following an alteration under subsection (6)(b), the rescue plan shall be binding on all the members or class or classes of members, as the case may be, affected by the rescue plan and also on the eligible company.
(10) Where the relevant court dismisses an application under subsection (2) or approves a modified rescue plan following an alteration under subsection (6)(b), the rescue plan shall, notwithstanding any other enactment, be binding on all the creditors or the class or classes of creditors, as the case may be, affected by the rescue plan in respect of any claim or claims against the eligible company and any person other than the company who, under any enactment, rule of law or otherwise, is liable for all or any part of the debts of the company.]
Annotations
Amendments:
F440
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
Section 558ZAA
F441[Incurring of certain liabilities by process adviser
558ZAA. (1) Any liabilities incurred by an eligible company during the rescue period which are specified in subsection (2) shall be treated as expenses properly incurred, for the purpose of section 558ZAB, by the process adviser.
(2) The liabilities referred to in subsection (1) are those certified in writing by the process adviser, at the time they are incurred, to have been incurred in circumstances where, in the opinion of the process adviser, the survival of the eligible company as a going concern during the rescue period would otherwise be seriously prejudiced.]
Annotations
Amendments:
F441
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
Section 558ZAB
F442[Priority
558ZAB. (1) The remuneration, costs and expenses of a process adviser which have been confirmed under section 558ZZ(4) or (6) (other than expenses referred to in subsection (2)) shall be paid in full and shall be paid before any other claim, secured or unsecured, under any rescue plan or in any receivership or winding up of the eligible company to which he or she has been appointed.
(2) Liabilities incurred by the eligible company to which a process adviser has been appointed that, by virtue of section 558ZAA, are treated as expenses properly incurred by the process adviser shall be paid in full and shall be paid before any other claim (including a claim secured by a floating charge), but after any claim secured by a mortgage, charge, lien or other encumbrance of a fixed nature or a pledge, under any rescue plan or in any receivership or winding up of the company.
(3) In subsections (1) and (2), references to a claim shall be deemed to include references to any payment in a winding up of the eligible company in respect of the costs, charges and expenses of that winding up (including the remuneration of any liquidator).]
Annotations
Amendments:
F442
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
F443[CHAPTER 12
General
Section 558ZAC
Effect on certain sections where application to relevant court
558ZAC. (1) The time limits specified in the provisions mentioned in subsection (2) are suspended for the period during which any proceedings under this Part are being considered by the relevant court.
(2) The provisions referred to in subsection (1) are—
(a) section 558L(2),
(b) section 558T(4),
(c) section 558ZA(2), and
(d) section 558ZA(4).]
Annotations
Amendments:
F443
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
Section 558ZAD
F444[Power to apply to relevant court for determination of questions or concerning exercise of powers
558ZAD. (1) Each of the following:
(a) the process adviser appointed in respect of an eligible company;
(b) the directors of an eligible company;
F445[(c) the Authority,]
may apply to the relevant court to determine any question arising during the rescue period (including any question in relation to any exercise or proposed exercise of any of the powers of the process adviser).
(2) The relevant court, if satisfied that the determination of the question will be just and equitable, may accede wholly or partially to such an application on such terms and conditions as it thinks fit or may make such other order on the application as it thinks just.]
Annotations
Amendments:
F444
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
F445
Substituted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 50, S.I. No. 639 of 2024.
Section 558ZAE
F446[Hearing of proceedings other than in public
558ZAE. Without prejudice to the relevant court’s own discretion, the whole or part of any proceedings under this Part may be heard otherwise than in public if the relevant court, in the interests of justice, considers that the interests of the eligible company concerned or of its creditors as a whole so require.]
Annotations
Amendments:
F446
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
Section 558ZAF
F447[High Court’s power to remit proceedings to Circuit Court
558ZAF. (1) This section applies where the process adviser determines under section 558H that any proceedings under this Part relating to an eligible company shall be brought in the High Court.
(2) In any proceedings under this Part relating to the eligible company, the High Court may, where it considers that it would be reasonable for the proceedings to be dealt with in the Circuit Court, remit the proceedings to the Circuit Court.
(3) Where the High Court is minded to remit proceedings under subsection (2), it may elect to deal with the application immediately before it where it considers that it would be more efficient for it to do so.
(4) Notwithstanding subsection (3), the High Court may take into account whether it was reasonable for any proceedings under this Part to be brought in that court in making a costs order in relation to the proceedings concerned.
(5) In deciding for the purposes of subsection (2) whether it would be reasonable for proceedings to be brought in the Circuit Court, the High Court shall have regard to all the circumstances, including in particular the need to minimise costs and promote efficiency.]
Annotations
Amendments:
F447
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
Section 558ZAG
F448[Representation of bodies corporate at meetings held under this Part
558ZAG. For the avoidance of doubt, section 185 applies to any meeting of an eligible company held during the rescue period.]
Annotations
Amendments:
F448
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
Section 558ZAH
F449[Retention of records
558ZAH. Where a process adviser is appointed in respect of an eligible company, the process adviser shall retain records in such form or manner as may be prescribed for a period of not less than 6 years after the completion of the activity to which the record relates.]
Annotations
Amendments:
F449
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
Section 558ZAI
F450[Service of notices
558ZAI. (1) This section applies where the process adviser is required or authorised by any provision of this Part to give a person a notice or other document.
(2) Where the person has provided the process adviser with an email address under section 558I, notice shall be given by electronic means to that email address.
(3) Where—
(a) the person has not provided the process adviser with an email address under section 558I, or
(b) the process adviser gives notice by electronic means to an email address provided by the person under that section but receives in response a failed delivery notification,
notice shall be given in accordance with subsection (4).
(4) Notice is given in accordance with this subsection if it is sent by post in a prepaid letter to—
(a) in the case of an individual—
(i) the address at which the individual ordinarily resides, or
(ii) any other address provided by the individual for the purposes of this section,
(b) in the case of a company, its registered office, or
(c) in the case of any other body corporate or unincorporated body, its principal office or place of business.]
Annotations
Amendments:
F450
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
Section 558ZAJ
F451[Regulations to remove difficulties
558ZAJ. (1) If, in any respect, any difficulty arises in bringing any provision of this Part into operation or in relation to the operation of any such provision, the Minister may by regulations do anything which appears to him or her to be necessary or expedient for removing that difficulty, for bringing that provision into operation or for securing or facilitating its operation.
(2) A regulation made under subsection (1) may modify any provision of this Part which makes provision for, or in connection with, any administrative or procedural matter (including, in particular, the length of any period of time within which notice requires to be given under this Part) so far as may be necessary or expedient for carrying such provision into effect for the purposes aforesaid, but no regulations shall be made under this section in relation to any provision of this Part after the expiration of 2 years commencing on the day on which the provision came into operation.
(3) Where regulations are proposed to be made under this section, a draft of the regulations shall be laid before each House of the Oireachtas and the regulations shall not be made until a resolution approving the draft has been passed by each such House.]
Annotations
Amendments:
F451
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.
PART 11
WINDING UP
Annotations
Modifications (not altering text):
C167
Application of Part modified (12.03.2015) by Irish Collective Asset-management Vehicles Act 2015 (2/2015), s. 154, S.I. No. 85 of 2015; this part commenced (1.06.2015) by Companies Act 2014 (Commencement) Order 2015 (S.I. No. 169 of 2015).
Winding up
154. (1) The provisions of Part 11 of the Companies Act 2014 , and the other provisions of that Act relating to the winding up of companies (including, in particular, provisions about summary approval procedure) apply, subject to the necessary modifications and the specific modifications specified in subsection (2), in relation to an ICAV as if it were an investment company.
(2) The modifications are the following:
(a) references to the Registrar are to the Bank;
(b) references to the constitution of a company are to the instrument of incorporation of an ICAV;
(c) in the definition of “connected person” in section 559(1) and in 629(5) the reference to section 220 is to section 77 of this Act and paragraph (b) is omitted;
(d) in the table to section 567—
(i) the reference to section 286(3) is to section 114 (1) of this Act;
(ii) the reference to section 609 is to section 115 of this Act;
(e) the references in sections 569(2) and 571(3) to section 212 are to section 55 of this Act;
(f) the reference in section 595(5) to that Act is to this Act;
(g) the words “into his or her custody or” in section 596 and paragraph 9 of the Table to section 627 are omitted;
(h) sections 600 and 609 are omitted;
(i) section 636 has effect as if—
(i) the reference in subsection (3) to Part 4 were to section 91 of this Act,
(ii) for subsection (5) there is substituted a requirement that notice of a meeting given by a member, liquidator or contributory under subsection (3) comply with any requirements specified in the ICAV’s instrument of incorporation, and
(iii) the reference in subsection (6) to the Companies Act 2014 is omitted;
(j) the reference in section 656(2) to section 173 is to section 52 of this Act;
(k) in section 673—
(i) in subsection (1), for “hands of the liquidator” there is substituted “hands of the depositary or trustee within the meaning of the UCITS Regulations, to be under the control of the liquidator,”, and
(ii) in subsection (3), for “to the liquidator” there is substituted “to the depositary or trustee within the meaning of the UCITS Regulations, to be under the control of the liquidator,”.
CHAPTER 1
Preliminary and interpretation
Section 559
Interpretation (Part 11)
559. (1) In this Part—
“connected person” means a person who, at the time the transaction in relation to the company concerned was carried out, was—
(a) a director of the company;
(b) a shadow director of the company;
(c) a person connected, within the meaning of section 220, with a director of the company;
(d) a related company; or
(e) any trustee of, or surety or guarantor for the debt due, to any person referred to in paragraph (a), (b), (c) or (d);
“contributory” means every person liable to contribute to the assets of a company in the event of its being wound up, and subsection (2) supplements this definition;
“creditors’ voluntary winding up” means a voluntary winding up in the circumstances specified in section 562(1)(b);
“members’ voluntary winding up” means a voluntary winding up in the circumstances specified in section 562(1)(a) or (2);
“property” means all real and personal property, and includes any right of action by the company or liquidator under the provisions of this Act or any other enactment;
“provisional liquidator” means a liquidator appointed provisionally under section 573, and subsections (3) to (5) contain provisions as to the construction of references in this Part to liquidator so far as concerns the immediate expression;
“winding-up petition” means a petition presented under this Act to wind up a company.
(2) For the purposes of—
(a) all proceedings for determining; and
(b) all proceedings prior to the final determination of,
the issue as to whether a particular person is a contributory for the purposes of this Part, “contributory” in this Part includes any person alleged to be a contributory.
(3) Subsections (4) and (5) apply save where the terms of the provision concerned make express reference to a provisional liquidator or otherwise provide for the construction of the expression “provisional liquidator”.
(4) Where a provision of this Part is capable of being applied in the period before the making of a winding-up order (including a provision that makes provision by reference to anything that has happened in such period), then “liquidator” in that provision, to the extent that it is capable of such application or makes such provision, includes a provisional liquidator.
(5) Where the court confers any power on a provisional liquidator and the power conferred corresponds to any power express provision for which is made by a provision of this Part then, to the extent that that latter provision is capable of being applied in the period before the making of a winding-up order, “liquidator” in that provision includes a provisional liquidator.
Section 560
Restriction of this Part
560. This Part is subject to Chapters I (general provisions) and III (secondary insolvency proceedings) of the Insolvency Regulation.
Section 561
Modes of winding up — general statement as to position under Act
561. The winding up of a company may be—
(a) by the court; or
(b) voluntary.
Section 562
Types of voluntary winding up — general statement as to position under Act
562. (1) The voluntary winding up of a company—
(a) may, in accordance with the Summary Approval Procedure or (where section 579(3) permits) in accordance with section 580, be a members’ voluntary winding up unless—
(i) there is default in the making of a declaration referred to in section 207 or 580(2) in accordance with the relevant provisions of this Act; or
(ii) the court makes an order under section 582(2) in relation to the company; or
(iii) a creditors’ meeting is held in accordance with section 584 in relation to the company,
(each of which is referred to in paragraph (b) as a “bar to a members’ winding up”); or
(b) shall, where there is a bar to a members’ winding up or the procedure under section 586(2) is employed, be a creditors’ voluntary winding up.
(2) Subsection (1)(a) is in addition to the jurisdiction of the court under section 572(4) to order that a company be wound up as a members’ voluntary winding up.
(3) Nothing in subsection (1) shall be read as affecting the operation of—
(a) in the case of the Summary Approval Procedure being employed for the purpose — section 201(3), or
(b) in the case of section 580 being employed for the purpose — section 580(6).
Section 563
Provisions apply to either mode of winding up unless the contrary appears
563. The provisions of this Part relating to winding up apply, unless the contrary appears, to the winding up of a company in either of the modes mentioned in section 561.
Section 564
Jurisdiction to wind up companies and rules of court
564. (1) The court shall have jurisdiction to wind up a company.
(2) In subsections (3) to (6) the “rule making authority” means the powers under section 36 of the Courts of Justice Act 1924 and section 68 of the Courts of Justice Act 1936, and all the other powers of that Committee in that behalf, of the Superior Courts Rules Committee to make rules regulating the practice and procedure of the court.
(3) The extension of the rule making authority made by section 312 of the Act of 1963 shall continue in being.
(4) As soon as may be after the passing of this Act, the rule making authority shall be exercised so as to secure that the rules of court in force before such passing in relation to windings up are altered in a manner that brings them into conformity with this Part.
(5) In particular the rule making authority shall be so exercised so as to remove those of the functions of the court officer known as “the Examiner” as are stated in those rules to be performable for the purposes of a winding up.
(6) Subsections (4) and (5) are without prejudice to the exercise generally of the rule making authority on and from the passing of this Act, whether for any purpose of this Act or any other purpose.
Section 565
Powers of court cumulative
565. Any powers conferred on the court by this Act are in addition to, and not in restriction of, any existing powers of instituting proceedings against any contributory or debtor of the company or the estate of any contributory or debtor, for the recovery of any call or other sums.
Section 566
Court may have regard to wishes of creditors or contributories
566. (1) The court may, as to all matters relating to the winding up of a company, have regard to the wishes of the creditors or contributories of the company, as proved to it by any sufficient evidence.
(2) For the purpose of ascertaining those wishes, the court may, if it thinks fit—
(a) direct meetings of the creditors or contributories to be called, held and conducted in such manner as the court directs, and
(b) appoint a person to act as chairperson of any such meeting and report the result of the meeting to the court.
(3) In the case of creditors, regard shall be had to the value of each creditor’s debt.
(4) In the case of contributories, regard shall be had to the number of votes conferred on each contributory by this Act or the constitution of the company.
Section 567
Application of certain provisions to companies not in liquidation
567. (1) This section applies in relation to a company that is not being wound up where—
(a) execution or other process issued on a judgment, decree or order of any court in favour of a creditor of the company is returned unsatisfied in whole or in part, or
(b) it is proved to the satisfaction of the court that the company is unable to pay its debts, taking into account the contingent and prospective liabilities of the company,
and, in either case, it appears to the court that the reason or the principal reason for its not being wound up is the insufficiency of its assets.
(2) The sections specified in the Table to this section apply, with the necessary modifications, to a company to which this section applies, notwithstanding that it is not being wound up; accordingly, a person who would have standing otherwise to apply for an order or judgment under a section so specified shall have such standing to make an application under that section as so applied, but this does not affect the F452[Authority’s] power under subsection (3).
(3) The F452[Authority] may apply to the court pursuant to this subsection for an order or judgment, as the case may be, under any of the sections which apply to a company to which this section applies.
(4) References in the sections specified in the Table to this section to—
(a) the commencement of the winding up of a company,
(b) the appointment of a provisional liquidator,
(c) the making of a winding-up order, or
(d) the relevant date,
shall, for the purposes of this section, be read as references to the date—
(i) of the judgment, decree or order mentioned in subsection (1)(a), or
(ii) on which the court determines that the company is unable to pay its debts.
(5) Where, by virtue of this section, proceedings are instituted under section 599, 608, 609, 610, 612 or 672, sections 610(6) and 611 shall apply in relation to any order made as a result of those proceedings except that an order made as a result of an application by the F452[Authority pursuant to subsection (3) shall not be made in favour of the Authority], otherwise than as to his or her costs and expenses.
(6) Subject to subsection (7), a person having a claim against the company may apply to the court for such order as is appropriate by way of enforcement of any right the court on the application finds to arise on the person’s part to payment of a share of any sums or assets recovered or available following a successful application by the F452[Authority] pursuant to subsection (3), and, on the hearing of an application under this subsection, the court may make such an order accordingly.
(7) An application under subsection (6) shall be made within a period of 30 days after the date of judgment or order given on behalf or in favour of the F452[Authority] pursuant to subsection (3).
(8) Where section 721 applies by virtue of this section, it shall so apply as if the words “which is subsequently ordered to be wound up by the court or subsequently passes a resolution for voluntary winding up” were deleted from it.
TABLE
Sections to which this section applies
|
Section |
Subject |
|
Section 286(3) |
Particular case of category 1 offence arising where adequate accounting records not kept, etc. |
|
Related company may be required to contribute to debts of company being wound up |
|
|
Power of court to order return of assets which have been improperly transferred |
|
|
Personal liability of officers of company where adequate accounting records not kept |
|
|
Sections 610 and 611 |
Civil liability for fraudulent trading |
|
Power of court to assess damages against certain persons |
|
|
Directors of holding company: power of court to assess damages against them |
|
|
Power of court to summon persons for examination |
|
|
Order for payment or delivery of property against person examined under section 671 |
|
|
Order for arrest and seizure, etc. |
|
|
Inspection of books by creditors and contributories |
|
|
Other frauds by officers of companies which have gone into liquidation: offence |
|
|
Fraudulent trading of company: offence |
|
|
Order for inspection of books or documents of company in liquidation |
|
Annotations
Amendments:
F452
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. nos. 51-55, S.I. No. 335 of 2022.
CHAPTER 2
Winding up by court
Section 568
Application of Chapter
568. Save to the extent that the provision expressly provides otherwise, each provision of this Chapter applies only to a winding up that is ordered by the court.
Section 569
Circumstances in which company may be wound up by the court
569. (1) A company may be wound up by the court—
(a) if the company has by special resolution resolved that the company be wound up by the court,
(b) if the company does not commence its business within a year after the date of its incorporation or suspends its business for a continuous period of 12 months,
(c) if the members of the company are all deceased or no longer exist,
(d) if the company is unable to pay its debts,
(e) if the court is of the opinion that it is just and equitable that the company should be wound up,
(f) if the court is satisfied that the company’s affairs are being conducted, or the powers of the directors are being exercised, in a manner oppressive to any member or in disregard of his or her interests as a member and that, despite the existence of an alternative remedy, winding up would be justified in the general circumstances of the case but this paragraph is subject to subsection (2),
(g) if the court is satisfied, on a petition of the F453[Authority], that it is in the public interest that the company should be wound up, or
(h) in the circumstances referred to in section 535(2) or 542(5).
(2) The court may dismiss a petition to wind up a company under subsection (1)(f) if it is of the opinion that proceedings under section 212 would, in all the circumstances, be more appropriate.
(3) Subsection (1) is in addition to the special cases (namely those provided under sections 455(2)(d), 760 and 761) in which a company may be wound up by the court.
Annotations
Amendments:
F453
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. no. 56, S.I. No. 335 of 2022.
Modifications (not altering text):
C168
Application of section restricted (3.01.2018) by European Union (Markets in Financial Instruments) Regulations 2017 (S.I. No. 375 of 2017), reg. 148(2), (4), in effect as per reg. 1(2).
Winding up of investment firm or market operator by the Court
148. ...
(2) Notwithstanding section 569 of the Companies Act 2014, the Bank, by presenting a petition, may apply to the Court to have an investment firm, data reporting service provider or the market operator of a regulated market wound up, under Chapter 2 of Part 11 of that Act, on any of the following grounds:
(a) the investment firm or market operator is unable or, in the opinion of the Bank, may be unable to meet its obligations to its clients or creditors;
(b) the authorisation of the investment firm or market operator has been withdrawn or revoked and the firm or operator has ceased to carry on business as an investment firm or to operate a regulated market;
(c) the Bank considers that it is in the interest of the proper and orderly regulation and supervision of investment firms or regulated markets or is necessary for the protection of investors that the investment firm or the market operator of the regulated market be wound up;
(d) the investment firm or market operator has failed to comply with any direction given by the Bank under these Regulations.
...
(4) Where an investment firm or the operator of a regulated market is being wound up voluntarily and the Bank has reason to believe that any of the grounds set out in paragraph (2) are applicable, then, the Bank may, notwithstanding section 569 of the Companies Act 2014 or any other provision of that Act, apply to the Court to have an order made that an investment firm or market operator be wound up under Chapter 2 of Part 11 of that Act and the Court may make such an order accordingly.
...
Section 570
Circumstances in which company deemed to be unable to pay its debts
570. For the purposes of this Act, a company shall be deemed to be unable to pay its debts—
(a) F454[if—]
(i) a creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding €10,000 then due, has served on the company (by leaving it at the registered office of the company) a demand in writing requiring the company to pay the sum so due, and
(ii) the company has, for 21 days after the date of the service of that demand, neglected to pay the sum or to secure or compound for it to the reasonable satisfaction of the creditor,
F455[(ba) F456[…]]
or
(b) F454[if—]
(i) 2 or more creditors, by assignment or otherwise, to whom, in aggregate, the company is indebted in a sum exceeding €20,000 then due, have served on the company (by leaving it at the registered office of the company) a demand in writing requiring the company to pay the sum so due, and
(ii) the company has, for 21 days after the date of the service of that demand, neglected to pay the sum or to secure or compound for it to the reasonable satisfaction of each of the creditors,
or
(c) if execution or other process issued on a judgment, decree or order of any court in favour of a creditor of the company is returned unsatisfied in whole or in part, or
(d) if it is proved to the satisfaction of the court that the company is unable to pay its debts, and in determining whether a company is unable to pay its debts, the court shall take into account the contingent and prospective liabilities of the company.
Annotations
Amendments:
F454
Substituted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 3(2) and sch. 2, S.I. No. 639 of 2024.
F455
Inserted (21.08.2020) by Companies (Miscellaneous Provisions (Covid-19) Act 2020 (9/2020), s. 14(b), S.I. No. 320 of 2020. Note extensions of interim period by statutory instruments made under s. 12A
F456
Repealed (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 3(1) and sch. 1, S.I. No. 639 of 2024.
Editorial Notes:
E115
Previous affecting provision: paragraphs (a) and (b) substituted (21.08.2020) by Companies (Miscellaneous Provisions (Covid-19) Act 2020 (9/2020), s. 14(a), S.I. No. 320 of 2020. Note extensions of interim period by statutory instruments made under s. 12A; substituted (3.12.2024) as per F-note above.
Section 571
Provisions as to applications for winding up
571. (1) An application to the court for the winding up of a company shall be by petition presented either by—
(a) the company, or
(b) any creditor or creditors (including any contingent or prospective creditor or creditors) of the company, or
(c) any contributory or contributories of the company,
or by all or any of those parties, together or separately, but this is subject to the following provisions.
F457[(1A) Where a winding up petition is presented by the company under subsection (1), the directors of the company concerned shall notify each relevant person of the petition at the time that petition is presented or as soon as reasonably practicable after such presentation.]
(2) The court shall not give a hearing to a winding-up petition presented by a contingent or prospective creditor until such security for costs has been given as the court thinks reasonable, and until a prima facie case for winding up has been established to the satisfaction of the court.
(3) A winding-up petition on the grounds mentioned in section 569(1)(f) may be presented by any person entitled to bring proceedings for an order under section 212 in relation to the company concerned.
(4) In a case falling within section 569(1)(g) a winding-up petition may be presented by the F458[Authority].
(5) A contributory shall not be entitled to present a winding-up petition unless the shares in respect of which the person is a contributory, or some of them, either—
(a) were originally allotted to the person or have been held by the person, and registered in the person’s name, for at least 6 months during the 18 months before the commencement of the winding up, or
(b) have devolved on the person through the death of a former holder.
F457[(6) In this section, "relevant person" means, in relation to a company—
(a) an employee of the company, and
(b) where applicable, an employees’ representative.]
Annotations
Amendments:
F457
Inserted (1.07.2024) by Employment (Collective Redundancies and Miscellaneous Provisions) and Companies (Amendment) Act 2024 (14/2024), s. 20(a), (b), S.I. No. 303 of 2024.
F458
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. no. 57, S.I. No. 335 of 2022.
Section 572
Powers of court on hearing petition
572. (1) On the hearing of a winding-up petition, the court may—
(a) dismiss the petition, or
(b) adjourn the hearing conditionally or unconditionally, or
(c) make any interim order, or any other order that it thinks fit,
but the court shall not refuse to make a winding-up order on the ground only that the assets of the company have been mortgaged to an amount equal to or in excess of those assets, or that the company has no assets.
(2) The court shall not make an order for the winding up of a company unless—
(a) the court is satisfied that the company has no obligations in relation to a bank asset that has been transferred to the National Asset Management Agency or a NAMA group entity, or
(b) if the company has any such obligation—
(i) a copy of the petition has been served on that Agency, and
(ii) the court has heard that Agency in relation to the making of the order.
F459[(2A) In deciding whether it is just and equitable to make an order under this section the court shall have regard to whether the requirements of section 571(1A) have been met.]
(3) In subsection (2) “bank asset” and “NAMA group entity” have the same respective meanings as in the National Asset Management Agency Act 2009.
(4) Upon the making of an order to wind up a company, based on a ground referred to in paragraph (a), (b), (c), (e) or (f) of section 569(1), the court may order that the company be wound up as if it were a members’ voluntary winding up and, in such event, the provisions of this Part shall apply as if the company were being so wound up.
(5) Where a petitioner does not proceed with his or her winding-up petition, the court may, upon such terms as it shall deem just, substitute as petitioner any person who would have a right to present a petition in relation to the company, and who wishes to proceed with the petition.
Annotations
Amendments:
F459
Inserted (1.07.2024) by Employment (Collective Redundancies and Miscellaneous Provisions) and Companies (Amendment) Act 2024 (14/2024), s. 21, S.I. No. 303 of 2024.
Section 573
Appointment of provisional liquidator
573. F460[(1)] The court may appoint a liquidator provisionally at any time after the presentation of a winding-up petition and before the first appointment of a liquidator.
F460[(2) Where a provisional liquidator is appointed under subsection (1), the court shall direct that, as soon as reasonably practicable and in any case within such period as may be specified by the court, the provisional liquidator shall inform each relevant person—
(a) of his or her appointment as provisional liquidator and the date of his or her appointment,
(b) of the process under this Part in so far as it relates to the employees,
(c) that a relevant person may provide the provisional liquidator with information about matters they consider to be relevant, and
(d) of any other matter the provisional liquidator considers relevant.
(3) In this section, "relevant person" means, in relation to a company—
(a) an employee of the company, and
(b) where applicable, an employees’ representative.]
Annotations
Amendments:
F460
Inserted (1.07.2024) by Employment (Collective Redundancies and Miscellaneous Provisions) and Companies (Amendment) Act 2024 (14/2024), s. 22(a), (b), S.I. No. 303 of 2024.
Section 574
Power to stay or restrain proceedings against company
574. At any time after the presentation of a winding-up petition, and before a winding-up order has been made, the company or any creditor or contributory may—
(a) where any action or proceeding against the company is pending in the High Court or on appeal in the Supreme Court, apply to the court in which the action or proceeding is pending for a stay of proceedings therein, and
(b) where any other action or proceeding is pending against the company, apply to the High Court to restrain further proceedings in the action or proceeding,
and the court to which application is so made may, as the case may be, stay or restrain the proceedings accordingly on such terms and for such period as it thinks fit.
Section 575
Appointment of liquidator by the court
575. For the purpose of conducting the proceedings in winding up a company, the court may appoint a liquidator or liquidators.
Section 576
Effect of winding-up order
576. An order for winding up a company shall operate in favour of all the creditors and of all the contributories of the company, as if made on the joint petition of a creditor and of a contributory.
Section 577
Saving for rights of creditors and contributories
577. The voluntary winding up of a company shall not bar the right of any creditor or contributory to have it wound up by the court; but in the case of an application by a contributory the court must be satisfied that the rights of the contributories will be prejudiced by a voluntary winding up.
CHAPTER 3
Members’ voluntary winding up
Section 578
Application of Chapter
578. Save to the extent that the provision expressly provides otherwise, each provision of this Chapter applies only to a members’ voluntary winding up.
Section 579
Procedure for and commencement of members’ voluntary winding up
579. (1) A company may be wound up voluntarily as a members’ voluntary winding up.
(2) In all cases, save for a case falling within subsection (3), a members’ voluntary winding up shall be commenced in accordance with the Summary Approval Procedure.
(3) In either of the following cases, namely:
(a) on the expiry of the period, if any, that is fixed for the duration of a company by its constitution; or
(b) should such happen, when the event occurs on the occurrence of which a company’s constitution provides that the company is to be dissolved;
a members’ voluntary winding up of the company may, alternatively to the employment of the Summary Approval Procedure for that purpose, be commenced in accordance with section 580.
Section 580
Companies of fixed duration, etc.: alternative means of commencing members’ voluntary winding up
580. (1) In a case falling with paragraph (a) or (b) of section 579(3), a members’ voluntary winding up of a company may be commenced if the company in general meeting has passed a resolution (whether before or after expiry of the period referred to in that paragraph (a) or the happening of the event referred to in that paragraph (b)) that the company be wound up voluntarily and subsections (2) to (4) are complied with.
(2) Where, in either of the cases mentioned in subsection (1), it is proposed to wind up a company voluntarily, the directors of the company or, in the case of a company having more than 2 directors, the majority of the directors may, at a meeting of the directors, make a declaration to the effect that they have made a full inquiry into the affairs of the company, and that having done so, they have formed the opinion that the company will be able to pay or discharge its debts and other liabilities in full within such period not exceeding 12 months after the commencement of the winding up as may be specified in the declaration.
(3) Such a declaration shall have no effect for the purposes of this Part unless—
(a) it is made at a meeting of the directors held not earlier than 30 days before—
(i) the date of the meeting referred to in subsection (1), or
(ii) if the resolution referred to in that subsection is passed by the means provided under section 193 or 194, the date of the signing of the resolution by the last member to sign,
(b) it states the total amount of the company’s assets and liabilities as at the latest practicable date before the date of making of the declaration and in any event at a date not more than 3 months before the date of that making,
(c) a report made, in accordance with the provisions of that subsection, by a person referred to in subsection (4) is attached to it, and
(d) either—
(i) the company has forwarded with each notice of the meeting at which the resolution is to be considered, or
(ii) if the means referred to in section 193 or 194 for passing the resolution is followed, the company has appended to the resolution,
a copy of the declaration.
(4) The report referred to in subsection (3)(c) is a report drawn up, F461[in the form prescribed by the Minister], by a person qualified at the time of the report to be appointed, or to continue to be, the statutory auditor of the company and stating whether, in the opinion of that person, the declaration is not unreasonable.
(5) The company shall deliver, within 14 days after the commencement of the members’ voluntary winding up under this section, a copy of the foregoing declaration to the Registrar.
(6) The provisions of this section shall be read and shall operate so that a members’ voluntary winding up under this section may be carried on at a time falling before compliance with the requirement of subsection (5) that a copy of the declaration there referred to be delivered to the Registrar; however — should a failure to comply with that requirement occur — that failure then invalidates the carrying on of that activity, but this is without prejudice to the power of validation conferred on the court by subsection (7).
(7) On application to it by any interested party, the court may, in any case where there has been a failure to comply with subsection (5), declare that the carrying on of the members’ voluntary winding up shall be valid for all purposes if the court is satisfied that it would be just and equitable to do so.
Annotations
Amendments:
F461
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 98(f), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Editorial Notes:
E116
Power pursuant to subs. (4) exercised (9.11.2015) by Companies Act 2014 (Section 580(4)) (Revocation) Regulations 2015 (S.I. No. 499 of 2015).
E117
Previous affecting provision: power pursuant to subs. (4) exercised (1.06.2015) by Companies Act 2014 (Section 580(4) Members’ Voluntary Winding Up Report) Regulations 2015 (S.I. No. 217 of 2015), in effect as per reg. 1; revoked (9.11.2015) by Companies Act 2014 (Section 580(4)) (Revocation) Regulations 2015 (S.I. No. 499 of 2015), in effect as per reg. 2.
Section 581
Publication of resolution to wind up voluntarily
581. (1) Where a company has passed a resolution for its voluntary winding up, whether—
(a) the special resolution referred to in section 202(1)(a)(i) — in a case where the Summary Approval Procedure is employed, or
(b) the resolution referred to in section 580(1) — where the procedure there mentioned is employed,
it shall, within 14 days after the date of the passing of the resolution, give notice of the resolution by advertisement in Iris Oifigiúil.
(2) If default is made in complying with this section, the company concerned and any officer of it who is in default shall be guilty of a category 3 offence.
(3) For the purposes of subsection (2), the liquidator of the company shall be deemed to be an officer of the company.
Section 582
Protections and remedies for creditors in cases where declaration of solvency made
582. (1) This section applies where a company has passed a resolution to wind up voluntarily.
(2) If, on application to it by a creditor of the company in accordance with subsection (3), the court—
(a) is satisfied that such creditor, together with any creditors supporting him or her in the application, represents one-fifth at least in number or value of the creditors of the company, and
(b) is of opinion that it is unlikely that the company will be able to pay or discharge its debts and other liabilities within the period specified in the declaration concerned referred to in section 207 or 580(2),
the court may order that all the provisions of this Act relating to a creditors’ voluntary winding up shall apply to the winding up of the company.
(3) An application under subsection (2) shall be made within 30 days after the date on which the resolution for voluntary winding up of the company has been advertised under section 581(1).
(4) If (in a case where the Summary Approval Procedure is employed) an application is made by one or more members of the company in accordance with section 211 to cancel the special resolution referred to in section 202(1)(a)(i), the court may direct that that application and an application that is made under subsection (2) shall be heard together or may give such other direction in the matter as it thinks just.
(5) If the court makes an order of the kind referred to in subsection (2)—
(a) the person who held the office of liquidator immediately prior to the making of the order, or
(b) if no liquidator is acting, the company to which the order relates,
shall, within 21 days after the date of the making of the order, deliver a certified copy of such order to the Registrar.
(6) If default is made in complying with subsection (5), the person referred to in paragraph (a) of it or, as the case may be, the company concerned and any officer of it who is in default shall be guilty of a category 4 offence.
(7) Section 210 (civil sanctions where opinion as to solvency stated in declaration without reasonable grounds) shall apply in relation to a declaration referred to in section 580(2) and, for this purpose, references in section 210 to the opinion referred to in section 203(1)(f), 204(1)(f), 205(1)(c), 206(1)(b) or 207(1)(b) shall be read as references to the opinion referred to in section 580(2).
Section 583
Power of company to appoint liquidators
583. The company in general meeting shall appoint one or more liquidators for the purpose of winding up the affairs and distributing the assets of the company.
Section 584
Duty of liquidator to call creditors’ meeting if of opinion that company unable to pay its debts
584. (1) If the liquidator is at any time of the opinion that the company will not be able to pay or discharge its debts and other liabilities in full within the period stated in the declaration concerned referred to in section 207 or 580(2), as the case may be, the liquidator shall—
(a) summon a meeting of creditors for a day not later than the 14th day after the day on which he or she formed that opinion,
(b) send notices of the creditors’ meeting to the creditors by post not less than 10 days before the day on which that meeting is to be held,
(c) cause notice of the creditors’ meeting to be advertised, at least 10 days before the date of the meeting, once in Iris Oifigiúil and once at least in 2 daily newspapers circulating in the locality in which the company’s principal place of business in the State was situated during the relevant period, and
(d) during the period before the day on which the creditors’ meeting is to be held, furnish creditors free of charge with such information concerning the affairs of the company as they may reasonably require,
and the notice of the creditors’ meeting shall state the duty imposed by paragraph (d).
F462[(1A) F463[…]
(1B) F463[…]]
(2) The liquidator shall also—
(a) make out a statement in the prescribed form as to the affairs of the company, including a statement of the company’s assets and liabilities, a list of the outstanding creditors and the estimated amount of their claims,
(b) lay that statement before the creditors’ meeting, and
(c) attend and preside at that meeting.
(3) As from the day on which the creditors’ meeting is held under this section, this Act shall have effect as if—
(a) without prejudice to the powers of the court under section 582(2), the directors’ declaration referred to in section 207 or 580(2), as the case may be, had not been made, and
(b) the creditors’ meeting and the company meetings at which it was resolved that the company be wound up voluntarily were the meetings mentioned in section 587,
and, accordingly, the winding up shall become a creditors’ voluntary winding up and any appointment made or committee established by the creditors’ meeting shall be deemed to have been made or established by the creditors’ meeting so mentioned.
(4) The appointment of a liquidator at a meeting called under this section shall not, subject to subsection (5), affect the validity of any action previously taken by the liquidator appointed by the members of the company.
(5) Where—
(a) the creditors appoint a liquidator at a meeting called under this section, and
(b) there is a dispute as to any or all of the costs, charges or expenses incurred by, the liquidator appointed by the members of the company,
the liquidator appointed by the creditors, or any creditor, may apply to the court to determine the dispute and the court may, on such application, make such order as it thinks fit.
(6) Nothing in this section shall read as taking away any right in this Act of any person to present a petition to the court for the winding up of a company.
(7) If the liquidator fails to comply with subsection (1), he or she shall be guilty of a category 3 offence.
(8) In this section “relevant period” means the period of 6 months immediately preceding the day on which were sent the notices summoning the company meeting at which it was resolved that the company be wound up voluntarily.
Annotations
Amendments:
F462
Inserted (21.08.2020) by Companies (Miscellaneous Provisions (Covid-19) Act 2020 (9/2020), s. 15, S.I. No. 320 of 2020. Note extensions of interim period by statutory instruments made under s. 12A
F463
Repealed (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 3(1) and sch. 1, S.I. No. 639 of 2024.
CHAPTER 4
Creditors’ voluntary winding up
Section 585
Application of Chapter
585. Save to the extent that the provision expressly provides otherwise, each provision of this Chapter applies only to a creditors’ voluntary winding up.
Section 586
Resolution for and commencement of creditors’ voluntary winding up
586. (1) A company may be wound up voluntarily as a creditors’ voluntary winding up.
(2) A winding up of a company as a creditors’ voluntary winding up pursuant to subsection (1) may be initiated by the company in general meeting resolving that it cannot by reason of its liabilities continue its business, and that it be wound up as a creditors’ voluntary winding up.
(3) A company shall be wound up as a creditors’ voluntary winding up—
(a) if a creditors’ meeting is held in accordance with section 584 in relation to the company, or
(b) if the court makes an order under section 582(2) in relation to the company, or
(c) if, in a case in which—
(i) a special resolution referred to in section 202(1)(a)(i) — where the Summary Approval Procedure is purported to be employed, or
(ii) the resolution referred to in section 580(1) — where the procedure there mentioned is purported to be employed,
is purported to be passed, the declaration referred to in section 207 or 580(2) is not made in accordance with the relevant provisions of Chapter 7 of Part 4 or section 580, as the case may be.
(4) Where a company has passed a resolution for it to be wound up as a creditors’ voluntary winding up, it shall, within 14 days after the date of the passing of the resolution, give notice of the resolution by advertisement in Iris Oifigiúil.
(5) If default is made in complying with subsection (4), the company concerned and any officer of it who is in default shall be guilty of a category 3 offence.
(6) For the purposes of subsection (5), the liquidator of the company shall be deemed to be an officer of the company.
Section 587
Meeting of creditors
587. (1) The company shall cause a meeting of the creditors of the company (the “creditors’ meeting”) to be summoned for the day, or the day next following the day, on which there is to be held the meeting at which the resolution for a creditors’ voluntary winding up is to be proposed.
(2) For that purpose, the company shall send to each creditor, at least 10 days before the date of the creditors’ meeting, notice in writing of such meeting.
(3) The notice required by subsection (2) shall—
(a) state the date, time and location of the creditors’ meeting,
F464[(aa) F465[…]]
F466[(ab) inform the creditors of the company of their power to appoint a committee of inspection under section 667,]
(b) state the name and address of the person at that time proposed for appointment as liquidator, if any, and
(c) either—
(i) attach a list of the creditors of the company, or
(ii) notify the recipient of his or her rights under subsection (4), together with details of the location at which the list of creditors of the company may be inspected.
(4) A creditor who has not been provided with a copy of the list of the creditors of the company under subsection (3)(c)(i) may, at any time prior to the holding of the creditors’ meeting—
(a) having given the company 24 hours notice in writing of his or her intention to do so, inspect during business hours the list of creditors of the company at the registered office of the company, or
(b) request the company in writing to deliver a copy of the list of creditors of the company to him or her, and such a request shall be complied with by the company.
(5) That copy may be delivered by the company to the requesting person by post or, with the consent of the requesting person, in any other manner.
(6) The company shall cause notice of the creditors’ meeting to be advertised, at least 10 days before the date of the meeting, once at least in 2 daily newspapers circulating in the district where the registered office or principal place of business of the company is situate; such notice is not required to include F467[…], pursuant to subsection (3)(c)(i), to the notice required by subsection (2).
(7) The directors of the company shall—
(a) cause a full statement of the position of the company’s affairs, together with a list of the creditors of the company and the estimated amount of their claims, to be laid before the creditors’ meeting, and
(b) appoint one of their number to preside at that meeting and it shall be the duty of the director so appointed to attend the creditors’ meeting and preside at it.
(8) In the case of a company having a sole director, subsection (7)(b) shall be read as imposing the duty there provided on that director.
(9) If the meeting of the company at which the resolution for voluntary winding up is to be proposed is adjourned and the resolution is passed at an adjourned meeting, any resolution passed at the creditors’ meeting shall have effect as if it had been passed immediately after the passing of the resolution for winding up the company.
(10) If default is made by the company—
(a) in complying with subsection (1), (2), (3) or (6), or
(b) in permitting an inspection under subsection (4)(a), or
(c) in complying with a request under subsection (4)(b),
the company and any officer of it who is in default shall be guilty of a category 3 offence.
(11) If default is made by the directors of the company in complying with subsection (7) or by any director in complying with his or her duty under that subsection, the directors or director, as the case may be, shall be guilty of a category 3 offence.
Annotations
Amendments:
F464
Inserted (21.08.2020) by Companies (Miscellaneous Provisions (Covid-19) Act 2020 (9/2020), s. 16(a), S.I. No. 320 of 2020. Note extensions of interim period by statutory instruments made under s. 12A.
F465
Repealed (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 3(1) and sch. 1, S.I. No. 639 of 2024.
F466
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 6, S.I. No. 673 of 2021.
F467
Deleted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 3(2) and sch. 2, S.I. No. 639 of 2024.
Editorial Notes:
E118
Previous affecting provision: subsection (6) substituted (21.08.2020) by Companies (Miscellaneous Provisions (Covid-19) Act 2020 (9/2020), s. 16(b), S.I. No. 320 of 2020. Note extensions of interim period by statutory instruments made under s. 12A; deleted (3.12.2024) as per F-note above.
Section 588
Appointment of liquidator
588. (1) The creditors and the company at their respective meetings mentioned in section 587 may nominate a person to be liquidator for the purpose of winding up the company.
(2) Subject to subsection (4), if—
(a) the creditors and the company nominate different persons, the person nominated by the creditors shall be liquidator, and
(b) if no person is nominated by the creditors, the person, if any, nominated by the company shall be liquidator.
(3) Where a person nominated by the company to be liquidator takes office before the creditors make their nomination and a different person is nominated by the creditors, the first-mentioned person shall, by virtue of subsection (2)(a), vacate office on the second-mentioned person’s being nominated but—
(a) this is without prejudice to subsection (4); and
(b) for the period before the holding of the creditors’ meeting under section 587, the first-mentioned person’s powers as liquidator are restricted as provided for in section 630(2).
(4) Where different persons are nominated as liquidator, any director, member or creditor of the company may, within 14 days after the date on which the nomination was made by the creditors, apply to the court for the following order.
(5) That order is an order either—
(a) directing that the person nominated as liquidator by the company shall be liquidator instead of or jointly with the person nominated by the creditors, or
(b) appointing some other person to be liquidator instead of the person nominated by the creditors,
and the court, on the making of an application under subsection (4), may make such an order accordingly.
(6) If at a meeting of creditors mentioned in section 587 a resolution as to the creditors’ nominee as liquidator is proposed, it shall be deemed to be passed when a majority, in value only, of the creditors present personally or by proxy and voting on the resolution have voted in favour of the resolution.
CHAPTER 5
Conduct of winding up
Section 589
Commencement of court ordered winding up
589. (1) Save in a case falling within subsection (2), the winding up of a company by the court shall be deemed to commence at the time of the presentation of the winding-up petition in respect of the company.
(2) Where, before the presentation of a winding-up petition in respect of a company, a resolution has been passed by the company for voluntary winding up, then, despite the fact that that petition is granted, the winding up of the company shall be deemed to have commenced at the time of the passing of the resolution.
(3) In a case falling within subsection (2), unless the court, on proof of fraud or mistake, thinks fit to direct otherwise, all proceedings taken in the voluntary winding up shall be deemed to have been validly taken.
Section 590
Commencement of voluntary winding up
590. A voluntary winding up shall be deemed to commence at the time of the passing of the resolution for voluntary winding up.
Section 591
Copy of order for winding up or appointment to be forwarded to Registrar
591. (1) On the making of a winding-up order—
(a) such officer of the court as may be prescribed or directed by the court shall forthwith cause the Registrar to be furnished with such particulars as may be prescribed of the order, and
(b) a copy of the order shall, save where the company is the petitioner, be served by the petitioner, or such other person as the court may direct, upon the company at its registered office (if any) or, if there is no registered office or notice has not been given to the Registrar of such office, at its principal or last known principal place of business or upon such other person or persons or in such other manner as the court may direct.
(2) In a winding up by the court, on the making of an order appointing a liquidator (other than a provisional liquidator), such officer of the court as may be prescribed shall forthwith cause the Registrar to be furnished with such particulars as may be prescribed of the order.
Section 592
Notice by voluntary liquidator of his or her appointment
592. (1) In a voluntary winding up, the liquidator of the company shall, within 14 days after the date of his or her appointment, deliver to the Registrar a notice of his or her appointment.
(2) Subsection (1) does not apply in the case of an appointment to which section 636 or 637 (subsequent appointments of liquidator) applies; section 643 governs notifications and filings of subsequent such appointments.
(3) The Registrar shall forward a copy of that notice of appointment to the F468[Authority].
(4) If a liquidator of a company fails to comply with subsection (1), he or she shall be guilty of a category 4 offence.
Annotations
Amendments:
F468
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. no. 58, S.I. No. 335 of 2022.
F469
Substituted by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 51, not commenced as of date of revision.
Modifications (not altering text):
C169
Prospective affecting provision: subs. (1) amended by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 51, not commenced as of date of revision.
592. (1) In a voluntary winding up, the liquidator of the company shall, within 14 days after the date of his or her appointment, deliver to the Registrar a F469[notice in the prescribed form] of his or her appointment.
Section 593
Statement of company’s affairs
593. (1) Where the court has made a winding-up order or appointed a provisional liquidator in relation to a company, there shall, unless the court thinks fit to order otherwise and so orders, be made out and filed in the court a statement as to the affairs of the company (the “statement”) in the prescribed form, verified by affidavit.
(2) The statement shall show—
(a) particulars of the company’s assets, debts and liabilities,
(b) the names, residences and occupations of the company’s creditors,
(c) the securities held by those creditors respectively,
(d) the dates when those securities were respectively given, and
(e) such further or other information as may be prescribed or as the court may require.
(3) The statement shall be so filed and verified by—
(a) subject to paragraph (b), one or more of the persons who are at the relevant date the directors of the company, or
(b) such of the persons mentioned in subsection (4) as the court may require to so file and verify the statement.
(4) The persons referred to in subsection (3)(b) are persons—
(a) who are or have been officers of the company,
(b) who have taken part in the formation of the company at any time within 12 months before the relevant date,
(c) who are in the employment of the company, or have been in the employment of the company within that period of 12 months, and are, in the opinion of the court, capable of giving the information required,
(d) who are or have been within that period of 12 months officers of or in the employment of a company which is, or within that period of 12 months was, an officer of the company to which the statement relates.
(5) The statement shall be so filed within 21 days after the relevant date or within such extended time as the court may for special reasons appoint.
(6) Subject to section 594(7), any person making or concurring in making the statement and affidavit required by this section shall be allowed, and shall be paid out of the assets of the company, such costs and expenses incurred in and about the preparation and making of the statement and affidavit as the court may allow.
Section 594
Supplemental provisions in relation to section 593
594. (1) In section 593 and this section the “relevant date” means—
(a) in a case where a provisional liquidator is appointed to the company, the date of his or her appointment, and
(b) in a case where no such appointment is made, the date of the winding-up order in respect of the company.
(2) The one or more persons who have made the statement of affairs of a company under section 593 (the “statement”) shall serve a copy of the statement on the liquidator (or the provisional liquidator, as the case may be) of the company as soon as may be after it is prepared and in any case not later than the expiry of 21 days after the relevant date or such extended time as the court may appoint under section 593(5).
F470[(2A) Notwithstanding the generality of subsection (9), where a copy of the statement is served on the liquidator (or the provisional liquidator, as the case may be) of the company in accordance with subsection (2), the liquidator (or the provisional liquidator, as the case may be) shall, not later than the expiry of 7 days after the date the copy is served on the liquidator (or the provisional liquidator, as the case may be), notify each relevant person that he or she has been served with a copy of the statement.
(2B) Notice under subsection (2A) shall be given—
(a) where the liquidator (or the provisional liquidator, as the case may be) is aware of a relevant person’s email address, by electronic means to that email address, or
(b) where the liquidator (or the provisional liquidator, as the case may be)—
(i) gives notice by electronic means to an email address and receives in response a failed delivery notification, or
(ii) is not aware of a relevant person’s email address,
by ordinary post where the liquidator (or the provisional liquidator, as the case may be) is aware of the relevant person’s postal address.
(2C) A relevant person may request the liquidator (or the provisional liquidator, as the case may be) in writing to deliver a copy of the statement by electronic means to him or her, and the liquidator (or the provisional liquidator, as the case may be) shall comply with any such request not later than the expiry of 7 days after the date of such request.]
(3) The one or more persons who have made the statement shall—
(a) at the liquidator’s request, provide to the liquidator such information in relation to the company as the liquidator may reasonably require, and
(b) provide such assistance, as they are in a position to give, to the liquidator during the course, and for the purpose, of the liquidator’s examining (following his or her receipt of the statement) the company’s affairs as he or she may reasonably require.
(4) Where any person fails to comply with the request of a liquidator made in accordance with subsection (3), the court may, on the application of the liquidator, direct the person to comply with such request.
(5) In subsections (3) and (4), “liquidator” does not include a provisional liquidator.
(6) A person who is required to make or concur in making any statement of affairs of a company shall, before incurring any costs or expenses in and about the preparation and making of the statement, apply—
(a) to the liquidator for his or her sanction and submit to the liquidator a statement of the estimated costs and expenses which the person intends to incur, or
(b) if there is no liquidator, to the court for its sanction.
(7) Except by order of the court, no person shall be allowed out of the assets of the company any costs or expenses in and about the preparation of a statement of affairs which have not, before being incurred, been sanctioned by the liquidator or the court.
(8) If any person, without reasonable excuse, makes default in complying with any of the requirements of section 593 or with any of the preceding requirements of this section, he or she shall be guilty of a category 3 offence.
(9) Any person who states in writing that the person is a creditor or contributory of the company shall, on payment of the prescribed fee, be entitled personally, or by his or her agent—
(a) to inspect, at all reasonable times, the statement registered in pursuance of section 593, and
(b) to be furnished with a copy of, or an extract from, it.
(10) Any person, not being a creditor or contributory of a company, who fraudulently states himself or herself to be a creditor or contributory of the company for the purpose of seeking to avail himself or herself of the provisions of subsection (9) shall be guilty of a category 3 offence.
F470[(11) In this section, "relevant person" means, in relation to a company—
(a) an employee of the company, and
(b) where applicable, an employees’ representative.]
Annotations
Amendments:
F470
Inserted (1.07.2024) by Employment (Collective Redundancies and Miscellaneous Provisions) and Companies (Amendment) Act 2024 (14/2024), s. 23(a), (b), S.I. No. 303 of 2024.
Section 595
Notification that a company is in liquidation, etc.
595. (1) Every invoice, order for goods or business letter issued by or on behalf of—
(a) a company that is being wound up, or
(b) a liquidator of such a company,
being a document on or in which the name of the company appears, shall contain a statement that the company is being wound up.
(2) Subsection (1) is in addition (in cases where a company is in receivership) to the obligations of the receiver of the property of the company under section 429.
(3) Every invoice, order for goods or business letter issued by or on behalf of—
(a) a company to which a provisional liquidator has been appointed,
(b) a provisional liquidator of the company, or
(c) a receiver of the property of such a company,
being a document—
(i) on or in which the name of the company appears, and
(ii) issued during the period of office of the provisional liquidator as such provisional liquidator,
shall contain a statement that a provisional liquidator has been appointed to the company.
(4) Any website of a company that is being wound up, and any electronic mail sent to a third party by, or on behalf of, such a company, shall contain a statement that the company is being wound up (and such a statement on a website shall be in a prominent and easily accessible place on it).
(5) Where the winding up of a company commences within one year after the date on which the company has changed its name in accordance with this Act, the former name as well as the existing name of the company shall appear on all notices and advertisements in relation to the winding up and in any website of the company and in any electronic mail sent to a third party by, or on behalf of, it.
(6) If default is made in complying with subsection (1), (3) or (other than a case dealt with by subsection (7)) (5)—
(a) the company concerned and any officer of it who is in default, and
(b) any of the following persons who knowingly and intentionally authorises or permits the default, namely, any liquidator of the company and any receiver,
shall be guilty of a category 3 offence.
(7) If default is made in complying with the requirement under subsection (4) or (5) concerning the company’s website, the company concerned and any officer of it who is in default shall be guilty of a category 3 offence.
(8) If default is made by a company, or any person acting on its behalf, in complying with the requirement under subsection (4) or (5) concerning electronic mail, then—
(a) in every case, the company and any officer of it who is in default, and
(b) where the default is made by a person acting on the company’s behalf, that person,
shall be guilty of a category 3 offence.
(9) In this section “third party” means a person other than—
(a) an officer or employee of the company concerned, or
(b) a holding company or subsidiary of the company or an officer or employee of that holding company or subsidiary.
CHAPTER 6
Realisation of assets and related matters
Section 596
Custody of company’s property
596. (1) Upon the appointment of a liquidator to a company, the liquidator shall take into his or her custody or under his or her control the seal, books and records of the company, and all the property to which the company is or appears to be entitled.
(2) A person who, without lawful entitlement or authority, has—
(a) at the date of the appointment of a liquidator to a company, possession or control of the books, records or other property of the company, or
(b) subsequent to such date comes into such possession or control,
shall surrender immediately to the liquidator such books, records or other property, as the case may be.
(3) In this section “liquidator” does not include a provisional liquidator.
Section 597
Circumstances in which floating charge is invalid
597. (1) F471[Subject to section 598A, where a company] is being wound up, a floating charge on the undertaking or property of the company created within 12 months before the date of commencement of the winding up shall, unless it is proved that the company immediately after the creation of the charge was solvent, be invalid.
(2) Subsection (1) does not apply to—
(a) money actually advanced or paid, or the actual price or value of goods or services sold or supplied, to the company at the time of or subsequently to the creation of, and in consideration for, the charge, nor
(b) interest on that amount at the appropriate rate.
(3) For the purposes of subsection (2), the value of any goods or services sold or supplied by way of consideration for a floating charge is the amount in money which at the time they were sold or supplied could reasonably have been expected to be obtained for the goods or services in the ordinary course of business and on the same terms (apart from the consideration) as those on which they were sold or supplied to the company.
(4) Where a floating charge on the undertaking or property of a company is created in favour of a connected person, subsection (1) shall apply to such a charge as if the period of 12 months mentioned in that subsection were a period of 2 years.
Annotations
Amendments:
F471
Substituted (27.07.2022) by European Union (Preventive Restructuring) Regulations 2022 (S.I. No. 380 of 2022) reg. 20, subject to restriction on application in reg. 3.
Section 598
Other circumstances in which floating charge is invalid
598. (1) F472[Subject to section 598A, where —]
(a) a company is being wound up,
(b) the company was, within 12 months before the date of commencement of the winding up, indebted to any officer of the company or a connected person,
(c) such indebtedness was discharged whether wholly or partly by the company or by any other person, and
(d) the company created a floating charge on any of its assets or property within 12 months before the date of commencement of the winding up in favour of the officer or connected person to whom such company was indebted,
then (without prejudice to any rights or liabilities arising apart from this section) such charge shall be invalid to the extent of the repayment referred to in paragraph (c) unless it is proved that the company immediately after the creation of the charge was solvent.
(2) In this section, “officer” includes a spouse, civil partner, child or nominee of an officer and the reference in this subsection to a child of an officer shall be deemed to include a child of the officer’s civil partner who is ordinarily resident with the officer and the civil partner.
Annotations
Amendments:
F472
Substituted (27.07.2022) by European Union (Preventive Restructuring) Regulations 2022 (S.I. No. 380 of 2022) reg. 21, subject to restriction on application in reg. 3.
Section 598A
F473[Validity of floating charge in certain circumstances
598A. In any winding up of a company under this Part, a floating charge created as part of a transaction that was –
(a) reasonable,
(b) immediately necessary for the implementation of a scheme of arrangement under Part 10, and
(c) carried out in accordance with a scheme of arrangement confirmed by a court under section 541,
shall not be declared to be invalid in full or in pfart under section 597 or section 598 on the basis that the transaction was detrimental to the general body of creditors of the company unless there are other circumstances in which the transaction should be declared invalid.]
Annotations
Amendments:
F473
Inserted (27.07.2022) by European Union (Preventive Restructuring) Regulations 2022 (S.I. No. 380 of 2022) reg. 22, subject to restriction on application in reg. 3.
Section 599
Related company may be required to contribute to debts of company being wound up
599. (1) On the application of the liquidator or any creditor or contributory of a company that is being wound up, the court, if it is satisfied that it is just and equitable to do so, may make the following order.
(2) That order is one that any company that is or has been related to the company being wound up shall pay to the liquidator of that company an amount equivalent to the whole or part of all or any of the debts provable in that winding up.
(3) The court may specify that that order shall be subject to such terms and conditions as the court thinks fit.
(4) In deciding whether it is just and equitable to make an order under this section the court shall have regard to the following matters:
(a) the extent to which the related company took part in the management of the company being wound up;
(b) the conduct of the related company towards the creditors of the company being wound up;
(c) the effect which such order would be likely to have on the creditors of the related F474[company concerned;]
F475[(d) the extent to which the circumstances that gave rise to the winding up of the company are attributable to the acts or omissions of the related company;
(e) such other matters as the court considers appropriate.]
(5) F476[…]
(6) Notwithstanding any other provision, it shall not be just and equitable to make an order under this section if the only ground for making the order is—
(a) the fact that a company is related to another company, or
(b) that creditors of the company being wound up have relied on the fact that another company is or has been related to the first-mentioned company.
(7) For the purposes of this section—
“company” includes any company, and any other body, which is liable to be wound up under this Act;
“creditor” means a creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding €10,000 or 2 or more creditors, by assignment or otherwise, to whom in aggregate the company is indebted in a sum exceeding €20,000.
(8) Where an application for an order under this section seeks to require a credit institution to contribute to the debts of a related company, a copy of every such application shall be sent by the applicant to the Central Bank which shall be entitled to be heard by the court before an order is made.
Annotations
Amendments:
F474
Substituted (1.07.2024) by Employment (Collective Redundancies and Miscellaneous Provisions) and Companies (Amendment) Act 2024 (14/2024), s. 24(a)(i), S.I. No. 303 of 2024.
F475
Inserted (1.07.2024) by Employment (Collective Redundancies and Miscellaneous Provisions) and Companies (Amendment) Act 2024 (14/2024), s. 24(a)(ii), S.I. No. 303 of 2024.
F476
Deleted (1.07.2024) by Employment (Collective Redundancies and Miscellaneous Provisions) and Companies (Amendment) Act 2024 (14/2024), s. 24(b), S.I. No. 303 of 2024.
Section 600
Pooling of assets of related companies
600. (1) Where 2 or more related companies are being wound up and the court, on the application of the liquidator, or any creditor or contributor, of any of the companies, is satisfied that it is just and equitable to do so, it may make the following order.
(2) That order is one that, to the extent specified in the order, the companies shall be wound up together as if they were one company, and if such an order is made, it shall, subject to the provisions of this section, have effect and all the relevant provisions of this Part shall apply accordingly.
(3) The court may specify that that order shall be subject to such terms and conditions as the court thinks fit.
(4) In determining those terms and conditions, the court shall have particular regard to the interests of those persons who are members of some, but not all, of the companies.
(5) Where the court makes an order under this section—
(a) the court may remove any liquidator of any of the companies, and appoint any person to act as liquidator of any one or more of the companies,
(b) the court may give such directions as it thinks fit for the purpose of giving effect to the order,
(c) nothing in this section or the order shall affect the rights of any secured creditor of any of the companies,
(d) debts of a company that are to be paid in priority to all other debts of the company pursuant to sections 621 and 622 shall, to the extent that they are not paid out of the assets of that company, be subject to the claims of holders of debentures under any floating charge created by any of the other companies,
(e) unless the court otherwise orders, the claims of all unsecured creditors of the companies shall rank equally among themselves.
(6) In deciding whether it is just and equitable to make an order under this section, the court shall have regard to the following matters:
(a) the extent to which any of the companies took part in the management of any of the other companies;
(b) the conduct of any of the companies towards the creditors of any of the other companies;
(c) the extent to which the circumstances that gave rise to the winding up of any of the companies is attributable to the acts or omissions of any of the other companies;
(d) the extent to which the businesses of the companies have been intermingled.
(7) Notwithstanding any other provision, it shall not be just and equitable to make an order under this section if the only ground for making the order is—
(a) the fact that a company is related to another company, or
(b) that creditors of a company being wound up have relied on the fact that another company is or has been related to the first-mentioned company.
(8) Notice of an application to the court for the purposes of this section shall be served on every company specified in the application, and on such other persons as the court may direct, not later than the end of the 8th day before the day the application is heard.
(9) Without prejudice to subsection (8), where a related company, the subject of an application for an order under this section, is a credit institution, a copy of the application shall be sent by the applicant to the Central Bank which shall be entitled to be heard by the court before an order is made.
Section 601
Power of liquidator to accept shares as consideration for sale of property of company
601. (1) This section applies where a company is proposed to be, or is in course of being, wound up as a members’ voluntary winding up, and the whole or part of its business or property is proposed to be transferred or sold to another company, whether a company registered under this Act, an existing company or any other type of company or undertaking (in this section referred to as the “transferee company”).
(2) Where this section applies, the liquidator of the first-mentioned company in subsection (1) (in this section referred to as the “transferor company”) may, subject to subsection (3)—
(a) in compensation or part compensation for the foregoing transfer or sale, receive shares, policies or other like interests in the transferee company for distribution among the members of the transferor company, or
(b) enter into any other arrangement whereby the members of the transferor company may, in lieu of receiving cash, shares, policies or other like interests, or in addition to them, participate in the profits of, or receive any other benefit from, the transferee company.
(3) The powers of the liquidator under subsection (2) are not exercisable unless a special resolution of the company sanctions the exercise of those powers by the liquidator, whether generally or with regard to the particular arrangement concerned, but this subsection is without prejudice to subsections (5) and (8).
(4) Any sale or arrangement in pursuance of this section shall be binding on the members of the transferor company.
(5) If—
(a) the voting rights conferred by any shares in the transferor company were not cast in favour of the resolution concerned referred to in subsection (3) conferring the sanction there mentioned on the liquidator, and
(b) the holder of those shares expresses his or her dissent from such sanction in writing addressed to the liquidator and left at the registered office of the company within 7 days after the date of passing of the resolution,
that holder may require the liquidator either to—
(i) abstain from carrying the resolution into effect, or
(ii) purchase that part of his or her interest which those shares represent at a price to be determined by agreement, or by arbitration in accordance with subsections (9) and (10).
(6) If the liquidator elects to purchase that holder’s interest, the purchase money shall be paid before the company is dissolved and, unless otherwise provided for, shall be deemed to be, and shall be paid as part of, the costs, charges and expenses of the winding up.
(7) A resolution referred to in subsection (3) shall not be invalid for the purposes of this section by reason that it was obtained before or concurrently—
(a) with the passing of—
(i) the special resolution referred to in section 202(1)(a)(i) — in a case where the Summary Approval Procedure is employed, or
(ii) the resolution referred to in section 580(1) — where the procedure there mentioned is employed,
or
(b) with the passing of a resolution for appointing a liquidator or liquidators in that winding up.
(8) However a resolution referred to in subsection (3) shall not be effective to confer the sanction there mentioned if an order is made, within a year after the date of the resolution’s passing, for winding up the company by the court, unless the resolution is confirmed by the court.
(9) An arbitration referred to in subsection (5)(ii) shall be conducted by a single arbitrator appointed by agreement in writing between the holder of shares referred to in subsection (5) and the liquidator or, in the absence of such agreement, by 2 arbitrators, one of whom shall be appointed in writing by each party to the arbitration.
(10) The provisions of the Arbitration Act 2010 applicable to arbitrations referred to in section 29 of that Act shall apply to an arbitration referred to in subsection (5).
Section 602
Voidance of dispositions of property, etc. after commencement of winding up
602. (1) This section applies to each of the following acts in any winding up of a company:
(a) any disposition of the property of the company;
(b) any transfer of shares in the company; or
(c) any alteration in the status of the members of the company,
made after the commencement of the winding up.
(2) Without prejudice to subsection (3), an act to which this section applies that is done without the sanction of—
(a) the liquidator of the company, or
(b) a director of the company who has, by virtue of section 677(3) retained the power to do such act,
shall, unless the court otherwise orders, be void.
(3) Nothing in this section makes a person who does an act rendered void by this section liable for doing such act, being an act that was done by the person at the request of the company, unless it is proved that, prior to the person’s doing the act, the person had actual notice that the company was being wound up.
(4) If a company that is being wound up makes a request of a person to do an act referred to in subsection (3) and does not, at or before the time of making the request, inform the person that it is being wound up, the company and any officer of it who is in default shall be guilty of a category 2 offence.
(5) Nothing in subsection (4) shall be read as limiting any liability, civil or criminal, that, apart from this section, may attach to a company, or any officer of it, for making a request of the kind referred to in that subsection, irrespective of the consideration that the relevant facts have been communicated to the person concerned or that those facts are otherwise in the knowledge of that person.
Section 603
Voidance of executions against property of company
603. Unless the court orders otherwise, where a company is being wound up, each of the following shall be void, namely, any—
(a) attachment,
(b) sequestration,
(c) distress, or
(d) execution,
put in force against the property or effects of the company after the commencement of the winding up.
Section 604
Unfair preference: effect of winding up on antecedent and other transactions
604. (1) Subsection (2) applies to each of the following acts, namely, any:
(a) conveyance;
(b) mortgage; or
(c) delivery of goods, payment, execution or other act,
relating to property made or done by or against a company, which is unable to pay its debts as they become due, in favour of—
(i) any creditor of the company, or
(ii) any person on trust for any such creditor.
(2) An act to which this subsection applies, that is done with a view to giving the creditor referred to in F477[subsection (1)(i) or (ii)], or any surety or guarantor for the debt due to such creditor, a preference over the other creditors of the company, shall be deemed an unfair preference of its creditors and be invalid accordingly if—
(a) a winding up of the company commences within 6 months F478[(or such longer period as the court considers just and equitable having regard to the circumstances of the act concerned)] after the date of the doing of the act, and
(b) the company is, at the time of the commencement of the winding up, unable to pay its debts (taking into account the contingent and prospective liabilities).
(3) Any conveyance or assignment by a company of all its property to trustees for the benefit of all its creditors shall be void.
(4) An act to which subsection (2) applies in favour of a connected person which was done within 2 years F478[(or such longer period as the court considers just and equitable having regard to the circumstances of the act concerned)] before the commencement of the winding up of the company shall, unless the contrary is shown, be deemed in the event of the company being wound up—
(a) to have been done with a view to giving such person a preference over the other creditors, and
(b) to be an unfair preference, and be invalid accordingly.
(5) Subsections (2) and (4) shall not affect the rights of any person making title in good faith and for valuable consideration through or under a creditor of the company.
F479[(6) In any winding up of a company under this Part, an act carried out as part of a transaction that was –
(a) reasonable,
(b) immediately necessary for the implementation of a scheme of arrangement under Part 10, and
(c) carried out in accordance with a scheme of arrangement confirmed by a court under section 541,
shall not be deemed to be an unfair preference under this section on the basis that the transaction was detrimental to the general body of creditors of the company unless there are other reasons why the transaction should be deemed invalid.]
Annotations
Amendments:
F477
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 98(g), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F478
Inserted (1.07.2024) by Employment (Collective Redundancies and Miscellaneous Provisions) and Companies (Amendment) Act 2024 (14/2024), s. 25(a), (b), S.I. No. 303 of 2024.
F479
Inserted (27.07.2022) by European Union (Preventive Restructuring) Regulations 2022 (S.I. No. 380 of 2022) reg. 23, subject to restriction on application in reg. 3.
Section 605
Liabilities and rights of persons who have been unfairly preferred
605. (1) Where—
(a) a company is being wound up, and
(b) any act done is void under section 604 as an unfair preference of a person interested in property mortgaged or charged to secure the company’s debt,
then (without prejudice to any rights or liabilities arising apart from this section) the person preferred shall be subject to the same liabilities and shall have the same rights as if he or she had undertaken to be personally liable as surety for the debt to the extent of the charge on the property or the value of his or her interest, whichever is the less.
(2) The value of the foregoing person’s interest shall be determined as at the date of the act constituting the unfair preference, and shall be determined as if the interest were free of all encumbrances other than those to which the charge for the company’s debt was then subject.
(3) On any application made to the court in relation to any payment on the ground that the payment was an unfair preference of a surety or guarantor, the court—
(a) may determine any questions relating to the payment arising between the person to whom the payment was made and the surety or guarantor and grant relief in respect thereof, and
(b) for that purpose, may give leave to bring in the surety or guarantor as a third party as in the case of an action for the recovery of the sum paid,
and jurisdiction to do any of those things may be exercised notwithstanding that it is not necessary to exercise such jurisdiction for the purposes of the winding up.
(4) Subsection (3) shall apply, with the necessary modifications, in relation to transactions other than the payment of money as it applies to payments.
Section 606
Restriction of rights of creditor as to execution or attachment in case of company being wound up
606. (1) Subject to subsections (2) to (4), where a creditor has—
(a) issued execution against the goods or lands of a company, or
(b) attached any debt due to the company,
and the company is subsequently wound up, the creditor shall not be entitled to retain the benefit of the execution or attachment against the liquidator in the winding up of the company unless the creditor has completed the execution or attachment before the commencement of the winding up.
(2) In a case where a creditor has had notice of a meeting having been called at which a resolution for voluntary winding up of the company concerned is to be proposed, then, for the purposes of subsection (1), the date on which the creditor so had notice shall be substituted for the date of the commencement of the winding up.
(3) A person who purchases in good faith, under a sale by a sheriff, any goods of a company on which an execution has been levied shall, in all cases, acquire a good title to them against the liquidator.
(4) Notwithstanding subsection (1), the rights conferred by that subsection on the liquidator may be set aside by the court in favour of the creditor to such extent and subject to such terms as the court thinks fit.
(5) For the purposes of this section—
(a) an execution against goods shall be deemed to be completed by seizure and sale,
(b) an attachment of a debt shall be deemed to be completed by receipt of the debt,
(c) an execution against land shall be deemed to be completed by seizure, and
(d) an execution in the case of an equitable interest shall be deemed to be completed by the appointment of a receiver.
(6) Nothing in this section shall give any validity to any payment constituting an unfair preference.
(7) In this section—
“goods” includes all chattels personal;
“sheriff” includes any officer charged with the execution of a writ or other process.
Section 607
Duties of sheriff as to goods taken in execution
607. (1) Subject to subsection (5), where any goods of a company are taken in execution and, before the sale of them or the completion of the execution by the receipt or recovery of the full amount of the levy, notice is served on the sheriff that, in relation to the company—
(a) a provisional liquidator has been appointed, or
(b) a winding-up order has been made, or
(c) a resolution for voluntary winding up has been passed,
the sheriff shall, on being required to do so by the liquidator, deliver to the liquidator the goods and any money seized or received in part satisfaction of the execution.
(2) However, in the foregoing case, the costs of the execution shall be a first charge on the goods or the money so delivered, and the liquidator may sell the goods or a sufficient part of them for the purpose of satisfying that charge.
(3) Subject to subsection (5), where under an execution in respect of a judgment for a sum exceeding €1,000 the goods of a company are sold or money is paid in order to avoid sale, the following procedures shall be adopted by the sheriff, namely, he or she shall—
(a) deduct the costs of the execution from the proceeds of the sale or the money paid,
(b) retain the balance for a period of 14 days after the date of the sale or the payment of the money,
and, if the events referred to in subsection (4)(a) and (b) occur, the sheriff shall pay the balance to the liquidator of the company who shall be entitled to retain it as against the execution creditor.
(4) The events mentioned in subsection (3) are—
(a) within the period referred to in subsection (3)(b), notice is served on the sheriff of a petition for the winding up of the company having been presented or of a meeting having been called at which there is to be proposed a resolution for the voluntary winding up of the company, and
(b) an order is made or a resolution is passed, as the case may be, for the winding up of the company.
(5) Notwithstanding subsection (1) or (3), the rights conferred by either subsection on the liquidator may be set aside by the court in favour of the creditor to such extent and subject to such terms as the court thinks fit.
(6) The notice referred to in subsection (1) or (4) shall be in writing and addressed to the sheriff and may be served by being delivered by hand, or by pre-paid registered post, at his or her office.
(7) In this section “goods” and “sheriff” have the same meaning as they have in section 606.
Section 608
Power of the court to order return of assets which have been improperly transferred
608. (1) The court has the following power where, on the application of a liquidator, creditor or contributory of a company which is being wound up, it can be shown to the satisfaction of the court that—
(a) any property of the company of any kind whatsoever was disposed of either by way of conveyance, transfer, mortgage, security, loan, or in any way whatsoever whether by act or omission, direct or indirect, and
(b) the effect of such disposal was to perpetrate a fraud on the company, its creditors or members.
(2) That power of the court is to order, if it deems it just and equitable to do so, any person who appears to have—
(a) the use, control or possession of the property concerned, or
(b) the proceeds of the sale or development of that property,
to deliver it or them, or pay a sum in respect thereof, to the liquidator on such terms or conditions as the court thinks fit.
(3) This section shall not apply to any conveyance, mortgage, delivery of goods, F480[payment made in the ordinary course of business], execution or other act relating to property made or done by or against a company to which section 604 applies.
(4) In deciding whether it is just and equitable to make an order under this section, the court shall have regard to the rights of persons who have bona fide and for value acquired an interest in the property the subject of the application.
(5) This section is in addition to, and not in substitution for, any restitutionary or other relief by way of recovery (including the remedy of tracing) that is available to a liquidator or any other person.
Annotations
Amendments:
F480
Substituted (1.07.2024) by Employment (Collective Redundancies and Miscellaneous Provisions) and Companies (Amendment) Act 2024 (14/2024), s. 26, S.I. No. 303 of 2024.
Section 609
Personal liability of officers of company where adequate accounting records not kept
609. (1) Subject to subsection (2), if—
(a) a company that is being wound up and that is unable to pay all of its debts has contravened any of sections 281 to 285, and
(b) the court considers that such contravention has—
(i) contributed to the company’s inability to pay all of its debts, or
(ii) resulted in substantial uncertainty as to the assets and liabilities of the company, or
(iii) substantially impeded the orderly winding up of the company,
the court, on the application of the liquidator or any creditor or contributory of the company, has the following power.
(2) That power of the court is to declare, if it thinks it proper to do so, that any one or more of the officers and former officers of the company who, with respect to the contravention, is or are in default shall be personally liable, without any limitation of liability, for all, or such part as may be specified by the court, of the debts and other liabilities of the company.
(3) On the hearing of an application under this section, the person bringing the application may himself or herself give evidence or call witnesses.
(4) Where the court makes a declaration under this section, it may give such directions as it thinks proper for the purpose of giving effect to the declaration.
(5) In particular, and without limiting subsection (4), the order providing for a declaration under this section, or a supplemental order, may include provision for making the liability of any person under the declaration (the “respondent”) a charge on—
(a) any debt or obligation due from the company to the respondent, or
(b) any mortgage or charge, or any interest in any mortgage or charge, on any assets of the company held by or vested in—
(i) the respondent or any company or other person on the respondent’s behalf, or
(ii) any person claiming as assignee from or through the respondent or any company or other person acting on behalf of the first-mentioned person in this subparagraph.
(6) The court may from time to time make such further order as may be necessary for the purpose of enforcing any charge imposed under subsection (5).
(7) In subsection (5)(b)(ii) “assignee” includes any person to whom or in whose favour, by the directions of the person liable under the declaration, the debt, obligation, mortgage or charge was created, issued or transferred or the interest created; however the expression does not include an assignee for valuable consideration (not including consideration by way of marriage) given in good faith and without notice of any of the matters on the ground of which the declaration is made.
(8) The court shall not make a declaration under this section in respect of a person if it considers that—
(a) the person took all reasonable steps to secure compliance by the company with sections 281 to 285, or
(b) the person had reasonable grounds for believing and did believe that a competent and reliable person, acting under the supervision or control of a director of the company who has been formally allocated such responsibility, was—
(i) charged with the duty of ensuring that those sections were complied with, and
(ii) in a position to discharge that duty.
(9) This section shall have effect notwithstanding that the person concerned may be criminally liable in respect of the matters on the ground of which the declaration is to be made.
(10) In this section “officer”, in relation to a company, includes a person who has been convicted of an offence under section 389, 392, 393, 406 or 876 concerning accounting records of the company or, as the case may be, a statement made to statutory auditors concerning such records.
Section 610
Civil liability for fraudulent or reckless trading of company
610. (1) If in the course of the winding up of a company or in the course of proceedings under Part 10 in relation to a company F481[, or in the course of a rescue period under Part 10A in respect of an eligible company,], it appears that—
(a) any person was, while an officer of the company, F482[…] a party to the carrying on of any business of the company in a reckless manner, or
(b) any person was knowingly a party to the carrying on of any business of the company with intent to defraud creditors of the company, or creditors of any other person or for any fraudulent purpose,
the court, on the application of the F483[liquidator, examiner or process adviser of the company], a receiver of property of the company or any creditor or contributory of it, has the following power.
(2) That power of the court is to declare, if it thinks it proper to do so, that the person first-mentioned in paragraph (a) or (b) of subsection (1) shall be personally responsible, without any limitation of liability, for all or any part of the debts or other liabilities of the company as the court may direct.
(3) Without prejudice to the generality of subsection (1)(a), an officer of a company F484[may be found to have been a party] to the carrying on of any business of the company in a reckless manner if—
(a) the person was a party to the carrying on of such business and, having regard to the general knowledge, skill and experience that may reasonably be expected of a person in his or her position, the person ought to have known that his or her actions or those of the company F484[would be likely to cause loss] to the creditors of the company, or any of them, or
(b) the person was a party to the contracting of a debt by the company and did not honestly believe on reasonable grounds that the company would be able to pay the debt when it fell due for payment as well as all its other debts (taking into account the contingent and prospective liabilities).
(4) Notwithstanding anything contained in subsection (2), the court may grant a declaration on the grounds set out in subsection (1)(a) only if—
(a) paragraph (a), (b), (c) or (d) of section 570 applies to the company concerned, and
(b) an applicant for such a declaration, being a creditor or contributory of the company or any person on whose behalf such application is made, suffered loss or damage as a consequence of any behaviour mentioned in subsection (1).
(5) In deciding whether it is proper to make a declaration on the ground set out in subsection (3)(b), the court shall have regard to whether the creditor in question was, at the time the debt was incurred, aware of the company’s financial state of affairs and, notwithstanding such awareness, nevertheless assented to the incurring of the debt.
(6) Where the court makes a declaration under this section, it may provide that sums recovered under this section shall be paid to such person or classes of persons, for such purposes, in such amounts or proportions at such time or times and in such respective priorities among themselves as such declaration may specify.
(7) On the hearing of an application under this section, the applicant may himself or herself give evidence or call witnesses.
F484[(8) (a) Where it appears to the court that any person in respect of whom a declaration has been sought on the grounds set out in subsection (1)(a) took, from the relevant time, such steps as were reasonably practicable with a view to minimising such loss as he or she ought to have taken, the court may, having regard to all the circumstances of the case, relieve him or her either wholly or in part, from personal liability on such terms as it may think fit.
(b) In this subsection, "relevant time" means, in relation to a person referred to in paragraph (a), the time from which he or she knew or ought to have known that his or her actions or those of the company would be likely to cause loss to the creditors of the company.]
F481[(9) In assessing any application under this section, the court may take into account whether section 558S(5) applies to a director of a company.
(10) In this section, "eligible company", "process adviser" and "rescue period" have the meanings assigned to them by section 558A.]
Annotations
Amendments:
F481
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 7(a)(i), (b), S.I. No. 673 of 2021.
F482
Deleted (1.07.2024) by Employment (Collective Redundancies and Miscellaneous Provisions) and Companies (Amendment) Act 2024 (14/2024), s. 27(a), S.I. No. 303 of 2024.
F483
Substituted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 7(a)(ii), S.I. No. 673 of 2021.
F484
Substituted (1.07.2024) by Employment (Collective Redundancies and Miscellaneous Provisions) and Companies (Amendment) Act 2024 (14/2024), s. 27(b)(i), (ii), (c), S.I. No. 303 of 2024.
Section 611
Supplemental provisions in relation to section 610
611. (1) Where the court makes a declaration under section 610, it may give such directions as it thinks proper for the purpose of giving effect to the declaration.
(2) In particular, and without limiting subsection (1) or section 610(6), the order providing for a declaration under section 610, or a supplemental order, may include provision for making the liability of any person under the declaration (the “respondent”) a charge on—
(a) any debt or obligation due from the company to the respondent, or
(b) any mortgage or charge, or any interest in any mortgage or charge, on any assets of the company held by or vested in—
(i) the respondent or any company or other person on the respondent’s behalf, or
(ii) any person claiming as assignee from or through the respondent or any company or other person acting on behalf of the first-mentioned person in this subparagraph.
(3) Where a charge is imposed as mentioned in subsection (2), the court may from time to time make such further order as may be necessary for the purpose of enforcing that charge.
(4) Section 610(1)(a) shall not apply in relation to the carrying on of the business of a company during a period when the company is under the protection of the court.
(5) Section 610 and this section shall have effect notwithstanding that—
(a) the person in respect of whom the declaration has been sought under section 610 may be criminally liable in respect of the matters on the ground of which such declaration is to be made, or
(b) any matter or matters on the ground of which the declaration under section 610 is to be made have occurred outside the State.
(6) In section 610 “officer”, in relation to a company, includes a statutory auditor or liquidator or provisional liquidator of the company, a receiver of property of the company and a shadow director of it.
(7) In subsection (2)(b)(ii) “assignee” includes any person to whom or in whose favour, by the directions of the person liable, the debt, obligation, mortgage or charge was created, issued or transferred or the interest created, but does not include an assignee for valuable consideration (not including consideration by way of marriage) given in good faith and without notice of any of the matters on the ground of which the declaration is made.
Section 612
Power of court to assess damages against certain persons
612. (1) Subsection (2) applies if in the course of winding up a company it appears that—
(a) any person who has taken part in the formation or promotion of the company, or
(b) any past or present officer, liquidator, provisional liquidator or examiner of the company, or receiver of the property of the company,
has misapplied or retained or become liable or accountable for any money or property of the company, or has been guilty of any misfeasance or other breach of duty or trust in relation to the company.
(2) The court may, on the application of the F485[Authority] or the liquidator or any creditor or contributory of the company, examine into the conduct of the promoter, officer, liquidator, examiner or receiver, and compel him or her—
(a) to repay or restore the money or property or any part of it respectively with interest at such rate as the court thinks just, or
(b) to contribute such sum to the assets of the company by way of compensation in respect of the misapplication, retainer, misfeasance or other breach of duty or trust as the court thinks just.
(3) This section shall have effect notwithstanding that the person in respect of whom an order has been sought under it may be criminally liable in respect of the matters on the ground of which the order is to be made.
Annotations
Amendments:
F485
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. no. 59, S.I. No. 335 of 2022.
Section 613
Directors of holding company: power of court to assess damages against them
613. (1) Subsection (2) applies if, in the course of winding up a company which is a subsidiary of another company, it appears that any director of the subsidiary’s holding company has—
(a) misapplied or retained or become liable or accountable for any money or property of the subsidiary, or
(b) been guilty of any misfeasance or other breach of duty or trust in relation to the subsidiary.
(2) The court may, on the application of the liquidator or any creditor, contributory or member of the subsidiary, examine into the conduct of the director concerned and compel him or her—
(a) to repay or restore the money or property or any part of it respectively with interest at such rate as the court thinks just, or
(b) to contribute such sum to the assets of the subsidiary by way of compensation in respect of the misapplication, retainer, misfeasance or other breach of duty or trust as the court thinks just.
(3) This section—
(a) shall have effect notwithstanding that the person in respect of whom an order has been sought under it may be criminally liable in respect of the matters on the ground of which the order is to be made, and
(b) is without prejudice to any other basis for imposing liability on any person (whether related to the company or not) in respect of the person’s acts or defaults in relation to the company or its property.
Section 614
Vesting of property of company in liquidator
614. (1) Where a company is being wound up, the court may, on the application of the liquidator, by order, direct that all or any part of the property of whatsoever description belonging to the company or held by trustees on its behalf shall vest in the liquidator by his or her official name.
(2) On such an order being made—
(a) the property to which the order relates shall vest accordingly in the liquidator, and
(b) the liquidator may, after giving such indemnity, if any, as the court may direct,
bring or defend in his or her official name any action or other legal proceeding which relates to that property or which it is necessary to bring or defend for the purpose of effectually winding up the company and recovering its property.
Section 615
Disclaimer of onerous property in case of company being wound up
615. (1) In this section “onerous property” means property (whether tangible or intangible) that is property of a company which is being wound up and that falls into one or more of the following categories:
(a) land of whatsoever kind burdened with onerous covenants;
(b) shares or stock in any company or undertaking;
(c) an unprofitable contract;
(d) any other property which is unsaleable or not readily saleable by reason of its binding the possessor of it to the performance of any onerous act or to the payment of any sum of money.
(2) Subject to subsections (4) and (7), the liquidator of the company concerned may, with the leave of the court and subject to the provisions of this section, by writing signed by him or her, at any time within the relevant period, disclaim onerous property; such leave may be granted by the court and the property disclaimed notwithstanding that the liquidator—
(a) has endeavoured to sell or has taken possession of the property, or
(b) has exercised any act of ownership in relation to it.
(3) In subsection (2) “relevant period” means the period of 12 months after the date of the commencement of the winding up of the company or such extended period as may be allowed by the court.
(4) Where the existence of onerous property has not come to the knowledge of the liquidator of the company concerned within one month after the date of the commencement of the winding up, the power under this section of disclaiming the property may be exercised at any time within 12 months after the date on which the liquidator has become aware thereof or such extended period as may be allowed by the court.
(5) The disclaimer shall operate to determine, as from the date of disclaimer, the rights, interests and liabilities of the company, and the property of the company, in or in respect of the property disclaimed; however it shall not, except so far as is necessary for the purpose of releasing the company and the property of the company from liability, affect the rights or liabilities of any other person.
(6) The court, before or on granting leave to disclaim, may require such notices to be given to persons interested and impose such terms as a condition of granting leave, and make such other order in the matter as the court thinks just.
(7) The liquidator shall not be entitled to disclaim any property under this section in any case where—
(a) an application in writing has been made to the liquidator by any person interested in the property requiring the liquidator to decide whether he or she will or will not disclaim, and
(b) the liquidator has not, within a period of 28 days after the date of receipt of the application or such further period as may be allowed by the court, given notice to the applicant that he or she intends to apply to the court for leave to disclaim.
(8) Any person damaged by the operation of a disclaimer under this section shall be deemed to be a creditor of the company concerned to the amount of the damages, and may accordingly prove the amount as a debt in the winding up.
Section 616
Rescission of certain contracts and provisions supplemental to section 615
616. (1) The court may, on the application of any person who is, as against the liquidator, entitled to the benefit or subject to the burden of a contract made with the company, make an order rescinding the contract on such terms as to payment by or to either party of damages for the non-performance of the contract, or otherwise as the court thinks just.
(2) Any damages payable under such an order to any such person shall be deemed to be a debt proved and admitted in the winding up.
(3) Subject to subsection (6), the court, on an application by any person who either claims any interest in any property disclaimed under section 615 or is under any liability not discharged by this Act in respect of any property so disclaimed, has, on hearing any such persons as it thinks fit, the following power.
(4) That power of the court is to make an order for the vesting of the property in, or the delivery of the property to, any person entitled to it, or to whom it may seem just that the property should be delivered by way of compensation for any liability of the foregoing kind, or a trustee for him or her, and on such terms as the court may think just.
(5) On any such vesting order being made, the property comprised therein shall vest accordingly in the person named in the order in that behalf without any conveyance or assignment for the purpose.
(6) Where the property disclaimed under section 615 is of a leasehold nature, the court shall not make a vesting order under this section in favour of any person claiming under the company, whether as under-lessee or as mortgagee by demise, except upon the terms of making that person—
(a) subject to the same liabilities and obligations as those to which the company was subject under the lease in respect of the property at the commencement of the winding up, or
(b) if the court thinks fit, subject only to the same liabilities and obligations as if the lease had been assigned to that person at that date,
and in either event (if the case so requires), as if the lease had comprised only the property comprised in the vesting order.
(7) Any mortgagee or under-lessee declining to accept the making of a vesting order upon such terms as are referred to in subsection (6) shall be excluded from all interest in and security upon the property concerned.
(8) If there is no person claiming under the company who is willing to accept the making of an order upon such terms as are referred to in subsection (6), the court shall have power to vest the estate and interest of the company in the property concerned in any person liable either personally or in a representative character, and either alone or jointly with the company, to perform the lessee’s covenants in the lease, freed and discharged from all estates, encumbrances and interests created therein by the company.
CHAPTER 7
Distribution
Section 617
Costs, etc. in winding up
617. (1) All costs, charges and expenses properly incurred in the winding up of a company, including the remuneration of the liquidator, remaining after payment of—
(a) the fees and expenses properly incurred in preserving, realising or getting in the assets, and
(b) where the company has previously commenced to be wound up voluntarily, such remuneration, costs and expenses as the court may allow to a liquidator appointed in such voluntary winding up,
shall be payable out of the property of the company in priority to all other claims, and shall be paid or discharged in the order of priority set out in subsection (2).
(2) The costs, charges and expenses referred to in subsection (1) shall, subject to any order made by the court in a winding up by it, be liable to the following payments which shall be made in the following order of priority, namely:
(a) First — In the case of a winding up by the court, the costs of the petition, including the costs of any person appearing on the petition whose costs are allowed by the court;
(b) Next — Any costs and expenses necessarily incurred in connection with the summoning, advertisement and holding of a creditors’ meeting under section 587;
(c) Next — The costs and expenses necessarily incurred in and about the preparation and making of, or concurring in the making of, the statement of the company’s affairs and the accompanying list of creditors and the amounts due to them as required by section 587(7);
(d) Next — The necessary disbursements of the liquidator, other than expenses properly incurred in preserving, realising or getting in the assets as provided for in subsection (1);
(e) Next — The costs payable to the solicitor for the liquidator;
(f) Next — The remuneration of the liquidator;
(g) Next — The out-of-pocket expenses necessarily incurred by the committee of inspection (if any).
(3) Subsection (4) applies in relation to a person who has provided funds to discharge any such costs, charges or expenses (other than costs or expenses referred to in subsection (2)(b) or (c)) as are referred to in subsection (1).
(4) Such person shall be entitled to be reimbursed to the extent of the funds so provided by him or her in the same order of priority as to payment out of the property of the company as would otherwise have applied to the costs, charges or expenses concerned.
Section 618
Distribution of property of company
618. (1) Subject to the provisions of this Act as to preferential payments, the property of a company on its winding up—
(a) shall, subject to subsection (2), be applied in satisfaction of its liabilities pari passu, and
(b) shall, subject to such application, and unless the constitution of the company otherwise provides, be distributed among the members according to their rights and interests in the company.
(2) Nothing in subsection (1)(a) shall in any way affect any rights or obligations of the company or any other person arising as a result of any agreement entered into by any person under which any particular liability of the company to any general creditor is postponed in favour of or subordinated to the rights or claims of any other person to whom the company may be in any way liable.
(3) Subject to the provisions of this Part, in the case of a members’ voluntary winding up, the liquidator may, with the sanction of a special resolution of the company and any other sanction required by this Act, divide among the members, in specie or kind, the whole or any part of the property of the company (whether they shall consist of property of the same kind or not) and may, for such purpose—
(a) set such value as he or she deems fair upon any property to be divided in that manner, and
(b) determine how such division shall be carried out as between the members or different classes of members,
but so that no member shall be compelled to accept any shares or other securities on which there is any liability.
(4) In the case of such a voluntary winding up, the liquidator may, subject to the provisions of this Part and with the like sanction, vest the whole or any part of such property in trustees upon such trusts for the benefit of the members as the liquidator, with the like sanction, shall think fit, but so that no member shall be compelled to accept any shares or other securities on which there is any liability.
(5) In subsection (2)—
“liability” includes a contingent liability;
“person” includes a class of persons.
Section 619
Application of bankruptcy rules in winding up of insolvent companies
619. (1) In the winding up of an insolvent company the same rules shall prevail and be observed relating to—
(a) the respective rights of secured and unsecured creditors,
(b) debts provable, and
(c) the valuation of annuities and future and contingent liabilities,
as are in force for the time being under the law of bankruptcy relating to the estates of persons adjudicated bankrupt.
(2) In particular, all persons who in any such case would be entitled to prove for and receive dividends out of the property of the company may come in under the winding up and make such claims against the company as they respectively are entitled to by virtue of this section.
(3) Subsection (1) of section 51 of the Bankruptcy Act 1988 shall apply in the winding up of an insolvent company and, accordingly, the reference in that subsection to the date of adjudication shall be read as—
(a) subject to paragraph (b), a reference to, as the case may be—
(i) the presentation of a petition for the winding up of the company by the court, or
(ii) the passing of a resolution for voluntary winding up,
and
(b) where, before the presentation of a petition for the winding up of the company by the court, a resolution has been passed by the company for voluntary winding up, a reference to the passing of the resolution.
Section 620
Debts which may be proved
620. (1) Subject to the provisions of this section, in a winding up (subject, in the case of insolvent companies, to the application in accordance with the provisions of this Act of the law of bankruptcy) the following shall be admissible to proof against the company:
(a) all debts payable on a contingency; and
(b) all claims against the company, present or future, certain or contingent, ascertained or sounding only in damages;
a just estimate being made, so far as possible, of the value of such debts or claims which may be subject to any contingency or which sound only in damages, or for some other reason do not bear a certain value.
(2) The value of such debts and claims as are made admissible to proof by subsection (1) shall, as far as possible, be estimated according to the value thereof at the date on which the winding up shall be deemed to have commenced by virtue of section 589 or 590, as the case may be (referred to subsequently in this section as the “commencement date”).
(3) When any rent or other payment falls due at stated times and the order or resolution to wind up is made at any time other than at one of those times, the persons entitled to the rent or payment may prove for a proportionate part of it up to the commencement date as if the rent or payment accrued due from day to day but this is subject to subsection (4).
(4) Where the liquidator remains in occupation of premises demised to a company which is being wound up, nothing in subsection (3) shall affect the right of the landlord of such premises to claim payment of rent during the period of the company’s occupation after the commencement of the winding up.
(5) Subsection (6) applies to a debt or sum if all of the following conditions are satisfied in respect of it:
(a) it is a debt or sum certain;
(b) it is payable at a certain time or otherwise;
(c) interest on it is not reserved or agreed for; and
(d) it is overdue at the commencement date.
(6) The creditor may prove for interest on a debt or sum to which this subsection applies at a rate, not exceeding the appropriate rate, for the period up to the commencement date and beginning—
(a) if the debt or sum is payable by virtue of a written instrument at a certain time—at the time when the debt or sum was so payable, and
(b) if the debt or sum is payable otherwise — at the making of a demand in writing in respect of it, being a demand giving notice that interest will be claimed from the date of the demand until the time of payment.
(7) A creditor may prove for a debt not payable at the commencement date as if it were payable presently, and may receive dividends equally with the other creditors, deducting only thereout a rebate of interest at the appropriate rate computed from the declaration of a dividend to the time when the debt would have become payable according to the terms on which it was contracted.
(8) Unless the company’s constitution or the conditions of issue of the shares in question provide otherwise, dividends declared by a company more than 6 years preceding the commencement date, being dividends which have not been claimed within that period of 6 years, shall not be a claim admissible to proof against the company for the purposes of the winding up.
Section 621
Preferential payments in a winding up
621. (1) In this section the “relevant date” means—
(a) where the company is ordered to be wound up, the date of the appointment (or first appointment) of a provisional liquidator or, if no such appointment was made, the date of the winding-up order, unless, in either case, the company had commenced to be wound up voluntarily before that date, and
(b) where paragraph (a) does not apply, the date of the passing of the resolution for the winding up of the company.
(2) In a winding up there shall be paid in priority to all other debts—
(a) the following rates and taxes:
(i) all local rates due from the company at the relevant date and having become due and payable within the period of 12 months before that date;
(ii) each tax assessable on, in relation to, or by the company under the Taxes Consolidation Act 1997 in respect of, or apportioned on a time basis to, a period ending on or before the relevant date, for which the tax concerned is due and payable, but the particular period (in respect of which priority under this subparagraph for the tax concerned is claimed) shall not be of more than 12 months’ duration;
(iii) any amount due at the relevant date in respect of sums which an employer is liable under Part 18D or Chapter 4 of Part 42 of the Taxes Consolidation Act 1997 and regulations thereunder to deduct from emoluments to which that Part or Chapter applies paid by that employer during the period of 12 months next ended on or before the relevant date reduced by any amount which that employer was under that Part or Chapter and regulations thereunder liable to repay during that period, with the addition of interest payable under section 991 of that Act;
(iv) any tax and interest for which the company is liable under the Value-Added Tax Consolidation Act 2010 in relation to taxable periods which shall have ended within the period of 12 months next ended before the relevant date;
(v) any local property tax that the company is liable to remit to the Revenue Commissioners under section 74 of the Finance (Local Property Tax) Act 2012 during the period of 12 months next ended before the relevant date and any interest payable in relation to that tax under section 149 of that Act;
(vi) an amount of local property tax payable, under section 16 of the Finance (Local Property Tax) Act 2012, by the company at the relevant date to the extent that such tax is payable in respect of any one liability date (within the meaning of section 2 of that Act) falling before the relevant date and any interest payable in relation to that tax under section 149 of that Act,
(b) all wages or salary—
(i) whether or not earned wholly or in part by way of commission, or
(ii) whether payable for time or for piece work,
of any employee in respect of services rendered to the company during the period of 4 months before the relevant date,
(c) all accrued holiday remuneration becoming payable to any employee (or, in the case of the person’s death, to any other person in his or her right) on the termination of the employee’s employment before or by the effect of the winding up order or resolution,
(d) unless the company is being wound up voluntarily merely for the purposes of reconstruction or of amalgamation with another company—
(i) all amounts due in respect of contributions which are payable during the 12 months before the relevant date by the company as the employer of any persons under the Social Welfare Acts, and
(ii) all amounts due in respect of contributions which would have been payable under the provisions of section 13(2)(d) of the Social Welfare Consolidation Act 2005 by the company as the employer of any persons in respect of any remuneration in respect of any period of employment during the 12 months before the relevant date even if such remuneration is paid after the relevant date,
(e) unless the company is being wound up voluntarily merely for the purposes of reconstruction or of amalgamation with another company, all amounts due from the company in respect of damages and costs or liability for damages and costs, payable to a person employed by it in connection with an accident, being an accident occurring—
(i) before the relevant date, and
(ii) in the course of the person’s employment with the company,
F486[to the extent that the company] is not effectively indemnified by insurers against such damages and costs,
(f) all sums due to any employee pursuant to any scheme or arrangement for the provision of payments to the employee while he or she is absent from employment due to ill health,
(g) any payments due at any time by the company pursuant to any scheme or arrangement for the provision of superannuation benefits to or in respect of employees of the company whether such payments are due—
(i) in respect of the company’s contribution to that scheme or under that arrangement, or
(ii) in respect of such contributions payable by the employees to the company under that scheme or arrangement which have been deducted from the wages or salaries of F487[employees.]
F488[(h) F489[…]
(i) F489[…]]
F488[(2A) F489[…]
(2B) F489[…]]
(3) Subsection (2) is in addition to any other enactment providing for the priority of a particular debt or sum in a winding up.
(4) Subject to subsection (5), and notwithstanding anything in subsection (2)(b), the sum to which priority is to be given under subsection (2)(b) shall not, in the case of any one claimant, exceed €10,000.
(5) Where a claimant under subsection (2)(b) is a farm labourer who has entered into a contract for payment of a portion of his or her wages in a lump sum at the end of the year of hiring, he or she shall have priority in respect of the whole of such sum, or such part thereof as the court may decide to be due under the contract, proportionate to the time of service up to the relevant date.
(6) Where any payment has been made—
(a) to any employee of a company, on account of wages or salary, or
(b) to any employee or, in the case of his or her death, to any other person in his or her right, on account of accrued holiday remuneration, or
(c) to any employee while he or she is absent from employment due to ill health or pursuant to any scheme or arrangement for the provision of superannuation benefit to or in respect of him or her,
out of money advanced by some person for that purpose, the person by whom the money was advanced shall, in a winding up, have a right of priority in respect of the money so advanced and paid up to the amount by which the sum, in respect of which the employee or other person in his or her right, would have been entitled to priority in the winding up has been diminished by reason of the payment having been made.
(7) F487[The foregoing] debts shall—
(a) rank equally among themselves and be paid in full, unless the assets are insufficient to meet them, in which case they shall abate in equal proportions, and
(b) so far as the assets of the company available for payment of general creditors are insufficient to meet them, have priority over the claims of holders of debentures under F490[any charge created as a floating charge by the company], and be paid accordingly out of any property comprised in or subject to that charge.
(8) Subject to the retention of such sums as may be necessary for the costs and expenses of the winding up, the foregoing debts shall be discharged forthwith so far as the assets are sufficient to meet them, and in the case of debts to which priority is given by subsection (2)(d), formal proof of them shall not be required except in so far as is otherwise provided by rules of court.
Annotations
Amendments:
F486
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 92(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F487
Substituted (29.03.2019) by European Union (Bank Recovery And Resolution) Regulations 2019 (S.I. No. 127 of 2019), reg. 4(c)(i)(I), (iii).
F488
Inserted (15.07.2015) by European Union (Bank Recovery and Resolution) Regulations 2015 (S.I. No. 289 of 2015), reg. 189(4)(a)(ii), (b), in effect as per reg. 1(2).
F489
Deleted (29.03.2019) by European Union (Bank Recovery And Resolution) Regulations 2019 (S.I. No. 127 of 2019), reg. 4(c)((i)(II), (ii).
F490
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 92(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Modifications (not altering text):
C170
Application of section construed by Taxes Consolidation Act 1997 (39/1997), s. 1080A(8)(d) as inserted (1.08.2020) by Financial Provisions (Covid-19) (No. 2) Act 2020 (8/2020), s. 6, commenced on enactment.
Interest on overdue tax - supplementary provision
1080A. ...
(8) Subject to subsection (9)—
(a) every enactment relating to the recovery of tax,
(b) every rule of court so relating,
(c) section 81 of the Bankruptcy Act 1988, and
(d) sections 440 and 621 of the Companies Act 2014,
shall apply to the recovery of any amount of interest payable on that tax as if that amount of interest were a part of that tax.
C171
Certain claims given precedence over claims under section (1.01.2016) by European Union (Insurance and Reinsurance) Regulations 2015 (S.I. No. 485 of 2015), reg. 277(1).
Treatment of insurance claims
277. (1) Insurance claims shall, with respect to assets representing the technical provisions of an insurance undertaking, take absolute precedence over any other claims on the insurance undertaking including claims accorded preference under section 621 of the Act of 2014.
...
C172
Certain debts made preferential payments (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 49(1), S.I. No. 410 of 2015.
Provisions relating to winding up and bankruptcy
49. (1)There shall be included among the debts that, under section 285 of the Companies Act 1963 or section 621 of the Companies Act 2014 are, in the distribution of the assets of a company being wound up, to be paid in priority to all other debts, all compensation payable by virtue of this Part by the company to an employee, and the said section 285 or 621, as may be appropriate, shall have effect accordingly, and formal proof of the debts to which priority is given under this subsection shall not be required except in cases where provision is otherwise made in relation thereto under the Companies Act 1963 or the Companies Act 2014 , as may be appropriate.
...
Editorial Notes:
E119
Previous affecting provisions: subs. (2)(g)(ii), (7) amended (15.07.2015) by European Union (Bank Recovery and Resolution) Regulations 2015 (S.I. No. 289 of 2015), reg. 189(4)(a)(i), (c), in effect as per reg. 1(2); substituted as per F-note above.
Section 622
Supplemental provisions in relation to section 621
622. (1) Subject to subsection (2), in the event of a landlord or other person distraining or having distrained on any goods or effects of a company within the period of 3 months before the relevant date, the debts to which priority is given by section 621 shall be a first charge on the goods or effects so distrained on, or the proceeds of the sale thereof.
(2) In respect of any money paid under any such charge as is referred to in subsection (1), the landlord or other person shall have the same rights of priority as the person to whom the payment is made.
(3) For the purpose of section 621 any remuneration in respect of a period of holiday, or absence from work through good cause, shall be deemed to be wages in respect of services rendered to a company during that period.
(4) Subject to subsection (5), the Minister may by order alter the amount specified in section 621(4).
(5) An order under subsection (4) may only be made, at a particular time (the “relevant time”), if it appears to the Minister to be appropriate to do so having regard to the changes in the value of money generally in the State that have occurred during the period beginning—
(a) on this Act’s passing, or
(b) if the powers under subsection (4) have previously been exercised, immediately after their last previous exercise,
and ending at the relevant time.
(6) The priority conferred by F491[section 621(2)] shall apply only to those debts which, within the period of 6 months after the date of the advertisement by the liquidator for claims in at least 2 daily newspapers circulating in the district where the registered office of the company concerned is situated, either—
(a) have been notified to the liquidator, or
(b) have become known to the liquidator.
(7) In this section “relevant date” has the same meaning as it has in section 621.
Annotations
Amendments:
F491
Substituted (29.03.2019) by European Union (Bank Recovery And Resolution) Regulations 2019 (S.I. No. 127 of 2019), reg. 4(d).
Editorial Notes:
E120
Previous affecting provision: subs. (6) amended (15.07.2015) by European Union (Bank Recovery and Resolution) Regulations 2015 (S.I. No. 289 of 2015), reg. 189(5), in effect as per reg. 1(2); substituted as per F-note above.
Section 623
Unclaimed dividends and balances to be paid into a particular account
623. (1) Where a company has been wound up, and is about to be dissolved, the liquidator shall, in such manner as may be prescribed, lodge to such account as is prescribed by the Minister the whole unclaimed dividends admissible to proof and unapplied or undistributable balances.
(2) An application to the court by a person claiming to be entitled to any dividend or payment out of a lodgment made in pursuance of subsection (1), and any payment out of such lodgment in satisfaction of such claim, shall be made in the prescribed manner.
(3) At the expiration of 7 years after the date of any lodgment made in pursuance of subsection (1), the amount of the lodgment remaining unclaimed shall be paid into the Exchequer, but where the court is satisfied that any person claiming is entitled to any dividend or payment out of the moneys paid into the Exchequer, it may order that that dividend or payment be made and the Minister for Finance shall issue such sum as may be necessary to provide for that payment.
(4) Where moneys invested or deposited at interest by a liquidator form part of the amount required to be lodged, pursuant to subsection (1), to the account referred to in that subsection, the liquidator shall realise the investment or withdraw the deposit and shall pay the proceeds into that account.
Annotations
Editorial Notes:
E121
Power pursuant to section exercised (1.06.2015) by Companies Act 2014 (Section 623 Account) Regulations 2015 (S.I. No. 219 of 2015), in effect as per reg. 1.
CHAPTER 8
Liquidators
Section 624
Duty of liquidator to administer, distribute, etc., property of company
624. (1) Subject to subsection (3), it shall be the duty of a liquidator to administer the property of the company to which he or she is appointed.
(2) For the purpose of subsection (1) “administer the property of the company” includes ascertaining the extent of the property of the company and, as appropriate:
(a) the collection and gathering in of the company’s property;
(b) the realisation of such property; and
(c) the distribution of such property;
in accordance with law.
(3) Subject to section 559(3) to (5), the duties of a provisional liquidator shall be those duties provided in the order appointing him or her or any subsequent order of the court.
Section 625
How liquidator is to be described and validity of acts
625. (1) A liquidator shall be described by the style of “the liquidator” (or, in the case of a provisional liquidator, “the provisional liquidator”) of the particular company in respect of which he or she is appointed and not by his or her individual name.
(2) Subject to section 621, the acts of a liquidator shall be valid notwithstanding any defects that may afterwards be discovered in his or her appointment or qualification.
Section 626
Powers of provisional liquidators
626. (1) Where a provisional liquidator is appointed by the court, then, subject to section 559(3) to (5), the provisional liquidator has such powers as the court orders.
(2) Where a provisional liquidator is appointed by the court, the court may place such limitations and restrictions upon the powers of any other officers of the company as it thinks fit.
Section 627
Liquidator’s powers
627. The liquidator shall have the powers set out in each of the paragraphs of the Table to this section.
Table
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Legal proceedings, carrying on company’s business, etc. 1. Power to— (a) bring any action or other legal proceeding F492[(including proceedings before the Workplace Relations Commission and the Labour Court)] in the name and on behalf of the company; (b) defend any action or other legal proceeding F492[(including proceedings before the Workplace Relations Commission and the Labour Court)] in the name and on behalf of the company; (c) recommence and carry on the business of the company so far as may be necessary for the beneficial winding up thereof, where such business was not continuing at the date of the appointment of the liquidator or had ceased after such appointment; (d) continue to carry on the business of a company so far as may be necessary for the beneficial winding up thereof, where such business was continuing at the date of the appointment of the liquidator and had not subsequently ceased; (e) appoint a legal practitioner to assist the liquidator in the performance of his or her duties. |
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Payment of certain creditors, compromise of certain claims, etc. 2. Power to— (a) pay any classes of creditors in full; (b) make any compromise or arrangement with creditors or persons claiming to be creditors or having or alleging themselves to have any claim present or future, certain or contingent, ascertained or sounding only in damages against the company, or whereby the company may be rendered liable; (c) compromise— (i) all calls and liabilities to calls, debts and liabilities capable of resulting in debts, and all claims, present or future, certain or contingent, ascertained or sounding only in damages, subsisting or supposed to subsist between the company and a contributory or alleged contributory or other debtor or person apprehending liability to the company; and (ii) all questions in any way relating to or affecting the assets or winding up of the company, on such terms as may be agreed, and take any security for the discharge of any such call, debt, liability or claim and give a complete discharge in respect of it. |
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Ascertainment of debts and liabilities, sale of property, etc. 3. Power to— (a) ascertain the debts and liabilities of the company; (b) sell the property of the company by public auction or private contract, with, for the purposes of this subparagraph, power to— (i) transfer the whole of the property to any company or other person; (ii) sell the property in lots, and, for the purpose of selling the company’s land or any part of it, to carry out such sales by grant, conveyance, transfer, lease, sublease, or otherwise, and to sell any rent reserved on any such grant or any reversion expectant upon the determination of any such lease. |
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Execution of certain documents, drawing of negotiable instruments, etc. 4. Power to— (a) do all acts and to execute, in the name and on behalf of the company, all deeds, receipts and other documents, and for that purpose to use, when necessary, the company’s seal; (b) draw, accept, make and endorse any bill of exchange or promissory note in the name and on behalf of the company, with the same effect with respect to the liability of the company as if the bill or note had been drawn, accepted, made or endorsed by or on behalf of the company in the course of its business. |
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Proving claim in the case of contributory’s bankruptcy, etc. 5. Where any contributory has been adjudicated bankrupt or has presented a petition for arrangement with his or her creditors in pursuance of the Bankruptcy Act 1988, power to— (a) prove, rank and claim in the bankruptcy or arrangement for any balance against the contributory’s estate; and (b) receive dividends in the bankruptcy or arrangement in respect of that balance, as a separate debt due from the bankrupt or arranging debtor, and rateably with the other separate creditors. |
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Obtaining of credit. 6. Power to obtain credit, whether on the security of the property of the company or otherwise. |
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Taking out letters of administration, otherwise obtaining payment from contributory or debtor, etc. 7. Power to— (a) take out in the liquidator’s name (that is the liquidator’s name as it is to be styled under section 625) letters of administration to any deceased contributory or debtor; and (b) do in the liquidator’s name (that is the liquidator’s name as it is to be so styled) any other act necessary for obtaining payment of any money due from a contributory or debtor or his or her estate which cannot be conveniently done in the name of the company, and, in all such cases, the money due shall, for the purpose of enabling the liquidator to take out the letters of administration or recover the money, be deemed to be due to the liquidator himself or herself. |
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Security for costs and appointment of agents. 8. Power to— (a) give security for costs in any proceedings commenced by the company or by the liquidator in the name of the company; (b) appoint an agent to do any business which the liquidator is unable to do or that it is unreasonable to expect the liquidator to do, in person. |
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Custody and control of property and disposal of perishables, etc. 9. Power to— (a) take into his or her custody or under his or her control all the property to which the company is or appears to be entitled; (b) dispose of perishable goods and other goods the value of which is likely to diminish if they are not immediately disposed of; (c) do all such other things as may be necessary for the protection of the company’s property. |
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Residual power. 10. Power to do all such other things as may be necessary for winding up the affairs of the company and distributing its property. |
Annotations
Amendments:
F492
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 8(a), (b), S.I. No. 673 of 2021.
Section 628
Summoning general meetings of the company, etc.
628. The liquidator may summon—
(a) general meetings of the company,
(b) meetings of the creditors of the company, or
(c) if there is a committee of inspection, meetings of that committee,
for the purpose of—
(i) obtaining the sanction by resolution of members, creditors or the committee of inspection, or
(ii) any other case in which he or she thinks fit to convene such a meeting (and provision for the convening of which by the liquidator is not specifically made otherwise by this Act).
Section 629
Notice to be given with respect to exercise of powers, restrictions on self-dealing, etc.
629. (1) Subject to subsection (2), where a liquidator exercises any power specified in paragraph 1 or 2 of the Table to section 627, he or she shall, within 14 days after the date of such exercise, give notice of such exercise—
(a) in the case of a winding up by the court or a creditors’ voluntary winding up, to the committee of inspection or, if there is no such committee, to all of the creditors of the company who are known to the liquidator or who have been intimated to the liquidator, or
(b) in the case of a members’ voluntary winding up, to the members of the company.
(2) In relation to the exercise of a power specified in paragraph 2(b) or (c) of the Table to section 627, subsection (1) shall not apply if the amount of the claim or call to which the exercise of the power relates does not exceed €500.
(3) Subject to subsection (9), the liquidator of a company shall not sell, by private contract, a non-cash asset of the requisite value to a person who is, or who, within 3 years prior to the date of commencement of the winding up, has been, an officer of the company unless the liquidator has given the following notice.
(4) That notice is at least 14 days’ notice of the liquidator’s intention to do so to all creditors of the company who are known to the liquidator or who have been intimated to the liquidator.
(5) In subsection (3)— “officer”, in relation to a company, includes—
(a) a person connected, within the meaning of section 220, with a director of the company, and
(b) a shadow director of the company;
“non-cash asset” and “requisite value” have the meanings given to them by section 238.
(6) Subject to subsection (9), the liquidator or any member of the committee of inspection of a company shall not, while acting as liquidator or member of such committee, either directly or indirectly, by himself or herself or any employer, partner, agent or employee, become purchaser of any part of the company’s property.
(7) Subject to subsection (9), where the liquidator carries on (in either of the 2 cases set out in paragraph 1 of the Table to section 627) the business of the company, the liquidator shall not purchase goods for the carrying on of such business from any person whose connection with the liquidator is of such a nature as would result in the liquidator’s obtaining any portion of the profit (if any) arising out of the transaction.
(8) Subject to subsection (9), any purchase made in contravention of subsection (3), (6) or (7) may, on the application of any creditor or contributory of the company, be set aside by the court.
(9) Subsection (3), (6), (7) or (8), as the case may be, does not apply if, prior to the sale or, as appropriate, the making of the purchase, there has been obtained for it the express sanction—
(a) in the case of a winding up by the court or a creditors’ voluntary winding up, of the committee of inspection or, if there is no such committee, a majority in number and value of the creditors of the company who are known to the liquidator or, as the case may be, the officer, former officer or member making the purchase concerned or who have been intimated to the liquidator or, as the case may be, such officer, former officer or member, or
(b) in the case of a members’ voluntary winding up, of a majority in number and value of the members of the company.
(10) The costs and expenses of obtaining the sanction referred to in subsection (9) shall be borne by the person in whose interest such sanction is sought and shall not be payable out of the company’s property.
(11) Without prejudice to the generality of section 559(4) and (5), where a provisional liquidator has been conferred by an order of the court with any of the powers specified in the Table to section 627, being a power referred to (whether by express reference to that Table or otherwise) in a preceding subsection of this section, then “liquidator” in that particular subsection includes a provisional liquidator.
Section 630
Restrictions in creditors’ voluntary winding up and procedures in case of certain defaults
630. (1) This section applies where, in the case of a creditors’ voluntary winding up, a liquidator has been nominated by the company.
(2) Subject to subsection (3), the powers conferred on the liquidator by section 627 shall not be exercised, except with sanction of the court, during the period before the holding of the creditors’ meeting under section 587.
(3) Subsection (2) does not apply in relation to the exercise of a power specified in paragraph 9 of the Table to section 627.
(4) The liquidator shall attend the creditors’ meeting held under section 587 and shall report to the meeting on any exercise by him or her of the powers under section 627 or 631.
(5) If default is made—
(a) by the company in complying with section 587(1), (2) or (6), or
(b) by the directors of the company in complying with section 587(7),
the liquidator shall, within 14 days after the relevant day, apply to the court for directions as to the manner in which that default is to be remedied.
(6) In subsection (5), the “relevant day” means the day on which the liquidator was nominated by the company or the day on which he or she first became aware of the default, whichever is the later.
(7) If a liquidator, without reasonable excuse, fails to comply with any provision of this section, he or she shall be guilty of a category 3 offence.
Section 631
Power to apply to court for determination of questions or concerning exercise of powers
631. (1) Each of the following:
(a) the liquidator or the provisional liquidator;
(b) any contributory or creditor of the company;
(c) the F493[Authority];
may apply to the court to determine any question arising in the winding up of a company (including any question in relation to any exercise or proposed exercise of any of the powers of the liquidator).
(2) The court, if satisfied that the determination of the question will be just and beneficial, may accede wholly or partially to such an application on such terms and conditions as it thinks fit or may make such other order on the application as it thinks just.
(3) A certified copy of an order made by virtue of this section—
(a) annulling a resolution to wind up, or
(b) staying the proceedings in a winding up,
each of which orders the court is empowered by this section to make, shall forthwith be forwarded by the company concerned to the Registrar.
(4) If a company fails to comply with subsection (3), the company and any officer of it who is in default shall be guilty of a category 4 offence.
Annotations
Amendments:
F493
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. no. 60, S.I. No. 335 of 2022.
Section 632
No lien over company’s books, records, etc.
632. (1) Without prejudice to subsections (2) and (3), no person shall be entitled as against the liquidator or provisional liquidator of a company to—
(a) withhold possession of any deed, instrument, or other document belonging to the company, or the accounting records, receipts, bills, invoices, or other papers of a like nature relating to the financial statements or trade, dealings or business of the company, or
(b) claim any lien on a document or any other thing referred to in paragraph (a).
(2) Where a mortgage, charge or pledge has been created by the deposit with a person of any such document or other paper as is referred to in subsection (1), the production of the document or paper to the liquidator or provisional liquidator by the person shall be without prejudice to the person’s rights under the mortgage, charge or pledge (other than any right to possession of the document or paper).
(3) Where, by virtue of this section, a liquidator or provisional liquidator has possession of any document or papers of a receiver of the property of the company concerned or that such a receiver is entitled to examine, the liquidator or provisional liquidator shall, unless the court otherwise orders, make the document or papers available for inspection by the receiver at all reasonable times.
(4) Any person who, without just cause, withholds possession, in contravention of subsection (1), of any such document or other paper as is referred to in that subsection shall be guilty of a category 3 offence.
Section 633
Qualifications for appointment as liquidator or provisional liquidator — general
633. (1) Subject to sections 634 and 635, a person shall not be qualified for appointment as a liquidator of a company unless he or she falls within a paragraph of the Table to this section.
(2) Nothing in this section shall prevent a person who—
(a) does not fall within paragraph 1, 2, 3 or 4 of the Table to this section, and
(b) has made an application to the Supervisory Authority under and in accordance with paragraph 5 of that Table (in subsection (3) referred to as a “relevant applicant”),
from acting as a liquidator pending the determination of that application.
(3) In addition to subsection (2), nothing in this section shall prevent a relevant applicant from continuing to act as a liquidator in a winding up in relation to which he or she was appointed liquidator before the commencement of this section notwithstanding that the Supervisory Authority has refused his or her application made under and in accordance with paragraph 5 of the Table to this section.
F494[(3A) The Authority may, by notice in writing given to a person standing to be qualified for appointment, or who is so qualified, as liquidator, request the person to provide the Authority, within 28 days of the receipt by the person of the notice, with such evidence specified in the notice as the Authority may require, to prove to the Authority that the person complies with the requirements of the Table to this section.]
F494[(3B) Any person who, without just cause, fails to comply with a request under subsection (3A) shall be guilty of a category 4 offence.]
F495[(4) In this section—
"liquidator" includes provisional liquidator;
"prescribed fee" means a fee prescribed by regulations made by the Supervisory Authority with the consent of the Minister;
"prescribed form" means a form prescribed by regulations made by the Supervisory Authority.]
Table
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First category — member of a prescribed accountancy body. 1. The person is a member of a prescribed accountancy body, within the meaning of Part 15, being a person who— (a) holds a current practising certificate issued by that body; and (b) is not prohibited by virtue of rules of that body or a direction, ruling or decision of that body, or any disciplinary or professional practice committee of it, from acting as a liquidator. |
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Second category — practising solicitor. 2. The person is a solicitor, being a solicitor who— (a) holds a current practising certificate issued by the Law Society of Ireland under the Solicitors Acts 1954 to 2002; and (b) is not prohibited by virtue of regulations made by the Law Society of Ireland, or a decision or order made by the Solicitors Disciplinary Tribunal or the court, under those Acts from acting as a liquidator. |
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Third category — member of other professional body recognised by Supervisory Authority. 3. The person is a member of such professional body as the Supervisory Authority may from time to time recognise for the purposes of this section, being a person who— (a) is authorised for the time being by that professional body to pursue the particular activities that that body aims to promote or foster or as respects the pursuit of which by its members that body has been established to represent; and (b) is not prohibited by virtue of rules of that body or a direction, ruling or decision of that body, or any disciplinary or professional practice committee of it, from acting as a liquidator. |
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Fourth category — person qualified under the laws of another EEA state. 4. The person is entitled under the laws of an EEA state (not being the State) to act as a liquidator in insolvency proceedings and the qualifications held by, or the circumstances otherwise relating to the person, that entitle him or her so to act are ones that, by virtue of any Community act, entitle him or her to act as a liquidator in the State. |
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Fifth (and limited) category — person with practical experience of windings-up and knowledge of relevant law. 5. The person— (a) having made application in that behalf to the Supervisory Authority in the prescribed form F496[within 30 months after] the commencement of this section; and (b) paid the prescribed fee to the Supervisory Authority, stands authorised for the time being by the Supervisory Authority (which authorisation the Supervisory Authority is, by virtue of this section, empowered to grant) to be so appointed, such authorisation having been granted on the grounds that each of the following is satisfied— (i) the person has, prior to the commencement of this section, obtained adequate relevant experience of the winding up of companies and knowledge of the law applicable thereto by virtue of the person’s either— (I) having been— (A) employed in relevant work by a person who at the relevant time fell (or, if this section had been in operation at that time, who would have fallen) within paragraph 1, 2 or 3; or (B) engaged on his or her own account in relevant work; or (II) having practised in an EEA state (not being the State) as a liquidator; (ii) the person is, in the opinion of the Supervisory Authority, after consultation with the F497[Authority], a fit and proper person to act as a liquidator; and (iii) the person does not fall within paragraph 1, 2, 3 or 4. |
Annotations
Amendments:
F494
Inserted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 32, S.I. No. 335 of 2022.
F495
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 93(a), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F496
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 93(b), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
F497
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. no. 61, S.I. No. 335 of 2022.
Editorial Notes:
E122
Power pursuant to section exercised (11.07.2017) by Companies Act 2014 (Prescribed Fees Category 5 Liquidators) Regulations 2017 (S.I. No. 303 of 2017).
E123
Power pursuant to section exercised (11.07.2017) by Companies Act 2014 (Prescribed Forms Category 5 Liquidators) Regulations 2017 (S.I. No. 302 of 2017).
Section 634
Supplemental provisions in relation to section 633 (including requirements for professional indemnity cover)
634. (1) Subject to the preceding section, subsection (3) and section 635, a person shall not be qualified for appointment as a liquidator of a company unless there is in place in relation to the person an indemnity, in such amount and on such terms as may from time to time be prescribed by regulations made by the Supervisory Authority, against losses and claims arising in respect of civil liability incurred by the person in respect of any act or omission by—
(a) the person,
(b) any servant or agent of the person, or
(c) both of them,
in the conduct of the winding up of the company concerned.
(2) The reference in subsection (1) to an indemnity being in place in relation to a person is a reference to an indemnity being provided (against the losses and claims referred to in that subsection) by either of the following means:
(a) a policy of indemnity insurance being effected and maintained by the person with an insurance undertaking; or
(b) the person’s participating, in a manner legally enforceable by the person, in an indemnity fund of a mutual nature that is recognised by the Supervisory Authority for the time being for the purposes of this section.
(3) Subsection (1) does not apply to a person as respects any winding up in relation to which he or she has been appointed liquidator before the commencement of this section.
(4) A person shall not act as liquidator of a company at a time when he or she is not qualified under section 633 or this section for appointment to that office.
(5) If, while acting as liquidator of a company, a person ceases to be qualified under section 633 or this section for appointment to that office, the person shall thereupon vacate his or her office.
(6) On vacating such office by reason of those circumstances, the person shall give notice in writing that he or she has vacated such office (by reason of those circumstances)—
(a) within 2 days after the date of vacating office, to—
(i) the Registrar,
(ii) the F498[Corporate Enforcement Authority], and
(iii) if the person had been authorised pursuant to paragraph 5 of the Table to section 633 to be appointed as a liquidator — the Supervisory Authority,
and
(b) within 14 days after the date of vacating office, to—
(i) in the case of a winding up by the court, the court and—
(I) if a committee of inspection has been appointed — the members of that committee, or
(II) if no committee of inspection has been appointed — the creditors of the company,
(ii) in the case of a creditors’ voluntary winding up—
(I) if a committee of inspection has been appointed — the members of that committee, or
(II) if no committee of inspection has been appointed — the creditors of the company,
or
(iii) in the case of a members’ voluntary winding up — the members of the company.
(7) A person who contravenes subsection (4) or (5) shall be guilty of a category 2 offence.
(8) A person who contravenes subsection (6) shall be guilty of a category 3 offence.
(9) As respects a person who has been authorised under paragraph 5 of the Table to section 633 to be appointed a liquidator—
(a) if the person becomes qualified for appointment as a liquidator of a company by reason of another provision of that Table, the person’s authorisation under that paragraph 5 shall thereupon cease to have effect,
(b) the Supervisory Authority may withdraw or suspend (for such period and on such terms as it thinks fit) the person’s authorisation under that paragraph 5 if it is satisfied that the person is no longer sufficiently capable of acting as a liquidator or is no longer a fit and proper person to act as a liquidator.
F499[(9A) (a) As respects a person who has been authorised under paragraph 5 of the Table to section 633 to be appointed a liquidator, the Supervisory Authority may—
(i) at the time of a grant of authorisation under that paragraph 5, or
(ii) at any time during the currency of an authorisation so granted,
by notice in writing to the person, attach to the authorisation such terms and conditions as it thinks necessary or expedient, which said terms and conditions shall be specified in the notice.
(b) The Supervisory Authority may, where it thinks it necessary or expedient to do so, by notice in writing to the person concerned, amend one or more of the terms and conditions attached to an authorisation pursuant to paragraph (a).
(c) The Supervisory Authority may, at any time upon request in writing in that behalf by a person who has been authorised under paragraph 5 of the Table to section 633 to be appointed a liquidator, withdraw the person’s authorisation.]
(10) The Supervisory Authority may, to meet the cost of conducting such inquiries as may be necessary to be conducted for the purposes of its exercising the powers under subsection (9)(b), levy, not more frequently than annually, such periodic charge as may be reasonable on any person acting as a liquidator, being a person who so acts by virtue of the person’s being authorised under paragraph 5 of the Table to section 633.
(11) In this section—
“insurance undertaking” means the holder of an authorisation under the European Communities (Non-Life Insurance) Regulations 1976 (S.I. No. 115 of 1976);
“liquidator” includes a provisional liquidator.
Annotations
Amendments:
F498
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. no. 62, S.I. No. 335 of 2022.
F499
Inserted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 67, S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Editorial Notes:
E124
Power pursuant to section exercised (1.06.2016) by Companies Act 2014 (Professional Indemnity Insurance) (Liquidators) Regulations 2016 (S.I. No. 127 of 2016), in effect as per reg. 1(2).
Section 635
Specific disqualification from appointment as liquidator or provisional liquidator
635. (1) None of the following persons shall be qualified to be appointed or act as liquidator of a company:
(a) a person who is, or who within the period of 24 months before the date of the commencement of the winding up has been, an officer or employee of the company;
(b) except with the leave of the court, a parent, spouse, civil partner, brother, sister or child of an officer of the company;
(c) a person who is a partner or in the employment of an officer or employee of the company;
(d) a person who is an undischarged bankrupt;
(e) a person who is not qualified by virtue of a preceding provision of this subsection for appointment as liquidator of any other body corporate which is that company’s subsidiary or holding company or a subsidiary of that company’s holding company, or would be so disqualified if the body corporate were a company.
(2) References in subsection (1) to—
(a) a child of an officer shall be deemed to include a child of the officer’s civil partner who is ordinarily resident with the officer and the civil partner,
(b) an officer or employee of the company include a statutory auditor of the company.
(3) An application for leave under subsection (1)(b) shall be supported by such evidence as the court may require.
(4) If, while acting as liquidator of a company, a person ceases to be qualified to so act by virtue of subsection (1), the person shall thereupon vacate his or her office.
(5) On vacating such office by reason of those circumstances, the person shall give notice in writing that he or she has vacated such office (by reason of those circumstances)—
(a) within 2 days after the date of vacating office, to—
(i) the Registrar,
(ii) the F500[Corporate Enforcement Authority], and
(iii) if the person had been authorised pursuant to paragraph 5 of the Table to section 633 to be appointed as a liquidator — the Supervisory Authority,
and
(b) within 14 days after the date of vacating office, to—
(i) in the case of a winding up by the court, the court and—
(I) if a committee of inspection has been appointed — the members of that committee, or
(II) if no committee of inspection has been appointed — the creditors of the company,
(ii) in the case of a creditors’ voluntary winding up—
(I) if a committee of inspection has been appointed — the members of that committee, or
(II) if no committee of inspection has been appointed — the creditors of the company,
or
(iii) in the case of a members’ voluntary winding up — the members of the company.
(6) A person who—
(a) acts as a liquidator of a company when he or she is not qualified by virtue of subsection (1) to so act, or
(b) contravenes subsection (4),
shall be guilty of a category 2 offence.
(7) A person who contravenes subsection (5) shall be guilty of a category 3 offence.
(8) Subsections (1) to (7) shall not apply to a winding up commenced before 1 August 1991.
(9) In this section “liquidator” includes a provisional liquidator.
Annotations
Amendments:
F500
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. no. 63, S.I. No. 335 of 2022.
Section 636
Appointment and removal in a members’ voluntary winding up
636. (1) In paragraphs (a) to (c) of subsection (2) “liquidator” shall be deemed to include the one or more liquidators appointed by the company in exercise of the powers under any such paragraph.
(2) Subsequent to the appointment of a liquidator of a company under section 583 in a members’ voluntary winding up, the company, in general meeting, may, at a meeting convened for that purpose—
(a) remove the liquidator,
(b) appoint a liquidator to replace or act with the existing liquidator, or
(c) appoint a liquidator to fill a vacancy in the office of liquidator.
(3) Notwithstanding anything in Part 4, a general meeting of the company for the purpose of—
(a) subsection (2)(a) or (b), may be convened, on 10 days’ notice to the members of it, by—
(i) any member of it with the written authority of not less than one-tenth in number of the members, or
(ii) an existing liquidator,
or
(b) subsection (2)(c) may be convened, on 10 days’ notice to the members of it, by—
(i) any member of it with the foregoing written authority,
(ii) an existing liquidator, or
(iii) any contributory.
(4) The powers conferred on the company by subsection (2) shall be subject to any order the court may make with regard to the matter on application to it by any contributory or an existing liquidator.
(5) Section 218 (service of notices) shall apply to a notice of a meeting given by a member, liquidator or contributory under subsection (3) as it applies to a notice by a company or any of its officers to its members.
(6) The meeting shall be held in a manner provided by this Act or the company’s constitution or in such manner as may, on application by any contributory, member or any existing liquidator, be determined by the court.
Section 637
Appointment and removal in a creditors’ voluntary winding up
637. (1) This section applies at any time subsequent to the appointment of a liquidator of a company under section 588 in a creditors’ voluntary winding up.
(2) In paragraphs (a) to (c) of subsection (4) “liquidator”—
(a) does not include a person whom the court has directed to be, or whom the court has appointed to be, liquidator of the company under section 588(5),
(b) shall be deemed to include the one or more liquidators appointed by the creditors in exercise of the powers under any such paragraph.
(3) Where this section applies, the creditors may, at a meeting convened for that purpose, by resolution of a majority, in value only, of the creditors present personally or by proxy and voting on the resolution, exercise the following powers.
(4) Those powers of the creditors are to—
(a) remove the liquidator,
(b) appoint a liquidator to replace or act with the existing liquidator, or
(c) appoint a liquidator to fill a vacancy in the office of liquidator.
(5) A meeting of the creditors of the company for the purpose of subsection (3) may be convened, on 10 days’ notice to the creditors, by—
(a) any creditor of it with the written authority of not less than one-tenth in value of the creditors, or
(b) an existing liquidator.
(6) The powers conferred on the creditors by subsection (3) shall be subject to any order the court may make with regard to the matter on application to it by any creditor or an existing liquidator.
Section 638
Appointment and removal by the court
638. (1) In any winding up, the court may, on the application by a member, creditor, liquidator or the F501[Authority] or on its own motion—
(a) appoint a liquidator if from any cause whatever there is no liquidator acting, or
(b) on cause shown, remove a liquidator and appoint another liquidator.
(2) Where the court makes an order under subsection (1), it may give such consequential directions, including directions as to the delivery and transfer of the seal, books, records and any property of the company, as it thinks fit.
Annotations
Amendments:
F501
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. no. 64, S.I. No. 335 of 2022.
Section 639
Consent to act
639. (1) The appointment of a liquidator (other than a provisional liquidator) shall be of no effect unless the person nominated has, prior to his or her appointment, signified his or her written consent to the appointment.
(2) A provisional liquidator shall not be appointed unless the court is satisfied that the person nominated for such appointment has, prior to his or her appointment, signified his or her consent to the appointment.
Section 640
Position when there is more than one liquidator
640. (1) If more than one liquidator is appointed, the court or meeting appointing those liquidators, shall declare or resolve whether any thing by this Act required or authorised to be done by the liquidators is to be done by all or any one or more of the persons appointed.
(2) In default of such declaration or resolution, those things may be performed by any number of the liquidators but, in any case, by not less than 2 of them.
Section 641
Resignation of liquidator
641. (1) In any winding up, a liquidator may resign from office.
(2) Where a liquidator resigns, he or she shall give notice in writing of that fact, within 2 days after the date of resigning, to the Registrar and the F502[Authority] and, within 14 days after the date of resigning—
(a) in the case of a winding up by the court, to the court and—
(i) if a committee of inspection has been appointed — to the members of that committee, or
(ii) if no committee of inspection has been appointed — to the creditors of the company,
(b) in the case of a creditors’ voluntary winding up—
(i) if a committee of inspection has been appointed — to the members of that committee, or
(ii) if no committee of inspection has been appointed — to the creditors of the company,
or
(c) in the case of a members’ voluntary winding up — to the members of the company.
(3) If a liquidator fails, without reasonable excuse, to comply with subsection (2) he or she shall be guilty of a category 3 offence.
Annotations
Amendments:
F502
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. no. 65, S.I. No. 335 of 2022.
F503
Substituted by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 52, not commenced as of date of revision.
Modifications (not altering text):
C173
Prospective affecting provision: subs. (2) amended by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 52, not commenced as of date of revision.
(2) Where a liquidator resigns, he or she shall give F503[notice in the prescribed form] of that fact, within 2 days after the date of resigning, to the Registrar and the F502[Authority] and, within 14 days after the date of resigning—
Section 642
Prohibition on rewards for appointment
642. Any person who gives or agrees or offers to give to any member or creditor of a company any valuable consideration with a view to—
(a) securing his or her own appointment or nomination as the company’s liquidator, or
(b) securing or preventing the appointment or nomination of some person other than himself or herself as the company’s liquidator,
shall be guilty of a category 2 offence.
Section 643
Notifications and filings of appointments and removals
643. (1) The chairperson of any meeting at which a liquidator is appointed or removed shall, following the meeting, forthwith deliver to the liquidator notice in writing of the liquidator’s appointment or removal, unless the liquidator or his or her duly authorised representative is present at the meeting where the resolution concerned was passed.
(2) In default of election of a chairperson by the meeting referred to in subsection (1), the person who shall be chairperson of that meeting shall be the person who was the signatory or the first signatory, as the case may be, on the notice by which the meeting was called.
(3) The chairperson of a meeting referred to in subsection (1) at which a liquidator is removed shall, following the meeting, forthwith deliver to the Registrar notice of the removal in the prescribed form.
(4) Subsections (5) to (9) have effect in respect of—
(a) an appointment of a liquidator in a winding up other than the initial appointment of a liquidator in a winding up, and
(b) a removal of a liquidator that the court orders in any winding up.
(5) The liquidator, following receipt of notice of his or her appointment (other than an appointment made by the court), shall forthwith deliver to the Registrar notice of his or her appointment in the prescribed form.
(6) The Registrar shall forward a copy of such notice to the F504[Authority].
(7) Where an order is made appointing or removing a liquidator—
(a) the applicant for the order, or
(b) in a case where the order is made by the court of its own motion, such officer of the court as may be prescribed,
shall, following the making of the order, forthwith deliver or cause to be delivered to the liquidator notice in writing of the liquidator’s appointment or removal, unless the liquidator or his or her duly authorised representative is present in court when the order is made.
(8) Where an order is made appointing or removing a liquidator, such officer of the court as may be prescribed shall, following the making of the order, forthwith cause the Registrar to be furnished with such particulars of the order as may be prescribed.
(9) The Registrar shall forward a copy of such particulars to the F504[Authority].
(10) Subject to subsection (11), a person who fails to comply with a provision of this section shall be guilty of a category 3 offence.
(11) Subsection (10) shall not apply to the Registrar or any officer of the court prescribed for the purposes of subsection (7) or (8).
Annotations
Amendments:
F504
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. nos. 66, 67, S.I. No. 335 of 2022.
Section 644
Custody of books and property upon vacation of office
644. (1) This section applies where a person vacates the position of liquidator of a company (the “former liquidator”) whether such vacation is by reason of his or her having—
(a) ceased to be qualified to act as a liquidator of the company,
(b) been removed as liquidator, or
(c) resigned as liquidator.
(2) Where this section applies and no person remains appointed to act as liquidator of the company, the former liquidator shall retain custody of—
(a) the seal, books, records, and any property of the company in his or her possession or control, and
(b) the books and records kept by him or her as liquidator,
(which seal, property, documents or other things are referred to in this section as the “relevant items”) until—
(i) a new liquidator is appointed to the company — whereupon the former liquidator shall deliver custody of the relevant items to the new liquidator, or
(ii) directed by the court, upon the application of the former liquidator, the F505[Authority] or a member or creditor of the company, to effect delivery or disposal of the relevant items as the court thinks fit.
(3) The delivery of any of the relevant items pursuant to subsection (2) shall not prejudice any lien which a liquidator may have over it.
(4) A person who fails to comply with this section without lawful excuse shall be guilty of a category 3 offence.
Annotations
Amendments:
F505
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. no. 68, S.I. No. 335 of 2022.
Section 645
Provisional liquidator’s remuneration
645. (1) A provisional liquidator is entitled to receive such remuneration as is fixed by the court.
(2) Section 648 applies with respect to the fixing of such remuneration and otherwise supplements this section.
Section 646
Liquidator’s remuneration — procedure for fixing liquidator’s entitlement thereto
646. (1) A liquidator, other than a provisional liquidator, has an entitlement to remuneration upon the terms agreed, fixed or otherwise set in the manner specified in subsection (2) and the terms upon which the liquidator has, in accordance with that subsection, such an entitlement may be expressed to be—
(a) by way of a relevant percentage,
(b) by reference to time expended in the conduct of the winding up, or
(c) otherwise by reference to any method or thing.
(2) The terms upon which the liquidator has an entitlement to remuneration shall be—
(a) where there is a committee of inspection, such terms as have been agreed in writing between the liquidator and the committee of inspection, or
(b) in a winding up by the court or a creditors’ voluntary winding up, where—
(i) there is no committee of inspection, or
(ii) the liquidator and the committee of inspection fail to agree,
such terms as have been approved by resolution of the creditors, or
(c) in a members’ voluntary winding up, such terms as have been approved by resolution of the members of the company in general meeting, or
(d) where the creditors or members, as the case may be — having been requested to do so by the liquidator — fail to pass a resolution in accordance with paragraph (b) or (c), such terms as have been fixed by the court.
(3) Before the terms upon which a liquidator has an entitlement to remuneration have been agreed, approved or fixed, as the case may be, in accordance with subsection (2), the liquidator shall, as appropriate—
(a) cause particulars in writing of the terms upon which he or she seeks such entitlement to be furnished—
(i) in a case to which subsection (2)(a) applies, to the committee of inspection,
(ii) in a case to which subsection (2)(b) applies, to the creditors,
(iii) in a case to which subsection (2)(c) applies, to the members of the company, or
(b) in a case to which subsection (2)(d) applies, include, as part of his or her application to the court, particulars of the terms upon which he or she seeks such an entitlement.
(4) A liquidator shall, as soon as is practicable after his or her appointment and in accordance with subsection (2), seek the agreement or, as the case may be, approval (or, as the case may require, the fixing) of the terms upon which he or she has an entitlement to remuneration.
(5) Subject to subsection (6), the terms upon which a liquidator has an entitlement to remuneration may be varied by—
(a) a subsequent agreement between the liquidator and the committee of inspection,
(b) approval thereto (given by the means referred to in subsection (2)(b) or (c), as appropriate) of the creditors or members, or
(c) a subsequent order made by the court on application to it by the liquidator,
as the case may be.
(6) No such variation may, without the consent of the liquidator, reduce the entitlement of the liquidator to remuneration for work that has already been performed.
(7) This section is subject to sections 647 and 648.
Section 647
Liquidator’s entitlement to receive payment where entitlement to remuneration exists
647. (1) This section—
(a) applies where the liquidator’s entitlement to remuneration exists by virtue of the terms in respect thereof having been agreed, fixed or otherwise set in the manner specified in section 646, and
(b) is subject to section 648.
(2) A liquidator shall be entitled to receive payment in respect of his or her remuneration (whether for the entire or any portion of his or her services in the winding up, or by way of a payment on account) provided the amount sought to be received in that behalf has—
(a) where there is a committee of inspection, been approved by the committee of inspection, or
(b) in a winding up by the court or a creditors’ voluntary winding up, where—
(i) there is no committee of inspection, or
(ii) the committee of inspection does not approve the amount,
been approved by resolution of the creditors, or
(c) in a members’ voluntary winding up, been approved by resolution of the members of the company in general meeting, or
(d) where the creditors or members, as the case may be — having been requested to do so by the liquidator — fail to pass a resolution in accordance with paragraph (b) or (c), been fixed by the court or such person as the court may designate for that purpose.
(3) Before the amount of remuneration sought to be received has been agreed, approved or fixed, as the case may be, in accordance with subsection (2), the liquidator shall, as appropriate—
(a) cause the prescribed particulars in respect of that amount to be furnished—
(i) in a case to which subsection (2)(a) applies, to the committee of inspection,
(ii) in a case to which subsection (2)(b) applies, to the creditors,
(iii) in a case to which subsection (2)(c) applies, to the members of the company,
or
(b) in a case to which subsection (2)(d) applies, include, as part of his or her application to the court, prescribed particulars in respect of that amount.
Section 648
Supplemental provisions in relation to sections 646 and 647
648. (1) The terms upon which a liquidator has an entitlement to remuneration, as agreed, fixed or otherwise set in accordance with section 646, may include provision for reference to arbitration of any dispute that may arise as to the amount of remuneration to which the liquidator is thereby entitled under section 647.
(2) If the foregoing terms do not include a provision of the foregoing kind, the liquidator and—
(a) where the case is one of a winding up by the court or a creditors’ voluntary winding up, the creditors acting by resolution passed at a meeting of the creditors for the purpose, or
(b) where the case is one of a members’ voluntary winding up, the members of the company acting by resolution passed at a meeting of the company for the purpose,
may agree to refer to arbitration any dispute as to the amount of remuneration to which the liquidator is entitled under section 647.
(3) In an arbitration of a dispute as to the amount of remuneration to which a liquidator is entitled under section 647, the matters specified in subsection (9) shall be taken into account by the arbitrator.
(4) Not later than 28 days after—
(a) the date on which an agreement or approval has been made or given in accordance with section 646(2)(a), (b) or (c), as the case may be, in respect of such terms, or
(b) the date on which any variation referred to in section 646(5) has been made of such terms,
any creditor or member of the company concerned may apply to the court to review the terms upon which the liquidator has an entitlement to remuneration as so agreed, approved or varied, and, on the making of such an application, the court may, as it thinks fit—
(i) confirm the terms as so agreed, approved or varied, or
(ii) alter those terms.
(5) Not later than 28 days after the date on which an agreement or approval has been made or given in accordance with section 647(2)(a), (b) or (c), as the case may be, in respect of an amount of remuneration of a liquidator, any creditor or member of the company concerned may apply to the court to review that amount as so agreed or approved and, on the making of such an application, the court may, as it thinks fit—
(a) confirm that amount as so agreed or approved, or
(b) alter that amount.
(6) If, on an application under subsection (4) or (5)—
(a) the court does not vary, in a manner less favourable to the liquidator, the terms of the liquidator’s entitlement to remuneration or, as the case may be, reduce an amount of his or her remuneration, the applicant shall bear the costs, fees and expenses of the application, or
(b) the court does vary, in a manner less favourable to the liquidator, the terms of the liquidator’s entitlement to remuneration or, as the case may be, reduce an amount of his or her remuneration, the court may make such order as it deems fit as to the costs, fees and expenses of the application.
(7) For the purpose of holding a meeting in accordance with section 646 or 647 or this section, the liquidator may convene a meeting of the creditors of the company, the members of the company or the committee of inspection, as the case may be.
(8) Where a company is ordered to be wound up by the court upon grounds other than those specified in section 569(1)(d) (company unable to pay its debts) then, upon it being established to the satisfaction of the court that the company is not insolvent, the provisions of sections 646 and 647 and this section that are applicable to a members’ voluntary winding up shall, where the court so directs, apply to that company.
(9) In—
(a) fixing the amount of a provisional liquidator’s remuneration under section 645; or
(b) the agreeing, approval, fixing or review under section 646 or 647 or this section, as the case may be, of—
(i) the terms of a liquidator’s entitlement to remuneration, or
(ii) the amount of a liquidator’s remuneration,
the following shall be taken into account by the court, the committee of inspection, the creditors or, as the case may be, the members:
(i) the time properly required to be given by the person as liquidator and by his or her assistants in attending to the company’s affairs;
(ii) the complexity (or otherwise) of the case;
(iii) any respects in which, in connection with the company’s affairs, there falls on the liquidator any responsibility of an exceptional kind or degree;
(iv) the effectiveness with which the liquidator appears to be carrying out, or to have carried out, his or her duties; and
(v) the value and nature of the property with which the liquidator has to deal.
(10) In sections 645 to 647 and this section “remuneration” includes remuneration for services in the winding up performed by the liquidator personally and by his or her assistants on his or her authority.
Section 649
Disclosure of interest by creditors etc. at creditors’ meeting
649. (1) Where, at a meeting of creditors, a resolution is proposed for the appointment of a liquidator, any creditor who has a connection with the proposed liquidator shall, before the resolution is put, make such connection known to the chairperson of the meeting who shall disclose that fact to the meeting, together with particulars thereof.
(2) Subsection (1) shall also apply to any person at the meeting, being a representative of a creditor and entitled to vote on the resolution on his or her behalf.
(3) Where the chairperson of a meeting of creditors has any such connection as is mentioned in subsection (1), he or she shall disclose that fact to the meeting, together with particulars thereof.
(4) For the purposes of this section, a person has a connection with a proposed liquidator if he or she is—
(a) a parent, spouse, civil partner, brother, sister or child of, or
(b) employed by, or a partner of,
the proposed liquidator.
(5) A person who fails to comply with this section shall be guilty of a category 3 offence.
(6) In subsection (4) the reference to a child of the proposed liquidator shall be deemed to include a reference to a child of the proposed liquidator’s civil partner who is ordinarily resident with the proposed liquidator and the civil partner.
(7) In exercising its jurisdiction under section 588 or 638 (which relate to the appointment or removal of a liquidator), the court may have regard to any failure to comply with this section.
Section 650
Duty of liquidators to include certain information in returns, etc.
650. (1) In this section “periodic return” includes a periodic account, a periodic abstract and a periodic statement.
(2) Where a liquidator of a company is obliged by or under this Act to make a periodic return in relation to his or her activities as liquidator, he or she shall incorporate in such return a report as to whether, at the date of such return, any past or present director or other officer, or any member, of the company is a person—
(a) in respect of whom a declaration has been made under any provision of this Act that he or she should be personally liable for all or any part of the debts of a company, or
(b) who is, or is deemed to be, subject to a disqualification order under Part 14 or a declaration of restriction under Chapter 3 of that Part.
(3) A liquidator who contravenes subsection (2) shall be guilty of a category 3 offence.
Section 651
Penalty for default of liquidator in making certain accounts and returns
651. Where a liquidator is in default in relation to the making or filing of a periodic account, abstract, statement or return in pursuance of any provision of this Act he or she shall be guilty of a category 4 offence.
Section 652
Enforcement of duty of liquidator to make returns
652. (1) Subsection (2) applies if a liquidator of a company, having made default in filing, delivering or making any return, account or other document, or in giving any notice which a liquidator is by law required to file, deliver, make or give, fails to make good the default within 14 days after the date of service on him or her of a notice requiring him or her to do so or such greater period of time as may be specified in the notice.
(2) Where this subsection applies, the court may, on an application made for the purpose, make an order directing the liquidator to make good the default within such time as may be specified in the order.
(3) Any contributory or creditor of the company, the F506[Authority] or the Registrar may make an application for the purposes of this section.
(4) The order under this section may provide that all costs of and incidental to the application shall be borne by the liquidator.
(5) Nothing in this section shall be taken to prejudice the operation of any enactments imposing penalties on liquidators in respect of any such default as is mentioned in subsection (1).
Annotations
Amendments:
F506
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. no. 69, S.I. No. 335 of 2022.
Section 653
Director’s power to examine books and records
653. (1) In this section—
“appropriate person”, in relation to the company referred to in subsection (3), means any of the following:
(a) the company;
(b) irrespective of the time at which he or she holds or held such status (but subject, in the case of subparagraph (iii), to subsection (2))—
(i) a liquidator of the company,
(ii) an officer or statutory auditor of the company, or
(iii) a receiver appointed to any property of the company;
“books and records” means the books and records of the company and, in addition, in the case of a request under subsection (3) made of a liquidator, statutory auditor or receiver, the books and records of the liquidator, statutory auditor or receiver;
“liquidator” includes a provisional liquidator.
(2) For the avoidance of doubt, the powers under this section do not extend to a case in which a receivership alone has been conducted in relation to any property of the company (which case is governed by section 446 (F507[Authority] may request production of receiver’s books)).
(3) Where a company is being wound up or has been dissolved, the F507[Authority may]—
(a) on F507[its] own motion, or
(b) where a complaint is made to the F507[Authority] by a member, contributory or creditor of the company,
request (specifying the reason why the request is being made) an appropriate person to produce to the F507[Authority the books] and records for examination, and the appropriate person shall comply with the request.
(4) In the case of a request of a liquidator or a receiver under subsection (3), the request may relate to a particular winding up or receivership process or to all windings up or receiverships conducted by the liquidator or receiver.
(5) An appropriate person shall—
(a) answer any questions of the F507[Authority] concerning the content of the books and records requested to be produced under subsection (3),
(b) if he or she is a liquidator or receiver, answer any questions of the F507[Authority] concerning the conduct of a particular winding up or receivership, or all windings up or receiverships conducted by the appropriate person, as the case may be, and
(c) give to the F507[Authority] such assistance in the matter as the appropriate person is reasonably able to give.
(6) An appropriate person shall give to the F507[Authority] such access and facilities as are necessary for inspecting and taking copies of books and records requested to be produced by him or her under subsection (3).
(7) A request under subsection (3) may not be made in respect of books and records relating to a winding up or receivership that has concluded more than 6 years prior to the date of the request but nothing in this subsection is to be read as requiring a liquidator to keep any books or records for a period longer than that specified in section 696(2).
(8) An appropriate person who—
(a) fails to comply with a request under subsection (3),
(b) fails to answer any question under subsection (5)(a) or (b),
(c) fails to give the F507[Authority] the assistance referred to in subsection (5)(c), or
(d) without lawful excuse, fails to give the F507[Authority] the access or facilities referred to in subsection (6),
shall be guilty of a category 2 offence.
(9) Nothing in this section shall be taken as excluding or restricting any statutory rights of the Government, a Minister of the Government or a person acting under the authority of the Government or a Minister of the Government, or the powers of any person under Part 13.
Annotations
Amendments:
F507
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. nos. 70-80, S.I. No. 335 of 2022.
CHAPTER 9
Contributories
Section 654
Liability of contributory
654. (1) The liability of a contributory shall create a debt accruing due from him or her at the time when his or her liability commenced, but payable at the times when calls are made for enforcing the liability.
(2) An action to recover a debt created by this section shall not be brought after the expiration of 12 years after the date on which the cause of action accrued.
Section 655
Liability as contributories of past and present members
655. (1) Subject to subsection (2), in the event of a company being wound up, every present and past member shall be liable to contribute to the assets of the company to an amount sufficient for payment of its debts and liabilities, and the costs, charges and expenses of the winding up, and for the adjustment of the rights of the contributories among themselves.
(2) The following qualifications apply in relation to subsection (1):
(a) no contribution shall be required from any member exceeding the amount, if any, unpaid on the shares in respect of which he or she is liable as a present or past member;
(b) a past member shall not be liable to contribute if he or she has ceased to be a member for one year or more before the commencement of the winding up;
(c) a past member shall not be liable to contribute in respect of any debt or liability of the company contracted after he or she ceased to be a member;
(d) a past member shall not be liable to contribute unless it appears to the court that the existing members are unable to satisfy the contributions required to be made by them in pursuance of this Act;
(e) a sum due to any member of the company, in his or her character of a member, by way of dividends, profits or otherwise, shall not be deemed to be a debt of the company, payable to that member in a case of competition between himself or herself and any other creditor not a member of the company, but any such sum may be taken into account for the purpose of the final adjustment of the rights of the contributories among themselves.
Section 656
Settlement of list of contributories
656. (1) Subject to subsection (3), in the event of a company being wound up, the liquidator shall, as soon as is reasonably practicable, settle a list of contributories.
(2) In a winding up the court shall, for the purpose of the foregoing function of the liquidator or any other relevant purpose of this Part, have the same power as it has under section 173, in the circumstances generally of a company, to rectify the register of members.
(3) Where it appears to the liquidator that it will not be necessary to make calls on or adjust the rights of contributories, the liquidator may dispense with the settlement of a list of contributories.
(4) In settling the list of contributories, the liquidator shall distinguish between persons who are contributories in their own right and persons who are contributories as being representatives of or liable for the debts of others.
Section 657
Power to make calls
657. (1) The liquidator may, either before or after he or she has ascertained the sufficiency of the assets of the company, make calls on all or any of the contributories for the time being on the list of contributories to the extent of their liability, for payment of any money which the liquidator considers necessary—
(a) to satisfy the debts and liabilities of the company,
(b) to satisfy the costs, charges and expenses of the winding up, and
(c) for the adjustment of the rights of the contributories among themselves,
and may make a demand for payment of any calls so made.
(2) Without derogating from the power of the liquidator under subsection (1) to make such calls, the court, upon the application of the liquidator made on notice to the contributory or contributories concerned, may, either before or after it has ascertained the sufficiency of the assets of the company, exercise the following power in relation to calls.
(3) That power is to make calls on all or any of the contributories for the time being on the list of contributories to the extent of their liability, for payment of any money which the court considers necessary—
(a) to satisfy the debts and liabilities of the company,
(b) to satisfy the costs, charges and expenses of the winding up, and
(c) for the adjustment of the rights of the contributories among themselves,
and may make an order for payment of any calls so made.
(4) In making a call under this section, the court or liquidator may take into consideration that some of the contributories may partly or wholly fail to pay the call.
Section 658
Adjustment of rights of contributories
658. The liquidator shall adjust the rights of the contributories among themselves and distribute any surplus among the persons entitled thereto.
Section 659
Payment of debts due by contributory to the company and extent to which set-off allowed
659. (1) The court may make an order requiring any contributory for the time being on the list of contributories to pay, in a manner directed by the order, any money due from him or her or from the estate of the person whom he or she represents to the company, exclusive of any money payable by him or her or the estate by virtue of any call in pursuance of this Act.
(2) When all the creditors are paid in full, any money due on any account whatever to a contributory from the company may be allowed to him or her by way of set-off against any subsequent call.
Section 660
Order in relation to contributory to be conclusive evidence
660. (1) An order made by the court in relation to a contributory shall, subject to any right of appeal, be conclusive evidence that the money, if any, thereby appearing to be due or ordered to be paid is due.
(2) All other relevant matters stated in such an order shall be taken to be truly stated as against all persons and in all proceedings.
Section 661
Liability in case of death of contributory
661. (1) If a contributory dies, either before or after he or she has been placed on the list of contributories, his or her personal representatives shall be liable in due course of administration to contribute to the assets of the company in discharge of his or her liability and shall be contributories accordingly.
(2) If the personal representatives make default in paying any money ordered to be paid by them, proceedings may be taken for the administration of the estate of the deceased contributory or otherwise for compelling payment thereout of the money due.
Section 662
Civil Liability Act 1961 not affected
662. Nothing in section 661 or any other provision of this Part affects any restriction under the Civil Liability Act 1961 as to the time within which proceedings are maintainable against the estate of a deceased person.
Section 663
Bankruptcy of contributory
663. (1) If a contributory becomes bankrupt, either before or after he or she has been placed on the list of contributories, the following provisions apply:
(a) the assignee in bankruptcy—
(i) shall represent the bankrupt for all the purposes of the winding up, and shall be a contributory accordingly, and
(ii) may be called on to admit to proof against the estate of the bankrupt, or otherwise to allow to be paid out of the bankrupt’s assets in due course of law, any money due from the bankrupt in respect of his or her liability to contribute to the assets of the company;
and
(b) there may be proved against the estate of the bankrupt the estimated value of his or her liability to future calls as well as calls already made.
(2) Nothing in this section affects, to the extent and under the circumstances allowable under—
(a) the general law pertaining to the application of different jurisdictions’ laws and procedures,
(b) any Community act, or
(c) any enactment giving the force of law to an agreement to which the State is a party,
the enforcement, in a winding up or other insolvency proceedings outside the State, of any liability of an individual who is a contributory.
Section 664
Corporate insolvency of contributory
664. (1) If a contributory is a company which is being wound up, either voluntarily or by the court (and whether its winding up commences before or after it has been placed on the list of contributories), the following provisions apply:
(a) the liquidator of the contributory company—
(i) shall represent it for all the purposes of the winding up, and shall be a contributory accordingly, and
(ii) may be called on to admit to proof in the contributory company’s winding up or otherwise to allow to be paid out of its assets in due course of law, any money due from the contributory company in respect of its liability to contribute to the assets of the company;
and
(b) there may be proved against the contributory company the estimated value of its liability to future calls as well as calls already made.
(2) In subsection (1) the first reference to a company and each reference to a contributory company is a reference to any of the following:
(a) a private company limited by shares;
(b) a designated activity company;
(c) a public limited company;
(d) a company limited by guarantee;
(e) an unlimited company;
(f) an unregistered company.
(3) Nothing in this section affects, to the extent and under the circumstances allowable under—
(a) the general law pertaining to the application of different jurisdictions’ laws and procedures,
(b) any Community act, or
(c) any enactment giving the force of law to an agreement to which the State is a party,
the enforcement, in a winding up or other insolvency proceedings outside the State, of any liability of a body or undertaking that is a contributory.
Section 665
Winding up of company that had been an unlimited company before re-registration
665. In the event of the winding up of a company that had been an unlimited company before it re-registered under this Act as a private company limited by shares, the following provisions have effect:
(a) notwithstanding section 1278(2)(a), a past member of the company who was a member thereof at the time of re-registration shall, if the winding up commences within the period of 3 years beginning after the day on which the company is re-registered, be liable to contribute to the assets of the company in respect of its debts and liabilities contracted before that time;
(b) where no persons who were members of the company at the time of re-registration are existing members of the company, a person who, at that time was a present or past member thereof shall, subject to section 1278(2)(a) and to paragraph (a), but notwithstanding section 1278(2)(c) be liable to contribute in the foregoing manner despite the fact that the existing members have satisfied the contributions required to be made by them in pursuance of this Act; and
(c) notwithstanding section 655(2)(a), there shall be no limit on the amount which a person who, at the time of re-registration, was a past or present member of the company, is liable to contribute in the foregoing manner.
CHAPTER 10
Committee of inspection
Section 666
Appointment of committee of inspection in court ordered winding up
666. F508[(1) (a) When a winding-up order has been made by the court, the liquidator shall inform the creditors of the company of their power to appoint a committee of inspection under this section.
(b) When a winding-up order has been made by the court, the liquidator may and, if directed to do so by a creditor or creditors representing not less than one-tenth in value of the creditors of the company shall, summon a meeting of the creditors of the company for the purpose of determining—
(i) whether or not a committee of inspection is to be appointed, and
(ii) who are to be the members of the committee if so appointed.]
(2) F508[Subject to subsection (2A), at a meeting] summoned in accordance with subsection (1), the creditors may, if they think fit, appoint a committee of inspection consisting of not more than 5 persons appointed under this subsection.
F509[(2A) Where the employees of the company elect or appoint one of their number as an employees’ representative for the purpose of serving on any committee of inspection referred to in subsection (2), the person so elected or appointed shall be one of the persons appointed under that subsection.]
(3) If such a committee is appointed the company may, at any time subsequently in general meeting, appoint not more than 3 persons to act as members of the committee, provided that the number of members of the committee shall not at any time exceed eight.
(4) The creditors may resolve that all or any of the persons appointed under subsection (3) by the company ought not to be members of the committee of inspection, and if the creditors so resolve, the persons mentioned in the resolution shall not, unless the court, on application to it, otherwise directs, be qualified to act as members of the committee.
(5) On an application to the court under subsection (4), the court may appoint other persons to act as members of the committee of inspection in place of the persons mentioned in the resolution concerned.
(6) Where a meeting of the creditors or members of the company is being summoned under this section, the notice of the meeting shall indicate who are proposed to be appointed as the members of the committee of inspection by the meeting concerned.
F509[(7) If a liquidator, without reasonable excuse, fails to comply with subsection (1)(a), he or she shall be guilty of a category 4 offence.]
Annotations
Amendments:
F508
Substituted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 9(a), (b), S.I. No. 673 of 2021.
F509
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 9(c), (d), S.I. No. 673 of 2021.
Section 667
Appointment of committee of inspection in a creditors’ voluntary winding up
667. (1) F510[Subject to subsection (1A), the creditors] of the company at the meeting to be held in pursuance of section 587, or at any subsequent meeting, may appoint a committee of inspection consisting of not more than 5 persons appointed under this subsection.
F511[(1A) Where the employees of the company elect or appoint one of their number as an employees’ representative for the purpose of serving on any committee of inspection as mentioned in subsection (1), the person so elected or appointed shall be one of the persons appointed under that subsection.]
(2) If such a committee is appointed, the company may, either at the meeting at which the resolution for voluntary winding up is passed or at any time subsequently in general meeting, appoint not more than 3 persons to act as members of the committee, provided that the number of members of the committee shall not at any time exceed eight.
(3) The creditors may resolve that all or any of the persons appointed under subsection (2) by the company ought not to be members of the committee of inspection, and if the creditors so resolve, the persons mentioned in the resolution shall not, unless the court, on application to it, otherwise directs, be qualified to act as members of the committee.
(4) On an application to the court under subsection (3), the court may appoint other persons to act as members of the committee of inspection in place of the persons mentioned in the resolution concerned.
Annotations
Amendments:
F510
Substituted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 10(a), S.I. No. 673 of 2021.
F511
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 10(b), S.I. No. 673 of 2021.
Section 668
Constitution and proceedings of committee of inspection
668. (1) A committee of inspection appointed in pursuance of this Act (the “committee”) shall meet at such times as they from time to time appoint, and the liquidator or any member of the committee may also call a meeting of the committee as and when he or she thinks necessary.
(2) The committee may act by a majority of their members present at a meeting but shall not act unless a majority of the committee is present.
(3) A member of the committee may resign by notice in writing signed by him or her and delivered to the liquidator.
(4) A person’s office as member of the committee becomes vacant if and upon any of the following happening:
(a) the person is adjudicated bankrupt or compounds or arranges with his or her creditors;
(b) the person is absent from 2 consecutive meetings of the committee without the leave of those persons who, together with himself or herself, were appointed as members of the committee by the creditors or, as the case may be, members of the company.
(5) A member of the committee may be removed by resolution at a meeting of—
(a) creditors of the company if he or she was appointed as member of the committee by those creditors, or
(b) the company if he or she was appointed as member of the committee by the company,
being a meeting of which 7 days’ notice has been given and which notice stated the object of the meeting.
(6) Subject to subsection (7), on a vacancy occurring in the committee, the liquidator shall forthwith summon a meeting of—
(a) creditors of the company, or
(b) if the person who vacated office had been appointed by the company, of the company,
to fill the vacancy, and the meeting may, by resolution, reappoint the person who vacated office F512[, subject to subsection (6A),]or appoint another person to fill the vacancy.
F512[(6A) Where—
(a) the person who vacated office had been appointed by virtue of section 666(2A) or 667(1A), and
(b) the employees of the company elect or appoint another of their number under section 666(2A) or, as the case may be, section 667(1A),
the person so elected or appointed shall, subject to subsection (7), be appointed to fill the vacancy.]
(7) If the liquidator, having regard to the position in the winding up, is of the opinion that it is unnecessary for a vacancy occurring in the committee to be filled, he or she may apply to the court and the court may make an order that the vacancy shall not be filled or shall not be filled except in such circumstances as may be specified in the order.
(8) The continuing members of the committee, if not less than 2, may act notwithstanding any vacancy in the committee.
(9) A member of the committee shall not make a profit from the winding up, except with the leave of the court or the sanction of—
(a) in the case of a members’ voluntary winding up, a resolution of the company, or
(b) in the case of a creditors’ voluntary winding up, a resolution of the creditors of the company.
(10) At a meeting of creditors, a resolution shall, for the purposes of this section (other than subsection (9)(b)), be deemed to be passed when a majority in number of the creditors present personally or by proxy and voting on the resolution have voted in favour of the resolution.
Annotations
Amendments:
F512
Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 11(a), (b), S.I. No. 673 of 2021.
CHAPTER 11
Court’s powers
Section 669
Power to annul order for winding up or to stay winding up
669. (1) At any time after an order for winding up is made, the court—
(a) on the application of the liquidator or any creditor or contributory, and
(b) on proof to the satisfaction of the court that the order for winding up ought to be annulled,
may make an order annulling the order for winding up on such terms and conditions as the court thinks fit.
(2) Without prejudice to subsection (6), where the court makes an order under subsection (1), the applicant shall forthwith give notice of the making of the order in the prescribed form to the Registrar.
(3) At any time after an order for winding up is made, the court—
(a) on the application of the liquidator or any creditor or contributory, and
(b) on proof to the satisfaction of the court that all proceedings in relation to the winding up ought to be stayed,
may make an order staying the proceedings, either altogether or for a limited time, on such terms and conditions as the court thinks fit.
(4) Where the court makes an order under subsection (1) or (3), it may give such directions as to the retention or disposal of the company’s seal, books and papers as it thinks fit.
(5) On any application under this section the court may require the liquidator to furnish to the court a report relating to any facts or matters which are in the liquidator’s opinion relevant to the application.
(6) A certified copy of an order made under subsection (1) or (3) shall forthwith, upon the perfection of the order, be forwarded by the company, or by such other person as the court may direct, to the Registrar.
(7) If the applicant referred to in subsection (2) makes default in complying with that subsection, the applicant shall be guilty of a category 4 offence.
(8) If a company makes default in complying with subsection (6), the company and any officer of it who is in default shall be guilty of a category 4 offence.
(9) If any other person makes default in complying with subsection (6), the person shall be guilty of a category 4 offence.
Section 670
Attendance of officers of company at meetings
670. The court may, on the application of the F513[Authority] or the liquidator, or on its own motion, make an order requiring the attendance of any officer of the company at—
(a) any meeting of creditors,
(b) any meeting of contributories,
(c) any meeting of members, or
(d) any meeting of a committee of inspection,
for the purpose of giving information as to the trade, dealings, affairs or property of the company.
Annotations
Amendments:
F513
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. no. 81, S.I. No. 335 of 2022.
Section 671
Power of court to summon persons for examination
671. (1) The court may exercise the following power:
(a) of its own motion; or
(b) on the application of the F514[Authority] or the liquidator or provisional liquidator;
at any time after the appointment of a provisional liquidator, the making of a winding-up order or the passing of a resolution to wind up a company voluntarily.
(2) That power of the court is to summon before it—
(a) any officer of the company,
(b) any person known or suspected to have in his or her possession any property of the company or supposed to be indebted to the company, or
(c) any person whom the court deems capable of giving information relating to the—
(i) promotion or formation,
(ii) trade or dealings, or
(iii) affairs or property,
of the company.
(3) The court may examine on oath any person so summoned concerning the matters referred to in subsection (2)(c)(i) to (iii), either by word of mouth or on written interrogatories, and may reduce his or her answers to writing and require him or her to sign them.
(4) The court may require any person referred to in subsection (2) to produce any accounting records, deed, instrument, or other document or paper relating to the company that are in his or her custody or power.
(5) The court may, before the examination takes place, require any person referred to in subsection (2) to place before it a statement, in such form as the court may direct, of any transactions between him or her and the company of a type or class which the court may specify.
(6) If, in the opinion of the court, it is just and equitable to do so, it may direct that the costs of the examination be paid by the person examined.
(7) A person who is examined under this section shall not be entitled to refuse to answer any question put to him or her on the ground that his or her answer might incriminate him or her and any answer by the person to such a question may be used against that person in any proceedings except proceedings for the prosecution of that person for an offence (other than perjury).
(8) If a person, without reasonable excuse, fails at any time—
(a) to attend his or her examination under this section, or
(b) to comply with the requirement under subsection (3) as regards signing the matters there referred to or the requirement under subsection (4) or (5),
he or she shall be guilty of contempt of court and liable to be punished accordingly.
(9) If—
(a) a person without reasonable excuse fails at any time to attend his or her examination under this section, or
(b) there are reasonable grounds for believing that a person has absconded, or is about to abscond, with a view to avoiding or delaying his or her examination under this section,
the court may cause that person to be arrested and the person’s books and documents and movable personal property to be seized or secured and the person and them to be detained until such time as the court may order.
Annotations
Amendments:
F514
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. no. 82, S.I. No. 335 of 2022.
Modifications (not altering text):
C174
Reference construed (28.07.2021) by Criminal Justice (Perjury and Related Offences) Act 2021 (13/2021), s. 4(2) and sch. 2 item 54, S.I. No. 378 of 2021.
References to perjury or subornation of perjury
4. ...
(2) A reference in an enactment specified in Schedule 2 to perjury or to subornation of perjury, howsoever described, in relation to an act committed on or after the coming into operation of this subsection, shall be construed as a reference to perjury or to subornation of perjury, as the case may be, within the meaning of this Act.
...
SCHEDULE 2
Section 4 (2)
...
54. Companies Act 2014, section 671(7), subsections (1) and (3) of section 881 and sections 931A(7), 938(7) and 1500(3)
...
Section 672
Order for payment or delivery of property against person examined under section 671
672. (1) If, in the course of an examination under section 671, it appears to the court that any person being examined—
(a) is indebted to the company, or
(b) has in his or her possession or control any money, property or books and papers of the company,
the court may, of its own motion or on the application of the F515[Authority] or the liquidator, order such person—
(i) to pay to the liquidator the amount of the debt or any part of it, or
(ii) to pay, deliver, convey, surrender or transfer to the liquidator such money, property or books and papers or any part of it or them,
as the case may be, at such time and in such manner and on such terms as the court may direct.
(2) Where the court has made an order under subsection (1), it may, on the application of the F515[Authority] or the liquidator, make a further order permitting the applicant or another person specified in the order, accompanied (in either case) by such persons as the applicant thinks appropriate, to—
(a) enter at any time or times within 30 days after the date of issue of the order, any premises (including a dwelling) owned or occupied by the person the subject of the order under subsection (1) (using such force as is reasonably necessary for the purpose),
(b) search the premises so entered, and
(c) seize, in the course of such search, any money, property or books and papers of the company found on the premises.
(3) Where the court has made an order under subsection (2), the applicant shall report to it as soon as may be on the outcome of any action on foot of the court’s order and the court shall direct the applicant as to the disposition of anything seized on foot of the order.
(4) A direction under subsection (3) shall not be made in favour of the F515[Authority except in respect of the Authority’s] costs and reasonable expenses.
(5) A person who obstructs the exercise of—
(a) a right of entry, search and seizure conferred by virtue of an order made under subsection (2), or
(b) a right so conferred to take possession of anything referred to in that subsection, shall be guilty of a category 2 offence.
(6) Proceedings on foot of an offence alleged to be committed under subsection (5) shall not prejudice the power of the court to issue proceedings for contempt of court for failure by a person to comply with an order under this section.
(7) In this section “liquidator” includes a provisional liquidator.
Annotations
Amendments:
F515
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. nos. 83-85, S.I. No. 335 of 2022.
Section 673
Delivery of property of company to liquidator
673. (1) In a winding up of a company, on notice in writing being given by the liquidator requiring him or her to do so, any:
(a) contributory for the time being on the list of contributories;
(b) trustee;
(c) receiver;
(d) banker; or
(e) agent or officer;
of the company shall, within such period as is specified in the notice, pay, deliver, convey, surrender or transfer to or into the hands of the liquidator any money, property, books or papers which happen to be in his or her hands for the time being and to which the company is prima facie entitled.
(2) The court may exercise the following power:
(a) of its own motion; or
(b) on the application of the liquidator;
at any time after the appointment of a provisional liquidator, the making of a winding-up order or the passing of a resolution to wind up a company voluntarily.
(3) That power of the court is to require a person referred to in any of paragraphs (a) to (e) of subsection (1) to pay, deliver, convey, surrender or transfer forthwith, or within such period as the court directs, to the liquidator any money, property or books and papers in his or her hands to which the company concerned is prima facie entitled.
(4) In discharging the duties imposed by section 624, the liquidator shall, for the purpose of acquiring or retaining possession of the property of the company, be in the same position as if he or she were a receiver of the property appointed by the court, and the court may, on the application of the liquidator, enforce such acquisition or retention accordingly.
(5) In this section “liquidator” includes a provisional liquidator.
Section 674
Power to exclude creditors not proving in time
674. (1) Subject to subsections (3) and (4), the liquidator may fix a time or times within which creditors are to prove their debts or claims or to be excluded from the benefit of any distribution made before those debts or claims are proved.
(2) The time or times so fixed by the liquidator shall be notified, in writing, by him or her to the creditors.
(3) A time shall not be fixed pursuant to subsection (1) which falls earlier than 28 days after the day on which creditors are notified under subsection (2) of the fixing of that time.
(4) The court may upon the application of a creditor, made on notice to the liquidator, extend the time fixed pursuant to subsection (1) within which that creditor may prove his or her debt or claim.
Section 675
Order for arrest and seizure, etc.
675. (1) The court may, in either of the cases specified in subsection (2)—
(a) at any time after the presentation of a petition to wind up a company or the passing of a resolution to wind up a company voluntarily, and
(b) on proof of probable cause for believing that a contributory, director, shadow director, secretary or other officer of the company is about to quit the State or otherwise to abscond or to remove or conceal any of his or her property for the purpose of evading payment of calls or of avoiding examination about the affairs of the company,
cause—
(i) the contributory, director, shadow director, secretary or other officer to be arrested, and
(ii) that person’s books and papers and movable personal property to be seized or secured,
and the person and them to be detained until such time as the court may order.
(2) The court may exercise the powers under subsection (1)—
(a) of its own motion, or
(b) on the application of the F516[Authority], a creditor of the company or any other interested person.
Annotations
Amendments:
F516
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. no. 86, S.I. No. 335 of 2022.
Section 676
Provisions as to arrangement binding creditors
676. (1) Any arrangement entered into between a company about to be, or in the course of being, wound up and its creditors shall, subject to the right of appeal under this section, be binding on the company if sanctioned by a special resolution and on the creditors if acceded to by three-fourths in number and value of the creditors.
(2) Any creditor or contributory may, within 21 days after the date of completion of the arrangement, appeal to the court against it, and the court, on the hearing of the appeal, may, as it thinks just, amend, vary or confirm the arrangement.
(3) This section is in addition to the circumstances in which a compromise or arrangement in relation to a company may become binding under Chapter 1 of Part 9.
CHAPTER 12
Provisions supplemental to conduct of winding up
Section 677
Effect of winding up on business and status of company
677. (1) From the commencement of the winding up, the company shall cease to carry on its business, except so far as may be required for the beneficial winding up of it.
(2) However the corporate state and corporate powers of the company shall, notwithstanding anything to the contrary in its constitution, continue until it is dissolved.
(3) On the appointment of a liquidator, other than a provisional liquidator, all the powers of the directors of the company shall cease, except so far as—
(a) in the case of a winding up by the court or a creditors’ voluntary winding up, the committee of inspection or, if there is no such committee, the creditors, sanction (in either case, with the approval of the liquidator) the continuance of those powers, or
(b) in the case of a members’ voluntary winding up, the members in general meeting sanction the continuance of those powers.
(4) The continuance of the directors’ powers by virtue of a sanction under subsection (3) shall not, in any case, and notwithstanding anything in section 40, operate to give precedence to any decision or act of the directors made or done during the course of the winding up over that made or done by the liquidator in respect of the matter concerned and, without prejudice to the foregoing, no decision or act made or done by the directors in respect of a matter falling within section 627 shall be valid unless made or done with the prior consent of the liquidator, but this is subject to subsection (5).
(5) The court may, on application to it by a person aggrieved, grant such relief as it thinks appropriate from the sanction of invalidity provided under subsection (4) if it is satisfied that the person (not being an officer of the company) acted in good faith in the matter.
(6) An application under subsection (5) shall be made on notice to the liquidator and—
(a) each creditor who has submitted a proof of his or her debt or claim under and in accordance with this Part, and
(b) each contributory for the time being on the list of contributories.
Section 678
Actions against company stayed on winding-up order
678. (1) When in relation to a company—
(a) a winding-up order has been made,
(b) a provisional liquidator has been appointed, or
(c) a resolution for voluntary winding up has been passed,
no action or proceeding shall be proceeded with or commenced against the company except by leave of the court and subject to such terms as the court may impose.
(2) Subsection (1) shall not apply to the taking of proceedings before the F517[Workplace Relations Commission].
Annotations
Amendments:
F517
Substituted (21.08.2020) by Companies (Miscellaneous Provisions (Covid-19) Act 2020 (9/2020), s. 17, S.I. No. 320 of 2020.
Editorial Notes:
E125
Previous affecting provision: functions transferred and “Employment Appeals Tribunal” construed by Workplace Relations Act 2015 (16/2015), s. 66, not commenced; “Employment Appeals Tribunal” substituted as per F-note above.
Section 679
Director may direct convening of meetings
679. (1) Where a meeting is required to be held under this Part and such meeting is not held within the time required or in the manner required by or under this Part, the F518[Authority] may—
(a) direct the liquidator of the company concerned to convene (or, as appropriate, reconvene) such meeting, and
(b) specify procedures that are to be followed in convening (or reconvening) and holding such meeting, matters that are to be dealt with at such meeting and the time and location of such meeting.
(2) The F518[Authority, or its] authorised representative, may attend at any meeting convened or reconvened pursuant to subsection (1).
(3) A liquidator who fails to comply with a direction under subsection (1) shall be guilty of a category 3 offence.
Annotations
Amendments:
F518
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. no. 87, 88, S.I. No. 335 of 2022.
Section 680
Duty of liquidator to call meeting at end of each year
680. (1) If a members’ voluntary winding up continues for more than 12 months, then after—
(a) the first anniversary of the commencement of the winding up, and
(b) each subsequent anniversary of that commencement (and the winding up is continuing),
the liquidator has the following duty.
(2) That duty of the liquidator is to—
(a) summon, giving 7 days’ notice thereof, the holding of a general meeting of the company for a day falling not later than 28 days after the anniversary concerned, and
(b) lay before that meeting an account of his or her acts and dealings and of the conduct of the winding up during the preceding year.
F519[(2A) F520[…]]
(3) The liquidator shall, within 7 days after the date of such meeting, send a copy of the foregoing account to the Registrar.
(4) If a winding up by the court or a creditors’ voluntary winding up continues for more than 12 months, then after—
(a) the first anniversary of the commencement of the winding up, and
(b) each subsequent anniversary of that commencement (and the winding up is continuing),
the liquidator has the following duty.
(5) That duty of the liquidator is to—
(a) summon, giving 7 days’ notice thereof, the holding of—
(i) if a committee of inspection has been appointed, a meeting of the committee of inspection, or
(ii) if no committee of inspection has been appointed, a meeting of the creditors of the company,
for a day falling not later than 28 days after the anniversary concerned, and
(b) lay before that meeting an account of his or her acts and dealings and of the conduct of the winding up during the preceding year.
F519[(5A) F520[…]]
(6) The liquidator shall, within 7 days after the date of such meeting, send a copy of the foregoing account to the Registrar.
(7) Where a meeting of the committee of inspection is held pursuant to subsection (5)(a), that committee may, by resolution, direct the liquidator to convene a meeting of the creditors of the company and, where such a direction is so given, the liquidator shall cause such meeting to be convened and held no later than 21 days after the date of such resolution.
(8) Where section 584 has effect, subsections (4) to (6) shall apply to the winding up to the exclusion of subsections (1) to (3), as if the winding up were a creditors’ voluntary winding up and not a members’ voluntary winding up.
(9) If the liquidator fails to comply with any provision of this section, or a direction under it, he or she shall be guilty of a category 3 offence.
Annotations
Amendments:
F519
Inserted (21.08.2020) by Companies (Miscellaneous Provisions (Covid-19) Act 2020 (9/2020), s. 18(a), (b), S.I. No. 320 of 2020. Note extensions of interim period by statutory instruments made under s. 12A
F520
Repealed (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 3(1) and sch. 1, S.I. No. 639 of 2024.
F521
Substituted by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 53(a), (b), not commenced as of date of revision.
Modifications (not altering text):
C175
Prospective affecting provision: subss. (3), (6) amended by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 53(a), (b), not commenced as of date of revision.
(3) The liquidator shall, within 7 days after the date of such meeting, send a copy of the foregoing F521[account in the prescribed form] to the Registrar.
...
(6) The liquidator shall, within 7 days after the date of such meeting, send a copy of the foregoing F521[account in the prescribed form] to the Registrar.
Section 681
Information about progress of liquidation
681. (1) This section applies where the winding up of a company is not concluded within 12 months after the date of its commencement and is subject to subsection (4).
(2) Where this section applies, the liquidator of the company shall, at the intervals specified in subsection (3) until the winding up is concluded, send to the Registrar a statement in the prescribed form and containing the prescribed particulars about the proceedings in, and position of, the winding up.
(3) The intervals referred to in subsection (2) are—
(a) as regards the first of them — the interval ending on the date of the first anniversary of the commencement of the winding up (but, for the purposes of this interval, the obligation of the liquidator under subsection (2) may be fulfilled at any time before the expiry of 14 days after that anniversary), and
(b) as regards subsequent intervals — intervals of 6 months, or such F522[other] period as may be prescribed, following on from that first anniversary.
(4) The obligation under subsection (2) does not apply in relation to a particular winding up if and to the extent that the court specifies in a direction given by it.
(5) If a liquidator fails to comply with subsection (2), he or she shall be guilty of a category 3 offence.
Annotations
Amendments:
F522
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 33, S.I. No. 335 of 2022.
Section 682
Liquidator to report on conduct of directors
682. (1) In this section “insolvent company” has the same meaning as it has in Chapter 3 (restrictions on directors of insolvent companies) of Part 14.
(2) In a winding up of an insolvent company, the liquidator shall, within 6 months after the date of his or her appointment, and at intervals as required by the F523[Authority thereafter, provide to the Authority] a report F524[in the form prescribed by the Minister].
(3) F523[The Authority may] require the liquidator of an insolvent company—
(a) to answer, whether orally or in writing, any question that the F523[Authority] reasonably puts to the liquidator concerning the contents of a report made by the liquidator under subsection (2), the affairs of the company or the conduct of any director of the company (as that expression is to be read in accordance with section 683(1) (b)), and
(b) to give such other assistance (as he or she is reasonably able to give) to the F523[Authority for the purpose of the Authority’s appraisal of such a report or the Authority’s examination of any fact or allegation contained in it or which comes to the Authority’s knowledge by reason of an answer given under paragraph (a) or otherwise through the Authority’s] performance of functions under this Act,
and the liquidator shall comply with such a requirement.
(4) The F523[Authority’s powers under subsection (3) are in addition to the powers of the Authority] or any other person under any other provision of this Act.
(5) A liquidator who fails to comply with subsection (2) or a requirement under subsection (3) shall be guilty of a category 3 offence.
Annotations
Amendments:
F523
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. nos. 89-93, S.I. No. 335 of 2022.
F524
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 98(h), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Editorial Notes:
E126
Power pursuant to subs. (2) exercised (1.10.2023) by Companies Act 2014 (Section 682) Regulations 2023 (S.I. No. 474 of 2023), in effect as per reg. 1(2).
E127
Power pursuant to subs. (2) exercised (9.11.2015) by Companies Act 2014 (Section 682) (Revocation) Regulations 2015 (S.I. No. 497 of 2015).
E128
Previous affecting provision: power pursuant to subs. (2) exercised (1.06.2015) by Companies Act 2014 (Section 682) Regulations 2015 (S.I. No. 221 of 2015), in effect as per reg. 1; revoked (9.11.2015) by Companies Act 2014 (Section 682) (Revocation of Statutory Instrument) Regulation 2015 (S.I. No. 497 of 2015), in effect as per reg. 2.
Section 683
Obligation (unless relieved) of liquidator of insolvent company to apply for restriction of directors
683. (1) In this section—
(a) “insolvent company” has the same meaning as it has in Chapter 3 (restrictions on directors of insolvent companies) of Part 14; and
(b) a reference to a director of the insolvent company is a reference to a person who was a director or shadow director of the company at the date of, or within 12 months before, the commencement of its winding up.
(2) In a winding up of an insolvent company, where this subsection applies, the liquidator shall apply under section 819(1) for a declaration under that provision in respect of each of the directors of the company.
F525[(2A) The liquidator’s obligations under this Part in respect of an insolvent company shall continue to apply to him or her until the conclusion of all proceedings relating to an application for a declaration under section 819(1) restricting a director from being a director of a company, including until the conclusion of any appeal in relation thereto.]
(3) As respects subsection (2)—
(a) that subsection applies unless the F526[Authority has relieved the liquidator of the obligation to make the application under section 819(1) in relation to the winding up concerned or a particular director or directors (which power to so relieve is conferred on the Authority] by this paragraph), and
(b) where the F526[Authority] relieves the liquidator of that obligation in respect of one or more but not all of the directors, that subsection shall be read as applying to the director or directors as respects whom the liquidator has not been relieved of that obligation.
(4) An application in respect of a director under section 819(1), in compliance with subsection (2), shall be made not later than the expiry of—
(a) 2 months after the date on which the F526[Authority has notified the liquidator that the Authority] has not relieved the liquidator of the obligation to make the application in respect of the director, or
(b) such greater period of time as the F526[Authority] may allow for the purposes of the application.
(5) A liquidator who fails to comply with subsection (2) shall be guilty of a category 3 offence.
Annotations
Amendments:
F525
Inserted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 54, S.I. No. 639 of 2024.
F526
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. nos. 94-97, S.I. No. 335 of 2022.
Section 684
Inspection of books by creditors and contributories
684. (1) The court may, at any time after making a winding-up order or the commencement of a voluntary winding up, make such order for inspection of the accounting records, books and papers of the company by creditors or contributories as the court thinks just.
(2) Where such an order is made, any accounting records, books and papers in the possession of the company may be inspected by creditors or contributories accordingly, but not further or otherwise.
(3) Nothing in this section shall be taken as excluding or restricting any statutory rights of the Government, a Minister of the Government or a person acting under the authority of the Government or a Minister of the Government, or the powers of any person under Part 13.
Section 685
Resolutions passed at adjourned meetings of creditors and contributories
685. Where a resolution is passed at an adjourned meeting of any creditors or contributories of a company, the resolution shall, for all purposes, be treated as having been passed on the date on which it was in fact passed and shall not be deemed to have been passed on any earlier date.
Section 686
Books of company to be evidence in civil proceedings
686. When a company is being wound up, information contained in every book and record of the company and of the liquidator and any provisional liquidator shall, as between—
(a) the members, officers and contributories of the company, and
(b) any of the persons referred to in paragraph (a) and the liquidator, the provisional liquidator (if any) and the F527[Authority],
be admissible, in all civil proceedings, as evidence of any fact therein.
Annotations
Amendments:
F527
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. no. 98, S.I. No. 335 of 2022.
Section 687
Liquidator may have regard to wishes of creditors and contributories
687. (1) Subject to this Part, the liquidator may, in the administration of the property of the company and in the distribution of the property among its creditors, have regard to any directions given to him or her by resolution of the creditors or contributories at any general meeting or by the committee of inspection (if any).
(2) In case of conflict—
(a) between any directions so given by the creditors and those so given by the contributories, or
(b) between any directions so given by the creditors or the contributories and any directions given by the committee of inspection,
the directions, in the case of paragraph (a), of the creditors shall override those of the contributories and the directions, in the case of paragraph (b), of the creditors or contributories shall override those of the committee of inspection.
(3) The liquidator—
(a) may convene general meetings of the creditors or contributories for the purpose of ascertaining their wishes, and
(b) shall, for that purpose, convene meetings of the creditors or, as the case may be, contributories—
(i) at such times as the creditors or contributories, as the case may be, by resolution direct, or
(ii) whenever requested in writing to do so by at least one-tenth in value of the creditors or, as the case may be, by at least one-tenth in number of the contributories.
Section 688
Reporting to Director of misconduct by liquidators
688. (1) Where a disciplinary committee or tribunal (however called) of a prescribed professional body—
(a) finds that a member of that body who is conducting or has conducted a winding up has not maintained appropriate records in relation to that activity, or
(b) has reasonable grounds for believing that such a member has committed a category 1 or 2 offence during the course of conducting a winding up,
the professional body shall report the matter, giving details of the finding or, as the case may be, of the alleged offence, to the F528[Authority] forthwith.
(2) If a professional body fails to comply with this section, it, and any officer of the body to whom the failure is attributable, shall be guilty of a category 3 offence.
Annotations
Amendments:
F528
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. no. 99, S.I. No. 335 of 2022.
CHAPTER 13
General rules as to meetings of members, contributories and creditors of a company in liquidation
Section 689
Meetings directed by the court
689. (1) This section shall apply to meetings in a winding up ordered by the court that are held or to be held at the direction of the court and shall have effect subject to any directions the court may give.
(2) If the court so directs, notice of a meeting may be given by advertisement in which case the object of the meeting need not be stated in the advertisement.
(3) A certified copy of the order of the court appointing a person as chairperson of a meeting shall be sufficient authority for the person so appointed to preside at such meeting.
(4) The chairperson of a meeting shall make a report of the result of the meeting in such form (if any) as the court directs.
Section 690
Provisions as to meetings of creditors, contributories and members generally
690. Save where this Act otherwise provides, the provisions of sections 691 to 703 shall apply in relation to a meeting of creditors, contributories or members held or to be held under this Part.
Section 690A
F529[Creditors’ meetings conducted by electronic means during interim period
690A. F530[…]]
Annotations
Amendments:
F529
Inserted (21.08.2020) by Companies (Miscellaneous Provisions (Covid-19) Act 2020 (9/2020), s. 19, S.I. No. 320 of 2020. Note extensions of interim period by statutory instruments made under s. 12A.
F530
Repealed (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 3(1) and sch. 1, S.I. No. 639 of 2024.
Editorial Notes:
E129
Previous affecting provision: paragraph (fa) inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 12, S.I. No. 673 of 2021; repealed (3.12.2024) as per F-Note above.
E130
The section heading is taken from the amending section in the absence of one included in the amendment.
Section 691
Entitlement to attend and notice
691. (1) Every person appearing by the company’s books to be a creditor of the company shall be entitled to attend a meeting of creditors.
(2) The liquidator shall give to every person appearing by the company’s books or otherwise to be a contributory of the company notice of a meeting of contributories.
(3) Every person appearing by the company’s books or otherwise to be a member of the company shall be entitled to attend a meeting of members.
(4) The liquidator shall give notice in writing to every person entitled to attend a meeting of the time and place appointed for the meeting and of the subject matter of the meeting in such form as may be prescribed not less than 7 days before the day appointed for such meeting.
F531[(4A) F532[…]]
(5) The notice under subsection (4) to each creditor shall be sent to the address given in the creditor’s proof, or if he or she has not proved, to the address given in the statement of affairs of the company, if any, or to such other address as may be known to the liquidator.
(6) The notice under subsection (4) to each contributory shall be sent to the address mentioned in the company’s books as the address of such contributory or to such other address as may be known to the liquidator.
(7) The notice under subsection (4) to each member shall be sent to the address mentioned in the company’s books as the address of such member or to such other address as may be known to the liquidator.
(8) Where a meeting of creditors, contributories or members is summoned by notice, the proceedings and resolutions of the meeting shall, unless the court otherwise orders, be valid notwithstanding that some creditors, contributories or members, as the case may be, may not have received the notice sent to them.
Annotations
Amendments:
F531
Inserted (21.08.2020) by Companies (Miscellaneous Provisions (Covid-19) Act 2020 (9/2020), s. 20, S.I. No. 320 of 2020. Note extensions of interim period by statutory instruments made under s. 12A.
F532
Repealed (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 3(1) and sch. 1, S.I. No. 639 of 2024.
Section 692
Location of meeting
692. (1) Every meeting shall be held at such place as is, in the opinion of the person convening the meeting, the most convenient for the majority of the creditors, contributories or members or all, as the case may be.
F533[(1A) F534[…]]
(2) Different times or places may be named for the meetings of creditors and for those of contributories and for those of members.
Annotations
Amendments:
F533
Inserted (21.08.2020) by Companies (Miscellaneous Provisions (Covid-19) Act 2020 (9/2020), s. 21, S.I. No. 320 of 2020. Note extensions of interim period by statutory instruments made under s. 12A.
F534
Repealed (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 3(1) and sch. 1, S.I. No. 639 of 2024.
Section 693
Costs of meetings
693. (1) Any person, other than the liquidator, who summons a meeting of creditors, contributories or members shall be liable for the costs of summoning the meeting and shall, before the meeting is summoned, deposit with the liquidator such sum as may be required by the liquidator as security for the payment of such costs.
(2) Those costs shall be repaid out of the assets of the company if the court shall by order so direct or if the creditors or contributories (as the case may be) shall by resolution so direct.
(3) This section shall not apply to meetings under section 587.
Section 694
Chairperson
694. (1) At a meeting summoned by the liquidator, the liquidator or, if the liquidator is unable to act, someone nominated by him or her, shall be chairperson and at every other meeting of creditors, contributories or members the chairperson shall be such person as the meeting by resolution shall appoint.
(2) This section shall not apply to meetings under section 587.
Section 695
Passing resolutions
695. (1) At a meeting of creditors, a resolution shall be deemed to be passed when a majority in number and value of the creditors present personally or by proxy and voting on the resolution have voted in favour of the resolution.
F535[(1A) F536[…]]
(2) At a meeting of the contributories a resolution shall be deemed to be passed when a majority in number and value of the contributories present personally or by proxy and voting on the resolution have voted in favour of the resolution, the value of the contributories being determined according to the number of votes conferred on each contributory by the constitution of the company.
F535[(2A) F536[…]]
(3) This section shall not apply to a resolution referred to in section 588(6), 637(3) or section 668(5) or (6).
Annotations
Amendments:
F535
Inserted (21.08.2020) by Companies (Miscellaneous Provisions (Covid-19) Act 2020 (9/2020), s. 22(a), (b), S.I. No. 320 of 2020. Note extensions by statutory instruments made under s. 12A.
F536
Repealed (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 3(1) and sch. 1, S.I. No. 639 of 2024.
Section 696
Registration of resolutions of creditors, contributories and members
696. (1) The liquidator shall forward to the Registrar a copy certified by the liquidator of every resolution of a meeting of creditors, contributories or members within 14 days after the date upon which the meeting concerned is held.
(2) If a liquidator fails to comply with subsection (1), he or she shall be guilty of a category 4 offence.
Section 697
Proceedings at the meeting
697. (1) The chairperson of a meeting may, with the consent of the meeting, adjourn it from time to time and from place to place but the adjourned meeting shall be held at the same place as the original meeting unless—
(a) in the resolution for adjournment another place is F537[specified, or]
(b) the court otherwise F537[orders.]
F538[(c) F539[…]]
(2) Other than on the matter of election of the chairperson or an adjournment, a meeting may not act for any purpose, unless there are present or represented at the meeting—
(a) in the case of a creditors’ meeting, at least 3 creditors entitled to vote or all the creditors entitled to vote if the number entitled to vote shall not exceed three, or
(b) in the case of a meeting of contributories or members, at least 2 contributories or members, as the case may be.
(3) If within 30 minutes from the time appointed for the meeting a quorum of creditors, contributories or members, as the case may be, is not present or represented, the meeting shall be adjourned to the same day in the following week at the same time and place or to such other day or time or place as the chairperson may appoint.
(4) However the day so appointed by the chairperson shall be not less than 7 nor more than 21 days after the day from which the meeting was adjourned.
Annotations
Amendments:
F537
Substituted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 3(2) and sch. 2, S.I. No. 639 of 2024.
F538
Inserted (21.08.2020) by Companies (Miscellaneous Provisions (Covid-19) Act 2020 (9/2020), s. 23(c), S.I. No. 320 of 2020. Note extensions of interim period by statutory instruments made under s. 12A.
F539
Deleted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 3(2) and sch. 2, S.I. No. 639 of 2024.
Editorial Notes:
E131
Previous affecting provision: subsections (1)(a) and (1)(b) amended (21.08.2020) by Companies (Miscellaneous Provisions (Covid-19) Act 2020 (9/2020), s. 23(a), (b), S.I. No. 320 of 2020. Note extensions of interim period by statutory instruments made under s. 12A; substituted (3.12.2024) as per F-Note above.
Section 698
Entitlement to vote of creditors
698. (1) Subject to subsection (3), in the case of a meeting of creditors held pursuant to section 666 or of an adjournment thereof, a person shall not be entitled to vote as a creditor unless he or she has duly lodged with the liquidator, not later than the time mentioned for that purpose in the notice convening the meeting or adjourned meeting, a proof of the debt which he or she claims to be due to him or her from the company.
(2) In the case of any other meeting of creditors and subject to subsection (3) and subsections (5) to (8), a person shall not be entitled to vote as a creditor unless he or she has lodged with the liquidator a proof of the debt which he or she claims to be due to him or her from the company and such proof has been admitted wholly or in part before the date on which the meeting is held.
(3) Neither subsection (1) or (2) shall apply to any creditors or class of creditors who by virtue of this Act or rules of court are not required to prove their debts, and subsection (2) shall not apply to a meeting referred to in section 587.
(4) The following subsections contain exceptions to, or apply restrictions on the exercise of, a creditor’s entitlement to vote at a meeting to which subsection (2) applies.
(5) In respect of any unliquidated or contingent debt or any debt the value of which is not ascertained, the chairperson may put upon such a debt an estimated minimum value for the purpose of entitlement to vote and admit the creditor’s proof for that purpose.
(6) A creditor shall not vote in respect of any debt on or secured by a current bill of exchange or promissory note held by him or her unless he or she is willing to do each of the following, namely:
(a) to treat the liability to him or her on the bill or note of every person who is liable thereon antecedently to the company and against whom an adjudication order in bankruptcy has not been made, as a security in his or her hands;
(b) to estimate the value of that liability; and
(c) for purposes of voting but not for the purposes of dividend, to deduct that liability from his or her proof.
(7) Unless he or she surrenders his or her security, a secured creditor shall, for the purpose of voting, state:
(a) in his or her proof; or
(b) in the case of a meeting that falls within subsection (8), in the statement referred to in that subsection,
the following matters:
(i) the particulars of his or her security;
(ii) the date when that security was given; and
(iii) the value at which he or she assesses that security,
and shall be entitled to vote only in respect of the balance (if any) due to him or her after deducting the value of that security.
(8) For the purpose of voting at a meeting in a voluntary winding up (not being a meeting referred to in section 587), a secured creditor shall, unless the secured creditor surrenders his or her security, lodge with the liquidator, before the meeting, a statement stating the matters referred to in subsection (7)(i) to (iii).
(9) The chairperson may admit or reject a proof for the purpose of voting, but an appeal shall lie to the court against his or her decision on that matter.
(10) If the chairperson is in doubt whether a proof should be admitted or rejected the chairperson shall mark it as objected to and allow the creditor to vote subject to the vote being declared invalid in the event of the objection being sustained.
Section 699
Provisions consequent on section 698 regarding secured creditors: deemed surrender of security, etc.
699. (1) A secured creditor who, at a meeting to which section 698(2) applies, votes in respect of the whole debt due to him or her shall be deemed to surrender his or her security unless the court, on application to it, is satisfied that the omission to value the security has arisen from inadvertence.
(2) The liquidator may, within 28 days after the date of there being used the proof or statement referred to in section 698(7) or (8) for the purpose of voting at a meeting to which section 698(2) applies, require the creditor concerned to give up the security for the benefit of the creditors generally on payment to the creditor of the value estimated in that proof or statement.
(3) However the creditor concerned may, at any time before being so required to give the security up, correct the valuation so estimated by furnishing a new proof to the liquidator and may deduct the new value from the debt due to him or her.
Section 700
Duties of chairperson
700. (1) The chairperson of a meeting shall cause—
(a) minutes of the proceedings at the meeting to be drawn up and entered in a book kept for that purpose and the minutes shall be signed by him or her or by the chairperson of the next ensuing meeting, and
(b) a list of creditors, contributories or members present at the meeting to be made and kept in such form as may be prescribed and such list shall be signed by him or her.
(2) If the chairperson fails to comply with subsection (1)(a) or (b), he or she shall be guilty of a category 3 offence.
Section 701
Proxies
701. (1) A creditor, a contributory or a member may vote either in person or by proxy.
F540[(1A) F541[…]]
(2) An instrument of proxy shall be in the prescribed form.
(3) A creditor, a contributory or a member may appoint any person a special proxy to vote at any specified meeting or adjournment thereof—
(a) for or against the appointment or continuance in office of any specified person as liquidator or member of the committee of inspection, and
(b) on all questions relating to any matter other than those referred to in paragraph (a) and arising at the meeting or an adjournment thereof.
(4) A creditor, a contributory or a member may appoint any person a general proxy.
(5) A general and a special form of proxy shall be sent to each of the creditors, contributories or members with the notice summoning the meeting, and neither the name nor description of the liquidator or any other person shall be printed or inserted in the body of any instrument of proxy before it is so sent.
(6) A creditor, a contributory or a member may appoint the liquidator or, if there is no liquidator, the chairperson of a meeting to act as his or her general or special proxy.
(7) No person appointed as either a general or a special proxy shall vote in favour of any resolution which would directly or indirectly place—
(a) himself or herself,
(b) a partner of him or her, or
(c) an employer of him or her,
in a position to receive any remuneration out of the assets of the company otherwise than as a creditor rateably with the other creditors of the company.
(8) However where any person holds one or more special proxies to vote for an application to the court in favour of the appointment of himself or herself as liquidator the person may use that proxy or those proxies and vote accordingly.
Annotations
Amendments:
F540
Inserted (21.08.2020) by Companies (Miscellaneous Provisions (Covid-19) Act 2020 (9/2020), s. 24, S.I. No. 320 of 2020. Note extensions of interim period by statutory instruments made under s. 12A.
F541
Repealed (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 3(1) and sch. 1, S.I. No. 639 of 2024.
Section 702
Supplemental provisions in relation to section 701: time for lodging proxies, etc.
702. (1) Every instrument of proxy shall be lodged—
(a) in the case of a winding up by the court, with the liquidator,
(b) in the case of a meeting under section 587, with the company at its registered office, and
(c) in the case of a voluntary winding up and the meeting is not one referred to in paragraph (b), with the liquidator or, if there is no liquidator, with the person named in the notice convening the meeting to receive the proxy,
not later than four o’clock in the afternoon of the day before the meeting or adjourned meeting at which it is to be used.
(2) No person who is a minor shall be appointed a general or special proxy.
(3) In the case of a creditor who is incapable of writing because of blindness or other physical infirmity, an instrument of proxy of the creditor may, subject to subsection (4), be accepted if the creditor has attached his or her signature or mark to the proxy in the presence of a witness and that witness has added to the creditor’s signature the witness’s description and residence.
(4) Subsection (3) only applies if—
(a) all insertions in the instrument of proxy are in the handwriting of the witness, and
(b) the witness has certified, at the foot of the instrument of proxy, that all such insertions have been made by the witness at the request and in the presence of the creditor before the creditor attached his or her signature or mark.
(5) Where a company is a creditor, any person who is duly authorised under the seal of that company to act generally on behalf of that company at meetings of creditors, members and contributories may fill in and sign the instrument of proxy on that company’s behalf and appoint himself or herself to be that company’s proxy.
(6) The instrument of proxy so filled in and signed by such person shall be received and dealt with as a proxy of that company but this is without prejudice to section 703.
(7) In subsection (5) “company” means any company which is capable of being wound up under this Act and any other body corporate.
Section 703
Representation of bodies corporate at meetings held during winding up
703. For the avoidance of doubt, section 185 applies to any meeting of a company held during the course of its being wound up.
CHAPTER 14
Completion of winding up
Section 704
Dissolution of company by court
704. (1) In a winding up by the court, the court may, on its own motion, make an order requiring the liquidator to make, at such time as the affairs of the company have been completely wound up, an application pursuant to subsection (3).
(2) Unless such an order is made by the court, section 706 shall apply to the winding up by the court as if it were a creditors’ voluntary winding up.
(3) If the court makes an order under subsection (1) requiring the liquidator to do so, the liquidator shall, at such time as it appears to the liquidator that the affairs of the company have been completely wound up, make an application to the court for the dissolution of the company.
(4) On the making of such application, if the court is satisfied that the affairs of the company have been completely wound up, the court shall make an order that the company be dissolved from the date of the order, and the company shall be dissolved accordingly.
(5) A certified copy of an order under subsection (4) shall, within 21 days after the date of the making of the order, be forwarded by the liquidator to the Registrar.
(6) If the liquidator fails to comply with subsection (3) or (5), he or she shall be guilty of a category 3 offence.
Section 705
Final meeting and dissolution in members’ voluntary winding up
705. (1) In a members’ voluntary winding up, as soon as the affairs of the company are completely wound up, the liquidator shall prepare an account of the winding up showing how the winding up has been conducted and the property of the company has been disposed of.
(2) On that account being prepared, the liquidator shall call a general meeting of the company for the purpose of laying before it the account and giving any explanation thereof.
(3) That meeting shall be called by giving at least 28 days’ written notice to the members of the company.
(4) Within 7 days after the date of that meeting, the liquidator shall—
(a) send to the Registrar a copy of the account, and
(b) make a return to the Registrar of the holding of that meeting and of its date.
(5) Subject to subsection (6), if a copy of the account is not sent to the Registrar, or the return is not made to him or her, in accordance with subsection (4), the liquidator shall be guilty of a category 3 offence.
(6) If a quorum is not present at the meeting referred to in subsection (2), the liquidator shall, instead of making the return referred to in paragraph (b) of subsection (4), make, within the period specified in that subsection, a return to the Registrar that the meeting was duly summoned and that no quorum was present at it, and, upon such a return being made, subsection (4)(b) shall be deemed to have been complied with.
(7) Subject to subsection (8), the Registrar, on receiving the account, and the return referred to in subsection (4)(b) or (6), as the case may be, shall forthwith register them, and on the expiration of 3 months after the date of registration of the return the company shall be deemed to be dissolved.
(8) The court may, on the application of the liquidator or of any other person who appears to the court to be interested, make an order deferring the date at which the dissolution of the company is to take effect for such time as the court thinks fit.
(9) A person on whose application an order under subsection (8) is made shall, within 14 days after the date of making of the order, deliver to the Registrar a certified copy of the order.
(10) If a person fails to comply with subsection (9), he or she shall be guilty of a category 3 offence.
(11) If the liquidator fails to call a general meeting of the company as required by this section, he or she shall be guilty of a category 3 offence.
(12) Where section 584 has effect, section 706 shall apply to the winding up to the exclusion of this section as if the winding up were a creditors’ voluntary winding up and not a members’ voluntary winding up.
Annotations
Amendments:
F542
Substituted by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 55, not commenced as of date of revision.
Modifications (not altering text):
C176
Prospective affecting provision: subs. (4) amended by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 55, not commenced as of date of revision.
(4) Within 7 days after the date of that meeting, the liquidator F542[shall, in the prescribed form]—
(a) send to the Registrar a copy of the account, and
(b) make a return to the Registrar of the holding of that meeting and of its date.
Section 706
Final meeting and dissolution in creditors’ voluntary winding up
706. (1) In a creditors’ voluntary winding up, as soon as the affairs of the company are completely wound up, the liquidator shall prepare an account of the winding up showing how the winding up has been conducted and the property of the company has been disposed of.
(2) On that account being prepared, the liquidator shall call a general meeting of the company and a meeting of the creditors for the purpose of laying the account before the meetings and giving any explanation thereof.
(3) Each such meeting shall be called by giving at least 28 days’ written notice to the members or creditors of the company, as the case may be.
(4) Within 7 days after the date of the meetings, or if the meetings are not held on the same date, after the date of the later meeting, the liquidator shall—
(a) send to the Registrar a copy of the account, and
(b) make a return to the Registrar of the holding of the meetings and of their dates.
(5) Subject to subsection (6), if a copy of the account is not sent to the Registrar, or the return is not made to him or her, in accordance with subsection (4), the liquidator shall be guilty of a category 3 offence.
(6) If a quorum is not present at a meeting referred to in subsection (2), the liquidator shall, instead of making, as respects that meeting, the return referred to in paragraph (b) of subsection (4), make, within the period specified in that subsection, a return to the Registrar that the meeting was duly summoned and that no quorum was present at it, and, upon such a return being made, subsection (4)(b) shall, as respects that meeting, be deemed to have been complied with.
(7) Subject to subsection (8), the Registrar, on receiving the account and, in respect of each such meeting, the return referred to in subsection (4)(b) or (6), as the case may be, shall forthwith register them, and on the expiration of 3 months after the date of registration of the returns the company shall be deemed to be dissolved.
(8) The court may, on the application of the liquidator or of any other person who appears to the court to be interested, make an order deferring the date at which the dissolution of the company is to take effect for such time as the court thinks fit.
(9) A person on whose application an order under subsection (8) is made shall, within 14 days after the date of making of the order, deliver to the Registrar a certified copy of the order.
(10) If a person fails to comply with subsection (9), he or she shall be guilty of a category 3 offence.
(11) If the liquidator fails to call a general meeting of the company or a meeting of the creditors as required by this section, he or she shall be guilty of a category 3 offence.
Annotations
Amendments:
F543
Substituted by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 56, not commenced as of date of revision.
Modifications (not altering text):
C177
Prospective affecting provision: subsection (4) amended by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 56, not commenced as of date of revision.
(4) Within 7 days after the date of the meetings, or if the meetings are not held on the same date, after the date of the later meeting, the liquidator F543[shall, in the prescribed form]—
(a) send to the Registrar a copy of the account, and
(b) make a return to the Registrar of the holding of the meetings and of their dates.
Section 707
Disposal of books and papers of company in winding up
707. (1) When a company has been wound up and is about to be dissolved, the seal or seals, books and papers of the company and of the liquidator may be disposed of as follows:
(a) in the case of a members’ voluntary winding up, in such way as the company by special resolution directs; and
(b) in the case of a winding up by the court or a creditors’ voluntary winding up, in such way as the committee of inspection or, if there is no such committee, as the creditors of the company, may direct.
(2) However, in any of the foregoing cases and notwithstanding anything in a foregoing direction, such seal or seals, books and papers shall be retained by the liquidator for a period of at least 6 years after the date of the dissolution of the company and, in the absence of a foregoing direction as to their disposal, the liquidator may then dispose of them as he or she thinks fit.
(3) If a liquidator fails to comply with the requirements of this section, he or she shall be guilty of a category 4 offence.
(4) The winding up of a company shall, for the purposes of this section and section 681, be deemed to be concluded—
(a) in the case of a winding up by the court (and the case is not one to which section 704(2) applies), on the date on which a copy of the order dissolving the company has been forwarded by the liquidator to the Registrar in accordance with section 704(5),
(b) in the case of a voluntarily winding up (including a case to which section 704(2) applies), on the date on which the company is deemed to be dissolved, but this paragraph is subject to subsection (5).
(5) If, on the date referred to in subsection (4)(b), any funds or assets of the company remain unclaimed or undistributed in the hands or under the control of the liquidator or any person who has acted as liquidator, the winding up shall not be deemed to be concluded until such funds or assets have either been distributed or paid into the Companies Liquidation Account within the meaning of section 623.
Section 708
Power of court to declare dissolution of company void
708. (1) Where a company has been dissolved, the court may—
(a) at any time within 2 years after the date of the dissolution,
(b) on an application being made for the purpose by the liquidator of the company or by any other person who appears to the court to be interested,
make an order, upon such terms as the court thinks fit, declaring the dissolution to have been void.
(2) On an order under subsection (1) being made, such proceedings may be taken as might have been taken if the company had not been dissolved.
(3) A person on whose application an order under subsection (1) is made shall, within 14 days after the date of making of the order, or such further time as the court may allow, deliver to the Registrar a certified copy of the order.
(4) If a person fails to comply with subsection (3), he or she shall be guilty of a category 4 offence.
Section 709
Disposal of documents filed with Registrar
709. The Registrar shall, after the expiration of 20 years after the date of the dissolution of a company, send all the documents filed in connection with the company to the National Archives.
CHAPTER 15
Provisions related to the Insolvency Regulation
Section 710
Definition (Chapter 15)
710. In this Chapter “insolvency proceedings” means insolvency proceedings opened under Article 3 of the Insolvency Regulation in the State where the proceedings relate to a company.
Section 711
Publication in relation to insolvency proceedings
711. (1) In this section “publication” means publication of—
(a) notice of the judgment opening the insolvency proceedings concerned;
(b) where appropriate, the decision appointing the liquidator in those proceedings;
(c) the name and business address of the liquidator; and
(d) the provision (either paragraph 1 or paragraph 2) of Article 3 of the Insolvency Regulation giving jurisdiction to open the proceedings;
in Iris Oifigiúil and once at least in 2 daily morning newspapers circulating in the State.
(2) Without prejudice to section 1050(1), publication shall be effected by the liquidator concerned.
(3) Where the company in relation to which the insolvency proceedings are opened, has an establishment (within the meaning of Article 2(h) of the Insolvency Regulation) in the State, the liquidator or any authority mentioned in Article 21(2) of the Insolvency Regulation shall ensure that publication takes place as soon as practicable after the opening of the insolvency proceedings.
Section 712
Confirmation of creditors’ voluntary winding up
712. Where—
(a) a liquidator is appointed, under section 588, in a creditors’ voluntary winding up of a company, and
(b) the centre of the company’s main interests (within the meaning of the Insolvency Regulation) is situated in the State,
the Master of the High Court may, on application by the liquidator in the prescribed form and payment of the prescribed fee, confirm the creditors’ voluntary winding up for the purposes of the Insolvency Regulation; where that winding up is so confirmed, the Master of the High Court shall provide a certificate of such confirmation.
Section 713
Provision of certain documents to liquidator
713. On—
(a) the making of a winding-up order, or
(b) the issue of a certificate by the Master of the High Court under section 712 in relation to the confirmation by the Master of a creditors’ voluntary winding up,
the proper officer of the Central Office of the High Court shall, on request and payment of the prescribed fee and subject to any conditions that may be specified in rules of court, give to the liquidator or examiner concerned—
(i) a copy of the order or certificate, certified by the officer to be a true copy, and
(ii) any other prescribed particulars.
Section 714
Language of claims
714. A claim lodged with a liquidator by a creditor referred to in Article 42(2) of the Insolvency Regulation may, if not in the Irish or the English language, be required by the liquidator to be translated, in whole or in part, into either of those languages.
CHAPTER 16
Offences by officers of companies in liquidation, offences of fraudulent trading and certain other offences, referrals to D.P.P., etc.
Section 715
Application of certain provisions of Chapter and construction of certain references to company, relevant person, etc.
715. (1) Without prejudice to the generality of section 563, sections 716 to 720 apply irrespective of the mode of winding up that is being employed (or, subsequent to the time of the doing of the act or the making of the omission concerned, is employed) and a reference in any of sections 716 to 720 to a company is a reference to the company that is being wound up (or, subsequent to that time, is wound up).
(2) A reference in any of sections 716 to 720 to a relevant person is a reference to a person who, at the time of the doing of the act or the making of the omission concerned, is or was an officer of the company concerned and, for the purposes of this subsection, “officer” includes any person in accordance with whose directions or instructions the directors of the company have been accustomed to act.
Section 716
Offence for failure to make disclosure, or deliver certain things, to liquidator
716. (1) Subject to section 720(2)(a), a relevant person who, when requested by the liquidator to make such disclosure to the liquidator, does not, to the best of the person’s knowledge and belief, fully and truly disclose to the liquidator—
(a) all the property, real and personal, of the company, and
(b) how and to whom and for what consideration and when the company disposed of any part of such property (except such part as has been disposed of in the ordinary way of the business of the company),
shall be guilty of a category 2 offence.
(2) Subject to section 720(2)(a), a relevant person who—
(a) does not deliver up to the liquidator, or as the liquidator directs, all such part of the real and personal property of the company as is in the person’s custody or under the person’s control, and which the person is required by law to deliver up, or
(b) does not deliver up to the liquidator, or as the liquidator directs, all books and papers in the person’s custody or under the person’s control belonging to the company and which the person is required by law to deliver up,
shall be guilty of a category 2 offence.
Section 717
Certain fraudulent acts within 12 months preceding winding up or any time thereafter: offences
717. A relevant person who, within the period of 12 months ending on the commencement of the winding up or at any time thereafter—
(a) subject to section 720(2)(a), conceals any part of the property of the company to the value of €20.00 or more, or conceals any debt due to or from the company,
(b) fraudulently removes any part of the property of the company to the value of €20.00 or more,
(c) subject to section 720(2)(b), conceals, destroys, mutilates or falsifies any book or paper affecting or relating to the property or affairs of the company,
(d) subject to section 720(2)(b), makes any false entry in any book or paper affecting or relating to the property or affairs of the company, or
(e) fraudulently parts with, alters or makes any omission in any document affecting or relating to the property or affairs of the company,
shall be guilty of a category 2 offence.
Section 718
Other fraudulent acts (relating to obtaining credit, irregular pledges, etc.) within 12 months preceding winding up or any time thereafter: offences
718. A relevant person who, within the period of 12 months ending on the commencement of the winding up or at any time thereafter—
(a) has, by any false representation or other fraud, obtained any property for or on behalf of the company on credit which the company does not subsequently pay for,
(b) subject to section 720(2)(a), under the false pretence that the company is carrying on its business, obtains on credit for or on behalf of the company, any property which the company does not subsequently pay for,
(c) subject to section 720(2)(a), pawns, pledges or disposes of any property of the company which has been obtained on credit and has not been paid for, unless such pawning, pledging or disposing is in the ordinary way of business of the company, or
(d) makes or perpetrates any false representation or other fraud for the purpose of obtaining the consent of the creditors of the company or any of them to an agreement with reference to the affairs of the company or to the winding up,
shall be guilty of a category 2 offence.
Section 719
Material omission in statement relating to company’s affairs, failure to report false debt, etc.
719. (1) Subject to section 720(2)(a), a relevant person who makes any material omission in any statement relating to the affairs of the company shall be guilty of a category 2 offence.
(2) A relevant person who—
(a) knowing or believing that a false debt has been proved by any person under the winding up, fails for the period of 30 days after the date of that proof to inform the liquidator thereof, or
(b) after the commencement of the winding up, subject to section 720(2)(b), prevents the production of any book or paper affecting or relating to the property or affairs of the company,
shall be guilty of a category 2 offence.
(3) A relevant person who, after the commencement of the winding up or at any meeting of the creditors of the company within the period of 12 months ending on that commencement, attempts to account for any part of the property of the company by fictitious losses or expenses shall be guilty of a category 2 offence.
Section 720
Additional offence with respect to section 718(c) and certain defences with respect to foregoing matters
720. (1) Where any person pawns, pledges or disposes of any property in circumstances which amount to an offence under section 718(c), every person who takes in pawn or pledge or otherwise receives the property knowing it to be pawned, pledged or disposed of in those foregoing circumstances shall also be guilty of a category 2 offence.
(2) In any proceedings against a person in respect of—
(a) an offence under—
(i) section 716(1) or (2);
(ii) section 717 consisting of a contravention of paragraph (a) of that section;
(iii) section 718 consisting of a contravention of paragraph (b) or (c) of that section; or
(iv) section 719(1);
it shall be a defence to prove that the person had no intent to defraud; and
(b) an offence under—
(i) section 717 consisting of a contravention of paragraph (c) or (d) of that section;
(ii) subsection (2) of section 719 consisting of a contravention of paragraph (b) of that subsection;
it shall be a defence to prove that the person had neither an intent to conceal the state of affairs of the company nor to defeat the process of the law and, in particular, the enforcement of this Act.
Section 721
Other frauds by officers of companies which have gone into liquidation: offence
721. If any person, being at the time of the commission of the alleged offence an officer of a company which is subsequently ordered to be wound up by the court or subsequently passes a resolution for voluntary winding up—
(a) has by false pretences or by means of any other fraud induced any person to give credit to the company,
(b) with intent to defraud creditors of the company, has made or caused to be made any gift or transfer of or charge on, or has caused or connived at the levying of any execution against, the property of the company, or
(c) with intent to defraud creditors of the company, has concealed or removed any part of the property of the company since, or within 2 months before, the date of any unsatisfied judgment or order for payment of money obtained against the company,
the person shall be guilty of a category 2 offence.
Section 722
Fraudulent trading of company: offence
722. If any person is knowingly a party to the carrying on of the business of a company with intent to defraud creditors of the company or creditors of any other person or for any fraudulent purpose, the person shall be guilty of a category 1 offence.
Section 723
Prosecution of offences committed by officers and members of company
723. (1) If it appears to the court, in the course of a winding up by the court, that any past or present officer, or any member, of the company has been guilty of an offence in relation to the company the court may, either—
(a) on the application of any person interested in the winding up, or
(b) of its own motion,
direct the liquidator to refer the matter to the Director of Public Prosecutions.
(2) Where a direction under subsection (1) is given by the court to the liquidator, the liquidator shall—
(a) provide to the Director of Public Prosecutions such information, relating to the matter in question, as he or she may require, and
(b) give to him or her such access to, and facilities for inspecting and taking any copies of, such documents (being documents in the possession or under the control of the liquidator and relating to the matter in question) as he or she may require.
(3) Where the court gives the foregoing direction to the liquidator, it shall also direct the liquidator to refer the matter concerned to the F544[Authority forthwith].
(4) Where a direction under subsection (3) is given by the court to the liquidator, the liquidator shall—
(a) provide to the F545[Authority such information, relating to the matter in question, as it] may require, and
(b) F545[give to the Authority such access to, and facilities for inspecting and taking copies of, such documents (being documents in the possession or under the control of the liquidator and relating to the matter in question) as the Authority] may require.
(5) If it appears to the liquidator in the course of a voluntary winding up that any past or present officer, or any member, of the company has been guilty of an offence in relation to the company, the liquidator shall forthwith report the matter to the Director of Public Prosecutions.
(6) Where the liquidator reports a matter under subsection (5) to the Director of Public Prosecutions, the liquidator shall—
(a) provide to the Director of Public Prosecutions such information, relating to the matter in question, as he or she may require, and
(b) give to him or her such access to, and facilities for inspecting and taking any copies of, such documents (being documents in the possession or under the control of the liquidator and relating to the matter in question) as he or she may require.
(7) Where a foregoing report is made by the liquidator, the liquidator shall also report the matter to the F544[Authority forthwith].
(8) Where a matter is reported by the liquidator under subsection (7) to the F545[Authority, the liquidator] shall—
(a) provide to the F545[Authority such information, relating to the matter in question, as it] may require, and
(b) give to F545[the Authority such access to, and facilities for inspecting and taking copies of, such documents (being documents in the possession or under the control of the liquidator and relating to the matter in question) as the Authority] may require.
(9) In a voluntary winding up, the court, on application being made to it by any person interested in the winding up, or of its own motion, may give the following direction if it appears to the court that—
(a) in the course of the winding up any past or present officer, or any member, of the company has been guilty of an offence in relation to the company, and
(b) no report relating to the matter has been made by the liquidator to the Director of Public Prosecutions under subsection (5) or to the F545[Authority] under subsection (7).
(10) That direction of the court is one requiring the liquidator to make the report referred to in subsection (5) or (7) (or both as appropriate) and, on such a report being accordingly made, this section and section 724 shall have effect as though the report had been made under subsection (5) or (7), as the case may be.
Annotations
Amendments:
F544
Substituted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 57(a), (b), S.I. No. 639 of 2024.
F545
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. nos. 101, 102, 104-107, S.I. No. 335 of 2022.
Editorial Notes:
E132
Previous affecting provision: subss. (3), (7) amended by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. nos. 100, 103, S.I. No. 335 of 2022; substituted (3.12.2024) as per F-Note above.
Section 724
Supplemental provisions in relation to section 723: duty to provide assistance to D.P.P. and Director of Corporate Enforcement
724. (1) If, where any matter is referred or reported under section 723 to—
(a) the Director of Public Prosecutions, or
(b) the F546[Authority],
the Director of Public Prosecutions or, as the case may be, the F546[Authority considers] that the case is one in which a prosecution ought to be instituted and institutes proceedings accordingly, it shall be the duty of each of the following persons to give all assistance in connection with the prosecution which he or she is reasonably able to give.
(2) The persons referred to in subsection (1) are the liquidator of the company and—
(a) every officer (past or present) of the company, and
(b) every agent (past or present) of the company, (other than the defendant in the proceedings).
(3) For the purposes of subsection (2)(b) “agent”, in relation to a company, includes—
(a) the bankers and solicitors of the company,
(b) any receiver of the property of the company, and
(c) any persons employed by the company as auditors, accountants, book-keepers or taxation advisers, or other persons employed by it in a professional, consultancy or similar capacity, whether those persons are (or were) or are not (or were not) officers of the company.
(4) If any person fails or neglects to give assistance in the manner required by subsection (1), the court may, on the application of the Director of Public Prosecutions or, as the case may be, the F546[Authority], direct that person to comply with the requirements of that subsection.
(5) Where an application is made under subsection (4) or section 723(9) in relation to a liquidator, the court may, unless it appears that the failure or neglect to comply was due to the liquidator not having in his or her hands sufficient assets of the company to enable him or her so to do, direct that the costs of the application shall be borne by the liquidator personally.
Annotations
Amendments:
F546
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. nos. 108-110, S.I. No. 335 of 2022.
PART 12
STRIKE OFF AND RESTORATION
CHAPTER 1
Strike off of company
Section 724A
F547[Interpretation (Part 12)
724A. In this Part, “RBO Regulations” means the European Union (Anti-Money Laundering: Beneficial Ownership of Corporate Entities) Regulations 2019 (S.I. No. 110 of 2019).]
Annotations
Amendments:
F547
Inserted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 58, S.I. No. 639 of 2024.
Section 724B
F547[Disclosure of Information by Registrar of Beneficial Ownership
724B. For the purposes of this Part, the Registrar of Beneficial Ownership may give a notice in writing to the Registrar stating that the company has failed to deliver the information required by paragraph (1) or (2) of Regulation 20 of the RBO Regulations.]
Annotations
Amendments:
F548
Inserted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 58, S.I. No. 639 of 2024.
Section 725
When Registrar may strike company off register
725. (1) Except in the case of an application by a company to be struck off the register, the Registrar may strike a company off the register if—
(a) there exists one or more of the grounds for striking off set out in section 726 — “involuntary strike off”, and
(b) the Registrar has followed the procedure set out in sections 727, 728, 730 and 733(1).
(2) In the case of an application by a company to be struck off the register, the Registrar may strike the company off the register if—
(a) the conditions for striking off set out in section 731 have been satisfied — “voluntary strike off”, and
(b) the Registrar has followed the procedure set out in sections 732 and 733(2).
Section 726
Grounds for involuntary strike off
726. The grounds referred to in section 725(1)(a) are:
(a) the company has failed to make an annual return as required by section 343;
(b) the Revenue Commissioners have given a notice under section 882(3) of the Taxes Consolidation Act 1997 to the Registrar of the company’s failure to deliver the statement required under section 882 of that Act;
(c) the Registrar has reasonable cause to believe that section 137(1) is not being complied with in relation to the company;
(d) the company is being wound up and the Registrar has reasonable cause to believe that no liquidator is acting;
(e) the company is being wound up and the Registrar has reasonable cause to believe that the affairs of the company are fully wound up and that the returns required to be made by the liquidator have not been made for a period of 6 consecutive months;
(f) there are no persons recorded in the office of the Registrar as being current directors of the F549[company;]
F550[(g) the Registrar has sent a notice to the directors and secretary of the company under section 50(5A) and the company has failed to deliver to the Registrar—
(i) a declaration as requested in that notice within the period specified in paragraph (b) of that subsection, or
(ii) a notice of a change in the situation of the registered office of the company under section 50(3);
(h) a current secretary of the company is not recorded in the office of the Registrar;
(i) the Registrar of Beneficial Ownership has given a notice to the Registrar, in accordance with section 724B, of the company’s failure to deliver the information required by paragraph (1) or (2) of Regulation 20 of the RBO Regulations.]
Annotations
Amendments:
F549
Substituted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 59(a), S.I. No. 639 of 2024.
F550
Inserted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 59(b), S.I. No. 639 of 2024.
Section 727
Registrar’s notice to company of intention to strike it off register
727. (1) The Registrar may give notice in accordance with section 728 of the Registrar’s intention to strike a company off the register on a ground set out in any of F551[paragraphs (a) to (i)] of section 726.
(2) The Registrar shall send the notice by registered post—
(a) except where F551[paragraph (b) or subsection (3A)] applies, to the company at its registered office,
(b) if the ground for striking off is that set out in section 726(d) or (e) and an individual is recorded in the office of the Registrar as the liquidator of the company, to the liquidator.
(3) F551[Except where subsection (3A) applies, the Registrar shall] also send a copy of the foregoing notice by prepaid ordinary post to such persons, if any, as are recorded in the office of the Registrar as being F551[current directors and secretary] of the company but non-compliance with this subsection does not affect the validity of a notice that otherwise complies with subsection (1); the address to which a notice under this subsection is sent shall be the usual residential address, as recorded in the office of the Registrar, of the addressee concerned.
F552[(3A) If the ground for striking off is that set out in section 726(g), the Registrar shall send the notice by prepaid ordinary post to such persons, if any, as are recorded by the office of the Registrar as being the current directors and secretary of the company.
(3B) The address to which a notice under subsection (3A) is sent shall be the usual residential address of the addressee concerned, as recorded in the office of the Registrar.]
(4) Instead of giving a notice under subsection (1), the Registrar may publish a notice in the CRO Gazette containing the information required by section 728 if—
(a) the company has not, for 20 or more consecutive years, made an annual return as required by section 343 or the corresponding provision of the Act of 1963, and
(b) no notice of the situation of the registered office of the company has been given to the Registrar as required by section 50 or the corresponding provision of the prior Companies Acts.
Annotations
Amendments:
F551
Substituted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 60(a), (b), (c), S.I. No. 639 of 2024.
F552
Inserted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 60(d), S.I. No. 639 of 2024.
Section 728
Contents of Registrar’s notice to company
728. (1) The Registrar’s notice under section 727 shall—
(a) state that the issue of the notice is the first step in a process that may lead to the company being struck off the register;
(b) state the ground or grounds for striking off being invoked by the Registrar;
(c) state that the company will be dissolved if it is struck off the register;
(d) if subsection (3) applies, set out the information required by that subsection;
(e) specify the remedial step;
(f) specify the date on or before which the remedial step must be taken; and
(g) state that failure to take the remedial step on or before the date so specified may result in the Registrar giving public notice of an intention to strike the company off the register.
(2) The date to be specified for the purposes of subsection (1)(f) shall be a date falling not less than 28 days after the date of the notice.
(3) Except where the ground for striking off is that set out in F553[any of paragraphs (d) to (i) of section 726], the notice shall also state that each director of the company at the date that the notice is sent is liable for disqualification under section 842(h) if the company is struck off the register.
Annotations
Amendments:
F553
Substituted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 61, S.I. No. 639 of 2024.
Section 729
Meaning of remedial step
729. For the purposes of sections 728, 730 and 733, the remedial step is whichever of the following applies:
(a) in the case of the ground for striking off set out in section 726(a), the delivery to the Registrar of all annual returns as required by section 343 that the company has failed to make;
(b) in the case of the ground for striking off set out in section 726(b), the delivery to the Revenue Commissioners of the statement that the company is required to deliver under section 882(3) of the Taxes Consolidation Act 1997;
(c) in the case of the ground for striking off set out in section 726(c), the provision to the Registrar of evidence that section 137(1) is being complied with in relation to the company;
(d) in the case of the ground for striking off set out in section 726(d) or (e), the provision to the Registrar of the details of the liquidator and of up to date periodic statements having been furnished under section 681;
(e) in the case of the ground for striking off set out in section 726(f), the notification to the Registrar under section 149(8) of the appointment of a director of the F554[company;]
F555[(f) in the case of the ground for striking off set out in section 726(g), the delivery to the Registrar of—
(i) a declaration referred to in section 50(5A)(b), or
(ii) a notice of a change in the situation of the registered office of the company under section 50(3);
(g) in the case of the ground for striking off set out in section 726(h), the notification to the Registrar under section 149(8) of the change in the secretary of the company;
(h) in the case of the ground for striking off set out in section 726(i), the delivery to the Registrar of Beneficial Ownership of the information that the company is required to deliver under paragraph (1) or (2) of Regulation 20 of the RBO Regulations.]
Annotations
Amendments:
F554
Substituted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 62(a), S.I. No. 639 of 2024.
F555
Inserted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 62(b), S.I. No. 639 of 2024.
Section 730
Public notice of intention to strike company off register
730. (1) If the Registrar has given a notice under section 727 and the remedial step has not been taken on or before the date specified in that notice for the purposes of section 728(1)(f), the Registrar may, by publishing a notice in the CRO Gazette that complies with subsection (2), give public notice of the Registrar’s intention to strike the company off the register.
(2) The notice shall—
(a) specify the ground for striking the company off the register;
(b) specify the remedial step;
(c) specify the date on or before which the remedial step must be taken; and
(d) state that, unless that remedial step is taken on or before the date so specified, the Registrar may strike the company off the register and, if the Registrar does so, the company will be dissolved.
(3) The date to be specified for the purposes of subsection (2)(c) shall be a date falling not less than 28 days after the date of publication of the notice.
Section 731
Conditions for voluntary strike off
731. (1) A company may apply to the Registrar to be struck off the register if the following conditions are satisfied:
(a) the circumstances relating to the company are such as to give the Registrar reasonable cause to believe that it has never carried on business or has ceased to carry on business;
(b) the company has, within 3 months before the date of the application, by special resolution—
(i) resolved to apply to the Registrar to be struck off the register on the ground that it has never carried on business or has ceased to carry on business; and
(ii) resolved that pending the determination (or, should it sooner occur, the cancellation, at its request, of this process) of its application to be struck off, the company will not carry on any business or incur any liabilities;
(c) the company has delivered to the Registrar all annual returns required by section 343 that are outstanding in respect of the company as at the date of the application;
(d) the company has delivered to the Registrar a certificate in the prescribed form signed by each director certifying that as at the date of the application—
(i) the amount of any assets of the company does not exceed €150;
(ii) the amount of any liabilities of the company (including contingent and prospective liabilities) does not exceed €150; and
(iii) the company is not a party to ongoing or pending litigation;
(e) the Registrar has received from the Revenue Commissioners written confirmation dated not more than 3 months before the date on which the Registrar receives the application that the Revenue Commissioners do not object to the company being struck off the register; and
(f) the company has caused an advertisement, in the prescribed form, of its intention to apply to be struck off the register to be published within 30 days before the date of the application in at least 1 daily newspaper circulating in the State.
(2) Where an application under this section by a company to be struck off the register is made within one year after the date on which the company has changed its name or its registered office (or both), then, as the case may be—
(a) the former name of the company, as well as the existing name of the company, or
(b) the former address, as well as the current address, of the company’s registered office, or
(c) both its former name and the former address of its registered office, as well as the existing name of the company and the current address of its registered office,
shall be stated in the advertisement referred to in subsection (1)(f).
Section 732
Public notice in case of voluntary strike off
732. (1) As soon as practicable after the receipt of an application by a company to be struck off that satisfies the conditions set out in section 731, the Registrar shall, by publishing a notice in the CRO Gazette that complies with subsection (2), give public notice of the Registrar’s intention to strike the company off the register.
(2) The notice shall—
(a) state that the company has applied to be struck off the register;
(b) state—
(i) that any person may deliver to the Registrar an objection to the striking off of the company in the prescribed form; and
(ii) that any such objection must be confined to the ground that one or more of the conditions set out in section 731 have not been satisfied;
(c) specify the period within which such an objection may be delivered to the Registrar; and
(d) state that, unless the Registrar has received—
(i) an objection to the striking-off of the company within that period, being an objection that the Registrar sustains; or
(ii) a request for the cancellation of the process of strike off in accordance with subsection (4);
the Registrar may strike the company off the register and, if the Registrar does so, the company will be dissolved.
(3) The period to be specified for the purposes of subsection (2)(c) shall be the period ending 90 days after the date of publication of the notice.
(4) Within the period specified for the purposes of subsection (2)(c), the company may request of the Registrar, by delivering to the Registrar a notice in that behalf in the prescribed form, the cancellation of the process of its being struck off the register.
Section 733
Striking off (involuntary and voluntary cases) and dissolution
733. (1) If the Registrar has given a notice under section 730 and the remedial step has not been taken on or before the date specified in that notice for the purposes of section 730(2)(c), the Registrar may strike the company off the register.
(2) If the Registrar has given a notice under section 732 and—
(a) no objection referred to in section 732(2)(b) has been delivered to the Registrar within the period specified in that notice for the purposes of section 732(2)(c) or the Registrar is of opinion that there is no reasonable basis to such an objection that has been so delivered, and
(b) the company has not requested, in accordance with section 732(4), the cancellation of the process of its being struck off the register,
the Registrar may strike the company off the register.
(3) The Registrar shall publish in the CRO Gazette a notice of the striking of a company off the register.
(4) The company is dissolved on the date of publication by the Registrar of the notice in the CRO Gazette of its being struck off the register and that date is referred to subsequently in this Part as the “date of dissolution”.
Section 734
Effect of removal and dissolution
734. (1) The liability, if any, of a director, other officer or a member of a company that has been dissolved under section 733(4) shall continue and may be enforced as if the company had not been dissolved.
(2) Nothing in this section or in section 733 shall affect the power of the court to wind up a company that has been struck off the register or dissolved under that section.
(3) For the purposes and the purposes only of—
(a) an application for the restoration of the company to the register under section 737 or 738, or
(b) in so far as is necessary for the making of such an application (or the doing of anything required by or under Chapter 2 to be done consequent on the making of it),
a company shall be deemed not to have been dissolved under section 733.
(4) Subsection (3) shall not be read as authorising the dealing with, or the exercising of control over, any property that has become the property of the State pursuant to Part III of the State Property Act 1954.
Section 735
Power of Director to obtain information
735. (1) Where a company has been struck off the register under section 733(1) on any of the grounds set out in section 726(a) to (c), the F556[Authority may, by notice to the directors of the company, require those persons to produce to the Authority] a statement of affairs of the company in accordance with this section.
(2) The persons to whom a notice is sent under subsection (1) shall, within the period specified in the notice in that behalf, produce to the F556[Authority] a statement of affairs of the company that complies with subsection (3).
(3) The statement of affairs shall—
(a) be in the prescribed form (if any);
(b) be verified by an affidavit;
(c) contain the following information in respect of the company as at the date of dissolution:
(i) particulars of its assets, debts and liabilities;
(ii) the names and addresses of its creditors;
(iii) particulars of securities given by the company, including the name of the secured creditor in each case and the date on which the security was given;
(iv) such further or other information as may be prescribed or that the F556[Authority] may reasonably require.
(4) On the application of the F556[Authority], the court may require a person who has made a statement under subsection (2) to appear before it and answer on oath any question relating to the content of the statement.
(5) A person who fails to comply with subsection (2) shall be guilty of a category 3 offence.
Annotations
Amendments:
F556
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. nos. 111-114, S.I. No. 335 of 2022.
CHAPTER 2
Restoration of company to register
Section 736
Application of Chapter
736. This Chapter applies to a company that has been struck off the register under Chapter 1.
Section 737
Restoration on application to Registrar
737. (1) On an application by a person specified in subsection (4), the Registrar may restore a company to the register if—
(a) the Registrar has reasonable cause to believe that the strike off of the company has disadvantaged the applicant,
(b) the application is made in the prescribed form,
(c) the application is received by the Registrar within the period of 12 months after the date of dissolution of the company, and
(d) the requirements of subsection (2) have been satisfied within the period of 15 months after the date of dissolution of the company.
(2) Subject to subsection (3), the requirements referred to in subsection (1)(d) are the following:
(a) the Registrar has received from the company all annual returns outstanding, if any, being annual returns prepared in accordance with Part 6;
(b) the Registrar is satisfied that section 137(1) is being complied with in relation to the F557[company;]
(c) the Registrar is satisfied that no notification required by section 149(8) remains outstanding in relation to the F557[company;]
F558[(d) the Registrar is satisfied that section 50(1) is being complied with in relation to the company;
(e) the Registrar is satisfied that section 129(1) is being complied with in relation to the company;
(f) if the ground, or one of the grounds, on which the company had been struck off the register is that referred to in section 726(i), the Registrar has received written confirmation from the Registrar of Beneficial Ownership that he or she has no objection to the company being restored under this section.]
(3) If the ground, or one of the grounds, on which the company had been struck off the register is that referred to in section 726(b), subsection (2) shall have effect as if the following paragraph were inserted after paragraph (a) of that subsection:
“(aa) the Registrar has received written confirmation from the Revenue Commissioners that they have no objection to the company being restored to the register under this section;”.
(4) The Registrar may restore a company to the register on the application of a person who was a member or an officer of the company at the date of its dissolution.
(5) On the registration of an application under this section and on payment of such fee as may be prescribed, the Registrar shall restore the company to the register and the company shall be deemed to have continued in existence as if it had not been struck off the register.
(6) Subject to any order made by the court in the matter, the restoration of a company to the register under this section shall not affect the rights and liabilities of the company in respect of any debt or obligation incurred, or any contract entered into, by, to, with or on behalf of the company between the date of its dissolution and the date of restoration.
Annotations
Amendments:
F557
Substituted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 63(a), (b) S.I. No. 639 of 2024.
F558
Inserted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 63(c), S.I. No. 639 of 2024.
Editorial Notes:
E133
Power pursuant to subs. (5) exercised (11.06.2023) by Companies Act 2014 (Fees) Regulations 2023 (S.I. No. 294 of 2023), in effect as per reg. 1(2).
E134
Power pursuant to subs. (1)(b) exercised (16.12.2016) by Companies Act 2014 (Forms) Regulations 2016 (S.I. No. 623 of 2016).
E135
Previous affecting provision: power pursuant to subs. (5) exercised (8.12.2021) by Companies Act 2014 (Fees) (No. 2) Regulations 2021 (S.I. No. 674 of 2021), in effect as per reg. 1(2); revoked (11.06.2023) by Companies Act 2014 (Fees) Regulations 2023 (S.I. No. 294 of 2023), reg. 5, in effect as per reg. 1(2).
E136
Previous affecting provision: power pursuant to subs. (5) exercised (1.08.2021) by Companies Act 2014 (Fees) Regulations 2021 (S.I. No. 395 of 2021), in effect as per reg. 1(2); revoked (8.12.2021) by Companies Act 2014 (Fees) (No. 2) Regulations 2021 (S.I. No. 674 of 2021), reg. 6, in effect as per reg. 1(2).
E137
Previous affecting provision: power pursuant to subss. (1), (2) exercised (16.12.2020) by Companies Act 2014 (Fees) Regulations 2020 (S.I. No. 626 of 2020), in effect as per reg. 1(2); revoked (1.08.2021) by Companies Act 2014 (Fees) Regulations 2021 (S.I. No. 395 of 2021), reg. 5, in effect as per reg. 1(2).
E138
Previous affecting provision: power pursuant to subs. (5) exercised (1.06.2015) by Companies Act 2014 (Fees) Regulations 2015 (S.I. No. 213 of 2015), in effect as per reg. 1(2); revoked (16.12.2020) by Companies Act 2014 (Fees) Regulations 2020 (S.I. No. 626 of 2020), reg. 5, in effect as per reg. 1(2).
Section 738
Restoration on application to court
738. (1) On an application in accordance with section 739 by a person specified in subsection (2), the court may order that a company that has been struck off the register be restored to the register if—
(a) the striking off of the company has disadvantaged the applicant,
(b) the application is made within the period of 20 years after the date of dissolution of the company; and
(c) it is just and equitable to do so.
(2) The court may make the order on the application of—
(a) the company;
(b) a creditor of the company;
(c) a person who was a member or an officer of the company at its date of dissolution; or
(d) a person who, at the date of its dissolution, had an entitlement (disregarding any right of the directors to decline to register the person as such) to be registered as a member of the company by virtue of—
(i) the execution, in the person’s favour, of an instrument of transfer of a share; or
(ii) the transmission, by operation of law, to the person of a right to a share.
(3) Subject to a supplementary order made under section 742(c), the company shall be deemed to have continued in existence as if it had not been struck off the register upon the Registrar receiving a certified copy of the order under subsection (1) within 28 days after the date of its perfection.
Section 739
Requirements for application to court under section 738
739. (1) An application under section 738 shall be made on notice to the Registrar, the Minister for Public Expenditure and Reform and the Revenue Commissioners.
(2) In the case of an application under section 738 by a creditor, the application shall in addition be made on notice to—
(a) such officers of the company at the date of dissolution whose names are known, or ought reasonably to be known, by the creditor; and
(b) such other members or officers of the company at the date of dissolution as the Registrar, the Revenue Commissioners or the Minister for Public Expenditure and Reform, upon being notified of the application, indicate in writing should be joined as notice parties to the application.
Section 740
Terms of court order on application under section 738
740. (1) In making an order under section 738 on the application of a member or an officer of the company, the court shall, unless reason to the contrary is shown to the satisfaction of the court, make it a term of the order that the order shall not have effect unless, within a specified period, there is done each of the things (save where it has already been done) that are set out in subsection (2).
(2) Those things are—
(a) all outstanding annual returns in relation to the company are delivered, in accordance with Part 6, to the Registrar;
(b) all outstanding statements as required by section 882 of the Taxes Consolidation Act 1997 in relation to the company are delivered to the Revenue Commissioners;
(c) the company appoints a director and delivers to the Registrar the notification and consent required by section 149(8) and (10), respectively, and—
(i) the person so appointed is resident in an EEA state; or
(ii) unless a certificate under section 140 in relation to the company has been granted by the Registrar and is in force, the company provides the Registrar with a bond in accordance with F559[section 137;].
F560[(d) in the case of the ground for striking off set out in section 726(g)—
(i) a declaration referred to in section 50(5A)(b), or
(ii) a notice of a change in the situation of the registered office of the company under section 50(3),
is delivered to the Registrar
(e) in the case of the ground for striking off set out in section 726(h), the company appoints a secretary and delivers to the Registrar the notification and consent required by sections 149(8) and 149(10), respectively;
(f) in the case of the ground for striking off set out in section 726(i), the company delivers the information required to be delivered under paragraph (1) or (2) of Regulation 20 of the RBO Regulations to the Registrar of Beneficial Ownership.]
(3) For the avoidance of doubt, subsection (1) requires, unless reason to the contrary there mentioned is shown, the order of the court to specify that a thing set out in subsection (2) is to be done (save where it has already been done) notwithstanding that the ground on which the company had been struck off the register did not relate to that thing.
(4) In making an order under section 738 on the application of a creditor of the company, the court shall direct that, within a specified period (save where the particular thing has already been done)—
(a) there is procured by one or more specified members or officers of the company the delivery by the company of all outstanding annual returns, in accordance with Part 6, to the Registrar;
(b) there is delivered by such specified members or officers all outstanding statements as required by section 882 of the Taxes Consolidation Act 1997 in relation to the company to the Revenue Commissioners;
(c) such specified members or officers take all reasonable steps to ensure that the company appoints a director and delivers to the Registrar the notification and consent required by section 149(8) and (10), respectively, and either that—
(i) the person so appointed is resident in an EEA state; or
(ii) unless a certificate under section 140 in relation to the company has been granted by the Registrar and is in force, the company provides the Registrar with a bond in accordance with section 137.
(5) For the avoidance of doubt, subsection (4) requires the order of the court to specify that a thing set out in that subsection is to be done (save where it has already been done) notwithstanding that the ground on which the company had been struck off the register did not relate to that thing.
(6) In making an order under section 738 on the application of a creditor of the company, the court may award the applicant the costs of the application against the company.
Annotations
Amendments:
F559
Substituted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 64(a), S.I. No. 639 of 2024.
F560
Inserted (3.12.2024) by Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (44/2024), s. 64(b), S.I. No. 639 of 2024.
Section 741
Court order for restoration on application of Registrar
741. (1) On an application by the Registrar in accordance with subsection (2), the court may order that a company that has been struck off the register be restored to the register if—
(a) the application is made within the period of 20 years after the date of dissolution of the company, and
(b) it is just and equitable to do so.
(2) An application under this section shall be made on notice to each person who, to the knowledge of the Registrar, was an officer of the company at the date of its dissolution.
(3) On the making of the order, the company shall be deemed to have continued in existence as if it had not been struck off the register.
(4) In making an order under this section, the court may award the Registrar the costs of the application against the company restored to the register.
Section 742
Supplementary court orders
742. In ordering that a company be restored to the register under section 738 or 741, the court may—
(a) except to the extent that the court makes an order under paragraph (c), give such directions as it thinks fit for placing the company and all other persons as nearly as possible in the same position as if the company had not been struck off the register;
(b) direct the company to change its name if the name of the company is too similar to the name of another company already on the register or a name that has been reserved in accordance with section 28;
(c) if and to the extent that it thinks fit, order that the officers of the company, or any one or more of them as specified in the order, shall be liable for a debt or liability incurred by or on behalf of the company during the period when it stood struck off the register;
(d) make any other order that it thinks fit.
Section 743
Meaning of court
743. (1) For the purposes of an application under section 738 or 741 by a creditor or the Registrar, in this Chapter “court” means either the High Court or the Circuit Court.
(2) In the case of an application under section 738 by a creditor to the Circuit Court, the application shall be made to the judge of the Circuit Court—
(a) for the circuit in which the registered office of the company was situated immediately before the company was struck off the register, or
(b) if there was no registered office of the company at that time, for the circuit in which the creditor resides, or
(c) if there was no registered office of the company at that time and the creditor resides outside the State, for the Dublin Circuit.
(3) An application under section 741 to the Circuit Court shall be made to the judge of the Circuit Court for the Dublin Circuit.
Section 744
Transitional provision for companies struck off register before commencement of this Chapter
744. (1) Subject to subsection (3), sections 736 to 743 shall apply to a company that has been struck off the register under any former enactment relating to companies (within the meaning of section 5) before the commencement of this Chapter.
(2) For that purpose—
(a) references in the foregoing provisions of this Chapter to a company that has been struck off the register under Chapter 1 shall be read as references to a company that has been struck off under the former enactment relating to companies (within the foregoing meaning),
(b) references in the foregoing provisions of this Chapter to the date of dissolution of the company shall be read as references to the date of its dissolution under the former enactment relating to companies (within the foregoing meaning), and
(c) the foregoing provisions of this Chapter shall apply with other necessary modifications.
(3) Neither subsections (1) and (2) nor any other provision of this Chapter applies if, before the date of the commencement of this Chapter, an application has been made under any former enactment relating to companies (within the foregoing meaning) to restore the company to the register and, in such a case, that former enactment shall apply notwithstanding the repeal of it by section 4.
CHAPTER 3
Miscellaneous
Section 745
Disclosure of information by Revenue Commissioners to Registrar
745. (1) This section applies if the Registrar, for the purpose of exercising any of his or her powers under this Part, is required to determine whether a statement that a company has failed to deliver to the Revenue Commissioners in accordance with section 882(3) of the Taxes Consolidation Act 1997 has or has not been subsequently delivered to them.
(2) In any case to which this section applies, the Revenue Commissioners may, notwithstanding any obligations as to secrecy or other restriction upon the disclosure of information imposed by or under statute or otherwise, disclose to the Registrar any information in their possession required by the Registrar for making the determination.
PART 13
INVESTIGATIONS
Annotations
Modifications (not altering text):
C178
Part applied with modifications (12.03.2015) by Irish Collective Asset-management Vehicles Act 2015 (2/2015), s. 173, S.I. No. 85 of 2015; this part commenced (1.06.2015) by Companies Act 2014 (Commencement) Order 2015 (S.I. No. 169 of 2015).
Investigations
173. (1) The provisions of Part 13 of the Companies Act 2014 , and the other provisions of that Act relating to investigations of companies, apply, subject to necessary modifications and the specific modifications specified in subsection (2), in relation to an ICAV as if it were an investment company.
(2) The modifications are the following:
(a) references to a body corporate include a company;
(b) the references in sections 752 to 757 to agents include depositaries and trustees within the meaning of the UCITS Regulations;
(c) in section 755(2)(a) for the words after “agreement” there is substituted a reference to a transaction within section 75 (1) of this Act and in section 755(4) for the reference to section 220 there is substituted a reference to section 77 of this Act;
(d) the duty in section 759(1) to provide a copy of an inspector’s report to the Director of Corporate Enforcement includes a duty to forward a copy to the Bank (so that section 759(2)(b)(vi) does not apply);
(e) the reference in section 763(1) to Chapter 5 of Part 5 is to section 82 of this Act;
(f) the references to the Registrar in sections 765(4) and 770 are to the Bank;
(g) the reference in section 785(4) to section 286 is to section 114 of this Act.
CHAPTER 1
Preliminary
Section 746
Interpretation (Part 13)
746. (1) Any reference in this Part to share capital or relevant share capital in relation to a company is a reference to share capital that confers the right to vote in all circumstances at a general meeting of that company, and a reference to share shall be read accordingly.
(2) Any reference in Chapter 2 or 4 to shares or share capital of, or a shareholding or an interest in shares, in a company or a body corporate includes a reference to—
(a) membership of the company or body corporate, and
(b) the rights or obligations attaching to such membership.
CHAPTER 2
Investigations by court appointed inspectors
Section 747
Investigation of company’s affairs by court appointed inspectors on application of company etc.
747. (1) On the application of a person or persons specified in subsection (2), the court may appoint one or more competent inspectors to investigate the affairs of a company in order to enquire into matters specified by the court and to report on those matters in such manner as the court directs.
(2) The court may make the appointment on the application of any of the following persons:
(a) the company;
(b) not less than 10 members of the company;
(c) a member or members holding one-tenth or more of the paid up share capital of the company (but shares held as treasury shares shall be excluded for the purposes of this paragraph);
(d) a director of the company; or
(e) a creditor of the company.
(3) The court’s power of appointment under subsection (1) is exercisable notwithstanding that the company is in the course of being wound up.
(4) The court may require the applicant or the applicants to give security for payment of the costs of the investigation.
(5) A person who intends making an application under this section shall give not less than 14 days’ notice in writing of his or her intention to apply to the F561[Authority, and the Authority] shall be entitled to appear and be heard on the hearing of the application.
(6) In this section “court” means—
(a) save in the case of a company referred to in paragraph (b), the High Court, or
(b) in the case of a company that, in respect of the latest financial year of the company that has ended prior to the date of the making of the application under this section, fell to be treated F562[as a small company by virtue of section 280A or 280B or a medium company by virtue of section 280F or 280G], the Circuit Court,
and, subject to subsection (8), all subsequent references to the court in this Part shall, as respects the powers and jurisdiction of the court with respect to an investigation on foot of an appointment made under this section by the Circuit Court, be read accordingly.
(7) For the purpose of paragraph (b) of subsection (6), if the latest financial year of the company concerned ended within 3 months prior to the date of the making of the application concerned, the reference in that paragraph to the latest financial year of the company shall be read as a reference to the financial year of the company that preceded its latest financial year (but that reference shall only be so read if that preceding financial year ended no more than 15 months prior to the date of the making of the application concerned).
(8) Subsection (6) does not confer jurisdiction on the Circuit Court to wind up any body corporate; however, that court, in exercise of its jurisdiction under this Part, may refer an inspectors’ report made to it under this Part to the High Court which shall have the same jurisdiction to wind up any body corporate concerned as if the inspectors’ report had been made to it in the first instance.
(9) In the case of an application under this section by a creditor or member to the Circuit Court, the application shall be made to the judge of the Circuit Court—
(a) for the circuit in which the registered office of the company is situated at the time of the making of the application, or
(b) if there is no registered office of the company at that time, for the circuit in which the creditor or member resides, or
(c) if there is no registered office of the company at that time and the creditor or member resides outside the State, for the Dublin Circuit.
(10) In the case of an application under this section by the company or a director of it to the Circuit Court, the application shall be made to the judge of the Circuit Court—
(a) for the circuit in which the registered office of the company is situated at the time of the making of the application; or
(b) if there is no registered office of the company at that time, for the Dublin Circuit.
Annotations
Amendments:
F561
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. no. 115, S.I. No. 335 of 2022.
F562
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 88(c)(i), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 748
Investigation of company’s affairs by court appointed inspectors on application of Director
748. (1) On the application of the F563[Authority], the court may appoint one or more competent inspectors to investigate the affairs of a company and to report on those affairs in such manner as the court directs, if the court is satisfied that there are circumstances suggesting that—
(a) the affairs of the company are being or have been conducted with intent to defraud—
(i) its creditors;
(ii) the creditors of any other person; or
(iii) its members;
(b) the affairs of the company are being or have been conducted for a fraudulent or unlawful purpose other than described in paragraph (a);
(c) the affairs of the company are being or have been conducted in an unlawful manner;
(d) the affairs of the company are being or have been conducted in a manner that is unfairly prejudicial to some part of its members;
(e) the affairs of the company are being or have been conducted in a manner that is unfairly prejudicial to some or all of its creditors;
(f) any actual or proposed act or omission of the company (including an act or omission on its behalf) was, is or would be unfairly prejudicial to some part of its members;
(g) any actual or proposed act or omission of the company (including an act or omission on its behalf) was, is or would be unfairly prejudicial to some or all of its creditors;
(h) the company was formed for a fraudulent or unlawful purpose;
(i) persons connected with its formation or the management of its affairs have, in that connection, been guilty of fraud, misfeasance or other misconduct towards the company or its members; or
(j) the company’s members have not been given all the information relating to its affairs which they might reasonably expect.
(2) The court’s power of appointment under this section is without prejudice to its powers under section 747 and is exercisable notwithstanding that the company is in the course of being wound up.
(3) Inspectors appointed under this section may be or include an officer or officers of the F563[Authority].
(4) A reference in subsection (1) to the members of a company shall have effect as if it included a reference to any person who is not a member but to whom shares in the company have been transferred or transmitted by operation of law.
(5) In this section “court” means—
(a) save in the case of a company referred to in paragraph (b), the High Court, or
(b) in the case of a company that, in respect of the latest financial year of the company that has ended prior to the date of the making of the application under this section, fell to be treated F564[as a small company by virtue of section 280A or 280B or a medium company by virtue of section 280F or 280G], the Circuit Court,
and, subject to subsection (7), all subsequent references to the court in this Part shall, as respects the powers and jurisdiction of the court with respect to an investigation on foot of an appointment made under this section by the Circuit Court, be read accordingly.
(6) For the purpose of paragraph (b) of subsection (5), if the latest financial year of the company concerned ended within 3 months prior to the date of the making of the application concerned, the reference in that paragraph to the latest financial year of the company shall be read as a reference to the financial year of the company that preceded its latest financial year (but that reference shall only be so read if that preceding financial year ended no more than 15 months prior to the date of the making of the application concerned).
(7) Subsection (5) does not confer jurisdiction on the Circuit Court to wind up any body corporate; however, that court, in exercise of its jurisdiction under this Part, may refer an inspectors’ report made to it under this Part to the High Court which shall have the same jurisdiction to wind up any body corporate concerned as if the inspectors’ report had been made to it in the first instance.
(8) An application under this section to the Circuit Court shall be made to the judge of the Circuit Court—
(a) for the circuit in which the registered office of the company is situated at the time of the making of the application, or
(b) if there is no registered office of the company at that time, for the Dublin Circuit.
(9) Nothing in this section shall be taken as excluding or restricting any statutory rights of the Government, a Minister of the Government or a person acting under the authority of the Government or a Minister of the Government.
Annotations
Amendments:
F563
Substituted (6.07.2022) by Companies (Corporate Enforcement Authority) Act 2021 (48/2021), s. 12(1) and sch. 2 ref. nos. 116, 117, S.I. No. 335 of 2022.
F564
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 88(c)(ii), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.
Section 749
Court may give directions in relation to investigation
749. Where the court appoints an inspector under section 747(1) or 748(1), the court may from time to time give such directions as it thinks necessary or expedient, whether to the inspector or any other person, including directions given with a view to ensuring that the investigation is carried out as quickly and inexpensively as possible.
Section 750
Power of inspector to expand investigation into affairs of related bodies corporate
750. (1) Subject to subsection (4), an inspector appointed under section 747(1) or 748(1) may investigate the affairs of any other body corporate that is related to the company under investigation if the inspector—
(a) considers that it is necessary for the purposes of the investigation, and
(b) has first obtained the approval of the court.
(2) An inspector who investigates the affairs of a related body corporate shall report on those affairs to the extent that the inspector considers that the results of investigation of the related body corporate are relevant to the investigation of the company.
(3) Without prejudice to the application of section 2(10), a body corporate that is related to a company includes, for the purposes of this section and sections 753 and 754, a body corporate with which the company has a commercial relationship, and a commercial relationship exists where goods or services are sold or given by one party to another.
(4) The Circuit Court shall only have jurisdiction to grant the approval referred to in subsection (1), if in respect of the latest financial year of the body corporate there referred to that has ended prior to the date of the making of the application for the approval, that body fell to be treated (or, if it were a company, would have fallen to be treated) F565[as a small company by virtue of section 280A or 280B or a medium company by virtue of section 280F or 280G], and subsection (7) of section 747 applies for the purposes of this subsection as it applies for purposes of subsection (6)(b) of that section.
Annotations
Amendments:
F565
Substituted (9.06.2017) by Companies (Accounting) Act 2017 (9/2017), s. 88(c)(iii), S.I. No. 246 of 2017, art. 3, subject to transitional provision in art. 4.