Seanad Éireann debate -
Tuesday, 30 Sep 2014
Companies Bill 2012: Report and Final Stages
Acting Chairman (Senator Marie Moloney)
Before we commence, I remind the House that Senators may speak only once on Report Stage, except the proposer of an amendment who may reply to the discussion on that amendment. I also remind Members that on Report Stage each amendment must be seconded.
Government amendment No. 1:
In page 71, to delete lines 28 and 29 and substitute the following:
"(8) This section is without prejudice to—
(a) the generality of the Interpretation Act 2005 and, in particular, section 27 of it;
(b) the special provision made in certain provisions of this Act for transitional matters as they relate to those provisions.".
Minister of State at the Department of Jobs, Enterprise and Innovation (Deputy Damien English)
The purpose of this amendment is to ensure greater clarity in interpretation. No substantive change is made to the Bill. The amendment refers to any provision in a former enactment. This section provides that the repeal of previous Companies Acts does not affect companies incorporated under those repealed Acts. It provides that documents referring to repealed Acts are to be read alongside the corresponding provisions of this Bill. This section preserves the appointment of officers, registers, funds and accounts. The other amendments in this group arise as a result of this amendment and are technical in effect and nature.
Amendment agreed to.
Amendments Nos. 2 and 3 are related and may be discussed together.
In page 74, between lines 10 and 11, to insert the following:
"(10) If a document created before the commencement of this section defines the expression "subsidiary" by reference to section 151 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.".
Deputy Damien English
The purpose of these grouped amendments is to provide for existing documents that contain a definition of "subsidiary" or "holding company" that is based on the construction of section 151 of the 1963 Act. It is important to provide certainty in law and to ensure the continuity of such an expression unless parties agree otherwise.
"(4) If a document created before the commencement of this section defines the expression "holding company" by reference to section 151 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) 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).".
The purpose of this amendment is to assist with the interpretation of this Bill. Due to the very technical nature of the Bill, the draftsman has concluded that a clarifying provision along the lines of the proposed amendment is necessary to ensure a clearer reading of the Bill's structure. It is important that the reader understands that Parts 16 to 25, inclusive, may have an impact on private limited companies in certain circumstances.
Bill recommitted in respect of amendment No. 5.
"(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.".
The purpose of these amendments is to clarify that "holding company" and "subsidiary" are not to be read as covering only private companies limited by shares. With a close reading of Part 6, for example, a reader will see that it actually provides a firm indication that "holding company" and "subsidiary" are not to be read in a restricted fashion. Nevertheless, it was felt prudent to ensure this section is not read in isolation from such sections nor undue emphasis placed on the words "unless expressly provided otherwise". Due to the structure of this Bill and the manner in which various Parts apply to specific company types, it has been necessary to introduce corresponding amendments in relevant Parts for other company types.
Bill reported with amendment.
Amendments Nos. 6, 77 to 84, inclusive, 156, 157, 159 and 160 are related and may be discussed together.
In page 83, to delete the text inserted by amendment 6 at Seanad Committee and substitute the following:
"(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.".
The purpose of these amendments is to update the legislative reference to a recent enactment.
"(6) 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.".
The purpose of this amendment is to clarify that this section does not apply to an external company that could, by constitution, be either categorised as a private limited company or a designated activity company in this jurisdiction. The amendment provides a dispensation to an external company from having to used the words "limited", "LTD", "designated activity company" or "DAC" in their names. The purpose of this provision is to continue to enable external companies to carry out their business in Ireland. A similar dispensation was granted to industrial and provident societies in the Seanad on Committee Stage.
Amendments Nos. 8 and 10 are related and may be discussed together.
Is that agreed? Agreed.
Senator David Cullinane
I move amendment No. 8:
In page 88, line 34, to delete "privileges." and substitute the following:
"privileges,
in so much as such action does not undermine or take precedence over a person's right and entitlements as provided for in existing legislation or international treaties and agreements to which Ireland has signed up to.".
I welcome the Minister of State. As this is the first time I have seen him here since his appointment, I wish him all the best in his role.
The two amendments arise from committee proceedings. We still have a concern about companies being regarded as a legal entity and having the same rights and "full and unlimited capacity" as a human being. It is one of the most striking but unremarked upon changes in the Bill and which is contained in section 38. It gives companies the same capacity and authority as a human being. I do not have a difficulty with the idea behind the change, but I have a concern about giving "full and unlimited capacity to carry on and undertake any business or activity, do any act or enter into any transaction" and having the full rights and privileges as a human being as going too far.
Amendment No. 10, which is similar, states:
In page 89, between lines 6 and 7, to insert the following:
"(2) In the case of a clash of "rights and privileges" a natural human being's rights and privileges would always take precedence over a company's.".
It is difficult to determine the ultimate use that companies and directors will make of this provision. In the United States where there are similar situations, this type of right has resulted in companies claiming a breach of their human rights when they are required to allow inspections of the workplace or that their human right to free speech is infringed upon by advertising rules or that laws dealing with unfair labour practices such as holding anti-union meetings, are contrary to their employment of their human rights. That is a difficulty we have. We agree with the Irish Congress of Trade Unions that a human being their human rights need to be protected first and foremost above and beyond any company which would be given, as the Bill does, the same full and unlimited capacity and which would be seen then as a legal person in legal terms. These issues have been discussed at length on Second and Committee Stages, but we are not convinced that our concerns have been taken on board. That is the reason we have resubmitted the amendments on Report Stage.
As there is no seconder, the amendment falls.
Amendment No. 8 lapsed.
In line 89, line 5, to delete "shall" and substitute "may".
The purpose of this amendment is to make this provision permissive rather than mandatory for companies. The advantage of this amendment is that a company can choose to grant unlimited authority to a person to act on behalf of the company and, if they do so, they will notify the Companies Registration Office. There was concern that making it mandatory would create unnecessary additional administrative burdens on both companies and the CRO.
I move amendment No. 10:
As there is no seconder, the amendment lapses.
Amendment No. 10 lapsed.
Government amendments Nos. 11 and 12 are related and may be discussed together, by agreement. Is that agreed? Agreed.
Government amendment No. 11:
In page 91, lines 14 and 15, to delete ", by writing under its common seal,".
The purpose of these two amendments is to bring this section in line with the Powers of Attorney Act 1996 and the Land and Conveyancing Law Reform Act 2009. The use of a seal is no longer necessary to empower a person to execute deeds or other matters on behalf of a company.
In page 91, line 18, to delete "and under his or her seal".
"(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.".
The purpose of this amendment is to clarify the manner in which this section, which clarifies that the law applicable during the transition period for a private company limited by shares is the law governing designated activity companies, applies to semi-State companies and other companies formed pursuant to a statute.
Government amendments Nos. 14 and 164 are related and may be discussed together, by agreement. Is that agreed? Agreed.
In page 104, between lines 33 and 34, to insert the following:
"(10) 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 1436 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.
(11) In subsection (10) "relevant Minister" means the Minister of the Government concerned in the administration of the relevant statute.".
This group of amendments provide for the procedure for re-registration of an existing private semi-State company as a designated activity company. The purpose of these amendments is to ensure clarity in relation to existing semi-State companies. It is possible that the private company limited by shares model may not be an appropriate fit for existing semi-State companies. The legislation governing them could not have foreseen the innovation of a one document constitution that the Bill, when enacted, will provide. The schemes governing such companies are premised on them being two document companies, that is, their incorporation is governed by a memorandum and articles of association. This amendment makes it clear also that a semi-State company, under its new guise as a DAC, will be subject to the same terms of its governing legislation as it was before it re-registered. The associated grouped amendment No. 164 exempts semi-State bodies from having the terms "limited", "designated activity company" and so forth at the end of their names.
Senator Feargal Quinn
The Minister of State is welcome. He has used the words "semi-State company" about six times. I recall somebody saying to me some years ago that we should not use that term; they are all State companies. They are not semi-State, although there may be some semi-State in them. They should be called State sponsored companies rather than semi-State. I believe that would be the more correct term to use. I am not suggesting any change to the Bill.
It might send shockwaves to the Bill if we tried to change it for this purpose. It is an issue I will bear in mind and will raise with my colleagues in the Department.
Senator Mary M. White
They are not fully State-owned.
They are State-owned.
Government amendments Nos. 15, 31, 38, 39, 63, 65, 105, 109, 117, 148, 168, 169 and 172 are technical drafting amendments and may be discussed together, by agreement. Is that agreed? Agreed.
In page 139, line 33, to delete "Chapter 4" and substitute "4".
These are technical amendments that purport to correct the language used in a section or to insert missing words. The purpose of all the amendments in this group is to aid with interpretation and understanding.
Recommittal is necessary in respect of Government amendment No. 16.
Bill recommitted in respect of amendment No. 16.
"(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.".
The purpose of this amendment is to ensure existing law is carried into this Bill. The 2001 Act provided an exemption to section 32 of the 1963 Act. In simple terms, this allows a subsidiary, whether limited or unlimited, to hold shares in its listed parent where that subsidiary is a member of an approved stock exchange. This permits market making in a parent's shares.
The amendment proposal maintains existing law. It replicates section 32 of the 1963 Act as amended by section 111 of the Company Law Enforcement Act. If the subsidiary is a member of an approved stock exchange acting in the ordinary course of its business as a professional dealer in securities, the restrictions and limitations of the acquisition of shares by a subsidiary in its holding company will not apply. A holding company must treat such shares as treasury shares.
Government amendments Nos. 17, 119 and 120 are related and may be discussed together, by agreement. Is that agreed? Agreed.
In page 156, to delete lines 23 to 27.
This is a refinement to clarify that the term "properly prepared" refers to statutory financial statements and not also to the "initial" and "interim" financial statements. This provision is only applicable to public limited companies and therefore a deletion is necessary in this section. Amendment No. 120 remedies the position in Part 17 which governs alterations and modifications of the general law to public limited companies.
Amendments Nos. 18 and 19 are cognate and may be discussed together, by agreement. Is that agreed? Agreed.
In page 166, line 28, after "on" to insert "and managed and controlled".
This was dealt with on Committee Stage, but the two amendments tabled are another attempt to strengthen protection for employees. As the Minister of State knows from his previous role as Chairman of the Oireachtas Joint Committee on Jobs, Enterprise and Innovation, there has been a plethora of abuses and cases where workers have had to fight tooth and nail to get their entitlements. Our amendments are designed to ensure proper protection for workers in these circumstances and that when they put their time and energy into making a profit for a company, they should be protected.
To what amendment is the Senator speaking?
Amendments Nos. 18 and 19.
That is what the amendments have been designed to do.
In page 166, line 41, after "trade" to insert "and is managed and controlled".
"(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).".
The purpose of the amendment is to clarify that electronic means may be used to deposit the instrument of proxy. The current wording might suggest "deposited" means physically left at and not sent by electronic means, which would be contrary to the spirit of the Bill which aims, where possible, to reduce administrative burdens on companies by availing of methods to simplify matters.
Amendments Nos. 21 and 22 form a composite proposal and may be discussed together, by agreement. Is that agreed? Agreed.
In page 220, line 24, to delete "Save where regulations under subsection (7) provide otherwise, any" and substitute "Any".
The purpose of the amendments is to clarify that subsection (6) applies but that the Minister may, as he or she considers appropriate, regulate in this matter.
In page 220, line 31, after "mentioned" where it secondly occurs to insert the following:
"and may also, by regulations, provide for such exceptions to subsection (6) as he or she considers appropriate".
Amendments Nos. 23, 24 and 27 are related and may be discussed together, by agreement. Is that agreed? Agreed.
In page 233, line 4, after "duties" to insert "(other than those set out in section 228(1)(b) and (h))".
The purpose of these amendments is to highlight that certain fiduciary duties of directors derive from statute and that such duties are not subject to the same rules and principles as common law provisions would be.
Amendment No. 25 is consequential to amendment No. 26, therefore, amendments Nos. 25 and 26 may be discussed together, by agreement. Is that agreed? Agreed.
In page 233, line 25, to delete "or".
The purpose of these amendments is to ensure a company may exercise its right regarding a director's power to exercise independent judgment by general resolution.
In page 233, line 26, after "subsection (2);" to insert the following:
"or
(iii) the director's agreeing to such has been approved by a resolution of the company in general meeting;".
In page 236, line 8, to delete "section 228(1)(d)" and substitute "section 228(1)(a), (c), (d), (e), (f) or (g)".
Amendments Nos. 28 and 29 are related and may be discussed together, by agreement. Is that agreed? Agreed.
"(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,".
The purpose of these amendments is to strengthen the law governing the existing offence of officer in default. The amendment clarifies that a company officer may have a legitimate defence to a committed default.
In page 265, to delete lines 5 to 17 and substitute the following:
"(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.".
"(d) a certificate of tax compliance,".
This issue was discussed on Second and Committee Stages. It is important that companies operating in these areas are tax compliant and the amendment provides that companies making an annual return must also provide a certificate of tax compliance as part of the process. This is to ensure no company can continue to be registered if it is not fully tax compliant. On Committee Stage the Minister stated it might be difficult to synchronise the annual returns with tax returns and I have sympathy with this, but there is no reason the most recent tax certificate, perhaps for the previous year, would not suffice. It would be good practice and would give confidence to all elements in the chain of supply if people had a tax certificate. A number of examples were given to us of contractors using subcontractors who were not tax compliant for many years, built up an exposure and eventually went out of business. It would add value to the Bill and I ask the Minister of State to consider the issue.
In page 278, line 13, after "both" to insert "of".
In page 278, to delete lines 27 to 32 and substitute the following:
"(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.".
The purpose of the amendment is to provide for a more precise definition of "net assets", which is to be used in determining whether a company has not maintained adequate accounting records in accordance with the Bill.
In page 288, line 26, to delete "to its not having elected to prepare IFRS group financial statements and".
The purpose of the amendment is to ensure the Courts Service has greater flexibility in listing the court in a given district. The existing reference is too limited in scope and could cause undue delay as to when a court hearing would be set as some District Court areas only sit once a month.
Amendments Nos. 35 to 37, inclusive, 41 to 50, inclusive, 74 to 76, inclusive, 114, 134, 144 and 150 are related and may be discussed together, by agreement. Is that agreed? Agreed.
In page 325, to delete lines 31 and 32 and substitute the following:
"(b) the company is availing itself of the exemption on the grounds that section 358 or 359, as appropriate, is complied with,".
I wish to correct the record as I made a slight error when discussing amendment No. 33. In case there is confusion, the purpose of amendments Nos. 33 and 34 is to remove the incorrect reference to a company not having elected to prepare IFRS group financial statements.
That is clarified and I thank the Minister of State. Has he spoken on the grouping which includes amendment No. 35?
No, the Minister of State started with the clarification.
Amendment No. 38-----
We will start again. We are discussing amendments Nos. 35 to 37, inclusive, 41 to 50, inclusive, 74 to 76, inclusive, 114, 134, 144 and 150.
The purpose of these amendments is to ensure the audit exemption criteria are in line with Article 52 of Directive 2013/34/EU which must be transposed into national law by July 2015. The aim of the directive is to simplify the accounting requirements for small companies and improve the clarity and comparability of companies financial statements in the European Union.
The new directive takes a small company or group as a starting point and imposes additional requirements on medium-sized companies and groups and even more requirements on large companies and groups, as well as on public interest entities, those essentially being listed companies and banks and insurance undertakings regardless of their size or whether they are listed. This is described as the "think small first" approach. These amendments also make provision for the securitisation requirements arising from the directive and many people will be happy to see them pass after being discussed a great deal on Committee Stage.
In page 326, between lines 8 and 9, to insert the following:
"(5) Whenever a company has availed itself of the audit exemption in respect of a financial year, the company shall, if required by the Director of Corporate Enforcement to do so--
(a) give to the Director such access to and facilities for inspecting and taking copies of the books and documents of the company, and
(b) furnish to the Director such information,
as the Director 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.".
In page 326, line 10, to delete "section 358(2)" and substitute "section 359(1)".
In page 333, lines 36 and 37, to delete "district court area" and substitute "District Court district".
In page 336, line 17, to delete "returns" and substitute "return's".
In page 343, lines 15 and 16, to delete "laid before the members in general meeting or which is otherwise" and substitute "approved by the board of directors or which is".
This is a technical amendment.
Sin é.
"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).".
"(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.".
In page 346, to delete lines 6 to 41, and in page 347, to delete lines 1 to 23 and substitute the following:
"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 section 350(2), (3), (5), (7), (8), (9) and (10).
(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).".
In page 347, to delete lines 24 to 39, and in page 348, to delete lines 1 to 10 and substitute the following:
"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 group qualifies as a small group in relation to that financial year.
(3) The determination of whether a group so qualifies shall be made, as provided for in this section, by reference to whether the financial year in question is the first, or a subsequent, financial year of the holding company that heads the group.
(4) A group qualifies as small in relation to the holding company's first financial year if the qualifying conditions are satisfied in respect of that year.
(5) A group qualifies as small in relation to a subsequent financial year of the holding company--
(a) if the qualifying conditions are satisfied in respect of that year and the preceding financial year;
(b) if the qualifying conditions are satisfied in respect of that year and the group qualified as small in relation to the preceding financial year;
(c) if the qualifying conditions were satisfied in respect of the preceding financial year and the group qualified as small in relation to that year.
(6) The qualifying conditions for a small group are satisfied by a group in relation to a financial year in which it fulfils 2 or more of the following requirements:
(a) the balance sheet total of the holding company and the other members of the group taken as a whole does not exceed €4.4 million,
(b) the amount of the turnover of holding company and the other members of the group taken as a whole does not exceed €8.8 million,
(c) the average number of persons employed by the holding company and the other members of the group taken as whole does not exceed 50.
(7) For the purposes of subsection (6)(a)--
(a) "balance sheet total", in relation to the holding company or another member of the group, means the aggregate of the amounts shown as assets in the company's or other member's entity balance sheet;
(b) there shall, in the operation of taking the balance sheet totals as a whole, be eliminated inter-group balances.
(8) For the purposes of subsection (6)(b)--
(a) "amount of the turnover", in relation to the holding company or another member of the group, means the amount of the turnover shown in the company's or other member's entity profit and loss account;
(b) there shall, in the operation of taking the amounts of turnover as a whole, be eliminated inter-group sales.
(9) For the purpose of subsection (6)(c), the average number of persons employed by a company or another member of the group shall be determined by applying the method of calculation prescribed by section 317 for determining the number required by subsection (1) of that section to be stated in a note to the financial statements of a company.
(10) In the application of paragraph (b) of subsection (6) to any period which is a financial year but is not in fact a year, the amount specified in that paragraph shall be proportionally adjusted.
(11) Each occasion of an amendment of the kind referred to in subsection (12) being effected shall operate to enable the Minister to amend, by order, subsection (6)(a) and (b), by substituting for the total and the amount, respectively, specified in those provisions a greater total and amount (not being a total or an amount that is greater than the total or amount it replaces by 25 per cent).
(12) The amendment referred to in subsection (11) is an amendment of the amount and the total specified in paragraphs (a) and (b), respectively, of section 350(5), being an amendment made for the purpose of giving effect to a Community act.
(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).".
In page 348, lines 12 to 25, to delete all words from and including "The" in line 12 down to and including line 25 and substitute the following:
"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 a company or a group 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 or group in respect of that financial year, and
(b) unless and until circumstances (if any) arise by reason of which the company or group is not entitled to the audit exemption in respect of that financial year, the provisions specified in subsection (2) shall not apply to the company or group in respect of that year.".
"Audit exemption not available where company or subsidiary undertaking falls within a certain category
362. (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 company falling within any provision (in so far as applicable to a private company limited by shares) of Schedule 5, other than a company referred to in paragraph 5 or 16 of that Schedule, or if it is a relevant securitisation company.
(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 company falling within any provision (in so far as applicable to a private company limited by shares) of Schedule 5, other than a company referred to in paragraph 5 or 16 of that Schedule, or if it is a relevant securitisation company, or
(b) any of those other members is--
(i) a credit institution,
(ii) an insurance undertaking,
(iii) a company falling within any provision of Schedule 5, other than a company referred to in paragraph 5 or 16 of that Schedule,
(iv) a relevant securitisation company or
(v) a body any of the securities of which are admitted to trading on a regulated market.
(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.".
"Audit exemption (non-group situation) not available unless annual return filed in time
363. (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 unless--
(a) there is delivered 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 that financial year are annexed, and
(b) if the annual return referred to in paragraph (a) is not the company's first annual return, there has been delivered to the Registrar, in compliance with section 343, its annual return to which the statutory financial statements or (as appropriate) abridged financial statements for its preceding financial year were annexed.
(2) Where the annual return referred to in paragraph (a) or (b) of subsection (1) is the company's first annual return, that paragraph shall have effect as if the reference to statutory financial statements or abridged financial statements being annexed to that return were omitted.".
"Audit exemption (group situation) not available unless annual return filed in time
(a) a reference to each of the relevant bodies is a reference to each of the holding company and the other members of the group (but this paragraph is subject to subsection (6)),
(b) "preceding financial year" means the financial year preceding the financial year referred to in subsection (2).
(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 in a financial year unless--
(a) there is delivered to the Registrar, in compliance with section 343, the annual return of each of the relevant bodies to which the particular relevant body's statutory financial statements or (as appropriate) abridged financial statements for that financial year are annexed, and
(b) if the annual return referred to in paragraph (a) is not the first annual return of each of the relevant bodies, the condition specified in subsection (3) or (4), as the case may be, is satisfied.
(3) If the annual return referred to in paragraph (a) of subsection (2) is not the first annual return of any of the relevant bodies, the condition referred to in paragraph (b) of that subsection is that there has been delivered to the Registrar, in compliance with section 343, the annual return of each of the relevant bodies to which the particular relevant body's statutory financial statements or (as appropriate) abridged financial statements for the preceding financial year were annexed.
(4) If the annual return referred to in paragraph (a) of subsection (2) is the first annual return of one or more, but not all, of the relevant bodies, the condition referred to in paragraph (b) of that subsection is that there has been delivered to the Registrar, in compliance with section 343, the annual return of each of the relevant bodies (excluding any of them the annual return of which is its first annual return) to which the particular relevant body's statutory financial statements or (as appropriate) abridged financial statements for the preceding financial year were annexed.
(5) In the case of--
(a) the annual return thirdly mentioned in subsection (2)(a), if that return is the company's or other member's first annual return, subsection (2)(a) shall have effect (in relation to the company or other member) as if the reference to statutory financial statements or abridged financial statements being annexed to that return were omitted,
(b) the annual return to which the condition referred to in subsection (3) or (4) applies (namely the annual return to which statutory financial statements or abridged financial statements for the preceding financial year are to be annexed) if that annual return is the relevant body's first annual return, subsection (3) or (4), as the case may be, shall have effect (in relation to the relevant body) as if the reference to statutory financial statements or abridged financial statements being annexed to that return were omitted.
(6) 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)(a) (of references to each of the relevant bodies) shall be read accordingly.".
"(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.".
"(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.".
In page 380, line 17, to delete "the foregoing paragraphs" and substitute "paragraphs (b) to (c)".
The purpose of this amendment is to clarify the definition of "claims and rights" in respect of any money or deposit credited to an account of a financial institution consisting of shares, bonds or debt instruments.
In page 383, line 6, after "not" to insert "be under any duty to".
The purpose of this amendment is to remove the onus on the registrar to assess the nature of particulars submitted to her or him. The reality is that almost all filings are submitted to the registrar electronically and the Companies Registration Office, CRO, has no role in interpreting the details submitted in the prescribed forms.
In page 398, line 36, after "(4)" to insert "or this subsection".
The purpose of these amendments is to update the subsection references to ensure section 316(2) of the 1963 Act is fully enacted.
In page 398, line 38, to delete "that" and substitute "this".
In page 426, line 3, to delete "Subject to subsection (6), subsection (1)" and substitute "Subsection (1)".
This is a technical amendment and its purpose is to remove an obsolete cross-reference.
Amendments Nos. 56 to 62, inclusive, and 125 to 130, inclusive, are related and may be discussed together, by agreement. Is that agreed? Agreed.
"(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.".
The purpose of these amendments is to cater for the consequences of a merger on leasehold property legally classified as chattels real or immovable property. The language of the provision has been improved in order to increase certainty with respect to the property transactions and, thus, to reduce the paperwork and costs to businesses associated with the merger.
Amendment No. 57 is included in the first additional list of amendments, dated 30 September 2014.
In page 431, line 35, to delete "The" and substitute "Without prejudice to subsections (5) and (6), the".
"(5) 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.
(6) Without prejudice to the generality of subsection (5), 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 (5)(a) but without the necessity of there being produced that which is referred to in subsection (5)(b), enter the name of the successor company in place of any transferor company in respect of such deed.
(7) Without prejudice to the application of subsection (5) 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 1121;
(c) the register kept by a public limited company for the purposes of sections 1050 to 1055;
(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.".
In page 443, line 10, to delete "Subject to subsection (6), subsection (1)" and substitute "Subsection (1)".
(i) a lease, conveyance, transfer or charge or any other instrument relating to real property (including chattels real); and
In page 449, line 3, to delete "Such" and substitute "Without prejudice to subsections (6) and (7), such".
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.
(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 relevant successor company (or, as appropriate, the names of the relevant successor companies) in place of the transferor company in respect of such deed.
In page 452, to delete line 20 and substitute the following:
"(c) the circumstances set out in section 570(a), (b) or (c) are applicable to the company.".
Amendment No. 64 not moved.
In page 490, line 14, after "to" to insert "in".
In page 490, line 21, to delete "Part" and substitute "Act".
This is a technical amendment to assist with interpretation.
Amendments Nos. 67 and 68 not moved.
Amendments Nos. 69 to 71, inclusive, form a comprehensive proposal and may be discussed together, by agreement. Is that agreed? Agreed.
In page 592, line 31, to delete "The" and substitute "Subject to subsection (3), the".
The purpose of these amendments is to preserve the existing factors concerning strike-offs that have been initiated by the Revenue Commissioners.
If Revenue has given the registrar notice under section 882(3) of the Taxes Consolidation Act 1997, the registrar is bound pursuant to section 726(b) of this Bill to effect involuntary strike-off of the company from the register. For the registrar to have powers to restore such a company administratively to the register, the registrar must be in receipt of a letter of no objection from Revenue.
"(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;".".
Amendments Nos. 72 and 73 are cognate and may be discussed together. Is that agreed? Agreed.
In page 594, line 3, to delete "Minister for Finance" and substitute "Minister for Public Expenditure and Reform".
The purpose of these amendments is to change the reference to "Minister for Finance" to the "Minister for Public Expenditure and Reform" to reflect the reality that the function under the State Property Act 1954 transferred in July 2011 to the Minister for Public Expenditure and Reform under the Ministers and Secretaries (Amendment) Act 2011 and Statutory Instrument No. 418/2011 - Finance (Transfer of Departmental Administration and Administrative Functions) Order 2011.
In page 594, line 9, to delete "Minister of Finance" and substitute "Minister for Public Expenditure and Reform".
In page 600, to delete lines 6 to 8 and substitute the following:
"(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 as a small or medium company by virtue of section 350, the Circuit Court,".
"(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).".
"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) as a small or medium company by virtue of section 350, 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.".
In page 656, line 13, to delete "1977" and substitute "2014".
In page 671, line 5, to delete "1977" and substitute "2014".
Amendments Nos. 85 and 86 are related and may be discussed together. Is that agreed? Agreed.
In page 678, lines 19 and 20, to delete "an offence under this Act that is subject to summary prosecution" and substitute "a category 3 or 4 offence".
The purpose of this amendment is to be more precise about the category of the offence which is subject to summary prosecution.
In page 679, line 27, after "Act" to insert "(being a default that constitutes a category 3 or 4 offence)".
"(7) The Registrar shall ensure that information is made available explaining the provisions of this Act according to which a third party can rely on the information and particulars referred to in subsection (4).".
The purpose of this amendment is to address the EU requirement in relation to Directive 2012/17/EU. Under EU law, it is necessary to have a positive statement in law to the effect that information will be available as required by law and that this must be stated in order that third parties can rely on the information.
Amendments Nos. 88, 89, 93 to 97, inclusive, 99 to 104, inclusive, and 106 to 108, inclusive, are related and may be discussed together. Is that agreed? Agreed.
These amendments relate to the deletion from the remit of the supervisory authority of certain existing but uncommenced functions. The function concerned is what is known as a section 26 review, namely, a review of whether accounts comply with Companies Acts. The section 26 review was introduced in the 2003 Act and provided the supervisory authority with the novel power of requiring the ratification of the accounts of large organisations where such accounts fail in some respects to comply with the accounting requirements of the Companies Acts. The reason for the proposed deletion of the references is that these references are now deemed to be obsolete and unsuitable for commencement. The transparency directive has provided the supervisory authority with a more targeted and effective way of dealing with companies' accounts.
In page 705, line 28, to delete "sections 933 and 937" and substitute "section 933".
Amendments Nos. 90 to 92, inclusive, are related and may be discussed together. Is that agreed? Agreed.
In page 706, line 27, after "shares" to insert "or designated activity company".
The purpose of this amendment is to ensure that the supervisory authority may also levy designated activity companies, DACs. This was always intended. Section 917 of the Companies (Auditing and Accounting) Act 2003 refers to private companies limited by shares. As Members will be aware, a designated activity company is also a type of private company limited by shares and to omit such a company from the levy would be incongruous.
In page 722, to delete lines 23 to 38, to delete pages 723 and 724, and in page 725, to delete lines 1 to 10.
In page 707, line 1, after "shares" to insert "or designated activity company".
"(3) For the purpose of determining whether a holding undertaking and all its subsidiary undertakings meet the criteria in paragraph (b), in the operation of taking, as appropriate—
(a) the amounts of their turnover as a whole, or
(b) their balance sheet totals as a whole,
there shall be eliminated inter-group sales or inter-group balances, as the case may be.".
In page 709, line 18, after "section 917," to insert "and".
In page 709, to delete lines 20 and 21 and substitute "934(7).".
In page 725, to delete lines 11 to 40, and in page 726, to delete lines 1 and 2.
In page 726, line 5, to delete "938" and substitute "936".
In page 727, to delete the text inserted by amendment 133 at Seanad Committee and substitute the following:
"Confidentiality of information
942. (1) A person shall not disclose information that—
(a) comes into the possession of the Supervisory Authority by virtue of the performance by it of any of its functions under this Act; and
(b) has not otherwise come to the notice of members of the public.
(2) Subsection (1) shall not apply to—
(a) person specified in subsection (3) or a director of the Authority in the performance by the Authority, or him or her, of any of its or his or her functions under this Act or any other enactment, being a communication the making of which was, in the Authority's or his or her opinion, appropriate for the performance of the function concerned; or
(b) the disclosure of information in a report of the Supervisory Authority or for the purpose of any legal proceedings, investigation, enquiry or review under this Act or any other enactment or pursuant to an order of a court of competent jurisdiction for the purposes of any proceedings in that court; or
(c) a disclosure made where such disclosure is required by, or in accordance with, law; or
(d) a disclosure of information which, in the opinion of the Supervisory Authority, a member of its staff, any person specified in subsection (3) or a director of the Authority, may relate to the commission of an offence; or
(e) a disclosure to a person prescribed by regulations made by the Supervisory Authority as a person to whom a disclosure, or a specified class of disclosure,may lawfully be made.
(3) The persons mentioned in subsection (2)(a) and (d) are any agent of the Supervisory Authority or professional or other adviser to it.
(4) A person who contravenes subsection (1) shall be guilty of a category 2 offence.".
The purpose of this amendment is to make provision for the supervisory authority in relation to the confidentiality of information it obtains in the exercise of its functions. It also identifies information obtained pursuant to this Bill that may be disclosed to State bodies and statutory authorities such as the Minister for Finance, An Garda Síochána, etc. A breach of confidentiality of information committed by a person associated with the supervisory authority such as staff, advisers, etc., is deemed to be a category two offence.
In page 729, to delete lines 13 and 14.
Government amendment No. 100:
In page 729, line 16, to delete "or (5)".
In page 730, lines 10 to 13, to delete all words from and including "body;" in line 10, down to and including "section 938(5)(a))." in line 13 and substitute "body.".
In page 731, line 17, to delete "all or any of sections 225, 917 and 937" and substitute "sections 225 and 917 (or either of those sections)".
In page 731, line 19, to delete "1997)" and substitute "1997".
In page 731, line 24, after "provisions" to insert "or that provision".
In page 731, line 40, to delete ", (g)".
In page 732, line 11, to delete "(g),".
In page 733, line 5, to delete "947(3)" and substitute "947(2)".
Bill recommitted in respect of amendments Nos. 110 and 111.
In page 741, line 22, to delete "section 10" and substitute "section 10(1)".
In page 741, line 23, to delete "Unless" and substitute the following:
"(1) Unless".
Bill reported with amendments.
The purpose of this amendment is to remove incorrect references from the table of this application.
Amendments Nos. 113, 121, 133 and 143 are cognate and may be discussed together, by agreement. Is that agreed? Agreed.
"DAC, with 2 or more members, may not dispense with holding of a.g.m.
991. Section 175(3) and (4) (which relate to dispensing with the holding of an annual general meeting) shall not apply to a DAC if it has more than one member.".
The purpose of this and other amendments in the group is to clarify that a single member company of any type, whether a designated activity company, a private limited company or so on may dispense with the holding of an annual general meeting.
In page 758, lines 25 and 26, to delete "as referred to section 358(1) or (2)" and substitute "as referred to in section 358 or 359".
In page 817, to delete paragraph (a) inserted by Seanad Committee amendment 146.
The purpose of this amendment is to remove an amendment inserted on Committee Stage. On close inspection, the amendment has proved to be unnecessary and potentially confusing for practitioners and others. I am satisfied the existing law relating to the acquisition of shares is essentially reflected in Part 3, section 102(1), which states that for any company, a requisite for a share acquisition is that the share is fully paid up.
In page 824, line 11, to delete "(7)" and substitute "(8)".
"(8) The reference in the definition of "properly prepared" in section 121(7) to financial statements includes a reference to interim or initial financial statements referred to in subsection (5) or (6) and, for the purpose of that definition as it relates to either such type of statement, section 290 and section 291 or 292 as appropriate, and, where applicable, Schedule 3 shall be deemed to have effect in relation to interim and initial financial statements with such modifications as are necessary by reason of the fact that the financial statements are prepared otherwise than in respect of a financial year.".
"PLC, with 2 or more members, may not dispense with holding of a.g.m.
1091. Section 175(3) and (4) (which relate to dispensing with the holding of an annual general meeting) shall not apply to a PLC if it has more than one member.".
Bill recommitted in respect of amendments Nos. 122 to 124, inclusive.
In page 835, line 34, to delete "A member" and substitute "Without prejudice to the member's general entitlements in that regard under section 183(7), a member".
"Voting by director in respect of certain matters: prohibition and exceptions thereto
1115. Save to the extent that the PLC's constitution provides otherwise, a director of a PLC shall not vote in respect of any contract or arrangement in which the director is interested, and if the director does so vote, the director's vote shall not be counted, nor shall he or she be counted in the quorum present at the meeting, but neither of those prohibitions shall apply to:
(a) any arrangement for giving any director any security or indemnity in respect of money lent by the director to or obligations undertaken by the director for the benefit of the PLC; or
(b) any arrangement for the giving by the PLC of any security to a third party in respect of a debt or obligation of the PLC for which the director himself or herself has assumed responsibility in whole or in part under a guarantee or indemnity or by the deposit of security; or
(c) any contract by the director to subscribe for or underwrite shares or debentures of the PLC; or
(d) any contract or arrangement with any other company in which the director is interested only as an officer of such other company or as a holder of shares or other securities in such other company,
and the operation of those prohibitions may at any time be suspended or limited to any extent and either generally or in respect of any particular contract, arrangement or transaction by the PLC in general meeting.".
The purpose of this amendment is to make provision for the restriction and exemptions for directors of public limited companies. It makes it clear that a director of a public limited company may not vote with regard to contracts or arrangements in which the director has an interest. This rule can be altered by the public limited company's constitution. In addition, the proposed amendment makes statutory provision for certain exceptions where a director may vote in matters of interest.
"(4) The following provisions have effect for the purposes of subsection (3)—
(a) "instrument" in that subsection includes—
In page 860, line 14, to delete "The" and substitute "Without prejudice to subsections (5) and (6), the.
"(5) There shall be entered by the keeper of any register in the State—
(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.
(c) the register kept by a public limited company for the purposes of sections 1050 to1055;
In page 879, line 22, to delete "Such" and substitute "Without prejudice to subsections (6) and (7), such".
"(6) There shall be entered by the keeper of any register in the State—
(f) any register of shipping kept under the Mercantile Marine Act 1955.".
Bill recommitted respect of amendments Nos. 131 and 132.
"CLG, with 2 or more members, may not dispense with holding of a.g.m.
1202. Section 175(3) and (4) (which relate to dispensing with the holding of an annual general meeting) shall not apply to a CLG if it has more than one member.".
In page 906, line 19, after "to" to insert "that section and".
This amendment corrects the language of a subsection in order to ensure correct interpretation. The name of any unlimited company, irrespective of the type of unlimited company, shall be governed by section 123(6) and 124(6).
"(5) If special circumstances exist which render it, in the opinion of the Minister, expedient that such an exemption should be granted, the Minister may, subject to such conditions as he or she may think fit to impose and specifies in the exemption, grant, in writing, an exemption from the obligation imposed by subsection (1).".
This amendment provides the Minister, in exceptional circumstances, with the power to exempt an unlimited company from having the title "unlimited company" in its name. The related amendments extend this power to those sections also. The requirement to have "unlimited" in the name is a new administrative requirement under the Bill. As there are many companies which are long established as unlimited companies, it was considered that it would be safer to have an exempting power should unforeseen circumstances arise after the Bill is enacted.
In page 915, line 6, after "is" to insert "also".
This amendment clarifies that section 1236 is subject to section 1246 which provides for the transitional rule for an existing unlimited company with regard to its name.
In page 919, line 18, after "by" to insert "(subject to section 1236(5))".
In page 920, line 16, after "shall" to insert ", subject to section 1236(5),".
"Application of section 94 to ULCs and PUCs
1252. Section 94 shall apply to an ULC and a PUC as if the following subsection were substituted for subsection (2):
"(2) The instrument of transfer of any share shall be executed by or on behalf of the transferor and the transferee.".".
The purpose of this amendment is to modify the manner in which section 94 which governs transfer of shares and debentures applies to any unlimited company that has share capital.
"Unlimited company, with 2 or more members, may not dispense with holding of a.g.m.
1260. Section 175(3) and (4) (which relate to dispensing with the holding of an annual general meeting) shall not apply to an unlimited company if it has more than one member.".
In page 925, lines 16 and 17, to delete "as referred to in section 358(1) or (2)" and substitute "as referred to in section 358 or 359".
Amendments Nos. 145 to 147, inclusive, are related and may be discussed together, by agreement. Is that agreed? Agreed.
In page 944, to delete line 36.
These are technical amendments that update the relevant directive references from the 1968 directive to the recast directive on public disclosure of certain companies' information.
" "2009 Directive" means Directive 2009/101/EC of 16 September 2009;".
In page 949, line 30, to delete "Article 2(1)(h), (j) and (k) of the 1968 Directive" and substitute "Article 2(h), (j) and (k) of the 2009 Directive".
In page 954, line 28, to delete "the registration of company" and substitute "registration of the company".
"(4) Notwithstanding anything in paragraph (a) of that subsection, subsection (1) applies to, amongst other bodies corporate, a society registered under the Industrial and Provident Societies Acts 1893 to 2014.".
The purpose of this amendment is to ensure a society registered under the Industrial and Provident Societies Acts may also avail of this provision. The purpose of this section is to provide for an unregistered company to register as any of the company types, that is, a private limited company, unlimited company and so forth, provided for under this Bill. The amendment maintains the existing terms set out for such societies in the 1963 Act.
In page 996, lines 8 and 9, to delete "as referred to section 358(1) or (2)" and substitute "as referred to in section 358 or 359".
In page 1001, line 36, to delete "section 10" and substitute "section 10(1)".
In page 1001, line 37, to delete "Unless" and substitute the following:
"(1) Unless".
In page 1002, between lines 30 and 31, to insert the following:
Directors' compliance statement and related statement
The purpose of this amendment is to revert to the position in existing law and disapply section 225 for Part 24 companies. It was never intended that investment companies would have to comply with the directors' compliance statement requirement. Investment companies are subject to additional regulation from the financial sector in relation to compliance. Investment companies often use service companies for administrative purposes. Thus such companies are already subject, as an alternative company type, to the requirements of section 225.
Amendment No. 155 is consequential on amendment No. 154. Amendments Nos. 154 and 155 may be discussed together, by agreement. Is that agreed? Agreed.
In page 1008, to delete lines 32 to 38.
The purpose of these amendments is to update the references to the provisions of the alternative investment fund managers directive regulations which have been altered in 2013. AIFMD refers collectively to the alternative investment fund managers directive, Directive 2011/61/EU, and Commission Delegated Regulation (EU) No. 231/2013. Directive 2011/61/EU was transposed into Irish law under the European Union (Alternative Investment Fund Managers) Regulations 2013, the AIFMD regulations, on 16 July 2013.
In page 1008, line 39, to delete "subsection (1), (8) or (9)" and substitute "subsection (1) or (8)".
In page 1029, line 7, to delete "1977" and substitute "2014".
"Audit by Comptroller and Auditor General of companies not trading for gain
1433. (1) This section shall apply to a company which is not trading for the acquisition of gain by its members.
(2) The expression "statutory auditor" and the expression "audit of the statutory financial 25 statements" shall, for the purposes of this Act, be deemed to include, respectively, the Comptroller and Auditor General and audit of the statutory financial statements by the Comptroller and Auditor General in any case in which he or she is appointed, under any enactment, auditor of a company to which this section applies.
(3) Chapters 18, 20 and 21 of Part 6 shall not apply to the Comptroller and Auditor General in a case falling within subsection (2) nor to the audit of statutory financial statements by him or her in such a case.".
The purpose of this amendment is to clarify that the Comptroller and Auditor General is entitled to carry out statutory audits of companies not trading for gain. It also clarifies that the Comptroller and Auditor General is entitled to carry out audits of statutory financial statements of any company not trading for gain in which he is appointed, under an enactment, the auditor of that company.
In page 1031, line 15, to delete "1978" and substitute "2014".
In page 1031, line 21, after "body" to insert "of accountants".
This is an insertion of missing words. The reference ought to be to what is legally understood to be a body of accountants, not merely any body.
"(3) In addition to the requirement of subsection (2), none of the following persons shall be qualified for appointment as a public auditor of a society registered under the Industrial and Provident Societies Acts 1893 to 2014—
(a) an officer or servant of the society,
(b) a person who has been an officer or servant of the society within a period in respect of which accounts would fall to be audited by the person if he or she were appointed auditor of the society,
(c) a parent, spouse, civil partner, brother, sister or child of an officer of the society,
(d) a person who is a partner of or in the employment of an officer of the society,
(e) a person who is disqualified under this subsection for appointment as a public auditor of any other society that is a subsidiary or holding company of the society or a subsidiary of the society's holding company,
(f) a person who is disqualified under Regulation 71 of the European Communities (Statutory Audits) (Directive 2006/43/EC) Regulations 2010 for appointment as statutory auditor of a company that is a subsidiary or holding company of the society,
(g) a body corporate.
(4) In addition to the requirement of subsection (2), none of the following persons shall be qualified for appointment as a public auditor of a friendly society—
(a) an officer or servant of the friendly society,
(b) a person who has been an officer or servant of the friendly society within a period in respect of which accounts would fall to be audited by the person if he or she were appointed auditor of the friendly society,
(c) a parent, spouse, civil partner, brother, sister or child of an officer of the friendly society,
(d) a person who is a partner of or in the employment of an officer of the friendly society,
(e) a body corporate.
(5) A person shall not act as a public auditor at a time when he is or she is disqualified under subsection (3) or (4), as the case may be, for appointment to that office.
(6) If, during the person's term of office as public auditor, a person becomes disqualified under this section for appointment to that office, the person shall thereupon vacate his or her office and give notice in writing to the society or friendly society, as the case may be, that he or she has vacated his or her office by reason of such disqualification.".
The purpose of these amendments is to ensure the existing law in relation to public auditors is maintained. The proposed amendment relates to the prohibition on connected persons acting as auditor of a society, at present covered by section 187(3)(a) to (f) and (4)(a) to (d) of the 1990 Act. The amendment also exempts the Comptroller and Auditor General from the section. A connected person is defined in relation to company directors in section 220 as a spouse, civil partner, brother, sister or child, a trustee of a trust of which the beneficiaries are the director and-or his family, a body corporate that the director controls, and any person who is in a partnership with the director.
In page 1031, to delete line 26 and substitute the following:
"(4) A person who contravenes subsection (2), (5) or (6) shall be guilty of a category 2 offence.
(5) This section shall not apply to the Comptroller and Auditor General.
(6) References in this section to an officer or servant do not include references to a public auditor.".
The amendment was taken with amendment No. 162.
No. Amendment No. 162 stands alone.
My apologies. The amendment is grouped with amendment No. 166. Amendment No. 163 imports section 8 of the Companies Miscellaneous Provisions Act 2013 into the Bill. As a result of this amendment, all the company law related provisions of the 2013 Act have been-----
We are on amendment No. 163.
Yes. When I spoke to amendment No. 162, I covered amendment No. 163. Did I not group the two amendments together?
They were not grouped. Does the Minister of State wish to repeat himself? He does not have to if he does not wish to do so. Perhaps he might clarify that he has dealt with them.
I spoke to them and took amendments Nos. 162 and 163 together.
For clarification, the Minister of State spoke to amendment No. 163 when he replied to amendment No. 162. Is that correct?
"Provision as to names of companies formed pursuant to statute
1436. (1) This section applies to a company that—
(a) had 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; and
(b) by virtue of that statute was not required to include the word "limited" or "teoranta" in its name (or, as the case may be, the words "public limited company" or "cuideachta phoiblí theoranta" in its name).
(2) A company to which this section applies, notwithstanding its continuance in existence by a particular Part of this Act, shall not be subject to the requirement in that Part that its name end with a particular set of words.
(3) A company to which this section applies, notwithstanding its re-registration pursuant to Chapter 6 of Part 2 as a designated activity company, shall not be subject to the requirement in Part 16 that its name end with a particular set of words.".
Amendments Nos. 165 and 166 are related and may be discussed together.
In page 1031, after line 30, to insert the following:
"Provision in respect of certain discretion afforded by Commission Decision 2011/30/EU
1437. (1) In this section—
"2010 Audits Regulations" means the European Communities (Statutory Audits)(Directive 2006/43/EC) Regulations 2010 (S.I. No. 220 of 2010);
"third-country audit entity" has the same meaning as in Regulation 3 of the 2010 Audits Regulations;
"third-country auditor" has the same meaning as in Regulation 3 of the 2010 Audits Regulations.
(2) The Minister may by regulations provide that Chapter 3 of Part 8 of the 2010 Audits Regulations shall apply to third-country auditors and third-country audit entities that carry out audits of the annual or group accounts of a company falling within Regulation 113(2) of the 2010 Audits Regulations and incorporated in a country listed in Annex II to Commission Decision 2011/30/EU of 19 January 2011 (as amended by Commission Decision 2013/288/EU of 13 June 2013), including that Annex as it stands—
(a) amended from time to time, or
(b) replaced by another Annex (or an equivalent provision listing third countries for the purpose of the discretion of the kind afforded to Member States by Article 2(4) of Commission Decision 2011/30/EU of 19 January 2011).".
This amendment incorporates section 8 of the Companies (Miscellaneous Provisions) Act 2013 into the Bill. As a result of this amendment, all of the company law related provisions of the 2013 Act have been consolidated into the Bill, and when it is passed, the 2013 Act can be repealed. The amendment empowers the Minister to make provision with regard to third country audit and entities on companies falling within Regulation 113(2).
In page 1033, to delete lines 30 and 31 and substitute the following:
No. 46 of 2013
Companies (Miscellaneous Provisions) Act 2013
Sections 2 to 8
In page 1072, line 17, to delete "Subject to paragraph 6, subparagraph (1)" and substitute "Subparagraph (1)".
This is a technical amendment. The reference to a paragraph is incorrect.
In page 1072, line 18, to delete "paragraph" and substitute "subparagraph".
In page 1076, line 19, after "holding" to insert "undertaking".
"of the European Communities (Credit Institutions) (Consolidated Supervision) Regulations 2009 (S.I. No. 475 of 2009).".
The purpose of this amendment is to update the legislative references. SI 396 of 1992, the European Communities (Consolidated Supervision of Credit Institutions) Regulations 1992 have been revoked by SI 475 of 2009, the European Communities (Credit Institutions) (Consolidated Supervision) Regulations 2009.
In page 1078, to delete lines 37 to 39 and substitute the following:
"14. A company that has close links (within the meaning of the European Union (Capital Requirements) Regulations 2014 (S.I. No. 158 of 2014) with an authorised investment firm referred to in paragraph 1 or a company referred to in paragraph 5.".
This amendment updates the reference to the European Union (Capital Requirements) Regulations 2014, SI 158 of 2014. It has revoked SI 267 of 1996, the Supervision of Credit Institutions, Stock Exchange Member Firms and Investment Business Firms Regulations 1996.
Government No. 172:
In page 1080, line 35, to delete "section 1395(6)" and substitute "section 1395(4)".
Bill, as amended, received for final consideration.
Question proposed: "That the Bill do now pass."
I thank the Senators for their valued contributions to the debate on the Companies Bill 2012. I welcome the general expressions of support for the Bill and I am glad that it has passed all Stages.
I was not present for the initial debate on Committee and Report Stages, but I know that Members raised many issues and engaged with the process. I thank them for their hard work. There were many positive contributions spanning across a range of issues. Some of the issues raised were not necessarily about this legislation, but we have taken note of them. I thank Members for the collaborative approach taken to the development of the Bill. I dealt with the Bill in committee and at all times members were supportive of the general thrust of the Bill and were genuinely trying to work on it to ensure it would be enacted. I appreciate the time and effort of members from all parties.
It is a landmark Bill that has involved years of work. I think it has been worked on for between ten and 12 years in the Department, the Office of the Parliamentary Counsel and the experts in the Company Law Review Group also. The overall rationale for the Bill is to improve Ireland's competitive position as a location for business investment, and the objective is to have the legislation enacted as soon as possible.
I thank Members for their co-operation in the passage of the Bill. I appreciate it.
It gives me great pleasure to congratulate Deputy Damien English on his appointment as Minister of State at the Department of Education and Skills and at the Department of Jobs, Enterprise and Innovation with special responsibility for skills research and innovation. I know how dedicated he is, as I have had the pleasure of being a member of the Committee on Jobs, Enterprise and Innovation when he was the Chairman. I have said before that I think he should have been promoted before now, but it is better late than never. I have complete confidence in him in his role as Minister of State and I am delighted about his appointment.
I congratulate all the civil servants who, together with various Ministers, worked on this complex Bill in the past 12 years. The Bill brings company law into the 21st century and it is no mean feat that we have the Bill before us. The essential objective of the Bill is to improve Ireland's competitive position as a location for business investment.
Senator Michael Mullins
I join Senator Mary White in congratulating sincerely the Minister of State, Deputy Damien English on his recent appointment. I, too, had the pleasure of seeing him in action as Chairman of the Joint Committee on Jobs, Enterprise and Innovation. He acquitted himself well during the years.
This is significant legislation, as the Minister of State has said. It is the culmination of many years of hard work by politicians and public servants. It is designed to bring company law into the 21st century, to make it easier to do business in the country, and to ensure business becomes more competitive. It is a significant day for the Oireachtas. I am very pleased the Minister of State, as one of his first tasks, has steered this Bill successfully through the Seanad.
Senator Lorraine Higgins
I join in the chorus of congratulations to the Minister of State on his new role. It is great to be at the forefront of introducing this seminal Bill. It is a great piece of law and I understand 12 years were spent in researching, drafting and working on it. Well done to everybody in the Department of Jobs, Enterprise and Innovation and to the foresight of the Ministers who have gone before the Minister of State. If we are to continue to attract multinational companies to our shores, it is very important we have a proper legislative framework in the company law arena.
I wish the Minister of State well for the remainder of his term.
I have congratulated the Minister of State twice already and I am afraid it will not be third time lucky because I do not want him to get too comfortable. We will obviously have to hold him to account in the next 14 to 15 months. There is a report that relates to the south east that I want the Minister of State to implement.
It seems a long time ago since the briefing sessions on this Bill were arranged and we were brought to a presentation in Agriculture House. We were brought through a very lengthy PowerPoint presentation that went on for hours but it was worthwhile to have had the Bill discussed with us. As one of the other speakers said, the previous Government also had a hand in the preparation of the Bill, as the Bill was a long time in the making. It brings company law into the 21st century and consolidates many Acts that needed to be consolidated. It is a very important Bill and it is a good legislation. I am happy that we were in a position to support it.
I thank the Members - Senators Michael Mullins, Lorraine Higgins, Mary White and David Cullinane - for their kind comments. They are correct. It is good to get the job done, but it has been a pleasure to work on this Bill and to be involved in the Committee Stage debate during its deliberation by the Joint Committee on Jobs, Enterprise and Innovation because we were able to see it progress through the committee, the Dáil and the Seanad.
It has been said it has taken a long time for me to be appointed to ministerial office, but I am pleased I went this route because the years I spent on the Joint Committee of Jobs, Enterprise and Innovation were very important. I know some of the Members in front of me have put a great deal of work into the Committee Stage of this Bill as well as other Bills. The work of committees is not always recognised and it is a credit to the Members also.
The Companies Bill 2012 is a significant body of work and, as Senator David Cullinane said, we received the English version and went through the briefing documents and attended the presentation on it. I thank the officials who are present from the Department of Jobs, Enterprise and Innovation. A great deal of work went into ensuring members of all parties were brought up to speed on it and were brought on the journey of the passage of the Bill. That helped to fast-track the passage of the Bill through all Stages in both Houses. This is the right way to process legislation. A great many people were involved and everybody engaged in the process of consultation. The Company Law Review Group were very busy working on it and all Members had a full chance to be involved and took the opportunity to do so.
I am glad to be present for the debate on the Report and Final Stages of the Bill. I again thank Members for their kind comments. I hope we can work together again. We will not always agree, but that is part of the process.
I confirm that the document and report that Senator David Cullinane submitted was put on the agenda of the first management meeting I attended. We will work on it and I believe an interesting development is making progress in the south east.
When is it proposed to sit again?
Senator Colm Burke
Ar 10.30 maidin amárach.
Education (Miscellaneous Provisions) Bill 2014: Committee Stage (Resumed)
Adjournment Matters