The Companies Act 2014 (the “Act”) came into effect on 1 June 2015 (the “Commencement Date”). The Act consolidates the previous Irish Companies Acts and many of the related statutory instruments into a single statute and introduces significant reforms to Irish company law. Although some provisions of the Act relating to accounting and related compliance obligations will not apply to a company until its first financial year beginning on or after 1 June 2015, all other provisions were effective from the Commencement Date. Some of the more useful changes are set out in brief below.
- There is a new simplified form of private company limited by shares (known as the “LTD”). The LTD can have a single director (and secretary) and no objects clause so that it has full unlimited capacity to carry on any legal business, subject to any restrictions in other legislation. There is also a second new form of company provided for in the Act called a designated activity company (known as the “DAC”) which retains many of the characteristics of the private company limited by shares, such as an objects clause and the requirement to have at least two directors.
- All company types can now have a single member.
- Where a company (necessarily other than an LTD) retains an objects clause, a third party dealing with the company should not be prejudiced if the company exceeds its capacity.
- A multi-member LTD can dispense with holding an AGM and, provided any other company type under the Act retains its single member status, then it too can dispense with holding an AGM. Where the Act provides that any thing has to be done at the AGM then that requirement can be satisfied if it is dealt with in the resolution dispensing with the AGM.
- No longer must AGMs or EGMs be held in the State and now all general meetings, including AGMs, may be held inside or outside the State.
- A director or company secretary may, in the interests of personal safety or security, apply for an exemption from having his or her usual residential address appear on the public records of the Companies Registration Office (“CRO”). It has been indicated that the exemption will be extended to the company’s public registers. This exemption is currently limited to incoming directors and new addresses because the CRO does not currently propose to redact previously disclosed residential addresses.
- The Act eases the directors’ duty of disclosure so that the disclosure obligation now applies only to contracts that a director could actually influence. Under the Act, this duty to disclose does not apply to an interest that is reasonably considered as not giving rise to a conflict of interest.
- Although the starting point remains that a director must disclose every interest that he or she has in shares or debentures of the company or any associated company, the director need not make the disclosure if the interest does not represent more than 1% in nominal value of the company’s issued share capital (under previous Irish Companies Acts, the threshold was 3%) and the Act extends this exemption to share options.
- The introduction of a procedure to pass majority written shareholders resolutions. Majority written resolutions are available to companies (other than public limited companies (PLCs), companies limited by guarantee (CLGs) and unlimited companies (UCs)) but the constitution of a DAC can disapply the same. Under the Act, a resolution in writing can be passed as an ordinary resolution if it is described as such and, is signed by the members(s) representing more than 50% of the total voting rights of members. A similar procedure applies for special resolutions if the resolution is described as such and is signed by the member(s) holding more than 75% of the relevant voting rights. There is, however, a delay before the coming into effect of the majority written resolutions of 7 days for ordinary resolutions and 21 days for special resolutions.
- Directors’ written resolutions can consist of several documents in like form (there had been some questions about this under previous Irish Companies Acts if it was not expressly included in the company’s articles of association). If, for a reason of law, the director is not entitled to vote on a resolution, the directors’ written resolution will still be valid if it is signed by all of the directors who are entitled to vote.
Practice and Procedure
- The Act introduces the Summary Approval Procedure (streamlining and simplifying the requirements of the old “whitewash” procedure used for financial assistance). This Summary Approval Procedure (or “SAP”) allows the approval of 7 “restricted activities” so that procedures such as reduction of capital need not now involve an application to the High Court. The directors declaration of solvency required in the SAP need not be a statutory declaration.
- The SAP in relation to directors’ loans can now also be used in relation to the provision of loans, quasi loans and credit transactions to directors and connected persons (whereas the previous whitewash procedure could only be used to approve guarantees and security in connection with such transactions). The SAP required for the provision of such loans etc, no longer requires an independent person’s report on the directors declaration.
- On registration of security interests, the Act retains the one-stage registration procedure with the CRO but also introduces a new two-stage procedure which allows a filing of the intention to create a charge which thereby creates a priority (the second stage filing must occur within the traditional 21-day period).
- Changes in the Act to the law on share premiums and transfers at book value to facilitate company reorganisations in particular and, the ability of a group to move assets at book, rather than market, value.
- In relation to directors, restriction and disqualification undertakings can be sought by Office of the Director of Corporate Enforcement (in lieu of need for court action).
- Powers of Attorney no longer need to be under seal.
- The “in connection test “ has been removed from the prohibition of the giving by a company of financial assistance for the purpose of an acquisition of shares in the company or in its holding company and there is now a primary purpose test.
Accounts and Auditing
- It is easier for companies to qualify for the audit exemption. It is now necessary to satisfy just two of the following three conditions: (i) the turnover of the company does not exceed €8.8m; (ii) the balance sheet total of the company does not exceed €4.4m; (iii) the average number of employees does not exceed 50. In addition, the conditions now only need to be satisfied for the financial year for which the company is seeking the exemption.
- There is a new special audit exemption for dormant companies that provides for an audit exemption for companies that have no significant accounting transactions in respect of the relevant financial year and whose assets and liabilities comprise only permitted assets and liabilities (which are investments in shares of, and amounts due to or from, other group undertakings).
- The Act allows for the voluntary revision of defective financial statements which was not previously allowed. The directors may revise financial statements already laid before a general meeting of the company or already filed with the CRO upon becoming aware of a deficiency or error in such financial statements or in a directors report.
- For UCs, the Act has disapplied statutory distribution rules and although non- filing of accounts structures are currently unaffected by the Act, this will change in coming months.
- The Act introduces procedures for the merger and division (within Ireland) of companies of most varieties. At least one of the merging companies must be a private company limited by shares. Under previous Irish Companies Acts, mergers and divisions of domestic companies had been restricted to PLCs and, for private companies limited by shares, to a cross-border merger. There are three types of domestic merger namely merger by acquisition, merger by absorption and merger by formation of a new company. Approval of the merger can be achieved either with or without an order from the High Court with the Summary Approval Procedure being the alternative (provided there is unanimous shareholder approval).
- The processes for voluntary wind-ups of solvent companies and strike-off are simplified under the Act.
- Re-registration of companies as other company types has been made much more straight-forward under the Act.
- Only foreign limited companies need to register a branch. The concept of “place of business” under previous Irish Companies Acts has been abolished.