The Companies (Amendment) Bill 2009 which has just been published proposes a number of changed requirements on the transparency of loans made to directors. The Bill also provides for additional powers for the Office of the Director of Corporate Enforcement (ODCE). The main provisions of the Bill are:
- Future loans to directors of a company which is a licensed bank will be treated in the same way as that of a non-banking company. All loans above a de minimis threshold to each individual director will have to be disclosed separately in the annual accounts as opposed to in the current aggregate format. The maximum amount outstanding during the year will also require to be disclosed.
- Various enforcement powers of the ODCE are extended. The right to access third party information relating to a company under investigation is clarified. The ODCE powers of entry and search of premises under the Companies Act 1990 are strengthened and the power to remove paper and electronic information is set out.
- The Bill proposes amendment of existing provisions of the Companies Act 1990 in regard to legal professional privilege. At present the provisions of the Act protect a person from having to disclose information which in the opinion of the Court the person would be entitled to refuse to disclose on grounds of legal professional privilege. Under the proposals in the Bill seizure of information (whether privileged or not) will be permitted on a "sealed" basis. The Bill provides that either the ODCE or any person affected may apply to Court for a determination of matters relating to privilege. An independent expert may be appointed by the Court to determine issues of legal professional privilege.
- The Bill provides for amendments to existing requirements that at least one director of a company must be resident in the State. The change proposed is that one director must be resident in a member state of the EEA. This amendment meets concerns of the European Commission that current provisions are not compatible with the EC Treaty.