On 15th March 2024, the Department of Enterprise, Trade and Employment released the General Scheme for the Companies (Corporate Governance, Enforcement and Regulatory Provisions) Bill 2024.

The Bill is comprised of 86 heads spanning over 130 pages and giving effect not just to Companies Act 2014, but also to the Industrial and Provident Act 1893, Registration of Business Names Act 1963, Criminal Justice (Surveillance) Act 2009 and Communications (Retention of Data) Act 2011. The main provisions amending the above Acts relate to:

• Corporate governance
• Company law enforcement and supervision
• Company law administration
• Corporate insolvency

In this blog, we will review the heads relating to Corporate Governance and Company law enforcement and supervision. It is imperative to note that certain details of the Bill may undergo revisions as it progresses. We urge you to consult our latest blogs on the Companies (Corporate Governance, Enforcement and Regulatory Provisions) Bill 2024 to ensure you remain abreast of the latest guidance. 

Corporate Governance

Virtual Meetings

One of the main items of the Bill was to introduce virtual meetings into Companies Act 2014 rather than a continuation of interim periods under the Companies (Miscellaneous Provisions) (Covid-19) Act 2020. Head 8-10 covers off such to enhance stakeholder experience and is not intended that the rights of shareholders or members to participate in and be heard at meetings would be eroded in any way by including safeguards such as allowing a constitution to prohibit virtual/hybrid meetings. Those participating in virtual meetings as detailed in Head 10 will be counted as the quorum. Head 12 also confirms and enhances the Companies (Miscellaneous Provisions) (Covid-19) Act by providing clarity that where a meeting is held voting by a show of hands can done where the chairperson considers it is possible to identify all the members entitled to vote and which way they vote. These benefits are also expanded to PLCs and I&PS.

Proxies

Head 11 amends Section 183 CA2014 which notes the time for delivery of a form of proxy before a general meeting of shareholders is a maximum of 48 hours before the meeting and those 48 hours include weekend hours and hours on public holidays.

The amendment now ensures that weekends and any public holidays are excluded from the time counted towards the minimum 48-hour notice required to appoint proxies. For example, a meeting to be held at 3.00 pm on a Tuesday after a bank holiday Monday, the cut-off point for proxy appointment will be 3.00 pm the previous Thursday, not 3.00 pm on Sunday per the current situation under Section 183 CA2014.

Mergers

As currently required under Companies Act 2014 where two private companies are merging a DAC must re-register to a Limited entity in order to merge, Head 27 notes this will no longer be a requirement and that either entity can be a DAC or Limited Company.

Head 28 amends Section 463(2) CA2014 where it appears to provide for only one company at a time to merge by absorption into the successor company. This amendment will ensure that a merger by absorption can be facilitated in one transaction rather than several.

Public Limited Companies

Heads 77-81 related to Public Limited Companies (PLCs), included in this is the confirmation of virtual meetings, proxies and mergers. As well as those items it allows for PLC to investigate ownership of its shares up to three years by written notice to a person that the company knows is, or has reasonable cause to believe to be, or to have been, interested in the shares of the company. There are also provisions for alternative methods to determine a special majority that is required in order to approve a scheme of arrangement.

Company law enforcement and supervision

Strike Off

Heads 54-58 rise to new grounds for involuntary strike off including;

• the company has failed to deliver a notice of change of the situation of the registered office where a Registered Office Agent (ROA) has delivered notice to the Registrar that they are no longer ROA for that entity;
• there is no current secretary of the company recorded in the office of the Registrar;
• the Registrar of Beneficial Ownership has given notice of the company’s failure to deliver the information required by paragraphs (1) or (2) of Regulation 20 of the RBO Regulations.

Included in this are new provisions for administrative restorations and high court restoration under the new grounds.

Registered Office Address

Head 66 inserts a new section 888B CA2014 where notes the Registrar may by notice in writing require to be furnished to her or him documents to verify the details of the address of a company’s registered office.

Financial Statements

Head 19 inserts a new subsection (11A) in section 343 CA2014 which provides that section 1(1)Probation of Offenders Act 1907 does not apply to an offence where a company fails to file an annual return in accordance with CA2014. Section 1(1) of the Probation of Offenders Act 1907 allows a court of summary jurisdiction to release a person on probation, without proceeding to a conviction and make an order dismissing the charge or discharging the offender conditionally, where the court thinks the charge is proved but it is inexpedient to inflict any punishment.

Corporate Enforcement Authority

The Corporate Enforcement Authority (CEA)is Ireland’s company law enforcement agency. The CEA’s functions include to:

• encourage compliance with the Companies Act 2014,
• investigate instances of suspected breaches of the Companies Act 2014,
• take appropriate enforcement action in response to identified breaches of company law,
• supervise the activities of liquidators of insolvent companies, and
• operate a regime of restriction and disqualification in respect of directors of insolvent companies.

The Bill introduces significant Amendments to the Companies Act 2014 including additional powers to the Corporate Enforcement Authority (CEA). Included but not limited to in these updates are;

• Extending the list of competent authorities to which the CEA may disclose information, books or documents;
• Extending the list of persons or bodies that the CEA may provide information to the CEA;
• Amendments to extend the time within which the CEA must apply to the court for a determination as to whether the information it has seized is privileged legal material;
• amendment of the powers available to the CEA to seek additional information from auditors following receipt of an indictable offence report under S.393 CA2014;
• where a person has been given leave to act as Director while bankrupt, Head 7 will allow for the CEA to be a notice party;
• CEA is given access to court orders relating to the restriction and disqualification of directors;
• If the CEA is not a party to an application the CEA will be notified of such applications for the purpose of seeking relief from a restriction or disqualification;
• New criminal offences relating to obstructing or intimidating while they are performing their powers or duties, of any staff member of the Corporate Enforcement Authority, to include members of An Garda Síochánaseconded to the CEA and all civil service staff of the CEA; and
• permit certain CEA officers to monitor, observe, listen to,or make recordings of persons or their movements, activities or communications in the context of company directors or staff meetings or discussing criminal activities/conspiracies at locations separate from company offices.

The next step is for the General Scheme to be drafted as a Bill at which point it will develop through the Houses of Oireachtas and through various debates until it is signed into Law by the President. With no formal date for such it is expected to be signed into law by the end of 2024 with commencement following suit.

Please note that the information provided here serves as a guide, and for a more comprehensive understanding, we recommend referring to the General Scheme directly.

Stay tuned for our next instalment as we continue to unravel the intricacies of the Companies (Corporate Governance, Enforcement, and Regulatory Provisions) Bill 2024.

The contents of this article are meant as a guide only and are not a substitute for professional advice. The author/s accept no responsibility for any action taken, or refrained from, as a result of the material contained in this document. Specific advice should be obtained before acting or refraining from acting, in connection with the matters dealt with in this article.