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A Force to be Reckoned with – Irelands New Corporate Enforcement Authority

Introduction

The Companies (Corporate Enforcement Authority) Act 2021 (the “Enforcement Act”) which came into effect from 6 July 2022, has brought about significant changes to the way Irish company law is enforced and investigated. As a result of the commencement, the Companies Act 2014 (the ‘‘Companies Act’’) has been amended, the Enforcement Act has notably dissolved the Office of the Director of Corporate Enforcement (“ODCE”) and established the Corporate Enforcement Authority (“CEA”) as an independent statutory agency.

The Mission

The mission of the CEA is to promote and serve the public interest by ensuring high levels of compliance with company law through effective advocacy and proportionate, robust, and dissuasive enforcement. The CEA, as a statutory independent agency, will investigate and pursue breaches of company law. Strong commitments have been made to resource and finance the CEA more heavily than its predecessor, the ODCE.

Significant Amendments to the Companies Act by the Enforcement Act

  1. Filing Requirements: Under the Enforcement Act, a director will be required to provide the Companies Registration Office (the “CRO”) with their PPSN (or equivalent) when filing certain documents, to include;

(a) an application to incorporate a company – A1 Application;

(b) an annual return filing – B1 Application; and

(c) a notice of change of directors or secretaries – B10 Application.

  1. Share Transfers: Under the Enforcement Act, directors of a PLC can now decline to register the transfer of shares in certain circumstances, including (i) where they do not approve of the transferee, (ii) they are of the opinion that the transfer would imperil or prejudicially affect the status of the company, (iii) or the transfer may have tax implications for the company or its members.
  1. Treasury Shares: The definition of treasury shares has been expanded under the Enforcement Act to include shares acquired by a company pursuant to a merger or division. This will clarify post-merger treatment of such shares from both a legal and accounting perspective.
  1. Unlimited Company: The acquisition by an unlimited company of its own shares will not require the use of distributable reserves going forward.

 

Conclusion

The roles and authority held by the ODCE under the Companies Act are broadly mirrored by the Enforcement Act for the CEA. Inclusive of ensuring compliance with the Companies Act, investigating breaches of the Companies Act, initiating prosecution for summary offences under the Companies Act, and performing specific oversight functions in relation to liquidators and receivers.

Several state bodies have the authority to provide the CEA with information that the body may acquire regarding the commission of an offence under the Companies Act, as well as any information that may assist the CEA in an investigation under the Companies Act. The bodies include – An Garda Síochána, the Revenue Commissioners, the Insolvency Service of Ireland, the Irish Takeover Panel, and the Registrar of Companies.

The establishment of the CEA is a significant change to the Irish company law landscape, and greatly bolsters the CEA’s capacity to investigate and prosecute breaches of company law.

  

Should you require any assistance in this area please contact Brendan Ringrose in our Corporate Team, email at brendan.ringrose@whitneymoore.ie

About Brendan

Brendan represents international companies both publicly listed and privately owned in the mining and oil and gas sectors. Brendan has extensive experience in advising early-stage and established players, together with investors, on shareholders’ agreements and corporate governance, share options, fundraisings, venture capital, corporate finance and mergers and acquisitions.