From the Institute's Professional Accounting team :
Introduction
On 15 March 2024, the Irish Department of Enterprise, Trade and Employment (DETE ) published the General Scheme of Companies (Corporate Governance, Enforcement and Regulatory Provisions) Bill 2024 (“General Scheme”) to make amendments to Companies Act 2014 (CA 2014).Please click here for the press release on the General Scheme. Click here for the text of the publication and the regulatory impact analysis of the General Scheme.
Readers may recall that DETE conducted a public consultation on proposals to enhance the CA 2014 (“Consultation”) last year. The Institute responded to that consultation and you can click here to see the response.
The General Scheme is wide ranging, and we set out below some of the proposed provisions which if enacted may be of interest to members. Please also refer to the Corporate Enforcement Authority’s press release and accompanying note dated 15 March 2024 which provides detailed information on proposed enhancements to the CEA’s powers and some proposed new offences.
Electronic meetings
There are proposals to put electronic participation in meetings on a permanent statutory footing and to include provisions for notices, quorum and proceedings and virtual voting at such meetings. Readers may recall that in December 2023 these provisions which were introduced during the pandemic were temporarily extended to 31 December 2024.
Audit exemption
A change to the rules regarding the loss of audit exemption for companies which fail to file their annual return on time is proposed. It is proposed that if a small company fails to file its annual return with the Companies Registration Office for a second or subsequent time within a period of 5 consecutive years, then the company will lose its ability to claim audit exemption. The current legal position is that the exemption is lost after one failure to file. This proposal is welcomed by the Institute which has lobbied for some time for the change. The Institute recognises the importance of companies complying with legal obligations as regards the publication of financial information. However, it considers that the loss of audit exemption for two years for a late filing to be an overly punitive sanction.
Provisions relating to receivers
Some changes relating to receivers are proposed.
New provisions are proposed requiring the provision of further information on Form E8 which is filed upon the receiver’s appointment. The further information includes details of nature of assets, date and nature of appointment, information regarding future trading where practicable, and other prescribed information.
Also, it is proposed that the time limits for filing the receiver’s abstract (Form E9) upon cessation of acting as receiver and notice of cessation of receiver (Form E11) will now be 7 days.
Provisions concerning entitlement to remuneration of receivers are proposed in line with existing provisions in the CA 2014 concerning entitlement of liquidators to remuneration. Members, creditors, and prescribed persons can request information regarding receivers’ terms and fees, and requests must be dealt with within 7 days.
It is proposed to extend the existing power of the court to fix remuneration of a receiver. Matters to be taken into account for receivers under these proposals include time spent, complexity of the case, exceptional responsibility on receiver, effectiveness of receiver, value, and nature of the property. This mirrors existing provisions for remuneration for liquidators in the CA 2014.
DETE had suggested in the Consultation last year that there is merit in amending the CA 2014 to provide that receivers are subject to minimum qualifications along the lines of the qualification requirements for liquidators as set out in the CA 2014. However, there are no such proposals in the General Scheme.
Provisions relating to SCARP
The provisions relating to SCARP are largely technical amendments and corrections of the Companies (Rescue Process for Small and Micro Companies) Act 2021. Much of the amendment is also to make provision to give notifications “in prescribed form” to the Registrar of Companies and court.
An amendment to the section on the process adviser’s (PA) remuneration costs and expenses proposes that the court can ask the PA for a written report where the PA did not make use of the services of the staff and facilities of the company to which they were appointed where the court is considering any matter relating to the PA’s costs, expenses, and remuneration.
Winding up
Most of the amendments are to make provision to give notifications “in prescribed form” to the Registrar of Companies. The only proposal of note is an amendment to the section of the CA 2014 which imposes an obligation on a liquidator to apply to the Court for the restriction of a director or directors of an insolvent company. The liquidator may be relieved of this obligation by the CEA. The proposed amendment is to make explicit that the obligation on liquidators endures all the way through to the end, which includes to the end of all appeals proceedings against restriction orders.
Strike off and restoration
Three new grounds for involuntary strike off are proposed, failure to notify of a change in registered office, no current company secretary recorded and failure to deliver beneficial ownership information. There are some consequential amendments proposed on foot of the three new proposed strike off grounds. These three new proposed grounds will not give rise to disqualification of the directors and the new proposals include the steps to be taken to avert continuation of the strike off under the three new grounds.
Provisions relating to the Corporate Enforcement Authority
Changes include for example mechanisms for the CEA to receive details of restriction and disqualification orders and reliefs to restricted persons more quickly than at present.
An amendment is proposed to section 393 of the CA 2014. This section requires an auditor to notify the CEA if during the course of an audit the auditor comes into possession of information leading them to form the opinion that there are reasonable grounds to believe a category 1 or 2 offence under the CA 2014 has been committed. The amendment requires the auditor to furnish the CEA with copy books and documents or extracts (the current provisions require grant of access to books and documents) and a signed assurance from the audit partner that they are exact copies.
New offences of obstruction and intimidation are proposed.
Please see the CEA press statement issued 15 March 2024 and accompanying note for a fuller summary of the proposals of the General Scheme which relate to the CEA.
Provisions relating to IAASA
It is proposed that IAASA will have power to issue an interim notice imposing restrictions on a statutory auditor that a possible relevant contravention has been committed and that it is appropriate in the public interest to do so .Relevant contraventions could be but are not limited to failure to obtain sufficient evidence to support an issued audited opinion, repeated significant deficiencies in standards of audit work or significant breach(es) of independence or ethics rules.
IAASA will invite and consider submissions received from the restricted person and will within 21 days either confirm vary or revoke the interim notice. The restrictions remain in place until the investigation is complete. An interim notice will be reviewed every 6 months or a shorter period and automatically expires after 18 months unless a further interim notice is issued. IAASA will be required to make regulations regarding procedures to be followed under this proposal.
Other
Other miscellaneous proposals which might be of interest is a section whereby a company can provide voluntary information in its annual return on gender balance of its board of directors. The information would be collected for statistical purposes only. There are also proposals for multi located execution of documents and a proposed amendment so that weekends and public holidays are excluded from the time counted towards the minimum 48 hour notice required to appoint proxies.
This information is provided as resources and information only and nothing in these pages purports to provide professional advice or definitive legal interpretation(s) or opinion(s) on the applicable legislation or legal or other matters referred to in the pages. If the reader is in doubt on any matter in this complex area further legal or other advice must be obtained. While every reasonable care has been taken by the Institute in the preparation of these pages, we do not guarantee the accuracy or veracity of any resource, guidance, information or opinion, or the appropriateness, suitability or applicability of any practice or procedure contained therein. The Institute is not responsible for any errors or omissions or for the results obtained from the use of the resources or information contained in these pages.
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