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Company Officers

In this section we explain

• the minimum number of company officers a company must have;
• the requirement that at least one director be resident in a member State of the EEA; 
• the maximum number of directorships a director may hold at a particular time;
• the procedures that apply where a director/secretary is disqualified in another jurisdiction.

Company officers

All company types must have one secretary and a minimum of two directors. One of the directors is required to be resident in a member state of the European Economic Area (EEA). 

Undischarged Bankrupt

An undischarged bankrupt cannot be an officer of a company. Section 183 of the Companies Act 1963  provides that if any person, being an undischarged bankrupt acts as an officer or directly or indirectly takes part or is concerned in the promotion, formation or management of any company except with the leave of the High Court, he shall be guilty of an offence, which is prosecutable summarily by ODCE. Undischarged bankrupt means a person who is declared bankrupt by a court within the State or , who has not obtained a certificate of discharge or its equivalent in the relevant jurisdiction.

The European Economic Area (EEA)

The EEA consists of the 27 member states of the EU, (Austria,  Belgium, Bulgaria, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden, United Kingdom, Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, Slovenia and Romania), plus Iceland, Liechtenstein and Norway. 

The Secretary

The secretary may be one of the directors of the company. A body corporate may act as secretary to another company, but not to itself. All company officers have wide responsibilities in law. The key requirements of a company secretary and director are contained in Information Leaflet No. 16, The Company Secretary and Information Leaflet No. 2, Six things that every company director should know about company registration. Company directors should also familiarise themselves with ODCE's Information Book 2, Company Directors.

Irish resident director

Subject to one exception (see below), at least one of the directors for the time being of a company which is being incorporated is required to be resident in a member State of the EEA.

Definition of residency in Ireland, where such residence is being relied upon as satisfying the EEA-residency requirement pursuant to section 43. - Pursuant to section 44(8) Companies (Amendment)(No.2) Act 1999, a person is resident in the State at a particular time (the relevant time) if - he or she is present in the State at -

• any one time or several times in the period of 12 months preceding the relevant time (the immediate 12 month period) for a period in the aggregate amounting to 183 days or more, or
• any one time or several times - 

1. *in the immediate 12 month period, and
2. *the period of 12 months preceding the immediate 12 month period (the previous 12 month period),

for a period (being a period comprising in the aggregate the number of days on which the person is present in the State in the immediate 12 month period and the number of days on which the person is present in the state in the previous 12 month period) in the aggregate amounting to 280 days or more, or that time is in a year of assessment (within the meaning of the Taxes Consolidation Act 1997), in respect of which the person has made an election under section 819(3) of that Act.

For the purposes of subsections (8) and (9) -references in this section to a persons being present in the State are references to the persons being personally present in the State, and a person shall be deemed to be present in the State for a day if the person is present in the State at the end of the day.

Exemption from the requirement to have an EEA-resident director

The requirement to have at least one resident director from a member State does not apply to any company which for the time being holds a bond, in the prescribed form, in force to the value of €25,394.76 and which provides that in the event of a failure by the company to pay the whole or part of -

• a fine imposed on the company in respect of an offence under the Companies Acts, 1963-2009, committed by it, being an offence which is prosecutable by the Registrar of Companies and
• a fine imposed on the company in respect of an offence under section 1078 of the Taxes Consolidation Act 1997 and
• a penalty which it has been held liable to pay under section 1071 or 1073 of the Taxes Consolidation Act 1997,

there shall become payable under the bond a sum of money for the purpose of same being applied in discharge of the whole or part of the company's liability in respect of any such fine or penalty.

The bond must have a minimum period of validity of two years, commencing no earlier than the occurrence of the event giving rise to the requirement for the bond. The surety under the bond must be a member of a class specified in Schedule 2 to the Companies (Amendment)(No.2) Act 1999 Bonding Order 2000 - that is, a bank, building society, insurance company or credit institution.

If, following incorporation, a company applies for and is granted a certificate from the registrar of companies that the company has a real and continuous link with one or more economic activities that are in carried on in the State, that company will be exempted from the requirement to have at least one EEA resident director from the date of the certificate, as long as the certificate remains in force. Application for this certificate is made on Form B67, and must be accompanied by a statement from the Revenue Commissioners made within two months of the date of the application by a statement that the Revenue Commissioners have reasonable grounds to believe that the company has such a link.

Application for this certificate is made on Form B67, and must be accompanied by a statement from the Revenue Commissioners that the company has a real and continuous link with one or more economic activities being carried on in the State.  This statement must be within two months of the date of the application.

Link to Forms page

CRO practice note on section 43 bonds (required where company has no EEA resident director) and new companies

• Presenters are requested to clearly identify applications for incorporation that are accompanied by bonds.
• The prescribed execution requirements (i.e. under the Common Seal of the Surety) must be adhered to.
• The original bond, together with a certified copy of same, should be submitted to the CRO, with the Form A1.

Effective date of bond

A period of two years is prescribed by the Companies (Amendment)(No. 2) Act 1999 (Bonding) Order 2000 as the minimum period to be specified as being the period of validity of the bond, which period is to commence not earlier than the occurrence of the event which gave rise to the requirement to effect a bond. Furthermore, for new companies, the bond must be effective as at the date of incorporation.

With regard to new companies, the event which gives rise to the requirement to effect a bond is the incorporation of a company without a resident director. However, there is also a statutory requirement that the bond be furnished to the CRO pre-incorporation, with the Form A1.

It should be noted that paragraph 5 of the bond enables the parties to stipulate the commencement date of the bond. This is not required to correspond with the date on which the parties execute the bond, and so the parties have a degree of flexibility.

The CRO has implemented the following requirements in relation to the effective date of bonds received in connection with new companies:

The effective date of the bond may not exceed four working days prior to the date of the company's incorporation, exclusive of incorporation date.

As customers are aware, service standards apply to all incorporation schemes. These are:

*Fé Phrainn: incorporation within ten working days of receipt of documents by the CRO
*Online A1: incorporation within five working days
*Ordinary: while there is no guaranteed service level, in practice it currently takes 15 working days.

In calculating the date from which the bond is to take effect, therefore, applicants ought to take account of the incorporation scheme which they are utilising and the relevant customer service standard.

The following effective dates will apply in practice:

*Fé Phrainn: the bond ought to take effect as and from the fifth working day after the date of receipt of Form A1 by the CRO.
*Online A1: the bond ought to take effect as and from the date of receipt of Form A1.
*Ordinary Scheme: the bond ought to take effect as and from the tenth working day after the date of receipt of Form A1.

In the event that an application for incorporation accompanied by a bond is returned by the CRO to the presenter for amendment, a new bond with an adjusted effective date in line with the above will be required, unless the revised application is resubmitted to the CRO within five working days.

For further information see Information Leaflet No.17, The Requirement to have an EEA-Resident Director.

Link to Information Leaflets

Number of Irish directorships

A person shall not at particular time be a director of more than 25 companies. Certain companies, however, are not reckoned for the purpose of calculating the number of companies of which a person is director. The following categories of company are not reckoned in the assessment of a person's number of directorships:

• a public limited company;
• a public company (within the meaning of the Companies (Amendment) Act 1983);
• a company in respect of which a certificate under section 44(2) Companies (Amendment)(No.2) Act 1999 is in force.

Where a person is director of two or more companies, one of which is the holding company of the other(s), these are counted as one company.

In addition, where the company is a company falling within one or more categories of company specified in the table to section 45 Companies (Amendment)(No.2) Act 1999, the director or the company may deliver to the registrar Form B68 for his/her consideration.

Director disqualified in another jurisdiction

If a person who is being appointed director of a company is a person who is currently disqualified under the law of another state (whether pursuant to an order of a judge or a tribunal or otherwise) from being appointed or acting as a director or secretary of a body corporate or undertaking, that person is required by law to ensure that Form A1 is accompanied by a duly completed Form B74.

Link to Forms page

If there is a failure to file Form B74 where a person being appointed director on the Form A1 is disqualified abroad, or if the Form B74 is false or misleading in a material respect, that person is deemed to be subject to a disqualification order pursuant to section 160(1A) of the Companies Act 1990 (inserted by section 42 Company Law Enforcement Act 2001). The period of that deemed disqualification is the period then remaining unexpired of the foreign disqualification.

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