Frequently Asked Questions - New Companies Act 2014

The Companies Act 2014 commenced on 1st June 2015.  This Act replaces the current Companies Acts 1963-2013 and only the new procedures should be followed. The Act is a consolidation of the previous legislation with some new reform elements, several of which are introduced to ease the burden on businesses.

For more FAQ's please see Information Leaflet no. 32

Conversions

Am I obliged to change the company type and convert?

No. Applies to Private Limited by Shares companies only. If, however, at the end of the transition period, conversion has not been effected, the Registrar of Companies will enforce the change and effect the deeming provision in the Act and the company will be converted to the simplified LTD model. However where a private company limited by shares (EPC) wishes to be a Designated Activity Company limited by shares, it must convert during the transition period.

Is my company automatically converted with the introduction of the new Companies Act?

No. Applies to Private Limited by Shares companies only. There is a transition period (18 months) during which the companies can alter their memorandum and articles of association to comply with the new regulations. Once the transition period ends and a company has failed to convert or make any necessary changes, the Registrar of Companies will enforce the change and convert the company to the new company type - LTD company.

Why is there a need to change company names?

Under the new Act, a company is defined in part by its name. Only companies which belong to that company type can have the description in the name and each company is obliged to have their company type description in their name. (There are exemptions available but only to Designated Activity Companies, Unlimited Companies and Companies Limited by Guarantee and such companies which meet certain requirements).

What are the different company types?

LTD - Private company limited by shares
DAC - Designated activity company limited by shares /limited by guarantee with share capital
PLC - Public limited company
CLG - Company limited by guarantee
ULC - Private unlimited company having a share capital
PUC - Public unlimited company having a share capital
PULC - Public unlimited company not having a share capital

Why is my company operating under the law applicable to DACs? Why is the company not a LTD company?

If your company is a private company limited by shares and was incorporated under the previous Companies Acts (EPC) and it does not initiate a conversion on the commencement of the new Companies Act 2014, it does not automatically become a LTD company.

An EPC instead operates under Part 16 of the Act relating to Designated Activity Companies (DAC). One of the reasons for this is that the company has a memorandum and articles of association. The memorandum of association sets out the objects by which the company can operate. Only a LTD company registered under the Companies Act 2014 or converted to a LTD company under the same Act, can operate without objects. No other company type is allowed to do this. So unless the company converts, the company is deemed to operate as a DAC for the duration of the transition period.

Do I have to change my company name during the Transition Period while under the legislation referring to DACs?

No. An EPC can do nothing if it chooses and be converted to the LTD company model at the end of the Transition Period. It doesn’t have to change its name to DAC during this conversion period. If a private limited by shares company chooses to convert by re-registering as a DAC then the name change is required.

When does the change take place?

18 months after the commencement of the new Act, companies which were incorporated under the previous Companies Acts, are automatically converted to their new company type. Please see timeframe  

What is a Designated Activity Company (DAC)?

A Designated Activity Company (DAC) is determined in Part 16 of the Companies Act 2014 and encompasses companies which have a specific object for which they are registered. A DAC is a private company either limited by shares or by guarantee. A DAC will have certain regulations in its constitution which it wishes to retain under the new Act, detailing certain objects and articles of association which are not specified in the template LTD company constitution.

A private company limited by shares incorporated under the previous acts can convert to a DAC during the transition period. The company must pass an ordinary resolution and submit this with the new constitution and form N2 before the elapse of a special 15 month transition period. Please see Information Leaflet 31 for more information on company requirements for conversion to a DAC.

Will the CRO accept Articles of Association which refer to Table A and the Companies Acts 1963 – 2013 or will the CRO require that they are updated to be consistent with the 2014 Act, even if the company is not re-registering at the time?

CRO will continue to accept amendments to a companies M&A which refer to the Companies Acts 1963-2013 in respect of existing private companies. Where a company converts or incorporates as a new company type under the Companies 2014 Act CRO would expect that they would then adhere to the relevant form of constitution as set out in the Act (for example s19 for new LTD type and a967 for new DAC type). In this same vein, where an existing private company submits an amendment to its M&A and sets this out in the format of one of the new constitutions, and it has not converted by using the appropriate procedures and prescribed Forms - the documents will be sent back and the presenter asked to resubmit in accordance with the conversion procedures (for example Form N1, Special Resolution and Constitution for new LTD type) before the G1 and amended Constitution can be processed.

New Company type - LTD Company

Can a LTD company have only one director?

If the company is a private company limited by shares (LTD company), it is allowed to have only one director, if desired, under section 128. This does not apply to EPCs which have not yet converted to LTD company type. Also it does not apply to other company types, Designated Activities Companies, PLCs, guarantee companies etc. Only after conversion to a LTD company can a company have only one director.

A company still needs to have a secretary and the secretary cannot be same person as the director, if the company has only one director. This applies to joint secretaries also. A single director company cannot have the director acting as a joint secretary.

Is there a minimum age for directors?

It should be noted that all directors must be over the age of eighteen. Section 131 applies. Body corporates cannot be a director of a company. If an individual, rather than a body corporate, is a secretary, then they must be over eighteen also.

Does a LTD company have a Memo & Arts?

A company private limited by shares (LTD) has a constitution instead of a Memo & Arts. Under the new planned Companies Act, a constitution now replaces the Memorandum and Articles of Association for a LTD company.  Companies do not state objects if they are registered as a LTD company. This Act removes the requirement to state what objects the company has been set up to do. 

What is in the constitution?

The constitution states the name of the company, the fact that the company is a private company limited by shares, any additional regulations the company may wish to specify, the share capital information and takes the form set out in Schedule 1 Most of the regulations that would previously be stated in the M&A are included in the sections of the Companies Act, removing the need for the information to be supplied in a company’s constitution. The constitution can be changed by special resolution.

There are specific dates set for the conversion process. Until a company converts to a LTD company type, an existing private company limited by shares is deemed to operate as a Designated Activity Company (DAC) throughout the transition period. One reason is that the constitution has not been amended. The current memorandum and articles of association under which the company operates is still in effect until conversion has been effected.

Does a LTD company need to hold an AGM?

A LTD company, under the new Companies Act 2014, may dispense with the requirement to hold an Annual General Meeting. A LTD company can avoid holding an AGM where all the members entitled to attend and vote at such general meeting sign, a written resolution, acknowledging receipt of the financial statements, resolve that all such matters as would have been resolved at the AGM and confirm no change in the appointment of the Auditors (if any appointed). See section 176(3). A Designated Activity Company (DAC) must hold an AGM where it has two or more members.

Externals

Can a Place of Business Registration still be made under the Companies Act 2014?

No. Place of Business registrations under the previous Companies Acts have been discontinued under the Companies Act 2014. No provision was made in the legislation for these types of registrations by foreign companies. The opportunity does exist to register as a Branch where the Place of Business is that of a foreign limited liability company and meets the branch registration criteria. There is no option to register with the CRO however where the Place of Business is that of a foreign unlimited liability company. In either scenario, these companies may however continue to exist and trade.

Annual Return and Accounts

What is meant by financial statements and accounting records?

Statutory “financial statements” replaces the term “accounts”. Such entity financial statements include a balance sheet, a profit and loss account, and other statements and notes attached to the foregoing. Companies which are not exempted are expected to file such statements with their annual return.  

What are the requirements for a company to be defined as Small or Medium?

The requirements have changed under the new Companies Act. A small company is defined by section 350 of the Companies Act 2014 and it states that a small company is one which fulfills 2 or more of the following conditions. - the amount of turnover does not exceed €8.8 million; the balance sheet total does not exceed €4.4 million and the average number of employees does not exceed 50. For a medium sized company, the turnover cannot exceed €20 million, the balance sheet total doesn’t exceed €10 Million and the average number of employees does not exceed 250.

How can I get an extension of time to file my annual return?

Under section 343 Companies Act 2014, an extension of time can be granted to file an annual return by applying to the District Court or the High Court. Please see information leaflet 39 for more information.

Mortgages

Is there any change to the procedure to register charges?

Yes, but a charge may still be registered by filing a eForm C1 within 21 days of creation of the charge. There are changes to the eForm C1. It is no longer possible to tick a box to select the charge type, instead a brief description of the charge is required. The deed of mortgage/charge is no longer required to be filed. Details of a negative pledge clause, crystallization of a floating charge are not to be included in the short particulars of the charge.

Under section 409 of the Companies Act 2014, a new two-step procedure allocating priority is also available - A eForm C1a may be completed by giving notice of the intention to create a charge. Within 21 days of receipt of a correctly completed C1a, a eForm C1b must be filed confirming completion of charge.  If eForm C1b is not submitted within this timeframe, the eForm C1a will be rejected.

All charges must be filed online. It is not possible to submit a paper copy of a eForm C1, C1a/C1b or equivalent. Please see CORE

Is there any extra time allowed to file the form?

No. Under the Act, there is no extra time to file a charge form. If the document is not received, within the 21 days as required, the form is rejected.

What is the priority order for charges?

The priority of charges created by a company will be determined by reference to the date of receipt by the Registrar of the prescribed particulars, that is to say, a charge the prescribed particulars in respect of which are received by the Registrar on a date that is earlier than that on which those in respect of another charge are received by the Registrar shall have priority over that other charge.

What if several charges are submitted on the same day for the same company and/or in respect of the same property?

Where the date of receipt by the Registrar of the prescribed particulars of the several charges is the same, priority is accorded to the charge received earliest in time on the date concerned by the Registrar.

Charge eForms C1, C1a, C1b must be completed online at CORE. Where ROS signatures are used and payment made by credit card/CRO account, the entire process can be completed straight away. The Registrar cannot guarantee priority to a particular charge. Priority is attained from the date of receipt only.

Do I have to use a form now to file a Judgment Mortgage?

Yes. Judgment Mortgages are now submitted using form C10. The form must be submitted by the creditor within 21 days of receipt from the Property Registration Authority (PRA) of notice of the registration there of a judgment mortgage. The date of receipt of the notice from the PRA is determined to be 3 days after the PRA issued the notice to the creditor.

How do I register a satisfaction of a charge?

The company would complete a form C6 for full satisfaction of a charge or C7 for partial satisfaction.  The form has changed in that a statement is made by a director and secretary of the company or by two directors regarding the satisfaction. Once this is received, a notice is issued to the charge stating that unless an objection is received to the registration within 21 days, the satisfaction will be registered. Alternatively, the form C6 or C7 can be completed by the chargee. In such cases, notification is necessary and the satisfaction is simply registered.

Is there a penalty for falsely stating that the charge has been satisfied?

If the satisfaction is submitted by the company and it is found that the persons signed the form knowing it to be false, then the officers in question are guilty of a category 2 offence. Also under section 416(6) Companies Act 2014, if the court considers that the making of the statement contributed to the company being unable to pay its debts, prevented or impeded the orderly winding up of the company or facilitated the defrauding of the creditors, may remove the limited liability as the court may specify for the debts and other liabilities of the company.

Is the Slavenburg filing still applicable under the new Act?

No. This practice is now discontinued. Under the Act, a charge created by a foreign company that has a place of business in the State, but which is not registered with the CRO as an external company which has established a branch, cannot be registered by the CRO, as the company concerned is not on the CRO register. No charges will be accepted on the Slavenburg file which has now been closed - effective 1st June 2015.

Liquidations, Receiverships and Examinerships

Do I have to be qualified to act as an examiner or liquidator?

Yes. Under the Companies Act 2014, there are certain qualifications necessary prior to a person being able to act as liquidator or examiner. There are four areas in which someone can be qualified in order to act as either liquidator or examiner. The qualification does not refer to any liquidation that was started prior to the commencement of this Act.

Is it possible to stop the liquidation and begin trading again?

A company can return to Normal status and recommence trading but only following an order of the High Court.

Have the procedures been changed in relation to filing liquidation documents with the Registrar?

Yes in relation to all three procedures, members voluntary winding up, creditors voluntary winding up and court liquidations, the documents to be filed and the periods that they must cover have been altered. Please see sections 4.1, 4.2 and 4.3 in information leaflet no.38.

How do I apply for a company to be placed in court liquidation?

A creditor can apply to the High Court to wind up a company where certain criteria are met. In a voluntary winding up, it is the company that places itself in liquidation, whether it is able to pay off all of its debts (members voluntary winding up) or where the company is insolvent (creditors voluntary winding up).

When is a company unable to pay its debts?

If a creditor is owed over €10,000 and the sum remains unpaid after three weeks, application can be made to the court for the liquidation of a company. Please see section 7, information leaflet no. 38.

Do I have to file annual returns once a company has gone into liquidation?

No. When a company commences a winding up, the company ceases to carry on its business and the powers of the directors of the company cease. Instead the appointed liquidator files his/her own set of periodic accounts. However, it is important that the liquidation documents are filed correctly with the CRO. If the resolution hasn’t been registered, the company status remains as “Normal” and the company could be subject to strike-off/prosecution procedures. So it is important to file the outstanding documents.

What if my declaration of solvency E1 is ineffective?

If ineffective, the company is deemed to be in a Creditors voluntary winding up rather than a members Voluntary Winding Up and it would necessitate application to the High Court. Therefore it is very important to file the document correctly. See section 8.3, information leaflet no. 38

Can I convert a Members liquidation into a Creditors Liquidation?

Yes. Please see section 4.1.2, information leaflet no. 38 where a company becomes insolvent and it is necessary to change the liquidation type from members to creditors.

Can foreign companies be wound up?

Yes. However only the High Court can wind up an external company. An external company cannot be placed in voluntary winding up.

Do I have to go through the liquidation process to dissolve a company?

No. Companies can also be struck off the register, whether involuntarily or voluntarily. Please see information leaflet 28 regarding the voluntary strike off process. It is not available to all companies and is not available to companies which have assets or liabilities.

Is there any change to the procedure to register receiverships?

Yes. A form E8 is still submitted to appoint a receiver to a company. There must be a registered charge or High Court order to appoint the receiver unless the receiver is a statutory receiver being appointed under the National Assets Management Agency Act 2009. A form E11 is completed to notify cessation of appointment. However on appointment there is no longer a requirement that an advertisement be placed in a daily newspaper.

Has the limit changed for remission to the Circuit Court in an Examinership?

Yes. If a company qualifies as a small company under section 350 of the Act, the examinership may be remitted to the Circuit Court.

Strike-off

Has the procedure for Voluntary Strike-off changed?

Yes. There are several changes. The procedure for voluntary strike-off has now been formalised. The company must have passed a resolution to request voluntary strike-off within the 3 months prior to the application submitted to the CRO. The company must then submit form H15 requesting strike-off and have document signed by all of the directors of the company. All of the directors must sign, there are no exceptions allowed. The form H15 itself must be accompanied by a letter from Revenue (not more than 3 months old) and an advertisement that was placed in a daily national newspaper (not more than 30 days old). All annual returns must be up-to-date prior to application.

How can I object to a strike-off of a company?

If the company is being struck off involuntarily, only the submission of the outstanding required documents can prevent the dissolution of the company.  Where a company is being struck off voluntarily, a form H16 can be submitted to object to the strike-off.  This form H16 must state the grounds for the objection to the strike-off, stating which part of the application for voluntary strike-off was in default. This objection must be lodged within the 90 day period of the strike-off procedure. The objection can be rejected by the Registrar and the strike-off can continue where the Registrar is of the opinion that there is no reasonable basis to the objection as submitted.

Can I change my mind and stop the strike-off?

Yes. The company can submit form H17 within the 90 day period. Like the objection procedure any submission received outside the 90 day period will be rejected and the strike-off will continue and the company will be dissolved.

For more FAQ's please see information leaflet no. 32

The Act provides for a four-fold categorisation of offences into Categories 1 to 4. Throughout the Act, offences are, as created, categorised as attracting a particular category of penalty. In Chapter 7 of Part 14, those penalties are set out:

  • Category 1 offence – conviction on indictment can result in a term of imprisonment of up to 10 years or a fine of up to €500,000 or both;
  • Category 1 offence - summary conviction can result in a class A fine or imprisonment for a term not exceeding 12 months or both;
  • Category 2 offence – conviction on indictment can result in a term of imprisonment of up to five years or a fine of up to €50,000 or both;
  • Category 2 offence - summary conviction can result in a class A fine or imprisonment for a term not exceeding 12 months or both;
  • Category 3 offence – a summary offence only, attracting a term of imprisonment of up to six months and a “Class A fine” (or both); and
  • Category 4 offence – also a summary offence only, punishable by the imposition of a Class A fine.

A “Class A fine” is a fine within the meaning of the Fines Act 2010 (i.e. a fine not exceeding €5,000).