Summary Approval Procedure

The Summary Approval Procedure is covered in Chapter 7 of Part 4 of the Companies Act 2014. The procedure permits certain restricted activities that would otherwise be prohibited. It is a means by which companies can engage in restricted activities by ensuring that the persons those restrictions are designed to protect, consent to the action.

The restricted activities are 

  • the financial assistance for the acquisition of shares (section 82),
  • reduction in company capital (section 84), 
  • variation of company capital on re-organisations (section 91), 
  • prohibition on pre-acquisition profits or losses being treated in holding company’s financial statements as profits available for distribution (section 118),
  • prohibition of loans to directors and connected persons (section 239),
  • domestic merger (section 464), 
  • members voluntary winding up (section 579).

The Summary Approval Procedure means the procedure where a resolution (special) is passed conferring authority, passed not more than 12 months prior to the commencement of the activity and the company delivers to the Registrar a copy of the declaration as required under section 202. The company must deliver the declaration not later than 21 days after the date on which the activity is commenced. Certain of the restricted activities have extra requirements and the nature of the declaration differs according to the restricted activity being dealt with.

Civil sanction is available to a liquidator, creditor or member of a company or to the ODCE where a declaration was made without reasonable grounds for doing so under section 210 of the Companies Act 2014 and a director, who has signed the declaration may be held personally responsible without limited liability for all and any of the debts and liabilities of the company.

Not all company types may use the Summary Approval Procedure - there are restrictions on the use of procedures by Public Limited Companies. Certain Company types must pass special resolutions rather than ordinary resolutions to effect certain procedures.

Financial assistance for the acquisition of Shares
Section 82 Companies Act 2014. It is not lawful for a company to give any financial assistance for the purchase of shares in the company or in the company’s holding company (if applicable). The prohibition applies whether the assistance is given directly or indirectly or is by means of a loan or guarantee, the provision of security or otherwise (previously section 31 of the Companies Act 1990).

There are exceptions and section 82(5) allows the financial assistance where the company’s principal purpose in giving the assistance is not for the purpose of the acquisition or where it is incidental in relation to some larger purpose and the assistance is given in good faith. Section 82(6) lists the exceptions to the prohibition which include:

  • the giving of financial assistance in accordance with the Summary Approval Procedure
  • for dividends or distribution out of profits 
  • for discharge of lawfully incurred liabilities 
  • lending money as part of ordinary business
  • employee share schemes
  • refinancing 
  • representations, warranties and indemnities 
  • fees, commissions and expenses.

It is a category 2 offence for contravention of section 82.

The Summary Approval Procedure is set out in section 202 and 203 of the Companies Act 2014 notice of the meeting has enclosed a copy of the declaration and other documents where required.

A copy of the declaration must be attached to the notice of the meeting not earlier than 30 days before the date of the meeting to pass the special resolution or if the resolution is being passed in writing not earlier than 30 days before the signature of the last person to sign. The declaration is completed by the directors or a majority of the directors, in relation to a transaction under section 82 or 239 (prohibition of loans to directors, connected persons) and the declaration must state

  • the circumstances in which the transaction or arrangement is to be entered into;
  • the nature of the transaction or arrangement; 
  • the person or persons to or for whom the transaction or arrangement is to be made;
  • the purpose for which the company is entering into the arrangement or transaction; 
  • the nature of the benefit which will accrue to the company directly or indirectly from entering into the transaction or arrangement; and
  • the declarants have made a full inquiry into the affairs of the company and that, having done so, they have formed the opinion that the company, having entered into the transaction or arrangement, will be able to pay or discharge its debts and other liabilities in full as they fall due within a 12 month period from the date of entering into the transaction or arrangement.

The declaration must be submitted to the Registrar of Companies within 21 days after the date on which the carrying on the restricted activity concerned is commenced.

If the declaration is not submitted within the time limit, the failure to do so invalidates the carrying on of the activity. Under section 203(4) Companies Act 2014, the High Court has the power to validate the Summary Approval Procedure which was done incorrectly.

Reduction in Company Capital or variation of Company Capital on Re-organisation
Section 84 of the Companies Act 2014 replaces section 72 of the Companies Act 1963 and allows a company to reduce its capital without the need for court intervention as it provides a secondary method to be used under the Summary Approval Procedure.

Section 84 of the Companies Act 2014 allows for a company, unless a company’s constitution prohibits, to reduce its capital in any way and therefore:

  • it may extinguish or reduce the liability on any of it shares in respect of share capital not paid up;
  • it may either with or without extinguishing or reducing liability on any of its shares, cancel any paid up company capital which is lost or unrepresented by available assets; or 
  • it may either with or without extinguishing or reducing liability on any of its shares, pay off any paid up company capital which is in excess of the wants of the company.

Company capital, under section 64 of the Companies Act 2014, refers to the aggregate value, expressed as a currency amount, of the consideration received by the company in respect of the allotment of shares of the company and that part of the company’s undenominated capital constituted by the transfer of sums referred to in sections 106(4) and 108(3).

Section 91(1) is a new provision which enables a company to vary its capital on re-organisation. A company can enter into a transaction to dispose of assets, undertakings or liabilities or a combination to another body corporate in return for shares or securities being allotted to the members of the company as consideration (or to its holding company).

The Summary Approval Procedure is set out in sections 202 and 204 of the Companies Act 2014 notice of the meeting has enclosed a copy of the declaration and other documents where required.

A copy of the declaration must be attached to the notice of the meeting not earlier than 30 days before the date of the meeting to pass the special resolution or if the resolution is being passed in writing not earlier than 30 days before the signature of the last person to sign. The declaration is completed by the directors or a majority of the directors, in relation to a transaction under section 84 or 91. The declaration must state:

  • the circumstances in which the transaction or arrangement is to be entered into;
  • the nature of the transaction or arrangement; 
  • the person or persons to or for whom the transaction or arrangement is to be made; 
  • the total amount of the company’s assets and liabilities as at the latest practicable date before the date of making of the declaration and in any event at a date not more than 3 months before the date of that making;
  • the anticipated total amount of the company’s assets and liabilities immediately after the restricted activity having taken place;
  • that the declarants have made a full inquiry into the affairs of the company and that, having done so, they have formed the opinion that the company is able to pay or discharge its debts and other liabilities in full during the 12 month period following the restricted activity; (being the debts and liabilities identified for the purposes of the total amount of the company’s assets and liabilities and so far as not already paid or discharged) and
  • that the declarants do not have actual or constructive notice that the company will incur any material, extraordinary, future liability within the period of 12 months after the date of the making of the declaration.

The declaration must be submitted to the Registrar of Companies within 21 days after the date on which the carrying on the restricted activity concerned is commenced. The declaration has no effect unless accompanied by a report. The report forms part of the document and must include a statement by a person who is qualified to be appointed, or continue to be, the statutory auditor of the company. The statement must be as to whether, in the opinion of that person, the declaration is not unreasonable.

If the declaration is not submitted within the time limit, the failure to do so invalidates the carrying on of the activity. Under section 204(2) Companies Act 2014, the High Court has the power to validate the Summary Approval Procedure which was completed incorrectly.

Application to the Court
The other method for the reduction of the share capital is by an application to the High Court for confirming order. The company must cause notice of the passing of the resolution to be advertised at least once in 2 daily newspapers circulating in the district where the registered office or principal place of business is situated and all creditors, resident outside the State, must be informed by ordinary post.

Creditors have the right to object where they can credibly demonstrate that the reduction would put the satisfaction of their debt at risk. The court order must be sent to the CRO for registration thereafter.

Unlimited Companies
Private and Public Unlimited Companies may reduce their company capital using section 1252 Companies Act 2014. A special resolution must be passed.

Members Voluntary Winding Up

The Summary Approval Procedure (SAP) is used in relation to the members liquidation of a company under section 207.

Form E1 is used as the declaration of solvency. The other option for the drafting of the declaration is under section 580 of the Companies Act 2014 but this section only refers to companies which have a Fixed Duration set in its constitution for the company to exist. 99% of companies will complete the declaration under section 207 and the SAP. In either case, a statement by the independent person (person who is or is qualified to be the auditor of the company) that the declaration of solvency is not unreasonable is required.

Report of the Independent Person (Summary Approval Procedure)

The independent person is the auditor of the company or someone who is qualified to be the auditor of the company. A declaration pursuant to section 204/205/207 of the Act of 2014 shall have no effect for the purposes of the Act of 2014 unless it is:
(i) accompanied by a report that contains, at least, relevant information in accordance with the headings set out below, and
(ii) drawn up by a person who is qualified at the time of making the report to be appointed, or continue to be, the statutory auditor of the company.

The report shall be addressed to the declarant company and shall contain, at least, the following information:
I. Introductory paragraph identifying the directors’ declaration and accompanying documents to which the report relates;
II. Statement on the responsibilities of directors;
III. Statement on the responsibilities of statutory auditor;
IV. Scope of work performed by statutory auditor;
V. Other relevant facts (if any) that the statutory auditor has relied on in reaching his/her opinion that the declaration is not unreasonable;
VI. The opinion of the statutory auditor that the declaration pursuant to section 204/205/207 is not unreasonable; and
VII. Date and signature of statutory auditor, who having compiled the report, has formed the opinion that the declaration pursuant to section 204/205/207 is not unreasonable.