In this section we explain
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). The Private Limited by Shares company (LTD company - registered under Part 2 Companies Act 2014) can have one director if it chooses. (It must have a separate secretary though where the company is a single director company).
All company directors and secretaries (where applicable) must be over the age of 18 years. Section 131 Companies Act 2014.
An undischarged bankrupt cannot be an officer of a company. Section 132 of the Companies Act 2014 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/she shall be guilty of an offence, which is prosecutable summarily by ODCE (Category 2 offence). Undischarged bankrupt means a person who is declared bankrupt by a court of competent jurisdiction within the State or elsewhere, who has not obtained a certificate of discharge or its equivalent in the relevant jurisdiction.
Note on completing form A1:
Where an applicant is stating their list of other directorships, they should state the company name and number of other bodies corporate, whether incorporated in the State or elsewhere, of which the person is or has been director. Exceptions to this rule are made for bodies (a) of which the person has not been a director at any time during the past 5 years; (b) which is held or was held by a director in bodies corporate of which the company is (or was) the wholly owned subsidiary or which are or were the wholly owned subsidiaries either of the company or of another body corporate of which the company is or was the wholly owned subsidiary.
Pursuant to s142 Companies Act 2014, a person shall not at a particular time be a director of more than 25 companies. However, under s142(3) of the Act, certain directorships are not reckoned for the purposes of s142(1). For further information, see CRO Information Leaflet No.1.
The European Economic Area (EEA)
The EEA consists of the member states of the EU, (Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden), plus Iceland, Liechtenstein and Norway.
*(The UK will be in a transition period after leaving the European Union. This transition period is due to last until 31st December 2020. If thereafter there is no agreement in place, companies which have only UK resident directors will be required to comply with section 137 Companies Act 2014. This is the requirement to have an EEA-resident director).
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. A single-director company (LTD company type only) must have a separate secretary. 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.
A company secretary must be over the age of 18 years under section 131 Companies Act 2014.
The directors of a company shall have a duty to ensure that the person appointed as secretary has the skills or resources necessary to discharge his or her statutory and other duties. Under section 1112 Companies Act 2014, there are qualifications to act as a secretary of a Public Limited Company.
The directors of a PLC shall have a duty to ensure that the person appointed as secretary has the skills or resources necessary to discharge his or her statutory and other duties and that the person complies with one, or more than one, of the following 3 conditions.
Those conditions are—
(a) the person, for at least 3 years of the 5 years immediately preceding his or her appointment as secretary, held the office of secretary of a company;
(b) the person is a member of a body for the time being recognised by the Minister;
(c) the person is a person who, by virtue of his or her—
(i) holding or having held any other position; or
(ii) his or her being a member of any other body;
appears to the directors of the PLC to be capable of discharging the duties.
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 137 Companies Act 2014. Pursuant to section 141 Companies Act 2014, a person is resident in the State at a particular time (the relevant time) if - he or she is present in the State at -
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 any time during the day.
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 €25,000 and which provides that in the event of a failure by the company to pay the whole or part of -
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 bank, building society, insurance company or credit institution.
(The UK will be in a transition period after leaving the European Union. This transition period is due to last until 31st December 2020. If thereafter there is no agreement in place, companies which have only UK resident directors will be required to comply with section 137 Companies Act 2014. This is the requirement to have an EEA-resident director).
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 137 bonds (required where company has no EEA resident director) and new companies
Effective date of bond
A period of two years is prescribed 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:
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:
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
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:
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 142 Companies Act 2014, the director or the company may deliver to the registrar Form B68 for his/her consideration.
Table to section 142 Companies Act 2014.
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 842 Companies Act 2014. The period of that deemed disqualification is the period then remaining unexpired of the foreign disqualification.
The residential address of a company director can also be omitted but only in limited circumstances. It does not apply to an address already supplied to the CRO.
A single director company cannot satisfy certain requirements of the Companies Act by the signature of the sole director in a dual capacity as both director and secretary. Section 134 Companies Act 2014 prohibits this.
Section 134 of the 2014 Act provides
“A provision of—
(a) this Act;
(b) an instrument under it; or
(c) a company’s constitution,
requiring or authorising a thing to be done by or to a director and the secretary shall not be satisfied by its being done by or to the same person acting both as director and as, or in place of, the secretary”. (Emphasis added)
The Companies Act 2014 introduced the concept of single director companies. (Private limited by shares companies registered under Part 2 of the Companies Act 2014 can be single director companies (LTD companies). These companies are still required to have a separate company secretary. The company secretary must be someone other than the existing sole director. If the sole director appoints a separate company to act as its secretary, the sole director in question might also be a director of that secretarial company. However, he/she cannot sign documents for the first company as secretary where a document requires the signatures of both the director and secretary i.e. a person cannot sign both as director and as, or in place of, the secretary on the same form. Please note, that section 134 of the Companies Act which provides this rule also applies to companies with two or more directors. Companies have the capacity to appoint a registered person under section 39 Companies Act 2014 to act on behalf of the company (form B46).
Notable forms which require the signatures of both the director and the secretary include:
Form A1 – the company incorporation document and
Form B1 – the annual return.
Two different people have to sign off on the forms. Equally and as already pointed out above, this would apply to companies with two directors signing off on the form B1. The one individual as director cannot sign the same form as both secretary and director. The second director is required to sign as well.
If a form A1 or B1 is received (or any other prescribed form that requires the signatures of both a director and the secretary for certification) and the same individual signs as both director and secretary, this form will be rejected and returned to the presenter.
Copyright 2022 Public Office Address: Companies Registration Office, Bloom House, Gloucester Place Lower, Dublin 1. Phone: +(353 1) 8045200
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