from the Institute’s Professional Accounting team on the signing and part commencement of the Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act, 2024 (2024 Act )
Introduction
The 2024 Act was signed into law on 12 November 2024. It makes changes to the Companies Act, 2014 (CA 2014). On behalf of its members, the Institute responded in 2023 to a Department of Enterprise, Trade and Employment (DETE ) consultation on proposals to enhance the Companies Act 2014 which informed much of the provisions of the 2024 Act.
Below we set out some of the new provisions which may be of interest to our members. Readers might note that there are other new provisions in the 2024 Act which are not outlined here.
The Companies (Corporate Governance, Enforcement and Regulatory Provisions) Act 2024 (Commencement) Order 2024 (SI 639/2024) commenced certain of the provisions from 3 December 2024. A DETE December 2024 press release clarifies that the provisions not commencing on 3 December 2024 are those that require technical updates to be made to the Companies Registration Office (CRO)’s computer systems to facilitate the changes proposed. These provisions relate to CRO prescribed forms and the removal of the automatic loss of audit exemption for small companies on a first occasion of failure to file an annual return. DETE intends to commence these provisions in 2025.
Audit exemption (not yet commenced)
Once commenced, one of the most significant changes for our members is to the rules regarding loss of audit exemption. This provision will replace the automatic loss of the audit exemption for a first late filing with the CRO with a graduated regime where a company may file late once in a five-year period without the loss of audit exemption. The Institute is particularly delighted to see this provision as it is an area on which we have made numerous representations to the CRO and the DETE on behalf of members over the last number of years. Readers should note that the change does not extend to small group situations, and while there are some exemptions it is still generally the case that if one member of a small group fails to file its annual return on time, none of the small group companies is entitled to the audit exemption for the following two financial years.
Registered office agent /electronic filing agent (not yet commenced)
There will be changes in relation to a company’s registered office agent and electronic filing agents. These include the application to the Registrar of Companies (“Registrar “) in the prescribed form for approval to act as an electronic filing agent (EFA) and a registered office agent. Prior to the 2024 Act, application was made to the Registrar using an administrative form.
Trust and Company Service Providers (TCSPs) will only be approved as a registered office agent or an EFA where they have a TCSP authorisation under the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010. Approval to act as an EFA or registered office agent will be withdrawn where a company ceases to hold a TCSP authorisation.
Evidence of situation of registered office (commenced)
The 2024 Act includes a new section to provide that the Registrar may require evidence to verify a company’s registered office address when a company is applying to register its constitution or submitting a change of registered office address. Where the Registrar has made such a request, the Registrar will not register the documents unless such evidence is provided.
Receivers (not all provisions commenced)
The 2024 Act makes some changes in relation to receivers. Extension of the existing power of the court to fix remuneration of a receiver has been commenced. Matters to be considered for receivers under these new provisions 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.
Provisions have also been commenced concerning entitlement to remuneration of receivers by way of a relevant percentage, by reference to time spent or otherwise by reference to any method or thing. These new provisions are in line with existing provisions in the CA 2014 concerning entitlement of liquidators to remuneration.
Further information will be required 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 (not yet commenced).
Members, creditors, and prescribed persons can request information regarding receivers’ terms and fees, and requests must be dealt with within 7 days. (not yet commenced).
Also, 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. (not yet commenced).
SCARP (not all provisions commenced)
The technical changes to SCARP legislation have largely been commenced from 3 Dec. The ones which have not yet been commenced mainly relate to provisions for notices in ” prescribed form “. The SCARP provision has been commenced whereby the court can ask the process advisor (PA) for a written report stating the reasons for not doing so 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.
Strike off and restoration (commenced)
Provisions for 3 new grounds for strike off have been commenced (sections 58-64) (failure to notify of a change in registered office, no current company secretary recorded and failure to deliver beneficial ownership information). Readers may be interested to note that these three new grounds will not give rise to disqualification of the directors and the new provisions include the steps to be taken to avert continuation of the strike off under the three new grounds.
IAASA (commenced)
Provisions have been commenced giving IAASA power to issue an interim direction 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.
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.
Corporate Enforcement Authority (CEA) - Enhanced powers (commenced)
The following provisions have been commenced: -
-Under the 2014 Act, auditors must notify the CEA when they form the opinion that certain offences have been committed. New provisions oblige the auditors, if requested by the CEA, to furnish the CEA with copies of documents and to certify them as true copies or extracts;
-Provisions allowing for the CEA to share otherwise confidential information with additional statutory bodies such as the Data Protection Commission and the Charities Regulatory Authority;
-Provisions whereby it is a category 2 offence for a person to obstruct or interfere with an officer of the CEA . For a category 2 offence , on summary conviction, punishment is a class A fine which is a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or both, or on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 5 years or both;
-Greater information gathering powers (including access to certain court orders and mandatory notification requirement in certain instances).
Electronic meetings (commenced)
Electronic participation in general meetings has been put on a permanent statutory footing and there are now 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. Note that the new provisions do not apply to creditors meetings or meetings to consider schemes of arrangements.
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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