For readers who did not secure a place on the Corporate Enforcement Authority’s (CEA) inaugural conference of 19 October 2023 ,the CEA has now made available the content of most of the papers delivered at the conference and readers can access the papers on the CEA’s website under the “Events “  button .The following is a list and some details of what is contained in the papers. “Opening Remarks” Ian Drennan CEO of Corporate Enforcement Authority The evolution of compliance in the last 25 years with there now being widespread compliance with company law. The remarks also allude to the CEA’s strategy for 2022-2025. “Searching for evidence in the digital age”  James Dwyer, SC   This material considers the extent to which searches for criminal material can encroach upon a citizen’s right to privacy and legal professional privilege. It refers to a number of recent cases including the case of People (DPP) vs Quirke where the  Supreme Court held that although the search under a warrant issued was lawful, in the absence of specific permission being sought and given to search the computers, the search of the computer was not lawful. “Privacy, privilege, and access to data” Bernard Condon, SC The slides reference the Quirke decision and the 2023 decision in Corcoran v the Commissioner of an Garda Síochána. “European Public Prosecutor’s Office” Claire O’ Regan, Office of the DPP The slides content includes background on the EPP’s office, its competence, structure, its investigations, and prosecutions. “The Evolution of Ireland’s restriction of company directors’ regime.” Aoife McPartland, CEA Director “The challenge of privacy law to corporate transparency and probity" Paul Egan SC This  paper addresses the topical issues of public access to information such as CRO documents and information versus the EU trend towards concealment of ownership information and corporate secrecy .The paper refers to further reading material on this area. It also contains many useful diagrams including comparators on access to company registers ,who has the right to inspect and take copies and RBO information for Irish private companies and group structures. The paper  also signals the presenter’s view of the shortcomings of the attempted Irish fix (Beneficial Ownership Of Corporate Entities) (Amendment) Regulations 2023) in light of the 2022 ECJ ruling  where the ECJ held invalid the provisions of the AMLDs which require information on the beneficial ownership of corporate /other legal entities to be accessible in all cases to any member of the general public. You can read further about that on his firm Mason Hayes &Curran’s website Encroachment of Privacy Law on Disclosure of Company Information.  “The new European Directive harmonising certain aspects of insolvency law, directors' duties, Simplified Liquidation Procedures, and other matters."  Professor Irene Lynch Fannon This presentation deals with the proposed INSOL directive including certain elements such as harmonisation of insolvency and rescue law in the EU, the codification of common law rules and equitable principles and enforcement with a particular focus on company directors’ duties and proposed simplified liquidation measures. The presenter in comments after the event said that these [proposals in INSOL Directive ] “…. are all interesting developments and are even more interesting when considered in the context of the Preventive Restructuring Directive 2019/1023, now implemented in Ireland in 2022 in EU (Preventive Restructuring) Regulations amending the Companies Act 2014. As regards Directors' duties in particular there is some unresolved tension between Art 19 of the latter (now s. 224A/2014 Act) and the proposed Arts. 36 and 37 of the new Directive”. Investigations under the Companies Act  Neil Steen S.C. The primary subject of the paper is stated to be the court’s power to appoint inspectors to investigate the affairs of a company, but the paper also observes that the CEA enjoys certain other powers that are in practice highly relevant to an application to the court. .The paper references a table of relevant statutes and case law, and its content includes the purpose of company law inspections and powers of inspectors . 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.      

The requirement for company directors to provide Personal Public Service Numbers (PPSN) came into force on 11 June 2023. After three months, the system has bedded in and the CRO has been able to identify some particular issues that presenters and directors may wish to address. To take a typical day (26/09/2023), for example, there were a total of 1799 forms requiring a PPSN received by the CRO. Of these, 145 (8%) were returned by the online system. A further 372 were subject to offline scrutiny by CRO staff where a decision can be made on a close match of a director’s name. The majority of returns were due to a fundamental failure to match a director’s name, PPSN and date of birth held by the Department of Social Protection (DSP). The CRO advises presenters to ensure that directors verify the information they are supplying before submitting forms to the CRO. In particular, it is important that the date of birth supplied to the CRO matches exactly with the date of birth on the DSP database. It is also important to remember that a director may use a different name on the CRO register than that held by the DSP. For example, James O’Reilly may be registered with the CRO but the DSP may have Seamus O’Reilly on record. It is important therefore that as a first step, the director’s data on CORE should be checked to ensure that it is correct. The online CORE form has a field titled “Name registered with Department of Social Protection for PPSN purposes (if different)” and this should be filled in to avoid any delay in registering the form. Where a director has been issued with a PPSN it is compulsory to use that PPSN when submitting a form to the CRO. Where a director does not have a PPSN but does have a Register of Beneficial Owners (RBO) number, then the RBO number can be used. If a director does not have either a PPSN or an RBO number the director can apply for an Identified Person Number (IPN) using the VIF form. The IPN is a number issued by the CRO to directors/beneficial owners who do not have a PPSN or an RBO number and can be used to file with either RBO or CRO. For further information on PPSN, RBO or IPN please see the CRO website PPSN - FAQ (cro.ie).   If presenters have queries not dealt with on the CRO website these can be emailed to crodirectorid@enterprise.gov.ie. As we approach the peak filing period the CRO recommends that presenters ensure that they have the full details in relation to the directors of companies well in advance of the company’s filing date. If it is necessary to apply for an IPN then that should be done as soon as possible in order to ensure that the IPN is issued in good time for the filing deadline. While the CRO will endeavour to deal with all IPN applications promptly, processing times will depend on the volumes of applications received so the earlier the application is made the better.  

Welcome to this edition of Technical Roundup. In recent developments, the European Commission has welcomed the adoption of two final pillars of its Fit for 55 legislative package for delivering the EU's 2030 climate targets; the Pensions Authority has published its guidance for trustees on the own-risk assessment (ORA), as required under section 64AL of the Pensions Act. Read more on these and other developments that may be of interest to members below. Financial Reporting The European Financial Reporting Advisory Group (EFRAG) has launched a survey which seeks feedback on the IASB’s tentative decisions on its project Business Combinations - Disclosure, Goodwill and Impairment. The objective of this survey is to help EFRAG’s project team to better understand whether the proposed disclosure requirements in the tentative decisions can be applied in practice and whether they meet the intended objectives at a reasonable cost. EFRAG has announced that the report Towards Sustainable Businesses: Good Practices in Business Model, Risks and Opportunities Reporting in the EU, which was developed by the European Lab Project Task Force on the reporting of non-financial risks and opportunities, was selected for this year’s session of ISAR Honours. The report looks at the drivers of current reporting practices and the application of technological solutions, while also looking at how the reporting of sustainability risks and opportunities and their linkage to the business model can be improved. In its Annual Review of Corporate Reporting 2022/2023, the FRC has reported findings from its monitoring activities along with its expectations for the coming year. Also included in the annual review were the most frequently raised issues identified by the FRC which includes impairment of assets, judgements & estimates, cash flow statements amongst other new and recurring themes. The report provides a useful insight for preparers and auditors of financial statements, investors and other users of corporate reports. The FRC are also holding a webinar on 1 November to discuss the key findings. ESMA, the European Securities and Markets Authority has published its September 2023 “Spotlights on Markets” newsletter. In his “Investor Perspectives” article, International Accounting Standard Board (IASB) member, Nick Anderson discusses transactions that are not reflected in cash flow statements and also the new disclosure requirements issued by the IASB in May 2023 (effective for periods commencing on or after 1 January 2024). The IFRS Interpretations Committee have released their September 2023 podcast which discusses the decisions reached at its meeting in September. This includes details of a new request made in relation to business combinations as well as the consideration of feedback received on three tentative agenda decisions. The UK Endorsement Board (UKEB) has published a survey on Accounting for Intangibles. This seeks views on how the accounting for, and reporting of, intangible assets could be improved.   Assurance and Auditing The FRC has published revised ISA (UK) 505 External Confirmations (Revised October 2023).  The revisions to the standard reflect recent enforcement findings as well as ensuring that modern approaches to obtaining external confirmations are considered, with additional material in respect of digital means of confirmation, enhanced requirements in relation to investigating exceptions and a prohibition on the use of negative confirmations. The revised standard is effective for audits of financial statements for periods commencing on or after 15 December 2024. IAASA has published its inspection insight series 3  Communication with Those Charged with Governance (TCWG) and IAASA’s YouTube channel also includes a video that shares questions asked by IAASA’s audit inspectors during 2022 and 2023 in the area of communication with TCWG. IAASA has published its annual Observations paper highlighting matters that management, Audit Committees and auditors should consider when preparing, approving and auditing financial statements for 2023 year end dates. Sustainability The European Parliament have voted to adopt the European Sustainability Reporting Standards (ESRS) which will pave the way for the standards to become effective, depending on a company size and nature, on a phased basis financial periods beginning on or after 1 January 2024. Members of the parliament rejected a resolution put forward on 18 October that would have weakened the European Sustainability Reporting Standards, clearing the way for final adoption of rules for companies to report on sustainability-related impacts, opportunities and risks. The ESRS are the sustainability reporting standards that companies subject to the CSRD will be required to apply. The ESRS will comprise 12 standards covering the following areas - 2 Cross-cutting standards which set out the general principles and disclosure requirements standards, and 10 Topical standards which incorporate five Environment standards, four Social standards and one Governance standard. The UKEB, the Australian Accounting Standards Board (AASB), Canadian Accounting Standards Board (AcSB), Malaysian Accounting Standards Board (MASB), and the New Zealand External Reporting Board (XRB), has published a joint letter to the International Sustainability Standards Board (ISSB) highlighting their common concerns regarding its recent Agenda Consultation. The 3 areas of concern noted were: Connectivity with accounting standards Strategic roadmap Implementation priority The European Commission has welcomed the adoption of two final pillars of its ‘Fit for 55' legislative package for delivering the EU's 2030 climate targets. Ahead of the crucial COP28 UN Climate Conference, and next year's European elections, this complete package of legislation shows that Europe is delivering on its promises made to citizens and international partners to lead the way on climate action and shape the green transition for the benefit of citizens and industries. The Financial Stability Board (FSB) has published its annual progress report on climate-related disclosures.  The report has been delivered to G20 Finance Ministers and Central Bank Governors for their 11-12 October 2023 meeting. The Financial Conduct Authority (FCA) has welcomed the publication of the Transition Plan Taskforce (TPT) Disclosure Framework.  As we transition to a low emissions economy, financial markets will increasingly want better information on how companies plan to adapt their business models, their operations and their products and services.   Insolvency The Institute recently hosted a webinar on Corporate Enforcement Authority – Insolvency. This conversation is with Cathy Shivnan, Director of Insolvency Supervision, at the Corporate Enforcement Authority (CEA) and gives insights into the CEA’s insolvency agenda. The session also included some background on Cathy’s career and her journey from Revenue to CEA along with the evolution of the CEA from the ODCE. The recording can be accessed here. Minister Dara Calleary, TD has signed the Companies Act 2014 (Section 682) Regulations 2023. The Regulations, which came into effect on 1 October 2023, prescribe a revised Report for use by liquidators when making reports to the Corporate Enforcement Authority under section 682 of the Companies Act 2014. The revised section 682 report should be used for all submissions made from 1 October 2023. The Rules of the Superior Courts (Order 74) 2023 also commenced on 1st October 2023. Sanctions -recent UK case A notable decision of the UK Court of Appeal Mints & Ors v PJSC National Bank Trust & Anor [2023] EWCA Civ 1132 was handed down 6 October 2023. The case concerns the UK Russian sanctions’ regime. One of the issues discussed but which was not part of the binding decision was the control issue. The judge said that the wording of the relevant UK regulation does not distinguish between different forms of “non-ownership control” or “calling the shots”. He concluded that control can be established under the regulation by whatever means including political and corporate office. You can read further details on the case and a subsequent statement issued by the UK Foreign, Commonwealth and Development Office in the news item here.   Anti money-laundering The European Fund and Asset Management Association has recently issued views on the European Commission’s anti-money laundering (AML) package proposal including that the threshold for identifying beneficial owners should be kept at 25% across all industries in which customers operate and that ‘control exercised via other means’ criteria needs to be clear, workable and enforceable for practitioners. You can read their press release here. Other News The European Securities and Markets Authority (ESMA) has launched a public consultation on the revision of the Delegated Regulation regarding fees charged to Tier 1 third country central counterparties (CCPs) under the European Market Infrastructure Regulation (EMIR). ESMA has published a supervisory briefing on circuit breakers, which provides a comprehensive overview of supervisory expectations regarding the calibration of circuit breakers implemented by trading venues (TVs).  The International Auditing and Assurance Standards Board (IAASB) has released amendments aimed at bolstering transparency and providing auditors with a clear mechanism to action changes to the International Ethics Standards Board for Accountants’ (IESBA) Code of Ethics for Professional Accountants (including International Independence Standards). The IAASB amended International Standard on Auditing 700 (Revised), Forming an Opinion and Reporting on Financial Statements and ISA 260 (Revised), Communication with Those Charged with Governance. The European Commission issued a communication  outlining its 2024 work programme, along with the accompanying annexes which offers a comprehensive overview of the Commission’s plans including regulation, implementation and enforcement of EU law and delivery of its six headline ambitions. The Central Bank of Ireland issued a public statement on 21 August 2023 in relation to an archiving error that affected the retention period of some information on borrowers’ credit reports held on the Central Credit Register (CCR). The Central Bank provided an update on the matter on 13 October 2023. The Pensions Authority has published its guidance for trustees on the own-risk assessment (ORA), as required under section 64AL of the Pensions Act.  Except for one-member arrangements established before 22 April 2021, the latest date by which a pension scheme's first ORA can be completed is 22 April 2024. This guidance is available on the own-risk assessment (ORA) page of the Authority’s website. For further technical information and updates please visit the Technical Hub on the Institute website.

A notable judgement has been handed down in a recent examinership case. In the case involving Mac Interiors Limited, Mr Justice Michael Quinn ruled that the court had no jurisdiction to confirm the scheme of arrangement proposed by the Examiner. The Judge said there had been a material irregularity in relation to the meetings at which the proposals were considered by the creditors of the Company. Lawyers at Matheson outline, in a note on the firm’s website, that the irregularity in question was creation of a class of creditors called “retained project creditors” who had claims that arose from projects that had not been terminated by the company or by the relevant creditors. It was deemed that this class of “retained project creditors” had been improperly constituted. The Judge said that each class of creditor should be confined to persons “whose rights are not so dissimilar as to make it impossible to consult together with a view to their common interest”. As a result, the court decided, the “retained project creditors” should have been included in the class of unsecured creditors and it had no jurisdiction to confirm the proposals. This judgement is significant in light of the new EU rules that requires a class of creditors in line to receive a dividend payment to back the scheme in order for court approval to be granted.

A notable decision of the UK Court of Appeal Mints & Ors v PJSC National Bank Trust & Anor [2023] EWCA Civ 1132 was handed down on 6 October 2023. The case concerns the UK Russian sanctions’ regime. There were three issues raised in the appeal and they are set out at paragraph 3 of the judgment. (The regulations referred to in the judgment are the Russia (Sanctions) (EU Exit) Regulations 2019 (“Regulations”). The first issue raised was whether a judgment can lawfully be entered for a designated person by the English court following a trial at which it has been established that the designated person has a valid cause of action; The second is the circumstances whereby Treasury /OFSI can license certain payments; The third is whether a designated person controls an entity within the meaning of Regulation 7 where the entity is not a personal asset of the designated person, but the designated person is able to exert influence over it by virtue of the political office that he or she holds at the relevant time. (The control issue). The Court of Appeal found that as (1) the entry of  a money judgment in favour of a designated person was not prohibited by the UK sanctions regime and (2) the payments/litigation steps could be authorised by licence, the issue of control did not arise .However the judge said that as the control issue was fully argued and of some general  significance he would briefly address it .The remarks are therefore obiter dicta ,not a binding part of the decision and of persuasive authority only . The judge said  that the wording of Regulation 7 does not distinguish between different forms of “non-ownership control” or “calling the shots”. He concluded that control can be established under Regulation 7 by whatever means including political and corporate office. In any event the judge said that even though he would have found for the appellants on this issue, because they lost on the first two issues, the appeal must be dismissed. Following the decision the UK Foreign ,Commonwealth and Development Office (FCDO)  issued a statement on the Mint decision saying that it was carefully considering its impact. It said that the FCDO would look to designate a public body where possible when designating a public official if FCDO considered that the relevant official was exercising control over the public body. It went on to say that there is no presumption on the part of the Government that a private entity based in or incorporated in Russia or any jurisdiction in which a public official is designated is in itself sufficient evidence to demonstrate that the relevant official exercises control over that entity. The statement helps to support the conclusion that the UK government did not intend for all Russian companies to be subject to sanctions restrictions by virtue of Mr Putin’s designation, but legislative clarity on this issue would be best to ensure certainty in this area. 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.

The Institute recently hosted a webinar on Corporate Enforcement Authority – Insolvency. This conversation is with Cathy Shivnan, Director of Insolvency Supervision, at the Corporate Enforcement Authority (CEA) and gives insights into the CEA’s insolvency agenda. The session also included some background on Cathy’s career and her journey from Revenue to CEA along with the evolution of the CEA from the ODCE. The recording can be accessed here.