S.I. No. 395/1993 - European Communities (Branch Disclosures) Regulations, 1993

S.I. No. 395 of 1993.

EUROPEAN COMMUNITIES (BRANCH DISCLOSURES) REGULATIONS, 1993.

I, RUAIRÍ QUINN, Minister for Enterprise and Employment, in exercise of the powers conferred on me by section 3 of the European Communities Act, 1972 (No. 27 of 1972), and for the purpose of giving effect to Council Directive No. 89/666/EEC of 21 December 1989^(1), hereby make the following regulations:

PART I PRELIMINARY

1 Citation, Commencement and Construction.

1.

1. (1) These Regulations may be cited as the European Communities (Branch Disclosures) Regulations, 1993.

• (2) These Regulations shall come into operation on the 1st day of February, 1994.

• (3) These Regulations shall be construed as one with the Companies Acts, 1963 to 1990.

2 Interpretation.

2.

2. (1) In these Regulations, unless the context otherwise requires—

"accounting documents" means the documents referred to in Regulation 12;

"certified" means certified in the prescribed manner to be a true copy or a correct translation;

"company" in Part II of Part III, means a company to which that Part applies;

"financial year" in relation to a company, means the period for which the company draws up its accounts in accordance with the law of the country in which it is incorporated;

^(1)OJ No. L395, 30.12.89, pp. 36-39.

"memorandum of articles of association" means the documents referred to in Regulations 4 (1) and 7 (1);

"the Principal Act" means the Companies Act, 1963 (No. 33 of 1963);

"the 1968 Directive" means Council Directive No. 68/151/EEC of 9 March 1968^(2);

"the 1989 Directive" means Council Directive No. 89/666/EEC of 21 December, 1989^(1).

• (2) A word or expression that is used in these Regulations and is also used in the 1989 Directive shall, unless the contrary intention appears, have the same meaning in these Regulations as it has in the Directive concerned.

PART II BRANCHES OF COMPANIES FROM OTHER MEMBER STATES OF THE EUROPEAN COMMUNITIES

3 Application of this Part.

3.

3. This Part applies to a company—

( a ) to which article 1 of the 1968 Directive applies,

( b ) which is incorporated in another Member State of the European Communities, and

( c ) which establishes a branch in the State,

and references in this Part to a company shall be construed accordingly.

4 Documents to be delivered to the Registrar.

4.

4. (1) A company shall, within one month of the date of the establishment of a branch in the State, deliver to the registrar for registration a certified copy of the memorandum and articles of association or the charter, statutes or other instrument constituting or defining the constitution of the company.

• (2) A company shall notify the registrar in the prescribed form of the following matters at the same time as the delivery of the matter referred to in paragraph (1), namely—

^(1)OJ No. L395, 30.12.89, pp. 36-39.

^(2)OJ No. L6, 14.3.68, pp. 8-12.

( a ) the name and legal form of the company and the name of the branch if that is different from the name of the company;

( b ) a certificate of incorporation of the company;

( c ) the address of the branch;

( d ) the activities of the branch;

( e ) the place of registration of the company and the number with which it is registered;

( f ) a list of the persons who are authorised to represent the company in accordance with Article 2.1 (e) of the 1989 Directive together with the following details relating to each such person:

• (i) present forename and surname and any former forename and surname;

• (ii) date of birth;

• (iii) usual residential address;

• (iv) nationality;

• (v) business occupation, if any;

• (vi) particulars of any other directorships of bodies corporate, whether incorporated in the State or elsewhere, held by that person, and

• (vii) the extent of that person's powers in relation to the activities of the branch;

( g ) without prejudice to the generality of subparagraph (f), the name and addresses of some one or more persons resident in the State authorised to accept on behalf of the company service of process and any notices required to be served on the company;

( h ) without prejudice to the generality of subparagraph (f), the name and address of every person resident in the State authorised by the company to ensure compliance with the provisions of these Regulations together with a consent signed by each such person to act in this capacity;

( i ) copies of the latest accounting documents prepared in relation to a financial year of the company to have been publicly disclosed in accordance with the law of the State in which it is incorporated before the end of the period allowed for compliance with a paragraph (1) in respect of the branch, or if earlier, the date on which the company complies with paragraph (1) in respect of the branch.

• (3) A company shall also deliver to the registrar for registration, under cover of the prescribed form, the following documents and notices within 14 days of the occurrence of the event concerned, namely—

( a ) any document making or evidencing an alteration in its memorandum or articles of association;

( b ) every amended text of its memorandum or articles of association;

( c ) notice of a change among the persons referred to in paragraphs (2) (f), (g), or (h) or in any of the particulars relating to such persons specifying the date of the change;

( d ) notice of a change in the address referred to in paragraph (2) (c) together with the new address of the branch;

( e ) notice of the winding-up of the company, the appointment of liquidators, particulars concerning them and their powers and the termination of the liquidation in accordance with disclosure by the company as provided for in Article 2 (1) (h), (j) and (k) of the 1968 Directive and particulars concerning insolvency proceedings, arrangements, compositions or any analogous proceedings to which the company is subject;

( f ) the closure of the branch.

• (4) Subsection (15) of section 195 of the Principal Act, as inserted by section 51 of the Companies Act, 1990 , shall apply for the purposes of paragraph (2) ( f ).

5 Letterheads.

5.

5. (1) Every letter and order form used by a branch of a company shall bear the following particulars—

( a ) the place of registration of the company and the number with which it is registered;

( b ) the legal form of the company and the address of its registered office;

( c ) in the case of a company which is being wound up, the fact that that is so;

( d ) the place of registration of the branch and the number with which it is registered.

• (2) If on any letters or order forms there is reference to the share capital of the company, the reference shall be to the paid-up share capital.

PART III BRANCHES OF COMPANIES FROM STATES OTHER THAN THOSE UNDER PART II

6 Application of this Part.

6.

6. This Part applies to a company—

( a ) which is incorporated outside the State, other than a company to which Part II applies,

( b ) which is of a legal form comparable to a company to which Article 1 of the 1968 Directive applies, and

( c ) which establishes a branch in the State,

and references in this Part to a company shall be construed accordingly.

7 Documents to be delivered to the registrar.

7.

7. (1) A company shall, within one month of the date of establishment of a branch in the State, deliver to the registrar for registration a certified copy of the memorandum and articles of association, or the charter, statutes or other instrument constituting or defining the constitution of the company.

• (2) A company shall notify the registrar in the prescribed form of the following matters at the same time as the delivery of the matter referred to in paragraph (1), namely—

( a ) the name and legal form of the company, its principal place of business and its objects, where this information is not in the documents referred to in paragraph (1);

( b ) a certificate of incorporation of the company;

( c ) the address of the branch;

( d ) the activities of the branch;

( e ) the name of the branch if that is different from the name of the company;

( f ) the State in which the company is incorporated and, where the law of that State so provides, the place of registration of the company and the number with which it is registered;

( g ) a list of the persons who are authorised to represent the company in accordance with Article 8 (h) of the 1989 Directive together with the following details relating to each such person:

• (i) present forename and surname and any former forename and surname;

• (ii) date of birth;

• (iii) usual residential address;

• (iv) nationality;

• (v) business occupation, if any;

• (vi) particulars of any other directorships of bodies corporate, whether incorporated in the State or elsewhere, held by that person, and

• (vii) the extent of that person's powers in relation to the activities of the branch together with a statement whether that person may represent the company alone or jointly with any other person or persons;

( h ) without prejudice to the generality of subparagraph (g), the names and addresses of some one or more persons resident in the State authorised to accept on behalf of the company service of process and any notices required to be served on the company;

( i ) without prejudice to the generality of subparagraph (g), the name and address of each person resident in the State authorised by the company to ensure compliance with the provisions of these Regulations together with a consent signed by each such person to act in this capacity;

( j ) copies of the latest accounting documents prepared in relation to a financial year of the company to have been publicly disclosed in accordance with the law of the State in which it is incorporated before the end of the period allowed for compliance with paragraph (1) in respect of the branch, or if earlier, the date on which the company complies with paragraph (1) in respect of the branch.

• (3) A company shall also deliver to the registrar for registration, under cover of the prescribed form, the following documents and notices within 14 days of the occurrence of the event concerned, namely—

( a ) any document making or evidencing an alteration in its memorandum or articles of association;

( b ) every amended text of its memorandum or articles of association;

( c ) notice of a change among the persons referred to in paragraphs (2) (g), (h) or (i), or in any of the particulars relating to such persons specifying the date of the change;

( d ) notice of a change in the address referred to in paragraph (2) (c) together with the new address of the branch;

( f ) the winding-up of the company, the appointment of liquidators, particulars concerning them and their powers and the termination of the liquidation, insolvency proceedings, arrangements, compositions or any analogous proceedings to which the company is subject;

( e ) the closure of the branch.

• (4) Subsection (15) of section 195 of the Principal Act, as inserted by section 51 of the Companies Act, 1990 , shall apply for the purposes of paragraph (2) (g).

8 Letterheads.

8.

8. (1) Every letter and order form used by a branch of a company shall bear the following particulars—

( a ) the place of registration of the branch and the number with which it is registered;

( b ) if the law of the State in which the company is incorporated requires entry in a register, the place of registration of the company and the number with which it is registered.

• (2) If on any letters or order forms there is reference to the share capital of the company, the reference shall be to the paid-up share capital.

9 Capital.

9.

9. (1) Subject to paragraph (2), every company shall, at the same time as it returns to the registrar the accounts referred to in Regulation 11, return a statement, in the prescribed form, indicating the amount of the called up share capital of the company.

• (2) Paragraph (1) shall not apply where the information which would be contained in the statement is contained in the documentation referred to in Regulation 7 (1).

PART IV PROVISIONS APPLICABLE TO ALL COMPANIES TO WHICH THESE REGULATIONS APPLY

10 Publication of notices.

10.

10. A company within the meaning of Part II or Part III of these Regulations shall publish in Iris Oifigiúil notice of the delivery to the registrar of the documents and particulars referred to in Regulations 4 and 7, as appropriate, within 21 days of such delivery.

11 Accounting Documents to be delivered to the registrar.

11.

11. (1) Subject to paragraphs (2) to (6) every company within the meaning of Part II or Part III of these Regulations shall, once in every year, deliver to the registrar the accounting documents of the company as drawn up, audited and, where so required, disclosed in accordance with the law of the State in which it is incorporated and in the case of a company to which Part II applies in accordance with Council Directives 78/660/EEC^(3), 83/349/EEC^(4), and 84/253/EEC^(5).

• (2) A company to which Part III applies, shall, where there is no requirement in the law of the State in which it is incorporated to have accounting documents drawn up, deliver to the registrar accounting documents drawn up and audited in accordance with Council Directives 78/660/EEC^(3) and 83/349/EEC^(4).

• (3) A company to which Part III applies may, in lieu of returning accounting documents of the company drawn up and where so required disclosed, in accordance with the law of the State in which it is incorporated, return accounting documents for the company drawn up and audited in accordance with Council Directives 78/660/EEC^(3) and 83/349/EEC^(4).

• (4) The accounting documents referred to in paragraphs (1) and (3) shall be delivered under cover of the prescribed form within eleven months from the end of the company's financial year or at the same time as the accounting documents of the company are published pursuant to the law of the State in which the company is incorporated or are due to be so published, whichever is the earlier.

• (5) The accounting documents referred to in paragraph (2) shall be delivered under cover of the prescribed form within eleven months of the end of the company's financial year.

• (6) This Regulation shall not apply to companies that are credit institutions and financial institutions within the meaning of Council Directive 89/117/EEC^(6).

^(3)OJ No. L222, 14.08.78, pp. 11-31.

^(4)OJ No. L193, 18.07.83, pp. 1-17.

^(5)OJ No. L126, 12.05.84, pp. 20-26.

^(6)OJ No. L44, 16.02.89, pp. 40-42.

12 ..

12.

12. References in Regulations 4 (2) (i), 7 (2) (j) and 11 to accounting documents, in relation to a financial year of a company, are to—

( a ) the accounts of the company for the period, including, if it has one or more subsidiaries, any consolidated accounts of the group,

( b ) any annual report of the directors for the period,

( c ) the report of the auditors on the accounts mentioned in sub-paragraph (a), and

( d ) any report of the auditors on the report mentioned in sub-paragraph (b).

13 Translations.

13.

13. Every document required to be delivered or notified to the registrar under Regulations 4 (1), 4 (2) (i), 4 (3) (a) or (b), 7 (1), 7 (2) (j), 7 (3) (a) or (b) or 11 shall, if they are not written in the Irish or the English language, have annexed to them a certified translation thereof.

14 Miscellaneous Provisions.

14.

14. (1) Subject to paragraph (3), Part XI of the Principal Act shall not apply to a company as a result of that company having established a branch, where, by virtue of having established that branch, these Regulations apply.

• (2) For the avoidance of doubt and subject to paragraph (4), references in these Regulations to the establishment of a branch shall include the changing of a place of business that is not a branch within the meaning of the 1989 Directive into such a branch and the date of establishment of the branch shall be construed as the date on which such change occurs.

• (3) For the further avoidance of doubt, references in Part XI of the Principal Act to the establishment of a place of business shall include the changing of a branch within the meaning of the 1989 Directive into a place of business that is not a branch within the meaning of the 1989 Directive and the date of establishment of that place of business shall, for the purposes of the said Part XI, be construed as the date on which such change occurs and from that date the exemption in paragraph (1) shall not apply.

• (4) ( a ) Subject to subparagraph (b), where a company to which these Regulations apply established a branch in the State before the commencement of the Regulations and where that branch has not closed a reference in these Regulations to the date of establishment of a branch shall in the case of that branch be construed as a reference to the date of the commencement of these Regulations.

( b ) Where a company to which subparagraph (a) applies has, in respect of a branch established in the State, complied with all the requirements of Part XI of the Principal Act applicable following the establishment of that branch, the date of establishment of that branch for the purposes of applying these Regulations shall be construed as the date which is three months after the date of commencement of these Regulations.

15 ..

15.

15. (1) Where prior to the date referred to in Regulation 4 (1) or Regulation 7 (1), as appropriate, a company which has established a branch in the State, in complying with either Part XI of the Principal Act or in complying with these Regulations in respect of another branch established in the State, had returned to the registrar documents which are the same in all respects as the documents required by Regulation 4 (1) or 7 (1), as appropriate, and it has no outstanding obligation to make a return to the registrar so far as concerns any alterations to thoese documents, then the company may return, in lieu of the documents required by regulation 4 (1) or 7 (1), a statement in the prescribed form that this information has already been returned to the registrar.

• (2) Where prior to the date referred to in Regulation 4 (1) or Regulation 7 (1), as appropriate, a company which has established a branch in the State, in complying with either Part XI of the Principal Act or in complying with these Regulations in respect of another branch established in the State, had returned to the registrar particulars which are the same in all respects as the corresponding particulars required by Regulation 4 (2) (f), (g) or (h) or Regulation 7 (2) (g), (h) or (i), as appropriate, and it has no outstanding obligation to make a return to the registrar so far as concerns any alterations to those particulars, then the company may return, in lieu of the corresponding particulars required by Regulation 4 (2) (f), (g), or (h), or Regulation 7 (2) (g), (h) or (i), as appropriate, a statement in the prescribed form that this information has already been returned to the registrar.

• (3) Where paragraph (1) applies, a reference to the delivery of the matter referred to in Regulation 4 (1) or Regulation 7 (1) shall be construed as a reference to the return of the statement referred to in paragraph (1).

16 ..

16.

16. (1) Where Part XI of the Principal Act applies to a company by virtue of its having established a place of business and where prior to the establishment of that place of business, the company has, in complying with these Regulations, returned to the registrar documents which are the same in all respects as the documents required by section 352 (1) (a), and it has no outstanding obligation to make a return to the registrar under the said Regulations, so far as concerns any alterations to those documents, then the company may return, in lieu of the documents required by section 352 (1) (a), a statement in the prescribed form, that this information has already been returned pursuant to the said Regulations.

• (2) Where Part XI of the Principal Act applies to a company by virtue of its having established a place of business and where prior to the establishment of that place of business, the company has, in complying with these Regulations, returned to the registrar particulars which are the same in all respects as the particulars required by section 352 (1) (b) and (2), and it has no outstanding obligation to make a return to the registrar under the said Regulations, so far as concerns any alterations to those particulars, then the company may return, in lieu of the documents required by section 352 (1) (b) and (2), a statement in the prescribed from, that this information has already been returned pursuant to the said Regulations.

17 ..

17.

17. (1) Subject to paragraph (2), any process or notice required to be served on a company to which these Regulations apply shall be sufficiently served if addressed to any person whose name has been delivered to the registrar under Regulation 4 (2) (g) or 7 (2) (h) (or any changes notified thereto) and left at or sent by post to the address which has been so delivered.

• (2) A document may be served on any such company by leaving it at or sending it by post to any branch established by the company in the State—

( a ) where the company makes default it in delivering to the registrar the name and address of a person resident in the State who is authorised to accept on behalf of the company service of process; or

( b ) if at any time all the persons whoes names and addresses have been so delivered are dead or have ceased to so reside, or refuse to accept service on behalf of the company, or for any reason it cannot be served.

18 ..

18.

18. The duty of securing compliance by a company with the provisions of these Regulations shall, without prejudice to the duty of the company concerned, also lie upon the persons appointed by a company to ensure compliance with these Regulations.

19 ..

19.

19. (1) A person who contravenes any provision of these Regulations shall be guilty of an offence.

• (2) A person guilty of an offence under paragraph (1) shall be liable on summary conviction to a fine not exceeding £1,000 or, at the discretion of the court in the case of an individual, to imprisonment for a term not exceeding 12 months or to both.

• (3) A person shall not be liable to be sentenced to imprisonment for such an offence unless, in the opinion of the court, the offence was committed wilfully.

• (4) Where an offence referred to in paragraph (1) committed by a body or by a person purporting to act on behalf of a body is proved to have been so committed with the consent or connivance of or to be attributable to, or to have been facilitated by, any neglect on the part of any officer or employee of that body, that person shall also be guilty of an offence.

• (5) In this Regulation, a reference to a contravention includes a reference to a failure to comply.

GIVEN under my Official Seal, this 18th day of December, 1993.

RUAIRÍ QUINN,

Minister for Enterprise and

Employment.

EXPLANATORY NOTE.

The purpose of these Regulations is to give legal effect to Council Directive (No. 89/666/EEC) concerning disclosure requirements in respect of branches opened in a Member State by certain types of company governed by the law of another State (Council Directive 89/666/EEC).

Part XI of the Companies Act, 1963 contains disclosure requirements where companies incorporated outside the State establish a place of business in the State. Where, as a result of having opened a branch, the Regulations now made apply, the requirements of Part XI will not apply in respect of that branch. The Regulations also facilitate movement between the regime now imposed and that imposed by Part XI of the 1963.

Part I of the Regulations provides for commencement, citation and interpretation of the Regulations.

Part II (Regulations 2 to 5) provides for disclosures by European Communities First Directive companies (limited companies) that establish a branch in the State.

Part III (Regulations 6 to 9) provides for disclosures by non-European Communities companies of a legal form comparable to Part II companies that establish a branch in the State.

Part IV (Regulations 10 to 19) introduce a variety of provisions applicable to both Part II and Part III companies.