S.I. No. 67/1997 - European Communities (Public Limited Companies Subsidiaries) Regulations, 1997

S.I. No. 67 of 1997.

EUROPEAN COMMUNITIES (PUBLIC LIMITED COMPANIES SUBSIDIARIES) REGULATIONS, 1997.

I, RICHARD BRUTON, 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 the provisions of Council Directive No. 92/101/EEC^1 of 23 November, 1992 hereby make the following Regulations:

Preliminary and General

1 Citation and construction

1.

1. (1) These Regulations may be cited as the European Communities (Public Limited Companies Subsidiaries) Regulations, 1997.

• (2) These Regulations shall be construed as one with the Companies Acts.

2 Commencement

2.

2. These Regulations shall come into operation on the 1st day of March 1997.

3 Interpretation

3.

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

"the Companies Acts" means the Principal Act, and every enactment (including these Regulations) which is to be construed as one with that Act;

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

"the Act of 1986" means the Companies (Amendment) Act, 1986 (No. 25 of 1986);

"the Act of 1990" means the Companies Act, 1990 (No. 33 of 1990);

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

^1O.J. No. L347, 28.11.92, p.p. 64-66.

^2O.J. No. L65, 14.3.68, p.p. 8-12.

• (2) In these Regulations, unless the context otherwise requires, a reference to a Regulation is to a Regulation of these Regulations, a reference to a paragraph is to a paragraph of the Regulation, and a reference to a subparagraph is to the subparagraph of the paragraph, in which the reference occurs.

4 Extension of meaning of "subsidary"

4.

4. (1) For the purposes of Part XI of the Act of 1990, in addition to the circumstances where a company (including a body corporate) is deemed to be a subsidiary of a public limited company by virtue of section 155 of the Principal Act, a limited company (including a body corporate) within the meaning of paragraph (2) shall also be deemed to be a subsidiary of a public limited company if, but only if, the public limited company is itself a shareholder or member of the said limited company and controls alone, pursuant to an agreement with other shareholders or members, a majority of the shareholders' or members' voting rights in the company in question.

• (2) For the purposes of this Regulation, a limited company (including a body corporate) is a company—

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

( b ) which is incorporated other than in a Member State of the European Union and is of a legal form comparable to the type of company referred to in paragraph (a).

• (3) For the purposes of Part XI of the Act of 1990, a public limited company exercises its control indirectly where the control of a subsidiary is exercised through another subsidiary, pursuant to section 155 (1) (b) of the Principal Act.

• (4) The first reference to a company in section 224 (1) of the Act of 1990 includes a body corporate.

5 Extension to section 224 of 1990 on holding of shares by subsidiaries

5.

5. (1) In addition to section 224 of the Act of 1990, this Regulation shall apply where any holding company is a public limited company (in this Regulation referred to as a "parent public company") and where its subsidiary (not being a subsidiary solely by virtue of paragraph (a) (ii) or (b) of subsection (1) of section 155 of the Principal Act) is a limited company (including a body corporate) of the type referred to in Regulation 4 (2) (in this Regulation referred to as a "public company subsidiary").

• (2) A public company subsidiary shall not—

( a ) subscribe for the shares of its parent public company, or

( b ) purchase shares in its parent public company which are not fully paid, or

( c ) provide financial assistance in accordance with subsections (2) to (11) of section 60 of the Principal Act for the purchase of or subscription for shares in its parent public company.

• (3) If a public company subsidiary purports to act in contravention of paragraph (2) (a), it shall be guilty of an offence and the purported subscription shall be void.

• (4) Where shares in a parent public company are subscribed for by a nominee of a public company subsidiary in contravention of paragraph (2), then for all purposes the shares shall be treated as held by the nominee on his own account and the public company subsidiary shall be regarded as having no beneficial interest in them, and the provisions of subsections (2) to (6) of section 42 of the Companies (Amendment) Act, 1983 , shall, with any necessary modifications, apply.

• (5) Without prejudice to any other requirements contained in or penalties imposed by the Companies Acts, where a public company subsidiary purchases, subscribes for or holds shares in its parent public company, and—

( a ) the shares were not fully paid when they were purchased, or

( b ) the authorisation required by section 224 (3) of the Act of 1990 has not been obtained, or

( c ) the shares are held as treasury shares in excess of the limit referred to in section 209 (2) of that Act, or

( d ) the purchase or subscription was in contravention of paragraph (2) (c),

then, unless the shares or any interest of the public company subsidiary in them are previously disposed of, the provisions of section 43 (3) of the Companies (Amendment) Act, 1983 , shall, with the modification that the "relevant period" in relation to any shares shall be 12 months and with any other necessary modifications, apply to the public company subsidiary in respect of such shares.

• (6) This Regulation shall not affect or prohibit—

( a ) the subscription for, acquisition or holding of, shares in its parent public company by a public company subsidiary where the public company subsidiary is concerned as personal representative or where it is concerned as trustee unless the parent public company or a subsidiary thereof is beneficially interested under the trust and is not so interested only by way of security for the purposes of a transaction entered into by it in the ordinary course of a business which includes the lending of money;

( b ) the allotment to, or holding by, a public company subsidiary of shares in its parent public company in the circumstances set out in section 32 (5) of the Principal Act, but where the shares so allotted are held as treasury shares and the nominal value of treasury shares held by the public company subsidiary exceeds the limit referred to in section 209 (2) of the Act of 1990 then, unless the shares or any interest of the public company subsidiary in them are previously disposed of, the provisions of section 43 (3) of the Companies (Amendment) Act, 1983 , shall with the modification that the relevant period in relation to any shares shall be 3 years and with any other necessary modifications, apply to the public company subsidiary in respect of such shares;

( c ) the subscription, acquisition or holding of shares in its parent public company by a public company subsidiary where the subscription, acquisition or holding is effected on behalf of a person other than the person subscribing, acquiring or holding the shares, who is neither the parent public company itself nor a subsidiary within the meaning of Part XI of the Act of 1990 of the said parent public company;

( d ) the subscription, acquisition or holding of shares in its parent public company by a public company subsidiary which is a member of an approved stock exchange specified in section 17 (2) of the Stock Exchange Act, 1995 (No. 9 of 1995), acting in its capacity as a professional dealer in securities in the normal course of its business.

• (7) A person guilty of an offence under this Regulation shall be liable on summary conviction to a fine not exceeding £500 or to imprisonment for a term not exceeding 6 months, or to both such fine and such imprisonment.

• (8) ( a ) Where an offence under this Regulation has been committed by a public company subsidiary and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of a person being a director, manager, secretary or other similar officer of the public company subsidiary, or a person who was purporting to act in any such capacity, that person as well as the body corporate shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

( b ) Where the affairs of a public company subsidiary are managed by its members, paragraph (a) shall apply in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director of the public company subsidiary.

6 Information in directors' report regarding acquisitions by company of own shares

6.

6. Section 14 of the Act of 1986 shall also apply where, in any financial year of a company, shares in the company are acquired in a public limited company by a subsidiary pursuant to section 224 of the Act of 1990, and references in paragraphs (i), (ii) and (iii) of that section to "another person" shall be read as including a subsidiary company of a public limited company, pursuant to Part XI of that Act.

GIVEN under my Official Seal, this 5th day of February, 1997.

RICHARD BRUTON,

Minister for Enterprise and Employment.

EXPLANATORY NOTE.

The purpose of these Regulations is to give legal effect to Council Directive 92/101/EEC which amends the Second Directive (Formation and Capital of Public Limited Companies) to apply conditions on the purchase of shares in a PLC by subsidiaries of that PLC.

Part XI of the Companies Act, 1990 already substantially implements Directive 92/101/EEC. It is proposed to complete the implementation process by extending the definition of subsidiary for the purposes of Part XI of the 1990 Act, and applying the additional requirements of the Directive to directly controlled subsidiaries.

Regulations 1-3 provide for citation, commencement and interpretation of the Regulations.

Regulation 4 extends the definition of subsidiary of a public limited company for the purposes of Part XI of the Companies Act, 1990 .

Regulation 5 applies the conditions relating to the subscription, acquisition or holding of shares by a public company itself to the subscription, acquisition or holding of shares by any subsidiary of the type referred to in the Directive in its parent public limited company. It also sets out the penalty for those found guilty of an offence.

Regulation 6 extends the requirements on directors to disclose information about acquisition by a PLC of its own shares, to acquisition by a subsidiary (as defined) company of shares in its parent PLC.