Industrial Development (Enterprise Ireland) Act 1998

PART I Preliminary and General

1. Short title and collective citation.

1.—(1) This Act may be cited as the Industrial Development (Enterprise Ireland) Act, 1998.

(2)The Industrial Development Acts, 1986 to 1995, and this Act (other than Part III in so far as it relates to the Legal Metrology Service, section 35 and Part VIII) may be cited together as the Industrial Development Acts, 1986 to 1998.

(3)The Shannon Free Airport Development Company Limited Acts, 1959 to 1995, and section 35 of this Act may be cited together as the Shannon Free Airport Development Company Limited Acts, 1959 to 1998.

(4)The Metrology Acts, 1980 to 1996, and Part III in so far as it relates to the Legal Metrology Service and section 49 may be cited together as the Metrology Acts, 1980 to 1998.

(5)The National Standards Authority of Ireland Act, 1996, and sections 50 and 51 may be cited together as the National Standards Authority of Ireland Acts, 1996 and 1998.

2. Interpretation.

2.—(1)In this Act, unless the context otherwise requires—

“the Act of 1986” means the Industrial Development Act, 1986;

“the Act of 1993” means the Industrial Development Act, 1993;

“the Act of 1995” means the Industrial Development Act, 1995;

“the Agency” means Enterprise Ireland established under section 6;

“An Bord Tráchtála” means An Bord Tráchtála — The Irish Trade Board;

“An Foras” means An Foras Áiseanna Saothair;

“the Board” in Part II, means the Board of the Agency;

“the chief executive officer” means the chief officer of the Agency appointed under section 13;

“establishment day” means the day appointed by the Minister under section 3 to be the establishment day;

“functions” includes powers and duties, and reference to the performance of functions includes, as respects powers and duties, references to the exercise of the powers and the performance of the duties;

“IDA” means the Industrial Development Agency (Ireland);

“the Minister” means the Minister for Enterprise, Trade and Employment;

“the NSAI” means the National Standards Authority of Ireland;

“recognised trade unions and associations” means the trade unions and staff associations recognised by Forfás, the Agency, IDA or NSAI, as the case may be, for the purpose of negotiations which are concerned with the transfer of staff to Forfás, the Agency, IDA or NSAI, as the case may be, as well as remuneration, conditions of employment or working conditions of employees;

“remuneration” includes allowances for expenses, benefits-in-kind and superannuation;

“subsidiary” in Part II, means a subsidiary acquired or formed and registered by the Agency pursuant to section 5 of the Act of 1995;

“superannuation benefits” means pensions, gratuities and other allowances payable on resignation, retirement or death.

(2)In this Act—

(a)a reference to a section or Part is to a section or Part of this Act, unless it is indicated that reference to some other enactment is intended,

(b)a reference to a subsection, paragraph or subparagraph is to a subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended, and

(c)a reference to an enactment shall be construed as a reference to that enactment as amended, adapted or extended by or under any subsequent enactment including this Act.

3. Establishment day.

3.—The Minister shall by order appoint a day to be the establishment day for the purposes of this Act.

4. Repeals.

4.—Each enactment mentioned in column (2) of the Schedule to this Act is hereby repealed, with effect from the establishment day, to the extent specified opposite that mention in column (3) of that Schedule.

5. Expenses.

5.—The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

PART II Enterprise Ireland

6. Establishment of Enterprise Ireland.

6.—(1)There shall stand established on the establishment day an agency of Forfás to be known as Enterprise Ireland to perform the functions assigned to it by this Act.

(2)The Agency shall be a body corporate with perpetual succession and an official seal and power to sue and be sued in its corporate name and to acquire, hold and dispose of land or an interest in land and to acquire, hold and dispose of any other property.

7. Functions of Agency.

7.—(1)The functions of the Agency shall be—

(a)to develop industry and enterprise in the State,

(b)to promote, assist and develop the marketing of goods,

(c)to promote, assist and develop the marketing of service industries (within the meaning of the Act of 1986),

(d)to assist enterprises in strategy assessment and formulation,

(e)to develop the technological base and the capacity of enterprises to innovate and undertake research, development and design,

(f)to strengthen the skills base in industry,

(g)to provide services which support such development,

(h)to make investments in and provide supports to industrial undertakings which comply with the requirements of the enactments for the time being in force,

(i)to administer such schemes, grants and other financial facilities requiring the disbursement of European Union and such other funds as may from time to time be authorised by the Minister with the concurrence of the Minister for Finance,

(j)to apply for and receive, in the State or elsewhere, any trade marks, licences, protections or concessions in connection with trade or the marketing of goods or services, and in relation thereto, to do all such things as the Agency considers necessary or desirable for the purposes of its functions,

F1[(k) to carry out such other functions as may from time to time be assigned to it by the Minister.]

(2)The Agency shall have all such powers as are necessary for or incidental to the performance of its functions under this Act.

(3)The Agency may perform any of its functions through or by a member of its staff or a member of the staff of Forfás seconded to it duly authorised by the Agency in that behalf.

(4)Nothing in this Part of this Act shall be construed as affecting or limiting in any manner the existing functions of any Minister of the Government in relation to exports.

(5)The Agency shall, in respect of the promotion, assistance or development of the marketing and promotion of any goods or services in relation to which a Minister of the Government exercises any function, act in consultation with that Minister of the Government.

7A. F2[Power of Agency to make loans to certain industrial undertakings or bodies corporate

7A.(1) Where, in the opinion of the Agency, an industrial undertaking satisfies the relevant requirements, the Agency may, subject to such terms and conditions as it may determine, make a loan out of moneys at its disposal to—

(a) an industrial undertaking, or

(b) a body corporate owning, controlling or managing, or participating in the ownership, control or management of the undertaking.

(2) The Agency shall not, without the prior permission of the Government, expend more than€7,500,000 in providing a loan or a series of loans to any one industrial undertaking or body corporate under this section. Preference may be given to industrial undertakings or body corporates that are located in the border counties of Louth, Cavan, Donegal, Leitrim, Monaghan and Sligo.

(3) (a) In this section,‘loan’means a loan which is not convertible into shares in a body corporate.

(b) In this section and insection 7B,‘relevant requirements’means, in relation to an industrial undertaking, the requirements specified in subsections (3) and (4) of section 21 of the Act of 1986.

(c) In this section and insections 7Band7C,‘industrial undertaking’has the same meaning as it has insection 8.

(4) This section is in addition to, and not in substitution for, any other power of the Agency to lend moneys by or under theIndustrial Development Act 1995or any other enactment.]

7B. F3[Power of Agency to purchase shares etc.

7B.(1) Subject to this section, where in the opinion of the Agency, an industrial undertaking satisfies the relevant requirements, the Agency may, subject to such terms and conditions as it may determine—

(a) purchase or take shares or convertible debt instruments, to any extent it considers desirable, in the body corporate owning, controlling or managing, or participating in the ownership, control or management of such an industrial undertaking, or

(b) form, or take part with other persons in the formation of, such bodies corporate.

(c) preference may be given to industrial undertakings or body corporates that are located in the border counties of Louth, Cavan, Donegal, Leitrim, Monaghan and Sligo.

(2) The Agency shall not, without the prior approval of the Minister, purchase or take shares or convertible debt instruments under this section if to do so would result in the Agency holding or having the right to hold on conversion of shares or a debt instrument or instruments—

(a) more than half in nominal value of the equity share capital (within the meaning ofsection 7(11) of theCompanies Act 2014) of a body corporate, or

(b) more than half in nominal value of shares carrying voting rights (other than voting rights which arise only in specified circumstances) in a body corporate.

(3) The Agency shall not, without the prior permission of the Government, expend, in the aggregate, on the purchase or taking of shares or convertible debt instruments in any one body corporate referred to insubsection (1)(a), the higher of—

(a)€7,500,000, or

(b)€7,500,000 in excess of the aggregate amount of such expenditure for which the prior permission of the Government has previously been obtained.

(4) Where the Agency has already purchased or taken, or is purchasing or taking, shares or convertible debt instruments in a body corporate (in this subsection referred to as the‘relevant body corporate’) in accordance withsubsection (1), the Agency may, without the need to satisfy itself as to further compliance with the relevant requirements and subject to such terms and conditions as it may determine—

(a) purchase, take or receive further shares or convertible debt instruments in the relevant body corporate or another body corporate in the exercise of pre-emption or other rights in respect of, or arising from, the transfer or holding of shares or convertible debt instruments or the issue of new shares or convertible debt instruments, in the relevant body corporate,

(b) purchase, take or receive shares or convertible debt instruments in another body corporate which has common shareholders and directors to the relevant body corporate, where the other body corporate has been or is being established to hold intellectual property rights or other assets held or created by the relevant body corporate,

(c) in a case where the Agency is proposing to sell its shares or convertible debt instruments in the relevant body corporate to another body corporate, accept shares or convertible debt instruments in that other body corporate in full or part consideration for the shares or convertible debt instruments in sale, or

(d) convert its convertible shares or convertible debt instruments in the relevant body corporate or in another body corporate.

(5) In this section—

‘convertible debt instrument’means a loan note, loan stock or other financial instrument for the provision of loan finance which—

(a) has been or may be offered or issued by a body corporate to the Agency,

(b) is convertible into shares in the body corporate, and

(c) is repayable or redeemable on demand by the Agency or otherwise in accordance with the terms of that convertible debt instrument;

‘convertible shares’means shares which are convertible into shares of another class in the same body corporate;

‘shares’includes convertible shares and, where the context so requires, an option or other instrument which confers a right to acquire or subscribe for shares.]

7C. F4[Aggregate limit on investment aid

7C.Without the prior permission of the Government, the total amount of money—

(a) granted or guaranteed to a particular industrial undertaking under sections 21 to 30 of the Act of 1986, or

(b) expended in that same undertaking or body corporate in the making of a loan undersection 7Aor the purchase or taking of shares or convertible debt instruments undersection 7B,

shall not exceed in the aggregate the higher of—

(i)€15,000,000, or

(ii)€15,000,000 in excess of the aggregate amount of such grants, guarantees, investments and other such financial facilities for which the prior permission of the Government has previously been obtained.]

7D. F5[Application of certain provisions of Part III of Act of 1986

7D.Sections 35 to 37 of the Act of 1986 shall apply tosections 7Ato7Cas if—

(a) in section 35—

(i)‘this Part or sections 7A to 7C of the Act of 1998’were substituted for‘this Part’,

(ii)‘loan or loan guarantee or subscription for a convertible debt instrument within the meaning of section 7B of the Act of 1998’were substituted for‘loan guarantee’,

(iii)‘grant, loan, guarantee, subscription or purchase’were substituted for‘grant, guarantee or purchase’, and

(iv)‘Authority or Enterprise Ireland’were substituted for‘Authority’,

(b) in section 36—

(i)‘grant or other payment or the exercise of another right’were substituted for‘grant or other payment’,

(ii)‘this Part or sections 7A to 7C of the Act of 1998,’were substituted for‘this Part,’in the first place that it occurs, and‘this Part and sections 7A to 7C of the Act of 1998,’were substituted for‘this Part,’in the second place that it occurs, and

(iii)‘an industrial undertaking or body corporate, as the case may be,’were substituted for‘an industrial undertaking’in each place that it occurs,

and

(c) in section 37—

(i)‘grant, loan, subscription’were substituted for‘grant’in each place that it occurs, and

(ii)‘this Part or sections 7A to 7C of the Act of 1998,’were substituted for‘this Part,’,

and with any other necessary modifications.]

8. Ministerial directives to Agency.

8.—(1)The Minister may give the Agency such general policy directives as he or she considers appropriate to be followed by the Agency in the exercise of its functions.

(2)A directive under subsection (1) shall not apply to any individual industrial undertaking or to giving preference to one area over others in regard to the location of an industrial undertaking otherwise than as part of a general review of industrial policy for the country as a whole indicated in the directive.

(3)The Minister shall cause any directive given by him or her under subsection (1) to be laid before each House of the Oireachtas within 21 days after it has been so given.

(4)The Agency shall comply with any directive given to it under this section and shall set out the directive in its annual report and shall include in its annual report an account of the actions which it has undertaken to give effect to the directive.

(5)In this section “industrial undertaking” includes an undertaking ancillary to industry and a service industry (within the meaning of the Act of 1986).

9. Membership of Board of Agency and term of office of members.

9.—(1)The members of the Agency shall constitute its Board.

(2)The Board shall consist of 12 members.

(3)The Board shall include the chief executive officer.

(4)The members of the Board (other than the chief executive officer) shall, as soon as may be after the establishment day, be appointed by the Minister, with the consent of the Minister for Finance.

(5)The Minister shall designate one member of the Board as chairperson.

(6)There shall be paid to the members of the Board such remuneration (if any) and such allowances for expenses incurred by them as the Minister, with the consent of the Minister for Finance, may from time to time determine.

(7)Each member of the Board shall hold office on such terms (other than the payment of remuneration and allowances for expenses) as the Minister determines at the time of his or her appointment.

(8)On the anniversary of the establishment day and thereafter on each anniversary of the establishment day, two of the members of the Board (other than the chairperson and the chief executive officer) shall retire from office.

(9)The members to retire under subsection (8) in any year shall be those who have been longest in office since their last appointment, and where there are members whose appointment was made on the same day and who are obliged to retire under subsection (8), the members to retire shall, unless such members otherwise agree, be determined by lot.

(10)A member of the Board shall not serve for more than 10 consecutive years.

(11)A member of the Board shall be disqualified from being such a member where he or she—

(a)is adjudged bankrupt,

(b)makes a composition or arrangement with creditors,

(c)is convicted of an indictable offence in relation to a company,

(d)is convicted of an offence involving fraud or dishonesty, or

(e)is disqualified or restricted from being a director of any company (within the meaning of the Companies Acts, 1963 to 1990).

(12)A member of the Board may at any time resign his or her membership by letter addressed to the Minister and the resignation shall take effect from the date specified therein or upon receipt of the letter by the Minister, whichever is the later.

(13)A member of the Board may at any time for stated reasons be removed from membership of the Board by the Minister if, in the Minister's opinion, the member has become incapable through ill-health of performing his or her functions, or has committed stated misbehaviour, or his or her removal appears to the Minister to be necessary for the effective performance by the Agency of the functions of the Agency.

(14)If a member of the Board dies, resigns, retires, becomes disqualified or is removed from office, the Minister may appoint a person to be a member of the Board to fill the casual vacancy so occasioned and the person so appointed shall be appointed in the same manner as the member of the Board who occasioned the casual vacancy.

(15)A member of the Board whose period of membership expires by the effluxion of time shall be eligible for re-appointment as a member of the Board.