Companies (Amendment) (No. 2) Act 1999

(3) If any member, officer or creditor of a company is aggrieved by the fact of the company's having been struck off the register under section 12(3) or 12A(3) of this Act, the court, on an application made (on notice to the registrar of companies, the Revenue Commissioners and the Minister for Finance) by the member, officer or creditor, before the expiration of 20 years from the publication in Iris Oifigiúil of the notice referred to in section 12(3) or, as the case may be, 12A(3) of this Act, may, if satisfied that it is just that the company be restored to the register, order that the name of the company be restored to the register, and, subject to subsection (4) of this section, upon an office copy of the order being delivered to the registrar for registration, the company shall be deemed to have continued in existence as if its name had not been struck off; and the court may by the order give such directions and make such provisions as seem just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off or make such other order as seems just (and such other order is referred to in subsection (4) of this section as an ‘alternative order’).

(4) An alternative order may, if the court considers it appropriate that it should do so, include a provision that, as respects a debt or liability incurred by, or on behalf of, the company during the period when it stood struck off the register, the officers of the company or such one or more of them as is or are specified in the order shall be liable for the whole or a part (as the court thinks just) of the debt or liability.

(5) The court shall, unless cause is shown to the contrary, include in an order under subsection (3) of this section, being an order made on the application of a member or officer of the company, a provision that the order shall not have effect unless, within 1 month from the date of the court's order—

(a) if the order relates to a company that has been struck off the register under section 12(3) of this Act, all outstanding annual returns required by section 125 or 126 of the Principal Act are delivered to the registrar of companies,

(b) if the order relates to a company that has been struck off the register under section 12A(3) of this Act, all outstanding statements required by section 882 of the Taxes Consolidation Act, 1997, are delivered to the Revenue Commissioners.

(6) The court shall, in making an order under subsection (3) of this section, being an order that is made on the application of a creditor of the company, direct that one or more specified members or officers of the company shall, within a specified period—

(a) if the order relates to a company that has been struck off the register under section 12(3) of this Act, deliver all outstanding annual returns required by section 125 or 126 of the Principal Act to the registrar of companies,

(b) if the order relates to a company that has been struck off the register under section 12A(3) of this Act, deliver all outstanding statements required by section 882 of the Taxes Consolidation Act, 1997, to the Revenue Commissioners.

(7) The court, on an application made by the registrar of companies (on notice to each person who, to his knowledge, is an officer of the company) before the expiration of 20 years from the publication in Iris Oifigiúil of the notice referred to in section 12(3) or, as the case may be, 12A(3) of this Act, may, if satisfied that it is just that the company be restored to the register, order that the name of a company which has been struck off the register under the said section 12(3) or 12A(3) be restored to the register and, upon the making of the order by the court, the company shall be deemed to have continued in existence as if its name had not been struck off; and the court may by the order give such directions and make such provisions as seem just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off or make such other order as seems just (and such other order may, if the court considers it appropriate that it should do so, include a provision of the kind referred to in subsection (4) of this section).

(8) A letter or notice to be sent under this section to a company may be addressed to the company at its registered office, or, if no office has been registered, to the care of some officer of the company, or, if there is no officer of the company whose name and address are known to the registrar of companies, may be sent to each of the persons who subscribed to the memorandum, addressed to him at the address mentioned in the memorandum.

(9) Without prejudice to section 2(1) of the Principal Act where such an application is made by any other person, in the case of an application under this section that is made by a creditor of the company or the registrar of companies, ‘the court’, for the purposes of this section, means the Circuit Court.

(10) An application under this Act to the Circuit Court by a creditor of the company concerned shall be made to the judge of the Circuit Court for the circuit in which the registered office of the company was, immediately before it was struck off the register, situated or, if no office was registered at that time, for the circuit in which the creditor resides or, in case the creditor resides outside the State, for the Dublin Circuit.

(11) An application under this section to the Circuit Court by the registrar of companies shall be made to the judge of the Circuit Court for the Dublin Circuit.

12C. (1) Without prejudice to the provisions of section 311(8) or 311A(1) of the Principal Act or subsection (3) or (7) of section 12B of this Act, if a member or officer of a company is aggrieved by the fact of the company's having been struck off the register under section 12A(3) of this Act, the registrar of companies, on an application made in the prescribed form by the member or officer before the expiration of 12 months from the publication in Iris Oifigiúil of the notice striking the company name from the register, and provided he has received confirmation from the Revenue Commissioners that all outstanding, if any, statements required by section 882 of the Taxes Consolidation Act, 1997, have been delivered to the Revenue Commissioners, may restore the name of the company to the register.

(2) Upon the registration of an application under subsection (1) of this section and on payment of such fees as may be prescribed, the company shall be deemed to have continued in existence as if its name had not been struck off.

(3) Subject to any order made by the court in the matter, the restoration of the name of a company to the register under this section shall not affect the rights or liabilities of the company in respect of any debt or obligation incurred, or any contract entered into by, to, with or on behalf of, the company between the date of its dissolution and the date of such restoration.

12D. If the question of whether a statement which a company has failed to deliver to the Revenue Commissioners in accordance with section 882(3) of the Taxes Consolidation Act, 1997, has or has not been subsequently delivered to them falls to be determined for the purpose of the exercise by the registrar of companies of any of the powers under sections 12A to 12C of this Act, the Revenue Commissioners may, notwithstanding any obligations as to secrecy or other restriction upon disclosure of information imposed by or under statute or otherwise, disclose to the registrar any information in their possession required by him for the purpose of that determination.”.

47 Amendment of section 195 of Principal Act.

47.—Section 195 of the Principal Act (inserted by section 51 of the Companies Act, 1990) is hereby amended—

(a) by the deletion of subsection (8), and

(b) by the insertion after subsection (11) of the following subsections:

“(11A) If a company fails to send, in accordance with subsection (6), a notification, in the prescribed form, to the registrar of companies of the fact of a person's having ceased, for whatever reason, to be a director or secretary of the company and of the date on which that event occurred that person may serve on the company a notice—

(a) requesting it to send forthwith the notification of that matter, in the prescribed form, to the registrar, and

(b) stating that if the company fails to comply with that request within 21 days of the service of the notice on it, he will forward to the registrar of companies and to every person who, to his knowledge, is an officer of the company a copy of any notice of resignation by him as a director or secretary of the company or any other documentary proof of his having ceased to be such a director or secretary together with—

(i) in the case of the registrar of companies, such additional information as may be prescribed (which may include a statutory declaration made by the person stating the names of the persons who, to his knowledge, are officers of the company), and

(ii) in the case of every other person as aforesaid, a written request of the person that he take such steps as will ensure that the failure of the company to comply with the notice continues no further.

(11B) If a company fails to comply with a request made of it under a notice referred to in subsection (11A) the person who served the notice may forward to the registrar of companies and to every person who, to his knowledge, is an officer of the company a copy of the notice of resignation or other documentary proof referred to in subsection (11A) if, but only if, there is forwarded together with that notice or proof, in the case of the registrar, the additional information referred to in that subsection and, in the case of every other person as aforesaid, the written request referred to in that subsection.

(11C) No notice of resignation or other documentary proof of a person's having ceased to be a director or secretary of a company which is forwarded to the registrar of companies by that person (other than such a notice or other proof which is forwarded by him under and in accordance with subsections (11A) and (11B), or section 43(9) of the Companies (Amendment) (No. 2) Act, 1999) shall be considered by the registrar.

(11D) No additional information referred to in subsection (11A) (b)(i) that is included in a notice of resignation or other documentary proof referred to in this section which is forwarded, under and in accordance with the foregoing provisions, to the registrar of companies shall, of itself, be regarded as constituting defamatory matter.

(11E) Any person may give notice (accompanied by such proof of the matter concerned as may be prescribed) to the registrar of companies of the fact that a person holding the office of director or secretary of a particular company has died.”.

48 Exercise of power to strike company off register where it is not carrying on business.

48.—The fact that for the time being, in consequence of the forwarding to the registrar, under and in accordance with subsections (11A) and (11B) of section 195 of the Principal Act, of a copy of a notice of resignation or other documentary proof of a person's having ceased to be a director of the company concerned, there are no persons recorded in the office of the registrar of companies as being directors of a particular company shall, for the purposes of section 311 of the Principal Act, afford the registrar of companies good grounds for believing that the company is not carrying on business, and for so believing with the cause requisite for the exercise by him or her of the powers conferred by subsection (1) of that section 311 in relation to the company.

49 Amendment of section 311 of Principal Act.

49.—Section 311 of the Principal Act is hereby amended—

(a) in subsection (8), by the substitution for “as if the name of the company had not been struck off.” of “as if the name of the company had not been struck off or make such other order as seems just (and such other order is referred to in subsection (8A) as an ‘alternative order’).”, and

(b) by the insertion after subsection (8) of the following subsection:

“(8A) An alternative order may, if the court considers it appropriate that it should do so, include a provision that, as respects a debt or liability incurred by, or on behalf of, the company during the period when it stood struck off the register, the officers of the company or such one or more of them as is or are specified in the order shall be liable for the whole or part (as the court thinks just) of the debt or liability.”.

50 Amendment of section 311A of Principal Act.

50.—Section 311A (inserted by the Companies Act, 1990) of the Principal Act is hereby amended by the substitution in subsection (1) for “Without prejudice to the provisions of section 311(8) of this Act and section 12(6) of the Companies (Amendment) Act, 1982,” of “Without prejudice to the provisions of section 311(8) of this Act or subsection (3) or (7) of section 12B, or subsection (1) of section 12C, of the Companies (Amendment) Act, 1982,”.

51 Amendment of section 8 of Companies (Amendment) Act, 1983.

51.—Section 8 of the Companies (Amendment) Act, 1983, is hereby amended in subsection (3) by the substitution for “(7) and (8)” of “(7), (8) and (8A)”.

52 Performance of duties of registrar of companies.

52.—(1) Any act referred to in subsection (4) of section 368 of the Principal Act which, before the commencement of this section, was done to or by—

(a) an assistant registrar appointed under subsection (2) of that section, or

(b) any other person employed in the office of the registrar of companies to perform generally duties under any enactment referred to in that subsection,

shall be valid and be deemed always to have been valid as if the Minister had directed under that subsection (4) that such an act was to be done to or by such an assistant registrar or other such person (including in cases where the existing registrar of joint stock companies (or his or her successor) was not absent).

(2) On and from the commencement of this section, any act required or authorised by the Companies Acts, 1963 to 1999, the Registration of Business Names Act, 1963, or the Limited Partnerships Act, 1907, to be done to or by the registrar of companies, the registrar of joint stock companies or, as the case may be, a person referred to in the enactment concerned as “the registrar” may be done to or by a registrar or assistant registrar appointed under section 368(2) of the Principal Act or any other person authorised in that behalf by the Minister.

(3) Subsection (4) of section 368 of the Principal Act shall cease to have effect.

53 Amendment of sections 20 and 21 of Companies Act, 1990.

53.—(1) Section 20 of the Companies Act, 1990, is hereby amended by the substitution in subsection (3) for “any such criminal proceedings as are mentioned in section 21(1)(a) or (1)(b)” of “any proceedings for an offence mentioned in section 21(1)(a)”.

(2) Section 21 of the Companies Act, 1990, is hereby amended by the substitution for subsection (1) of the following subsection:

“(1) No information, book or document relating to a body which has been obtained under section 19 or 20 shall, without the previous consent in writing of that body, be published or disclosed, except to a competent authority, unless the publication or disclosure is, in the opinion of the Minister, required—

(a) with a view to the investigation or prosecution of any offence, being an offence—

(i) under

(I) the Companies Acts;

(II) the Central Bank Acts, 1942 to 1998;

(III) the Exchange Control Acts, 1954 to 1986;

(IV) the Insurance Acts, 1909 to 1990;

(V) the Taxes Consolidation Act, 1997; or

(VI) regulations relating to insurance made under the European Communities Act, 1972;

or

(ii) entailing misconduct in connection with the management of the body's affairs or misapplication or wrongful retainer of its property;

(b) for the purpose of assessing the liability of a person in respect of a tax or duty or other payment owed or payable to the State, a local authority (within the meaning of the Local Government Act, 1941) or a health board or for the purpose of collecting an amount due in respect of such a tax or duty or other payment;

(c) for the purpose of the performance by a tribunal (to which the Tribunals of Inquiry (Evidence) Acts, 1921 to 1998, apply) of any of its functions;

(d) for the purpose of assisting or facilitating the performance by any Minister of the Government of any of his functions;

(e) for the purpose of assisting or facilitating any accountancy or other professional organisation in the performance of its disciplinary functions with respect to any of its members;

(f) for the purpose of the performance by the Irish Takeover Panel or any stock exchange established in the State of any of its functions in relation to the body or any other person who, in its opinion, is connected with the body;

(g) for the purposes of complying with the requirements of procedural fairness, to be made to—

(i) any company in relation to which an inspector has been appointed under section 14 or any person required by the Minister to give any information under section 15, or

(ii) any body in relation to which a person has been authorised under section 19 to exercise the powers conferred by that section or any person named in a report prepared by a person so authorised;

(h) for the purpose of complying with any requirement, or exercising any power, imposed or conferred by this Part with respect to reports made by inspectors appointed thereunder by the court or the Minister;

(i) with a view to the institution by the Minister of proceedings for the winding-up under the Principal Act of the body or otherwise for the purposes of proceedings instituted by him for that purpose;

(j) for the purposes of proceedings under section 20 or 160.”.

(3) Section 21(3) of the Companies Act, 1990, is hereby amended—

(a) by the deletion in paragraph (g) of “and”, and

(b) by the substitution for paragraph (h) of the following paragraphs:

“(h) the Central Bank, and

(i) any authority established outside the State in which there are vested—

(i) functions of investigating or prosecuting an offence similar to an offence referred to in paragraph (a) of subsection (1),

(ii) functions of assessing the liability of a person in respect of a tax or duty or other payment owed or payable to the state in which it is established or any other authority established in that state or of collecting an amount due in respect of such a tax or duty or other payment, or

(iii) functions which are similar to the functions referred to in paragraph (c), (d), (e) or (f) of subsection (1).”.

(4) The amendments effected by this section shall apply in relation to the publication or disclosure, after its commencement, of information, books or documents which have been obtained under section 19 or 20 of the Companies Act, 1990, whether before or after that commencement.

54 Amendment of Part XIII (Investment Companies) of Companies Act, 1990.

54.—(1) Section 253 of the Companies Act, 1990, is hereby amended—

(a) in subsection (1)—

(i) by the deletion in paragraph (a) of “and”,

(ii) by the insertion in paragraph (b), after “nominal value thereto,” of “and”, and

(iii) by the addition of the following paragraph after paragraph (b):

“(c) that the issued share capital of the company for the time being shall not be less than a minimum amount nor more than a maximum amount specified in the memorandum,”,

and

(b) in subsection (2A) (inserted by the Investment Intermediaries Act, 1995), by the deletion of paragraph (b).

(2) Section 256 of the Companies Act, 1990, is hereby amended—

(a) in subsections (5) and (7), by the substitution for “by promoting the sale of its shares to the public”, in each place where it occurs, of “by providing facilities for the direct or indirect participation by the public in the profits and income of the company”,

(b) in subsection (6), by the substitution for “promote the sale of its shares to the public” of “provide facilities for the direct or indirect participation by the public in the profits and income of the company”, and

(c) by the deletion of subsection (9).

(3) The following section is hereby substituted for section 260 of the Companies Act, 1990:

“Amendment and restriction of certain provisions of Companies Acts.	260.—(1) The following provisions of the Principal Act, namely sections 5(1), 36, 213(d) and 215(a)(i), are hereby amended by the insertion after ‘private company’, in each place where it occurs in those provisions, of ‘or an investment company (within the meaning of Part XIII of the Companies Act, 1990)’.
	(2) None of the following provisions of the Principal Act shall apply to an investment company, namely sections 53, 56, 58, 60, 69, 70, 72, 119 and 125.
	(3) None of the following provisions of the Companies (Amendment) Act, 1983, shall apply to an investment company, namely sections 5(2), 6 and 19, subsections (3) and (4) of section 20, sections 22, 23 to 25, 30 to 33, 40, 41 and Part IV.
	(4) Section 14 of the Companies (Amendment) Act, 1986, shall not apply to an investment company.
	(5) None of the following provisions of this Act shall apply to an investment company, namely, Chapters 2 to 4 of Part IV, section 140 (whether as regards a case in which the investment company is being wound up or a case in which it is a related company (within the meaning of that section)) and Part XI.”.

FIRST SCHEDULE Specific Provisions from which Company is Exempted under Part III

SECOND SCHEDULE List of Companies for Purposes of Section 3(2)(c) of Act of 1990 and Sections 32 and 45

(a) a holder of an authorisation within the meaning of—

(i) Regulation 2 of the European Communities (Non-Life Insurance) Regulations, 1976 (S.I. No. 115 of 1976),

(ii) Regulation 2 of the European Communities (Non-Life Insurance) Framework Regulations, 1994 (S.I. No. 359 of 1994),

(iii) Regulation 2 of the European Communities (Life Assurance) Regulations, 1984 (S.I. No. 57 of 1984), or

(iv) Regulation 2 of the European Communities (Life Assurance) Framework Regulations, 1994 (S.I. No. 360 of 1994),

or

(b) a holder of an authorisation granted under the European Communities (Non-Life Insurance) (Amendment) (No. 2) Regulations, 1991 (S.I. No. 142 of 1991).