Companies Act 2014

• (a) the consideration for the allotment referred to in subsection (1) has been valued in accordance with the provisions of Chapter 3 of Part 17 that are applied by this section, and

• (b) a report with respect to the consideration’s value has been made to the company in accordance with those provisions during the 6 months immediately preceding the date of that allotment,

but this is subject to subsection (4).

• (3) Without prejudice to subsection (4), the following provisions of Chapter 3 of Part 17, namely—

• (a) section 1028(5) to (11),

• (b) section 1029(4), and

• (c) section 1030,

shall apply for the purposes of this section as they apply for the purposes of subsection (1) of section 1028 and as if the references in them to that subsection (1) were references to subsection (2) of this section and with any other necessary modifications.

• (4) The provisions of Chapter 3 of Part 17 that operate to disapply the requirement under section 1028(1) for a valuation of the consideration referred to in that provision to be carried out (and the making of a report thereon) shall operate to disapply the requirement under subsection (2) for a valuation of the consideration referred to in that subsection to be carried out (and the making of a report thereon).

• (5) For the purpose of those foregoing provisions (as they operate by virtue of the preceding subsection), those provisions shall apply as if the references in them to subsection (1) of section 1028 were references to subsection (2) of this section and with any other necessary modifications.

• (6) In this section “balance sheet date” means the date as of which the balance sheet referred to in section 1291(1)(a) is prepared.

1294. Application of certain other provisions of Part 17 on allotments to a company that passed resolution for re-registration

1294. Sections 1025 to 1033 and 1036, 1037 and 1038 shall apply to a company which has passed and not revoked a resolution that the company be re-registered a PLC as those sections apply to a PLC.

1295. Power of unlimited company to provide for reserve share capital on re-registration

1295. An unlimited company having a share capital may, by its special resolution for re-registration as a limited company in pursuance of this Part, do either or both of the following things:

• (a) increase the nominal amount of its share capital by increasing the nominal amount of each of its shares, but subject to the condition that no part of the increased capital shall be capable of being called up, except in the event and for the purposes of the company being wound up;

• (b) provide that a specified portion of its uncalled share capital shall not be capable of being called up except in the event and for the purposes of the company being wound up.

1296. Particular requirements for re-registration of limited company as unlimited

1296. (1) A limited company may be re-registered as an unlimited company if, in addition to compliance by the company with the relevant Chapter 2 requirements, all the members of it have assented to its being so re-registered and the following requirements are complied with—

• (a) the company delivers to the Registrar—

• (i) the prescribed form of assent to the company’s being re-registered as an unlimited company subscribed to by, or on behalf of, all members of the company, and

• (ii) subject to subsection (2), the financial statements specified in subsection (3) and the report specified in subsection (6),

and

• (b) the statement of compliance includes confirmation by a director or secretary of the company that—

• (i) the persons by whom, or on whose behalf, the form of assent referred to in paragraph (a) is subscribed constitute the whole membership of the company, and

• (ii) if any of the members have not, themselves, subscribed that form, that the directors have taken all reasonable steps to satisfy themselves that each person who subscribed it on behalf of a member was lawfully empowered to do.

• (2) Subsection (1)(a)(ii) does not apply if—

• (a) within the period of 3 months prior to the date of the application to re-register, the company has delivered to the Registrar, in accordance with Part 6, an annual return with the financial statements required by that Part annexed to it, or

• (b) the company was incorporated in that period of 3 months.

• (3) The financial statements referred to in subsection (1)(a)(ii) are financial statements of the company covering a period that—

• (a) ends on a date that is not more than 3 months prior to the date of the application to re-register, and

• (b) subject to subsection (4), is of at least 12 months duration.

• (4) If, by reason of the company’s recent incorporation, it is not possible for the duration of the foregoing period — that will be covered by the foregoing financial statements — to be one of 12 months, then the period covered by them shall be a period beginning on the date of the company’s incorporation and ending on the first-mentioned date in subsection (3)(a).

• (5) The provisions of Part 6 as the form and content of, and the notes to accompany, the financial statements required by that Part shall apply to the financial statements specified in subsection (3).

• (6) Unless the company would be entitled to avail itself of the audit exemption conferred by Chapter 15 or 16 of that Part in respect of financial statements that are required to be prepared by that Part (being statements that would cover the period covered by the financial statements specified in subsection (3)), the provisions of Part 6 as to the auditing of financial statements required to be prepared by that Part shall apply to the financial statements specified in subsection (3); accordingly there shall accompany the latter statements that are delivered to the Registrar a report of the company’s statutory auditors on them that complies with Part 6.

• (7) For the purposes of this section—

• (a) subscription to a form of assent by the personal representative of a deceased member of a company shall be deemed to be subscription by the member,

• (b) an assignee in bankruptcy of a person who is a member of a company shall, to the exclusion of that person, be deemed to be a member of the company.

• (8) Where a company is re-registered as an unlimited company, a person who at the time when the application for it to be re-registered was delivered to the Registrar, was a past member of the company and did not thereafter again become a member thereof shall not, in the event of the company’s being wound up, be liable to contribute to the assets of the company more than he or she would have been liable to contribute thereto had it not been so-registered.

• (9) Subsection (10) applies if the provisions of Part 6 on abridged financial statements (being statements that would cover the period covered by the financial statements specified in subsection (3)) could be availed of by the company with respect to the financial statements required by that Part to be prepared.

• (10) Where this subsection applies, then the provisions of Part 6 on abridged financial statements may be availed of by the company with respect to the financial statements specified in subsection (3) and those provisions shall have effect accordingly and the reference in subsection (6) to a report of the company’s statutory auditors shall, if those provisions are availed of by the company, be read as a reference to a special report of those auditors referred to in section 356.

1297. Particular requirements for re-registration of company as a CLG

1297. (1) A company may be re-registered as a company limited by guarantee if, in addition to compliance by the company with the relevant Chapter 2 requirements, the following requirements are complied with—

• (a) where the company is a company with a share capital, all the members of it have assented to its being re-registered as a company limited by guarantee and the conditions specified in subsection (2) are satisfied, and

• (b) where the company is an unlimited company, in addition to the requirements of paragraph (a), the special resolution required by section 1285(1)(a) includes a statement that the liability of the members of the resultant company is to be limited as provided for in the relevant alterations of its constitution made by that resolution.

• (2) The conditions referred to in subsection (1)(a) are—

• (a) the company delivers to the Registrar the prescribed form of assent to the company’s being re-registered as a company limited by guarantee subscribed to by, or on behalf of, all members of the company,

• (b) the statement of compliance includes confirmation by a director or secretary of the company that—

• (i) the persons by whom, or on whose behalf, the form of assent referred to in paragraph (a) is subscribed constitute the whole membership of the company, and

• (ii) if any of the members have not, themselves, subscribed that form, that the directors have taken all reasonable steps to satisfy themselves that each person who subscribed it on behalf of a member was lawfully empowered to do,

and

• (c) unless the position concerning the allotted share capital of the company, at the date of the application for re-registration, is as referred to in subsection (3), the court, on application to it by the company in that behalf, sanctions its re-registration as a company limited by guarantee and gives directions as to how its company capital is to be treated in the framework of the resultant company.

• (3) The position mentioned in subsection (2)(c), concerning the company’s allotted share capital, is that the following conditions are satisfied—

• (a) no amount is paid up on it, and

• (b) its nominal value does not exceed the aggregate maximum amount that the company’s shareholders, who become members of the resultant company on the issue of the certificate of incorporation under section 1285(6), would be liable to pay by virtue of the latter company’s memorandum were the latter immediately then to be wound up.

• (4) For the purposes of this section—

• (a) subscription to a form of assent by the personal representative of a deceased member of a company shall be deemed to be subscription by the member,

• (b) an assignee in bankruptcy of a person who is a member of a company shall, to the exclusion of that person, be deemed to be a member of the company.

1298. Particular requirements for re-registration of company as a DAC limited by shares

1298. (1) A company may be re-registered as a DAC limited by shares if, in addition to compliance by the company with the relevant Chapter 2 requirements, the following requirements are complied with:

• (a) where the company is a PLC—

• (i) the period during which an application under section 1287 for the cancellation of the special resolution has expired without any such application having been made, or

• (ii) where such an application has been made, the application has been withdrawn, or

• (iii) either—

• (I) an order, not falling within clause (II), has been made under section 1287 confirming the resolution, or

• (II) if an order has been made under that section confirming the resolution but providing that re-registration shall not take effect unless specified terms and conditions are satisfied, those terms and conditions are satisfied,

and, in either case, a certified copy of that order has been delivered to the Registrar;

and

• (b) where the company is an unlimited company, the special resolution required by section 1285(1)(a) includes a statement that the liability of the members of the resultant company is to be limited by shares and specifying what is to be the authorised share capital of the resultant company and the fixed amount of the shares into which that share capital is to be divided.

1299. Particular requirements for re-registration of company as a DAC limited by guarantee

1299. (1) A company may be re-registered as a DAC limited by guarantee if, in addition to compliance by the company with the relevant Chapter 2 requirements, the following requirements are complied with—

• (a) where the company is a PLC—

• (i) the period during which an application under section 1287 for the cancellation of the special resolution has expired without any such application having been made, or

• (ii) where such an application has been made, the application has been withdrawn, or

• (iii) either—

• (I) an order, not falling within clause (II), has been made under section 1287 confirming the resolution, or

• (II) if an order has been made under that section confirming the resolution but providing that re-registration shall not take effect unless specified terms and conditions are satisfied, those terms and conditions are satisfied,

and, in either case, a certified copy of that order has been delivered to the Registrar,

• (b) where the company is an unlimited company, the special resolution required by section 1285(1)(a) includes a statement that the liability of the members of the resultant company is to be limited as provided for in the relevant alterations of its constitution made by that resolution, and

• (c) where the company is a company with a share capital, all the members of it have assented to its being re-registered as a DAC limited by guarantee and the conditions specified in subsection (2) are satisfied.

• (2) The conditions referred to in subsection (1)(c) are—

• (a) the company delivers to the Registrar the prescribed form of assent to the company’s being re-registered as a DAC limited by guarantee subscribed to by, or on behalf of, all members of the company,

• (b) the statement of compliance includes confirmation by a director or secretary of the company that—

• (i) the persons by whom, or on whose behalf, the form of assent referred to in paragraph (a) is subscribed constitute the whole membership of the company, and

• (ii) if any of the members have not, themselves, subscribed that form, that the directors have taken all reasonable steps to satisfy themselves that each person who subscribed it on behalf of a member was lawfully empowered to do,

and

• (c) unless the position concerning the allotted share capital of the company, at the date of the application for re-registration, is as referred to in subsection (3), the court, on application to it by the company in that behalf, sanctions its re-registration as a DAC limited by guarantee and gives directions as to how its company capital is to be treated in the framework of the resultant company.

• (3) The position mentioned in subsection (2)(c), concerning the company’s allotted share capital, is that the following conditions are satisfied—

• (a) no amount is paid up on it, and

• (b) its nominal value does not exceed the aggregate maximum amount that the company’s shareholders, who become members of the resultant company on the issue of the certificate of incorporation under section 1285(6), would be liable to pay by virtue of the latter company’s memorandum were the latter immediately then to be wound up.

• (4) For the purposes of this section—

• (a) subscription to a form of assent by the personal representative of a deceased member of a company shall be deemed to be subscription by the member,

• (b) an assignee in bankruptcy of a person who is a member of a company shall, to the exclusion of that person, be deemed to be a member of the company.

PART 21 EXTERNAL COMPANIES

CHAPTER 1 Preliminary

1300. Interpretation (Part 21)

1300. (1) In this Part—

“1989 Directive” means Council Directive No. 89/666/EEC of 21 December 1989;

“2009 Directive” means Directive 2009/101/EC of 16 September 2009;

“accounting documents” means, in relation to a financial year of an external company, the following documents—

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

• (b) any annual report of the directors of the company for that period;

and subsections (2) and (3) supplement this definition;

“branch” has the same meaning as it has in the 1989 Directive;

“certified” means certified by—

• (a) a director or secretary of the external company before any of the persons or other bodies specified in paragraphs (b) to (d);

• (b) any person authorised to take statutory declarations;

• (c) any notary or notary public;

• (d) a court;

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

“constitutive documents”, in relation to an external company, means its memorandum of association and articles of association or its charter, statutes or other instrument constituting or defining its constitution;

“credit or financial institution” means a credit institution or financial institution to which Council Directive 89/117/EEC of 13 February 1989 applies;

F961["EEA company" means—

• (a) a body corporate—

• (i) which is incorporated in a state (other than the State) that is an EEA state, and

• (ii) whose members’ liability in respect of such body corporate is limited,

or

• (b) an undertaking—

• (i) which is formed or incorporated in a state (other than the State) that is an EEA state,

• (ii) whose members’ liability in respect of such undertaking is unlimited, and

• (iii) which is a subsidiary undertaking of a body corporate whose members’ liability in respect of such body corporate is limited;]

“external company” means an EEA company or a non-EEA company;

“financial year” in relation to an external company, means the period for which the external company prepares its accounts in accordance with the law of the state in which it is incorporated;

F962["non-EEA company" means—

• (a) a body corporate—

• (i) which is incorporated in a state that is not an EEA state, and

• (ii) whose members’ liability in respect of such body corporate is limited,

or

• (b) an undertaking—

• (i) which is formed or incorporated in a state that is not an EEA state,

• (ii) whose members’ liability in respect of such undertaking is unlimited, and

• (iii) which is a subsidiary undertaking of a body corporate whose members’ liability in respect of such body corporate is limited.]

• (2) Subject to subsection (3), “documents”, in the definition of “accounting documents” in subsection (1), means documents as audited in accordance with the laws of the state in which the external company is incorporated and, accordingly, “documents” in that definition includes the report of the auditors on—

• (a) the accounts referred to in paragraph (a) of it, and

• (b) any directors’ annual report referred to in paragraph (b) of it.

• (3) Subsection (2) does not apply if—

• (a) in a case where the external company is an EEA company, the foregoing accounts have not (in circumstances permitted by the relevant Community act) been audited in accordance with the laws of the EEA state concerned, or

• (b) in a case where the external company is a non-EEA company, the foregoing accounts have not (in circumstances permitted by the laws of the state concerned) been audited in accordance with those laws.

1301. Application to external companies of certain provisions of Parts 1 to 14

1301. (1) In this section “relevant external company” means an external company that satisfies the following conditions—

• (a) either—

• (i) after the commencement of this section, a branch in the State is established by the external company, or

• (ii) immediately before that commencement, a branch in the State stands established by it,

and

• (b) subject to subsection (2)(b), the foregoing branch is not subsequently closed, or has not otherwise ceased to be established in the State, at the time this section falls to be applied.

• (2) For the purposes of subsection (1)—

• (a) in relation to the application of Part 7 by this section, the relevant time that this section falls to be applied at shall be taken to be the time of the creation by the company of the charge, the acquisition by it of the property or the creation of the judgment mortgage referred to in subsection (4)(a), (b) or (c), as the case may be, and

• (b) in relation to the application of Part 13 by this section, it suffices, for a company to be a relevant external company, that it satisfies the condition specified in paragraph (a) of subsection (1).

• (3) Section 132 shall apply to a relevant external company as it applies to a company referred to in section 132.

• (4) Subject to subsection (5), Part 7 shall apply to—

• (a) charges on property in the State which are created after the commencement of this section by a relevant external company,

• (b) charges on property in the State which is acquired after that commencement by such a company, and

• (c) judgment mortgages created after that commencement and affecting property in the State of such a company,

as that Part applies to charges created, or charges on property acquired, by a company referred to in that Part or, as the case may be, judgment mortgages affecting property of a company so referred to.

• (5) Without prejudice to the application generally of the provisions of Part 7 by subsection (4) and, in particular, the consequence of a charge being void under section 409(1), the following provisions of that Part, namely, sections 409(3) and (4) and 410(2), may not, with respect to a charge created by a relevant external company, be availed of by the company or a person referred to in section 410(2) unless the company has complied with, as the case may be—

• (a) section 1302(1) and (2), or

• (b) section 1302(1) and (2) as applied by section 1304.

• (6) Subject to subsection (7), Parts 13 and 14 (other than section 798) shall apply to a relevant external company as Part 13 or 14, as the case may be, applies to a company referred to in that Part.

• (7) The following provisions have effect as regards the foregoing application of Parts 13 and 14—

• (a) in section 747—

• (i) paragraphs (a) to (d) (which confer standing on certain persons to apply to have one or more competent inspectors appointed to investigate the affairs of a company) of subsection (2) shall not apply, and

• (ii) the following shall be substituted for paragraph (e) of subsection (2):

• “(e) a person who is a creditor of the company, but only if the person is the company’s creditor by reference to a liability which has arisen under and by virtue of business carried on in the State by the company.”;

• (b) section 763 (investigation of share dealing by inspector appointed by F963[Authority]) shall not apply;

• (c) in section 797 (court may order compliance by company or officer) “officer” shall include the one or more persons authorised by the relevant external company to ensure compliance with this Part;

• (d) references to an insolvent company in Chapters 3, 5 and 6 of Part 14 shall be read as including references to a relevant external company that is insolvent if, but only if, the latter is an unregistered company (within the meaning of Chapter 3 of Part 22) that is being wound up pursuant to that Chapter;

• (e) for the avoidance of doubt, the reference in subsection (6) to a company referred to in Part 14 — so far as it is in Chapter 3, 4, 5 or 6 of that Part that the reference occurs — includes, as well as a private company limited by shares, any other company referred to in section 819(6) where the following is the context—

• (i) the context of the reference in section 819(1) to a person’s being appointed or acting as a director or secretary of a company, or taking part in the formation or promotion of a company;

• (ii) the context of section 825;

• (iii) the context of section 838;

• (iv) the context of a provision that otherwise imposes a restriction on a company by reference to the fact of its having a restricted person (within the meaning of section 826) or otherwise makes provision in consequence of that fact; and

• (v) the context of a provision that otherwise makes provision in consequence of a person’s being disqualified (within the meaning of section 838);

• (f) in section 879(1), for “Parts 1 to 13 or Part 15” there shall be substituted “Parts 1 to 13 or Part 15 or 22”;

• (g) in section 880(1), for “Parts 1 to 13 or Part 15” there shall be substituted “Parts 1 to 13 or Part 15 or 22”; and

• (h) the principal place of business in the State of the relevant external company shall be deemed to be its registered office.

• (8) This section is in addition to section 1311(2) and (3) (which relate to the application of sections 270 and 271 to external companies and certain persons having responsibilities in relation to them).

CHAPTER 2 Filing obligations of external companies

1302. Filing obligations of EEA company

1302. (1) An EEA company that establishes a branch in the State shall, within 30 days after the date of its doing so, deliver to the Registrar a certified copy of its constitutive documents.

• (2) An EEA company that establishes a branch in the State shall, within 30 days after the date of its doing so, notify the Registrar of, or as the case may be, deliver to the Registrar (in either case in the prescribed manner) the following particulars or matters—

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

• (b) a copy of its certificate of incorporation;

• (c) the address of the branch;

• (d) the activities at the branch;

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

• (f) a list of its directors and secretary and any other persons who are authorised to represent the company in dealings with third parties and in legal proceedings together with the following particulars 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) the name and addresses of some one or more persons resident in the State who is or are—

• (i) authorised to accept service of documents required to be served on the EEA company, and

• (ii) authorised to ensure compliance with the provisions of this Part together with a consent signed by each such person to act in that capacity;

• (h) unless it is a credit or financial institution, copies of its latest accounting documents, that is to say the latest accounting documents—

• (i) prepared in relation to a financial year of the company (in accordance with the laws of the EEA state in which it is incorporated), and

• (ii) made public (in accordance with those laws) before the end of the period allowed for compliance with subsection (1) in respect of the branch, or if earlier, the date on which the company complies with subsection (1) in respect of the branch.

• (3) An EEA company that establishes a branch in the State shall also deliver to the Registrar, in the prescribed manner, the following documents and notices within 30 days after the date of the occurrence of the event concerned, namely—

• (a) any document making or evidencing an alteration in its constitutive documents,

• (b) every amended text of its constitutive documents,

• (c) notice of a change among the persons referred to in subsection (2)(f) or (g) 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 subsection (2)(c) together with the new address of the branch,

• (e) notice of the winding up of the company, the appointment of one or more liquidators, particulars concerning them and their powers and the termination of the winding up in accordance with disclosure by the company as provided for in Article 2(h), (j) and (k) of the 2009 Directive and particulars concerning insolvency proceedings, arrangements, compositions or any analogous proceedings to which the company is subject, and

• (f) notice of the closure of the branch or its otherwise ceasing to be established in the State.

• (4) Section 149(12) shall apply for the purposes of subsection (2)(f).

• (5) The reference in subsection (2)(h) to a copy of an accounting document is a reference to a copy that satisfies the following conditions—

• (a) it is a true copy of the original save for the difference that the signature or signatures on the original, and any date or dates thereon, shall appear in typeset form on the copy; and

• (b) it is accompanied by a certificate of a director and the secretary of the company, that bears the signature of the director and the secretary in electronic or written form, stating that the copy is a true copy of the original (and one such certificate relating to all of the accounting documents mentioned in subsection (2) suffices and the foregoing statement need not be qualified on account of the difference permitted by paragraph (a) as to the form of a signature or of a date).

• (6) The documents and information referred to in subsection (2), and in subsection (3), other than paragraphs (a) and (b) of that subsection, shall be made available by the Registrar to the system of interconnection of registers.

• (7) For the purposes of communications between registers (through the system of interconnection of registers) the Registrar shall assign a unique identifier to each branch which shall include elements to identify the branch as a branch in the State, to identify the number assigned to the branch in the register and other appropriate elements to avoid identification errors.

• (8) On receipt of information, through the system of interconnection of registers, that an EEA company, that has established a branch or branches in the State, has been wound up, dissolved or otherwise removed from the register in the state in which it is incorporated, the Registrar shall, as soon as practicable, enter in the register, in respect of each branch recorded in the register, the fact that the company has been so removed from the first-mentioned register save that this subsection shall not apply in any case in which the company has been so removed as a result of any change in the legal form of the company, a merger or division, or a cross border transfer of its registered office.

• (9) If subsection (1), (2) or (3) is not complied with by an EEA company, the company and any officer of it who is in default shall be guilty of a category 3 offence.

1303. Accounting documents to be filed by EEA company

1303. (1) Subject to subsection (7), for so long as a branch of it stands established in the State, an EEA company shall in each year deliver to the Registrar, in the prescribed manner, the following documents.

• (2) Those documents are a copy of the accounting documents, for the financial year concerned, that the EEA company is required to cause to be prepared, and to be made public, in accordance with the laws of the EEA state in which it is incorporated.

• (3) Those accounting documents shall be so delivered to the Registrar not later than 30 days after the last date upon which the EEA company was required to cause such accounting documents to be made public in accordance with the laws of the EEA state in which it is incorporated.

• (4) The reference in subsection (2) to a copy of an accounting document is a reference to a copy that satisfies the following conditions—

• (a) it is a true copy of the original save for the difference that the signature or signatures on the original, and any date or dates thereon, shall appear in typeset form on the copy, and

• (b) it is accompanied by a certificate of a director and the secretary of the company, that bears the signature of the director and the secretary in electronic or written form, stating that the copy is a true copy of the original (and one such certificate relating to all of the accounting documents mentioned in subsection (2) suffices and the foregoing statement need not be qualified on account of the difference permitted by paragraph (a) as to the form of a signature or of a date).

• (5) If this section is not complied with by an EEA company, the company and any officer of it who is in default shall be guilty of a category 3 offence.

• (6) Without prejudice to the generality of subsections (1) and (2) of section 865, summary proceedings in relation to an offence under this section may be brought and prosecuted by the Registrar.

• (7) This section shall not apply to a company that is a credit or financial institution.

1304. Filing obligations of non-EEA company

1304. (1) If a non-EEA company establishes a branch in the State, the same requirements under section 1302(1) and (2) as apply to an EEA company’s doing so shall apply to the non-EEA company and, accordingly, section 1302(1) and (2) shall apply to the non-EEA company, but with the following modifications.

• (2) Those modifications are that—

• (a) the following paragraph shall be substituted for paragraph (e) of section 1302(2):

• “(e) 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 under which it is registered;”;

and

• (b) the following paragraphs shall be substituted for paragraph (h) of section 1302(2):

• “(h) unless it is a credit or financial institution, copies of its latest accounting documents, that is to say the latest accounting documents—

• (i) prepared in relation to a financial year of the company (in accordance with the laws of the state in which it is incorporated), and

  • (ii) made public (in accordance with those laws), or, if not required by those laws to be made public, prepared as so mentioned, before the end of the period allowed for compliance with subsection (1) in respect of the branch, or if earlier, the date on which the company complies with subsection (1) in respect of the branch,

  • (i) each of the following so far as not ascertainable from its constitutive documents—

  • (i) the company’s principal place of business,

  • (ii) the company’s objects, and

  • (iii) the place where the company is incorporated.”.

• (3) A non-EEA company that establishes a branch in the State shall also deliver to the Registrar, in the prescribed manner, within 30 days after the date of the occurrence of the particular event referred to in section 1302(3)(a) to (d) or, as appropriate, paragraph (b) or (c) of this subsection—

• (a) any document or notice referred to in section 1302(3)(a) to (d),

• (b) notice of the winding up of the company, the appointment of one or more liquidators, particulars concerning them and their powers and the termination of the winding up and particulars concerning insolvency proceedings, arrangements, compositions or any analogous proceedings to which the company is subject, and

• (c) notice of the closure of the branch or its otherwise ceasing to be established in the State.

• (4) Section 1302(4) (application of section 149(12)) applies for the purposes of section 1302(2)(f) as the latter has effect in relation to a non-EEA company by virtue of this section.

• (5) Section 1302(5) applies for the purposes of section 1302(2)(h) as the latter has effect in relation to a non-EEA company by virtue of this section.

• (6) If section 1302(1) or (2) (as applied by this section), or subsection (3), is not complied with by a non-EEA company, the company and any officer of it who is in default shall be guilty of a category 3 offence.

1305. Accounting documents to be filed by non-EEA company

1305. (1) Subject to subsection (10), for so long as a branch of it stands established in the State, a non-EEA company shall in each year deliver to the Registrar, in the prescribed manner, the following documents.

• (2) Those documents are a copy of the accounting documents, for the financial year concerned, that the non-EEA company is required to cause to be prepared, and, if such be the case, to be made public, in accordance with the laws of the state in which it is incorporated, but this is subject to subsections (3) and (4).

• (3) If there is no requirement, under the laws of the state in which it is incorporated, that accounting documents be caused to be prepared by it, the non-EEA company shall, subject to subsection (10), for each year in which a branch of it stands established as mentioned in subsection (1)—

• (a) cause to be prepared in accordance with—

• (i) F964[the Accounting Directive (within the meaning of Part 6)], or

• (ii) international financial reporting standards,

accounts and a directors’ annual report on them, and

• (b) unless the circumstances are such that auditing of those accounts is not required by the relevant Community act, cause those accounts and that annual report to be audited in accordance with F965[the Audit Directive (within the meaning of Part 27)].

• (4) If a non-EEA company to which subsection (2) applies so opts, there may, instead of the accounting documents referred to in that subsection, be delivered by it, in the prescribed manner, to the Registrar—

• (a) a copy of the accounts, and a directors’ annual report on them, prepared as mentioned in subsection (3) (being accounts and such a report that have been audited as mentioned in paragraph (b) of that subsection unless the exception in that paragraph applies), and

• (b) a copy of the auditor’s report on those accounts and that annual report unless the foregoing exception applies.

• (5) A copy of the accounting documents or accounts and other documents referred to in subsection (2) or (4), as the case may be, shall be delivered to the Registrar not later than 30 days after—

• (a) subject to paragraph (b)—

• (i) in the case of those accounting documents, the last date on which, in accordance with the laws of the state in which it is incorporated, the non-EEA company was required to make public such accounting documents, or

• (ii) in the case of the accounts and other documents referred to in subsection (4), the last date on which, in accordance with those laws, the non-EEA company would have been required to make those accounts and other documents public were they accounting documents referred to in subsection (2),

and

• (b) if there is no requirement, under the laws of the state in which it is incorporated, that the non-EEA company cause to be published accounting documents that have been prepared by it, the date on which the preparation of those accounting documents or accounts and other documents is completed.

• (6) In the case of a non-EEA company to which subsection (3) applies, a copy of the accounts and the directors’ annual report referred to in that subsection and the auditor’s report, if any, thereon, shall be delivered to the Registrar not later than 30 days after the date on which their preparation is completed.

• (7) Section 1303(4) applies for the purposes of the construction of references in this section to a copy of accounting documents or accounts and other documents as it applies for the purpose of the construction of the reference to a copy of accounting documents in section 1303(2).

• (8) If this section is not complied with by a non-EEA company, the company and any officer of it who is in default shall be guilty of a category 3 offence.

• (9) Without prejudice to the generality of subsections (1) and (2) of section 865, summary proceedings in relation to an offence under this section may be brought and prosecuted by the Registrar.

• (10) This section shall not apply to a company that is a credit or financial institution.

1306. Return of capital by non-EEA company

1306. (1) Subject to subsection (2), a non-EEA company shall, at the same time as it delivers to the Registrar the accounting documents or accounts and other documents referred to in section 1305, deliver to the Registrar a statement, in the prescribed form, indicating the amount of the called up share capital of the company as of a date not earlier than 2 months before the date of the statement’s delivery.

• (2) Subsection (1) shall not apply where the information which would be contained in the foregoing statement is contained in the documentation referred to in section 1302(1) as applied by section 1304(1).

CHAPTER 3 Disclosure in certain business documents and translation of documents

1307. Disclosure on letters and order forms

1307. (1) For so long as a branch of an EEA company stands established in the State, every letter and order form that issues from or in respect of that branch shall bear the following particulars:

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

• (b) the name of the company (if different from the name of its branch), its legal form 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; and

• (d) the fact that the branch is registered in the State and the number under which it is registered in the office of the Registrar.

• (2) If on any foregoing letter or order form there is reference to the share capital of the EEA company, the company shall ensure that the reference is not stated otherwise than as a reference to the paid-up share capital of the company.

• (3) For so long as a branch of a non-EEA company stands established in the State, every letter and order form that issues from or in respect of that branch shall bear the following particulars—

• (a) the name of the company (if different from the name of its branch);

• (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 under which it is registered; and

• (c) the fact that the branch is registered in the State and the number under which it is registered in the office of the Registrar.

• (4) If on any foregoing letter or order form there is reference to the share capital of the non-EEA company, the company shall ensure that the reference is not stated otherwise than as a reference to the paid-up share capital of the company.

• (5) If subsection (1) or (2) is not complied with by an EEA company, the company and any officer of it who is in default shall be guilty of a category 3 offence.

• (6) If subsection (3) or (4) is not complied with by a non-EEA company, the company and any officer of it who is in default shall be guilty of a category 3 offence.

1308. Notice of delivery to be published in CRO Gazette

1308. The Registrar shall publish in the CRO Gazette, within 21 days after the date of such delivery, notice of the delivery to the Registrar under this Chapter of any document.

1309. Translation of documents

1309. (1) Every document required to be delivered or notified by an external company to the Registrar under any of sections 1302 to 1305 shall, if it is not in the Irish or English language, have annexed to it a certified translation of it in the Irish or English language.

• (2) In any case of a discrepancy between the text, in its original language, of a document referred to in subsection (1) and the certified translation of it annexed as required by that subsection, the latter may not be relied upon by the external company against a third party. A third party may, nevertheless, rely on that translation against the external company, unless the company proves that the third party had knowledge of the text of the document in its original language.

• (3) In subsection (2), “third party” means a person other than the external company or a member, officer or employee of it.

CHAPTER 4 Service of documents

1310. Service of documents

1310. (1) Subject to subsection (2), any document required to be served on an external company referred to in section 1302 or 1304 shall be sufficiently served if addressed to any person particulars of whom have been delivered to the Registrar under section 1302(2)(g) (or, as the case may be, that provision as applied by section 1304) and left at or sent by post to the address which has been so delivered.

• (2) A document may be served on an external company referred to in section 1302 or 1304 by leaving it at or sending it by post to any branch established by it in the State—

• (a) where the external company makes default in delivering to the Registrar the particulars of a person resident in the State who is authorised to accept, on behalf of the company, service of the document, or

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

• (3) This section shall cease to apply to an external company on the expiration of 2 years after the date on which it has delivered the notice referred to in section 1302(3)(f) or, as the case may be, section 1304(3)(c).

• (4) If notice of a change among the persons referred to in section 1302(2)(g) or in any of the particulars relating to such persons has been delivered by the company concerned to the Registrar in accordance with this Part, then the references in this section to any person, particulars in respect of whom have been delivered to the Registrar under the provision referred to in subsection (1), shall be read having regard to the position that obtains in consequence of that change as so notified.

CHAPTER 5 Compliance

1311. Duty of securing compliance with this Part

1311. (1) The duty of securing compliance by an external company with this Part shall, without prejudice to the duty of the external company concerned, also lie upon the one or more persons authorised by the external company to ensure compliance with this Part.

• (2) sections 270 and 271 shall apply to an external company.

• (3) If any person authorised, as mentioned in subsection (1), by an external company would not otherwise be regarded as an officer of it for the purposes of sections 270 and 271, such a person shall be deemed to be an officer of the external company for the purposes of those sections.

PART 22 UNREGISTERED COMPANIES AND JOINT STOCK COMPANIES

CHAPTER 1 Application of Act to unregistered companies

1312. Application of certain provisions of Act to unregistered companies

1312. (1) Subject to subsections (2) to (7), the provisions specified in Schedule 14 shall apply to all bodies corporate incorporated in and having a principal place of business in the State as if they were companies registered under this Act.

• (2) The foregoing provisions shall not apply by virtue of this section to any of the following bodies—

• (a) any body corporate incorporated by or registered under any public general statute,

• (b) any body corporate not formed for the purpose of carrying on a business which has for its objects the acquisition of gain by the body or by the individual members thereof,

• (c) any body corporate which is prohibited by statute or otherwise from making any distribution of its income or property among its members while it is a going concern or when it is being wound up, and

• (d) any body corporate for the time being exempted by a direction given by the Minister for the purposes of this section,

each of which is referred to in this section as an “excluded body”.

• (3) The foregoing provisions shall apply also in like manner in relation to any unincorporated body of persons entitled by virtue of letters patent to any of the privileges conferred by the Chartered Companies Act 1837 and not registered under any other public general statute but subject to the like exceptions as are provided for in the case of bodies corporate by paragraphs (b), (c) and (d) of subsection (2) (and any such incorporated body that is the subject of any of those exceptions is also referred to in this section as an “excluded body”).

• (4) Subsections (5) and (6) operate to—

• (a) extend the effect of a certain provision (being a provision that excludes the application of provisions of this Act to public limited companies), or

• (b) exclude the application of certain provisions of this Act,

to a body depending on whether it has, or, as the case may be, has not the status of a body that has securities admitted to trading on a regulated market in an EEA state (and a body that has securities admitted to such trading is referred to in those subsections as a “traded body”).

• (5) The provisions of F966[section 1002] that exclude the application of a provision of Parts 1 to 14 to a public limited company shall (in so far as that provision would otherwise apply to a traded body by virtue of this section) operate to exclude the application of that provision to a traded body.

• (6) In addition to the exceptions contained in subsection (2), the following provisions specified in Schedule 14, namely—

• (a) the several provisions of Part 17, and

• (b) Part 23, shall not apply to a body unless it is a traded body.

• (7) This section shall not repeal or revoke, in whole or in part, any enactment, charter or other instrument constituting or regulating any body in relation to which the foregoing provisions are applied by virtue of this section, but in relation to any such body, the operation of any such enactment, charter or instrument shall be suspended in so far as it is inconsistent with any of the foregoing provisions as they apply for the time being to that body.

• (8) A body referred to in this section (other than an excluded body or one to which subsection (9) applies) and which has not already done so, shall forthwith deliver to the Registrar a certified copy of the charter, statutes, memorandum and articles or other instrument constituting or defining the constitution of the body.

• (9) A body referred to in this section (other than an excluded body) and which comes into existence on or after the commencement of this section shall, within 3 months after the date of its coming into existence, deliver to the Registrar a certified copy of the charter, statutes, memorandum and articles or other instrument constituting or defining the constitution of the body.

• (10) If default is made by a body in complying with subsection (8) or (9), the body and any officer of it who is in default shall be guilty of a category 3 offence.

• (11) In this section “public general statute” means an Act (as defined in section 2(1) of the Interpretation Act 2005) that either—

• (a) was passed after 6 December 1922, not being—

• (i) a private Act of the Oireachtas of Saorstát Éireann, or

• (ii) a private Act of the Oireachtas;

or

• (b) was passed on or before 6 December 1922, not being—

• (i) a private Act, or

• (ii) a local and personal Act,

of the parliament concerned.

1313. Minister’s power to make regulations in relation to Schedule 14

1313. (1) The Minister may, if he or she considers it necessary to do so in the interests of the orderly and proper regulation of the business of the bodies referred to in section 1312 (not being bodies referred to in that section as excluded bodies), make regulations adding to, or subtracting from, the list of the provisions of this Act specified in Schedule 14.

• (2) Where it is proposed to make a regulation under this section a draft of the proposed regulation shall be laid before each House of the Oireachtas and the regulation shall not be made until a resolution approving of the draft has been passed by each such House.

CHAPTER 2 Registration of certain bodies (other than joint stock companies) as companies

1314. Definitions (Chapter 2)

1314. In this Chapter—

“registration date” shall be read in accordance with section 1323(2);

“registration resolution” shall be read in accordance with section 1316(1).

1315. Registration as a company of body to which section 1312(1) applies

1315. (1) A body corporate specified in subsection (1) of section 1312, not being—

• (a) a body referred to in that section as an excluded body, or

• (b) a joint stock company within the meaning of Chapter 5,

may apply to be registered under this Chapter as—

• (i) a private company limited by shares,

• (ii) a designated activity company,

• (iii) a public limited company,

• (iv) a company limited by guarantee, or

• (v) an unlimited company,

but this is subject to the provisions of this Chapter and the appropriate requirements under the applicable Part of this Act being satisfied.

• (2) Registration on foot of such an application shall not be invalid by reason that it has taken place with a view to the company’s being wound up.

• (3) Notwithstanding anything in this Part and, in particular, the definition of “joint stock company” in Chapter 5, subsection (1) applies to, amongst other bodies corporate, the Governor and Company of the Bank of Ireland and Chapter 5 shall not apply to the latter body corporate.

• (4) Notwithstanding anything in paragraph (a) of that subsection, subsection (1) applies to, amongst other bodies corporate, a society registered under the Industrial and Provident Societies Acts 1893 to 2014.

1316. Requirements for registration under this Chapter as company

1316. (1) A body corporate shall not be registered under this Chapter as any particular type of company referred to in section 1315 without the assent (in this Chapter referred to as a “registration resolution”) to its registration as that type of company given by a majority of such of its members as, being entitled so to do, vote in person or, where proxies are allowed, by proxy at a general meeting summoned for the purpose.

• (2) In computing any majority under this section, when a poll is demanded, regard shall be had to the number of votes to which the member is entitled according to the regulations of the body corporate concerned.

• (3) Before a registration resolution is moved, a statement in accordance with subsection (4) shall be sent, 21 days before the date of the moving of the resolution, by the body corporate concerned to every member of it entitled to notice of the meeting of it at which the registration resolution is to be moved.

• (4) Every statement required by subsection (3) shall—

• (a) state the type of company that the body corporate is proposed to be registered as,

• (b) state the name of the proposed company,

• (c) state the reasons for the proposal to register,

• (d) summarise the principal implications of the registration for members, and

• (e) indicate the place where there may be obtained or inspected, in either case free of charge, the memorandum of association and articles of association of the proposed company that comply, or, if the proposed company is a private company limited by shares, the constitution of it referred to in section 19 that complies, with the requirements of this Act,

and copies of that memorandum and articles or that constitution shall, accordingly, be made available for such supply or inspection to or by every member entitled to the foregoing notice at the place so indicated.

• (5) As long as a document referred to in subsection (4)(e) is also made available for such supply or inspection in hardcopy form, it shall be permissible to include in the foregoing statement, as well as the indication required by subsection (4)(e) concerning the hardcopy form, an indication that that document may be—

• (a) inspected on, and

• (b) downloaded and printed from,

a website of the body corporate free of charge.

• (6) If an assent of the body corporate’s members to such registration has (by means of a registration resolution in accordance with subsection (1)) been given, a body corporate may, in the prescribed form, apply to the Registrar to be registered under this Chapter as the type of company concerned.

• (7) Such an application shall be made within 30 days after the date of the meeting at which that assent was given.

• (8) Such an application shall be accompanied by the following documents:

• (a) a copy of the statement required by subsection (3) and of the registration resolution, each certified by a director or other officer of the body corporate;

• (b) a list showing the names and addresses of all persons who, on a date specified in the list (not being more than 28 days before the date on which the application is received by the Registrar) were members of the body corporate, specifying the shares or stock held by them respectively (distinguishing, in cases where the shares or stock are numbered, each share or unit of stock by its number);

• (c) the nominal share capital of the body corporate and the number of shares into which it is divided, or the amount of stock of which it consists;

• (d) the number of shares of the body corporate taken and the amount paid on each share; and

• (e) the memorandum of association and articles of association of the proposed company.

1317. Particular requirements for registration of body corporate as a PLC

1317. (1) A body corporate may be registered under this Chapter as a PLC if, in addition to the preceding section and section 1318 being complied with, the following requirements are complied with—

• (a) the body corporate delivers, with the application under section 1316(6), the following documents to the Registrar—

• (i) a copy of a balance sheet of the body prepared as at a date not more than 7 months before the date of receipt by the Registrar of the application,

• (ii) an unqualified report by the body’s statutory auditors on that balance sheet,

• (iii) a copy of a written statement by those auditors that, at the balance sheet date, the amount of the body’s net assets was not, in their opinion, less than the aggregate of its called-up share capital and undistributable reserves,

• (iv) a copy of any report prepared under F967[section 1319], and

• (v) a statement by a director or secretary of the body confirming—

• (I) that the requirements of section 1318 and section 1319(2) (where applicable) have been complied with, and

• (II) that, between the balance sheet date and the date of the making by the body of application for registration, there has been no change in the financial position of the body that has resulted in the amount of the body’s net assets becoming less than the aggregate of its called-up share capital and undistributable reserves,

and

• (b) where the liability of the members of the body is unlimited, the registration resolution includes a statement that the liability of the members of the proposed company is to be limited by shares and specifying what is to be the authorised share capital of the proposed company and the fixed amount of the shares into which that share capital is to be divided.

• (2) The Registrar may accept a statement under paragraph (a)(v) of subsection (1) as sufficient evidence that the requirements referred to in clause (I) of that provision have been complied with.

• (3) The Registrar shall not, on foot of the application to register a body corporate under this Chapter as a PLC, issue a certificate of incorporation under section 1323 if it appears to the Registrar that—

• (a) by, either of the means specified in section 84(2)(b), a reduction of the body’s capital has taken place after the date of the passing of the registration resolution, and

• (b) the reduction has the effect of bringing the nominal value of the body’s allotted share capital below the authorised minimum.

• (4) A qualification shall be treated for the purposes of the definition of an “unqualified report” in subsection (7) as being not material in relation to any balance sheet if, but only if, the person making the report states in writing that the thing giving rise to the qualification is not material for the purposes of determining, by reference to that balance sheet, whether, at the balance sheet date, the amount of the body corporate’s net assets was not less than the aggregate of its called-up share capital and undistributable reserves.

• (5) For the purposes of the making, in relation to the foregoing balance sheet, of a report falling within the definition of an “unqualified report” in subsection (7), section 290 and the other relevant provisions of Part 6 (so far as applicable to balance sheets as distinct from the other elements of financial statements) shall be deemed to have effect in relation to that balance sheet with the following modifications.

• (6) Those modifications are such modifications as are necessary by reason of the fact (if such is the case) that that balance sheet is prepared otherwise than in respect of a financial year.

• (7) In this section—

“undistributable reserves” has the same meaning as in section 1082;

“unqualified report” means, in relation to the balance sheet of a body corporate, a report stating without material qualification—