Companies Act 2014

• (7) In the event that a specially designated company does not provide facilities for the direct or indirect participation by the public in the profits and income of the company within a period, not greater than 6 months, which shall be specified in the authorisation under this section, the company shall, on the expiry of the period so specified, be deemed to have ceased to be a specially designated company; for the purposes of the application of this subsection to a company referred to in subsection (6) the foregoing reference to an authorisation under this subsection shall be read as a reference to an authorisation under section 256 of the Act of 1990 and, accordingly, a company referred to in subsection (6) is subject to the same cessation of its status, as is provided by this subsection for investment companies otherwise, where—

• (a) the period specified in the authorisation under that section 256 expires after the commencement of this section; and

• (b) the company has not provided facilities for the direct or indirect participation by the public in the profits and income of the company within that period.

• (8) An investment company which is not a specially designated company shall not raise capital by providing facilities for the direct or indirect participation by the public in the profits and income of the company.

• (9) If a company contravenes subsection (1) or (8), the company and any officer of it who is in default shall be guilty of a category 2 offence.

• (10) If a person contravenes subsection (2), the person shall be guilty of a category 2 offence.

1396. Powers of Central Bank

1396. (1) Notwithstanding any other powers which may be available to the Central Bank under any other enactment, the Central Bank may impose such conditions for the granting of an authorisation to a company under section 1395 as it considers appropriate and prudent for the purposes of the orderly and proper regulation of the business of investment companies.

• (2) Conditions imposed under subsection (1) may be imposed generally, or by reference to particular classes of company or business (including, but not limited to, whether or not an investment company is a specially designated company), or by reference to any other matter the Central Bank considers appropriate and prudent for the purposes of the orderly and proper regulation of the business of investment companies.

• (3) The power to impose conditions referred to in subsection (1) includes a power to impose such further conditions from time to time as the Central Bank considers appropriate and prudent for the purposes of the orderly and proper regulation of the business of investment companies.

• (4) As appropriate—

• (a) conditions imposed by the Central Bank on an investment company may (without prejudice to the generality of subsections (1) to (3)) make provision for;

• (b) as respects the person or other body referred to in paragraph (iii) or (v), there is otherwise conferred on the Bank power to make provision for;

the following:

• (i) the prudential requirements of the investment policies of the company;

• (ii) without prejudice to Chapter 1 of Part 23 and regulations thereunder (so far as they are applicable to securities issued by companies of the closed-end type), prospectuses and other information disseminated by the company;

• (iii) the vesting of the assets or specified assets of the company in a person nominated by the Central Bank with such of the powers or duties of a trustee with regard to the company as are specified by the Bank;

• (iv) such other supervisory and reporting requirements and conditions relating to its business as the Central Bank considers appropriate and prudent to impose on the company from time to time for the purposes referred to in the foregoing subsections;

• (v) supervisory and reporting requirements and conditions relating to the business of a management company as the Central Bank considers appropriate or prudent to impose on the management company from time to time.

• (5) A company shall comply with any conditions relating to its authorisation or business imposed by the Central Bank.

• (6) A person or other body referred to in subsection (4)(iii) or (v) in relation to whom requirements or conditions are imposed by the Central Bank in accordance with subsection (4) shall comply with such requirements or conditions.

• (7) If a company fails to comply with a condition referred to in subsection (5), the company and any officer of it who is in default shall be guilty of a category 2 offence.

• (8) If a person or other body fails to comply with a requirement or condition referred to in subsection (6), the person or body, and (in the case of a body) any officer of it who is in default, shall be guilty of a category 2 offence.

1397. Default of investment company or failure in performance of its investments

1397. (1) An authorisation by the Central Bank under section 1395 of an investment company shall not constitute a warranty by the Bank as to the creditworthiness or financial standing of that company.

• (2) The Central Bank shall not be liable by virtue of that authorisation or by reason of its performance of the functions conferred on it by this Part in relation to investment companies for any default of the investment company unless the Bank acted in bad faith in performing such functions.

CHAPTER 3 Share capital

1398. Power of company to purchase own shares

1398. (1) Subject to subsection (2), the purchase by an investment company of its own shares shall be on such terms and in such manner as may be provided by its articles.

• (2) An investment company shall not purchase its own shares, for the purposes referred to in section 1386(1)(b)(ii), unless they are fully paid, but nothing in this subsection shall prevent a purchase being made in accordance with section 1399(2).

• (3) For the avoidance of doubt, nothing in this Act shall require an investment company to create any reserve account.

1399. Treatment of purchased shares

1399. (1) Shares of an investment company which have been purchased by the company shall be cancelled and the amount of the company’s issued share capital shall be reduced by the amount of the consideration paid by the company for the purchase of the shares.

• (2) Notwithstanding subsection (1), an umbrella fund may, for the account of any of its sub-funds, and in accordance with conditions imposed by the Central Bank pursuant to section 1396, acquire by subscription or transfer for consideration, shares of any class or classes, howsoever described, representing other sub-funds of the same umbrella fund provided that the acquisition is for a purpose otherwise than that provided for in section 1386(1)(b)(ii).

CHAPTER 4 Financial statements

1400. Statutory financial statements

1400. (1) To the extent that the use of any alternative body of accounting standards does not contravene any provision of Part 6 (as that Part applies to investment companies)—

• (a) a true and fair view of the assets and liabilities, financial position and profit or loss of an investment company may be given by the use by the investment company of those standards in the preparation of its Companies Act entity financial statements, and

• (b) a true and fair view of the assets and liabilities, financial position and profit or loss of an investment company and its subsidiary undertakings as a whole may be given by the use by the investment company of those standards in the preparation of its Companies Act group financial statements.

• (2) In this section—

“alternative body of accounting standards” means standards that accounts of companies or undertakings must comply with that are laid down by such body or bodies having authority to lay down standards of that kind in—

• (a) United States of America;

• (b) Canada;

• (c) Japan; or

• (d) any other prescribed state or territory;

as may be prescribed;

“relevant financial statements” means Companies Act entity financial statements or Companies Act group financial statements.

• (3) Before making regulations for the purposes of subsection (2), the Minister—

• (a) shall consult with the Central Bank and the Supervisory Authority, and

• (b) may consult with any other persons whom the Minister considers should be consulted.

• (4) Regulations made under section 3(3) of the Act of 1990 prescribing, for the purposes of the definition of “alternative body of accounting standards” in section 260A(4) of the Act of 1990, bodies having authority to lay down standards of the kind referred to in that definition, and which regulations are in force immediately before the commencement of this section, shall continue in force as if they were regulations made under section 12 for the purposes of subsection (2) and may be amended or revoked accordingly.

1400A. F1004[Modification of definition of “ineligible entities” in case of investment companies

1400A. The definition of "ineligible entities" in section 275(1) shall apply to an investment company as if—

• (a) in paragraph (c), "undertakings," were substituted for ‘undertakings, or’,

• (b) in paragraph (d)(ii), "shall be read accordingly, or" were substituted for "shall be read accordingly;", and

• (c) the following paragraph were inserted after paragraph (d):

• "(e) are investment companies;".]

1401. Requirement for corporate governance statement and modification of certain provisions of Parts 5 and 6 as they apply to investment companies

1401. Chapter 3 of Part 23 has effect in relation to, amongst other companies, an investment company that has shares or debentures admitted to trading on a regulated market in an EEA state.

1401A. F1005[Filing of financial statements by investment company

1401A. (1) An investment company shall, once in every year after the expiration of its first financial year, deliver to the Registrar, in the prescribed manner, copies of the documents referred to in subsection (2) not later than 11 months after the end of the company’s financial year.

• (2) The documents are as follows, namely:

• (a) the statutory financial statements of the company for the financial year;

• (b) the directors’ report for the financial year;

• (c) the statutory auditors’ report on those financial statements and that directors’ report.

• (3) The reference in subsection (1) to a copy of a 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;

• (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 documents mentioned in subsection (1) 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).

• (4) Section 376 shall apply to an investment company as if the following subsection were substituted for subsection (1):

• "(1) This section has effect where the directors of an investment company have prepared revised financial statements or a revised directors’ report under F1006[section 366] and a copy of the original statutory financial statements or directors’ report, has been delivered to the Registrar under section 1401A.".

• (5) If an investment company fails to comply with the requirements of this section, the company and any officer of it who is in default shall be guilty of a category 3 offence.

• (6) In subsection (5), "officer" includes any shadow director and de facto director.]

CHAPTER 5 Winding up

1402. Circumstances in which company may be wound up by the court

1402. (1) Section 569(1)(e) shall not apply to an investment company but provision for the winding up of an investment company on the grounds that it is just and equitable to do so is made by this section.

• (2) This section is in addition to the cases set out in section 569 (so far as not disapplied by subsection (1)) in which an investment company may be wound up by the court.

• (3) An investment company may be wound up by the court if the court is of opinion that it is just and equitable that the company should be wound up and the following conditions are satisfied—

• (a) the petition for such winding up has been presented by the trustee of the company, that is to say, the person nominated by the Central Bank under section 1396(4)(iii) in respect of the company;

• (b) that trustee has notified the company of its intention to resign as such trustee and 6 or more months have elapsed after the date of the giving of that notification without a trustee having been appointed to replace it;

• (c) the court, in considering that petition, has regard to—

• (i) any conditions imposed under section 1396 in relation to the resignation from office of such a trustee and the replacement of it by another trustee; and

• (ii) whether a winding up would best serve the interests of shareholders in the company;

and

• (d) the petition for such winding up has been served on the company (if any) discharging, in relation to the first-mentioned company, functions of a management company.

CHAPTER 6 Restoration

1403. Restoration by the court

1403. Section 741 shall apply to an investment company as if, in subsection (1)(a), “2 years” were substituted for “20 years”.

CHAPTER 7 Public offers of securities, prevention of market abuse, etc.

1404. Application of Chapters 1, 2 and 4 of Part 23 to investment companies

1404. Chapters 1, 2 and 4 of Part 23—

• (a) so far as they are applicable to companies other than public limited companies that fall within Part 17; and

• (b) with the exception, in particular, of sections 1358 to 1360;

shall apply to an investment company.

CHAPTER 8 Umbrella funds and sub-funds

1405. Segregated liability of investment company sub-funds

1405. (1) Notwithstanding any statutory provision or rule of law to the contrary, but subject to Schedule 17—

• (a) any liability incurred on behalf of or attributable to any sub-fund of an umbrella fund shall be discharged solely out of the assets of that sub-fund; and

• (b) no umbrella fund nor any director, receiver, examiner, liquidator, provisional liquidator or other person shall apply, nor be obliged to apply, the assets of any such sub-fund in satisfaction of any liability incurred on behalf of or attributable to any other sub-fund of the same umbrella fund;

whether such liability was incurred before, on or after 30 June 2005.

• (2) Schedule 17 provides that subsection (1) shall not apply to an umbrella fund which was authorised and commenced trading (as that latter expression is to be read in accordance with that Schedule) before 30 June 2005 unless the conditions specified in that Schedule are satisfied.

1406. Requirements to be complied with by, and other matters respecting, an umbrella fund to which section 1405(1) applies

1406. (1) An umbrella fund to which section 1405(1) applies shall—

• (a) ensure that the words “An umbrella fund with segregated liability between sub-funds” are included in all its letterheads and in any agreement entered into by it in writing with a third party; and

• (b) disclose to a third party that it is a segregated liability umbrella fund before it enters into an oral contract with the third party.

• (2) If an umbrella fund fails to comply with subsection (1)(a) or (b), the umbrella fund and any officer of it who is in default shall be guilty of a category 3 offence.

• (3) There shall be implied in every contract, agreement, arrangement or transaction entered into by an umbrella fund to which section 1405(1) applies the following terms, that:

• (a) the party or parties contracting with the umbrella fund shall not seek, whether in any proceedings or by any other means whatsoever or wheresoever, to have recourse to any assets of any sub-fund of the umbrella fund in the discharge of all or any part of a liability which was not incurred on behalf of that sub-fund;

• (b) if any party contracting with the umbrella fund shall succeed by any means whatsoever or wheresoever in having recourse to any assets of any sub-fund of the umbrella fund in the discharge of all or any part of a liability which was not incurred on behalf of that sub-fund, that party shall be liable to the umbrella fund to pay a sum equal to the value of the benefit thereby obtained by it; and

• (c) if any party contracting with the umbrella fund shall succeed in seizing or attaching by any means, or otherwise levying execution against, any assets of a sub-fund of an umbrella fund in respect of a liability which was not incurred on behalf of that sub-fund, that party shall hold those assets or the direct or indirect proceeds of the sale of such assets on trust for the umbrella fund and shall keep those assets or proceeds separate and identifiable as such trust property.

• (4) All sums recovered by an umbrella fund as a result of any such trust as is described in subsection (3)(c) shall be credited against any concurrent liability pursuant to the implied term set out in subsection (3)(b).

• (5) Any asset or sum recovered by an umbrella fund pursuant to the implied term set out in paragraph (b) or (c) of subsection (3) or by any other means whatsoever or wheresoever in the events referred to in those paragraphs shall, after the deduction or payment of any costs of recovery, be applied so as to compensate the sub-fund affected.

• (6) In the event that assets attributable to a sub-fund to which section 1405(1) applies are taken in execution of a liability not attributable to that sub-fund, and in so far as such assets or compensation in respect thereof cannot otherwise be restored to that sub-fund affected, the directors of the umbrella fund, with the consent of the custodian, shall certify or cause to be certified, the value of the assets lost to the sub-fund affected and transfer or pay from the assets of the sub-fund or sub-funds to which the liability was attributable, in priority to all other claims against such sub-fund or sub-funds, assets or sums sufficient to restore to the sub-fund affected, the value of the assets or sums lost to it.

1407. Further matters respecting an umbrella fund to which section 1405(1) applies

1407. (1) Without prejudice to the other provisions of sections 1405 and 1406, Schedule 17 and this section, a sub-fund of an umbrella fund is not a legal person separate from that umbrella fund, but an umbrella fund may sue and be sued in respect of a particular sub-fund and may exercise the same rights of set-off, if any, as between its sub-funds as apply at law in respect of companies and the property of a sub-fund is subject to orders of the court as it would have been if the sub-fund were a separate legal person.

• (2) Nothing in section 1405 or 1406, Schedule 17 or this section shall prevent the application of any enactment or rule of law which would require the application of the assets of any sub-fund in discharge of some or all of the liabilities of any other sub-fund on the grounds of fraud or misrepresentation and, in particular, by reason of the application of section 443, 557, 604 or 608.

• (3) A sub-fund may be wound up in accordance with section 569(1)(d) or 586(2) as if the sub-fund were a separate company but, in any such case, the appointment of the liquidator or any provisional liquidator and the powers, rights, duties and responsibilities of the liquidator or any provisional liquidator shall be confined to the sub-fund or sub-funds which is or are being wound up.

• (4) For the purposes of subsection (3), all references made in section 569(1)(d) or 586(2), and in all relevant provisions of this Act relating to the winding up of a company pursuant to section 569(1)(d) or 586(2), to one of the following words shall be read as follows:

• (a) “company” shall be read as referring to the sub-fund or sub-funds which is or are being wound up;

• (b) a “member” or “members” shall be read as referring to the holders of the shares in that sub-fund or sub-funds; and

• (c) “creditors” shall be read as referring to the creditors of that sub-fund or sub-funds.

CHAPTER 9 Migration of funds

1408. Definitions (Chapter 9)

1408. (1) In this Chapter—

“migrating company” means a body corporate which is established and registered under the laws of a relevant jurisdiction and which is a collective investment undertaking;

“registration documents” has the meaning given to it by section 1409;

“relevant jurisdiction”, other than in sections 1413 and 1414, means the place, outside the State, prescribed under subsection (2) where the migrating company is established and registered at the time of its application under section 1410.

• (2) The Minister may make regulations prescribing places, outside the State, for the purposes of the definition of “relevant jurisdiction” in subsection (1), where he or she is satisfied that the law of the place concerned makes provision for migrating companies to continue under the laws of the State or for companies to continue under the laws of that place in a substantially similar manner to continuations under section 1410.

1409. “Registration documents”— meaning

1409. (1) In this Chapter “registration documents”, in relation to a migrating company, means the following documents:

• (a) a copy, certified and authenticated in the prescribed manner, of the certificate of registration or equivalent certificate or document issued with respect to the migrating company under the laws of the relevant jurisdiction;

• (b) a copy, certified and authenticated in the prescribed manner, of the memorandum and articles of the migrating company or equivalent constitutive document of the migrating company;

• (c) a list setting out particulars in relation to the directors and secretary of the migrating company in accordance with the provisions of section 149;

• (d) a statutory declaration, in the prescribed form, of a director of the migrating company made not more than 28 days before the date on which the application is made to the Registrar to the effect that—

• (i) the migrating company is, as of the date of the declaration, established and registered in the relevant jurisdiction, no petition or other similar proceeding to wind up or liquidate the migrating company has been notified to it and remains outstanding in any place, and no order has been notified to the migrating company or resolution adopted to wind up or liquidate the migrating company in any place;

• (ii) the appointment of a receiver, liquidator, examiner or other similar person has not been notified to the migrating company and, at the date of the declaration, no such person is acting in that capacity in any place with respect to the migrating company or its property or any part thereof;

• (iii) the migrating company is not, at the date of the declaration, operating or carrying on business under any scheme, order, compromise or other similar arrangement entered into or made by the migrating company with creditors in any place;

• (iv) at the date of the declaration the migrating company has served notice of the proposed registration on the creditors of the migrating company;

• (v) any consent or approval to the proposed registration in the State required by any contract entered into or undertaking given by the migrating company has been obtained or waived, as the case may be; and

• (vi) the registration is permitted by and has been approved in accordance with the memorandum and articles of association or equivalent constitutive document of the migrating company;

• (e) a declaration of solvency prepared in accordance with section 1415;

• (f) a schedule of the charges or security interests created or granted by the migrating company that would, if such charges or security interests had been created or granted by a company incorporated under this Act, have been registrable under Chapter 2 of Part 7 and such particulars of those security interests and charges as are specified in relation to charges by section 414;

• (g) notification of the proposed name of the migrating company if different from its existing name; and

• (h) a copy of the memorandum and articles of the migrating company which the migrating company has resolved to adopt, which shall be in the Irish language or the English language, which shall take effect on registration under section 1410 and which the migrating company undertakes not to amend before registration without the prior authorisation of the Registrar.

• (2) If the original of any of the documents referred to in subsection (1) is not written in the Irish or the English language, then “registration documents” in this Chapter, in so far as that expression relates to such a document, means a translation of the document into the Irish or the English language certified as being a correct translation of it by a person who is competent to so certify.

1410. Continuation of foreign investment company

1410. (1) A migrating company may apply to the Registrar to be registered as an investment company in the State by way of continuation.

• (2) Where an application is made under subsection (1), the Registrar shall not register the migrating company as an investment company in the State unless he or she is satisfied that all of the requirements of this Act in respect of the registration and of matters precedent and incidental thereto have been complied with and, in particular, but without prejudice to the generality of the foregoing, he or she is satisfied that—

• (a) the migrating company has delivered to the Registrar an application for the purpose, in the prescribed form and signed by a director of the migrating company, together with the registration documents;

• (b) the name or, if relevant, the proposed new name of the migrating company has not been determined to be undesirable pursuant to section 26;

• (c) the migrating company has delivered to the Registrar notice of the address of its proposed registered office in the State;

• (d) the migrating company has applied to the Central Bank to be authorised to carry on business as an investment company under section 1395 and the Central Bank has notified the migrating company and the Registrar that it proposes to authorise the migrating company to so carry on business.

• (3) An application under this section shall be accompanied by a statutory declaration in the prescribed form made by a solicitor engaged for this purpose by the migrating company, or by a director of the migrating company, and stating that the requirements mentioned in subsection (2) have been complied with. The Registrar may accept such a declaration as sufficient evidence of compliance.

• (4) The Registrar shall, as soon as is practicable after receipt of the application for registration, publish notice of it in the CRO Gazette.

• (5) Where the Registrar receives a notification under subsection (2)(d), the Registrar—

• (a) may issue a certificate of registration of the migrating company by way of continuation of the migrating company as an investment company under the laws of the State; and

• (b) if he or she issues such a certificate, shall enter in the register maintained for the purpose of section 414, in relation to charges and security interests of the migrating company specified in paragraph (f) of the definition of “registration documents” in section 1409(1), the particulars specified by section 414 which have been supplied by the migrating company.

• (6) The migrating company shall, as soon as may be after being registered under subsection (5), apply to be de-registered in the relevant jurisdiction.

• (7) The Registrar shall enter in the register of companies the date of registration of the migrating company and shall forthwith publish notice in the CRO Gazette of the following matters:

• (a) the date of the registration of the migrating company under this section;

• (b) the relevant jurisdiction; and

• (c) the previous name of the migrating company if different from the name under which it is being registered.

• (8) From the date of registration, the migrating company shall be deemed to be an investment company formed and registered under this Part and shall continue for all purposes under this Act, and the provisions of this Part shall apply to the migrating company, but this section does not operate—

• (a) to create a new legal entity;

• (b) to prejudice or affect the identity or continuity of the migrating company as previously established and registered under the laws of the relevant jurisdiction for the period that the migrating company was established and registered in the relevant jurisdiction;

• (c) to affect any contract made, resolution passed or any other act or thing done in relation to the migrating company during the period that the migrating company was so established and registered;

• (d) to affect the rights, authorities, functions and liabilities or obligations of the migrating company or any other person; or

• (e) to render defective any legal proceedings by or against the migrating company.

• (9) Without prejudice to the generality of subsection (8)—

• (a) the failure of a migrating company to send to the Registrar the particulars of a charge or security interest created before the date of registration shall not prejudice any rights which any person in whose favour the charge was made or security interest created may have thereunder; and

• (b) any legal proceedings that could have been continued or commenced by or against the migrating company before its registration under this section may, notwithstanding the registration, be continued or commenced by or against the migrating company after registration.

1411. Supplemental provisions in relation to section 1410

1411. (1) The migrating company shall—

• (a) notify the Registrar in the prescribed form; and

• (b) notify the Central Bank;

within 3 days after the date of its de-registration in the relevant jurisdiction, of that de-registration.

• (2) On registration of the migrating company under section 1410(5), the Central Bank shall forthwith authorise the migrating company to carry on business under this Part.

• (3) If there is any material change in any of the information contained in the statutory declaration mentioned in paragraph (d) of the definition of “registration documents” in section 1409(1) after the date of the declaration and before the date of the registration under section 1410, the director who made that statutory declaration, and any other director who becomes aware of that material change shall forthwith deliver a new statutory declaration to the Registrar relating to the change.

• (4) If the migrating company fails to comply with any provision of section 1410 or this section, the Registrar may send to the company by post a registered letter stating that, unless the migrating company rectifies the failure within 30 days after the date of the letter and confirms that it has rectified the failure, a notice may be published in the CRO Gazette with a view to striking the migrating company off the register.

• (5) If the failure mentioned in subsection (4) is not rectified within 30 days after the date of the sending of the letter referred to in that subsection, the Registrar may publish in the CRO Gazette a notice stating that, at the expiration of 1 month after the date of that notice, the migrating company mentioned therein will, unless the matter is resolved, be struck off the register, and the migrating company will be dissolved.

• (6) At the expiration of the time mentioned in the notice, the Registrar may, unless cause to the contrary is previously shown by the migrating company, strike the company off the register, and shall publish notice thereof in the CRO Gazette, and on that publication, the migrating company shall be dissolved.

• (7) For the purposes of this section, section 736 shall apply as if the reference in it to Chapter 1 of Part 12 included a reference to this section and, accordingly, the other provisions of Chapter 2 of that Part shall apply with any necessary modifications.

1412. Definitions for the purposes of de-registration provisions contained in sections 1413 and 1414

1412. (1) In sections 1413 and 1414—

“applicant” means an investment company that applies under section 1413 to be de-registered under section 1414;

“relevant jurisdiction” means the place, outside the State, prescribed under subsection (2) in which the investment company proposes to be registered;

“transfer documents”, in relation to an applicant, means the following documents:

• (a) a statutory declaration, in the prescribed form, of a director of the applicant made not more than 28 days before the date on which the application is made to the Registrar to the effect that—

• (i) the applicant will, upon registration, continue as a body corporate under the laws of the relevant jurisdiction;

• (ii) no petition or other similar proceeding to wind up or liquidate the applicant has been notified to the applicant and remains outstanding in any place, and no order has been notified to the applicant or resolution adopted to wind up or liquidate the applicant in any place;

• (iii) the appointment of a receiver, liquidator, examiner or other similar person has not been notified to the applicant and, at the date of the declaration, no such person is acting in that capacity in any place with respect to the applicant or its property or any part thereof;

• (iv) the applicant is not, at the date of the declaration, operating or carrying on business under any scheme, order, compromise or other similar arrangement entered into or made by the applicant with creditors in any place;

• (v) the application for de-registration is not intended to defraud persons who are, at the date of the declaration, creditors of the applicant;

• (vi) any consent or approval to the proposed de-registration required by any contract entered into or undertaking given by the applicant has been obtained or waived, as the case may be; and

• (vii) the de-registration is permitted by the memorandum and articles of the applicant;

• (b) a declaration of solvency prepared in accordance with the provisions of section 1415; and

• (c) a copy of a special resolution of the applicant that approves the proposed de-registration and the transfer of the applicant to the relevant jurisdiction.

• (2) The Minister may make regulations prescribing places, outside the State, for the purposes of the definition of “relevant jurisdiction” in subsection (1), where he or she is satisfied that the law of the place concerned makes provision for bodies corporate that are substantially similar to applicants under section 1413 to continue under the laws of the State in a substantially similar manner to continuations under section 1410 or for companies to continue under the laws of that place.

1413. De-registration of companies when continued under the law of place outside the State

1413. (1) An applicant which proposes to be registered in a relevant jurisdiction by way of continuation as a body corporate may apply to the Registrar to be de-registered in the State.

• (2) Where an application is made under subsection (1), the Registrar shall not de-register, under section 1414, the applicant as a company in the State unless he or she is satisfied that all of the requirements of this Act in respect of the de-registration and of matters precedent and incidental thereto have been complied with and, in particular, but without prejudice to the generality of the foregoing, he or she is satisfied that—

• (a) the applicant has delivered to the Registrar an application for the purpose, in the prescribed form and signed by a director of the applicant, together with the transfer documents;

• (b) the applicant has informed the Central Bank of its intention to be de-registered and the Central Bank has notified the Registrar that it has no objection to the de-registration, so long as the applicant complies with any conditions that the Central Bank may impose on the applicant; and

• (c) the applicant has delivered to the Registrar notice of any proposed change in its name and of its proposed registered office or agent for service of process in the relevant jurisdiction.

• (3) An application under this section shall be accompanied by a statutory declaration in the prescribed form made by a solicitor engaged for this purpose by the applicant, or by a director of the applicant, and stating that the requirements mentioned in subsection (2) have been complied with. The Registrar may accept such a declaration as sufficient evidence of compliance.

• (4) The Registrar shall, as soon as is practicable after receipt of the application for de-registration, publish notice of it in the CRO Gazette.

• (5) Where an application is made under subsection (1), a person mentioned in subsection (6) may apply to the court, on notice to the applicant, the Central Bank, the Registrar and all creditors of the applicant, not later than 60 days after the date of the publication of the notice under subsection (4), for an order preventing the proposal or passage of a resolution specified in paragraph (c) of the definition of “transfer documents” in section 1412(1) from taking effect in relation to the application, and the court may, subject to subsection (9), make such an order accordingly.

• (6) The following persons may apply for an order under subsection (5):

• (a) the holders of not less than 5 per cent of the issued share capital of the applicant and who have not voted in favour of the resolution; or

• (b) any creditor of the applicant.

• (7) Notice of an application for an order under subsection (5) may be given to the creditors concerned by publication in at least one national newspaper in the State.

• (8) The Central Bank and the applicant concerned shall each be entitled to appear and be heard on an application made pursuant to subsection (5).

• (9) The court may make an order under subsection (5) only if it is satisfied that—

• (a) the proposed de-registration of the applicant would contravene the terms of an agreement or arrangement between the applicant and any shareholder or creditor of the applicant; or

• (b) the proposed de-registration would be materially prejudicial to any shareholder or creditor of the applicant and the interests of shareholders and creditors or both taken as a whole would be materially prejudiced.

• (10) An order made under subsection (5) shall specify the period in respect of which it shall remain in force.

• (11) An order of the court under subsection (5) is final and conclusive and not appealable.

1414. Supplemental provisions in relation to section 1413

1414. (1) Unless the court orders otherwise, when one or more than one application is made under section 1413(5), a resolution specified in paragraph (c) of the definition of “transfer documents” in section 1412(1) in relation to a company shall not take effect until—

• (a) where the application or all the applications to the court are withdrawn—

• (i) the day on which the resolution is passed;

• (ii) the day next following the day on which the last outstanding application is withdrawn; or

• (iii) the 31st day following the publication of the notice under section 1413(7);

whichever is the latest; and

• (b) where all applications to the court are not withdrawn—

• (i) the day on which the resolution is passed;

• (ii) the day specified in the order or, if no date is specified in the order, the day next following the day on which the period for which the order is specified to remain in force expires or otherwise ceases to be in force; or

• (iii) the day next following the decision of the court;

whichever is the latest.

• (2) When the applicant is registered as a company under the laws of the relevant jurisdiction, it shall give notice, in the prescribed form, to the Registrar of that fact within 3 days after the date of its becoming so registered, including its new name, if any, and, as soon as practicable after receiving that notice, the Registrar shall issue a certificate of de-registration of the applicant.

• (3) The Registrar shall enter in the register of companies the date of the de-registration of the applicant and shall, within 7 days after the date of issue of the certificate under subsection (2), publish in the CRO Gazette notice of the following matters:

• (a) the date of the de-registration of the applicant under this section;

• (b) the relevant jurisdiction; and

• (c) the new name of the applicant if different from the name under which it was registered.

• (4) From the date of registration of the applicant in the relevant jurisdiction, it shall cease to be a company for all purposes of this Act and shall continue for all purposes as a body corporate under the laws of the relevant jurisdiction, but this section does not operate—

• (a) to create a new legal entity;

• (b) to prejudice or affect the identity or continuity of the applicant as previously constituted under the laws of the State for the period that the applicant was so constituted;

• (c) to affect any contract made, resolution passed or any other act or thing done in relation to the applicant during the period that the applicant was constituted under the laws of the State;

• (d) to affect the rights, authorities, functions and liabilities or obligations of the applicant or any other person; or

• (e) to render defective any legal proceedings by or against the applicant.

• (5) Without prejudice to the generality of subsection (4), any legal proceedings that could have been continued or commenced by or against the applicant before its de-registration under this section may, notwithstanding the de-registration, be continued or commenced by or against the applicant after registration.

1415. Statutory declaration as to solvency

1415. (1) Where an application is made under section 1410 or 1413, a director of the migrating company or applicant, as the case may be, making the application shall make a statutory declaration, in the prescribed form, stating that he or she has made a full inquiry into its affairs and has formed the opinion that it is able, at the time of the application, to pay its debts (being the debts identified for the purposes of subsection (2)(b)) as they fall due.

• (2) A declaration under subsection (1) shall have no effect for the purposes of this section unless—

• (a) it is made not more than 28 days before the date on which the application is made to the Registrar;

• (b) it states the assets and liabilities of the migrating company or applicant as at the latest practicable date before the date of making of the declaration and in any event at a date not more than 3 months before the date of that making; and

• (c) a report made by an independent person under subsection (3) is attached to the declaration, along with a statement by the independent person that he or she has given and has not withdrawn consent to the making of the declaration with the report attached to it.

• (3) The report mentioned in subsection (2)(c) shall state whether, in the independent person’s opinion, based on the information and explanations given to him or her, the opinion of the director mentioned in subsection (1) and the statement of the migrating company’s or applicant’s assets and liabilities referred to in subsection (2)(b) are reasonable.

• (4) For the purposes of subsection (3), the independent person shall be a person who, at the time the report is made, is—

• (a) in the case of an application under section 1410, qualified to be the auditor of the migrating company under the laws of the relevant jurisdiction; and

• (b) in the case of an application under section 1413, qualified to be the statutory auditor of the applicant.

• (5) A director who makes a declaration under this section without having reasonable grounds for the opinion that the migrating company or applicant is able to pay its debts as they fall due shall be guilty of a category 2 offence.

• (6) Where the migrating company or applicant is wound up within 1 year after the date on which the application is made to the Registrar and its debts are not paid or provided for in full within that year, it shall be presumed, unless the contrary is shown, that the director did not have reasonable grounds for his or her opinion.

PART 25 MISCELLANEOUS

CHAPTER 1 Provisions concerning foreign insolvency proceedings (including those covered by the Insolvency Regulation)

1416. Preliminary and interpretation (Chapter 1)

1416. (1) In addition to their application to Part 11, sections 1419 to 1428 shall apply to insolvency proceedings dealt with in Part 10.

• (2) Save as provided in section 1422 and except where the context otherwise requires, references in this Chapter to numbered Articles without qualification are references to Articles so numbered of the Insolvency Regulation.

1417. Recognition of winding up orders of non-European Union states and Denmark

1417. (1) Any order made by a court of any state recognised for the purposes of this section and made for, or in the course of, winding up a company may be enforced by the High Court in the same manner in all respects as if the order has been made by the High Court.

• (2) When an application has been made to the High Court under this section, an office copy of any order sought to be enforced shall be sufficient evidence of the order.

• (3) In this section—

“company” means a body corporate incorporated outside the State;

“recognised” means recognised by order made by the Minister for the purposes of this section and no such order may be made in relation to a state that is a Member State (other than Denmark).

1418. Purpose of sections 1419 to 1428

1418. The purpose of sections 1419 to 1428 is to re-enact the European Communities (Corporate Insolvency) Regulations 2002 (S.I. No. 333 of 2002), apart from their provisions in so far as they relate to insolvency proceedings.

1419. Registration of judgments given in insolvency proceedings

1419. (1) Without prejudice to Article 16(1) of the Insolvency Regulation, a liquidator appointed in insolvency proceedings who intends—

• (a) to request under Article 21 of the Insolvency Regulation that notice of the judgment opening the proceedings and, where appropriate, the decision appointing him or her be published in the State; or

• (b) to take any other action in the State under the Insolvency Regulation;

shall deliver to the Registrar a certified copy of the judgment and, where appropriate, of the decision appointing the liquidator.

• (2) Registration under subsection (1) may also be effected by the Registrar on application by a liquidator who does not intend to take any action in the State under the Insolvency Regulation.

• (3) The certified copy or copies mentioned in subsection (1) shall be accompanied by—

• (a) if the judgment or decision is not expressed in the Irish or the English language, a translation, certified to be correct by a person competent to do so, into either of those languages;

• (b) the prescribed form; and

• (c) the prescribed fee.

• (4) The Registrar shall issue a certificate of registration to the liquidator.

• (5) In any proceedings a document purporting to be—

• (a) a certified copy of a judgment opening insolvency proceedings or a decision appointing a liquidator in such proceedings, or

• (b) a translation of such a document which is certified as correct by a person competent to do so,

shall, without further proof, be admissible as evidence of the judgment, the liquidator’s appointment or the translation, unless the contrary is shown.

1420. Publication in relation to insolvency proceedings outside State

1420. Section 711 shall apply to insolvency proceedings (as defined in section 2(1)) as it applies to insolvency proceedings (as defined in section 710).

1421. Registration of insolvency judgments

1421. A request by a liquidator under Article 22 of the Insolvency Regulation that the judgment opening the insolvency proceedings be registered in a public register shall be made to the Registrar.

1422. Enforcement in State of insolvency judgments

1422. (1) In this section—

“Brussels 1 Regulation” means Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters;

“insolvency judgment” means a judgment referred to in Article 25 of the Insolvency Regulation;

“Master” means the Master of the High Court.

• (2) Except where the context otherwise requires, references in this section to numbered Articles without qualification are references to Articles so numbered of the Brussels 1 Regulation.

• (3) Having regard to Article 68, references in Article 25 of the Insolvency Regulation to enforcement of insolvency judgments in accordance with certain Articles of the Brussels Convention are to be read as references to enforcement of those judgments in accordance with Articles 38 to 58.

• (4) An application under the Brussels 1 Regulation for the enforcement in the State of an insolvency judgment shall be made to the Master.

• (5) The Master shall determine the application by order in accordance with the Brussels 1 Regulation.

• (6) The Master shall declare the insolvency judgment enforceable immediately on completion of the formalities provided for in Article 53 without any review under Articles 34 and 35 and shall make an enforcement order in relation to the judgment.

• (7) An order under subsection (5) may provide for the enforcement of part only of the insolvency judgment concerned.

• (8) An application to the Master under Article 39 for an enforcement order in respect of an insolvency judgment may include an application for any preservation measures the High Court has power to grant in proceedings that, apart from the provisions of this Chapter, are within its jurisdiction.

• (9) Where an enforcement order is made, the Master shall grant any such preservation measures so applied for.

• (10) For the purposes of this Chapter, references in Articles 42, 43, 45, 47, 48, 52, 53 and 57 to a declaration of enforceability are to be treated as references to an enforcement order under this section.

• (11) Subject to the restrictions on enforcement contained in Article 47(3), if an enforcement order has been made respecting an insolvency judgment, the judgment—

• (a) shall, to the extent to which its enforcement is authorised by the enforcement order, be of the same force and effect as a judgment of the High Court; and

• (b) may be enforced by the High Court, and proceedings taken on it, as if it were a judgment of that Court.

1423. Interest on insolvency judgments and payment of costs

1423. (1) Where, on application for an enforcement order respecting an insolvency judgment, it is shown—

• (a) that the judgment provides for the payment of a sum of money; and

• (b) that, in accordance with the law of the Member State in which the judgment was given, interest on the sum is recoverable under the judgment at a particular rate or rates and from a particular date or time;

the enforcement order, if made, shall provide that the person liable to pay the sum shall also be liable to pay the interest, apart from any interest on costs recoverable under subsection (2), in accordance with the particulars noted in the order, and the interest shall be recoverable by the applicant as though it were part of the sum.

• (2) An enforcement order may provide for the payment to the applicant by the respondent of the reasonable costs of or incidental to the application for the enforcement order.

• (3) A person required by an enforcement order to pay costs shall be liable to pay interest on the costs as if they were the subject of an order for the payment of costs made by the High Court on the date on which the enforcement order was made.

• (4) Interest shall be payable on a sum referred to in subsection (1)(a) only as provided for in this section.

1424. Currency of payments under enforceable insolvency judgments

1424. (1) An amount payable in the State under an insolvency judgment by virtue of an enforcement order shall be payable in the currency of the State.

• (2) If the amount is stated in the insolvency judgment in any currency except the currency of the State, payment shall be made on the basis of the exchange rate prevailing, on the date the enforcement order is made, between the currency of the State and any such currency.

• (3) For the purposes of this section a certificate purporting to be signed by an officer of an authorised institution and to state the exchange rate prevailing on a specified date between a specified currency and the currency of the State shall be admissible as evidence of the facts stated in the certificate.

• (4) In this section “authorised institution” means—

• (a) a credit institution;

• (b) a building society within the meaning of the Building Societies Act 1989;

• (c) a trustee savings bank licensed under the Trustee Savings Banks Act 1989; or

• (d) An Post.

1425. Preservation measures

1425. (1) A request under Article 38 for measures to secure and preserve any of the debtor’s assets in the State shall be made to the High Court.

• (2) On such a request, the High Court—

• (a) may grant any such measures that the court has power to grant in proceedings that, apart from the provisions of this Chapter, are within its jurisdiction; and

• (b) may refuse to grant the measures sought if, in its opinion, the fact that, apart from this section, the court does not have jurisdiction in relation to the subject matter of the proceedings makes it inexpedient for it to grant the measures.

1426. Venue

1426. The jurisdiction of the Circuit Court or District Court in proceedings that may be instituted in the State by a liquidator in exercise of his or her powers under Article 18 of the Insolvency Regulation may be exercised by the judge for the time being assigned—

• (a) in the case of the Circuit Court, to the circuit, and

• (b) in the case of the District Court, to the district court district,

in which the defendant ordinarily resides or carries on any profession, business or occupation.

1427. Language of claims in relation to insolvency proceedings outside State

1427. Section 714 shall apply to insolvency proceedings (as defined in section 2(1)) as it applies to insolvency proceedings (as defined in section 710).

1428. Non-recognition or non-enforcement of judgments

1428. It shall be for the High Court to determine whether judgments referred to in Article 25(1), or insolvency proceedings or judgments referred to in Article 26, should not be recognised or enforced on grounds mentioned in those provisions.

CHAPTER 1A Provisions concerning bank recovery and resolution

1428A. F1007[Priority of payments in a winding up

1428A. (1) In a winding up of a company that is an entity referred to in Regulation 2(1)(a) to (i) of the Bank Recovery and Resolution Regulations—

• (a) the following shall be paid in priority to the claims of all unsecured creditors, and shall rank equally amongst themselves and with the debts referred to in section 621(2)—

• (i) the part of eligible deposits up to the coverage level in Article 6 of Directive 2014/49/EU of the European Parliament and of the Council of 16 April 2014³, and

• (ii) deposit guarantee schemes that are subrogating to the rights and obligations of the holder or holders of the part of the eligible deposits referred to in subparagraph (i),

• (b) the following shall be paid in priority to the claims of all unsecured creditors, but after those referred to in paragraph (a), and shall rank equally amongst themselves—

• (i) the part of eligible deposits from natural persons and micro, small and medium-sized enterprises that exceeds the coverage level in Article 6 of Directive 2014/49/EU of the European Parliament and of the Council of 16 April 2014³, and

• (ii) deposits that would be eligible deposits from natural persons and micro, small and medium-sized enterprises were they not made through branches located outside the European Union of institutions established within the European Union,

• (c) subject to subsection (3), the claims of all unsecured creditors, after those referred to in paragraphs (a) and (b), shall be paid in priority to the claims of unsecured creditors resulting from debt instruments where—

• (i) the original contractual maturity of the debt instrument is not less than one year,

• (ii) subject to subsection (2), the debt instrument contains no embedded derivatives and is not itself a derivative, and

• (iii) the relevant contractual documentation and, where applicable, the prospectus related to the issuance of the debt instrument expressly refers to the lower ranking of claims in accordance with this paragraph,

and

• (d) the claims of all unsecured creditors resulting from debt instruments that meet the conditions set out in paragraph (c) shall be paid in priority to claims resulting from F1008[the item listed in subparagraph (d)] of Regulation 87(1) of the Bank Recovery and Resolution Regulations.

• F1009[(1A) Claims resulting from an instrument the whole or part only of which is recognised as an item listed in subparagraph (a), (b) or (c) of Regulation 87(1) of the Bank Recovery and Resolution Regulations shall rank lower than any claim that does not result from such instrument.]

• (2) For the purposes of subparagraph (c)(ii) of subsection (1), debt instruments—

• (a) with variable interest derived from a broadly used reference rate, or

• (b) with the principal, repayment and interest denominated in the same currency that is not the domestic currency of the issuer,

shall not be considered to be debt instruments containing embedded derivatives solely because of those features.

• (3) Notwithstanding the amendment of this Act by Regulation 4 of the European Union (Bank Recovery and Resolution) Regulations 2019 (S.I. No. 127 of 2019), this Act shall apply in respect of claims F1009[(other than claims referred to in subsection (1A))] resulting from debt instruments issued before the coming into operation of those Regulations as if it had not been so amended.

• (4) In this section—

"company", in addition to the meaning assigned to that expression by section 2(1), includes an unregistered company referred to in section 1326;

"debt instruments" means bonds and other forms of transferable debt and instruments creating or acknowledging a debt;

"deposit guarantee scheme" has the meaning given to it in the Bank Recovery and Resolution Regulations;

"eligible deposits" has the meaning given to it in the Bank Recovery and Resolution Regulations and shall include a share account held with a building society or credit union;

"institution" has the meaning given to it in the Bank Recovery and Resolution Regulations;

"micro, small and medium-sized enterprises" has the meaning given to it in the Bank Recovery and Resolution Regulations.

• (5) A word or expression that is used in this section and is also used in Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014², as amended by Directive (EU) 2017/2399 of the European Parliament and of the Council of 12 December 2017 F1010[and Directive (EU) 2019/879 of the European Parliament and of the Council of 20 May 2019¹⁷, shall have, in this section, the same meaning as it has in that Directive.]

CHAPTER 2 Other miscellaneous provisions

1429. Deemed consent to disclosure with respect to interest in shares or debentures acquired

1429. The acquisition by any person of an interest in shares or debentures of a company registered in the State shall be deemed to be a consent by that person to the disclosure by the person, his or her agents or his or her intermediaries of any information required to be disclosed in relation to shares or debentures by or under this Act.

1430. Extension of Chapter 1 of Part 9 to any company liable to be wound up

1430. Chapter 1 (other than section 455) of Part 9 shall apply to any company liable to be wound up under this Act.

1431. Application of sections 113 to 115 to bodies corporate generally

1431. (1) In addition to its application where the company firstly referred to in subsection (1) of it is—

• (a) a private company limited by shares; or

• (b) by virtue of any of Parts 16 to 24, any other type of company,

section 113 shall apply to a body corporate that is not a company, and the foregoing reference in subsection (1) of it to a company, and the other relevant references in that section, shall be read accordingly.

• (2) In addition to their application where the company firstly referred to in subsection (1) of either section is—

• (a) a private company limited by shares; or

• (b) by virtue of any of Parts 16 to 22, any other type of company,

sections 114 and 115 shall apply to a body corporate that is not a company, and the foregoing reference in subsection (1) of section 114 or 115 to a company, and the other relevant references in either such section, shall be read accordingly.

1432. Saving for enactments providing for winding up under certain former Companies Acts

1432. Nothing in Part 11 or any other Part of this Act shall affect the operation of any enactment which provides for any association, partnership or company being wound up, or being wound up as a company or as an unregistered company under the Companies (Consolidation) Act 1908 or any enactment repealed by that Act.

1433. Application of section 405 to every type of company and society

1433. Section 405 shall apply to—

• (a) any company within the meaning of Chapter 4 of Part 14;

• (b) any friendly society within the meaning of the Friendly Societies Acts 1896 to 2014; and

• (c) any society registered under the Industrial and Provident Societies Acts 1893 to 2014;

as it applies to a private company limited by shares.