Companies (Corporate Enforcement Authority) Act 2021

PART 1 Preliminary and General

1.. Short title, collective citation and commencement

1. (1) This Act may be cited as the Companies (Corporate Enforcement Authority) Act 2021.

(2) The Irish Collective Asset-management Vehicles Acts 2015 and 2020 and Part 6 may be cited together as the Irish Collective Asset-management Vehicles Acts 2015 to 2021.

(3) This Act shall come into operation on such day or days as the Minister for Enterprise, Trade and Employment may by order or orders appoint either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes and different provisions.

2.. Definition

2. In this Act, “Principal Act” means the Companies Act 2014.

3.. Repeal

3. Chapter 3 of Part 15 of the Principal Act is repealed.

PART 2 Amendment of Principal Act - Corporate Enforcement Authority

4.. Amendment of section 2 of Principal Act

4. Section 2 of the Principal Act is amended, in subsection (1)—

(a) by the substitution of the following definition for the definition of “officer of the Director”:

“ ‘officer of the Authority’ means—

(a) a member of staff of the Authority,

(b) an officer of the Minister assigned to the Authority,

(c) a member of the Garda Síochána seconded to the Authority, or

(d) a person employed by the Minister or the Authority, under a contract for service or otherwise, to assist the Authority in performing functions of the Authority under this Act or any other enactment;”,

and

(b) by the insertion of the following definition:

“ ‘Authority’ means the Corporate Enforcement Authority (but that title appears set out in full in any provision where it is desirable to avoid confusion or otherwise to provide clarity on the matter);”.

5.. Amendment of section 12 of Principal Act

5. Section 12 of the Principal Act is amended, in subsection (3), by the deletion of “946,”.

6.. Amendment of section 930A of Principal Act

6. Section 930A of the Principal Act is amended, in subsection (2), by the substitution of “section 944Z” for “section 957AA”.

7.. Amendment of section 930B of Principal Act

7. Section 930B of the Principal Act is amended, in subsection (2)(e)(i), by the substitution of “section 944Z” for “section 957AA” in both places that it occurs.

8.. Amendment of section 936A of Principal Act

8. Section 936A of the Principal Act is amended, in subsection (3)(b), by the substitution of “section 944AB, a relevant sanction (within the meaning of section 944Z)” for “section 957B, a relevant sanction (within the meaning of section 957AA)”.

9.. Amendment of section 936B of Principal Act

9. Section 936B of the Principal Act is amended—

(a) in subsection (1)(c), by the substitution of “section 944AB(2)(b)” for “section 957C(2)(b)”,

(b) in subsection (2), by the substitution of the following paragraphs for paragraphs (e) and (f):

“(e) in so far as all or part of the year has elapsed before the relevant date, all relevant sanctions (within the meaning of section 957AA as in force before the relevant date) imposed by the Director during the year in accordance with Chapter 3,

(f) on and after the relevant date, all relevant sanctions (within the meaning of section 944Z) imposed by the Authority during the year in accordance with Chapter 3B,

(g) in so far as all or part of the year has elapsed before the relevant date, all public notices of relevant sanctions (within the meaning of section 957AA as in force before the relevant date) imposed by the Director during the year in accordance with Chapter 3, and

(h) on and after the relevant date, all public notices of relevant sanctions (within the meaning of section 944Z) imposed by the Authority during the year in accordance with Chapter 3B.”,

and

(c) by the substitution of the following subsection for subsection (7):

“(7) In this section—

‘relevant date’ means the date of commencement of section 3 of the Companies (Corporate Enforcement Authority) Act 2021;

‘relevant person’, in relation to a recognised accountancy body, means—

(a) a member of the body, or

(b) an auditor or audit firm in relation to whom, by virtue of section 930C, the body may perform functions,

who is a statutory auditor or former statutory auditor.”.

10.. Amendment of Part 15 of Principal Act

10. Part 15 of the Principal Act is amended by the insertion of the following Chapters immediately before Chapter 4:

“Chapter 3A

Corporate Enforcement Authority

Definitions (Chapter 3A)

944A. In this Chapter and Schedule 22—

‘Act of 2004’ means the Public Service Management (Recruitment and Appointments) Act 2004;

‘chairperson’ means the chairperson of the Authority;

‘civil servant’ has the meaning assigned to it by the Civil Service Regulation Act 1956;

‘Committ3ee of Public Accounts’ means the committee of Dáil Éireann established under the rules and Standing Orders of Dáil Éireann to examine and report to Dáil Éireann on the appropriation accounts and reports of the Comptroller and Auditor General;

‘establishment day’ means the day appointed by order under section 944B;

‘financial year’, in relation to the Authority, means a period of 12 months ending on 31 December in any year and, in the case of the first financial year of the Authority, means the period commencing on the establishment day and ending on 31 December in the year in which the establishment day falls;

‘Member’ has the meaning assigned to it by section 944F(2) and includes a person authorised to act in place of a Member under section 944I.

Establishment day

944B. The Minister shall, by order, appoint a day to be the establishment day for the purposes of this Chapter.

Establishment of Corporate Enforcement Authority

944C. (1) On the establishment day there shall stand a body to be known as AntÚdarás um Fhorfheidhmiú Corparáideach or, in the English language, the Corporate Enforcement Authority, to perform the functions conferred on it by this Act.

(2) The provisions of Schedule 22 shall have effect in relation to the Authority.

Functions of Authority

944D. (1) The functions of the Authority are—

(a) to encourage compliance with this Act,

(b) to investigate—

(i) instances of suspected offences under this Act, and

(ii) instances otherwise of suspected non-compliance with this Act or with the duties and obligations to which companies and their officers are subject,

(c) to enforce this Act, including by the prosecution of offences by way of summary proceedings,

(d) at the discretion of the Authority, to refer cases to the Director of Public Prosecutions where the Authority has reasonable grounds for believing that an indictable offence under this Act has been committed,

(e) to exercise, in so far as the Authority considers it necessary or appropriate, a supervisory role over the activity of liquidators and receivers in the discharge of their functions under this Act,

(f) for the purpose of ensuring the effective application and enforcement of obligations, standards and procedures to which companies and their officers are subject, to perform such other functions in respect of any matters to which this Act relates as the Minister considers appropriate and may by order confer on the Authority,

(g) to perform such other functions for the purpose referred to in paragraph (f) as may be assigned to the Authority under this Act or any other Act,

(h) to act under Chapter 2 as a member of the Supervisory Authority and, if appointed under section 907, act as a director of that body, and

(i) to perform functions transferred to the Authority under section 944E.

(2) Sections 930A and 930D make additional provision with regard to the performance of functions by, amongst others, the Authority.

(3) The Authority may do all such acts or things as are necessary or expedient to enable it to perform its functions under this Act or any other Act.

(4) The Authority shall be independent in the performance of its functions.

(5) Subject to this Chapter and Schedule 22, the Authority shall regulate its own procedures.

Transfer of functions of Director to Authority

944E. (1) All functions that, immediately before the establishment day, were vested in the Director are transferred to the Authority.

(2) Subject to section 36 of the Companies (Corporate Enforcement Authority) Act 2021, a reference in—

(a) any enactment (other than this Act) to the Director or to the office of the Director, or

(b) any instrument under an enactment to the Director or to the office of the Director,

shall be construed as a reference to the Authority.

Membership of Authority

944F. (1) The Authority shall consist of such and so many Members (not being more than 3) as the Minister determines.

(2) Each member of the Authority shall be known as a Member of the Corporate Enforcement Authority (in this Chapter referred to as a ‘Member’).

(3) Subject to subsections (4) to (7) and section 944I, a Member shall be appointed by the Minister on the recommendation of the Public Appointments Service acting in accordance with the Act of 2004 and the appointment shall be on a full-time basis for a period not exceeding 5 years from the date of his or her appointment.

(4) (a) Subject to section 944H and Schedule 22, the relevant person shall, on the establishment day, be a Member for the remainder of his or her term of holding the office of Director left to elapse from and including the establishment day, and upon terms and conditions no less favourable than the relevant terms and conditions.

(b) In this subsection—

‘relevant person’ means the person (other than an Acting Director or a delegate of the Director) who, immediately before the establishment day, holds the office of Director;

‘relevant terms and conditions’, in relation to the relevant person, means the terms and conditions to which the person was entitled to immediately before the establishment day by virtue of holding the office of Director and that are in addition to the terms and conditions to which he or she is entitled to under the Civil Service Regulation Act 1956 by virtue of being a civil servant.

(5) The Public Appointments Service shall ensure that a person is recommended under subsection (3) for appointment only if satisfied that the person has the qualifications, experience and skills necessary to enable the Authority to effectively perform its functions.

(6) A Member to whom subsection (3) applies and whose term of office expires by the elapse of time may be reappointed to the Authority by the Minister for one further period not exceeding 5 years from the date of his or her reappointment and without the need for the recommendation referred to in that subsection.

(7) A Member to whom subsection (4) applies and whose term of office expires by the elapse of time may be reappointed to the Authority by the Minister for one further period not exceeding 5 years from the date of his or her reappointment.

(8) A Member shall—

(a) act subject to such terms and conditions (other than the payment of remuneration and allowances for expenses) as the Minister may, with the consent of the Minister for Public Expenditure and Reform, determine,

(b) be paid by the Authority such remuneration and allowances for expenses (if any) as the Minister may, with the consent of the Minister for Public Expenditure and Reform, from time to time determine,

(c) not hold any other office or occupy any other position in respect of which emoluments are payable or carry on any business without the consent of the Minister, and

(d) cease to be a Member (whether or not the Member is a civil servant) on attaining the age of 70 years or, where a higher age is prescribed by order under section 3A(2) of the Public Service Superannuation (Miscellaneous Provisions) Act 2004 for the purposes of that Act, that age but, where the person is a new entrant (within the meaning of that Act) appointed on or after 1 April 2004, the requirement to cease to be a Member on grounds of age shall not apply.

Appointment of chairperson of Authority

944G. (1) The Minister shall, where the Authority consists of more than one Member, appoint one of the Members to be chairperson and such additional allowance (if any) may be paid by the Authority to the chairperson as the Minister may, with the consent of the Minister for Public Expenditure and Reform, from time to time determine.

(2) The chairperson shall have a casting vote in the case of decisions to be taken by the Authority in the event of a tied vote.

(3) Where a chairperson stands appointed under subsection (1), and is unavailable to perform his or her duties due to absence or incapacity, the Minister shall appoint a person (which may be another existing Member or a member of staff of the Authority) to act as chairperson for the duration of the period of absence or incapacity.

(4) Where the Authority consists of one Member, a reference in this Chapter, or in Schedule 22, to the chairperson shall be construed as a reference to that Member.

(5) The chairperson shall carry on and manage and control generally the staff, administration and business of the Authority.

Resignation, removal, disqualification of Member

944H. (1) A Member may resign from office by letter addressed to the Minister and the resignation shall take effect on the date specified in the letter, or the date on which the Minister receives the letter, whichever is the later.

(2) The Minister may, at any time, remove a Member from office if the Minister is satisfied that—

(a) the Member has become incapable through ill-health of performing his or her functions,

(b) the Member has committed stated misbehaviour, or

(c) the removal of the Member appears to the Minister to be necessary for the effective performance by the Authority of its functions.

(3) If a Member is removed from office in accordance with subsection (2), the Minister shall—

(a) provide the Member with a statement of reasons for the removal, and

(b) ensure that a copy of that statement is laid before each House of the Oireachtas.

(4) A Member shall cease to be qualified for office and shall cease to hold office if he or she—

(a) is adjudicated bankrupt,

(b) makes a composition or arrangement with creditors,

(c) is sentenced by a court of competent jurisdiction to a term of imprisonment,

(d) is convicted of any indictable offence in relation to a company or any other body corporate,

(e) is convicted of an offence involving fraud or dishonesty, whether in connection with a company or not,

(f) has a declaration made against him or her under section 819 or is deemed to be subject to such a declaration by virtue of Chapter 5 of Part 14, or

(g) is, or is deemed to be, the subject of an order under section 160 of the Act of 1990 or a disqualification order within the meaning of Chapter 4 of Part 14.

Acting Member

944I. (1) Where one Member only stands appointed for the time being under section 944F, the Minister may authorise in writing a person (which may be a member of staff of the Authority) to perform the functions of a Member during any period when that Member is absent from duty or absent from the State or is, for any other reason, unable to perform the functions of a Member.

(2) Where a vacancy occurs in the office of Member and no Member stands appointed for the time being under section 944F, the Minister may authorise in writing a person (which may be a member of staff of the Authority) to perform the functions of a Member during the period of that vacancy.

(3) An authorisation under subsection (2) shall not remain in force for a period of more than 6 months unless the Minister is satisfied that it is not practicable for an appointment under section 944F to be made within that period, in which case he or she may extend that period by such further period as he or she is satisfied is a period within which it is practicable for an appointment to be made under that section.

(4) The Minister may at any time terminate an authorisation under this section.

(5) A person in respect of whom an authorisation under this section is in force may perform the functions of a Member under this Act, and, for that purpose, references to a Member in this Chapter (other than in sections 944F(3), 944H(2) and 944L) and in Schedule 22 shall be construed as including references to that person.

Assignment and transfer of staff to Authority

944J. (1) Subject to section 944F(4), every civil servant who, immediately before the establishment day, stands assigned to act as a member of staff of the office of the Director shall, on the establishment day, stand assigned to act as a member of staff of the Authority.

(2) The Minister may, as he or she considers appropriate, designate in writing such and so many persons who stand assigned under subsection (1) to act as members of staff of the Authority to become and be members of staff of the Authority on and from such date as the Minister may specify in the designation (in this section referred to as the ‘effective date’).

(3) A member of staff designated in accordance with subsection (2) shall become and be a member of staff of the Authority on and from the effective date.

Staff of Authority, etc.

944K. (1) Subject to subsection (3) and section 944F, the Authority may appoint such number of persons to be members of its staff as it may determine.

(2) Subject to subsection (3), the Authority shall determine the grades of members of its staff and the numbers in each grade.

(3) A determination of the Authority under subsection (1) or (2) is subject to the approval of the Minister given with the consent of the Minister for Public Expenditure and Reform.

(4) The Authority may authorise in writing an officer or officers of the Authority to perform, on its behalf, a specified function or functions of the Authority and such officer or officers so authorised may perform such function or functions accordingly.

(5) An officer of the Authority who performs any of its functions is presumed in any proceedings to have been authorised to do so on its behalf, unless the contrary is shown.

(6) Members of the staff of the Authority are civil servants.

(7) The terms and conditions of service of a member of the staff of the Authority shall, with the approval of the Minister given with the consent of the Minister for Public Expenditure and Reform, be such as may be determined from time to time by the Authority.