What is the Irish Companies Act 2014?
Commenced in 2015, the Irish Companies Act 2014 consolidated the old Irish Companies Acts and many of the related statutory instruments into a single statute. It also simultaneously set out significant reforms to Irish company law.
With 1584 sections and 22 schedules, the Companies Act 2014 is the largest piece of legislation to ever be enacted in the history of the State. Unlike the UK Companies Act 2006, which consolidated UK company law, the Irish Act goes one step further and consolidated Irish law relating to corporate insolvency too.
The Companies Act 2014 makes provision for the following types of company:
- Private company limited by shares (LTD). The LTD is a simplified form of the private limited company formed under the previous Irish Companies Acts and is the default company type under the Companies Act 2014
- Designated activity company (DAC). The DAC is a new company type introduced under the Companies Act 2014 and is the closest corporate form under the Companies Act 2014 to a private limited company incorporated under the old Companies Acts
- Public limited company
- Company limited by guarantee (CLG)
- Unlimited company, and
- Investment company
LTD v DAC
The most common type of private limited company in Ireland is the LTD. Some of the notable features and differences between an LTD and a DAC under the Act are set out in the table below.
It must end with Limited/LTD or the Irish equivalent
It must end with Designated Activity Company/DAC or the Irish equivalent
Private company limited by shares
Private company either (a) limited by shares or (b) limited by guarantee, having a share capital
Has an issued share capital but does not have to have an authorised share capital
Must have both an authorised and issued share capital
Memorandum & Articles of Association
A single page document called a “constitution” replaces the current memorandum & articles of association
The memorandum & articles of association remains but is referred to as a constitution
No objects clause and the LTD has the same capacity as a natural person
The objects clause is retained and therefore the “ultra vires” concept still applies. However, third parties dealing with a DAC in good faith are not prejudiced if the company exceeds its capacity as stated in its objects clause
Can have a single director (but one person cannot hold offices of sole director and secretary)
Must have a minimum of two directors
Annual General Meeting (AGM)
Can dispense with holding an AGM entirely irrespective of the number of shareholders
Can only dispense with holding an AGM if it is a single member company
Listing of Securities
Cannot list, or have admitted to trading, any securities
May list and have admitted to trading certain securities
May pass majority written resolutions
May pass majority written resolutions unless the constitution provides otherwise
The Irish Companies Act 2014 sets out the fiduciary duties of a director of an Irish company.
A director must:
- Act in good faith
- Act honestly and responsibly
- Act in accordance with the company’s constitution
- Not use the company’s property, information or opportunities for the director’s own, or anyone else’s, benefit
- Not agree to restrict the director’s power to exercise an independent judgement
- Avoid any conflict between the director’s duties to the company and the director’s other interests
- Exercise the care, skill and diligence which would be exercised in the same circumstances by a reasonable person in the same position with the same knowledge, and
- Have regard to the interests of its employees and of its members as a whole
In addition, a new duty of directors was introduced in July 2022 which was previously only recognised by the courts at common law. The new duty requires directors of companies that are insolvent or likely to become insolvent, being unable to pay their debts within the meaning of the Companies Act 2014, to have regard to:
- The interests of creditors
- The need to take steps to avoid insolvency, and
- The need to avoid conduct which is deliberate or grossly negligent that threatens the viability of the business of the company
Directors of all large limited companies with a balance sheet total of €12,500,000 and a turnover of €25,000,000 must produce an annual compliance statement. Directors of all public limited companies, with the exception of investment companies, are also required to produce an annual compliance statement. This statement is to acknowledge that the directors are responsible for securing the company’s compliance with Irish tax law and company law. The statement will also confirm that certain things have been done or, if they have not been done, explaining why they have not been done.
Choice of company secretary
The Irish Companies Act 2014 places an obligation on the directors of private companies to appoint a suitably qualified person (which can be a company) as their company secretary. That person must have the skills necessary to enable him or her maintain the records required to be kept relating to the company. The law for directors of public limited companies remained the same as under the old Companies Acts. This includes a requirement to ensure that the person appointed:
- Has, for at least three years, held the office of secretary of a company, or
- Is a member of a recognised body, or
- Appears capable to the directors of discharging his or her duties by virtue of that the person holds or has previously held any other position or is/was a member of any other body
Disclosure of shareholdings
Directors of a company are obliged to disclose certain interests in shares or debentures in the company and in associated companies. The Companies Act 2014 introduced a new exemption from what is a “disclosable interest” in a case where the shares held by a director (aggregated with those of connected persons, such as spouses and children) amount to an interest in less than 1% in nominal value of the company’s issued share capital of a class of shares carrying voting rights. The Companies Act 2014 also extends this exemption to share options. This exemption considerably reduced and, in many cases, eliminated the disclosure obligations for directors and secretaries when compared with the old Companies Acts, notably for directors of subsidiaries of multinational companies who participate in company-wide equity plans.
Single director companies
An LTD is permitted to have one single director.
Loans to and by directors
The prohibition on loans to directors is relaxed, subject to compliance with new formalities introduced under the Companies Act 2014. Importantly also, loans by directors to their companies must comply with certain formalities, in the absence of which the loans are deemed subordinated and unsecured.
The Companies Act 2014 introduced a completely new architecture for company law; the structure of the Act is such that the law applicable to each type of company is, for the first time, clearly delineated. The Act also abandoned Table A, which was a schedule to the 1963 Companies Act and which contained a model set of Articles of Association, in favour of the creation of a series of statutory defaults which automatically apply unless a company’s constitution provides otherwise.
No obligation to ensure compliance
The obligation of a company secretary “to ensure compliance with company law” was removed under the Companies Act 2014 and now rests with the directors alone.
Summary approval scheme
The Act contains a simplified written approval process by directors and members, not requiring any court order, for certain transactions, such as mergers of companies (which were not previously available domestically in Ireland), reductions in capital, a members’ voluntary winding-up or the use of preacquisition profits. This procedure is available to private limited companies, designated activity companies, companies limited by guarantee and unlimited companies.
The content of this article is provided for information purposes only and does not constitute legal or other advice.