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The Act came into being during the Pandemic when restrictions on travel within Ireland, flights into Ireland and inability to attend public gatherings led to fairly substantial practical problems for many companies. The implementation of the Act resolved some of those problems not least being the ability for a company to convene its Annual General Meeting virtually.
At the end of April 2022 the Government announced the extension of the Act to the end of this year (31.12.2022). Given difficulties in travel and on-going reluctance of some to attend public functions companies will find the option of once again being able to convene virtual Annual General Meetings welcome.
Easter eggs don’t just mean eggs for Easter anymore now social media refers to Easter Eggs to mean an intentional inside joke or hidden message. Hard to equate an intentional joke with company law. Mind you there will always be a rarefied few who consider compliance with company law a joke but that is another kettle of fish.
Compliance is hard for most people, what to comply with and why, particularly when trying to do so whilst carrying out our “actual” job. Compliance though is part of our “actual” job and should form part of an on-going continuous process in any organisation.
To have compliance enter your company’s lexicon can start from something as simple as an Agenda item for the next Board Meeting.
Have compliance an Agenda item for discussion at every Board Meeting.
Agree top five compliance issues or concerns and start knocking them off one by one.
Consider appointing one person to lead the compliance processes in your company.
Types of compliance issues could include any of the following.
Anti-Money laundering legislation – when is the last time a review was undertaken on how your company manages AML?
Risk Register – does your company have one, when was it last reviewed by the Directors at an actual meeting?
Beneficial Ownership – a company must maintain an internal statutory register of beneficial ownership whilst ensuring it also files and continues to update filings with the Central Register of Beneficial Ownership.
Statutory Registers – are they all current and have you cross-checked with statutory filing in the Companies Registration Office.
Constitution / Shareholder Agreement – when was your Constitution last reviewed, and does it run in tandem with the Shareholder Agreement or, as is often the case, do they have contradicting clauses?
Policies – what policies are in place, when were they last reviewed? The horrific invasion of Ukraine sparked most companies to review EU Sanctions Policies which has, in turn, focused the attention of Directors, Managers on Staff on Ethics & Sanctions in a manner that could never have been imagined possible before.
Don’t try and do it all at once, make a start, keep up the momentum and then you can go and buy an actual real Easter Egg. I hope you will all have a fabulous Easter with or without an egg!
When a company or individual becomes aware of a discrepancy in beneficial ownership details filed with the Central Register of Beneficial Ownership (CRBO) there is an option to file a Discrepancy Report.
History of Discrepancy Notices filed in the CRBO
In 2020 – just 2
In 2021 – over 700
In 2022 – over 600
What is going on and why such an extraordinary surge?
It looks like the trigger event was the enactment of the Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 in 2021. This Act transposed EU Money Laundering Directive into Irish law thus bringing Ireland in line with current European AML and countering financing of terrorism (“AML/CFT”) framework.
Companies are not allowed to be told who has filed the Discrepancy Notices so who is filing and why remains a matter of conjecture. It seems likely though Discrepancy Notices are being filed in a knee jerk reaction to the implementation of the Criminal Justice Act on the basis of “to be sure, to be sure”.
In the event you receive a warning email from the CRBO make sure you respond ASAP to ensure you remain within all relevant deadlines. Do not assume there is a discrepancy. Check the beneficial ownership details as in all likelihood your details are fine. Provided you engage proactively and in a timely manner with the CRBO, with luck, all you will end up with is a story to tell. Surprising, irritating but absolutely fixable!
March has been an active month for the Companies Registration Office (CRO) as it continues upgrading and improving its online portal.
With over 250,000 companies incorporated in Ireland it is good to see online filing options increase, e.g. changes to Constitution, documentation on mortgages and debentures. The enactment of the Companies (Rescue Process for Small and Micro Companies) Act 2021 (SCARP) has also seen a significant rise as the Act mandates specifically for online filing. Mandating online filing only is an interesting development and one that would not have been popular (or arguably possible) a few years ago.
The CRO portal is due for a further upgrade and once that has been completed it is anticipated the Central Register of Beneficial Ownership will be next. Although separate websites set up under separate legislation they remain indelibly linked in the minds of the public.
The Central Register of Beneficial Ownership is just that – a register providing details of beneficial ownership. It is worth remembering that members listed on Annual Returns filed in the CRO will not necessarily be reflected as beneficial owners. This is particularly evident for a Company Limited by Guarantee (CLG) where filing in the Central Register of Beneficial Ownership for this company type depends on the number of members.
Change of address – in our experience this is one of the most neglected areas of compliance. Directors and Company Secretaries are notoriously forgetful when it comes to notifying any change in address.
Location of statutory registers – failure to notify current location of statutory registers, in our experience, primarily occurs where the Company Secretary is an individual and is less likely to occur when the Company Secretary is a corporate body. Perhaps it is a case of out of sight, out of mind!
Appointing a Director – is there a checklist in place when appointing a Director? A common mistake is not checking the Company’s Constitution. A Constitution may contain a clause declaring the minimum and maximum number of directors in the company. The Company may also have a Shareholders Agreement in place which could also include a minimum/maximum number of Directors. Companies with both a Constitution and Shareholders Agreement need to ensure the minimum/maximum number is the same in both documents.
All of the above can be managed by ensuring the relevant statutory registers are current, changes are filed in the Companies Registration Office and (if applicable) in the Central Register of Beneficial Ownership.
Politicians are not the only people who have to ensure compliance with lobbying standards in Ireland
As part of the appointment process every Director acknowledges he/she is responsible for securing their company complies with all relevant obligations. Two examples of “relevant obligations” would include compliance with the Lobbying Act 2015.
Property companies lobbying for changes in planning law, re-zoning of land.
Charities advocating for changes in law.
The Lobbying Regulation (Amendment) Bill 2020 seeks to reform the Lobbying Act 2015. One of the proposals in the Bill will be the ability for a Designated Public Official to cease communicating with a lobbyist where they are aware that the person or body carrying on lobbying activities has failed to comply with the Act.
Transparency Ireland carried out a review of disclosure practices of 30 of Ireland’s top companies across a range of indicators including Responsible Political Engagement. Whilst a number showed leadership in the area it is fascinating to note that most of the companies did not disclose a policy on responsible political engagement. Indeed, 28 out of the 30 companies reviewed did not publish rules or policies dealing with “revolving doors” (the movement of staff rom the public sector to companies or vice versa).
This New Year is exceptional bringing with it a New Beginning for us all.
I hope that this New Year will enable us all to start to understand and come to terms with the impact of the past two years, enable us all to find our own individual path away from the Pandemic, and have the strength to deal with whatever lies in our futures in 2022.
Companies in 2022 will continue to face the pressures of reacting quickly not just to the Pandemic but now to the seemingly overnight transformation wrought by the recent lifting of so many restrictions.
On a perhaps more mundane level the Government recently announced its legislative programme for 2022 listing 44 Bills to be drafted and published in 2022. The 44 Bills range over virtually every aspect of public, private and corporate life. For companies though perhaps the Bills of most interest will be
Competition (Amendment) Bill
Protected Disclosures Bill
Co-op Societies Bill
Limited Partnership Bill
Communications (Data Retention and disclosure) Bill
Charities Amendment Bill
Right to Remote Working Bill
The Office of the Director of Corporate Enforcement will soon be transformed into the Corporate Enforcement Authority by the Companies (Corporate Enforcement Authority) Act 2021 signed into law on 22.12.2022 and expected to be commenced any day now. It will be interesting to see how the once familiar ODCE will operate and be judged as it morphs into the Corporate Enforcement Authority.
KomSec Limited will be closed from midday on 21.12.2020 to 05.01.2021 inclusive.
KomSec Limited will be closed from midday on 21.12.2020 to 05.01.2021 inclusive.
Everyone in KomSec Limited wishes you all a very Happy Christmas, and hope you have a contented time with your family and friends.
We look forward to working with you in 2022.
The Government has approved the extension of the interim period of the Companies (Miscellaneous Provisions) (Covid-19) Act 2020 to 30th April 2022.
Director and Member Meetings can continue to hold virtual meetings
Threshold at which a company is deemed unable to pay its debts remains at €50,000
Extension of examinership to 150 days remains in place.
Introduction of SCARP (Small Companies Administrative Rescue Process)
This is a practical piece of legislation intended to make the Examinership process more accessible and less expensive. It provides for a tight timeline for the entire process without the company having to go to Court.
Brief highlights of SCARP
To avail of SCARP a company must be “small” or “micro” – no more than 50 employees, turnover does not exceed €12m, balance sheet does not exceed €6m.
Company is unable to pay its debts
The company cannot have appointed an Examiner or Process Advisor (insolvency practitioner) within previous 5 years.
Process Advisor assesses viability of the company and its ability to trade its way out of current difficulties.
Entire process should be completed within 70 days.
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