CROSS-BORDER MERGERS – changes are coming

Directive 2019/2121 (Cross-border Mobility) became EU law on 31.01.2023 although Ireland has yet to transpose it into Irish law.

The Directive itself does not provide for transitional arrangements for Cross-Border Mergers commenced under the current Cross-border Merger Regulations (SI 157 of 2008) to complete under the current regime, following the 31.01.2023 transposition deadline.  

It is up to individual Member States to determine its own Regulations on how to manage the transition from 31.01.2023 to whenever those Regulations come into effect.

Ireland has proposed to provide two options for a company currently planning a Cross-Border Merger.

1. An Irish company currently planning to engage in a cross-border merger and seeking to rely on the current legislative regime can publish the common draft terms in advance of the new Regulations. The company will then have a six month period within which to hold its general meeting to approve draft terms and complete the transaction under the current regime. 

    

2. Companies may wait until the new Regulations are in place.

The Department of Enterprise, Trade and Employment is in the process of drafting the Regulations which will be introduced by way of Statutory Instrument.

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The Charities (Amendment) Bill 2022

The Charities (Amendment) Bill 2022 was published by The Minister for Rural and Community Development, Heather Humphries on 29 April 2022. The purpose of the Bill is “to provide for a number of amendments to the Charities Act 2009. The proposed amendments aim to improve the ability of the Charities Regulator to conduct its statutory functions, ensuring more proportionate regulation leading to greater public trust and confidence in the charities sector.” The Bill is expected to be enacted later this year.

Some of the provisions include the following;

• Establish the promotion of human rights as a charitable purpose.

• Increase the threshold for filing of a full set of Financial Statements from a maximum gross income or expenditure of €100,000 to €250,000 (aligning with the Companies Act 2014).

• The accounting standard “Charities Statement of Recommended Practices (SORP)” will be compulsory. An exemption will be permitted for charities with a turnover of less than €250,000.

• Definition of charities trustee to be amended to exclude Company Secretaries (who hold no other office in the charity).

• Introduction of new statutory fiduciary duties for trustees to act in good faith, avoid conflicts of interest and exercise an objective standard of care, skill and diligence when advancing the charitable purpose of the charity, mirroring similar duties of Directors under the Companies Act 2014.

• New Definition of the term “Member”. This change extends the requirement to maintain a Register of Members to unincorporated associations.

Click here for full text of the Charities (Amendment) Bill 2022

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Virtual Annual General Meetings still allowed in 2023

The Companies (Miscellaneous Provisions) (Covid-19) 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.

In December 2022 the Government announced the extension of some parts of the Act to the end of this year (31.12.2023). In particular, certain company meetings (including Annual General Meetings) can still be held virtually. This will be welcome news to many companies who prefer this format although there is nothing to stop a company holding a physical meeting if they wish to do so.

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The public can no longer access beneficial ownership information

One of the biggest talking points at the time the Beneficial Ownership Register was put in place was the fact that the public could access it. This meant the public could see the names of the beneficial owners, what percentage shareholding they might hold and even their dates of birth and home addresses!

All that has now changed further to an unexpected European Court Judgment last week. Its ruling means that from now on only 'Designated Persons' can search the Register and obtain beneficial ownership details.

From a practical point of view, the ruling will not affect the vast majority of companies. They are still obliged to ensure both their internal and external Beneficial Ownership Registers are completed in full and kept up to date. The banks as a 'Designated Person' will continue to be able to search the Register and (in our experience) refuse to/delay providing credit facilities to companies if they have queries over the information lodged.

In summary, even if Joe Public can no longer have a peep, there is still no excuse not to register your Beneficial Ownership information and keep it updated!

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New Charities Classification System

Charities Classification System

The Charities Regulatory Authority launched a Classification System on 14^th November 2022 (as part of Charities Week) which broadly mirrors classification systems in other jurisdictions.

The purpose of the system is to improve functionality of the Charities Register, provide clarity on registered charities, improve data for research.

Charities to self-determine classification and rely on a “best fit” as it is not possible to achieve a perfect system. It is important to note that Classification will not put a limit on the types of activities a charity can carry out to further their charitable purpose.

How does it work?

In the example provided by the Charities Regulator, a museum for example would choose category “Arts and Culture” and can then select two secondary groups “History, heritage and culture” and “Museum or library”.

How to search charities using the classification System

A search facility will be introduced when the database is populated. This will be of benefit to funders, researchers and potential volunteers.

What should charities do now?

• Directors to agree on classification and record decision at a Board Meeting.

• Log into MyAccount to complete and submit form

• Once off process (unless charity wishes to amend it in future)

• Automatic registration of classification

• Immediate update to Register of Charities

 More Information

There’s a new Classification Section on their website with more information which includes:

• Charity Classification Standard

• Charity Classification Guide

• Step by Step Guide to submitting classification form

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CORPORATE ENFORCEMENT AUTHORITY - different name – no difference?

The Corporate Enforcement Authority (established in July 2022) replaced the Office of Director of Corporate Enforcement (ODCE) which was no longer fit for purpose. With the creation of the CEA it would be easy to think same old, same old.

It seems to me that the CEA has seized the opportunity to morph into a much more dynamic, focused, and independent organisation which has hit the ground running. Personally, I think one of the most important developments for the CEA is its ability to control its own recruitment requirements so that it can source specialist staff capable of dealing with the intricacies of corporate crime.

White collar crime sounds quite bland but as far as I am concerned it is just as bad as any other crime. A corrupt director may not have physically knocked over an old lady to steal her handbag but stealing the old lady’s pension is worse.   I was never a great advocate of the “walk of shame” one saw for alleged corporate criminals in other jurisdictions but, have to admit I am beginning to think there is some merit in seeing the public arrest with HANDCUFFS of individuals accused of corporate crime.

According to the United Nations it is estimated that US$1 trillion is paid in bribes and US$2.6 trillion stolen through corruption. Combined these sums represent 5% of annual Global Gross Domestic Product.

This year the Irish Government gave one of the biggest Budgets in the history of the State with commentators saying it was made possible by income from Corporation Tax. Whatever one thinks of the Budget if Ireland does not maintain a reputation as a strong reputable country to do business in there will be no Corporation Tax to argue about. There are more than enough challenges for Irish companies dealing with the devasting war in Ukraine, energy costs, housing, climate, etc. Without a strong corporate reputation Ireland will no longer attract business and once a reputation is lost the way back is grindingly hard for everyone.

An effective CEA will be to the benefit of us all.

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Annual Returns - Prepare to file

The majority of companies in Ireland have an Annual Return Date of 30^th September so to avoid getting caught out start preparing now.

• Check status of your company’s filing in the Companies Registration Office is correct

• Check if any of the directors have changed their personal details. The two most common changes are where directors have changed home address or their list of directorships are not current.

• When a director moves home address a statutory form must be filed noting the new address and effective date of change.

• The list of directorships should include all directorships held worldwide, past and present, within past 5 years.

• Have the Financial Statements ready for filing.

• Confirm the designated signatories for the Annual Return will be available to sign when required, i.e. a specific named Director and the Company Secretary.

Taking the above steps now can help to ensure there are no delays when it comes to filing the Annual Return.

One last thing – docu-signatures are not permitted on the Annual Return – you have been warned!

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Check Yourself - Corporate Health

Everywhere we turn there seem to be advertisements advising us to check our personal health for this that and the other. No doubt all excellent advice but do we ever take time to check our corporate health as directors? It seems to me getting either one wrong will impact on us all to some extent.

There are no blood pressure cuffs when it comes to corporate health but there are a few checks we as director can all do to at least get started.

• Management accounts – should be circulated and read by Directors on a regular basis.
  

• Board meetings – should be held at least quarterly where Directors consider the overall direction of the company and do not get bogged down with the nitty gritty which is the role of the Management Team.
  

• Chairperson – how is that role managed by the Board and by the Chairperson. He/she should be capable of ensuring all participants have an opportunity to be heard, and that meetings do not run on for ages. Unfortunately, we have all been at meetings where certain individuals like to hear their own voice no matter the relevance of their words.
  

• Risk Register – does your company have one, and if not why not? A Risk Register (properly managed and regularly reviewed) can save an awful lot of headaches. For example, if you have a supply contract that has to be renewed annually you need to be able to negotiate this ahead of time and not after the event.
  

• Insurance – when were the company insurance policies last reviewed and at what level of detail. It is always surprising how little directors know about insurance cover even on a basic level such as whether or not they are covered under their own company’s director and officer liability insurance.

   

• Statutory filings – does the Board have a timetable of statutory filings even covering basic things such as filings with the Revenue Commissioners – Companies Registration Office – Central Registry of Beneficial Ownership.

   

Having the basics in place can help to ensure issues are dealt with in a timely manner with minimum fuss. Now don’t tell me that doesn’t help keep your blood pressure down!

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Definition of a Charity Board Succession Plan

 Definition of a Charity Board Succession Plan

A board succession plan is a document that sets out the process to be followed when a Charity Trustee resigns. It’s very useful to prepare for when a Trustee’s term limit is coming up or when a Trustee departs unexpectedly. The Charity Regulatory advise that a Trustee’s term should be no more than 9 years. They have recently issued excellent guidelines on Trustee Term Limits and Succession Planning, click here.

1. Induction

• Induction should aim to introduce a new Trustee to the organisation, aims, values and provide an overview of the challenges its facing.

• Understand their legal duties, responsibilities and personal liability.

• A visit to the Charity and meet staff, volunteers, beneficiaries (if possible) and Trustees.

• Provide an induction pack, to include set of financial statements, recent minutes, copy of strategic plan and budgets etc. Further information on an Induction Pack from Charity Regulatory Authority here.

Check out the Charity Regulatory Authority Guidance on Induction and Recruitment here

2. Identify Skills Required

This will vary, most charities will need Financial expertise for example. You will need to consider the experience you need, for example do you employ staff? If so, you will probably need HR expertise and support etc. This exercise is very helpful when you’re considering new Trustees

3. Skills Matrix

Circulate the Skills Matrix and ask your Trustees to complete (tick under the skills-sets they already have). You will find that there is a broad variety of skills and experience amongst the Board. Once this exercise is completed, you can easily identify the “gaps” which will help pinpoint the exact set of skills you’re looking for.

4. Review

Periodically review the Induction Process (with feedback from Trustees) and also periodically review the Skills Matrix, which will need to be adapted with the needs of your charity and Trustee changes etc.

Resources

The Charity Regulatory Authority have excellent resources available on their website, links are below.

Succession Planning click here

Induction Pack Checklist click here. Induction and recruitment click here

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Are you a Member or a Shareholder?

A shareholder can be either an individual or a company. The rights of a shareholder vary depending on issues such as the company’s Constitution, Shareholder Agreements, type of shares, etc.

A company’s Constitution will spell out the type of authorised shares and specific rights attaching such as voting rights, dividend payments, etc. Unlike the Constitution which is a public document filed in the Companies Registration Office a Shareholder Agreement is private document. A Shareholders Agreement covers issues such as rights to shares, rights to nominate an individual to the Board of Directors, and funding.

When a company is incorporated Members appoint Directors to manage the company on their behalf. As and when the Directors approve and sign the Financial Statements they are then presented to the Shareholders at an Annual General Meeting. This is when Shareholders have an opportunity to question Directors on how they managed the Company during the year and what their plans are for future development.

If you are a Member / Shareholder make sure your details are accurately reflected in the Statutory Register of Members. Without your current details including your current home address the company has no way of contacting you which is much more likely going to be more of a loss to you then to the them.

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