LegalizeCompanies (Auditing and Accounting) Act 2003
| “Audit committee. | 205B.—(1) In this section— ‘affiliate’ in relation to an auditor, means a firm, body corporate or partnership considered under section 182(2) to be an affiliate of the auditor at the relevant time; ‘amount of turnover’ and ‘balance sheet total’ have the same meanings as in section 8 of the Companies (Amendment) Act 1986; ‘internal audit’ means an examination of the internal control system of a public limited company, a large private company or a relevant undertaking that is conducted within the public limited company, large private company or undertaking or otherwise at the request of its audit committee, directors or other officers; ‘internal auditor’ means a person who conducts an internal audit; ‘large private company’ means either of the following: (a) a private company limited by shares that, in both the most recent financial year of the company and the immediately preceding financial year, meets the following criteria: (i) the balance sheet total of that company exceeds for the year— (A) €25,000,000, or (B) if an amount is prescribed under section 48(1)(l) of the Act of 2003 for the purpose of this provision, the prescribed amount; (ii) the amount of turnover of that company exceeds for the year— (A) €50,000,000, or (B) if an amount is prescribed under section 48(1)(l) of the Act of 2003 for the purpose of this provision, the prescribed amount; (b) a private company limited by shares if the company and all its subsidiary undertakings together, in both the most recent financial year of that company and the immediately preceding financial year, meet the criteria in paragraph (a); ‘parent undertaking’and ‘subsidiary undertaking’ have the same meaning as in the 1992 Regulations; ‘relevant undertaking’ means either of the following: (a) an undertaking referred to in Regulation 6 of the 1993 Regulations that, in both the most recent financial year and the immediately preceding financial year of the undertaking, meets the following criteria: (i) the balance sheet total of that undertaking exceeds for the year— (A) €25,000,000, or (B) if an amount is prescribed under section 48(1)(l) of the Act of 2003 for the purpose of this provision, the prescribed amount; (ii) the amount of turnover of that undertaking exceeds for the year— (A) €50,000,000, or (B) if an amount is prescribed under section 48(1)(l) of the Act of 2003 for the purpose of this provision, the prescribed amount; (b) an undertaking referred to in Regulation 6 of the 1993 Regulations if that undertaking and all of its subsidiary undertakings together, in both the most recent financial year and the immediately preceding financial year of the parent undertaking, meet the criteria in paragraph (a). (2) Subject to subsection (16), the board of directors of a public limited company (whether listed or unlisted) shall establish and adequately resource a committee of directors, to be known as the audit committee, with the following responsibilities: (a) reviewing, before they are presented to the board of directors for approval— (i) the company's annual accounts, and (ii) if the company is a parent undertaking, the group accounts of the group of undertakings of which the company is the parent undertaking; (b) determining whether the annual accounts so reviewed comply with section 205A(2) and whether, in the committee's opinion, they give at the end of the financial year a true and fair view of— (i) the state of affairs of the company, and (ii) the profit or loss of the company, even if, by virtue of section 3(2) of the Companies (Amendment) Act 1986, section 3(1) of that Act does not apply to the company's profit and loss account; (c) determining whether the group accounts so reviewed comply with section 205A(2) and whether, in the committee's opinion, they give at the end of the financial year a true and fair view of— (i) the state of affairs of the group of undertakings of which the company is the parent undertaking, and (ii) the profit or loss of that group; (d) recommending to the board of directors whether or not to approve the annual accounts and group accounts so reviewed; (e) determining, at least annually, whether in the committee's opinion, the company has kept proper books of account in accordance with section 202; (f) reviewing, before its approval by the board of directors, the statement required to be made under section 205E(5) and (6); (g) determining whether, in the committee's opinion, the statement so reviewed— (i) complies with section 205E(5) and (6), and (ii) is fair and reasonable and is based on due and careful enquiry; (h) recommending to the board of directors whether or not to approve a statement reviewed under paragraph (f); (i) advising the board of directors as to the recommendation to be made by the board to the shareholders concerning the appointment of the company's auditor; (j) monitoring the performance and quality of the auditor's work and the auditor's independence from the company; (k) obtaining from the auditor up to date information to enable the committee to monitor the company's relationship with the auditor, including, but not limited to, information relating to the auditor's affiliates; (l) recommending whether or not to award contracts to the auditor or an affiliate of the auditor for non-audit work; (m) satisfying itself that the arrangements made and the resources available for internal audits are in the committee's opinion suitable; (n) reporting, as part of the report under section 158 of the Principal Act, on the committee's activities for the year, including, but not limited to, the discharge of its responsibilities under paragraph (j); (o) performing any additional functions prescribed by regulation under section 48(1)(m) of the Act of 2003; (p) performing any other functions relating to the company's audit and financial management that are delegated to it by the board of directors. (3) Subject to subsection (16), the board of directors of each large private company and of each relevant undertaking shall either— (a) establish an audit committee that— (i) has all or some of the responsibilities specified in subsection (2), and (ii) subject to subsection (8), otherwise meets the requirements of this section, or (b) decide not to establish an audit committee. (4) The board of directors of each large private company and of each relevant undertaking to which subsection (3) applies shall state in their report under section 158 of the Principal Act— (a) whether the company or undertaking, as the case may be, has established an audit committee or decided not to do so, (b) if the company or undertaking, as the case may be, has established an audit committee, whether it has only some of the responsibilities specified in subsection (2), and (c) if the company or undertaking, as the case may be, has decided not to establish an audit committee, the reasons for that decision. (5) For the purpose of applying subsection (2) to a large private company or relevant undertaking that decides under subsection (3)(a) to establish an audit committee with some or all of the responsibilities specified in subsection (2)— (a) a reference in any applicable paragraph of subsection (2) to a public limited company or the company is to be construed as a reference to the large private company or relevant undertaking, as the case may be, and (b) subsection (2) applies to the extent specified by the large private company or the relevant undertaking with any other modifications necessary for that purpose. (6) The audit committee is to consist of such directors as the board of directors concerned thinks fit, provided, subject to subsection (8), both of the following requirements are met: (a) the committee consists of not fewer than 2 members; (b) all those appointed to the committee qualify under subsection (7). (7) A director qualifies for appointment to the audit committee unless he or she— (a) is, or was at any time during the 3 years preceding appointment to the committee— (i) an employee of the company or undertaking concerned, or (ii) an employee of any subsidiary of the company concerned or of a subsidiary undertaking of the undertaking concerned, or (b) is the chairperson of the board of directors. (8) The requirements specified in paragraphs (a) and (b) of subsection (6) do not apply if— (a) only one director on the board of directors of the company or undertaking concerned qualifies under subsection (7), (b) that director— (i) is appointed as the sole member of the audit committee, or (ii) is appointed as the chairperson of an audit committee consisting of not more than 2 members (including the chairperson) and has, in the case of an equal division of votes, a second or casting vote, (c) any conditions prescribed under section 48(1)(m) of the Act of 2003 are met, and (d) the directors of the company or undertaking concerned state in their report under section 158 of the Principal Act the reasons for the company's or undertaking's exemption from those requirements. (9) Written terms of reference concerning the audit committee's role in the audit and financial management of the company or relevant undertaking concerned shall— (a) be prepared and approved by the board of directors, (b) be submitted for the information of the shareholders of the company or undertaking concerned at its annual general meeting, and (c) be reviewed each year by the board of directors. (10) Without limiting the matters that may be included under subsection (9), the terms of reference must— (a) specify how the audit committee will discharge its responsibilities, and (b) provide for a programme of separate and joint meetings with the management, auditor and internal auditor of the company or undertaking concerned. (11) Subsection (9) applies also in relation to any amendments of the audit committee's terms of reference. (12) Where the board of directors of a public limited company to which subsection (2) applies fails to establish an audit committee that is constituted in accordance with this section, each director to whom the failure is attributable is guilty of an offence. (13) Where a director of a large private company or relevant undertaking to which subsection (3) applies fails to take all reasonable steps to comply with the requirements of subsection (4), the director is guilty of an offence. (14) A reference in this section to the directors of a relevant undertaking is to be construed in the case of an undertaking that does not have a board of directors as a reference to the corresponding persons appropriate to that undertaking. (15) For the purpose of applying this section to a partnership that is referred to in Regulation 6 of the 1993 Regulations and that is a relevant undertaking— (a) the partnership is to be treated as though it were a company formed and registered under the Companies Acts, (b) a reference in this section to a report under section 158 of the Principal Act is to be construed as a reference to a report under Regulation 14 of the 1993 Regulations, and (c) this section applies with any other modifications necessary for that purpose. (16) This section does not apply to— (a) a public limited company that is a wholly owned subsidiary undertaking of another public limited company, or (b) any company or undertaking of a class exempted under section 48(1)(j) of the Act of 2003 from the application of this section.”. |
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43 Amendment of Act of 1990 — new section 205C.
43.—The Act of 1990 is amended by inserting the following in Part X:
| “Disclosure of accounting policies. | 205C.—(1) In this section ‘relevant undertaking’ means— (a) a company, or (b) an undertaking referred to in Regulation 6 of the 1993 Regulations, but does not include a company or an undertaking of a class exempted under section 48(1)(j) of the Act of 2003 from this section; (2) A relevant undertaking shall disclose in the notes to its annual accounts the accounting policies adopted by the undertaking in determining— (a) the items and amounts to be included in its balance sheet, and (b) the amounts in its profit and loss account. (3) The accounting policies that a relevant undertaking is required to disclose under this section include, but are not limited to, those relating to the depreciation and diminution in the value of its assets. (4) Where a relevant undertaking fails to comply with subsection (2), each company or other entity that forms all or part of that undertaking is guilty of an offence.”. |
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44 Amendment of Act of 1990 — new section 205D.
44.—The Act of 1990 is amended by inserting the following in Part X:
| “Disclosure of remuneration for audit, audit-related and non-audit work. | 205D.—(1) In this section— ‘affiliate’ in relation to an auditor, means a firm, body corporate or partnership considered under section 182(2) to be an affiliate of the auditor; ‘audit committee’ means the committee established under section 205B; ‘audit-related work’ means work required by any relevant undertaking, body or person to be done by an auditor of the relevant undertaking by virtue of his or her position as auditor of that undertaking, but does not include audit work; ‘audit work’ means— (a) in relation to a relevant undertaking other than a partnership referred to in Regulation 6 of the 1993 Regulations, work required to fulfil the duties imposed under section 193 of this Act on an auditor of a company, and (b) in relation to a partnership referred to in Regulation 6 of the 1993 Regulations, work required to fulfil the duties imposed under Regulation 22 of those Regulations on an auditor appointed by the partners; ‘connected undertaking’, in relation to a relevant undertaking, means an undertaking that under the 1992 Regulations, or under those Regulations as applied by Regulation 9 of the 1993 Regulations, is— (a) a subsidiary undertaking of the relevant undertaking, (b) a joint venture of the relevant undertaking proportionally consolidated in accordance with Regulation 32 of the 1992 Regulations, or (c) an associated undertaking of the relevant undertaking; ‘firm’ means a firm that qualifies for appointment as auditor of a company or as a public auditor under section 187(1A); ‘non-audit work’ means work other than audit work or audit-related work; ‘relevant undertaking’ means— (a) a company, or (b) an undertaking referred to in Regulation 6 of the 1993 Regulations, but does not include a company or an undertaking of a class exempted under section 48(1)(j) of the Act of 2003 from this section; ‘remuneration’ includes benefits in kind and payments in cash. (2) Subject to subsection (5), a relevant undertaking shall disclose in the notes to its annual accounts relating to each financial year beginning on or after the commencement of this section the following information: (a) the remuneration for all work in each category specified in subsection (3) that was carried out for the relevant undertaking or a connected undertaking of the relevant undertaking, during that financial year— (i) by an auditor of the relevant undertaking, and (ii) by any firm or individual that, at any time during the financial year, was an affiliate of the auditor; (b) the remuneration for all work in each category specified in subsection (3) that was carried out for the relevant undertaking or a connected undertaking of the relevant undertaking, during the preceding financial year— (i) by an auditor of the relevant undertaking, and (ii) by any firm or individual that, at any time during the financial year, was an affiliate of the auditor; (c) where the remuneration referred to in paragraph (a) or (b) is for non-audit work, the nature of the work; (d) where all or part of the remuneration referred to in paragraph (a) or (b) is in the form of a benefit in kind, the nature and estimated monetary value of the benefit. (3) Remuneration must be disclosed under subsection (2) for each of the following categories of work carried out as described in that subsection: (a) audit work; (b) audit-related work; (c) non-audit work. (4) Where the auditor of a relevant undertaking is a firm, any work carried out by a partner in the firm is considered for the purposes of this section to have been carried out by the auditor. (5) The disclosure requirements of this section apply in relation to a financial year of the relevant undertaking only if— (a) the aggregate of the remuneration for all work in each specified category that was carried out as described in subsection (2)(a) in that financial year exceeds €1,000, and (b) the aggregate of the remuneration for all work in each specified category that was carried out as described in subsection (2)(b) in the preceding financial year exceeds €1,000. (6) Where the remuneration required to be disclosed by a relevant undertaking in respect of a financial year for non-audit work exceeds the aggregate of the remuneration required to be disclosed in respect of that year for audit work and audit-related work, the audit committee shall state in its report for that year under section 205B(2)(m)— (a) whether it has satisfied itself that the carrying out of the non-audit work by the auditor or an affiliate of the auditor has not affected the auditor's independence from the relevant undertaking, and (b) if it has satisfied itself to that effect, the reasons for the decision to have the non-audit work carried out by the auditor or an affiliate of the auditor. (7) Subsection (6) applies also where the relevant undertaking has no audit committee, but in that case the required statement shall be made by the directors in their report under section 158 of the Principal Act. (8) Where more than one firm or individual has been appointed as the auditor of a relevant undertaking in a single financial year, separate disclosure in respect of the remuneration of each of them and of their affiliates must be provided in the notes to the company's annual accounts. (9) The auditor of a relevant undertaking shall provide the directors of that undertaking with the information necessary to enable the auditor's affiliates to be identified for the purposes of this section. (10) Where a relevant undertaking fails to comply with subsection (2), (3) or (8), each company or other entity that forms all or part of that undertaking is guilty of an offence. (11) Where the audit committee of a relevant undertaking fails to comply with subsection (6) or the directors of a relevant undertaking fail to comply with that subsection as applied by subsection (7), each member of the committee or each director of the undertaking, as the case may be, to whom the failure is attributable is guilty of an offence. (12) Where an auditor fails to comply with subsection (9), the auditor is guilty of an offence. (13) Section 205B(14) applies in relation to any reference in this section to the directors of a relevant undertaking and section 205B(15) applies for the purpose of applying this section to a partnership.”. |
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45 Amendment of Act of 1990 — new sections 205E and 205F.
45.—The Act of 1990 is amended by inserting the following in Part X:
| Directors' compliance statement and related statement. | 205E.—(1) In this section— ‘amount of turnover’ and ‘balance sheet total’ have the same meanings as in section 8 of the Companies (Amendment) Act 1986; ‘relevant obligations’, in relation to a company, means the company's obligations under— (a) the Companies Acts, (b) tax law, and (c) any other enactments that provide a legal framework within which the company operates and that may materially affect the company's financial statements; ‘tax law’ means— (a) the Customs Acts, (b) the statutes relating to the duties of excise and to the management of those duties, (c) the Tax Acts, (d) the Capital Gains Tax Acts, (e) the Value-Added Tax Act 1972 and the enactments amending or extending that Act, (f) the Capital Acquisitions Tax Act 1976 and the enactments amending or extending that Act, (g) the statutes relating to stamp duty and to the management of that duty, and (h) any instruments made under an enactment referred to in any of paragraphs (a) to (g) or made under any other enactment and relating to tax. (2) This section applies to— (a) a public limited company (whether listed or unlisted), and (b) a private company limited by shares, but it does not apply to a company referred to in paragraph (a) or (b) that is of a class exempted under section 48(1)(j) of the Act of 2003 from this section or to a company referred to in paragraph (b) while that company qualifies for an exemption under subsection (9). (3) The directors of a company to which this section applies shall, as soon as possible after the commencement of this section or after this section becomes applicable to the company, prepare or cause to be prepared a directors' compliance statement containing the following information concerning the company: (a) its policies respecting compliance with its relevant obligations; (b) its internal financial and other procedures for securing compliance with its relevant obligations; (c) its arrangements for implementing and reviewing the effectiveness of the policies and procedures referred to in paragraphs (a) and (b). (4) The directors' compliance statement (including any revisions) must— (a) be in writing, (b) be submitted for approval by the board of directors, (c) at least once in every 3 year period following its approval by the board, be reviewed and, if necessary, revised by the directors, and (d) be included in the directors' report under section 158 of the Principal Act. (5) The directors of a company to which this section applies shall also include in their report under section 158 of the Principal Act a statement— (a) acknowledging that they are responsible for securing the company's compliance with its relevant obligations, (b) confirming that the company has internal financial and other procedures in place that are designed to secure compliance with its relevant obligations, and, if this is not the case, specifying the reasons, and (c) confirming that the directors have reviewed the effectiveness of the procedures referred to in paragraph (b) during the financial year to which the report relates, and, if this is not the case, specifying the reasons. (6) In addition, the directors of a company to which this section applies shall in the statement required under subsection (5)— (a) specify whether, based on the procedures referred to in that subsection and their review of those procedures, they are of the opinion that they used all reasonable endeavours to secure the company's compliance with its relevant obligations in the financial year to which the annual report relates, and (b) if they are not of that opinion, specify the reasons. (7) For the purposes of this section, a company's internal financial and other procedures are considered to be designed to secure compliance with its relevant obligations and to be effective for that purpose if they provide a reasonable assurance of compliance in all material respects with those obligations. (8) Where the directors of a company to which this section applies fail— (a) to prepare, or to cause to be prepared, a directors' compliance statement as required by subsections (3) and (4)(a) to (c), (b) to include a directors' compliance statement in the directors' report as required by subsection (4)(d), or (c) to comply with subsections (5) and (6), each director to whom the failure is attributable is guilty of an offence. (9) A private company limited by shares qualifies for an exemption from this section in respect of any financial year of the company if— (a) its balance sheet total for the year does not exceed— (i) €7,618,428, or (ii) if an amount is prescribed under section 48(1)(l) of the Act of 2003 for the purpose of this provision, the prescribed amount, and (b) the amount of its turnover for the year does not exceed— (i) €15,236,856, or (ii) if an amount is prescribed under section 48(1)(l) of the Act of 2003 for the purpose of this provision, the prescribed amount. |
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| Auditor's review of compliance statement and related statements. | 205F.—(1) The auditor of a company to which section 205E applies shall undertake an annual review of— (a) the directors' compliance statement under subsections (3) and (4) of that section, and (b) the directors' statement under subsections (5) and (6) of that section, to determine whether, in the auditor's opinion, each statement is fair and reasonable having regard to information obtained by the auditor, or by an affiliate of the auditor within the meaning of section 205D, in the course of and by virtue of having carried out audit work, audit-related work or non-audit work for the company. (2) The auditor shall— (a) include in the auditor's report appended to the company's annual accounts a report on, and the conclusions of, the review undertaken under subsection (1), and (b) where any statement reviewed under subsection (1) is not, in the auditor's opinion, fair and reasonable— (i) make a report to that effect to the directors, and (ii) include that report in the auditor's report appended to the annual accounts. (3) Where, in the auditor's opinion, the directors have failed— (a) to prepare, or to cause to be prepared, a directors' compliance statement as required by section 205E(3) and (4)(a) to (c), (b) to include a directors' compliance statement in the directors' report as required by section 205E(4)(d), or (c) to comply with section 205E(5) and (6), the auditor shall report that opinion and the reasons for forming that opinion to the Director of Corporate Enforcement. (4) Section 194(6) applies, with the necessary modifications, in relation to an auditor's compliance with an obligation imposed on him by or under this section as it applies in relation to an obligation imposed by or under section 194. (5) A person who contravenes this section is guilty of an offence.”. |
46 Amendment of section 127 of Act of 1963 (annual return date).
46.—Section 127 of the Act of 1963 (inserted by section 60 of the Company Law Enforcement Act 2001) is amended as follows:
(a) by substituting the following for subsection (1):
“(1) The annual return of a company shall be made up to a date that is not later than its annual return date, except that the first annual return of a company incorporated after the commencement of section 46 of the Companies (Auditing and Accounting) Act 2003 shall be made up to the date that is its first annual return date.”;
(b) in subsection (5) by inserting “, subject to subsection (8),” after “, the annual return date is”;
(c) by substituting the following for subsection (8):
“(8) Where the annual return of a company is made up to a date earlier than its annual return date, the annual return date shall thereafter be each anniversary of the date to which that annual return is made up, unless the company elects in the annual return to retain its existing annual return date or establishes a new annual return date pursuant to subsection (9).”.
47 Amendment of section 128 of Act of 1963 (documents to be annexed to annual return).
47.—Section 128 of the Act of 1963 is amended by substituting the following for subsection (6):
“(6) Nothing in this section requires the balance sheet of a private company or any document or report relating to the balance sheet, other than the report prepared in accordance with subsection (6B), to be annexed to the annual return.
(6A) Nothing in subsection (4) or in section 2(1) of the Companies (Amendment) Act 1986 exempts any of the following companies from the requirement to annex to its annual return the report prepared in accordance with subsection (6B):
(a) a private company not trading for the acquisition of gain by the members;
(b) a company to which subsection (4)(c) applies;
(c) a company in respect of which an order under subsection (5) is in force.
(6B) The auditors of a company referred to in subsection (6) or (6A) shall prepare a separate report to the directors which—
(a) confirms that they audited the accounts for the relevant year, and
(b) includes within it the report made to the members of the company pursuant to section 193.
(6C) A copy of the report prepared in accordance with subsection (6B) shall be certified by a director and by the secretary of the company to be a true copy of that report and shall be attached to the company's annual return.”.
PART 4 Regulations and Miscellaneous Matters
48 Minister's power to make regulations.
48.—(1) Subject to section 49, the Minister may make regulations respecting any matter that is referred to in this Act as prescribed or that is necessary or advisable for giving effect to this Act, including regulations—
(a) prescribing bodies of accountants for the purposes of this Act,
(b) prescribing designated bodies for the purposes of sections 6 and 11,
(c) providing that, effective on a specified date, a body referred to in section 6(2) ceases to be a designated body,
(d) varying, as a consequence of a regulation under paragraph (b) or (c), the numbers specified in section 11(1), (2) and (3) as the Minister considers necessary or expedient,
(e) prescribing for the purposes of the criteria referred to in section 15(2)(b) amounts that are higher or lower than the euro amounts specified in that section and that apply instead of the euro amounts,
(f) prescribing the amount of a penalty under section 23(5)(c),
(g) prescribing for the purpose of section 23(7) the manner in which notice is to be given,
(h) prescribing, for the purposes of the criteria referred to in paragraph (c) of the definition of “relevant undertaking” in section 26, amounts that are higher or lower than the euro amounts specified in that definition and that apply instead of the euro amounts,
(i) prescribing for the purposes of section 31(3) persons to whom the Supervisory Authority may disclose information,
(j) exempting from all or any of sections 15 and 26 of this Act and sections 205A, 205B, 205C, 205D and 205E of the Act of 1990—
(i) qualifying companies within the meaning of section 110 of the Taxes Consolidation Act 1997 (as inserted by section 48 of the Finance Act 2003), and
(ii) classes of other companies and other undertakings, if the extent to which or the manner in which they are or may be regulated under any enactment makes it, in the Minister's opinion, unnecessary or inappropriate to apply those provisions to them,
(k) prescribing for the purposes of the definition of “accounting standards” in section 205A of the Act of 1990 one or more bodies that issue statements of accounting standards,
(l) prescribing, for the purposes of the definitions of “large private company” and “relevant undertaking” in section 205B of the Act of 1990 or for the purposes of section 205E(9) of that Act, amounts that are higher or lower than the euro amounts specified in those definitions or in section 205E(9), as the case may be, and that apply instead of the euro amounts,
(m) prescribing for the purposes of section 205B of the Act of 1990—
(i) additional functions to be performed by audit committees,
(ii) conditions to be met under subsection (8)(c) of that section, and
(iii) supplementary rules governing the operation of those committees,
and
(n) prescribing the format in which information must be disclosed under section 205D of the Act of 1990 for audit work, audit-related work and non-audit work.
(2) On a body ceasing—
(a) to be a prescribed accountancy body because of the revocation of a regulation made under subsection (1)(a), or
(b) to be a designated body because of a regulation under subsection (1)(c),
any director who was nominated by that body under section 11 immediately ceases to hold office.
(3) Before preparing for the purposes of section 49 a draft regulation under subsection (1)(a), (e), (h) or (l) of this section, the Minister shall consider any recommendations that the Supervisory Authority may make.
(4) Subject to subsection (3), before making a regulation under this section the Minister may consult with any persons that the Minister considers should be consulted.
(5) Regulations under this section may contain any transitional and other supplementary and incidental provisions that appear to the Minister to be appropriate.
49 Prior approval by Oireachtas required for certain regulations.
49.—A regulation may not be made under section 48(1)(a), (e), (h), (j) or (l) unless—
(a) a draft of the proposed regulation has been laid before the Houses of the Oireachtas, and
(b) a resolution approving the draft has been passed by each House.
50 Laying of other regulations before Oireachtas.
50.—(1) The Minister shall ensure that a regulation made under this Act, other than one to which section 49 applies, is laid before each House of the Oireachtas as soon as practicable after it is made.
(2) Either House of the Oireachtas may, by a resolution passed within 21 sitting days after the day on which the regulation is laid before it, annul the regulation.
(3) The annulment of a regulation under subsection (2) takes effect immediately on the passing of the resolution concerned, but does not affect the validity of anything done under the regulation before the passing of the resolution.
51 Amendment of Company Law Enforcement Act 2001.
51.—Section 12(1) of the Company Law Enforcement Act 2001 is amended as follows:
(a) in paragraph (f) by deleting “and” where it occurs at the end of that paragraph;
(b) in paragraph (g) by substituting “any other Act, and” for “any other Act.”;
(c) by inserting the following after paragraph (g):
“(h) to act, under the Companies (Auditing and Accounting) Act 2003, as a member of the Irish Auditing and Accounting Supervisory Authority and, if appointed under section 11 of that Act, as a director of the Authority.”.
52 Amendment of Company Law Enforcement Act 2001 (certificate evidence).
52.—The Company Law Enforcement Act 2001 is amended by inserting the following after section 110:
| “Certificate evidence and other matters. | 110A.—(1) In this section— ‘appropriate officer’ means— (a) in respect of functions that, under the Companies Acts, are to be performed by the Minister, the Minister or an officer of the Minister, (b) in respect of functions that, under the Companies Acts, are to be performed by the Director, the Director or an officer of the Director, (c) in respect of functions that, under the Companies Acts, are to be performed by the inspector or inspectors appointed pursuant to Part II of the Companies Act 1990, an inspector or, where more than one inspector is appointed, any inspector, and (d) in respect of functions that, under the Companies Acts, are to be performed by the registrar of companies, a registrar, an assistant registrar or any other person authorised in that behalf by the Minister under section 52(2) of the Companies (Amendment) (No. 2) Act 1999; ‘item’ includes a document and any other thing; ‘notice’ includes— (a) any request, notice, letter, demand, pleading or other document, and (b) any form of obligation that an individual may have under the Companies Acts by reason of a demand or request made by an appropriate officer, whether communicated in writing, orally or by other means. (2) In any legal proceedings (including proceedings relating to an offence) a certificate signed by an appropriate officer in the course of performing his or her functions is, in the absence of evidence to the contrary, proof of the following: (a) if it certifies that the officer has examined the relevant records and that it appears from them that during a stated period an item was not received from a stated person, proof that the person did not during that period furnish that item and that the item was not received; (b) if it certifies that the officer has examined the relevant records and that it appears from them that a stated notice was not issued to a stated person, proof that the person did not receive the notice; (c) if it certifies that the officer has examined the relevant records and that it appears from them that a stated notice was duly given to a stated person on a stated date, proof that the person received the notice on that date; (d) if it certifies that the officer has examined the relevant records and that it appears from them that a stated notice was posted to a stated person at a stated address on a stated date, proof that the notice was received by that person at that address on a date 3 days after the date on which the document was posted; (e) if it certifies that the officer has examined the relevant records and that it appears from them that a document was filed or registered with or delivered at a stated place, on a stated date or at a stated time is, proof that the document was filed or registered with or delivered at that place, on that date or at that time. (3) A certificate referred to in subsection (2) that purports to be signed by an appropriate officer is admissible in evidence in any legal proceedings without proof of the officer's signature or that the officer was the proper person to sign the certificate. (4) A document prepared pursuant to any provision of the Companies Acts and purporting to be signed by any person is deemed, in the absence of evidence to the contrary, to have been signed by that person. (5) A document submitted under the Companies Acts on behalf of a person is deemed to have been submitted by the person unless that person proves that it was submitted without that person's consent or knowledge. (6) A document that purports to be a copy of, or extract from, any document kept by or on behalf of the Director and that purports to be certified by— (a) the Director, (b) an officer of the Director, or (c) any person authorised by the Director, to be a true copy of or extract from the document so kept is, without proof of the official position of the person purporting to so certify, admissible in evidence in all legal proceedings as of equal validity with the original document. (7) A document that purports to be a copy of, or extract from, any document kept by the Minister and that purports to be certified by— (a) the Minister, (b) an officer of the Minister, or (c) any person authorised by the Minister, to be a true copy of, or extract from, the document so kept is, without proof of the official position of the person purporting to so certify, admissible in evidence in all legal proceedings as of equal validity with the original document. (8) A document that purports to be a copy of, or extract from, any document kept by an inspector and that is certified by— (a) the inspector, or (b) any person authorised by the inspector, to be a true copy of, or extract from, the document so kept is, without proof of the official position of the person purporting to so certify, admissible in evidence in all legal proceedings as of equal validity with the original document. (9) A document that purports to have been created by a person is presumed, in the absence of evidence to the contrary, to have been created by that person, and any statement contained in the document is presumed to have been made by the person unless the document expressly attributes its making to some other person.”. |
|---|---|
53 Amendment of Companies (Amendment) (No. 2) Act 1999 (exemption from requirement to have accounts audited).
53.—The Companies (Amendment) (No. 2) Act 1999 is amended as follows:
(a) in section 32(1) by substituting “Subject to sections 32A and 33(1)” for “Subject to section 33(1)”;
(b) in section 32(3)(a)(ii) by substituting “€1,500,000” for “£250,000”;
(c) in section 32(3)(a)(v)(IV) by substituting “(other than paragraph 18 thereof).” for “(other than paragraph 18 thereof),”;
(d) in section 32(3) by deleting “and” where it occurs after paragraph (a)(v)(IV) and by repealing paragraph (b);
(e) by adding the following section after section 32:
| “Exemption conditional on timely filing of annual return. | 32A.—Notwithstanding that the conditions specified in section 32(3) are satisfied, a company is not entitled to the exemption in a financial year unless— (a) the company's annual return to which the accounts for that financial year are annexed is delivered to the registrar of companies in compliance with section 127 of the Principal Act, and (b) if the annual return referred to in paragraph (a) is not the company's first annual return, its annual return to which the accounts for its preceding financial year were annexed was also delivered to the registrar of companies in compliance with section 127 of the Principal Act.”. |
|---|---|
54 Amendment of section 43 of Companies (Amendment) (No. 2) Act 1999 (Company to have director resident in State).
54.—Section 43 of the Companies (Amendment) (No. 2) Act 1999 is amended by inserting the following after subsection (15):
“(16) In this section ‘director’ does not include an alternate director.”.
55 Amendment of section 13 of Companies (Amendment) Act 1982.
55.—Section 13 of the Companies (Amendment) Act 1982 is amended by substituting the following for subsection (2):
“(2) The Minister may by an order made under this section declare that the provisions of section 376 of the Principal Act shall not apply to a partnership that is of a description, and that has been or is formed for a purpose, specified in the order.”.
56 Amendment of section 200 of Act of 1963 (avoidance of provisions exempting officers and auditors from liability).
56.—Section 200 of the Act of 1963 is amended by renumbering that section as section 200(1) and by adding the following:
“(2) Notwithstanding subsection (1), a company may purchase and maintain for any of its officers or auditors insurance in respect of any liability referred to in that subsection.
(3) Notwithstanding any provision contained in an enactment, the articles of a company or otherwise, a director may be counted in the quorum and may vote on any resolution to purchase or maintain any insurance under which the director might benefit.
(4) Any directors' and officers' insurance purchased or maintained by a company before the date on which the amendments made to this section by the Companies (Auditing and Accounting) Act 2003 came into operation is as valid and effective as it would have been if those amendments had been in operation when that insurance was purchased or maintained.
(5) In this section a reference to an officer or auditor includes any former or current officer or auditor of the company, as the case may be.”.
57 Amendment of Companies Acts (default provisions).
57.—The Companies Acts specified in Schedule 2 are amended as indicated in that Schedule.
58 Amendment of Defamation Act 1961.
58.—Paragraph II of the Second Schedule to the Defamation Act 1961 (which specifies statements that carry qualified privilege subject to explanation or contradiction) is amended by inserting the following after paragraph 6:
“7. (1) A copy or fair and accurate report or summary of any decision, direction, report, investigation, statement or notice made, given, prepared, published or served by the Irish Auditing and Accounting Supervisory Authority.
(2) In this paragraph, ‘statement’ includes the following:
(a) any advice, admonition or censure given or administered by the Irish Auditing and Accounting Supervisory Authority under section 23 of the Companies (Auditing and Accounting) Act 2003;
(b) any certificate of refusal issued by that Authority in connection with an investigation under section 24 of the Companies (Auditing and Accounting) Act 2003;
(c) any notice given or statement made by that Authority under section 26 of the Companies (Auditing and Accounting) Act 2003 respecting whether a company's accounts comply with the Companies Acts.
(3) Nothing in this paragraph or any other provision of this Act limits section 33 of the Companies (Auditing and Accounting) Act 2003.”.
59 Revocation of regulations.
59.—The Companies Act 1990 (Auditors) Regulations 1992 (S.I. No. 259 of 1992) are revoked.
SCHEDULE 1 Transfer of Functions to Supervisory Authority
PART 1 Amendment of Companies Act 1990
| Item No. | Section affected | Amendment | |
|---|---|---|---|
| 1. | Section 187 | (a) In subsection (1)(a)(i), (ii) and (vi), substitute “Supervisory Authority” for “Minister” wherever it appears. | |
| (b) In subsection (1)(a), substitute the following for subparagraph (iv): | |||
| “(iv) he was authorised by the Minister before the 3rd day of February, 1983, and is for the time being authorised by the Supervisory Authority to be so appointed, or”. | |||
| 2. | Section 189 | In subsections (1), (2) and (4), substitute “Supervisory Authority” for “Minister” wherever it appears. | |
| 3. | Section 190 | In subsections (1), and (2), substitute “Supervisory Authority” for “Minister” wherever it appears. | |
| 4. | Section 191 | Substitute the following for section 191: | |
| “Recognition of bodies of accountants. | 191.—The Supervisory Authority may grant recognition to a body of accountants but only if satisfied— | ||
| (a) that the standards relating to training, qualifications and repute required by that body for the awarding of a practising certificate to a person are not less than those specified in Articles 3 to 6, 8 and 19 of the Council Directive, and | |||
| (b) as to the standards that body applies to its members in the areas of ethics, codes of conduct and practice, independence, professional integrity, auditing and accounting standards and investigation and disciplinary procedures.”. | |||
| 5. | Section 192 | (a) In subsections (1) and (2) substitute “Supervisory Authority” for “Minister” and substitute “under or for the purposes of section 187” for “under section 187”. | |
| (b) In subsection (3) substitute “Supervisory Authority” for “Minister” and substitute “under or for the purposes of section 187” for “under the said section 187”. | |||
| (c) In subsection (4)(a) to (d) substitute “Supervisory Authority” for “Minister” wherever it appears. | |||
| (d) In subsection (4), repeal paragraphs (e), (f) and (g). |
PART 2 Amendment of the Institute of Chartered Accountants in Ireland (Charter Amendment) Act 1966
| Item No. | Section affected | Amendment |
|---|---|---|
| 1. | Section 6 | Substitute “Supervisory Authority” for “Government”. |
SCHEDULE 2
| Item No. | Acts and Provisions affected | Amendment |
|---|---|---|
| 1. | Companies Act 1963, sections 10(10), 12(3), 44(8), 46(2), 47(4), 57(3), 58(3), 59(5), 69(2), 70(3), 78(5), 84(2), 86(2), 91(5), 92(4), 100(3), 101(2), 107(3), 110(2), 113(5), 114(3), 114(4), 115(6), 116(9), 117(4), 128(4), 136(3), 136(5), 143(5), 143(6), 145(4), 156(3), 157(2), 179(4), 180(5), 188(2), 193(4), 194(5)(b), 194(6), 195(12), 197(3), 201(6), 202(4), 202(6), 203(3), 205(5), 224(5), 227(2), 249(3), 252(2), 256(7), 261(7), 262(2), 263(3), 263(6), 263(7), 272(2), 273(3), 273(6), 273(7), 276A(3), 278(2), 280(4), 300, 301, 301A(5), 303(2), 305(2), 306(2), 310(2), 314, 317(2), 321(2), 322C(3), 358, 377(7) and 378(2) | Substitute, in each of the provisions specified in column 2, “shall be guilty of an offence and liable to a fine” for “shall be liable to a fine”. |
| 2. | Companies Act 1963, section 60(5) | Substitute, in the provision specified in column 2, “shall be guilty of an offence and liable to imprisonment for a period not exceeding 6 months or to a fine not exceeding €1,904.61 or to both” for “shall be liable to imprisonment for a period not exceeding 6 months or to a fine not exceeding £500 or to both”. |
| 3. | Companies Act 1963, section 102(2) | Substitute for the provision specified in column 2 the following: |
| “(2) If a judgment creditor makes default in complying with subsection (1) he shall be guilty of an offence and liable to a fine not exceeding €1,904.61, and if a company makes default in complying with that subsection, the company and every officer who is in default shall be guilty of an offence and liable to a fine not exceeding €1,904.61.”. | ||
| 4. | Companies Act 1963, sections 114(2), 131(6), 159(5), 190(9), 221(2), 234(5) and 398(3) | Substitute, in each of the provisions specified in column 2, “shall be guilty of an offence and liable to a fine” for the words “shall be liable to a fine” in both instances in which those words occur within that provision. |
| 5. | Companies Act 1963, section 266(6) | Substitute for the provision specified in column 2 the following: |
| “(6) If default is made— | ||
| (a) by the company in complying with subsections (1) and (2), | ||
| (b) by the directors of the company in complying with subsection (3), or | ||
| (c) by any director of the company in complying with subsection (4), | ||
| the company, directors or director, as the case may be, shall be guilty of an offence and liable to a fine not exceeding €1,904.61, and in case of default by the company, every officer of the company who is in default shall be guilty of an offence and liable to a fine not exceeding €1,904.61.”. | ||
| 6. | Companies (Amendment) Act 1990, section 11(7) | Substitute, in the provision specified in column 2, “shall be guilty of an offence and liable to a fine” for “shall be liable to a fine”. |
| 7. | Companies Act 1990, section 50(7) | Substitute for the provision specified in column 2 the following: |
| “(7) If default is made in complying with subsection (1) or (5) or if an inspection required under subsection (6) is refused, the company and every officer of the company who is in default shall be guilty of an offence and liable on summary conviction to a fine not exceeding €1,904.61 and, for continued contravention, to a daily default fine not exceeding €63.49 and, if default is made for 14 days in complying with subsection (4), the company and every officer of the company who is in default shall be guilty of an offence and liable to a fine not exceeding €1,904.61 and, for continued contravention, to a daily default fine not exceeding €63.49.”. | ||
| 8. | Companies Act 1990, section 60(10) | Substitute, in the provision specified in column 2, “shall be guilty of an offence and liable to a fine” for “shall be liable to a fine” in both instances in which those words occur within that provision. |
| 9. | Companies Act 1990, sections 80(10) and 161(6) | Substitute, in each provision specified in column 2, “shall be guilty of an offence and liable to a fine” for the words “shall be liable to a fine” in both instances in which those words occur within that provision. |
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