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Companies (Amendment) Act 2009

July 29, 2009

The Companies (Amendment) Act 2009 was signed into law by the President on 12 July. After its introduction last April, the Act passed swiftly through the Oireachtas as expected given the publicity surrounding directors’ disclosures since the beginning of 2009.

Broadly speaking, the Act aims to:

  • increase transparency, with regard to banks’ accounts; and
  • clarify and enhance the rights of access and of search and seizure of the Office of the Director of Corporate Enforcement (ODCE).

    Following debate in the Seanad in June, it was decided not to deal with director’s compliance statements in the Act but to do so in the Company Law Consolidation and Reform Bill due to be published next year.

    The key provisions of the Act are:

    • Replacing the requirement for companies to have an Irish resident director with one that requires a director is resident in a Member State of the EEA, thus ensuring Irish company law is compatible with the EC Treaty. This amendment allays concerns of the European Commission that certain elements of the existing legislation were not compatible with the EC Treaty.
    • Making all officers of a company guilty of an offence, where a company makes a loan to directors (or connected persons) in breach of companies’ legislation. Previously only those directors who were in wilful default and authorised or permitted the loans committed an offence.
    • Requiring disclosure in the company accounts of bank loans to bank directors so that banks are to be treated in the same way as other companies.
    • Increasing powers for the ODCE, including:
      • a specific right of access to the company statutory registers that record a director’s declaration of interest;
      • the power to require the production of books and records from third parties, where those records relate to the business of a company under investigation;
      • an extension of search warrants, under which the ODCE may enter and search a company premises and which are usually valid for a period of one month, upon application by the ODCE to the District Court;
      • removal of papers and electronic information from the premises for subsequent examination elsewhere in order to determine their relevance to matters under investigation; and
        seizure of potentially privileged information on a “sealed” basis.