PART IV

Miscellaneous

40. — Section 16 of the Investment Limited Partnerships Act, 1994 , is hereby amended by the substitution of the following subsection for subsection (10):

“(10) An auditor who fails to comply with subsection (3), (4) or (6) shall be guilty of an offence.”.

41. — Section 240 of the Companies Act, 1990 , is hereby amended by the substitution for subsection (5) of the following subsections:

“(5) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act, 1851, summary proceedings in relation to an offence under the Companies Acts may be commenced—

(a) at any time within 3 years from the date on which the offence was committed, or

(b) if, at the expiry of that period, the person against whom the proceedings are to be brought is outside the State, within 6 months from the date on which he next enters the State, or

(c) at any time within 3 years from the date on which evidence that, in the opinion of the person by whom the proceedings are brought, is sufficient to justify the bringing of the proceedings comes to that person's knowledge,

whichever is the later.

(5A) For the purpose of subsection (5)(c), a certificate signed by or on behalf of the person bringing the proceedings as to the date on which the evidence referred to in that provision relating to the offence concerned came to his knowledge shall be prima facie evidence thereof and in any legal proceedings a document purporting to be a certificate issued for the purpose of this subsection and to be so signed shall be deemed to be so signed and shall be admitted as evidence without proof of the signature of the person purporting to sign the certificate.”.

42. —(1) A company shall not be formed and registered under the Companies Acts, 1963 to 1999, after the commencement of this section, unless it appears to the registrar of companies that the company, when registered, will carry on an activity in the State, being an activity that is mentioned in its memorandum.

(2) The registrar of companies may accept as sufficient evidence that a company, when registered, will carry on an activity in the State a statutory declaration, in the prescribed form, that the purpose or one of the purposes for which the company is being formed is the carrying on by it of an activity in the State and which declaration includes the following particulars—

(a) if it appears to the person making the declaration that the activity belongs to a division, group and class appearing in the relevant classification system—

(i) the general nature of the activity, and

(ii) the division, group and class in that system to which the activity belongs,

(b) if it appears to the said person that the activity does not belong to any such division, group and class, a precise description of the activity,

(c) the place or places in the State where it is proposed to carry on the activity,

(d) the place, whether in the State or not, where the central administration of the company will normally be carried on.

(3) For the purposes of subsection (2), if the purpose or one of the purposes for which the company is being formed is the carrying on of 2 or more activities in the State, the particulars in respect of the matters referred to in paragraphs (a) to (c) of that subsection to be given in the statutory declaration shall be the particulars that relate to whichever of those activities the person making the declaraction considers to be the principal activity for which the company is being formed to carry on in the State.

(4) The statutory declaration referred to in subsection (2) shall be made by—

(a) one of the persons named in the statement delivered under section 3 of the Companies (Amendment) Act, 1982 , in relation to the company as directors of the company,

(b) the person or, as the case may be, one of the persons named in the said statement as secretary or joint secretaries of the company, or

(c) the solicitor, if any, engaged in the formation of the company.

(5) The form prescribed for the purposes of the statutory declaration referred to in subsection (2) may enable the declarant to include therein a declaration as to the matters referred to in section 5(5) of the Companies (Amendment) Act, 1983 , and such a declaration that is so included shall suffice for the purposes of that section 5(5) as if it had been separately made and delivered to the registrar of companies.

(6) Without prejudice to its construction for the purposes of any other provision of that section, the expression “the requirements mentioned in subsection (1)” in subsection (5) of section 5 of the Companies (Amendment) Act, 1983 , shall not be construed as including the requirements of this section.

(7) In this section—

“activity” means any activity that a company may be lawfully formed to carry on and includes the holding, acquisition or disposal of property of whatsoever kind;

“relevant classification system” means NACE Rev. 1, that is to say, the common basis for statistical classifications of economic activities within the European Community set out in the Annex to Council Regulation (EEC) No. 3037/90 of 9 October 1990⁽¹⁾ on the statistical classification of economic activities in the European Community, as amended for the time being.

43. —(1) Subject to subsection (3) and section 44 , one, at least, of the directors for the time being of a company, not being a company referred to in subsection (2), shall, on and from the commencement of this section, be a person who is resident in the State.

(2) Subject to subsection (3) and section 44 , one, at least, of the directors for the time being of a company, being—

(a) a company the memorandum of which was delivered to the registrar of companies for registration under section 17 of the Principal Act before the commencement of this section, or

(b) an existing company (within the meaning of the Principal Act),

shall, on and from the date that is 12 months after the commencement of this section, be a person who is resident in the State.

(3) Subsection (1) or (2), as the case may be, shall not apply in relation to a company if the company for the time being holds a bond, in the prescribed form, in force to the value of £20,000 and which provides that, in the event of a failure by the company to pay the whole or part of—

(a) a fine, if any, imposed on the company in respect of an offence under the Companies Acts, 1963 to 1999, committed by it, being an offence which is prosecutable by the registrar of companies, and

(b) (i) a fine, if any, imposed on the company in respect of an offence under section 1078 of the Taxes Consolidation Act, 1997 , committed by it, being an offence that consists of a failure by the company to deliver a statement which it is required to deliver under section 882 of that Act or to comply with a notice served on it under section 884 of that Act, and

(ii) a penalty, if any, which it has been held liable to pay under section 1071 or 1073 of the Taxes Consolidation Act, 1997 ,

there shall become payable under the bond to a person nominated for the purpose (“the nominated person”) by the registrar of companies or the Revenue Commissioners, as appropriate, (or jointly by the registrar and the Commissioners in the case of both a fine referred to in paragraph (a) and a fine or penalty, or a fine and penalty, referred to in paragraph (b)), a sum of money for the purposes of that sum being applied by the nominated person in discharging the whole or part, as the case may be, of the company's liability in respect of any such fine or penalty, and any sum that becomes so payable shall be applied by the nominated person accordingly.

(4) The bond referred to in subsection (3) may be entered into and shall have effect according to its terms notwithstanding any rule of law whereby any agreement to insure or indemnify a person in respect of any punishment or liability imposed on him or her in relation to any offence or unlawful act committed by him or her is void or unenforceable.

(5) The bond referred to in subsection (3) shall also provide that, in addition to the sum referred to in that subsection, there shall become payable under the bond to the nominated person, on demand being made, with the consent of the Revenue Commissioners, by him or her in that behalf, a sum of money, not exceeding such sum as the Revenue Commissioners and the Minister may sanction, for the purpose of defraying such expenses as may have been reasonably incurred by that person in carrying out his or her duties under subsection (3).

(6) The nominated person shall keep all proper and usual accounts, including an income and expenditure account and a balance sheet, of all moneys received by him or her on foot of the bond referred to in subsection (3) and of all disbursements made by him or her from any such moneys.

(7) The Minister, after consultation with the Minister for Finance, the Revenue Commissioners and any other person whom, in the opinion of the Minister, might be concerned with or interested in the matter, may prescribe—

(a) that arrangements in relation to the bond referred to in subsection (3) shall only be entered into with persons of a prescribed class or classes,

(b) the form of that bond and the minimum period to be specified in the bond as being the period for which it shall be valid.

(8) A copy of the bond referred to in subsection (3) held by a company shall be appended—

(a) in case none of the directors of the company is resident in the State on its incorporation, to the statement required by section 3 of the Companies (Amendment) Act, 1982 , to be delivered to the registrar of companies in relation to the company,

(b) in case a notification is made under subsection (9) to the registrar of companies in relation to the company, to that notification,

(c) in case during the period to which an annual return concerning the company relates none of the directors of the company is resident in the State, to that annual return (unless such a copy has been appended to a notification under subsection (9) made to the registrar of companies in that period).

(9) Without prejudice to anything in section 195 (as amended by this Act) of the Principal Act, if a person ceases to be a director of a company and, at the time of that cessation—

(a) he or she is resident in the State, and

(b) to his or her knowledge, no other director of the company is resident in the State,

that person shall, within 14 days after that cessation, notify, in writing, the registrar of companies of that cessation and the matter referred to in paragraph (b).

(10) A notification in writing to the registrar of companies of the matter referred to in subsection (9)(b) shall not, of itself, be regarded as constituting defamatory matter.

(11) If a person fails to comply with subsection (9), he or she shall be jointly and severally liable with the company of which he or she has ceased to be a director for any fine or penalty referred to in subsection (3) imposed on the company or which it is held liable to pay after that cessation, and any such fine or penalty for which that person is so liable may be recovered by the registrar of companies or the Revenue Commissioners, as appropriate, from him or her as a simple contract debt in any court of competent jurisdiction.

(12) Any provision of a company's articles shall be void in so far as it has the effect of prohibiting a person who is resident in the State from being a director of the company.

(13) If subsection (1) or, as the case may be, subsection (2) is not complied with, the company concerned and every officer of the company who is in default shall be guilty of an offence.

(14) Summary proceedings in relation to an offence under subsection (13) may be brought and prosecuted by the registrar of companies.

(15) The provisions of section 311 of the Principal Act shall apply for the purposes of this section as they apply for the purposes of that section 311, subject to the following modifications—

(a) for subsections (1) and (2) thereof (inserted by the Companies (Amendment) Act, 1982 ) there shall be substituted the following subsections:

(1) Where the registrar of companies has reasonable cause to believe that subsection (1) or, as the case may be, subsection (2) of section 43 of the Companies (Amendment) (No. 2) Act, 1999, is not being complied with in relation to a company, he may send to the company by post a registered letter requesting the company to furnish to him evidence that the provision concerned is being complied with and stating that, if that request is not complied with within 1 month from the date of that letter, a notice will be published in Iris Oifigiúil with a view to striking the name of the company off the register.

(2) If the registrar does not, within 1 month after sending the letter, receive evidence from the company that satisfies him that subsection (1) or, as the case may be, subsection (2) of section 43 of the Companies (Amendment) (No. 2) Act, 1999, is being complied with in relation to the company, he may publish in Iris Oifigiúil and send to the company by registered post a notice that, at the expiration of 1 month from the date of that notice, the name of the company mentioned therein will, unless cause is shown to the contrary, be struck off the register, and the company will be dissolved.”.

and

(b) in subsection (8), there shall be substituted for “if satisfied that the company was at the time of the striking off carrying on business”, “if satisfied that subsection (1) or, as the case may be, subsection (2) of section 43 of the Companies (Amendment) (No. 2) Act, 1999, was at the time of the striking off being complied with in relation to the company”.

44. — (1) Subsection (1) or, as the case may be, subsection (2) of section 43 shall not apply in relation to a company in respect of which there is in force a certificate under this section.

(2) The registrar of companies may grant to a company, on application in the prescribed form being made by it in that behalf, a certificate stating that the company has a real and continuous link with one or more economic activities that are being carried on in the State.

(3) The registrar of companies shall not grant such a certificate unless the company concerned tenders proof to him or her that it has such a link.

(4) A statement referred to in subsection (5) that is tendered by the applicant shall be deemed to be proof, for the purposes of subsection (3), that the applicant has such a link.

(5) The statement mentioned in subsection (4) is a statement in writing that has been given to the company concerned by the Revenue Commissioners within the period of 2 months ending on the date on which an application is made under subsection (2) by the company and which states that the Revenue Commissioners have reasonable grounds to believe that the company has a real and continuous link with one or more economic activities being carried on in the State.

(6) If, in consequence of information that has come into the possession of the registrar, the registrar of companies is of opinion that a company in respect of which a certificate under subsection (2) has been granted has ceased to have a real and continuous link with any economic activity being carried on in the State, he or she shall revoke that certificate.

(7) If, in consequences of information that has come into their possession, the Revenue Commissioners are of opinion that a company in respect of which a certificate under subsection (2) has been granted has ceased to have a real and continuous link with any economic activity being carried on in the State, then notwithstanding any obligations as to secrecy or other restrictions upon disclosure of information imposed by or under statute or otherwise, they may give a notice in writing to the registrar of companies stating that they are of that opinion and such a notice that is received by the registrar shall constitute information in his or her possession for the purposes of subsection (6)

(8) For the purposes of section 43 , a person is resident in the State at a particular time (“the relevant time”) if—

(a) he or she is present in the State at—

(i) any one time or several times in the period of 12 months preceding the relevant time (“the immediate 12 month period”) for a period in the aggregate amounting to 183 days or more, or

(ii) any one time or several times—

(I) in the immediate 12 month period, and

(II) in the period of 12 months preceding the immediate 12 month period (“the previous 12 month period”),

for a period (being a period comprising in the aggregate the number of days on which the person is present in the State in the immediate 12 month period and the number of days on which the person was present in the State in the previous 12 month period) in the aggregate amounting to 280 days or more,

or

(b) that time is in a year of assessment (within the meaning of the Taxes Consolidation Act, 1997 ) in respect of which the person has made an election under section 819(3) of that Act.

(9) Notwithstanding subsection (8)(a)(ii), where in the immediate 12 month period concerned a person is present in the State at any one time or several times for a period in the aggregate amounting to not more than 30 days—

(a) the person shall not be resident in the State, for the purposes of section 43 , at the relevant time concerned, and

(b) no account shall be taken of the period for the purposes of the aggregate mentioned, in subsection (8)(a)(ii).

(10) For the purposes of subsections (8) and (9)—

(a) references in this section to a person's being present in the State are references to the person's being personally present in the State, and

(b) a person shall be deemed to be present in the State for a day if the person is present in the State at the end of the day.

(11) An application under subsection (2) may be made, and a certificate under that subsection may be granted, before the commencement of subsection (1) or (2) of section 43 .

45. —(1) A person shall not, at a particular time, be a director of more than 25 companies.

(2) In subsection (1), (but not any other subsection of this section) “director” includes a shadow director (within the meaning of the Companies Act, 1990 ).

(3) In reckoning, for the purposes of subsection (1), the number of companies of which the person concerned is a director at a particular time the following provisions shall apply—

(a) without prejudice to paragraph (b) or subsection (4), there shall not be included any of the following companies of which he or she is a director at that time, namely—

(i) a public limited company,

(ii) a public company (within the meaning of the Companies (Amendment) Act, 1983 ),

(iii) a company in respect of which a certificate under section 44 (2) is in force,

(b) there shall not be included any company of which he or she is a director at that time (not being a time that is before the date of the giving of the certificate or direction referred to hereafter in this paragraph) if—

(i) he or she, or the company, delivers to the registrar of companies a notice, in the prescribed form, stating that the company is a company falling within one or more of the categories of company specified in the Table to this section, and

(ii) either—

(I) the registrar of companies, having considered the said notice and having made such enquiries as he or she thinks fit, certifies in writing, or as the case may be the Minister under subsection (6) so certifies, that the company is a company falling within one or more of the categories aforesaid, or

(II) the Minister directs, under subsection (6), that the company is not to be included amongst the companies that shall be reckoned for the purposes aforesaid,

(c) there shall be counted as the one company of which he or she is a director at that time, 2 or more companies of which he or she is a director at that time if one of those companies is the holding company of the other or others.

(4) Without prejudice to subsection (3), in reckoning, for the purposes of subsection (1), the number of companies of which the person concerned is a director at a particular time, being a time that is before the expiration of the period of 12 months from the commencement of this section, there shall not be included any company of which the person is a director at that time if he or she was such a director immediately before such commencement.

(5) For the purposes of subsection (3)(b)(ii), the registrar of companies may accept as sufficient evidence that the company concerned falls within a category of company specified in the Table to this section a statutory declaration, in the prescribed form, to that effect made by an officer of the company or the other person referred to in subsection (3)(b)(i).

(6) If the registrar of companies refuses to certify that the company to which a notice under subsection (3)(b) relates is a company falling within a category of company specified in the Table to this section, the company or the person referred to in that subsection may appeal to the Minister against such a refusal and the Minister may, having considered the matter and made such enquiries as he or she thinks fit, do one of the following—

(a) confirm the decision of the registrar of companies,

(b) certify in writing that the company is a company falling within a category aforesaid, or

(c) notwithstanding that he or she confirms the decision of the registrar of companies, if—

(i) the person concerned was a director of the company before the commencement of this section, and

(ii) in the opinion of the Minister the inclusion of the company amongst the companies that shall be reckoned for the purposes of subsection (1), in so far as that subsection applies to the person concerned, would result in serious injustice or hardship to that person, and

(iii) the giving of a direction under this subsection would not operate against the common good,

direct that the company is not to be included amongst the companies that shall be reckoned for the purposes of subsection (1) in so far as that subsection applies to the person concerned.

(7) A notice referred to in subsection (3)(b)(i) may, for the purposes of that provision, be delivered to the registrar of companies before the person concerned becomes a director of the company to which the notice relates.

(8) If a person, in contravention of subsection (1), becomes or remains a director or shadow director of one or more companies he or she shall be guilty of an offence.

(9) An appointment of a person as a director of a company made after the commencement of this section shall, if it contravenes subsection (1), be void.

(10) An appointment of a person as a director of a company made before the commencement of this section, being an appointment which, but for this section, would subsist on or after the expiration of the period of 12 months from that commencement, shall, if its subsistence at any time on or after the expiration of that period contravenes subsection (1), cease to have effect upon that contravention occurring.

(11) For the avoidance of doubt—

(a) each appointment, in excess of the limit (reckoned in accordance with subsections (3) and (4)) that is provided for by subsection (1), of a person as a director of a company shall constitute a separate contravention of that subsection,

(b) an appointment, not in excess of the said limit, of a person as a director of a company shall not, by virtue of this section, become unlawful, be rendered void or cease to have effect by reason of a subsequent appointment, in excess of that limit, of the person as a director of a company,

(c) in determining whether one particular appointment referred to in subsection (10), as distinct from another such appointment, has ceased to have effect by virtue of that subsection or whether a person's remaining in office under one such appointment, as distinct from another such appointment, constitutes an offence under subsection (8), the provisions of this section (other than subsections (3)(b), (5), (6), (7) and (8)) shall be deemed to have been in operation at the time of the making of that appointment.

(12) If—

(a) the appointments of a person as a director of 2 or more companies are made at the same time, or

(b) the times at which the appointments of a person as a director of 2 or more companies were made are not capable of being distinguished from one another,

then those appointments shall, for the purposes of this section, be deemed to have been made at different times on the day concerned and in the same order as the order in which the companies to which the appointments relate were registered under the Companies Acts, 1963 to 1999.

(13) Summary proceedings in relation to an offence under subsection (8) may be brought and prosecuted by the registrar of companies.

TABLE

1. A company that is the holder of a licence under section 9 of the Central Bank Act, 1971 , or is exempt from the requirement under that Act to hold such a licence.

2. A company referred to in the Second Schedule.

46. — The Companies (Amendment) Act, 1982 , is hereby amended by the substitution of the following sections for section 12 (as amended by the Companies Act, 1990 ):

“12. (1) Without prejudice to the generality of section 311 of the Principal Act, where a company does not, for one or more years, make an annual return required by section 125 or 126 of the Principal Act, the registered letter stating that, unless all annual returns which are outstanding are delivered to him within 1 month of the date of the letter, a notice will be published in Iris Oifigiúil with a view to striking the name of the company off the register.

(2) If the registrar of companies either receives an answer to the effect that the company is not carrying on business, or does not within 1 month after sending the letter receive all annual returns which are outstanding, he may publish in Iris Oifigiúil a notice stating that, at the expiration of 1 month from the date of that notice, the name of the company mentioned therein will, unless all outstanding returns are delivered to the registrar, be struck off the register, and the company will be dissolved.

(3) Subject to subsections (1) and (2) of section 12B of this Act, at the expiration of the time mentioned in the notice, the registrar of companies may, unless cause to the contrary is previously shown by the company, strike its name off the register, and shall publish notice thereof in Iris Oifigiúil and on the publication in Iris Oifigiúil of this notice, the company shall be dissolved.

12A. (1) Where the Revenue Commissioners give a notice in writing under subsection (3) of section 882 (inserted by the Finance Act, 1999 ) of the Taxes Consolidation Act, 1997 , to the registrar of companies stating that a company has failed to deliver a statement which it is required to deliver under that section, then, without prejudice to section 311 of the Principal Act or section 12 of this Act, the registrar may send to the company by post a registered letter stating that, unless the company delivers to the Revenue Commissioners the said statement within 1 month of the date of the letter, a notice will be published in Iris Oifigiúil with a view to striking the name of the company off the register.

(2) If the statement referred to in subsection (1) of this section is not delivered by the company concerned to the Revenue Commissioners within 1 month after the sending of the letter referred to in that subsection, the registrar of companies may publish in Iris Oifigiúil a notice stating that, at the expiration of 1 month from the date of that notice, the name of the company mentioned therein will, unless the said statement is delivered to the Revenue Commissioners, be struck off the register, and the company will be dissolved.

(3) Subject to subsections (1) and (2) of section 12B of this Act, at the expiration of the time mentioned in the notice, the registrar of companies may, unless cause to the contrary is previously shown by the company, strike its name off the register, and shall publish notice thereof in Iris Oifigiúil and on the publication in Iris Oifigiúil of this notice, the company shall be dissolved.

12B. (1) The liability, if any, of every director, officer and member of a company the name of which has been struck off the register under section 12(3) or 12A(3) of this Act shall continue and may be enforced as if the company had not been dissolved.

(2) Nothing in subsection (1) of this section or section 12(3) or 12A(3) of this Act shall affect the power of the court to wind up a company the name of which has been struck off the register.

(3) If any member, officer or creditor of a company is aggrieved by the fact of the company's having been struck off the register under section 12(3) or 12A(3) of this Act, the court, on an application made (on notice to the registrar of companies, the Revenue Commissioners and the Minister for Finance) by the member, officer or creditor, before the expiration of 20 years from the publication in Iris Oifigiúil of the notice referred to in section 12(3) or, as the case may be, 12A(3) of this Act, may, if satisfied that it is just that the company be restored to the register, order that the name of the company be restored to the register, and, subject to subsection (4) of this section, upon an office copy of the order being delivered to the registrar for registration, the company shall be deemed to have continued in existence as if its name had not been struck off; and the court may by the order give such directions and make such provisions as seem just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off or make such other order as seems just (and such other order is referred to in subsection (4) of this section as an ‘alternative order’).

(4) An alternative order may, if the court considers it appropriate that it should do so, include a provision that, as respects a debt or liability incurred by, or on behalf of, the company during the period when it stood struck off the register, the officers of the company or such one or more of them as is or are specified in the order shall be liable for the whole or a part (as the court thinks just) of the debt or liability.

(5) The court shall, unless cause is shown to the contrary, include in an order under subsection (3) of this section, being an order made on the application of a member or officer of the company, a provision that the order shall not have effect unless, within 1 month from the date of the court's order—

(a) if the order relates to a company that has been struck off the register under section 12(3) of this Act, all outstanding annual returns required by section 125 or 126 of the Principal Act are delivered to the registrar of companies,

(b) if the order relates to a company that has been struck off the register under section 12A(3) of this Act, all outstanding statements required by section 882 of the Taxes Consolidation Act, 1997 , are delivered to the Revenue Commissioners.

(6) The court shall, in making an order under subsection (3) of this section, being an order that is made on the application of a creditor of the company, direct that one or more specified members or officers of the company shall, within a specified period—

(a) if the order relates to a company that has been struck off the register under section 12(3) of this Act, deliver all outstanding annual returns required by section 125 or 126 of the Principal Act to the registrar of companies,

(b) if the order relates to a company that has been struck off the register under section 12A(3) of this Act, deliver all outstanding statements required by section 882 of the Taxes Consolidation Act, 1997 , to the Revenue Commissioners.

(7) The court, on an application made by the registrar of companies (on notice to each person who, to his knowledge, is an officer of the company) before the expiration of 20 years from the publication in Iris Oifigiúil of the notice referred to in section 12(3) or, as the case may be, 12A(3) of this Act, may, if satisfied that it is just that the company be restored to the register, order that the name of a company which has been struck off the register under the said section 12(3) or 12A(3) be restored to the register and, upon the making of the order by the court, the company shall be deemed to have continued in existence as if its name had not been struck off; and the court may by the order give such directions and make such provisions as seem just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off or make such other order as seems just (and such other order may, if the court considers it appropriate that it should do so, include a provision of the kind referred to in subsection (4) of this section).

(8) A letter or notice to be sent under this section to a company may be addressed to the company at its registered office, or, if no office has been registered, to the care of some officer of the company, or, if there is no officer of the company whose name and address are known to the registrar of companies, may be sent to each of the persons who subscribed to the memorandum, addressed to him at the address mentioned in the memorandum.

(9) Without prejudice to section 2(1) of the Principal Act where such an application is made by any other person, in the case of an application under this section that is made by a creditor of the company or the registrar of companies, ‘the court’, for the purposes of this section, means the Circuit Court.

(10) An application under this Act to the Circuit Court by a creditor of the company concerned shall be made to the judge of the Circuit Court for the circuit in which the registered office of the company was, immediately before it was struck off the register, situated or, if no office was registered at that time, for the circuit in which the creditor resides or, in case the creditor resides outside the State, for the Dublin Circuit.

(11) An application under this section to the Circuit Court by the registrar of companies shall be made to the judge of the Circuit Court for the Dublin Circuit.

12C. (1) Without prejudice to the provisions of section 311(8) or 311A(1) of the Principal Act or subsection (3) or (7) of section 12B of this Act, if a member or officer of a company is aggrieved by the fact of the company's having been struck off the register under section 12A(3) of this Act, the registrar of companies, on an application made in the prescribed form by the member or officer before the expiration of 12 months from the publication in Iris Oifigiúil of the notice striking the company name from the register, and provided he has received confirmation from the Revenue Commissioners that all outstanding, if any, statements required by section 882 of the Taxes Consolidation Act, 1997 , have been delivered to the Revenue Commissioners, may restore the name of the company to the register.

(2) Upon the registration of an application under subsection (1) of this section and on payment of such fees as may be prescribed, the company shall be deemed to have continued in existence as if its name had not been struck off.

(3) Subject to any order made by the court in the matter, the restoration of the name of a company to the register under this section shall not affect the rights or liabilities of the company in respect of any debt or obligation incurred, or any contract entered into by, to, with or on behalf of, the company between the date of its dissolution and the date of such restoration.

12D. If the question of whether a statement which a company has failed to deliver to the Revenue Commissioners in accordance with section 882(3) of the Taxes Consolidation Act, 1997 , has or has not been subsequently delivered to them falls to be determined for the purpose of the exercise by the registrar of companies of any of the powers under sections 12A to 12C of this Act, the Revenue Commissioners may, notwithstanding any obligations as to secrecy or other restriction upon disclosure of information imposed by or under statute or otherwise, disclose to the registrar any information in their possession required by him for the purpose of that determination.”.

47. —Section 195 of the Principal Act (inserted by section 51 of the Companies Act, 1990 ) is hereby amended—

(a) by the deletion of subsection (8), and

(b) by the insertion after subsection (11) of the following subsections:

“(11A) If a company fails to send, in accordance with subsection (6), a notification, in the prescribed form, to the registrar of companies of the fact of a person's having ceased, for whatever reason, to be a director or secretary of the company and of the date on which that event occurred that person may serve on the company a notice—

(a) requesting it to send forthwith the notification of that matter, in the prescribed form, to the registrar, and

(b) stating that if the company fails to comply with that request within 21 days of the service of the notice on it, he will forward to the registrar of companies and to every person who, to his knowledge, is an officer of the company a copy of any notice of resignation by him as a director or secretary of the company or any other documentary proof of his having ceased to be such a director or secretary together with—

(i) in the case of the registrar of companies, such additional information as may be prescribed (which may include a statutory declaration made by the person stating the names of the persons who, to his knowledge, are officers of the company), and

(ii) in the case of every other person as aforesaid, a written request of the person that he take such steps as will ensure that the failure of the company to comply with the notice continues no further.

(11B) If a company fails to comply with a request made of it under a notice referred to in subsection (11A) the person who served the notice may forward to the registrar of companies and to every person who, to his knowledge, is an officer of the company a copy of the notice of resignation or other documentary proof referred to in subsection (11A) if, but only if, there is forwarded together with that notice or proof, in the case of the registrar, the additional information referred to in that subsection and, in the case of every other person as aforesaid, the written request referred to in that subsection.

(11C) No notice of resignation or other documentary proof of a person's having ceased to be a director or secretary of a company which is forwarded to the registrar of companies by that person (other than such a notice or other proof which is forwarded by him under and in accordance with subsections (11A) and (11B), or section 43 (9) of the Companies (Amendment) (No. 2) Act, 1999) shall be considered by the registrar.

(11D) No additional information referred to in subsection (11A) (b)(i) that is included in a notice of resignation or other documentary proof referred to in this section which is forwarded, under and in accordance with the foregoing provisions, to the registrar of companies shall, of itself, be regarded as constituting defamatory matter.

(11E) Any person may give notice (accompanied by such proof of the matter concerned as may be prescribed) to the registrar of companies of the fact that a person holding the office of director or secretary of a particular company has died.”.

48. —The fact that for the time being, in consequence of the forwarding to the registrar, under and in accordance with subsections (11A) and (11B) of section 195 of the Principal Act, of a copy of a notice of resignation or other documentary proof of a person's having ceased to be a director of the company concerned, there are no persons recorded in the office of the registrar of companies as being directors of a particular company shall, for the purposes of section 311 of the Principal Act, afford the registrar of companies good grounds for believing that the company is not carrying on business, and for so believing with the cause requisite for the exercise by him or her of the powers conferred by subsection (1) of that section 311 in relation to the company.

49. —Section 311 of the Principal Act is hereby amended—

(a) in subsection (8), by the substitution for “as if the name of the company had not been struck off.” of “as if the name of the company had not been struck off or make such other order as seems just (and such other order is referred to in subsection (8A) as an ‘alternative order’).”, and

(b) by the insertion after subsection (8) of the following subsection:

“(8A) An alternative order may, if the court considers it appropriate that it should do so, include a provision that, as respects a debt or liability incurred by, or on behalf of, the company during the period when it stood struck off the register, the officers of the company or such one or more of them as is or are specified in the order shall be liable for the whole or part (as the court thinks just) of the debt or liability.”.

50. —Section 311A (inserted by the Companies Act, 1990 ) of the Principal Act is hereby amended by the substitution in subsection (1) for “Without prejudice to the provisions of section 311(8) of this Act and section 12(6) of the Companies (Amendment) Act, 1982 ,” of “Without prejudice to the provisions of section 311(8) of this Act or subsection (3) or (7) of section 12B, or subsection (1) of section 12C, of the Companies (Amendment) Act, 1982 ,”.

51. — Section 8 of the Companies (Amendment) Act, 1983 , is hereby amended in subsection (3) by the substitution for “(7) and (8)” of “(7), (8) and (8A)”.

52. —(1) Any act referred to in subsection (4) of section 368 of the Principal Act which, before the commencement of this section, was done to or by—

(a) an assistant registrar appointed under subsection (2) of that section, or

(b) any other person employed in the office of the registrar of companies to perform generally duties under any enactment referred to in that subsection,

shall be valid and be deemed always to have been valid as if the Minister had directed under that subsection (4) that such an act was to be done to or by such an assistant registrar or other such person (including in cases where the existing registrar of joint stock companies (or his or her successor) was not absent).

(2) On and from the commencement of this section, any act required or authorised by the Companies Acts, 1963 to 1999, the Registration of Business Names Act, 1963 , or the Limited Partnerships Act, 1907, to be done to or by the registrar of companies, the registrar of joint stock companies or, as the case may be, a person referred to in the enactment concerned as “the registrar” may be done to or by a registrar or assistant registrar appointed under section 368(2) of the Principal Act or any other person authorised in that behalf by the Minister.

(3) Subsection (4) of section 368 of the Principal Act shall cease to have effect.

53. —(1) Section 20 of the Companies Act, 1990 , is hereby amended by the substitution in subsection (3) for “any such criminal proceedings as are mentioned in section 21(1)(a) or (1)(b)” of “any proceedings for an offence mentioned in section 21(1)(a)”.

(2) Section 21 of the Companies Act, 1990 , is hereby amended by the substitution for subsection (1) of the following subsection:

“(1) No information, book or document relating to a body which has been obtained under section 19 or 20 shall, without the previous consent in writing of that body, be published or disclosed, except to a competent authority, unless the publication or disclosure is, in the opinion of the Minister, required—

(a) with a view to the investigation or prosecution of any offence, being an offence—

(i) under

(I) the Companies Acts;

(II) the Central Bank Acts, 1942 to 1998;

(III) the Exchange Control Acts, 1954 to 1986;

(IV) the Insurance Acts, 1909 to 1990;

(V) the Taxes Consolidation Act, 1997 ; or

(VI) regulations relating to insurance made under the European Communities Act, 1972 ;

or

(ii) entailing misconduct in connection with the management of the body's affairs or misapplication or wrongful retainer of its property;

(b) for the purpose of assessing the liability of a person in respect of a tax or duty or other payment owed or payable to the State, a local authority (within the meaning of the Local Government Act, 1941 ) or a health board or for the purpose of collecting an amount due in respect of such a tax or duty or other payment;

(c) for the purpose of the performance by a tribunal (to which the Tribunals of Inquiry (Evidence) Acts, 1921 to 1998, apply) of any of its functions;

(d) for the purpose of assisting or facilitating the performance by any Minister of the Government of any of his functions;

(e) for the purpose of assisting or facilitating any accountancy or other professional organisation in the performance of its disciplinary functions with respect to any of its members;

(f) for the purpose of the performance by the Irish Takeover Panel or any stock exchange established in the State of any of its functions in relation to the body or any other person who, in its opinion, is connected with the body;

(g) for the purposes of complying with the requirements of procedural fairness, to be made to—

(i) any company in relation to which an inspector has been appointed under section 14 or any person required by the Minister to give any information under section 15, or

(ii) any body in relation to which a person has been authorised under section 19 to exercise the powers conferred by that section or any person named in a report prepared by a person so authorised;

(h) for the purpose of complying with any requirement, or exercising any power, imposed or conferred by this Part with respect to reports made by inspectors appointed thereunder by the court or the Minister;

(i) with a view to the institution by the Minister of proceedings for the winding-up under the Principal Act of the body or otherwise for the purposes of proceedings instituted by him for that purpose;

(j) for the purposes of proceedings under section 20 or 160.”.

(3) Section 21(3) of the Companies Act, 1990 , is hereby amended—

(a) by the deletion in paragraph (g) of “and”, and

(b) by the substitution for paragraph (h) of the following paragraphs:

“(h) the Central Bank, and

(i) any authority established outside the State in which there are vested—

(i) functions of investigating or prosecuting an offence similar to an offence referred to in paragraph (a) of subsection (1),

(ii) functions of assessing the liability of a person in respect of a tax or duty or other payment owed or payable to the state in which it is established or any other authority established in that state or of collecting an amount due in respect of such a tax or duty or other payment, or

(iii) functions which are similar to the functions referred to in paragraph (c), (d), (e) or (f) of subsection (1).”.

(4) The amendments effected by this section shall apply in relation to the publication or disclosure, after its commencement, of information, books or documents which have been obtained under section 19 or 20 of the Companies Act, 1990 , whether before or after that commencement.

54. —(1) Section 253 of the Companies Act, 1990 , is hereby amended—

(a) in subsection (1)—

(i) by the deletion in paragraph (a) of “and”,

(ii) by the insertion in paragraph (b), after “nominal value thereto,” of “and”, and

(iii) by the addition of the following paragraph after paragraph (b):

“(c) that the issued share capital of the company for the time being shall not be less than a minimum amount nor more than a maximum amount specified in the memorandum,”,

and

(b) in subsection (2A) (inserted by the Investment Intermediaries Act, 1995 ), by the deletion of paragraph (b).

(2) Section 256 of the Companies Act, 1990 , is hereby amended—

(a) in subsections (5) and (7), by the substitution for “by promoting the sale of its shares to the public”, in each place where it occurs, of “by providing facilities for the direct or indirect participation by the public in the profits and income of the company”,

(b) in subsection (6), by the substitution for “promote the sale of its shares to the public” of “provide facilities for the direct or indirect participation by the public in the profits and income of the company”, and

(c) by the deletion of subsection (9).

(3) The following section is hereby substituted for section 260 of the Companies Act, 1990 :

⁽¹⁾O.J. No. L.293/1, 24 October 1990