A plc must have a minimum capital of at least €25,000. The level of the minimum share capital of €25,000 may be increased by Ministerial order. Where an order is made changing the required minimum capital, it may require that existing PLCs increase their authorised minimum capital.
A public limited company may not commence business or borrow until it obtains a certificate from the CRO confirming that an application has been made in the prescribed form, that the relevant nominal capital is at least the authorised minimum amount and that a statutory declaration of compliance has been furnished. The declaration of compliance must confirm particulars of the allotment of capital.
The commencement of business or borrowing without completing the above requirements is an offence. Officers and others in default may be convicted as principals. If the company enters obligations in breach, the obligations remain, but the directors are liable to indemnify the other party for any loss incurred.
A PLC may be struck off the Register of Companies, where it has not received the trading certificate from the Registrar within one year of incorporation. Procedures apply to the strike off process. An initial notice must be served setting out prescribed particulars to the registered office and to each director. This sets out a 28 day period during which they may procure the issue of a trading certificate.
If a trading certificate is not procured, the registrar may publish a notice in the gazette stating the intention to strike off the company. A further opportunity of at least 28 days is given to rectify the position. Thereafter, the CRO may strike the PLC off the register.
Distributions by PLCs
A PLC may not make a distribution (i.e. a dividend or equivalent payment) if its net assets are less than its called-up share capital and undistributable reserves. It may make a distribution only to the extent that it does not reduce the amount of those assets to less than the amount of its share capital and undistributable reserves.
The undistributable reserves are the company’s non-denominated capital, the amount by which the PLC’s accumulated unrealised profits, so far as have not previously been used by way of capitalisation exceeds its accumulated unrealisable losses, insofar as not previously written off in a reduction or reorganisation of capital made and any other reserve which may not be distributed by law.
The most recent financial statements determine the position, as is the case with distributions in private companies. Interim financial statements may be used, provided that they are prepared in accordance with the legal standards for (year end) financial accounts.
Loss of Capital
Where the net assets of a public limited company are less than half of its share capital, the directors must, not later than 28 days after this is known to a director, convene an extraordinary general meeting of the company.
The meeting is convened for the purpose of considering whether, and if so, what measures should be taken to deal with the situation (or not), not later than 56 days after the date on which the matter is first known.
Where there is a failure to convene the meeting, each of the directors who knowingly or intentionally authorises or permits that failure or after the period during which the meeting should have bene convened knowingly and intentionally authorises or permits the failure to continue, are guilty of a category 3 offence.
A PLC may not use the summary approval procedure to validate the provision of financial assistance by the company in relation to a purchase of its own shares. Certain other exemptions, including those in relation to lending of money in the ordinary course of business, employee share schemes and loans to persons other than directors in the bona fide employment of the company or its subsidiary, to enable them purchase or subscribe shares are available, provided that the net assets of the PLC are not thereby reduced and that the assistance is provided from monies available for distribution.
The net assets mean the aggregate of the PLC’s assets less the aggregate of its liabilities. Liabilities include where the PLC prepares Companies Act entity financial statements, any provision for liabilities that is made in those financial statements.
Where the PLC prepares IFRS entity financial statements, any provision that is made in those financial statements except to the extent that that provision is taken into account in calculating the value of any asset to the PLC is a liability for this purpose.
Financial Statements I
The directors of a PLC must arrange for the statutory financial statements to be audited by the statutory auditor. The provision for exemption which is applicable to private companies apply. There is provision for revised accounts and a revised director’s report.
Directors of PLCs may circulate summary financial statements based on the statutory financial statement and the directors’ reports for the period. They must give a fair and accurate account of the PLC’s financial developments during the period and of its financial position at year end. The summary financial statement must include a statement from the auditors to the effect that they are consistent with the statutory financial accounts, directors’ report and the requirements of the legislation.
The summary financial statements must be derived from the statutory financial statements and the directors’ report for that period, give a fair and accurate summary and account of the PLC’s financial development during that financial year and the financial position at the end of that year.
Financial Statements II
The summary financial statements may be sent to members of the PLC for consideration at the AGM in place of the financial statements, director’s report and auditor’s report. They must be sent at least 21 days in advance. The statements must confirm to members that the statutory financial statements have been audited. Copies of those statements, the director’s report and the auditor’s report, are available on request from the company.
The summary financial statement must be approved by the board of directors and shall be signed by them or, if there are more than 2 directors, shall be signed on their behalf by 2 of them. Where the PLC has subsidiary undertakings or undertakings in which it has a substantial interest, the statement shall (so far as they are dealt with in the group financial statements) give an account of the financial development and position of the PLC and its subsidiary undertakings.
Not later than the 21st day before the date of the annual general meeting at which the statutory financial statements and directors’ report of the PLC are to be considered a copy of the summary financial statement, and where it includes a qualification, the statutory auditors’ report, may be sent by the PLC to every member who is entitled to notice of the meeting.
Financial Statements III
Every summary financial statement shall include a statement of the statutory auditors’ opinion as to its consistency with the statutory financial statements of the PLC and the directors’ report and its conformity with the requirements of the legislation. Every summary financial statement shall also include statements to the effect—
- that it is only a summary of information in the statutory financial statements and directors’ report;
- that the statutory financial statements have been audited;
- that copies of the statutory financial statements, statutory auditors’ report and directors’ report will be available to members upon request; and
- that copies of those documents will, accordingly, be made available by the PLC to any member upon request.
A PLC is obliged to either establish an audit committee where required under EU Directive or explain why this has not been done.
A corporate governance statement which is to be incorporated in the directors’ report of a company, whose securities are traded on a stock exchange.
Transfer of Shares
The Minister may make regulations to enable or to require the transfer of share ownership or the title to securities or classes of securities, to be evidenced without a written instrument. They may be applied to the transfer of securities (or classes of securities) of public limited companies on regulated markets or on other markets for securities of public limited companies. The means prescribed by the regulations for evidencing and transferring titles of securities may be made the sole and exclusive means of doing so.
Regulations may provide procedures for recording and transferring title to securities, the regulation of those procedures and persons responsible for or involved in their operation. They may provide for dispensing with the obligations of a company to issue certificates and provide alternative procedures and mechanisms.
The regulations must contain such safeguards as appear to the Minister appropriate for the protection of investors and for ensuring that competition is not restricted, distorted or prevented. The regulations may make provision for enabling or facilitating the operation of new procedures.
Regulations may provide for the rights and obligations of persons in relation to securities which are dealt with under the prescribed procedures. They may be framed so as to secure the rights and obligations in relation to securities dealt with under the new procedures, correspond insofar as practicable with those which would otherwise have applied.
The regulations may require that statements be issued by companies to security holders at specified intervals or on specified occasions in respect of securities held in their name. They may remove the requirement for the holder of securities to surrender existing shares certs. The regulations may supersede the existing requirements of a PLC’s articles of association, which are incompatible with the regulations.
An EU Regulation requires the Member States to arrange for the dematerialisation of securities by 2023. This would involve the abolition of share certificates after that date.
Regulations may not make provisions which would result in a person who but for the regulations would be entitled to have his name entered in the register of members, ceasing to be so entitled.
Regulations may make provisions for
- transmission of title to securities by operation of law;
- restrict the transfer of title to securities arising by virtue of an enactment, instrument or court order and
- may make provision for any power conferred by any such provision on a person to deal with securities on behalf of the person entitled.
The regulations may provide for the persons who are to be responsible for the operation of the new procedures. The Minister may delegate the power to persons able to discharge the relevant functions under the regulations. Different regulations may be made for different categories of case.
All companies incorporated in the State must have a registered office within the State. Notices or communications in relation to the company may be addressed to it. It is an offence for a director or officer to carry on business, without having returned details of a registered office. Notice of a change of registered office must be filed in the CRO.
Certain documents must be maintained at the registered office, including the following:
- register of members,
- register of directors and secretaries,
- register of debenture holders,
- registrar of directors’ and secretary’s interests,
- register of members
- register of interests in shares in the PLC case,
- copies of instruments creating charges, copies of books containing minutes of general meetings, books of account.
A PLC is required to maintain a register of debentures. Access must be allowed to members. In certain cases, copies must be available to members of the public on request.
In this context, debentures refer to a series ranking pari passu. It does not apply to debentures transferable by delivery.
The restrictions on those who may present petitions for examinership of financial institutions are maintained. A petition may be presented by the Central Bank only. Formerly, the function was exercised by the Minister for Jobs, Enterprise and Innovation.
References and Sources
Companies Act 2014 (Irish Statute Book)
Companies Act 2014: An Annotation (2015) Conroy
Law of Companies 4th Ed. (2016) Ch. 31 Courtney
Keane on Company Law 5th Ed. (2016) Ch.30 &31 Hutchinson
Other Irish Sources
Tables of Origins & Destinations Companies Act 2014 (2016) Bloomsbury
Introduction to Irish Company Law 4th Ed. (2015) Callanan
Bloomsbury’s Guide to the Companies Act 2015 Courtney & Ors
Company Law in Ireland 2nd Ed. (2015) Thuillier
Pre-2014 Legislation Editions
Modern Irish Company Law 2nd Ed. (2001) Ellis
Cases & Materials Company Law 2nd Ed. (1998) Forde
Company Law 4th Ed. (2008) Forde & Kennedy
Corporations & Partnerships in Ireland (2010) Lynch-Fannon & Cuddihy
Companies Acts 1963-2012 (2012) MacCann & Courtney
Constitutional Rights of Companies (2007) O’Neill
Court Applications Under the Companies Act (2013) Samad
Company Law – Nutshell 3rd Ed. (2013) McConville
Questions & Answers on Company Law (2008) McGrath, N & Murphy
Make That Grade Irish Company Law 5th Ed. (2015) Murphy
Company Law BELR Series (2015) O’Mahony
Companies Act 2006 (UK) (Legilsation.gov.uk)
Statute books Blackstone’s statutes on company law (OUP)
Gower Principles of Modern Company Law 10th Ed. (2016) P. and S. Worthington
Company Law in Context 2nd Ed. (2012) D Kershaw
Company Law (9th Ed.) OUP (2016) J Lowry and A Dignam
Cases and Materials in Company law 11th Ed (2016) Sealy and Worthington
UK Practitioners Services
Tolley’s Company Law Handbook
Gore-Browne on Companies
Palmer’s Company Law