Unlimited Companies

Unlimited Company Types

The Companies Act, 2014 provides for three types of unlimited company, namely,

  • a private unlimited company (ULC);
  • a public unlimited company (PUC); and
  • a public unlimited company with no share capital (PULC).

Irrespective of the type of unlimited company, the name of the company shall end with the words “unlimited company” or “cuideachta neamhtheoranta”.

The general provisions of the Companies Acts apply to an unlimited company, except to the extent that they are varied by Part 19. The Companies Act dis-applies certain provisions in the case of unlimited liability companies.

Any provisions of the Companies Act that refer to membership arising by virtue of shareholding, rights and incidents of membership, including rights to vote, receive a distribution and otherwise arising by virtue of a shareholding, shall be read, as making analogous and equivalent provisions in the context of membership, rights and incidents of membership, in the case of a PULC.

An unlimited company must have at least two directors.  The provisions of the Companies Act 2014 regarding a sole director, do not apply.  Directors may not have more than 25 directorships of unlimited companies or of unlimited companies and other types of body corporate capable of being wound up under the Companies Acts.


Formation and Registration I

An unlimited company may be formed for any lawful purpose by persons subscribing their names to a constitution and complying with the below provisions in relation to registration.  An existing company may be re-registered as an unlimited company.  An unlimited company may come into being on a division or merger.

An unlimited company may not be formed and registered unless it appears to the Registrar that the company, when registered, shall carry out an activity in the State, as provided in its memorandum.

The effect of registration as an unlimited company it is to create a body corporate with perpetual succession and a common seal, with a liability on the part of the members to contribute to a shortfall in assets in the event of its being wound up.


Formation and Registration II

The persons mentioned in the statement delivered to the Registrar on incorporation as director, secretaries or assistant secretaries are the first officers of the company. A person so named must not be disqualified.

Existing unlimited companies continue in being under the 2014 Act. This includes public and private companies, having a share capital or a public company not having a share capital.

To the extent that an unlimited company was registered before the commencement of the Act, and was governed by Table E in the 1963 Act, it shall, after commencement, continue to be so governed, but save to the extent those regulations are inconsistent with mandatory provisions of the 2014 Act.  The regulations may be added to or amended under the conditions on which amendments are allowed generally, under the 2014 Act.


Constitution I

The 2014 Act provides for the form of constitution of a ULC, PUC and PULC.  Each is to have a memorandum and articles of association.  The memorandum of association is to set out its name, the type of unlimited company it is, its objects, and the fact that its members have unlimited liability.

In the case of ULC and PUC, it is to set out the amount of share capital with which the company is registered and its division into shares of a fixed amount. In the case of a PULC, it is to state that it has no share capital. The constitution of a ULC and PUC is to state the number of shares taken by each subscriber.

The constitution of a ULC is to be in the form of Schedule 11 to the Companies Act.  The constitution of a PUC is to be in the form of Schedule 12 and the constitution of a PULC is to be in the form of Schedule 13. Each is to be printed in its entire format, comprising the memorandum and articles of association in a single document.  Alternatively, it may be published in electronic form, such that it is capable of being reproduced in written or legible form.

Where the memorandum is amended after incorporation with respect to any of the above matters, it is to be restated in the manner as it appears subsequent to the amendment and registered in the CRO.


Constitution II

The same mandatory and optional provisions set out in the Companies Act in respect of limited companies are applicable to unlimited companies.  The articles of an unlimited company may contain regulations. Insofar as they do not exclude or modify an optional provision, that optional provision in the Companies Act applies.

In the case of each type of unlimited company, the articles, instead of containing the regulations in relation to an unlimited company, may consist solely of a statement to the effect that the provisions of the Companies Act are adopted.  If the articles consist solely of such a statement, then the optional provisions, apply.

The memorandum and articles of an unlimited company registered before the commencement of the legislation apply, save to the extent they are inconsistent with mandatory provisions.  They may be altered or added to, in accordance with the conditions applicable generally to unlimited companies under the Act.


Name

The name of an unlimited company must end with the words “unlimited company” or “cuideachta neamhtheoranta”.  They may be abbreviated to “uc”, “u.c.” or “c.n.” or “cn”. An unlimited company carrying on business under another name must register under the Registration of Business Names Act.  If special circumstances exist that make it expedient that an exemption should be granted, the Minister may, on such conditions as he may think fit to impose and specify, grant an exemption from the obligation to use the suffixes.

No body corporate that is not an unlimited company may carry on any trade, profession or business using the words “unlimited company”, or “cuideachta neamhtheoranta”.  Contravention is an offence on the part of the body and any officer in default.

A company shall not use a name which may reasonably be expected to give an impression that it is a type of company other than an unlimited company, where this is likely to be material to a person in the circumstances.  Contravention is a category 3 offence on the part of the company and of any office in default.


Capacity

An unlimited company shall have the capacity to do anything stated in the objects set out in its memorandum.  A reference to an object includes reference to anything stated to be a power to do any act.  If an object is stated in the memorandum without so saying, the company is deemed to have the capacity to do any act or thing that appears to be requisite, advantageous, incidental to, or to facilitate, the attainment of that objective provided that that is not inconsistent with any legislation.

The validity of an act done by an unlimited company shall not be called into question on the grounds of lack of capacity by reason of anything in the company’s objects. A party to a transaction with an unlimited company is not bound to enquire as to whether that transaction is permitted by the company’s objectives.

A member may take proceedings to restrain acts which are beyond the capacity of the company, provided that it is not in fulfilment of a legal obligation arising from a previous act of the company.

The directors have a duty to observe the limitations on the powers of an unlimited company, contained in the objects.  Actions by the directors, beyond the company’s capacity may be ratified by the members by special resolution. The resolution shall not release the liability of the directors unless the relief is specifically granted by separate resolution.


Alteration of Objects

The provisions for alteration of the objects of an unlimited company are similar to those that apply to other bodies corporate. The objects may be amended by special resolution of the members. Notice of a meeting for the alteration of the objects must be not less than 10 days ‘notice to the shareholders and the debenture holders who are entitled to receive notice of meetings.  10 days’ notice must be given if a written resolution is used.

The holders of not less than 15% of the nominal share capital or share capital of a particular class, who have voted against the resolution, may apply to court within 21 days for an order cancelling the alteration.  Where an order prohibits the alteration of the constitution, the company may not implement it. The court may annul the resolution or adjourn the proceedings, to facilitate an arrangement for the purchase of the shares of the dissenting party.

If no application is made to the court, the resolution and amended articles must be filed with the Companies Registration Office, 15 days after the end of the period for application to the court.  If an application is made to the court, the Registrar shall be notified.  Within 15 days of any court order, the Registrar is also to be notified.


Shares and Securities I

A PUC or PULC may not have securities or an interest in them admitted to trading or listed on any regulated market.  Debentures or an interest in debentures may be admitted to trading on a regulated market, subject to the applicable market rules.

The same general principles apply to the share capital of an unlimited company as apply to that of other types of company.  In the case of a variation of class rights, the relevant class of shareholders must consent to the variation.  There is provision for application to the court by dissenting shareholders, similar to that which applies to other types of company.

Unless the constitution otherwise provides, a ULC or PUC may reduce its share capital by a resolution.  It may extinguish or reduce liability on any shares in respect of capital not paid up. It may extinguish or reduce the liability on any of its shares, cancel any paid-up share capital loss where not represented by available assets.


Shares and Securities II

Either with or without extinguishing or reducing liability on any of its shares, an unlimited company may pay off any paid-up company capital in excess of the company’s needs.  A resolution is not valid the company would no longer have any members in consequence.

Notwithstanding anything in a resolution or in the constitution of a ULC or PUC, a reserve arising from the reduction of capital is to be treated as a realised profit.

An unlimited company has unrestricted power to make a distribution out of its assets, to its members, subject to its constitution.

The instrument of transfer of a share in a ULC and PUC must be executed by both transferor and transferee.


Members of PULC

The subscribers to the memorandum of a PULC are deemed to be members and shall be entered in the register of members.  Such other persons who, the directors admit to membership; or who are admitted to membership under the constitution and entered on the register of members, become members.

The articles of a PULC shall state the number of members, with which it proposes to be registered. The articles of a PULC may state the maximum number of persons who may be members of the PULC. This is subject to the power of the directors to register an increase in the number of members.

Where a PULC has increased the number of its members beyond the registered number, it shall, within 15 days after the date on which the increase was resolved on or took place, deliver particulars of the increase to the Registrar. The PULC and any officer of it who is in default shall be guilty of a category 4 offence.

A member may resign his membership by giving notice to the directors.  The directors may require a member to resign by serving a notice terminating his membership.

The general position is that each member has one vote. This may be varied by the constitution. An unlimited company with two or more members may not dispense with holding an annual general meeting.


Contribution on Winding Up

When an unlimited company is wound up, every present and past member is liable to contribute to a shortfall in its assets, in an amount sufficient to pay its debts, liabilities and the costs, charges and expenses of winding up, after the adjustment of rights of the contributories amongst themselves.

A past member is not liable to contribute if he has ceased to be a member for more than a year before winding up.  A past member is not liable to contribute in respect of any debt or liability of the unlimited company contracted after he ceased to be a member.  He is not liable to contribute unless it appears to the court that the existing members are unable to satisfy the contributions required to be made by them.

Any sum due to any member of an unlimited company in whatever capacity by way of distribution, profits or otherwise, shall not be deemed a debt due to the company in a case of competition between himself and other creditors, who are not members of the company. Such sum shall be taken into account for the purpose of the final adjustment of the rights of contributories between themselves.  Contributories who are liable to the company on calls made on the winding up may set off debts owing by the company to the contributory as a member.


Designated ULCs

Under the Companies Act 2014 and the preceding legilsation. a designated ULC was a ULC, all members of which are either companies limited by shares, limited by guarantee or an equivalent entity incorporated abroad. A designated ULC may be an unlimited company, all whose members are companies limited by shares or guarantee or an equivalent incorporated outside the State, partnerships all of whose members are within the above categories, bodies governed by the law of the EU Member States which are similar to unlimited companies or partnerships or any combination thereof.

ULCs are not required to comply with the Companies Act obligations requiring financial accounts to be annexed to the annual return. Designated ULCs do not enjoy the privilege of ULCs not to file financial statements. Otherwise, one of the principal benefits of unlimited companies, namely, privacy from the publication of accounts would be available to an unlimited company whose members itself were limited.  There must be at least one natural shareholder in order for the exemption to be available.

The statutory auditors of a non-designated ULC must furnish a report to the directors confirming that they have audited financial statements for the financial year including the reports laid before the member.  The certified copy of the report is to be appended to the annual report and certified as such by the directors.  The report is to be annexed to the annual return and the certified as a true copy.


2017 Act Designated ULCs I

Historically, unlimited liability companies were not required to file financial statements. European Union Directives in the 1990s required designated unlimited liability companies to file financial statements. Designated unlimited companies are broadly those, all of whose members are themselves limited liability companies, partnerships or their equivalents.

There were a number of weaknesses in the pre2017 legislation. A company could have an unlimited liability member which itself had members outside the jurisdiction of the EU. Structures were developed to evade the financial reporting requirement by creating appropriate layers of subsidiary, commonly in offshore jurisdictions such as the Isle of Man.

The 2017 legislation restated the definition of a designated unlimited liability company (ULC) so as to broaden the categories of entities which are obliged to file financial statements, after 1st January 2017. Having a person (living/ natural as opposed to corporate) as a member is not sufficient to fall outside the definition.

The position is also affected by changes to the definition of a subsidiary in the 2017 Act. It disregards certain persons who hold shares as agent or nominee of another.


2017 Act Designated ULCs II

The following ULCs are deemed designated (and must file accounts) if

  • at any time in the relevent year, the ULC has been a subsidiary undertaking of an undertaking which was at that time limited,
  • at any time during the relevant year, there are rights in respect of it, exercisable by or on behalf of two or more undertakings which were at that time limited, being rights which if exercised by one of the undertakings, would have made the ULC a subsidiary or
  • at any time in the relevent year  it has been the holding company of an undertaking whose members had limited liability.

A subsidiary undertaking includes any corporate body partnership and an unincorporated body of persons.

The effect of the third category is that an unlimited liability company which has subsidiaries with  limited liabiltiy under domestic or international legislation is a designated ULC and must file accounts. However,this part of the legislation does not commence until 1st January 2022, and applies in respect of financial accounting periods thereafter.


2017 Act Designated ULCs III

The following are also deemed to be designated ULC.

  • ULCs all of whose members are companies limited by a share or guarantee;
  • unlimited companies each of whose members is a limited company;
  • partnerships which are not limited partnerships, each of whose members is a limited company;
  • limited partnerships, each of whose general partners is a limited company;
  • any combination of the above bodies.

A further basis for designation is that the ULC, the direct or indirect members of which comprise any combination of ULCs or above the mentioned bodies is such that the ultimate beneficial owners enjoy the protection of limited liability.This latter ground is intended to apply the designated ULC status to nominee indirect and ultimate beneficial owners.

This accords with the 2016 money laundering legislation in relation to beneficial owners.The legislation follows from changes in EU legislation, part of the principle of which is to prevent the avoidance of filing obligations, in particular by the creation of structures with entities situated outside the EU.


References and Sources

Primary References

Companies Act 2014 (Irish Statute Book)

Companies Act 2014: An Annotation (2015) Conroy

Law of Companies 4th Ed.  (2016)  Ch.33   Courtney

Keane on Company Law 5th Ed. (2016) Ch.6 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

Shorter Guides

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

UK Sources

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