The Companies (Corporate Enforcement Authority) Act 2021

The orders for the commencement of the Act and the establishment of the Corporate Enforcement Authority were signed by the Tánaiste on 5 and 6 July 2022 respectively. The Act was previously passed by the Oireachtas and signed into law by the President on 22 December 2021.   

Part 2 of this Act contains the amendments to the 2014 Act whereby the Office of the Director of Corporate Enforcement (“ODCE”) is to transform into an independent statutory agency known as the “Corporate Enforcement Authority” (“CEA”). The CEA will have additional resources to investigate and prosecute white-collar crime. The functions of the CEA include, encouraging compliance with the 2014 Act, investigation of suspected offences and non-compliance under the 2014 Act, prosecution of summary offences, referring indictable offences to the Director of Public Prosecutions and the exercise of certain supervisory functions with respect to liquidators and receivers. The Act provides for up to three full time commissioners (“Members”) of the CEA, one of which to be designated as Chairperson. 

The establishment of the CEA as an agency is intended to grant it more autonomy in certain matters, including the recruitment of specialist Garda staff and forensic accountants.

In announcing its establishment, the Tánaiste, Leo Varadkar, commented that the CEA now has "real teeth, making sure it has the autonomy and resources to thoroughly investigate suspected wrongdoing, such as fraudulent trading and larger, more complex company law breaches".

Part 3 of the Act also contains some amendments to the 2014 Act, the most significant of which we have set out below:

• Section 14 amends section 71 of the 2014 Act regarding additional permitted uses by a company of the share premium account to include:

the writing off of:

• • the preliminary expenses of a company; or
  • the expenses of or commission paid on any issue of shares or debentures of a company.

or;

in providing for the premium on redemption of redeemable preference shares issued before 1 July 1991 or debentures issued by a company before 1 June 2015.

• Section 16 amends section 91 of the 2014 Act regarding the variation of share capital on reorganisation to clarify that share for undertaking transactions can be lawfully carried out where the transferor company has distributable reserves that are at least equal to the value of the assets transferred.
• Section 18 amends section 109 of the 2014 Act in respect of the definition of treasury shares so that shares acquired by a company as part of a merger/division are regarded as being treasury shares also.
• Section 19 amends section 123 of the 2014 Act with regard to the meaning of “distribution” and “capitalisation” by the addition of new exceptions at subsection (1)(f) - relating to the reduction of share capital by paying off paid up share capital or by extinguishing or reducing all or part of a member’s liability on shares not fully paid up, and effected pursuant to section 84 of the 2014 Act, thereby confirming that a share capital reduction so carried out is not a distribution.
• Section 25 amends section 1230 of the 2014 Act to dis-apply certain sections of section 105 of the 2014 Act so that Private Unlimited Companies and Public Unlimited Companies will not be required to have distributable reserves in order to purchase or redeem their own shares.

Certain corporate governance amendments to the 2014 Act  are contained in Part 4 of this Act, including section 26 to amend section 131 of the 2014 Act to clarify that a secretary (in addition to a director) of a company must be at least 18 years of age.

We will continue to keep you appraised of developments relevant to your business. To discuss this recent development further or its impact on your business, please contact your usual Grant Thornton contact or any member of our corporate compliance team.