Eligibility & Residence
Companies Act
Prohibition of body corporate or unincorporated body of persons being director
130. (1) A company shall not have as director of the company a body corporate or an unincorporated body of persons.
(2) Any purported appointment of a body corporate or an unincorporated body of persons as a director of a company shall be void.
Prohibition of minor being director or secretary
131. (1) No person shall be appointed a director or, in the case of an individual, secretary of a company unless he or she has attained the age of 18 years.
(2) Any purported appointment of a minor as a director of a company shall be void.
(3) Where—
(a) a person appointed a director of a company before the commencement of subsection (1) has not attained the age of 18 years when that subsection is commenced; or
(b) the office of director of a company is held otherwise by virtue of another office, and the person appointed to that other office has not attained the age of 18 years when subsection (1) is commenced,
that person ceases to be a director of the company on the commencement of subsection (1) and the company shall make the necessary consequential alteration in its register of directors and shall notify the Registrar of the change.
Prohibition of undischarged bankrupt being director or secretary or otherwise involved in company
132. (1) If any person being an undischarged bankrupt—
(a) acts as a director or secretary of a company; or
(b) directly or indirectly takes part or is concerned in the promotion, formation or management of a company,
the person shall (unless he or she does so with the leave of the court) be guilty of a category 2 offence.
(2) Where a person is convicted of an offence under subsection (1) the person shall be deemed to be subject to a disqualification order from the date of such conviction for such period as the court specifies if he or she was not, or was not deemed to be, subject to such an order on that date.
(3) In this section “disqualification order” has the same meaning as it has in Chapter 4 of Part 14 .
Examination as to solvency status
133. (1) Where the Director of Corporate Enforcement has reason to believe that a director or secretary of a company is an undischarged bankrupt, the Director of Corporate Enforcement may exercise the following power.
(2) That power is to require the director or secretary of the company to produce to the Director, by a specified date, a sworn statement by him or her of all relevant facts pertaining to the director’s or secretary’s financial position, both within the State and elsewhere, and, in particular, to any matter relating to bankruptcy as at a particular date.
(3) The court may, on the application of the Director of Corporate Enforcement, require a director or secretary of a company who has made a statement under subsection (2) to appear before it and answer on oath any question pertaining to the content of the statement.
(4) The court may, on the application of the Director of Corporate Enforcement, make a disqualification order against a director or secretary of a company, to be for such period as the court specifies, on the grounds that he or she is an undischarged bankrupt.
(5) A director or secretary of a company who fails to comply with a requirement under subsection (2) shall be guilty of a category 3 offence.
(6) In this section “disqualification order” has the same meaning as it has in Chapter 4 of Part 14 .
Performance of acts by person in dual capacity as director and secretary not permitted
134. A provision of—
(a) this Act;
(b) an instrument under it; or
(c) a company’s constitution,
requiring or authorising a thing to be done by or to a director and the secretary shall not be satisfied by its being done by or to the same person acting both as director and as, or in place of, the secretary.
Validity of acts of director or secretary
135. The acts of a director or of a secretary shall be valid notwithstanding any defect which may afterwards be discovered in his or her appointment or qualification.
Share qualifications of directors
136. (1) This section applies where the constitution of a company requires a director of the company to hold a specified share qualification (the “specified qualification”).
(2) Where this section applies—
(a) the office of director of a company shall be vacated if the director—
(i) does not within 2 months after the date of his or her appointment or within such shorter time as may be fixed by the constitution, obtain the specified qualification; or
(ii) ceases at any time, after the expiration of that period or shorter time so fixed, as the case may be, to hold the specified qualification;
and
(b) a person vacating office under this section shall be incapable of being re-appointed director of the company until he or she has obtained the specified qualification.
Company to have director resident in an EEA state
137. (1) Subject to subsection (2) and section 140 , one, at least, of the directors for the time being of a company shall be a person who is resident in an EEA state.
(2) Subsection (1) 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 €25,000 and which provides that, in the event of a failure by the company to pay the whole or part of each (if any) fine and penalty specified in the Table to this section, there shall become payable under the bond to a person who is, under subsection (4), nominated for the purpose (the “nominated person”) a sum of money for the following purpose.
(3) That purpose is the purpose of the 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 nomination referred to in subsection (2) shall be made—
(a) by the Registrar or the Revenue Commissioners, as appropriate; or
(b) in the case of failure to pay both a fine referred to in paragraph 1 of the Table to this section and a fine or penalty, or a fine and penalty, referred to in paragraph 2 of that Table, jointly by the Registrar and the Revenue Commissioners.
(5) The bond referred to in subsection (2) 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.
(6) If subsection (1) is not complied with, the company concerned and any officer of it who is in default shall be guilty of a category 4 offence.
(7) In this section “director” does not include an alternate director.
Table
1. A fine imposed on the company in respect of an offence under this Act committed by it.
2. (1) A fine 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.
(2) A penalty which the company has been held liable to pay under section 1071 or 1073 of the Taxes Consolidation Act 1997 .
Supplemental provisions concerning bond referred to in section 137 (2)
138. (1) In this section—
“bond” means the bond referred to in section 137 (2);
“nominated person” means the person nominated under section 137 (4) in relation to the bond concerned.
(2) The bond shall also provide that, in addition to the sum referred to in section 137 (2), 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 section 137 (3).
(3) 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 and of all disbursements made by him or her from any such moneys.
(4) The Minister, after consultation with the Minister for Public Expenditure and Reform, the Revenue Commissioners and any other person who, 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 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.
(5) A copy of the bond held by a company shall be appended—
(a) in case none of the directors (within the meaning of section 137 ) of the company is resident in an EEA state on its incorporation, to the statement required by section 21 (1)(a) to be delivered to the Registrar in relation to the company;
(b) in case a notification is made under section 139 to the Registrar 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 (within the meaning of section 137 ) of the company is resident in an EEA state, to that annual return (unless such a copy has been appended to a notification under section 139 made to the Registrar in that period).
Notification requirement as regards non-residency of director
139. (1) Without prejudice to anything in section 149 , 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 an EEA state; and
(b) either—
(i) he or she was the sole director, or
(ii) to his or her knowledge, no other director of the company is resident in an EEA state,
that person shall, within 14 days after the date of that cessation, notify, in writing, the Registrar of that cessation and the matter referred to in paragraph (b)(i) or (ii), as the case may be.
(2) A notification in writing to the Registrar of the matter referred to in subsection (1)(b)(i) or (ii) shall not, of itself, be regarded as constituting defamatory matter.
(3) If a person fails to comply with subsection (1), he or she shall be jointly and severally liable with the company of which he or she has ceased to be director for any fine or penalty referred to in section 137 (2) imposed on the company, or which it is held liable to pay, after that cessation.
(4) Any such fine or penalty for which that person is so liable may be recovered by the Registrar or the Revenue Commissioners, as appropriate, from him or her as a simple contract debt in any court of competent jurisdiction.
(5) In this section “director” does not include an alternate director.
Exception to section 137 — companies having real and continuous link with economic activity in State
140. (1) Section 137 (1) shall not apply in relation to a company in respect of which there is in force a certificate under this section.
(2) The Registrar 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 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) That statement is a statement in writing that has been given to the company concerned by the Revenue Commissioners within the period of 2 months ending before 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 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 consequence 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, the following applies—
(a) the Commissioners may give a notice in writing to the Registrar stating that they are of that opinion; and
(b) such a notice that is received by the Registrar shall constitute information in his or her possession for the purposes of subsection (6).
(8) Subsection (7)(a) has effect notwithstanding any obligations as to secrecy or other restrictions upon disclosure of information imposed by or under statute or otherwise.
(9) For the purposes of this section a company has a real and continuous link with an economic activity that is being carried on in the State if one or more of the following conditions are satisfied by it—
(a) the affairs of the company are managed by one or more persons from a place of business established in the State and that person or those persons is or are authorised by the company to act on its behalf;
(b) the company carries on a trade in the State;
(c) the company is a subsidiary or a holding company of a company or other body corporate that satisfies either or both of the conditions specified in paragraphs (a) and (b);
(d) the company is a subsidiary of a company, another subsidiary of which satisfies either or both of the conditions specified in paragraphs (a) and (b).
Provisions for determining whether director resident in State
141. (1) So far as it is the person’s residence in the State that falls to be determined for the purposes of those sections, for the purposes of sections 137 and 139 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.
(2) Notwithstanding subsection (1)(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 137 or 139 , at the relevant time concerned; and
(b) no account shall be taken of the period for the purposes of the aggregate mentioned in subsection (1)(a)(ii).
(3) For the purposes of subsections (1) and (2)—
(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 any time during that day.
Limitation on number of directorships
142. (1) A person shall not, at a particular time, be a director of more than—
(a) 25 private companies limited by shares; or
(b) 25 companies, one, or more than one, of which is a private company limited by shares and one, or more than one, of which is any other type of company capable of being wound up under this Act.
(2) Subsections (3) to (7) apply in reckoning, for the purposes of subsection (1) (the “relevant purposes”), the number of companies of which the person concerned is a director at a particular time (the “relevant time”) and a reference in them to a company, without qualification, includes a reference to any type of company capable of being wound up under this Act.
(3) Without prejudice to the following subsections, there shall not be included for the relevant purposes any of the following companies of which the person is a director at the relevant time, namely—
(a) a public limited company;
(b) a company in respect of which a certificate under section 140 is in force.
(4) There shall not be included, for the relevant purposes, any company of which the person is a director at the relevant time (not being a time that is before the date of the giving of the certificate or direction referred to subsequently in this subsection) if—
(a) the person, or the company, delivers to the Registrar 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
(b) either—
(i) the Registrar, having considered that 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 (7) so certifies, that the company is a company falling within one or more of the foregoing categories; or
(ii) the Minister directs, under subsection (7), that the company is not to be included amongst the companies for the relevant purposes.
(5) There shall, for the relevant purposes, be counted as the one company of which the person is a director at the relevant 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.
(6) For the purposes of subsection (4)(b)(i), the Registrar may accept as sufficient evidence that the company concerned falls within a category of company specified in the Table to this section a declaration, in the prescribed form, to that effect made by an officer of the company or the other person referred to in subsection (4)(a).
(7) If the Registrar refuses to certify that the company to which a notice under subsection (4)(a) 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 subsection (4)(a) 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;
(b) certify in writing that the company is a company falling within a foregoing category; or
(c) notwithstanding that he or she confirms the decision of the Registrar, 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 but shall only give such a direction if—
(i) the person concerned was a director of the company before 18 April 2000; 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 the direction would not operate against the common good.
(8) A notice referred to in subsection (4)(a) may, for the purposes of that provision, be delivered to the Registrar before the person concerned becomes a director of the company to which the notice relates.
Table
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.
A company falling within any provision (in so far as applicable to a private company limited by shares) of Schedule 5 .
Sanctions for contravention of section 142 and supplemental provisions
143. (1) If a person, in contravention of section 142 (1), purports to become, or purports to remain, a director of one or more companies he or she shall be guilty of a category 4 offence.
(2) An appointment of a person as a director of a company shall, if it contravenes section 142 (1), be void.
(3) For the avoidance of doubt—
(a) each purported appointment, in excess of the limit (reckoned in accordance with section 142 (3) to (7)) that is provided for by section 142 (1), of a person as a director of a company shall constitute a separate contravention of section 142 (1);
(b) an appointment, not in excess of the foregoing 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.
(4) 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 section 142 , 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 this Act, the prior Companies Acts or any other former enactment relating to companies (within the meaning of section 5 ), as the case may be.
(5) A reference in this section to a company includes a reference to any type of company capable of being wound up under this Act.
Interpretation generally (Chapter 4)
837. In this Chapter—
“company” includes every company and every body, whether corporate or unincorporated, that may be wound up under this Act;
“court”, in relation to a disqualification order made by a court of its own motion under section 842 (a), (b), (c), (d) or (f), means the High Court or any other court of competent jurisdiction dealing with the person concerned in criminal or civil proceedings before it;
“default order” means an order made against any person under section 797 by virtue of any contravention of or failure to comply with any relevant requirement (whether on that person’s part or on the part of any company);
“officer”, in relation to any company, includes any director, shadow director or secretary of the company;
“relevant requirement” means any provision of this Act (including any provision repealed by this Act) that requires or required any return, account or other document to be filed with, delivered or sent to, or notice of any matter to be given, to the Registrar.
Meaning of “disqualified” and “disqualification order”
838. In this Chapter—
“disqualification order” means an order of the court that a person shall be disqualified;
“disqualified”, in relation to a person, means the person’s being disqualified from being appointed or acting as a director or other officer, statutory auditor, receiver, liquidator or examiner or being in any way, whether directly or indirectly, concerned or taking part in the promotion, formation or management of each of the following:
(a) a company within the meaning of section 819 (6);
(b) any friendly society within the meaning of the Friendly Societies Acts 1896 to 2014;
(c) any society registered under the Industrial and Provident Societies Acts 1893 to 2014.
Automatic disqualification on conviction of certain indictable offences
839. (1) A person is automatically disqualified if that person is convicted on indictment of—
(a) any offence under this Act, or any other enactment as may be prescribed, in relation to a company, or
(b) any offence involving fraud or dishonesty.
(2) A person disqualified under subsection (1) is disqualified for a period of 5 years after the date of conviction or for such other (shorter or longer) period as the court, on the application of the prosecutor or the defendant and having regard to all the circumstances of the case, may order.
(3) A person disqualified under subsection (1) is deemed, for the purposes of this Act, to be subject to a disqualification order for the period of his or her disqualification.
(4) Subsection (1) is in addition to the other provisions of this Act providing that, upon conviction of a person for a particular offence, the person is deemed to be subject to a disqualification order.
Default under section 149 (8) concerning fact of director’s becoming disqualified under law of another state
840. (1) In this section—
“relevant change amongst its directors”, in relation to a company, means the change referred to in section 150 (1), namely the case of a director’s becoming disqualified under the law of another state (whether pursuant to an order of a judge or a tribunal or otherwise) from being appointed or acting as a director or secretary of a body corporate or an undertaking;
“relevant director” means the director of the company who has become so disqualified under the law of another state;
“statement of particulars of foreign disqualification” means the statement of particulars of disqualification that is required under section 150 (1).
(2) If—
(a) a company fails to comply with the requirement under section 149 (8) to send to the Registrar the notification of the relevant change amongst its directors and that failure is by reason of a default of the relevant director, or
(b) in purported compliance with that requirement, a company sends to the Registrar the notification of the relevant change amongst its directors and, by reason of a default of the relevant director, the statement of particulars of foreign disqualification is false or misleading in a material respect,
the relevant director shall be deemed, for the purposes of this Act, to be subject to a disqualification order for the period specified in subsection (3).
(3) The period of disqualification—
(a) commences—
(i) in the case of a failure referred to in subsection (2)(a), on the expiry of 14 days after the date on which the relevant director has become disqualified, as mentioned in the definition of “relevant change amongst its directors” in subsection (1), under the law of another state, or
(ii) in the case, as referred to in subsection (2)(b), of the sending of a statement of particulars of foreign disqualification to the Registrar that is false or misleading in a material respect, when that statement is delivered to the Registrar,
and
(b) continues only for so much of—
(i) the period of foreign disqualification as remains unexpired as at the date of commencement referred to in paragraph (a), or
(ii) if the person is disqualified under the law of more than one state, and the unexpired periods of disqualification in each of the states are not equal, whichever unexpired period of disqualification is the greatest.
(4) Without limiting the circumstances in which such a default can arise, a failure referred to in—
(a) subsection (2)(a) occurs by reason of a default of the relevant director if the latter has failed in his or her duty under section 150 (3) to give the necessary information to the company so as to enable it to comply with the requirement under section 149 (8) to send to the Registrar the notification of the relevant change amongst its directors, and
(b) subsection (2)(b) occurs by reason of a default of the relevant director if the latter, in purported compliance with the foregoing duty, has given information to the company, for the purposes of the statement of particulars of foreign disqualification, that is false or misleading in a material respect.
(5) This section shall also apply to the additional case that, by virtue of subsection (9) of section 150 , subsection (1) of section 150 applies to.
(6) For the purposes of the application of this section to the foregoing additional case, this section shall have effect subject to the following modifications:
(a) the following definition shall be substituted for the definition of “relevant change amongst its directors” in subsection (1):
“ ‘relevant change amongst its directors’, in relation to a company, means the change referred to in subsection (1) of section 150 (as that subsection applies by virtue of subsection (9) of that section), namely the case of a person appointed a director of a company before the commencement of that section and who, subsequent to his or her appointment but before that commencement, becomes disqualified under the law of another state (whether pursuant to an order of a judge or a tribunal or otherwise) from being appointed or acting as director or secretary of a body corporate or an undertaking;”;
(b) in subsection (2), after “ section 149 (8)” there shall be inserted “(as that provision applies by virtue of section 150 (10))”;
(c) in subsection (3)(a), there shall be substituted the following for subparagraph (i):
“(i) in the case of a failure referred to in subsection (2)(a), on the expiry of 3 months after the commencement of section 150 ; or”;
and
(d) in subsection (3)(b), there shall be substituted the following for subparagraph (i):
“(i) the period of foreign disqualification as remains unexpired as at the date that is specified in paragraph (a) to be the date on which the period of disqualification commences;”.
Default under section 23 or 150(2) by director disqualified under law of another state
841. (1) This section applies to a person if the person—
(a) is disqualified under the law of another state (whether pursuant to an order of a judge or a tribunal or otherwise) from being appointed or acting as a director or secretary of a body corporate or an undertaking, and
(b) one of the following occurs:
(i) the person fails to comply with section 23 or 150 (2);
(ii) in purported compliance with section 23 , the person permits the statement of first directors and secretary to be accompanied by a statement of particulars of foreign disqualification signed by him or her that is false or misleading in a material respect; or
(iii) in purported compliance with section 150 (2), the person permits the notification of change of director to be accompanied by a statement of particulars of foreign disqualification signed by him or her that is false or misleading in a material respect.
(2) A person to whom this section applies shall be deemed, for the purposes of this Act, to be subject to a disqualification order for the period specified in subsection (3).
(3) The period of disqualification—
(a) commences—
(i) in the case of a default referred to in subsection (1)(b)(i), when the statement of first directors and secretary or notification of change of director, as the case may be, is delivered to the Registrar, or
(ii) in the case of a default referred to in subsection (1)(b)(ii) or (iii), when the statement of first directors and secretary or notification of change of director, as the case may be, accompanied by the statement of particulars of foreign disqualification is delivered to the Registrar,
and
(b) continues only for so much of—
(i) the period of foreign disqualification as remains unexpired as at the date of commencement referred to in paragraph (a), or
(ii) if the person is disqualified under the law of more than one state, and the unexpired periods of disqualification in each of the states are not equal, whichever unexpired period of disqualification is the greatest.
(4) In this section—
“notification of change of director” means the notification of a change in director that is required to be sent under section 149 (8);
“statement of first directors and secretary” means the statement required to be delivered under section 21 (1)(a);
“statement of particulars of foreign disqualification” means the statement of particulars of disqualification that is required under section 23 or 150 (2).
Court may make disqualification order
842. On the application of a person specified in section 844 or of its own motion, the court may make a disqualification order in respect of a person for such period as it sees fit if satisfied—
(a) that the person has been guilty, while a promoter, officer, statutory auditor, receiver, liquidator or examiner of a company, of any fraud in relation to the company, its members or creditors,
(b) that the person has been guilty, while a promoter, officer, statutory auditor, receiver, liquidator or examiner of a company, of any breach of his or her duty as such promoter, officer, auditor, receiver, liquidator or examiner,
(c) that a declaration has been granted under section 610 in respect of the person,
(d) that the conduct of the person as promoter, officer, statutory auditor, receiver, liquidator or examiner of a company makes him or her unfit to be concerned in the management of a company,
(e) that, as disclosed in a report of inspectors appointed by the court or the Director under this Act, the conduct of the person makes him or her unfit to be concerned in the management of a company,
(f) that the person has been persistently in default in relation to the relevant requirements,
(g) that the person has been guilty of 2 or more offences under section 286 ,
(h) that the person was a director of a company when a notice was sent to the company under section 727 and the company, following the taking of the other steps under Chapter 1 of Part 12 consequent on the sending of the notice, was struck off the register under section 733 , or
(i) that—
(i) the person is disqualified under the law of another state (whether pursuant to an order of a judge or a tribunal or otherwise) from being appointed or acting as a director or secretary of a body corporate or an undertaking, and
(ii) it would have been proper to make a disqualification order against the person otherwise under this section if his or her conduct or the circumstances otherwise affecting him or her that gave rise to the foreign disqualification had occurred or arisen in the State.
Interpretation and application (Chapter 3)
818. (1) In this Chapter—
“company”, in the context of a provision that imposes a restriction on a company by reference to the fact of its having a restricted person (within the meaning of section 826 ) or otherwise makes provision in consequence of that fact, means any company referred to in section 819 (6);
“director of an insolvent company” means a person who was a director or shadow director of an insolvent company at the date of, or within 12 months before, the commencement of its winding up;
“insolvent company” means a company that is unable to pay its debts;
“restricted person” means a person who is subject to a restriction under a declaration made under section 819 (1) that is in force.
(2) For the purposes of the definition of “insolvent company” in subsection (1), a company is unable to pay its debts if—
(a) at the date of the commencement of its winding up it is proved to the court that it is unable to pay its debts (within the meaning of section 570 ), or
(b) at any time during the course of its winding up the liquidator certifies, or it is proved to the court, that it is unable to pay its debts (within the meaning of section 570 ).
(3) For the purpose of a restriction imposed pursuant to this Part on a person’s acting as a director of a company, that restriction shall, in the case of a person who continues in office as a director of a company on the restriction taking effect (and the requirements set out in section 819 (3) are not met in respect of the company), be deemed, without proof of anything more, to have been contravened.
(4) This Chapter shall not apply to a company that commenced to be wound up before 1 August 1991.
Declaration by court restricting director of insolvent company in being appointed or acting as director etc.
819. (1) On the application of a person referred to in section 820 (1) and subject to subsection (2), the court shall declare that a person who was a director of an insolvent company shall not, for a period of 5 years, be appointed or act in any way, directly or indirectly, as a director or secretary of a company, or be concerned in or take part in the formation or promotion of a company, unless the company meets the requirements set out in subsection (3).
(2) The court shall make a declaration under subsection (1) unless it is satisfied that—
(a) the person concerned has acted honestly and responsibly in relation to the conduct of the affairs of the company in question, whether before or after it became an insolvent company,
(b) he or she has, when requested to do so by the liquidator of the insolvent company, cooperated as far as could reasonably be expected in relation to the conduct of the winding up of the insolvent company, and
(c) there is no other reason why it would be just and equitable that he or she should be subject to the restrictions imposed by an order under subsection (1).
(3) The requirements referred to in subsection (1) are—
(a) the company shall have an allotted share capital of nominal value not less than—
(i) €500,000 in the case of a public limited company (other than an investment company) or a public unlimited company, or
(ii) €100,000 in the case of any other company,
(b) each allotted share shall be paid up to an aggregate amount not less than the amount referred to in paragraph (a), including the whole of any premium on that share, and
(c) each allotted share and the whole of any premium on each allotted share shall be paid for in cash.
(4) In the application of subsection (3) to a company limited by guarantee, paragraphs (a) to (c) of it shall be disregarded and, instead, that subsection shall be read as if it set out both of the following requirements:
(a) that the company’s memorandum of association specifies that the amount of the contribution on the part of the member of it, or at least one member of it, being the contribution undertaken to be made by the member as mentioned in section 1176 (2)(d), is not less than €100,000;
(b) that the member whose foregoing contribution is to be not less than that amount is an individual, as distinct from a body corporate.
(5) In the application of subsection (3) to an investment company, paragraphs (a) to (c) of it shall be disregarded and, instead, that subsection shall be read as if it set out both of the following requirements—
(a) that the value of the issued share capital of the company is not less than €100,000,
(b) that an amount of not less than €100,000 in cash has been paid in consideration for the allotment of shares in the company.
(6) Where subsection (1) refers to being appointed or acting as a director or secretary of a company, or taking part in the formation or promotion of a company, “company” means any of the following:
(a) a private company limited by shares;
(b) a designated activity company;
(c) a public limited company;
(d) a company limited by guarantee;
(e) an unlimited company;
(f) an unregistered company.
(7) A prescribed officer of the court shall ensure that the prescribed particulars of a declaration under this section are provided to the Registrar in the prescribed form and manner (if any).
Application for declaration of restriction
820. (1) An application for a declaration under section 819 (1) may be made by—
(a) the Director,
(b) the liquidator of the insolvent company, or
(c) a receiver of the property of the company.
(2) The court may order that the person who is the subject of the declaration shall pay—
(a) the costs of the application, and
(b) the whole (or so much of them as the court specifies) of the costs and expenses incurred by the applicant—
(i) in investigating the matters that are the subject of the application, and
(ii) in so far as they do not fall within paragraph (a), in collecting evidence in respect of those matters,
including so much of the remuneration and expenses of the applicant as are attributable to such investigation and collection.
Liquidator shall inform court of jeopardy to other company or its creditors
821. (1) This section applies if the liquidator of an insolvent company is of the opinion that—
(a) a restricted person is appointed or is acting in any way, whether directly or indirectly, as a director of, or is concerned or taking part in the formation or promotion of, another company, and
(b) the interests of that other company or its creditors may be jeopardised by the matters referred to in paragraph (a).
(2) In any case to which this section applies—
(a) the liquidator shall inform the court of his or her opinion as soon as practicable, and
(b) the court, on being so informed by the liquidator, shall make whatever order it sees fit.
(3) A liquidator who, without reasonable excuse, fails to comply with subsection (2)(a) shall be guilty of a category 3 offence.
(4) In this section “company” means any company referred to in section 819 (6).
Court may grant restricted person relief from restrictions
822. (1) On the application of a restricted person, the court may, if it deems it just and equitable to do so, grant that person relief, either in whole or in part, from—
(a) any restriction under a declaration made under section 819 (1), or
(b) an order made under section 821 (2)(b).
(2) Such relief may, if the court considers it appropriate, be granted on such terms and conditions as it sees fit.
(3) A person who intends applying for relief under subsection (1) shall give not less than 14 days’ notice in writing of his or her intention to apply to—
(a) the Director, and
(b) the liquidator of the company the insolvency of which gave rise to the application for the declaration made in respect of him or her under section 819 (1).
(4) On receipt of a notice under subsection (3), the liquidator shall as soon as practicable notify such creditors and contributories of the company as have been notified to the liquidator or become known to the liquidator.
(5) On the hearing of an application under this section, the Director, the liquidator, or any creditor or contributory of the company may appear and give evidence.
(6) A liquidator who fails to comply with subsection (4) shall be guilty of a category 3 offence.
Register of restricted persons
823. (1) The Registrar shall, subject to the provisions of this section, keep a register of the particulars notified to him or her under section 819 (7).
(2) Where the court grants partial relief to a restricted person under section 822 (1)—
(a) a prescribed officer of the court shall ensure that the prescribed particulars of the relief are provided to the Registrar, and
(b) the Registrar shall as soon as practicable enter those particulars on the register.
(3) Where the court grants full relief to a restricted person under section 822 (1)—
(a) a prescribed officer of the court shall ensure that the Registrar is notified, and
(b) the Registrar shall as soon as practicable remove the particulars of that person from the register.
(4) The Registrar shall remove from the register any particulars of a restricted person on the expiry of 5 years after the date of the declaration made in respect of that person under section 819 (1).
(5) Nothing in this section shall prevent the Registrar from keeping the register required under this section as part of any other system of classification, whether under section 894 or otherwise.
Restricted person shall give notice to company before accepting appointment or acting as director or secretary
825. (1) A restricted person shall not be appointed or act in any way, whether directly or indirectly, as a director or secretary of a company unless he or she has given the company notice in writing in accordance with subsection (2) that he or she is a restricted person.
(2) The restricted person shall send the notice to the registered office of the company within the period of 14 days immediately before the date on which the restricted person accepts the appointment or acts in any way referred to in subsection (1).
(3) A person who accepts the appointment or acts in any way referred to in subsection (1) without having complied with that subsection shall be guilty of a category 3 offence.
(4) In this section “company” means any company referred to in section 819 (6).
“Company that has a restricted person” — meaning of that expression in sections 827 to 834
826. In sections 827 to 834 “company that has a restricted person” means a company—
(a) in relation to which a restricted person is appointed or acts in any way, whether directly or indirectly, as a director or secretary, or
(b) in the promotion or formation of which a restricted person is concerned or takes part.
Disapplication of certain provisions to company having a restricted person
827. (1) Subject to subsection (2), the Summary Approval Procedure shall not apply to a company that has a restricted person.
(2) Subsection (1) does not affect the availability of that procedure so far as it relates to a members’ voluntary winding up.
(3) Without prejudice to section 247 , sections 240 and 245 shall not apply to a company that has a restricted person.
Company having a restricted person may not acquire certain non-cash assets from subscribers, etc., unless particular conditions satisfied
828. (1) A company that has a restricted person shall not, unless the conditions specified in subsection (3) have been satisfied, enter into an agreement with a relevant person for the transfer by him or her of one or more non-cash assets to the company or another for a consideration to be given by the company equal in value at the time of the agreement to at least one-tenth of the nominal value of the company’s share capital issued at that time.
(2) In this section—
“non-cash asset” means any property or interest in property other than cash (including foreign currency);
“relevant person”, in relation to a company, means any subscriber to the constitution, any director or any person involved in the promotion or formation of the company.
(3) The conditions referred to in subsection (1) are that—
(a) the consideration to be received by the company (that is to say, the asset to be transferred to the company or the advantage to the company of its transfer to another person) and any consideration other than cash to be given by the company have been valued under the following provisions of this section,
(b) a report with respect to the consideration to be so received and given has been made to the company in accordance with those provisions during the 6 months immediately preceding the date of the agreement,
(c) the terms of the agreement have been approved by an ordinary resolution of the company, and
(d) not later than the giving of the notice of the meeting at which the resolution is proposed, copies of the resolution and report have been circulated to the members of the company entitled to receive that notice and, if the relevant person is not then such a member, to that person.
(4) Subsection (1) shall not apply to the following agreements for the transfer of an asset for a consideration to be given by the company, that is to say—
(a) where it is part of the ordinary business of the company to acquire or arrange for other persons to acquire assets of a particular description, an agreement entered into by the company in the ordinary course of its business for the transfer of an asset of that description to it or such a person, as the case may be, or
(b) an agreement entered into by the company under the supervision of the court or an officer authorised by the court for the purpose, for the transfer of an asset to the company or to another.
(5) Subject to subsection (6), the valuation and report required by subsection (3) shall be made by an independent person, that is to say, a person qualified at the time of the report to be appointed or to continue to be statutory auditor of the company.
(6) Where it appears to the independent person referred to in subsection (5) to be reasonable for the valuation of the consideration, or a valuation of part of the consideration, to be made, or to accept such a valuation made, by any person who—
(a) appears to that independent person to have the requisite knowledge and experience to value the consideration or that part of the consideration, and
(b) is not—
(i) an officer or employee of the company or any other body corporate which is that company’s subsidiary or holding company or a subsidiary of that company’s holding company, or
(ii) a partner or employee of an officer or employee referred to in subparagraph (i);
that independent person may arrange for or accept such a valuation, together with a report which will enable the independent person to make his or her own report under subsection (3) and provide a note in accordance with subsection (7).
(7) The report of the independent person under subsection (3) shall—
(a) state the consideration to be received by the company, describing the asset in question, specifying the amount to be received in cash, and the consideration to be given by the company, specifying the amount to be given in cash,
(b) state the method and date of valuation,
(c) contain a note by the independent person, or be accompanied by such a note—
(i) in the case of a valuation made by another person, that it appeared to the independent person reasonable to arrange for it to be so made, or to accept a valuation so made,
(ii) whoever made the valuation, that the method of valuation was reasonable in all the circumstances, and
(iii) that it appears to the independent person that there has been no material change in the value of the consideration in question since the valuation,
and
(d) contain a note by the independent person, or be accompanied by such a note, that, on the basis of the valuation, the value of the consideration to be received by the company is not less than the value of the consideration to be given by it.
(8) Where any consideration is valued under this section by a person other than the independent person, the latter’s report under subsection (3) shall state that fact and shall also—
(a) state the former’s name and what knowledge and experience that other person has to carry out the valuation, and
(b) describe so much of the consideration as was valued by that other person, the method used to value it and state the date of valuation.
(9) If a company enters into an agreement with any relevant person in contravention of subsection (1) and either the relevant person has not received a report under this section or there has been some other contravention of this section which he or she knew or ought to have known amounted to a contravention, then, subject to subsection (10)—
(a) the company shall be entitled to recover from the relevant person any consideration given by the company under the agreement or an amount equivalent to its value at the time of the agreement, and
(b) the agreement, so far as not carried out, shall be void.
(10) Where a company enters into an agreement in contravention of subsection (1) and that agreement is or includes an agreement for the allotment of shares in that company—
(a) subsection (9) shall not apply to the agreement in so far as it is an agreement for the allotment of shares, and
(b) the following provisions shall apply in relation to the shares as if they had been allotted in contravention of section 1028 .
(11) The provisions referred to in subsection (10)(b) are as follows:
(a) the allottee of the shares concerned shall be liable to pay the company an amount equal to the nominal value of the shares, together with the whole of any premium or, if the case so requires, such proportion of that amount as is treated as paid up by the consideration, and shall be liable to pay interest at the appropriate rate on the amount payable under this paragraph; and
(b) where any person becomes a holder of any shares in respect of which—
(i) there has been a contravention of this section, and
(ii) by virtue of that contravention, another is liable to pay any amount under this subsection;
the first-mentioned person in this paragraph also shall be liable to pay that amount (jointly and severally with any other person so liable) unless either that first-mentioned person is a purchaser for value and, at the time of the purchase, he or she did not have actual notice of the contravention or he or she derived title to the shares (directly or indirectly) from a person who became a holder of them after the contravention and was not so liable.
Supplemental provisions in relation to section 828
829. (1) Any person carrying out a valuation or making a report under section 828 shall be entitled to require from the officers of the company such information and explanation as the person thinks necessary to enable him or her to carry out the valuation or make the report and provide the note required by that section.
(2) A company which has passed a resolution under section 828 with respect to the transfer of an asset shall, within 15 days after the date of passing of the resolution, deliver to the Registrar a copy of the resolution together with the report required by that section and, if the company fails to do so, the company and any officer of it who is in default shall be guilty of a category 4 offence.
(3) Any reference in section 828 or this section to consideration given for the transfer of an asset includes a reference to consideration given partly for its transfer but—
(a) the value of any consideration partly so given shall be taken to be the proportion of that consideration properly attributable to its transfer,
(b) the independent person shall carry out or arrange for such valuations of anything else as will enable him or her to determine that proportion, and
(c) his or her report under section 828 shall state what valuation has been made by virtue of paragraph (b) and also the reason for and method and date of any such valuation and any other matters which may be relevant to that determination.
(4) References in section 828 to a holder, in relation to any shares in a company, include references to any person who has an unconditional right to be included in the company’s register of members in respect of those shares or to have an instrument of transfer of the shares executed in his or her favour.
Definitions (Chapter 5)
849. In this Chapter—
“disqualification” means being disqualified from being appointed or acting as a director or other officer, receiver, statutory auditor, liquidator or examiner or being in any way, whether directly or indirectly, concerned or taking part in the promotion, formation or management of each of the following:
(a) any company within the meaning of section 819 (6);
(b) any friendly society within the meaning of the Friendly Societies Acts 1896 to 2014;
(c) any society registered under the Industrial and Provident Societies Acts 1893 to 2014;
“disqualification acceptance document” means the document provided for by regulations under section 854 (1) and referred to in paragraph (a)(i) of that provision;
“disqualification order” means an order made under section 842 ;
“disqualification undertaking”, in relation to a person, means an undertaking by the person, given by the means provided in this Chapter, by which the person submits himself or herself to be subject to disqualification;
“restriction” means being restricted for a period of 5 years from being appointed or acting in any way, directly or indirectly, as a director or secretary of a company (within the meaning of section 819 (6)) or being concerned in or taking part in the promotion or formation of a company (within that meaning) unless the company meets the requirements set out in section 819 (3);
“restriction acceptance document” means the document provided for by regulations under section 854 (1) and referred to in paragraph (a)(ii) of that provision;
“restriction declaration” means a declaration made under section 819 ;
“restriction undertaking”, in relation to a person, means an undertaking by the person, given by the means provided in this Chapter, by which the person submits himself or herself to be subject to restriction.
Disqualification undertaking — initiation of procedure
850. (1) In this section—
“disqualification period” shall be read in accordance with subsection (3)(b);
“notice period” shall be read in accordance with subsection (3)(d);
“person” shall be read in accordance with subsection (2);
“specified date” shall be read in accordance with subsection (3)(c);
“underlying facts and circumstances” shall be read in accordance with subsection (3)(a).
(2) Subject to section 851 (6), where the Director has reasonable grounds for believing that one or more of the circumstances specified in section 842 (a) to (i) applies to a person (in this section referred to as the “person”), the Director may, in his or her discretion, deliver to the person, or to the person’s duly authorised agent, the following notice.
(3) That notice is a notice in the prescribed form stating—
(a) both—
(i) which of the circumstances specified in section 842 (a) to (i) the Director believes apply to the person; and
(ii) particulars of the facts and allegations that have given rise to that belief;
and the circumstances so stated, and the facts and allegations that have given rise to that belief (and of which particulars are so stated), are referred to together in this section as the “underlying facts and circumstances”;
(b) the period of disqualification (referred to in this section as the “disqualification period”) which, in the Director’s opinion, is warranted in relation to the person by the underlying facts and circumstances;
(c) the date (referred to in this section as the “specified date”) that will, subject to subsection (5), be the date of commencement of the disqualification period, if a disqualification undertaking is given by the person;
(d) that during—
(i) such period as may be specified in the notice (referred to in this section as the “notice period”), being a period beginning on a day falling not less than 21 days after the date of the notice and expressed to end immediately before the specified date; or
(ii) in the event of a request under subsection (5) by the person being acceded to, the notice period as extended in pursuance of that subsection;
the person may—
(I) notify the Director, in the prescribed form, of his or her willingness to give a disqualification undertaking for the disqualification period; and
(II) return to the Director the disqualification acceptance document duly signed;
(e) that during the notice period, or that period as so extended, the Director will refrain from making an application in respect of the person under section 842 arising from or in connection with the underlying facts and circumstances;
(f) that if the person, within the notice period or that period as so extended, does the things referred to in paragraph (d)(I) and (II), the Director shall not, after the expiry of that period, make an application in respect of the person under section 842 arising from or in connection with the underlying facts and circumstances.
(4) That notice shall also state—
(a) that the person may make a request, under subsection (5), for an extension of the notice period,
(b) the legal effect (for the person) of giving a disqualification undertaking for the disqualification period beginning on the specified date, and
(c) that if the person gives a disqualification undertaking—
(i) the person may seek to be relieved (whether in whole or in part) from the undertaking only by applying to the court under section 847 , and
(ii) that, on the making of such an application, the court may grant such relief only if it considers it just and equitable to do so, and then only on the terms and conditions as it sees fit.
(5) Where a notice is delivered under subsection (2), the Director may, at any time before the specified date, on the request of the person, where the Director considers it appropriate to do so for the purposes of extending the notice period (and postponing the commencement of the proposed disqualification period in consequence), substitute a later date for the specified date and, where such a date is so substituted, references in section 851 —
(a) to the notice period shall be read as references to the notice period as extended in pursuance of this subsection, and
(b) to the specified date shall be read as references to the date that has been substituted for it in pursuance of this subsection.
Effect of delivery of notice,giving of disqualification undertaking on foot thereof and related matters
851. (1) Where a notice is delivered under section 850 (2), the Director and every person who is aware of the notice shall not, during the notice period, make an application under section 842 , arising from or in connection with the underlying facts and circumstances, in respect of the person who is the subject of the notice.
(2) Subsections (3) to (5) apply where a person, the subject of a notice delivered under section 850 (2), has, within the notice period—
(a) notified the Director, in the prescribed manner, of his or her willingness to give a disqualification undertaking for the disqualification period, and
(b) returned to the Director the disqualification acceptance document duly signed.
(3) The Director shall, as soon as practicable—
(a) cause the Registrar to be furnished with the prescribed particulars of the disqualification undertaking at such time and in such form and manner as may be prescribed, and the Registrar shall enter the prescribed particulars in the register of persons kept under section 864 , and
(b) notify the person of the prescribed particulars of the disqualification undertaking furnished to the Registrar and provide the person with a copy of the disqualification acceptance document executed by or on behalf of the Director.
(4) After the expiry of the notice period, neither the Director nor any other person shall make an application under section 842 , arising from or in connection with the underlying facts and circumstances, in respect of the person who has given the disqualification undertaking.
(5) For the duration of the disqualification period beginning on the specified date, the person who has given the disqualification undertaking—
(a) shall not be appointed or act as a director or other officer, statutory auditor, receiver, liquidator or examiner or be in any way, whether directly or indirectly, concerned or take part in the promotion, formation or management of each of the following:
(i) any company within the meaning of section 819 (6);
(ii) any friendly society within the meaning of the Friendly Societies Acts 1896 to 2014;
(iii) any society registered under the Industrial and Provident Societies Acts 1893 to 2014;
and
(b) shall be deemed, for the purposes of this Act, to be subject to a disqualification order.
(6) The Director shall not exercise his or her power under section 850 (2) in relation to a person where—
(a) in the Director’s opinion, a period of disqualification, in relation to the person, that is longer than 5 years is warranted by the underlying facts and circumstances, or
(b) the Director is aware that an application under section 842 has already been made in respect of the person arising from or in connection with the underlying facts and circumstances.
(7) Where the person who has given the disqualification undertaking (the “immediate undertaking”) is already disqualified by virtue of an earlier disqualification undertaking or disqualification order, the period specified in the immediate undertaking shall run concurrently with the remaining period for which the person is already subject to disqualification.
(8) In this section—
(a) without prejudice to section 850 (5), “specified date” and “notice period” are to be read in accordance with section 850 (3)(c) and (d), respectively,
(b) “person”, “underlying facts and circumstances” and “disqualification period” are to be read in accordance with section 850 (2), (3)(a) and (3)(b), respectively.
Restriction undertaking — initiation of procedure
852. (1) In this section—
“notice period” shall be read in accordance with subsection (3)(c);
“person” shall be read in accordance with subsection (2);
“restriction period” means the period of 5 years, as mentioned in the definition of “restriction” in section 849 , for which the restrictions set out in that definition are to operate;
“specified date” shall be read in accordance with subsection (3)(b);
“underlying facts and circumstances” shall be read in accordance with subsection (3) (a).
(2) Subject to section 853 (6), where the Director has reasonable grounds for believing that a person falls within the description of the second-mentioned person in section 819 (1), namely a person who was a director of an insolvent company within the meaning of Chapter 3 (in this section referred to as the “person”), the Director may, in his or her discretion, deliver to the person, or to the person’s duly authorised agent, the following notice.
(3) That notice is a notice in the prescribed form stating—
(a) the circumstances, facts and allegations that have given rise to that belief of the Director, citing the provisions of section 819 (1) and section 818 (1) (and also, where appropriate, section 824 ) and stating particulars of those facts and allegations (and the circumstances so stated, and those facts and allegations, of which particulars are so stated, are referred to together in this section as the “underlying facts and circumstances”),
(b) the date (referred to in this section as the “specified date”) that will, subject to subsection (5), be the date of commencement of the restriction period, if a restriction undertaking is given by the person,
(c) that during—
(i) such period as may be specified in the notice (referred to in this section as the “notice period”), being a period beginning on a day falling not less than 21 days after the date of the notice and expressed to end immediately before the specified date; or
(ii) in the event of a request under subsection (5) by the person being acceded to, the notice period as extended under that subsection;
the person may—
(I) notify the Director, in the prescribed form, of his or her willingness to give a restriction undertaking; and
(II) return to the Director the restriction acceptance document duly signed;
(d) that during the notice period, or that period as so extended, the Director will refrain from making an application in respect of the person under section 819 arising from or in connection with the underlying facts and circumstances;
(e) that if the person, within the notice period or that period as so extended, does the things referred to in paragraph (c)(I) and (II), the Director shall not, after the expiry of that period, make an application in respect of the person under section 819 arising from or in connection with the underlying facts and circumstances.
(4) That notice shall also state—
(a) that the person may make a request, under subsection (5), for an extension of the notice period,
(b) the legal effect (for the person) of giving a restriction undertaking beginning on the specified date, and
(c) that if the person gives a restriction undertaking—
(i) the person may seek to be relieved (whether in whole or in part) from the undertaking only by applying to the court under section 822 , and
(ii) that, on the making of such an application, the court may grant such relief only if it considers it just and equitable to do so, and then only on the terms and conditions as it sees fit.
(5) Where a notice is delivered under subsection (2), the Director may, at any time before the specified date, on the request of the person, where the Director considers it appropriate to do so for the purposes of extending the notice period (and postponing the commencement of the restriction period in consequence), substitute a later date for the specified date and, where such a date is so substituted, references in section 853 —
(a) to the notice period shall be read as references to the notice period as extended in pursuance of this subsection, and
(b) to the specified date shall be read as references to the date that has been substituted for it in pursuance of this subsection.
Effect of delivery of notice under section 852 , giving of restriction undertaking on foot thereof and related matters
853. (1) Where a notice is delivered under section 852 (2), the Director and every person who is aware of the notice shall not, during the notice period, make an application under section 819 , arising from or in connection with the underlying facts and circumstances, in respect of the person who is the subject of the notice.
(2) Subsections (3) to (5) apply where a person, the subject of a notice delivered under section 852 (2), has, within the notice period—
(a) notified the Director, in the prescribed manner, of his or her willingness to give a restriction undertaking, and
(b) returned to the Director the restriction acceptance document duly signed.
(3) The Director shall, as soon as practicable—
(a) cause the Registrar to be furnished with the prescribed particulars of the restriction undertaking at such time and in such form and manner as may be prescribed, and the Registrar shall enter the prescribed particulars in the register of persons kept under section 823 , and
(b) notify the person of the prescribed particulars of the restriction undertaking furnished to the Registrar and provide the person with a copy of the restriction acceptance document executed by or on behalf of the Director.
(4) After the expiry of the notice period, neither the Director nor any other person shall make an application under section 819 , arising from or in connection with the underlying facts and circumstances, in respect of the person who has given the restriction undertaking.
(5) For the duration of the restriction period beginning on the specified date, the person who has given the restriction undertaking—
(a) shall not be appointed or act in any way, directly or indirectly, as a director or secretary of a company (within the meaning of section 819 (6)) or be concerned in or take part in the promotion or formation of a company (within that meaning) unless the company meets the requirements set out in section 819 (3), and
(b) shall be deemed, for the purposes of this Act, to be subject to a restriction declaration.
(6) The Director shall not exercise his or her power under section 852 (2) in relation to a person where the Director is aware that an application under section 819 has already been made in respect of the person arising from or in connection with the underlying facts and circumstances.
(7) Where the person who has given the restriction undertaking (the “immediate undertaking”) is already restricted by virtue of an earlier restriction undertaking or restriction declaration, the period specified in the immediate undertaking shall run concurrently with the remaining period for which the person is already subject to restriction.
(8) In this section—
(a) without prejudice to section 852 (5), “specified date” and “notice period” are to be read in accordance with section 852 (3)(b) and (c), respectively,
(b) “restriction period”, “person” and “underlying facts and circumstances” are to be read in accordance with section 852 (1), (2) and (3)(a), respectively.
Regulations for the purposes of sections 850 to 853
854. (1) The Minister shall make regulations requiring—
(a) that a document, in a form specified in the regulations, to be known as—
(i) in the case of sections 850 and 851 , a “disqualification acceptance document”; and
(ii) in the case of sections 852 and 853 , a “restriction acceptance document”;
(being the document by which the person to whom a notice delivered under section 850 (2) or 852 (2), as the case may be, relates signifies in writing (if such be the person’s decision) the person’s voluntary submission to disqualification or restriction, as appropriate, in accordance with this Chapter) shall be returned by the person within the relevant notice period to the Director; and
(b) that, on receipt of that document, the Director shall execute, or cause to be executed, on his or her part the document by the affixing of his or her seal to it.
(2) Regulations under subsection (1) may contain such consequential and supplemental provisions for the purposes of those regulations or for the purpose of giving further effect to sections 850 to 853 as the Minister thinks expedient, including—
(a) provision for particular procedures to be employed by the Director in relation to the delivery of a notice under section 850 (2) or 852 (2) or any communication between the Director and the person concerned or his or her duly authorised agent consequent on the delivery of such a notice (a “post-delivery-of notice communication”), and
(b) provision for a like privilege to legal professional privilege to attach to a post-delivery-of notice communication.
(3) This section is in addition to the powers under section 12 (1) to prescribe anything referred to in sections 850 to 853 as prescribed or to be prescribed.
The text in italics on this page is sourced from the Irish Statute Book and is re-published under the Licence for Re-Use of Public Sector Information made pursuant to Directive 2003/98/EC Directive 2013/37/EU of the European Parliament and of the Council on the re-use of public sector information transposed into Irish law by the European Communities (Re-Use of Public Sector Information) Regulations 2005 to 2015.