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Corporate vehicles available in Ireland

Paul Foley
A summary of the main corporate vehicles that can be created under the Irish Companies Act 2014

The Irish Companies Act 2014 (“Act”), which commenced in Ireland on the 1st of June 2015 has updated, much improved and consolidated prior Irish companies legislation originally as set out in the Companies Acts 1963 to 2013. The Act makes it easier to incorporate and to do business through a company in Ireland (approximately 90 % of existing private companies are private limited companies) and in the long term is expected to cut compliance costs, particularly for small and medium sized companies. 

Overview of the Act

The Act is structured to facilitate its use in relation to most common types of company. This is new and is explained and provided for in section 9 of the Act.  In brief the law applicable to a private company limited by shares (LTD) is set out in parts 1 to 14 of the Act, Part 15 applies to all companies. The law relating to the other types of company regulated by the Act, is set out in relevant sections in Parts 16 to 25 (including for designated activity companies (DACs), companies limited by guarantee (CLGs) and various forms of public companies whether limited or unlimited. Parts 1 to 14 apply to these corporate vehicles as well, save to the extent they are disapplied, modified or added to by provisions of the Act.  It should be noted that for companies that are authorised and regulated by the Central Bank of Ireland, extensive additional compliance obligations apply.

Main Types of companies that the Act allows for and regulates

A private company limited by shares (LTD) may be formed for any lawful purpose by any person or persons subscribing to a constitution and complying with the requirements of Part 2 of the Act as to registration of a company. The liability of a member of a company at any time shall be limited to the amount, if any, unpaid on the shares registered in the member's name at that time. This is without prejudice to any other liability to which a member may be subject as provided by this Act. The number of members of an LTD may not exceed 149 but, in reckoning that limit, there is disregarded any employee who is a member of it; a former employee who, was, while in that employment, and has continued after the termination of the employment to be, a member of it. Any registration of a person as a member of a company in excess of the limit provided for will be void.

This is the form of vehicle used by the vast majority of companies in Ireland.

Designated Activity Company or DAC is a company that, has either (a) the status of a private company limited by shares registered under Part 16 of the Act (as distinct from a private company limited by shares registered under Part 2 of the Act; or (b) the status of a private company limited by guarantee (which is regulated under Part 18 of the Act), and not having a share capital. A DAC may be formed for any lawful purpose by any person or persons subscribing to a constitution and complying with the relevant provisions referred to in section 96. Subject to subsection 967(3), the constitution of a DAC must be in the form of a memorandum of association and articles of association which together are referred to as a "constitution".  As regards the capacity of a DAC, section 972 states that a DAC shall have the capacity to do any act or thing stated in the objects set out in its memorandum. Parts 1 to 15 apply to a DAC formed under Part 16 of the Act save to the extent Parts 1 to 15 are amended or disapplied by Part 16. A DAC which is a company limited by guarantee is regulated by Part 18 of the Act and Parts 1 to 15 save to the extent Parts 1 to 15 are amended or disapplied by Parts 18.

Unlimited companies. Part 17 of the Act provides for three types of unlimited company and uniform words to be affixed to their respective names. Not set out here.

A company limited by guarantee (CLG) is defined in section 1172 of the Act as a company that does not have a share capital and which has the liability of its members limited by the Constitution to such amount (usually minimal) as the members may respectively undertake to contribute to the assets of the company in the event it is being wound up. The law applicable to a CLG  is that contained in Part 18 of the Act  save as disapplied modified or supplemented by Parts 1 to 14 of the Act. This is the vehicle used by Charities.

A public limited company or PLC is defined as a company limited by shares and having a share capital, being a company (a) the constitution of which states that the company is to be a public limited company; and (b)  in relation to which the provisions of the Act  as to the registration (or reregistration or registration under Part 20 or Part 22 of a body corporate) as a public limited company have been complied with. 

An investment company is defined as a company (not being a company to which the UCITS Regulations apply) that is (a)  a public limited company, the sole object of which is stated in its memorandum to be the collective investment of its funds in property with the aim of spreading investment risk and giving members of the company the benefit of the results of the management of its funds; and  (b)  the articles or memorandum of which provide : (i)  that the actual value of the paid up share capital of the company shall at all times be equal to the value of the assets of any kind of the company after the deduction of its liabilities; and (ii)  subject to subsection (2), that the shares of the company shall, at the request of any of the holders thereof, be purchased by the company directly or indirectly out of the company's assets.

An Societas Europaea, or an “SE”, where registered with the Registrar of Companies, is regarded as public limited company under Council Regulation EC 2157/2001 (on the Statute for a European Company (“SE Regulation”) and the European Communities (European Public Limited Liability Company) Regulations 2007. S.I.21/2007. It is subject to the laws applicable to public limited companies in Part 17 of the Act, but not the laws applicable to an investment company in Part 24 of the Act.

The essential idea behind the SE is the creation of a legal and corporate framework for companies which operate in more than one country within the European Economic Area (EEA), so that the need for such companies to comply with multiple regulatory requirements is obviated, and so that mergers between different types of company in two or more member States are facilitated[1]. A Societas Europaea or SE is required to have a minimum amount of subscribed share capital of at least EUR 120,000. No shareholder is liable for more than the amount subscribed.  The share capital must be expressed in Euro.

The European Cooperative Society (SCE)

The EU Regulation for an SCE parallels the Societas Europaea, or an “SE”,

"EC Regulation" means Council Regulation (EC) No. 1435/2003 of 22 July 2003 [OJ No. L207, 18.08.2003, p 01–24] on the Statute for a European Cooperative Society (SCE) and the Corrigendum thereto of 18 August 2003 [OJ No. L049, 17.02.2007, p 35] (the text of which, for convenience of reference, is set out in the Schedule to these Regulations) (Regulation for a SCE).

The SCE is an optional legal form of a cooperative. It aims to facilitate cooperatives' cross-border and trans-national activities. The members of an SCE cannot all be based in one country. The SCE is required to unite residents from more than one EU country.

[1]  The Law of Companies, Fourth Edition, by Thomas B Courtney Bloomsbury 2016 at par 31.293

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