The Gazette 1983

GAZETTE

SEPTEMBER1983 Companies (Amendment) Act, 1983 Part 1 by William Earley, Solicitor

T HE Companies (Amendment) Act, 1983 ("the Act") enacts into Irish law the provisions of the EEC Second Directive on Company Law ( 7 7 / 9 1 / EEC 1977. O.J. 126/1). The Directive regulates the formation of public companies and establishes minimum safeguards as to the subscription, maintenance and alteration of their capital. The Irish Legislature has, however, considered it worthwhile, in the interest of the development of company law generally, to apply many of the provisions of the Act to private companies as well as to the new class of public limited companies. The Act was brought into force on 13th October 1983 by the Companies (Amendment) Act, 1983 (Commence- ment) Order, 1983 (S. 1. No. 288 of 1983). This date is "the appointed day" for the purposes of the Act. On the same day the Companies (Forms) Order, 1983 (S. 1. No. 289 of 1983) laid down the new Companies Office forms necessitated by the Act. It is intended to devote two articles in the Gazette to the Act. This Article will deal with parts I and II of the Act, concerning preliminary matters and more importantly the name of a public limited company, and the registra- tion and re-registration of companies. The second article will deal with the balance of the Act dealing with the raising and maintenance of capital of a company, the new restrictions on distribution of profits and assets and with other miscellaneous matters. Part I — Preliminary Section 1 deals with the short title, collective citation and commencement of the Act. Section 2 is the interpretation section. It is here that we come across the first important difference between the Act and the corresponding legislation in the United Kingdom, the U.K. Companies Act, 1980; a difference which makes all U.K. textbooks and commentaries on the U.K. Act misleading in relation to the Irish Act. The U.K. Act introduced a general re-classification of cc npanies whereby the private company was made the residuary class and included all companies that had not been registered or re-registered as public companies. The Irish Act retains the existing basic classification structure and defines a public company as one which is not a private company. No new definition of private company is given and the definition contained in the Companies Act, 1963 applies. These Articles will refer back to other definitions contained in Section 2 as and when they arise in the Act. The provisions of the Act require some consequential amendments to the 1963 Act and these are effected by Section 3 and the First Schedule. Again, these changes will be referred to as and when they arise.

Part II —Name of Public Limited Company, Registration and Re-Registration of Companies "Public Limited Company" is defined in Section 2 of the Act as a public company limited by shares or a public company limited by guarantee and havinga share capital, being a company — (a) the memorandum of which states that the company is to be a public limited company; and (b) in relation to which the provisions of the Companies Acts as to the registration or re-registra- tion of a company as a public limited company have been complied with on or after the appointed day. Section 4 (1) of the Act provides that the name of a public limited company must end with the words "public limited company" or "cuideachta phoibli teoranta" which may be abbreviated to "p.I.e." or "c.p.t." respec- tively. Such words may not be preceded by "limited", "teoranta", "ltd." or "teo.". Section 4 (2), however, provides that a resolution for the re-registration of a company in accordance with Section 12 of the Act (see below) may change the name of the Company by deleting "company", "and company", "cuideachta", "agus cuideachta" or any abbreviation thereof and no change of name fee is payable in respect of such change of name. It should be noted that the change of name of a public limited company on re-registration likewise attracts no fee, whether or not the company is either an old public company or a private company. Appropriate amendments have been made to Section 6 (1) of the 1983 Act dealing with the requirements to be stated in the memorandum of a company regarding its name. The registration or re-registration of companies as public limited companies occurs in three main circumstances: (1) the registration on its original incorporation of a company as a public limited company; (2) the re-registration of a private company as a public limited company; (3) the re-registration of an old public limited company as a public limited company. The Act also provides for the re-registration of unlimited companies (Section 11) and joint stock companies (Section 18) as public limited companies. (1) Registration on original incorporation If a company is registered as a public limited company on its original incorporation, section 6 of the Act requires 241