Company Law Enforcement Act, 2001

Company Law Enforcement Act, 2001 Skip to content Disclaimer Feedback Helpdesk Gaeilge Léim go dtí an t-ábhar Séanadh Aiseolas Deasc chabhrach English Gaeilge English Produced by the Office of the Attorney General Táirgthe ag Oifig an Ard-Aighne Home Legislation Acts of the Oireachtas Statutory Instruments Pre-1922 Legislation Constitution External Resources Bills (Houses of the Oireachtas) Iris Oifigiúil / Official Gazette Revised Acts (LRC) Classified List of Legislation (LRC) Translations (acts.ie) Translations (Houses of the Oireachtas) Government Publications for Sale EU Law (EUR-Lex) FAQ Disclaimer Feedback Helpdesk Search Baile Reachtaíocht Achtanna an Oireachtais Ionstraimí Reachtúla Reachtaíocht Réamh-1922 Bunreacht Acmhainní Seachtracha Billí (Tithe an Oireachtais) Iris Oifigiúil Achtanna Athbhreithnithe (CAD) (An Coimisiún um Athchóiriú an Dlí) Liosta Rangaithe Reachtaíochta Aistriúcháin (achtanna.ie) Aistriúcháin (Tithe an Oireachtais) Foilseacháin Rialtais ar Díol Dlí AE (EUR-Lex) CCanna (Ceisteanna Coitianta) Séanadh Aiseolas Deasc chabhrach Cuardach TitleTeideal Year(s) or rangeBliain nó blianta nó raon TypeCineál All Legislation Acts Statutory Instruments Advanced SearchCuardach Casta HomeBaile ActsAchtanna 2001 Company Law Enforcement Act, 2001 Company Law Enforcement Act, 2001 Permanent Page URL View by SectionAmharc de réir Ailt View Full ActAmharc ar an Acht Iomlán Bill History Stair Bille Commencement, Amendments, SIs made under the Act Tosach Feidhme, Leasuithe, IRí arna ndéanamh faoin Acht Open PDFOscail PDF Print Full ActPriontáil an tAcht Iomlán Number 28 of 2001 COMPANY LAW ENFORCEMENT ACT, 2001 ARRANGEMENT OF SECTIONS PART 1 Preliminary and General Section 1. Short title, collective citation and construction. 2. Commencement. 3. Interpretation. 4. Regulations. 5. Laying of regulations and orders before Houses of the Oireachtas and power to revoke or amend orders. 6. Expenses of Minister. PART 2 Director of Corporate Enforcement Director 7. Director of Corporate Enforcement. 8. Terms and conditions of appointment of Director. 9. Superannuation. 10. Removal, disqualification or cessation of Director. Acting Director 11. Acting Director of Corporate Enforcement. Functions of Director 12. Functions of Director. 13. Delegation. Transfer of Minister's Functions to Director 14. Transfer of functions. General 15. Director or officer of Director indemnified against losses. 16. Reporting by Director. 17. Disclosure of information. 18. Information relating to offences under Companies Acts may be disclosed to Director or officer of Director. PART 3 Investigations 19. Amendment of section 145 of Act of 1963. 20. Amendment of section 7 of Act of 1990. 21. Amendment of section 8 of Act of 1990 — Investigation of company's affairs on application of Director. 22. Amendment of section 9 of Act of 1990. 23. Amendment of section 10 of Act of 1990. 24. Amendment of section 11 of Act of 1990. 25. Amendment of section 13 of Act of 1990. 26. Amendment of section 14 of Act of 1990. 27. Amendment of section 16 of Act of 1990. 28. Amendment of section 18 of Act of 1990. 29. Repeal and substitution of section 19 of Act of 1990 — Power of Director to require production of documents. 30. Repeal and substitution of section 20 of Act of 1990. 31. Amendment of section 21 of Act of 1990. 32. Amendment of section 23 of Act of 1990. 33. New section 23A of Act of 1990 — Assistance to overseas company law authorities. 34. Examination of books and documents of certain companies to be continued by Minister or authorised officer. 35. Amendment of section 79 of Act of 1990. 36. Amendment of section 92 of Act of 1990 — Duty of relevant authority to report to Director. 37. Amendment of section 115 of Act of 1990. 38. Amendment of section 118 of Act of 1990. 39. Amendment of section 230 of Act of 1990. PART 4 Restrictions and Disqualifications 40. New section 183A of Act of 1963 — Examination as to solvency status. 41. Amendment of section 150 of Act of 1990. 42. Amendment of section 160 of Act of 1990. PART 5 Winding-up and Insolvency 43. Amendment of section 243 of Act of 1963 — Inspection of books by creditors, contributories and Director. 44. Amendment of section 245 of Act of 1963. 45. Amendment of section 245A of Act of 1963. 46. Repeal and substitution of section 247 of Act of 1963 — Power to arrest absconding contributory or officer of company. 47. Amendment of section 267 of Act of 1963. 48. Amendment of section 278 of Act of 1963. 49. New sections 282A to 282D of Act of 1963. 50. Amendment of section 298 of Act of 1963. 51. Amendment of section 299 of Act of 1963. 52. Amendment of section 319 of Act of 1963. 53. New section 323A of Act of 1963 — Director may request production of receiver's books. 54. Amendment of section 251 of Act of 1990. 55. Order to restrain directors and others from moving assets. 56. Liquidator to report on conduct of directors. 57. Director's power to examine liquidator's books. 58. Reporting to Director of misconduct by liquidators or receivers. PART 6 Measures to Improve Compliance with Filing Obligations 59. Repeal of sections 125 and 126 of Act of 1963 and substitution of section 125 — Annual return. 60. Repeal and substitution of section 127 of Act of 1963 — Annual return date. 61. Amendment of section 153 of Act of 1963 — Financial year and annual return date of holding company and subsidiary. 62. Amendment of section 370 of Act of 1963. 63. Amendment of section 395 of Act of 1963 and repeal of Fifth Schedule. 64. Amendment of section 7 of Companies (Amendment) Act, 1986. 65. Amendment of section 17(1) of Companies (Amendment) Act, 1986. 66. Special provisions applying where default in delivery of documents to registrar of companies. PART 7 Company Law Review Group 67. Establishment of Company Law Review Group. 68. Functions of Review Group. 69. Membership of Review Group. 70. Meetings and business of Review Group. 71. Annual Report and provision of information to Minister. PART 8 Auditors 72. Amendment of section 187 of Act of 1990. 73. Amendment of section 192 of Act of 1990. 74. Amendment of section 194 of Act of 1990 — Duty of auditors if proper books of account not being kept or other offences suspected. PART 9 Transactions Involving Directors 75. Amendment of section 25 of Act of 1990. 76. Amendment of section 26 of Act of 1990. 77. Amendment of section 33 of Act of 1990. 78. Repeal and substitution of section 34 of Act of 1990 — Exceptions to section 31 in certain circumstances. 79. Amendment of section 35 of Act of 1990 — Inter-company transactions in the same group. PART 10 Miscellaneous 80. Reference Memoranda and Articles of Association. 81. Amendment of section 7 of Act of 1963. 82. Amendment of section 14 of Act of 1963. 83. Amendment of section 17 of Act of 1963. 84. Amendment of section 2 of Act of 1963. 85. Amendment of section 10 of Act of 1963. 86. Amendment of section 21 of Act of 1963. 87. Amendment of section 23 of Act of 1963. 88. Repeal and substitution of section 24 of Act of 1963. 89. Amendment of section 60 of Act of 1963. 90. Amendment of section 158 of Act of 1963. 91. Amendment of section 195 of Act of 1963. 92. Amendment of section 201 of Act of 1963. 93. Amendment of section 213 of Act of 1963. 94. Amendment of section 215 of Act of 1963. 95. Amendment of section 334 of Act of 1963. 96. Amendment of section 371 of Act of 1963. 97. New section 371A of Act of 1963 — Power to compel compliance with requirement made under section 19(3)(b) of Act of 1990. 98. Repeal and substitution of section 381 of Act of 1963 — Improper use of “limited” or “teoranta”. 99. Amendment of section 392 of Act of 1963. 100. Repeal and substitution of section 383 of Act of 1963. 101. New section 3A of Companies (Amendment) Act, 1982 — Additional statement to be delivered to registrar. 102. Amendment of section 30 of Act of 1990. 103. Amendment of section 110 of Act of 1990. 104. Amendment of section 240 of Act of 1990. 105. New section 240A of Act of 1990 — Court in which proceedings for certain offences may be brought. 106. Amendment of section 242 of Act of 1990. 107. New section 249A of Act of 1990 — Power to reject documents sent for registration and amendments consequential on that section's insertion. 108. Amendment of section 258 of Act of 1990. 109. Notice by Director of intention to prosecute. 110. Provision of information to juries. 111. Non-application of certain provisions concerning acquisition by subsidiary of shares in its holding company. 112. Amendment of Freedom of Information Act, 1997. 113. Amendment of section 7A of Bankers' Books Evidence Act, 1879. 114. Amendment of section 9 of Consumer Information Act, 1978. SCHEDULE Transfer of Functions from Minister to Director Acts Referred to Bankers' Books Evidence Act, 1879 43 & 44 Vict., c. 11 Central Bank Act, 1989 1989, No. 16 Civil Service Commissioners Act, 1956 1956, No. 45 Civil Service Regulation Act, 1956 1956, No. 46 Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997 1997, No. 17 Companies Act, 1963 1963, No. 33 Companies Act, 1990 1990, No. 33 Companies Acts, 1963 to 1999 Companies (Amendment) Act, 1982 1982, No. 10 Companies (Amendment) Act, 1986 1986, No. 25 Consumer Credit Act, 1995 1995, No. 24 Consumer Information Act, 1978 1978, No. 1 Courts Act, 1971 1971, No. 36 European Communities Act, 1972 1972, No. 27 European Parliament Elections Act, 1997 1997, No. 2 Freedom of Information Act, 1997 1997, No. 13 Insurance Acts, 1909 to 2000 Irish Takeover Panel Act, 1997 1997, No. 5 Partnership Act, 1890 53 & 54 Vict., c. 93 Stock Exchange Act, 1995 1995, No. 9 Taxes Consolidation Act, 1997 1997, No. 39 Number 28 of 2001 COMPANY LAW ENFORCEMENT ACT, 2001 AN ACT TO ESTABLISH A DIRECTOR OF CORPORATE ENFORCEMENT AND PROVIDE FOR HIS OR HER APPOINTMENT, TERMS AND CONDITIONS AND FUNCTIONS, TO PROVIDE FOR AN ACTING DIRECTOR TO PERFORM THE FUNCTIONS OF THE DIRECTOR DURING EXIGENCIES, TO TRANSFER EXISTING FUNCTIONS OF THE MINISTER RELATING TO THE ENFORCEMENT OF THE COMPANIES ACTS TO THE DIRECTOR, TO ESTABLISH A COMPANY LAW REVIEW GROUP TO MONITOR, REVIEW AND ADVISE THE MINISTER ON MATTERS RELATING TO COMPANY LAW, TO AMEND IN VARIOUS WAYS THE COMPANIES ACT, 1963, THE COMPANIES ACT, 1990, AND VARIOUS OTHER ACTS, AND FOR RELATED PURPOSES. [9th July, 2001] BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS: PART 1 Preliminary and General Short title, collective citation and construction. 1.—(1) This Act may be cited as the Company Law Enforcement Act, 2001. (2) This Act and the Companies Acts, 1963 to 1999, may be cited together as the Companies Acts, 1963 to 2001, and shall be construed together as one Act. Commencement. 2.—This Act shall come into operation on such day or days as may be fixed by order or orders made by the Minister, either generally or with reference to any particular provision, and different days may be so fixed for different purposes and different provisions of this Act. Interpretation. 3.—(1) In this Act, unless the context otherwise requires— “Act of 1963” means the Companies Act, 1963 ; “Act of 1990” means the Companies Act, 1990 ; “Acting Director” means a person appointed under section 11 as the Acting Director of Corporate Enforcement; “Companies Acts” means the Companies Act, 1963 , and every enactment (including this Act) which is to be construed as one with that Act; “Director” means the Director of Corporate Enforcement appointed under section 7 (2) and includes an Acting Director while so acting and, in relation to a particular power of the Director, a delegate to whom the power is delegated under section 13 ; “functions” includes powers and duties; “Minister” means the Minister for Enterprise, Trade and Employment; “officer of the Director” means— (a) an officer of the Minister assigned to the Director, (b) a member of An Garda Síochána seconded to the Director, or (c) a person employed by the Minister or the Director under a contract for service or otherwise, to assist the Director in carrying out functions of the Director under the Companies Acts or any other Act; “prescribed” means prescribed by regulations made by the Minister; “Review Group” means the Company Law Review Group established by section 67 . (2) In this Act— (a) a reference to a Part, section or Schedule is a reference to a Part or section of, or Schedule to, this Act, unless it is indicated that reference to some other enactment is intended; (b) a reference to a subsection, paragraph or subparagraph is to the subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended; and (c) a reference to any other enactment shall, unless the context otherwise requires, be construed as a reference to that enactment as amended by or under any other enactment, including this Act. Regulations. 4.—(1) The Minister may make regulations prescribing any matter or thing referred to in this Act as prescribed or to be prescribed, or in relation to any matter referred to in this Act as the subject of regulation. (2) Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations or for giving full effect to this Act. Laying of regulations and orders before Houses of the Oireachtas and power to revoke or amend orders. 5.—(1) Every regulation or order (other than an order made under section 2 ) made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation or order is passed by either House within the next 21 days on which that House has sat after the regulation or order is laid before it, the regulation or order shall be annulled accordingly but without prejudice to the validity of anything previously done under it. (2) The Minister may by order revoke or amend an order (other than an order made under section 2 ) made under this Act (including an order under this subsection). Expenses of Minister. 6.—The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas. PART 2 Director of Corporate Enforcement Director Director of Corporate Enforcement. 7.—(1) There shall be a Director of Corporate Enforcement. (2) The Minister shall, in writing, appoint a person to be the Director of Corporate Enforcement. (3) The Minister shall not appoint a person to be the Director unless the Civil Service Commissioners, after holding a competition under section 15 of the Civil Service Commissioners Act, 1956 , have, under section 17 of that Act, selected the person for appointment and advised the Minister accordingly. (4) The Director shall be a corporation sole and, notwithstanding any casual vacancy in the office from time to time, shall have perpetual succession and shall be capable in his or her corporate name of holding and disposing of real or personal property and of suing and being sued. (5) The Director shall perform the functions conferred on him or her by or under this or any other Act and shall be assisted in the performance of those functions by the officers of the Director. (6) All judges, courts or other persons or bodies acting judicially shall take judicial notice of the signature of the Director on or affixed to any document and it shall be presumed, unless the contrary is proved, that it has been duly signed or affixed. Terms and conditions of appointment of Director. 8.—(1) Subject to subsection (2), a person appointed to be the Director shall hold office for such period not exceeding 5 years beginning on the date of his or her appointment, and on such terms and conditions (which shall include a scheme of superannuation under section 9 ), as the Minister, with the consent of the Minister for Finance, may determine, and the Minister may, if he or she thinks fit, with the consent of the Minister for Finance, continue the appointment (including an appointment previously continued under this subsection) for such further period, not exceeding 5 years at any one time, as the Minister thinks appropriate. (2) A person appointed as the Director is, by virtue of the appointment, a civil servant within the meaning of the Civil Service Regulation Act, 1956 , as amended. (3) The Director shall not hold any other office or employment in respect of which emoluments are payable. Superannuation. 9.—(1) The Minister shall, with the consent of the Minister for Finance, if he or she considers it appropriate to do so, make and carry out a scheme or schemes for the granting of superannuation benefits to or in respect of one or more of the following, namely, the Director, the Acting Director and any officer of the Director. (2) Every such scheme shall fix the time and conditions of retirement for the person or persons to or in respect of whom superannuation benefits are payable under the scheme, and different times and conditions may be fixed in respect of different classes of such person. (3) Every such scheme may be amended or revoked by a subsequent scheme made under this section with the consent of the Minister for Finance. (4) No superannuation benefit shall be granted by the Minister to or in respect of the Director, the Acting Director or an officer of the Director otherwise than in accordance with a scheme under this section or, if the Minister, with the consent of the Minister for Finance, sanctions the granting of such a benefit, in accordance with that sanction. (5) If any dispute arises as to the claim of any person to, or the amount of, any superannuation benefit payable in pursuance of a scheme or scheme under this section, such dispute shall be submitted to the Minister who shall refer it to the Minister for Finance, whose decision shall be final. (6) A scheme under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the scheme is passed by either such House within the next 21 days on which that House has sat after the scheme is laid before it, the scheme shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder. (7) In this section, “superannuation benefits” means pensions, gratuities and other allowances payable on resignation, retirement or death. Removal, disqualification or cessation of Director. 10.—(1) The Minister may at any time, for stated reasons, remove the Director from office. (2) If the Director is removed from office under this section, the Minister shall cause to be laid before each House of the Oireachtas a statement of the reasons for the removal. (3) Where the Director is— (a) nominated as a member of Seanad Éireann, (b) nominated as a candidate for election to either House of the Oireachtas or to the European Parliament or becomes a member of a local authority, or (c) regarded pursuant to Part XIII of the Second Schedule to the European Parliament Elections Act, 1997 , as having been elected to the European Parliament, he or she shall thereon cease to be the Director. (4) A person who is for the time being— (a) entitled under the Standing Orders of either House of the Oireachtas to sit in that House, (b) a member of the European Parliament, or (c) a member of a local authority, is, while he or she is so entitled or is such a member, disqualified from being the Director. Acting Director Acting Director of Corporate Enforcement. 11.—(1) Subject to subsection (2), the Minister may appoint a person to be the Acting Director of Corporate Enforcement to perform the functions of the Director during— (a) a period, or during all periods, when the Director is absent from duty or from the State or is, for any other reason, unable to perform the functions of the Director. (b) any suspension from office of the Director, or (c) a vacancy in the office of Director. (2) A person shall not be appointed to perform the functions of the Director for a continuous period of more than 6 months during a vacancy in the office of Director. (3) The Minister may, at any time, terminate an appointment under this section. Functions of Director Functions of Director. 12.—(1) The functions of the Director are— (a) to enforce the Companies Acts, including by the prosecution of offences by way of summary proceedings, (b) to encourage compliance with the Companies Acts, (c) to investigate instances of suspected offences under the Companies Acts, (d) at his or her discretion, to refer cases to the Director of Public Prosecutions where the Director of Corporate Enforcement has reasonable grounds for believing that an indictable offence under the Companies Acts has been committed, (e) to exercise, insofar as the Director feels it necessary or appropriate, a supervisory role over the activity of liquidators and receivers in the discharge of their functions under the Companies Acts, (f) for the purpose of ensuring the effective application and enforcement of obligations, standards and procedures to which companies and their officers are subject, to perform such other functions in respect of any matters to which the Companies Acts relate as the Minister considers appropriate and may by order confer on the Director, and (g) to perform such other functions for a purpose referred to in paragraph (f) as may be assigned to him or her by or under the Companies Acts or any other Act. (2) The Director may do all such acts or things as are necessary or expedient for the purpose of the performance of his or her functions under this or any other Act. (3) Notwithstanding that he or she has been so seconded but without prejudice to subsections (5) and (6), a member of the Garda Síochána seconded to the office of the Director shall continue to be under the general direction and control of the Commissioner of the Garda Síochána. (4) A member of the Garda Síochána so seconded shall continue to be vested with and may exercise or perform the powers or duties of a member of the Garda Síochána for purposes other than the purposes of this Act, as well as for the purposes of this Act. (5) The Director shall be independent in the performance of his or her functions. (6) The Director may perform such of his or her functions as he or she thinks fit through or by an officer of the Director and in the performance of those functions the officer shall be subject to the directions of the Director only. Delegation. 13.—(1) Without prejudice to the generality of section 12 (6), the Director may, in writing, delegate to an officer of the Director any of the Director's powers under this or any other Act, except this power of delegation. (2) A power delegated under subsection (1) shall not be exercised by the delegate except in accordance with the instrument of delegation. (3) A delegate shall, on request by a person affected by the exercise of a power delegated to him or her, produce the instrument of delegation under this section, or a copy of the instrument, for inspection. (4) A delegation under this section is revocable at will and does not prevent the exercise by the Director of a power so delegated. Transfer of Minister's Functions to Director Transfer of functions. 14.—(1) Each subsection mentioned in column (3) of the sections mentioned in column (2) opposite to those subsections of the Acts mentioned in the headings to Parts 1 and 2 of the Schedule, is amended by the substitution for “Minister”, wherever occurring, of “Director”. (2) Where, before its relevant amendment, anything was commenced under a provision of the Companies Acts by or under the authority of the Minister, it may be carried on or completed on or after that amendment by or under the authority of the Director. (3) A person authorised by the Minister under a relevantly amended provision shall be regarded as having been so authorised by the Director under the provision as relevantly amended. (4) Where, before its relevant amendment, legal proceedings were pending under a provision of the Companies Acts to which the Minister is or was then the plaintiff or the prosecutor, the name of the Director shall be substituted in those proceedings for that of the Minister, or added in those proceedings as may be appropriate, and those proceedings shall not abate by reason of that substitution or addition. (5) To avoid doubt, where, immediately before its relevant amendment, legal proceedings were pending under a provision of the Companies Acts as then in force in which the Minister was a defendant, the Director shall not be substituted for the Minister in those proceedings notwithstanding the amendment of that provision. (6) In this section, “relevant amendment”, in relation to a provision of the Companies Acts, means an amendment by this or any other section of this Act which comprises or includes the substitution for “Minister” of “Director” (including the substitution of an entire provision or part of a provision which has the effect of transferring a function from the Minister to the Director), and “relevantly amended” has a corresponding meaning. General Director or officer of Director indemnified against losses. 15.—Neither the Director nor any officer of the Director shall be liable in damages in respect of any thing done or omitted to be done in good faith by him or her in the performance or purported performance of a function under the Companies Acts or any other Act. Reporting by Director. 16.—(1) The Director shall, not later than 3 months after the end of each year, present a report to the Minister about the performance of the Director's functions and other activities of the Director in that year, and the Minister shall cause a copy of the report to be laid before each House of the Oireachtas within 2 months of receipt of the report. (2) A report under subsection (1) shall include information in such form and about such matters as the Minister may direct but nothing in that or this subsection shall be construed as requiring the Director to include in such a report information the inclusion of which therein would, in the opinion of the Director, be likely to prejudice the performance by him or her of any of his or her functions. (3) The Director shall furnish to the Minister such information about the performance of the Director's functions as the Minister may from time to time require (other than information the provision of which under this subsection would, in the opinion of the Director, be likely to prejudice the performance by him or her of any of his or her functions). (4) When so requested, the Director shall account to an appropriately established Committee of either House of the Oireachtas for the performance of his or her functions but in discharging his or her duties under this subsection the Director shall not be required to furnish any information or answer any questions the furnishing or answering of which would, in the opinion of the Director, be likely to prejudice the performance by him or her of any of his or her functions. Disclosure of information. 17.—(1) Information obtained by virtue of the performance by the Director of any of his or her functions which has not otherwise come to the notice of the public, shall not be disclosed, except in accordance with law, by any person, including— (a) the Director or a former Director, (b) a professional or other adviser (including a former adviser) to the Director, and (c) an officer or former officer of the Director. (2) Notwithstanding subsection (1), information referred to in that subsection which, in the opinion of the Director, may be required— (a) for a purpose or reason specified in subsection (1) of section 21 of the Act of 1990, (b) for the performance by a competent authority (within the meaning of that section 21) of a function or functions of the authority, or (c) for the performance by the Director of a function or functions of the Director, may be disclosed by or under the authority of the Director to the extent that, in the opinion of the Director, is necessary for that purpose. (3) Notwithstanding subsection (1), information which, in the opinion of the Director or an officer of the Director, may relate to the commission of an offence which is not an offence under the Companies Acts may be disclosed to any member of An Garda Síochána. (4) A person who contravenes this section is guilty of an offence. Information relating to offences under Companies Acts may be disclosed to Director or officer of Director. 18.—Notwithstanding any other law, information which, in the opinion of the Competition Authority or a member of An Garda Síochána or an officer of the Revenue Commissioners, may relate to the commission of an offence under the Companies Acts may be disclosed by that Authority, member or officer to the Director or an officer of the Director. PART 3 Investigations Amendment of section 145 of Act of 1963. 19.—Section 145 of the Act of 1963 is amended— (a) by the insertion of the following after subsection (3): “(3A) A company shall, if required by the Director, produce to the Director for inspection the book or books kept in accordance with subsection (1) and shall give to the Director such facilities for inspecting and taking copies of the contents of the book or books as the Director may require.”, and (b) in subsection (4), by the insertion after “subsection (1)” of “or (3A)”. Amendment of section 7 of Act of 1990. 20.—Section 7(3) of the Act of 1990 is amended by the substitution for “£500” and “£100,000” of “£5,000” and “£250,000” respectively. Amendment of section 8 of Act of 1990 — Investigation of company's affairs on application of Director. 21.—Section 8(1) of the Act of 1990 is amended by the substitution for “on the application of the Minister appoint one or more competent inspectors” of “on the application of the Director appoint one or more competent inspectors (who may be or include an officer or officers of the Director)”. Amendment of section 9 of Act of 1990. 22.—Section 9 of the Act of 1990 is amended— (a) by the substitution for “If an inspector” of “(1) If an inspector”, and (b) by the insertion after subsection (1) of the following: “(2) For the purposes of this section, a body corporate which is related to a company includes a body corporate with which the company has a commercial relationship, and a commercial relationship exists where goods or services are sold or given by one party to another.”. Amendment of section 10 of Act of 1990. 23.—Section 10 of the Act of 1990 is amended— (a) in subsection (1), by the insertion after “reasonably able to give” of “; but where any such person claims a lien on books or documents produced by the person, the production shall be without prejudice to the lien”, (b) in subsection (2), by the insertion after “comply with the requirement” of “; but where any such person claims a lien on books or documents produced by the person, the production shall be without prejudice to the lien”, (c) by the substitution of the following for subsections (5) and (6): “(5) If an officer or agent of the company or other body corporate, or any such person as is mentioned in subsection (2), refuses or fails within a reasonable time to— (a) produce to the inspectors any book or document which it is his duty under this section so to produce, (b) attend before the inspectors when required so to do, or (c) answer a question put to him by the inspectors with respect to the affairs of the company or other body corporate as the case may be, the inspectors may certify the refusal or failure under their hand to the court, and the court may thereupon enquire into the case and, after hearing any witnesses who may be produced against or on behalf of the person alleged to have so refused or failed and any statement which may be offered in defence, make any order or direction it thinks fit. (6) Without prejudice to the generality of subsection (5), the court may, after a hearing under that subsection, direct— (a) the person concerned to attend or re-attend before the inspectors or produce particular books or documents or answer particular questions put to him by the inspectors, or (b) that the person concerned need not produce a particular book or document or answer a particular question put to him by the inspectors.”, and (d) in subsection (7), by the insertion after “auditors,” of “accountants, book-keepers or taxation advisors,”. Amendment of section 11 of Act of 1990. 24.—(1) Section 11(3) of the Act of 1990 is amended— (a) by the deletion from the end of paragraph (b)(vi) of “and”, and (b) by the insertion after paragraph (b) of the following: “(ba) furnish a copy to— (i) an appropriate authority in relation to any of the matters referred to in section 21(1)(a) to (fb); or (ii) a competent authority as defined in section 21(3)(a) to (i); and”. (2) Section 11(4) of the Act of 1990 is amended by the substitution for “subsection (3)(a) or (b)” of “subsection (3)(a), (b) or (ba)”. Amendment of section 13 of Act of 1990. 25.—Section 13 of the Act of 1990 is amended— (a) by the substitution for “Minister for Justice” (wherever occurring) of “relevant Minister”, (b) in subsection (1), by the substitution for “£100,000” of “£250,000”, and (c) by the insertion of the following after subsection (3): “(3A) In this section ‘relevant Minister' means— (a) in case the inspector or inspectors concerned was or were appointed under section 7, the Minister for Justice, Equality and Law Reform, and (b) in case the inspector or inspectors concerned was or were appointed under section 8, the Minister.”. Amendment of section 14 of Act of 1990. 26.—Section 14 of the Act of 1990 is amended by the insertion of the following after subsection (5): “(6) The court may, on the application of the Director, direct that a company the subject of an investigation under this section shall be liable, to such extent as the court may direct, to repay the Director the expenses of and incidental to the investigation. (7) Without prejudice to subsection (6) but subject to subsection (8), a person— (a) convicted on indictment of an offence on a prosecution instituted, (b) ordered to pay damages or restore any property in proceedings brought, or (c) awarded damages or to whom property is restored in proceedings brought, as a result of an investigation under this section may, in the same proceedings, be ordered to repay the Director all or part of the expenses referred to in subsection (6). (8) The court shall not order a person to whom subsection (7)(c) relates to make payment in excess of one-tenth of the amount of the damages awarded or of the value of the property restored, as the case may be, and any such order shall not be executed until the person concerned has received his damages or the property has been restored.”. Amendment of section 16 of Act of 1990. 27.—Section 16 of the Act of 1990 is amended— (a) in subsection (2)(d), by the deletion of “except in a liquidation,”, (b) in subsection (4), by the deletion of “(otherwise than in a liquidation)”, (c) in subsection (6), by the substitution of the following for paragraphs (a) and (b): “(a) in the case of an order by the court, the court is satisfied that the relevant facts about the shares have been disclosed to the company or, as the case requires, to the Director, or that it is otherwise equitable to lift the restrictions; (b) in the case of a direction of the Director, the Director is satisfied that the relevant facts about the shares have been disclosed to him; or (c) the shares are to be sold and the court or the Director approves the sale.”, and (d) in subsection (7), by the insertion after “or the company” of “, having given notice to the Director,”. Amendment of section 18 of Act of 1990. 28.—Section 18 of the Act of 1990 is amended— (a) by the substitution for “An answer given by a person” of “(1) An answer given by an individual”, (b) by the deletion of all the words from “, and a statement required” down to and including “making it.” and the substitution of “in any proceedings whatsoever (save proceedings for an offence (other than perjury in respect of such an answer)).”, and (c) by the insertion of the following subsection: “(2) A statement required by section 224 of the Principal Act may, in any proceedings whatsoever (save proceedings for an offence (other than perjury in respect of any matter contained in the statement)), be used in evidence against any individual making or concurring in making it.”. Repeal and substitution of section 19 of Act of 1990 — Power of Director to require production of documents. 29.—Section 19 of the Act of 1990 is repealed and the following substituted: “19.—(1) The Director may, subject to subsection (2), give directions to any body being— (a) a company formed and registered under the Companies Acts; (b) an existing company within the meaning of those Acts; (c) a company to which the Principal Act applies by virtue of section 325 thereof or which is registered under that Act by virtue of Part IX thereof; (d) a body corporate incorporated in, and having a principal place of business in, the State, being a body to which any of the provisions of the said Act with respect to prospectuses and allotments apply by virtue of section 377 of that Act; (e) a body corporate incorporated outside the State which is carrying on business in the State or has at any time carried on business therein; (f) any other body, whether incorporated or not, which is, or appears to the Director to be, an insurance undertaking to which the Insurance Acts, 1909 to 2000, or regulations on insurance made under the European Communities Act, 1972 , would apply, requiring the body, at such time and place as may be specified in the directions, to produce such books or documents as may be so specified. (2) Directions may be given by the Director if he is of the opinion that there are circumstances suggesting that— (a) it is necessary to examine the books and documents of the body with a view to determining whether an inspector should be appointed to conduct an investigation of the body under the Companies Acts; (b) the affairs of the body are being or have been conducted with intent to defraud— (i) its creditors, (ii) the creditors of any other person, or (iii) its members; (c) the affairs of the body are being or have been conducted for a fraudulent purpose other than described in paragraph (b); (d) the affairs of the body are being or have been conducted in a manner which is unfairly prejudicial to some part of its members; (e) any actual or proposed act or omission or series of acts or omissions of the body or on behalf of the body are or would be unfairly prejudicial to some part of its members; (f) any actual or proposed act or omission or series of acts or omissions of the body or on behalf of the body or by an officer of the body acting in his capacity as such officer are or are likely to be unlawful; (g) the body was formed for any fraudulent purpose; (h) the body was formed for any unlawful purpose; or (i) the body may be in possession of books or documents containing information relating to the books or documents of a body which comes within the terms of one or more of paragraphs (a) to (h). (3) Where by virtue of subsection (1) the Director has power to require the production of any books or documents from any body, the Director shall have the like power to require production of those books or documents from any person who appears to the Director to be in possession of them or to be in possession of— (a) other books or documents which may constitute copies of any books or documents of the body, (b) subject to subsection (4), other books or documents which may relate to any books or documents of the body, but where any such person claims a lien on books or documents produced by him, the production shall be without prejudice to the lien. (4) The power under subsection (3)(b) shall not be exercised unless— (a) in the opinion of the Director, there are reasonable grounds for believing the first and second-mentioned books or documents in subsection (3)(b) are related to one another (and those grounds may include grounds related to the relationship between the body and the person of whom the requirement under subsection (3)(b) is proposed to be made, a common origin of some or all of the information contained in the said books or documents or similar considerations), and (b) save where the Director is of opinion that compliance with this paragraph could result in the concealment, falsification, destruction or the disposal otherwise of the books or documents concerned, the Director notifies the person of whom the requirement under subsection (3)(b) is proposed to be made (‘the third party’) that the Director proposes to make that requirement and states in that notification the grounds for his opinion under paragraph (a) and that the third party may (if such is his contention) make submissions to the Director, within 21 days from the date of the making of the notification, as to why he believes the said opinion of the Director to be erroneous (and the Director shall have regard to any such submissions so made before finally deciding whether to make the said requirement or not), but in no case shall the third party be obliged to comply with such a requirement in relation to a particular book or document concerned if he would be entitled, by virtue of any rule of law or enactment, to refuse to produce, in any proceedings, the book or document on the ground of any privilege (whether the privilege to which section 23 applies or not). (5) Any power conferred by or by virtue of this section to require a body or other person to produce books or documents shall include power— (a) if the books or documents are produced— (i) to take copies of them or extracts from them, and (ii) to require that person, or any other person who is a present or past officer of, or is or was at any time employed (including in a professional, consultancy or similar capacity) by, the body in question, to provide, insofar as the person may be reasonably able so to do, an explanation of any of them, including an explanation of any apparent omissions from them or any omission of any book or document, and (b) if the books or documents are not produced, to require the person who was required to produce them to state, to the best of his knowledge and belief, where they are, and in either event to give all assistance to the Director as the body or person is reasonably able to give in connection with an examination or proposed examination of books or documents under this section. (6) If a requirement to produce books or documents or provide an explanation or make a statement which is imposed by virtue of this section is not complied with, the body or other person on whom the requirement was so imposed shall be guilty of an offence; but where a person is charged with an offence under this subsection in respect of a requirement to produce any books or documents, it shall be a defence to prove that they were not in his possession or under his control and that it was not reasonably practicable for him to comply with the requirement. (7) A statement made or an explanation provided by an individual in compliance with a requirement imposed by virtue of this section may be used in evidence against him in any proceedings whatsoever (save proceedings for an offence (other than an offence under subsection (6) or (8))). (8) A person who provides an explanation or makes a statement required under this section which is false or misleading in a material respect, knowing it to be so false or misleading, shall be guilty of an offence. (9) Notwithstanding section 202(9), it shall be an offence for a person or body with notice of a direction under subsection (1) (whether given or coming to the notice of the person or body before or after the commencement of section 29 of the Company Law Enforcement Act, 2001) to destroy, mutilate, falsify or conceal any book or document the subject of a direction. (10) The court may, on the application of the Director, direct that a body the subject of a direction under subsection (1) shall be liable, to such extent as the court may direct, to repay the Director the expenses of and incidental to the examination. (11) Without prejudice to subsection (10) but subject to subsection (12), a person— (a) convicted on indictment of an offence on a prosecution instituted, (b) ordered to pay damages or restore any property in proceedings brought, or (c) awarded damages or to whom property is restored in proceedings brought, as a result of a direction under subsection (1) may, in the same proceedings, be ordered to repay the Director all or part of the expenses referred to in subsection (10). (12) The court shall not order a person to whom subsection (11)(c) relates to make payment in excess of one-tenth of the amount of the damages awarded or of the value of the property restored, as the case may be, and any such order shall not be executed until the person concerned has received his damages or the property has been restored. Concealing facts disclosed by documents. 19A.—(1) A person who— (a) knows or suspects that an investigation by the Director into an offence under the Companies Acts is being or is likely to be carried out, and (b) falsifies, conceals, destroys or otherwise disposes of a document or record which he knows or suspects is or would be relevant to the investigation or causes or permits its falsification, concealment, destruction or disposal, shall be guilty of an offence. (2) Where a person— (a) falsifies, conceals, destroys or otherwise disposes of a document or record, or (b) causes or permits its falsification, concealment, destruction or disposal, in such circumstances that it is reasonable to conclude that the person knew or suspected— (i) that an investigation by the Director into an offence under the Companies Acts was being or was likely to be carried out, and (ii) that the document or record was or would be relevant to the investigation, the person shall be taken for the purposes of this section to have so known or suspected, unless the court or the jury, as the case may be, is satisfied having regard to all the evidence that there is reasonable doubt as to whether the person so knew or suspected.”. Repeal and substitution of section 20 of Act of 1990. 30.—Section 20 of the Act of 1990 is repealed and the following substituted: “20.—(1) If a judge of the District Court is satisfied by information on oath laid by a designated officer that there are reasonable grounds for suspecting that any material information is to be found on any premises (including a dwelling), the judge may issue a search warrant under this section. (2) A search warrant issued under this section shall be expressed and operate to authorise a named designated officer (‘the officer’), accompanied by such other persons as the officerthinks necessary, at any time or times within 1 month from the date of issue of the warrant, on production if so requested of the warrant, to— (a) enter the premises named in the warrant, if necessary by force, (b) search the premises, (c) require any person found on the premises— (i) to give to the officer his name, home address and occupation, and (ii) to produce to the officer any material information which is in the custody or possession of that person, (d) seize and retain any material information found on the premises or in the custody or possession of any person found on the premises, and (e) take any other steps which appear to the officer to be necessary for preserving or preventing interference with material information. (3) Any material information which is seized under subsection (2) may be retained for a period of 6 months, or such longer period as may be permitted by a judge of the District Court, or if within that period there are commenced any proceedings to which the material information is relevant, until the conclusion of those proceedings. (4) The officer may— (a) operate any computer at the place which is being searched or cause any such computer to be operated by a person accompanying the officer, and (b) require any person at that place who appears to the officer to be in a position to facilitate access to the information held in any such computer or which can be accessed by the use of that computer— (i) to give to the officer any password necessary to operate it, (ii) otherwise to enable the officer to examine the information accessible by the computer in a form in which the information is visible and legible, or (iii) to produce the information in a form in which it can be removed and in which it is, or can be made, visible and legible. (5) The power to issue a warrant under this section is in addition to and not in substitution for any other power to issue a warrant for the search of any place or person. (6) A person who— (a) obstructs the exercise of a right of entry or search conferred by virtue of a search warrant issued under this section, (b) obstructs the exercise of a right so conferred to seize and retain material information, (c) fails to comply with a requirement under subsection (2)(c) or gives a name, address or occupation which is false or misleading, or (d) fails to comply with a requirement under subsection(4)(b)), shall be guilty of an offence. (7) In this section— ‘computer’ includes a personal organiser or any other electronic means of information storage or retrieval; ‘computer at the place which is being searched’ includes any other computer, whether at that place or at any other place, which is lawfully accessible by means of that computer; ‘designated officer’ means the Director or an officer of the Director authorised in that behalf by the Director; and ‘material information’ means— (a) any books or documents of which production has been required under or by virtue of section 14, 15 or 19 and which have not been produced in compliance with that requirement, or (b) any books or documents or other things (including a computer) which the officer has reasonable grounds for believing may provide evidence of or relating to the commission of an offence under the Companies Acts.”. Amendment of section 21 of Act of 1990. 31.—Section 21(1) of the Act of 1990 is amended— (a) by the substitution for “Minister” (wherever occurring, except in paragraph (d)) of “Director”, (b) by the substitution of the following for clause (V) of paragraph (a)(i): “(V) the Taxes Consolidation Act, 1997 , or an offence under an enactment referred to in section 1078(1) of that Act;”, (c) by the insertion of the following after paragraph (f): “(fa) for the purpose of the performance by the Competition Authority of any of its functions; (fb) for the purpose of the performance by a committee (being a committee within the meaning of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997 , to which sections 3 to 14 and 16 of that Act apply) of any of its functions;”, and (d) in paragraph (g), by the substitution of the following for subparagraph (ii): “(ii) any body to which the Director has given a direction under section 19 or any person named in a report relating to an examination under that section;”. Amendment of section 23 of Act of 1990. 32.—Section 23 of the Act of 1990 is amended— (a) by the substitution of the following for subsection (2): “(2) The Director shall not, under section 19, require the production by a person carrying on the business of banking of a document relating to the affairs of a customer, or relating to the affairs of any other person, unless either it appears to the Director that it is necessary to do so for the purposes of investigating the affairs of the person carrying on the business of banking, or the customer or other person is a person on whom a requirement has been imposed by virtue of that section.”, and (b) by the insertion of the following after subsection (3): “(4) In this section, ‘customer’, in relation to a person carrying on the business of banking, includes a person who has in the past availed of one or more services of the person, as defined in section 149(12) of the Consumer Credit Act, 1995 .”. New section 23A of Act of 1990 — Assistance to overseas company law authorities. 33.—The Act of 1990 is amended by the insertion of the following after section 23: “23A.—(1) The powers conferred on the Director by this Part are also exercisable by the Director on foot of a request from a company law authority for assistance in connection with inquiries being carried out by it or on its behalf where the Director is satisfied that such assistance is for the purpose of the discharge by the authority of its supervisory or regulatory functions. (2) The Director may decline to accede to a request referred to in subsection (1) if, in the opinion of the Director, it is not appropriate to so accede or where the company law authority making the request does not undertake to make such contribution to the costs attendant on the request as the Director considers appropriate. (3) In this section, ‘company law authority’ means an authority outside the State which performs functions of a supervisory or regulatory nature in relation to bodies corporate or undertakings or their officers, or a person acting on behalf of such an authority.”. Examination of books and documents of certain companies to be continued by Minister or authorised officer. 34.—(1) Notwithstanding subsections (2) and (3) of section 14 or any other provision of this Act, the Minister or any officer of the Minister authorised by him or her under section 19 of the Act of 1990 before the passing of this Act may, in relation to such body or bodies and to such extent as may be prescribed, continue to exercise, after such passing, the powers conferred on them respectively by sections 19 to 23 of the Act of 1990. (2) In subsection (1), “sections 19 to 23 of the Act of 1990” means those sections as they stand amended by this Act but with the substitution for references in them to the Director of references to the Minister or an officer of the Minister authorised by the Minister under section 19 of the Act of 1990, as appropriate. Amendment of section 79 of Act of 1990. 35.—Section 79(7) of the Act of 1990 is amended by the insertion after paragraph (b) of the following: “(bb) fails to fulfil, within the period of 5 days next following the day on which he becomes aware of the matters referred to in section 91(2), the obligation to give the Exchange (within the meaning of that section) a notice required by that section, or”. Amendment of section 92 of Act of 1990 — Duty of relevant authority to report to Director. 36.—Section 92 of the Act of 1990 is amended— (a) by the substitution for “Director of Public Prosecutions” (wherever occurring, except in subsection (4)) of “Director”, and (b) by the substitution of the following for subsection (4): “(4) If, where any matter is reported or referred to the Director under this section, he has reasonable grounds for believing that an offence under section 79(7)(bb) has been committed and— (a) institutes proceedings in respect of the offence, or (b) refers the matter to the Director of Public Prosecutions and the Director of Public Prosecutions institutes proceedings in respect of the offence, it shall be the duty of a relevant authority of the Exchange, and of every officer of the company whose securities are concerned, and of any other person who appears to the Director or to the Director of Public Prosecutions, as the case may be, to have relevant information (other than any defendant in the proceedings) to give all assistance in connection with the proceedings which he or they are reasonably able to give.”. Amendment of section 115 of Act of 1990. 37.—Section 115 of the Act of 1990 is amended— (a) by the substitution for “Director of Public Prosecutions” (wherever occurring, except in subsection (4)) of “Director”, (b) by the substitution of the following for subsection (4): “(4) If, where any matter is reported or referred to the Director under this section, he has reasonable grounds for believing that an offence under this Part has been committed and— (a) institutes proceedings in respect of the offence, or (b) refers the matter to the Director of Public Prosecutions and the Director of Public Prosecutions institutes proceedings in respect of the offence, it shall be the duty of a relevant authority of the recognised stock exchange concerned, and of every officer of the company whose securities are concerned, and of any other person who appears to the Director or to the Director of Public Prosecutions, as the case may be, to have relevant information (other than any defendant in the proceedings) to give all assistance in connection with the proceedings which he or they are reasonably able to give.”, (c) in subsection (5), by the substitution for “Minister” of “Director”, and (d) by the deletion of subsection (6). Amendment of section 118 of Act of 1990. 38.—Section 118 of the Act of 1990 is amended by the insertion of the following after subsection (2): “(2A) Subsection (1) shall not prevent a member, authorised person, relevant authority or employee or former employee of a recognised stock exchange from disclosing information concerning suspected breaches of the Companies Acts to the Director and it is the duty of each such person to so report any such suspected breach to the Director.”. Amendment of section 230 of Act of 1990. 39.—Section 230 of the Act of 1990 is amended— (a) by the substitution for “Director of Public Prosecutions” (wherever occurring, except in subsection (4)) of “Director”, (b) by the substitution of the following for subsection (4): “(4) If, where any matter is reported or referred to the Director under this section, he has reasonable grounds for believing that an offence under section 228 or 229 has been committed and— (a) institutes proceedings in respect of the offence, or (b) refers the matter to the Director of Public Prosecutions and the Director of Public Prosecutions institutes proceedings in respect of the offence, it shall be the duty of a relevant authority of the recognised stock exchange concerned, and of every officer of the company whose shares are concerned, and of any other person who appears to the Director or to the Director of Public Prosecutions, as the case may be, to have relevant information (other than any defendant in the proceedings) to give all assistance in connection with the proceedings which he or they are reasonably able to give.”, (c) in subsection (5), by the substitution for “Minister” of “Director”, and (d) by the deletion of subsection (6). PART 4 Restrictions and Disqualifications New section 183A of Act of 1963 — Examination as to solvency status. 40.—The Act of 1963 is amended by the insertion of the following after section 183: “183A.—(1) Where the Director has reason to believe that a director of a company is an undischarged bankrupt, the Director may require the director of the company to produce by a specified date a sworn statement of all relevant facts pertaining to the company director's financial position, both within the State and elsewhere, and, in particular, to any matter pertaining to bankruptcy as at a particular date. (2) The court may, on the application of the Director, require a director of a company who has made a statement under subsection (1) to appear before it and answer on oath any question pertaining to the content of the stateme …