22 February 2019
As envisaged in the Government’s policy objectives to tackle white collar crime, the General Scheme of the ‘Companies (Corporate Enforcement Authority) Bill 2018’ was recently published. It sets out proposed legislation to give effect to the establishment of the Office of the Director of Corporate Enforcement (the ‘ODCE’) as a stand-alone agency called the ‘Corporate Enforcement Authority’ (the ‘Authority’).
Separately, the General Scheme proposes clarifications and amendments in other areas of the Companies Act 2014 (the ‘Act’) some of which are set out below.
The General Scheme provides that the Authority will be a body corporate and many of the functions to be conferred on the Authority will re-enact the corresponding provisions of the Act relating to the ODCE.
Structure and Reporting
The Authority will comprise between one and three full time members appointed by the Minister (on recommendation by the Public Appointments Commission), one of whom will be appointed as Chairperson. The members will be appointed for a term of up to five years with the possibility of reappointment for a further five year term.
Under the proposed legislation, the Authority will submit to the Minister an annual report on its activities to be put before the Houses of the Oireachtas. This will be in addition to the strategy statement prepared every three years by the Authority. The Authority can appoint staff and members of a Garda Síochána can be seconded to the Authority.
Some proposed amendments to the Act to strengthen the Authority’s powers include:
Nature of the Reform
There will be provisions made so that on-going investigations and other work started by the ODCE can be continued by the Authority.
The provisions of the Act for the current structure for the ODCE will be repealed and replaced with new provisions to reflect the new structure. It is intended that once the General Scheme proceeds to the final stage of legislation, it will be integrated into the Act so that the citation for the ‘Companies Act 2014’ will remain unchanged.
The proposed structure of the Authority is similar to that of the Competition and Consumer Protection Commission, so the provisions of the Competition and Consumer Protection Act 2014 have served as a precedent for the relevant provisions in the General Scheme.
Separately, the General Scheme sets out a number of proposed clarifications and amendments to the Act some of which will give effect to certain recommendations of the Company Law Review Group (the ‘CLRG’). It is possible that more of these CLRG recommendations, and submissions made by the Law Society, will be included as the General Scheme progresses through the legislative process. The proposed changes in the areas below, which if enacted in their current form, will provide for:
Shares and Share Capital
Incorporation and Registration
The General Scheme provides that certain of the provisions proposed will be subject to further consultation, for example, the proposals on search powers will be subject to consultation with the Office of the Attorney General.