Ireland: The Companies Bill 2012 – Continuing Obligation To Have A Company Secretary

The Companies Bill 2012 (the "Bill") seeks to retain the position of company secretary. Although a company may, in certain circumstances, have only one director it must still have a secretary. Where a company has only one director that person may not also be the secretary. The secretary will continue to be appointed, and may be removed, by the board. The Bill also imposes a duty on the directors of a company to ensure that the person who is appointed as the secretary has the necessary skills to discharge their statutory, legal and other such duties as may be delegated by the directors.

The Bill also prohibits the appointment of an un-discharged bankrupt or a person under eighteen years of age as a director or secretary of a company.

Although the fiduciary duties of the directors have been codified under the Bill, those of the secretary have not. The duties of the secretary will be delegated by the board of directors. The Bill removes the current requirement for the company secretary to ensure compliance with the companies acts, acknowledging the lack of power secretaries have to procure compliance.

Some Matters for Consideration Include: Have You Filed Your Annual Return on Time?

In addition to paying a late filing fee your company will lose its audit exemption if you have not filed the annual return on time.

Are Your Companies Registration Office Filings Up To Date?

In addition to filing an annual return, companies are required to notify the Companies Registration Office of certain events such as a director changing residential address, change of registered office or change of location of certain registers.

Has Your Company Made Any Political Donations?

The notifiable threshold for political donations on annual returns made up to 7 November 2013 or later has been reduced from €5,029 to €200. Details of any political donations made over this threshold since the last annual return must be disclosed on your annual return.

Is Your Company Website Displaying The Correct Company Information?

All limited liability companies are required to display the following information on their websites:

full name and legal form of the company; place of registration; company number; registered office address; if there is any reference to share capital it should be a reference to paid up share capital; and if the company is being wound up reference should be made to this effect. The same information should be included on e-mails which are used for official company correspondence.

Are You Keeping Minutes Of All Meetings?

Directors are responsible for ensuring that minutes are prepared for all board and general meetings. The minutes should set out the subject matters discussed at the meeting and any resolutions passed. The minutes should be signed by the person who chaired the meeting or who chairs a subsequent meeting at which the minutes were approved and placed in the company's minute book. Accurate minutes kept of board and general meetings help avoid the emergence of subsequent disputes around the validity of decisions made at a board meeting.

Do You Have The Authority To Use The Company Seal?

Generally the articles of association provide that the company seal shall only be used with the authority of the directors or of a committee of directors. To the extent that it is proposed for the company seal to be used, it is important that its use has been approved by the board of directors, or a committee as the case may be, and that such approval is recorded in the minutes of the relevant board meeting. Use of the seal is attested in accordance with the provisions of the articles of association of the company. It is considered good practice, although not a statutory requirement, for a company to also maintain a "register of sealings" in which the company registers/records each time the company seal is used. Particulars of the use of the seal should be entered in the register including

(i) the persons who attested use of the seal;

(ii) a description of the document sealed;

(iii) the date on which the seal was used; and

(iv) the date upon which authority for the use of the seal was conferred.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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