Authored by Stavriana Antonaropoulou, Advocate, Manager of Corporate Department
Back in 2018 the Companies (Amending) Law of 2018 (N. 149(I)/2018) was enacted, focusing, amongst others, on setting in place stricter rules aimed to incentivise Cyprus companies to abide with their statutory obligations including submission of their annual returns with and payment of annual levy to the Registrar of Companies in Cyprus (the "RoC"). Spurred by the enactment of this new Law, the RoC undertook an exercise aimed to check whether the Cyprus companies registered in its registry submitted their annual returns along with the relevant financial statements, in accordance with the requirements of Companies Law Cap. 113, as amended (the "Law").
As part of this exercise, many Cyprus companies and their officers received letters from the RoC notifying them of filings or levies overdue and deadlines to submit or settle such. The RoC further informed them that, in case of failure of the Cyprus company in question to comply with the requirements of the Law, the RoC would proceed with its strike-off. Such strike-off would take place regardless of the fact that a Cyprus company may have been active at the time.
The RoC did in fact proceed and struck-off from its registry the names of various Cyprus companies which failed to submit the requested documents or otherwise fall in line with their obligations as imposed by the Law within the timeframes provided. Some of the Cyprus companies that were struck-off were still active at the time and even conducting transactions. Evidently, in such cases the affairs of the companies came to a stall as upon strike-off the company is removed from the registry, its assets are deemed as bona vacantia and revert to the Government, thus rendering the company effectively unable to conduct business. Where the Cyprus company has creditors with claims unsatisfied as at the time of strike-off, the situation is complicated further as they cannot pursue a claim against a company which for all intends and purposes is no longer registered.
When can the RoC strike-off a company?
Article 327(6) of the Law provides that any Cyprus company which fails to submit to the RoC any document required to be submitted in accordance with the Law, may be struck off from the registry of the RoC within a period of at least 6 months from the publication of the letter sent by the RoC requesting the document in question.
Furthermore, pursuant to Articles 327(1) and 327(A), the RoC has the power to strike-off a Cyprus company that has not settled its annual levy or in case the RoC has reasonable cause to believe that the Cyprus company is not active or does not conduct any business activity. Prior to strike-off, the RoC sends two notification letters to the company and its officers informing the company of the actions required to be taken and, provided the timeframes set by the Law have passed without the company to comply with its obligations or send a response to the notification letters, the RoC publishes a strike-off notice and the company is dissolved upon the publication thereof.
It is evident from the above that the RoC has a quite wide spectrum of powers in its armoury in this respect, which the RoC may exercise without being obliged to first examine whether indeed the company conducts any activity or has any unresolved affairs. Whereas it is possible for a Cyprus company to file with the RoC an objection to its strike-off at the stage that notification letters are still being sent by the RoC, it is entirely up to the RoC's discretion to accept such an objection and cease strike-off procedures.
Options to restore a Cyprus company
Once a Cyprus company's name has been deleted from the RoC's registry, the following two options are available for its restoration:
(a) Administrative restoration:
This route was only relatively recently implemented under Article 327A of the Law, following the adoption of the Companies (Amending) Law of 2018 (N. 149(I)/2018).
This option is available to Cyprus companies which have been struck-off due to:
- non-submission of any document required by Law to be submitted to the RoC (such as, for example, annual returns and financial statements); or
- outstanding annual levy amounts; or
- where the RoC has cause to believe that a company is not conducting any activities, has sent a letter to the company in this regard and received a response from the company asserting this fact or where it does not receive a reply at all.
Provided that the strike-off was effected due to one of the above reasons, a director or a member of the company whose name has been deleted from the registry may apply to the RoC in the prescribed form to restore the company's name.
The application must be submitted within a period of 24 months from the date the company's name has been struck-off the registry and be accompanied by the following:
- All necessary forms, returns, financial statements and other documents that are necessary to update the register of the company; and
- All levies, penalties and other amounts that were imposed or incurred prior to the deletion of the company's name are paid; and
- The relevant fee for the restoration of the company is paid; and
- A confirmation that the company was active or conducting activities when it was struck-off.
If all the above is complied with and the RoC has reasonable cause to believe that the strike-off has put the applicant at a disadvantage, the RoC proceeds with restoring the company's name to its registry and issues a relevant certificate in this regard.
The date that the company is deemed to be restored is the date of issue of the said certificate.
It is worth noting that the administrative restoration of a company's name does not affect the rights and obligations of the company in relation to any debt or obligation or contract that may have been entered into or on behalf of the company in the period between its strike-off and its restoration.
(b) Restoration ordered by the Court:
Article 327(7) provides that the company or a company's member or creditor who feels aggrieved by the company's deletion from the registry, or any other party who has been harmed by actions of the company before its strike-off, may apply to the Cyprus Court requesting the restoration of the Company's name to the RoC's registry.
Such an application can be submitted any time within twenty years from the publication date of the strike-off notice in the official gazette of the Republic of Cyprus.
The Court may, if satisfied that the company was active during its strike-off or that it had business activities or that it is otherwise fair to be restored, issue an order for the Company to be restored and with the delivery of the court order to the RoC for registration, the company is deemed to continue in existence as if its name was never struck-off.
It should be pointed out here that the Court has absolute discretion to not only issue the order but, also, to determine the specific requirements under which the company shall be restored (including determining which documents must be submitted to the Court and/ or to the RoC for the purposes of the restoration and the fees/ levies required to be paid by the Company to the RoC). The Court may also issue such instructions as it deems fair to restore the company and any other person in the same position that they held prior to the company's deletion.
A critical appraisal:
It is important to note that the first step in choosing the most appropriate option to restore a Cyprus company is ascertaining who the applicant is. Even though the administrative restoration may theoretically at least be the fastest and less complicated of the two options, only a director or a member can apply for this – on the other hand, the spectrum of persons entitled to apply to the Court to restore a Cyprus company is rather wider.
On the matter of the administrative restoration, it is mentioned above that the Law has reserved for the RoC the power to determine the exact format and type of the application the RoC requires to be submitted to this end. The RoC is currently in the process of finalising the exact format of the application to be completed and filed to the RoC to request the administrative restoration of a Cyprus company. Even though it is encouraging that steps have been taken by the RoC to implement this option, it is evident that there is still some fine-tuning left to be made in order for administrative restoration to be practically fully implemented.
Turning now to the option of petitioning the Court to restore a Cyprus company, one may argue that the basis on which a person may apply to the Court in this respect is quite extensive. This is due to the fact that the grounds on which such an application may be based are not specified in the Law further than what is mentioned above nor is any definition included in the Law to provide some clarity, especially regarding the circumstances which may evidence the feelings of "aggrievance" or "harm" of the applicant.
Normally, in such cases of ambivalence one turns for clarity to UK laws and case precedents since Cyprus laws were (and, up to a point, still are) infused with similar common law notions and rules. The UK Companies Act 1985 also provides to interested persons the option to petition the Court to restore a UK company that has been struck-off. However, the UK Companies Act provides specific categories of persons that may petition to restore a company and also determines the legal grounds on which such persons may pursue this route. As an example, the UK Companies Act 1985 provides that persons with a potential legal claim against the company or those who would have been with a contractual relationship with the company bar the company's dissolution, have the right to apply to the Court.
Considering that such distinctions are not included in Cyprus Law, one may rely for guidance to the specifications included in the UK Companies Act however, ultimately, it is upon the Cyprus Court to decide whether such an application will succeed in obtaining a Court order. What will be the crucial factor in such cases will be the evidence that shall be presented by the applicant to the Court to support the application and right of the applicant to request the restoration of the Cyprus company. As a minimum, such evidence should be adequate, sufficient and provide clarity regarding the grounds on which the applicant is basing his/ her petition on, in order to be at least considered by the Court.
What should also be taken into consideration is that Cyprus Courts have in any case absolute powers when determining how the provisions of the Law apply to a specific case and whether it shall be fair and just to issue the requested order. Similarly, they have absolute discretion to also determine the conditions under which a Cyprus company may be restored. Based on case law and past experience in dealing with such cases, it is important that the company prepares the documents requested by the RoC prior to its strike-off (such as its overdue accounts and annual returns) and be ready to submit them to the Court and to the RoC if and so requested. In this way, the applicant (be it a director or the company itself) can justify before the Court that the company is ready to rectify the conditions that led to its strike-off thus showing good-will and readiness to comply with its obligations. Where, though, the applicant is a creditor of the Cyprus company, he/ she shall not have the power to cause such accounts (or any other documents of the Cyprus company, for that matter) to be prepared which further complicates the issue. In such cases, the basis on which a creditor feels aggrieved by the strike-off of the company should be clearly explained in the application and supported by relevant evidence.
Where the applicant to the Court is not a director, a member or a creditor of the Cyprus company then additional complexities may be presented. For example, whereas a person having an interest in land in which the Cyprus company had a superior or derivative interest may, under the UK Companies Act 1985, apply to the UK Courts to have the company restored, the same person petitioning the Cyprus Courts to order the restoration of the Cyprus company will have to prove that he/ she has been harmed by the actions of the Cyprus company prior to its strike-off. It is therefore important to ensure that the applicant's position is presented to the Court under this spectrum and that supporting documents can be provided in this regard.
It is thus evident that applications to restore a Cyprus company are examined by the Court on a case-by-case basis and weighed upon the facts presented to the Court which will eventually resolve upon the merits of each case and issue such instructions and guidance as the Court may deem fair.
Conclusively it can be stated that, following strike-off, there are options available to restore a Cyprus company, each with its own specificities and procedural requirements. The extent to which such options may be exercised will eventually depend on the specifics of the case at hand, the capacity of the applicant and the nature of such applicant's interest in restoring the company.
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.