Seanad debates
Tuesday, 17 June 2014
Companies Bill 2012: Committee Stage (Resumed)
8:45 pm
Denis O'Donovan (Fianna Fail)
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I welcome the Minister for Jobs, Enterprise and Innovation to the House. So far we have dealt with 686 sections.
8:55 pm
Richard Bruton (Dublin North Central, Fine Gael)
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I am considering introducing an amendment to this section on Report Stage. The purpose of the amendment is to change the reference from the Minister for Finance to the Minister for Public Expenditure and Reform and to reflect the reality that functions under the State Property Act 1954 transferred in July 2001 to the Minister for Public Expenditure and Reform under the Ministers and Secretaries Act.
Denis O'Donovan (Fianna Fail)
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Amendments Nos. 118 and 119 are related and may be discussed together. Is that agreed? Agreed.
Government amendment No. 118: In page 598, lines 18 to 20, to delete all words from and including “at” in line 18 down to and including “350” in line 20 and substitute the following:“in respect of the latest financial year of the company that has ended prior to the date of the making of the application under this section, fell to be treated as a small or medium company by virtue of section 350”.
Richard Bruton (Dublin North Central, Fine Gael)
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The purpose of these amendments is to make provision for the reduction of audit exemption criteria. It is a technical amendment which is required to complement the changes introduced by the Companies Bill 2013.
Government amendment No. 119: In page 598, between lines 24 and 25, to insert the following:“(7) For the purpose of paragraph (b) of subsection (6), if the latest financial year of the company concerned ended within 3 months prior to the date of the making of the application concerned, the reference in that paragraph to the latest financial year of the company shall be read as a reference to the financial year of the company that preceded its latest financial year (but that reference shall only be so read if that preceding financial year ended no more than 15 months prior to the date of the making of the application concerned).”.
Richard Bruton (Dublin North Central, Fine Gael)
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The purpose of this amendment is to remove the requirement for a person to pay a fee for a copy of an inspector's report to the court. A person should not have to pay a prescribed fee for a document that is deemed necessary for them to possess.
Richard Bruton (Dublin North Central, Fine Gael)
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The purpose of this amendment is to update the Bill to include a reference to the Commissions of Investigation Act 2004. This section provides that any information, book or document relating to a company that has been obtained under certain sections of the Bill may be published or disclosed without the consent of the company if, in the opinion of the Director of Corporate Enforcement, publication or disclosure is required under specific circumstances.
Richard Bruton (Dublin North Central, Fine Gael)
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This amendment is typographical in nature and involves the updating of a cross reference that is incorrect in the Bill.
9:00 pm
Denis O'Donovan (Fianna Fail)
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Amendment No. 124 is a Government amendment. Amendments Nos. 124 and 125 are cognate and may be discussed together by agreement.
Richard Bruton (Dublin North Central, Fine Gael)
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This amendment is typographical in nature and involves the updating of the cross-references without a substantive impact on the Bill.
Richard Bruton (Dublin North Central, Fine Gael)
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I am considering introducing an amendment to sections 872 and 873 on Report Stage. The purpose of these amendments is to clarify the position on fixed penalty notices. I am advised that the Office of Public Works believes there is a need to further refine and clarify the language of this section.
Denis O'Donovan (Fianna Fail)
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Subject to the Minister's intentions on Report Stage, is it agreed that section 872 stand part of the Bill?
Denis O'Donovan (Fianna Fail)
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Amendment No. 127, which proposes a new section, is in the name of Senator Quinn.
Diarmuid Wilson (Fianna Fail)
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On behalf of Senator Quinn I wish to withdraw the amendment and resubmit it for Report Stage.
Denis O'Donovan (Fianna Fail)
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Senator Quinn will have the liberty to resubmit the amendment.
Richard Bruton (Dublin North Central, Fine Gael)
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I am considering introducing amendments relating to Part 15 on Report Stage. The purpose of these amendments is to ensure that the supervisory authority, the IAASA, has the appropriate powers in regard to the qualification of liquidators as set out in section 633. Furthermore, I am considering introducing an amendment arising from a European Commission recommendation relating to third country auditors.
Denis O'Donovan (Fianna Fail)
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Subject to the Minister's intentions for Report Stage, is it agreed that section 887 stand part of the Bill?
Denis O'Donovan (Fianna Fail)
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Amendment No. 129 is a Government amendment. Amendments Nos. 129 to 131, inclusive, are related and may be discussed together by agreement.
Government amendment No. 129: In page 692, lines 10 and 11, to delete “and disclosed within 21 days after the date of receipt of the complete documentation regarding those changes” and substitute the following: “and that such entering is done (normal circumstances prevailing) within 21 days after the date of receipt of the complete documentation regarding those changes”.
Richard Bruton (Dublin North Central, Fine Gael)
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The purpose of the amendment is to transpose the necessary elements of Article 3 of Directive 212-17 of the European Union. The directive imposes an obligation on member states to link their companies' registers electronically with one another.
Government amendment No. 130: In page 692, to delete lines 12 to 15 and substitute the following: “(6) The Registrar shall make available, as soon as practicable, through the system of interconnection of registers, information on—(a) the opening and termination of winding up or insolvency proceedings of a company on the register; (b) the opening and termination of a receivership applicable to a company on the register; and (c) the striking-off of a company from the register.”.
Government amendment No. 131: In page 692, between lines 15 and 16, to insert the following: “(7) The Registrar shall ensure that the following particulars relating to a company on the register are available, free of charge, through the system of interconnection of registers—(a) its name and legal form; (b) the address of its registered office, including the fact that it is registered in the State; and (c) its registration number on the register.”.
Richard Bruton (Dublin North Central, Fine Gael)
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I am considering introducing amendments to section 905 on Report Stage. These amendments relate to the deletion of certain existing but uncommenced functions from the supervisory authority's remit.
Denis O'Donovan (Fianna Fail)
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Subject to the Minister's intentions on Report Stage is it agreed that section 905 stand part of the Bill?
Denis O'Donovan (Fianna Fail)
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Amendment No. 133 is a Government amendment proposing a new section. Acceptance of this amendment involves the deletion of section 942 of the Bill.
Government amendment No. 133: In page 727, between lines 11 and 12, to insert the following: “Confidentiality of information 942. (1) A person shall not disclose information that—(a) comes into the possession of the Supervisory Authority by virtue of the performance by it of any of its functions under this Act; or (b) comes into the possession of the Supervisory Authority in the course of a meeting of the Authority held in private at which he or she is present.(2) Subsection (1) shall not apply to—(a) a communication made by a member of the Supervisory Authority, a member of its staff or a director of it in the performance by him or her of any of the Authority’s or his or her functions under this Act or any other enactment, being a communication the making of which was necessary for the performance of the function concerned; or (b) the disclosure of information in a report of the Supervisory Authority or for the purpose of any legal proceedings, investigation, enquiry or review under this Act or any other enactment or pursuant to an order of a court of competent jurisdiction for the purposes of any proceedings in that court; or (c) the disclosure by a member of the Supervisory Authority, a member of its staff or a director of it to any member of the Garda Síochána of information which, in the opinion of the first-mentioned member, member of staff or, as the case may be, director, may relate to the commission of an offence.(3) A person who contravenes subsection (1) shall be guilty of a category 2 offence.”.
Richard Bruton (Dublin North Central, Fine Gael)
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The purpose of this amendment is to introduce greater clarity with regard to confidentiality of information. As the Bill stands, the operation of the section is problematic as it could lead to the restriction of the release of all information regardless of whether such information is confidential or not.
Government amendment No. 135: In page 745, between lines 4 and 5, to insert the following: “(4) Where, subsequent to the registration of the constitution, an amendment of the memorandum of association is made affecting the matter of share capital, or another matter, referred to in subsection (2), that subsection shall be read as requiring the memorandum to state the matter as it stands in consequence of that amendment.”.
Richard Bruton (Dublin North Central, Fine Gael)
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This amendment is typographical in nature and involves the insertion of a cross-reference. It does not have a substantive impact on the Bill.
Denis O'Donovan (Fianna Fail)
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Amendment No. 137 is a Government amendment. Amendments Nos. 137, 147, 154 and 162 are related and may be discussed together by agreement.
9:10 pm
Richard Bruton (Dublin North Central, Fine Gael)
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The purpose of this amendment is to include a clear definition for a sole director of a company or for a company with a sole director. The aim is to ensure that if, for example, an unforeseen eventuality results in a company having just one director, that company will be entitled to be considered a sole director company.
Richard Bruton (Dublin North Central, Fine Gael)
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I am considering an amendment to this section on Report Stage to clarify that a single member of a DAC may dispense with the holding of an AGM in accordance with existing law. This will correct an unintended omission from the existing law.
Denis O'Donovan (Fianna Fail)
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Amendments Nos. 140, 150, 156 and 164 are related and will be discussed together.
Richard Bruton (Dublin North Central, Fine Gael)
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The purpose of these amendments is to provide for the modification of the definition of “International Accounting Standards, IAS, regulation” in the case of designated activity companies, PLCs, CLGs, PUCs and PULCs.
Denis O'Donovan (Fianna Fail)
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Amendments Nos. 141 and 157 are related and will be discussed together.
Richard Bruton (Dublin North Central, Fine Gael)
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The purpose of these amendments is to correct an omission in the Bill as initiated. The amendments clarify, in accordance with European law, that a designated activity company or a company limited by guarantee cannot avail of the audit exemption if it falls within any provision of Schedule 5, namely, that it is a company that is an authorised market operator.
Richard Bruton (Dublin North Central, Fine Gael)
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I am considering introducing an amendment on Report Stage to provide for the inclusion of a provision to reflect section 55 of the Companies Amendment Act 1983. This section concerns the requirement to publish certain matters in the CRO gazette. This was an unintended omission from the Bill as published. I am also considering introducing amendments on Report Stage to further refine the previous amendments in respect of bearer shares.
Government amendment No. 143: In page 767, between lines 3 and 4, to insert the following:“(4) Where, subsequent to the registration of the constitution, an amendment of the memorandum of association is made affecting the matter of share capital, or another matter, referred to in subsection (2), that subsection shall be read as requiring the memorandum to state the matter as it stands in consequence of that amendment.”.
Government amendment No. 144: In page 773, between lines 15 and 16, to insert the following:“(3) Where a company has such an official seal as is mentioned in subsection (1), then section 99(1) shall apply to the company as if after “common seal of the company” there were inserted “or the seal kept by the company by virtue of section 1019”.”.
Richard Bruton (Dublin North Central, Fine Gael)
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The purpose of this amendment is to allow the members to decide unanimously to waive the requirement for 21 days notice of the resolution and report.
Richard Bruton (Dublin North Central, Fine Gael)
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The purpose of this amendment is to provide an express reference that an acquisition by a PLC of its own shares shall not be made, otherwise than in respect of those of them that are fully paid. This is in line with EU law and Directive 2012/30/EU.
Government amendment No. 150: In page 838, between lines 16 and 17, to insert the following:“Modification of definition of “IAS Regulation” in the case of PLCs1117. The definition of “IAS Regulation” in section 274(1) shall apply in the case of PLC as if “and a reference to Article 4 of that Regulation is, where the financial statements concerned are entity financial statements or the company concerned is not a traded company (within the meaning of section 1368), a reference to Article 5 of that Regulation” were substituted for “and a reference to Article 4 of that Regulation is, in the case of a private company limited by shares, a reference to Article 5 of that Regulation”.”.
9:20 pm
Richard Bruton (Dublin North Central, Fine Gael)
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This is to amend a typographical error. It does not have a substantive impact on the Bill.
Government amendment No. 153: In page 885, between lines 13 and 14, to insert the following:“(4) Where, subsequent to the registration of the constitution, an amendment of the memorandum of association is made affecting a matter referred to in subsection (2), that subsection shall be read as requiring the memorandum to state the matter as it stands in consequence of that amendment.”.
Government amendment No. 159: In page 911, after line 34, to insert the following:“(4) Where, subsequent to the registration of the constitution, an amendment of the memorandum of association is made affecting the matter of share capital, or another matter, referred to in subsection (2), that subsection shall be read as requiring the memorandum to state the matter as it stands in consequence of that amendment.”.
Government amendment No. 160: In page 912, between lines 20 and 21, to insert the following:“(4) Where, subsequent to the registration of the constitution, an amendment of the memorandum of association is made affecting a matter referred to in subsection (2), that subsection shall be read as requiring the memorandum to state the matter as it stands in consequence of that amendment.”.
Richard Bruton (Dublin North Central, Fine Gael)
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This is to correct a typographical error. It does not have any substantive impact on the Bill.
Government amendment No. 164: In page 924, between lines 27 and 28, to insert the following:“Modification of definition of “IAS Regulation” in the case of PUCs and PULCs 1265. Section 1117 (modification of definition of “IAS Regulation”) shall apply in the case of a PUC and a PULC as it applies in the case of PLC.”.
9:30 pm
Richard Bruton (Dublin North Central, Fine Gael)
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I am considering bringing forward an amendment on Report Stage to clarify the re-registration arrangements for semi-State companies.
Richard Bruton (Dublin North Central, Fine Gael)
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I am considering introducing an amendment on Report Stage to change the reference which is currently to the 1968 directive to the recast directive on public disclosure of certain companies' information.
Richard Bruton (Dublin North Central, Fine Gael)
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The purpose of the amendment is to correct a typographical error and it has no substantive impact on the Bill.
Paddy Burke (Fine Gael)
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Amendments Nos. 167 and 168 are related and may be discussed together by agreement.
Richard Bruton (Dublin North Central, Fine Gael)
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The purpose of these amendments is to transpose the necessary elements of Article 3 of EU Directive 2002/17. The directive imposes an obligation on member states to link their company registers electronically with one another.
Government amendment No. 168: In page 950, lines 17 to 22, to delete all words from and including "without" in line 17 down to and including "office" in line 22 and substitute the following:"as soon as practicable, enter in the register, in respect of each branch recorded in the register, the fact that the company has been so removed from the first-mentioned register save that this subsection shall not apply in any case in which the company has been so removed as a result of any change in the legal form of the company, a merger or division, or a cross border transfer of its registered office".
Government amendment No. 169: In page 954, after line 38, to insert the following: "Notice of delivery to be published in CRO Gazette1305. The Registrar shall publish in the CRO Gazette, within 21 days after the date of such delivery, notice of the delivery to the Registrar under this Chapter of any document.".
Richard Bruton (Dublin North Central, Fine Gael)
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The purpose of the amendment is to provide for the requirement of notification of publication of filings in the CRO gazette for an external company which has a branch in the State. This is a requirement under regulation 10 of SI 395/1993.
Richard Bruton (Dublin North Central, Fine Gael)
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I am considering introducing a further amendment to the section on Report Stage to clarify that industrial and provident societies can utilise the section.
Richard Bruton (Dublin North Central, Fine Gael)
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The purpose of this amendment is to amend the definition of "local offer" to reflect the increase in the threshold from "€2,500,000" to "€5,000,000" made by the Prospectus (Directive 2003/71/ EC) (Amendment) Regulations 2012.
Government amendment No. 175: In page 996, between lines 25 and 26, to insert the following:"DAC or CLG that is a traded company may not file abridged financial statements1374.Sections 350 to 356 shall not apply to a designated activity company or a company limited by guarantee that is a traded company.".
Richard Bruton (Dublin North Central, Fine Gael)
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The purpose of this amendment is to provide that a DAC or a CLG that is a traded company may not file abridged financial statements. These companies cannot avail of the exclusion, exemptions and special arrangements with regard to public disclosure of financial information.
Richard Bruton (Dublin North Central, Fine Gael)
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I am considering introducing an amendment on Report Stage to revert to the existing law and disapply section 225 for Part 24 companies.
Government amendment No. 177: In page 1006, between lines 10 and 11, to insert the following:"(4) Where, subsequent to the registration of the constitution, an amendment of the memorandum of association is made affecting the matter of share capital, or another matter, referred to in subsection (2), that subsection shall be read as requiring the memorandum to state the matter as it stands in consequence of that amendment.".
9:40 pm
Richard Bruton (Dublin North Central, Fine Gael)
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I am considering introducing amendments on Report Stage to reflect the provisions of the AIFMD regulations.
Government amendment No. 178: In page 1010, between lines 33 and 34, to insert the following: "Statutory financial statements 1395.(1) To the extent that the use of any alternative body of accounting standards does not contravene any provision of Part 6(as that Part applies to investment companies)—(a) a true and fair view of the assets and liabilities, financial position and profit or loss of an investment company may be given by the use by the investment company of those standards in the preparation of its Companies Act entity financial statements, and (b) a true and fair view of the assets and liabilities, financial position and profit or loss of an investment company and its subsidiary undertakings as a whole may be given by the use by the investment company of those standards in the preparation of its Companies Act group financial statements.(2) In this section— "alternative body of accounting standards" means standards that accounts of companies or undertakings must comply with that are laid down by such body or bodies having authority to lay down standards of that kind in— (a) United States of America; (b) Canada; (c) Japan; or (d) any other prescribed state or territory; as may be prescribed; "relevant financial statements" means Companies Act entity financial statements or Companies Act group financial statements. (3) Before making regulations for the purposes of subsection (2), the Minister— (a) shall consult with the Central Bank and the Supervisory Authority, and (b) may consult with any other persons whom the Minister considers should be consulted. (4) Regulations made under section 3(3) of the Act of 1990 prescribing, for the purposes of the definition of "alternative body of accounting standards" in section 260A(4) of the Act of 1990, bodies having authority to lay down standards of the kind referred to in that definition, and which regulations are in force immediately before the commencement of this section, shall continue in force as if they were regulations made under section 12 for the purposes of subsection (2)and may be amended or revoked accordingly.".
Richard Bruton (Dublin North Central, Fine Gael)
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The purpose of this amendment is to correct an anomaly with regard to statutory financial statements for investment companies. The section as it stands in the Bill, by virtue of its interaction with sections 291 and 293, bypasses the requirements of sections 292(3)(a) and (c), allowing investment companies to prepare what are in effect Companies Act entity financial statements using a body of accounting standards other than IFRS and without being subject to the transposed provisions of the accounting directives.
Richard Bruton (Dublin North Central, Fine Gael)
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The purpose of this amendment is to link the subsection (1) with subsection (2) of this section by providing that where an application is made either by a migrating company to be registered in the State or by a company seeking to migrate out of the State, a director of the company must make a statutory declaration that the entity is solvent at the time of time of making the declaration and not more than three months before the date of that making.
Richard Bruton (Dublin North Central, Fine Gael)
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I am considering introducing an amendment to this section on Report Stage. The purpose of this amendment is to ensure that the existing law in respect of public auditors is maintained. The proposed amendment relates to the prohibition on connected persons acting as auditor of a society at present covered by section 187(3)(a) to (f) and (4)(a) to (d) of the 1990 Act.
Government amendment No. 181: In page 1031, between lines 26 and 27, to insert the following: "Certain captive insurers and re-insurers: exemption from requirement to have audit committee 1436.Regulation 91(9) of the European Communities (Statutory Audits) (Directive 2006/43/EC) Regulations 2010 (S.I. No. 220 of 2010) is amended by inserting after subparagraph (d) the following:"(da) a captive insurance undertaking or captive re-insurance undertaking (in each case within the meaning of Article 13 of Directive 2009/138/EC) which satisfies the following conditions—(i) it is not owned by a credit institution within the meaning of Article 1(1) of Directive 2000/12/EC or by a group of such institutions, and (ii) it has not issued transferable securities admitted to trading on a regulated market within the meaning of point 14 of Article 4(1) of Directive 2004/39/EC, or".".
Richard Bruton (Dublin North Central, Fine Gael)
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The purpose of this new section is to facilitate the exemption of a specific category of captive insurers and re-insurers (of insurance-reinsurance companies) from the obligation under Article 41 of Directive 2006/43/EC to have an audit committee. Captive insurance is considered to be inherently an exercise in self-insurance by a corporation and as such the inherent risk profile of most captive insurers is significantly different from other insurers thereby removing the need for an audit committee. An obligation on such an entity to have an audit committee is not considered to serve any real purpose, and thus places an undue and significant demand on these undertakings.
Government amendment No. 182: In page 1031, between lines 26 and 27, to insert the following: "Assurance company holding shares in its holding company 1437.In the case of—(a) a designated activity company, (b) a public limited company, or (c) an unlimited company,that is an assurance company within the meaning of section 62 of the Insurance Act 1989, neither section 113nor section 114, other than subsection (2)(b)(i), shall apply to shares subscribed for, purchased or held by it in its holding company pursuant to that section 62.".
Richard Bruton (Dublin North Central, Fine Gael)
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The purpose of this amendment is to align the Bill with existing law as section 224(6) of the Companies Act 1990 allows a subsidiary of an insurance company to hold shares in its holding company when done pursuant to section 9(1) of the Insurance Act 1990. As the Bill stands this provision is omitted and this was not intended.
Government amendment No. 183: In page 1031, between lines 26 and 27, to insert the following: "Realised profits of assurance companies 1438.(1) In the case of—(a) a designated activity company, (b) a public limited company, or (c) a company limited by guarantee, carrying on life assurance business, or industrial assurance business or both, any amount properly transferred to the profit and loss account of the company from a surplus in the fund or funds maintained by it in respect of that business and any deficit in that fund or those funds shall be respectively treated for the purposes of Chapter 7 of Part 3 as a realised profit and a realised loss, and, subject to the foregoing, any profit or loss arising on the fund or funds maintained by it in respect of that business shall be left out of account for those purposes.(2) In subsection (1)—(a) the reference to a surplus in any fund or funds of a company is a reference to an excess of the assets representing that fund or those funds over the liabilities of the company attributable to its life assurance or industrial assurance business, as shown by an actuarial investigation, and (b) the reference to a deficit in any such fund or funds is a reference to the excess of those liabilities over those assets, as so shown.(3) In this section—"actuarial investigation" means an investigation to which section 5 of the Assurance Companies Act 1909 applies or provision in respect of which is made by regulations under section 3 of the European Communities Act 1972; "life assurance business" and "industrial assurance business" have the same meaning they have as in section 3 of the Insurance Act 1936.".
Richard Bruton (Dublin North Central, Fine Gael)
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The purpose of this amendment is to reflect existing law and to provide that in respect of a designated activity company, a public limited company or a company limited by guarantee carrying on life assurance business, industrial assurance business or both, any amount properly transferred to the profit and loss account of the company from a surplus in the fund or funds maintained by it in respect of that business and any deficit in that fund or those funds shall be respectively treated for the purposes of Chapter 7 of Part 3 as a realised profit and a realised loss and, subject to the foregoing, any profit or loss arising on the fund or funds maintained by it in respect of that business shall be left out of account for those purposes.
Government amendment No. 184: In page 1031, between lines 26 and 27, to insert the following: "Amendment of section 30 of Multi-Unit Developments Act 2011 1439.Section 30 of the Multi-Unit Developments Act 2011 is amended, in subsection (1), by inserting "or, as the case may be, the Companies Registration Office Gazette" after "Iris Oifigiúil".".
Richard Bruton (Dublin North Central, Fine Gael)
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The purpose of this amendment is to facilitate the bringing of notice in the Companies Registration Office Gazette in circumstances where a company - to which the Multi Unit Developments Act applies - is struck off the register under section 311 of the 1963 Act or section 12 of the 1982 Act to have the company restored to the register.
Paddy Burke (Fine Gael)
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Amendments Nos. 185 to 187, inclusive, are related and may be discussed together by agreement.
Richard Bruton (Dublin North Central, Fine Gael)
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The purpose of these amendments is to insert a missing word in the text. The text ought to indicate that the “Minister may by regulations do anything...". The second amendment in this grouping is grammatical in nature and does not have a substantive impact on the Bill.
Government amendment No. 187: In page 1085, between lines 17 and 18, to insert the following:"Application of paragraph 12 to companies whose dissolution is declared void 13. Paragraph 12shall, with any necessary modifications, apply to a company the dissolution of which is declared under section 708to have been void as it applies to a company restored to the register under an enactment referred to in that paragraph (but subject to any order the court may make under section 708in making such a declaration).".
9:50 pm
Paddy Burke (Fine Gael)
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When is it proposed to take Report Stage?
Michael Mullins (Fine Gael)
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Tomorrow, Wednesday 18 June.
Paddy Burke (Fine Gael)
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Is that agreed? Agreed.
Paddy Burke (Fine Gael)
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When is it proposed to sit again?
Michael Mullins (Fine Gael)
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Tomorrow at 10.30 a.m.