New rules of the courts have been issued in order to facilitate the operation of the Companies Act 2014 which entered into force on 1 June 2015. These rules have been published in the form of statutory instruments (S.I.), with the District Court (Companies Act 2014) Rules 2015 issued as S.I. No. 256 of 2015 and the Rules of the Superior Courts (Companies Act 2014) 2015 issued as S.I. No. 255 of 2015, which came into operation on 1 July 2015. These new rules deal with various matters for which applications can be made to the courts including mergers and divisions, high court examinership and the winding-up of companies.
In order to qualify for these processes a company must meet the size criteria for a small company as defined under Section 350 of the Companies Act 2014, i.e. it must satisfy two of the following three requirements:
- Turnover not in excess of €8.8 million;
- Balance sheet total not in excess of €4.4 million; or
- Average number of employees not in excess of 50.
New Section 343 Application To Extend Annual Return Submission Deadline
Under the previous legislation, companies that failed to file their annual returns on time lost their audit exemption. Under the new rules, however, companies can make an application to either the High Court or, in the case of small companies, to the District Court for an extension of time to file an Annual Return (CRO Form B1) under section 343 (5) of the Companies Act 2014.
The court may make an order extending the submission deadline by 28 additional days but only one such order may be made in a particular year. This new provision should prove popular with companies as a means of ensuring they do not lose their audit exemption and incur the resulting expenses that having their financial statements audited would entail. Schedule 1 of the District Court (Companies Act 2014) Rules 2015 provides a template notice of application to the court.
Simplified Form Of Examinership Application
Under Section 509 (7) (b) of the Companies Act 2014, a small private company can apply directly to the local Circuit Court to have an examiner appointed if it becomes unable to pay its debts as they fall due, with a view to restructuring these debts and continuing as a viable business. The role of the examiner is to examine the company’s financial situation and report back to the court with proposals for the company's survival.
This ‘examinership-lite’ process, as it is colloquially known, was first introduced by Companies (Miscellaneous Provisions) Act 2013. However, many applications continued to be heard by the High Court even where the Circuit Court could have had jurisdiction, so it remains to be seen if companies will start to avail of this simplified, more cost-effective process to a greater degree under the new Companies Act 2014.
Seeking Professional Advice
As with other new provisions under this act, it is recommended that companies seek professional advice from recognised company law specialists on how best to undertake the procedures discussed above in order to ensure compliance with the new Companies Act.