knowledge | 28 April 2022 |
COVID-19: Extension of Interim Changes to Company Law
This updated briefing addresses the further extension of the interim period under the Companies (Miscellaneous Provisions) (Covid-19) Act 2020 – to 31 December 2022 – in which easier and more streamlined steps may be taken in order to comply with certain Companies Act and ancillary requirements.
For the most part, the Companies (Miscellaneous Provisions) (Covid-19) Act 2020 (the “Covid Act”) amends the Companies Act 2014 (the “Companies Act”) and the Industrial and Provident Societies Act 1893 (the “1893 Act”), each on a temporary basis, so that, notwithstanding challenges posed by the pandemic, entities can continue to operate in compliance with relevant provisions of those Acts.
Broadly, the provisions apply for an interim period that, having been extended, currently is due to expire on 31 Deceber 20221. This period can be further extended, from time to time, at the request of the Minister for Enterprise, Trade and Employment2, having consulted with the Minister for Health, if they are satisfied that such an extension is in the public interest, albeit this is expected to be the final extension of these particular measures. The continuation of these provisions will provide additional breathing space and continuity for businesses to the end of this calendar year.
Nature of the Amendments
The impact of the COVID-19 crisis on entities varies depending on the nature of any particular business. Nonetheless, directors, shareholders and other stakeholders must continue to be able to communicate with each other and take decisions, maintain filings and execute documentation despite restrictions on travel, physical meetings and attendance at workplaces. The Covid Act seeks to facilitate this by modifying the law relating to companies’ annual general meetings (“AGMs”), extraordinary general meetings (“EGMs”) and creditors’ meetings. It also makes certain amendments to procedures for examinership and winding up.
Execution of Instruments
Currently, the management of some companies may be dislocated. Also, it may sometimes be that the company seal is in one location and the directors, secretary and registered persons are in another. To address this, the Covid Act allows, during the interim period, documents under seal to be executed in counterparts and then to be regarded as a single document.
The Covid Act eases some of the legal requirements in respect of convening and conducting “general meetings”. For these purposes, these include AGMs, EGMs, meetings of a particular class of shareholder and scheme of arrangement meetings.
During the interim period:
- a company need not hold a general meeting at a physical venue but may conduct it wholly or partly by electronic means, provided all attendees have a reasonable opportunity to participate;
- the company directors can, where they deem it necessary to do so in order to comply with public health guidance, cancel, change venue or change the means of holding the general meeting or may cancel such meeting due to exceptional and unexpected circumstances;
- where a general meeting is conducted by electronic means, the chairperson may conduct a vote to decide on a resolution by a show of hands of participating members by way of such technology where the chairperson is of the opinion that he or she can identify the members entitled to vote and verify the content of voting instructions relating to the resolution; and
- notwithstanding anything in the company’s constitution, each member and proxy who participates in a general meeting by electronic means will be counted in the quorum.
The Covid Act further sets out requirements, for cases in which a general meeting is to be held wholly or partly by electronic means, for matters such as the required content of notices (for example, details of the electronic platform and procedures for attendance, communication and voting), identification of attendees, the security of electronic platforms and the consequences of failure or disruption of the electronic technology use.
The Covid Act permits the debt threshold for the commencement of a winding up by the court to be extended, for an interim period, from €10,000 for individual debts and €20,000 for aggregate debts, to €50,000 (a single threshold).
In respect of creditors’ meetings, the Act sets out similar measures (as those made in respect of general meetings) for creditors’ meetings which are summoned, convened or called during the interim period.
The Covid Act allows an examiner of a company that goes into examinership during the interim period to seek an extended period of 50 days in which to make a report to the court under the Companies Act.
An examiner has up to 70 days in which to present a report to the court and the Covid Act allows for the extension of that period by a further 30 days on application to the court. This amendment will mean a maximum period of examinership of 150 days in exceptional circumstances (which the Covid Act states include, but are not limited to, the nature and impact of COVID-19 on the company).
Amendments to the 1893 Act
The Covid Act also makes changes to the 1893 Act to provide more flexibility to registered societies when holding an AGM and general meetings of the society during the interim period (the same period as for companies under the Covid Act). These changes to the 1893 Act are very similar to those made to the Companies Act in respect of companies’ general meetings.
Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020
The Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 provides for remote meetings of State bodies where some or all of the members of that body are not in the one place and also provides for remote meetings of unincorporated bodies (such as clubs and charitable organisations). The relevant provisions of this Act were also commenced on 21 August 2020, initially for an interim period of three months but which was extended to 9 November 2021 by Ministerial order.3
- The initial interim period, which expired on 31 December 2020, has been extended four times, most recently to 28 April 2022. The associated Statutory Instrument has not yet been published.
- The title of the relevant Minister was altered from the Minister for Business, Enterprise and Innovation to the Minister for Enterprise, Trade and Employment by the Business, Enterprise and Innovation (Alteration of Name of Department and Title of Minister) Order 2020 from 10 November 2020.
- Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 (Section 30(3)) Order 2021.
This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.