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COMPANIES ACT 1990

COMPANIES ACT 1990 - LONG TITLE
AN ACT TO AMEND THE LAW RELATING TO COMPANIES AND TO PROVIDE FOR RELATED MATTERS.
[22nd December, 1990]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
COMPANIES ACT 1990 - PART X
- ACCOUNTS AND AUDIT
COMPANIES ACT 1990 - SECT 182
Interpretation of Part X.
182.—In this Part—
"the Council Directive" means Council Directive No. 84/253/EEC of 10
April, 1984*OJ No. L126, 12.5.1984, p.20.* on the approval of
persons responsible for carrying out the statutory audits of
accounting documents;
"friendly society" means a society registered under the Friendly
Societies Acts, 1896 to 1977;
"practising certificate" means a certificate awarded to a person by
a body of accountants entitling that person to practise as auditor
of a company or as a public auditor;
"public auditor" means a public auditor for the purposes of the
Industrial and Provident Societies Acts, 1893 to 1978, and the
Friendly Societies Acts, 1896 to 1977.
COMPANIES ACT 1990 - SECT 183
Appointment and removal of auditors.
183.—section 160 of the Principal Act is hereby amended—
( a ) by the substitution of the following subsections for
subsection (5)
"(5) Without prejudice to any rights of the auditor in relation to
his removal under this subsection, a company may, by ordinary
resolution at a general meeting, remove an auditor other than an
auditor who is the first auditor or one of the first auditors of
the company and appoint in his place any other person who has been
nominated for appointment by any member of the company, who is
qualified under the Companies Acts to be an auditor of a company
and of whose nomination notice has been given to its members.
( 5A ) ( a ) A company shall—
(i) within one week of the Minister's power under subsection (4)
becoming exercisable, give the Minister notice of that fact, and
(ii) where a resolution removing an auditor is passed, give notice
of that fact in the prescribed form to the registrar of companies
within 14 days of the meeting at which the resolution removing the
auditor was passed.
( b ) If a company fails to give notice as required by paragraph
(a)of this subsection, the company and every officer of the company
who is in default shall be guilty of an offence and liable, on
summary conviction, to a fine not exceeding £1,000."
and
( b ) by the substitution of the following subsection for
subsection (7)—
"(7) The directors of a company or the company in general meeting
may fill any casual vacancy in the office of auditor, but while
any such vacancy continues, the surviving or continuing auditor or
auditors, if any, may act.
COMPANIES ACT 1990 - SECT 184
Resolutions relating to appointment and removal of auditors and
rights of auditors who have been removed.
184.—(1) section 161 of the Principal Act is hereby amended by the
substitution of the following subsections for subsections (1) and
(2)—
"(1) Extended notice within the meaning of section 142 shall been
removed. be required for
( a ) a resolution at an annual general meeting of a company
appointing as auditor a person other than a retiring auditor or
providing expressly that a retiring auditor shall not be
re-appointed,
( b ) a resolution at a general meeting of a company removing an
auditor before the expiration of his term of office, and
( c ) a resolution at a general meeting of a company filling a
casual vacancy in the office of auditor.
(2) On receipt of notice of such an intended resolution as is
mentioned in subsection (1), the company shall forthwith
( a ) if the resolution is a resolution mentioned in paragraph
(a)of the said subsection (1), send a copy thereof to the retiring
auditor (if any),
( b ) if the resolution is a resolution mentioned in paragraph (b)
of the said subsection (1), send a copy thereof to the auditor
proposed to be removed, and
( c ) if the resolution is a resolution mentioned in paragraph
(c)of the said subsection (1), send a copy thereof to the person
(if any) whose ceasing to hold the office of auditor of the
company occasioned the casual vacancy.
(2A) An auditor of a company who has been removed shall be
entitled to attend—
( a ) the annual general meeting of the company at which, but for
his removal, his term of office as auditor of the company would
have expired, and
( b ) the general meeting of the company at which it is proposed
to fill the vacancy occasioned by his removal, and
to receive all notices of, and other communications relating to, any
such meeting which a member of the company is entitled to receive
and to be heard at any general meeting that such a member attends
on any part of the business of the meeting which concerns him as
former auditor of the company.".
(2) The reference in subsection (5) of the said section 161 to a
resolution to remove the first auditors by virtue of subsection (6)
of section 160 of the Principal Act shall be construed as including
a reference to a resolution to remove an auditor other than the
first auditors before the expiration of his term of office.
COMPANIES ACT 1990 - SECT 185
Registration of auditors.
185.—(1) An auditor of a company may, by a notice in writing that
auditors. complies with subsection (2) served on the company and
stating his intention to do so, resign from the office of auditor
to the company; and the resignation shall take effect on the date
on which the notice is so served or on such later date as may be
specified in the notice.
(2) A notice under subsection (1) shall contain either—
( a ) a statement to the effect that there are no circumstances
connected with the resignation to which it relates that the auditor
concerned considers should be brought to the notice of the members
or creditors of the company, or
( b ) a statement of any such circumstances as aforesaid.
(3) Where a notice under subsection (1) is served on a company—
( a ) the auditor concerned shall, within 14 days after the date
of such service, send a copy of the notice to the registrar of
companies, and
( b ) subject to subsection (4), the company shall, if the notice
contains a statement referred to in subsection (2) (b), not later
than 14 days after the date of such service send a copy of the
notice to every person who is entitled under section 159 (1) of
the Principal Act to be sent copies of the documents referred to
in the said section 159 (1).
(4) Copies of a notice served on a company under subsection (1)
need not be sent to the persons specified in subsection (3) (b)
if, on the application of the company concerned or any other person
who claims to be aggrieved, the court is satisfied that the notice
contains material which has been included to secure needless
publicity for defamatory matter and the court may order the
company's costs on an application under this section to be paid in
whole or in part by the auditor concerned notwithstanding that he
is not a party to the application.
(5) This section shall also apply to a notice given by an auditor
under section 160 (2) ( c ) of The Principal Act, indicating his
unwillingness to be re-appointed.
(6) A person who fails to comply with subsection (2) or (3) (a)
shall be guilty of an offence.
(7) If default is made in complying with subsection (3) (b), the
company concerned, and every officer of such company who is in
default, shall be guilty of an offence.
COMPANIES ACT 1990 - SECT 186
Requisitioning of general meeting of company by resigning auditors.
186.—(1) A notice served on a company under section 185 which
contains a statement in accordance with subsection (2) (b) of that
section may also requisition the convening by the directors of the
company of a general meeting of the company for the purpose of
receiving and considering such account and explanation of the
circumstances connected with his resignation from the office of
auditor to the company as he may wish to give to the meeting.
(2) Where an auditor makes a requisition under subsection (1), the
directors of the company shall, within 14 days of the service on
the company of the said notice, proceed duly to convene a general
meeting of the company for a day not more than 28 days after such
service.
(3) Subject to subsection (4), where—
( a ) a notice served on a company under section 185 contains a
statement in accordance with subsection (2) (b) of that section, and
( b ) the auditor concerned requests the company to circulate to
its members—
(i) before the general meeting at which, apart from the notice, his
term of office would expire, or
(ii) before any general meeting at which it is proposed to fill
the vacancy caused by his resignation or convened pursuant to a
requisition under subsection (1),
a further statement in writing prepared by the auditor of
circumstances connected with the resignation that the auditor
considers should be brought to the notice of the members,
the company shall—
(I) in any notice of the meeting given to members of the company
state the fact of the statement having been made, and
(II) send a copy of the statement to the registrar of companies
and to every person who is entitled under section 159 (1) of the
Principal Act to be sent copies of the documents referred to in
the said section 159 (1).
(4) Subsection (3) need not be complied with by the company
concerned if, on the application either of the company or any other
person who claims to be aggrieved, the court is satisfied that the
rights conferred by this section are being abused to secure needless
publicity for defamatory matter and the court may order the
company's costs on an application under this section to be paid in
whole or in part by the auditor concerned notwithstanding that he
is not a party to the application.
(5) An auditor of a company who has resigned from the office of
auditor shall be permitted by the company to attend—
( a ) the annual general meeting at which, but for his
resignation, his term of office would have expired, and
( b ) any general meeting at which it is proposed to fill the
vacancy caused by his resignation or convened pursuant to a
requisition of his under subsection (1),
and the company shall send him all notices of, and other
communications relating to, any such meeting that a member of the
company is entitled to receive and the company shall permit him to
be heard at any such meeting which he attends on any part of the
business of the meeting which concerns him as a former auditor of
the company.
(6) If default is made in complying with subsection (2), (3) or
(5), the company concerned, and every officer of the company who is
in default, shall be guilty of an offence.
COMPANIES ACT 1990 - SECT 187
Qualification for appointment as auditor.
187.—(1) Subject to section 190, a person shall not be qualified
for appointment either as auditor of a company or as a public
auditor unless—
( a ) (i) he is a member of a body of accountants for the time
being recognised by the Minister for the purposes of this section
and holds a valid practising certificate from such a body, or
(ii) he holds an accountancy qualification that is, in the opinion
of the Minister, of a standard which is not less than that
required for such membership as aforesaid and which would entitle
him to be granted a practising certificate by that body if he were
a member of it, and is for the time being authorised by the
Minister to be so appointed, or
(iii) he was, on the 31st day of December, 1990, a member of a
body of accountants for the time being recognised under section 162
(1) ( a ) of The Principal Act, or
(iv) he was authorised by the Minister before the 3rd day of
February, 1983, and is for the time being authorised by the
Minister to be so appointed, or
(v) he is a person to whom section 188 applies, or
(vi) he is a person to whom section 189 applies, and is for the
time being authorised by the Minister to be so appointed, and
( b ) the particulars required by sections 199 and 200 in respect
of such a person have been forwarded to the registrar of companies.
(2) None of the following persons shall be qualified for appointment
as auditor of a company—
( a ) an officer or servant of the company,
( b ) a person who has been an officer or servant of the company
within a period in respect of which accounts would fall to be
audited by him if he were appointed auditor of the company.
( c ) a parent, spouse, brother, sister or child of an officer of
the company,
( d ) a person who is a partner of or in the employment of an
officer of the company,.
( e ) a person who is disqualified under this subsection for
appointment as auditor of any other body corporate that is a
subsidiary or holding company of the company or a subsidiary of the
company's holding company, or would be so disqualified if the body
corporate were a company,
( f ) a person who is disqualified under subsection (3) for
appointment as a public auditor of a society that is a subsidiary
or holding company of the company or a subsidiary of the company's
holding company,
( g ) a body corporate.
(3) None of the following persons shall be qualified for appointment
as a public auditor of a society—
( a ) an officer or servant of the society,
( b ) a person who has been an officer or servant of the society
within a period in respect of which accounts would fall to be
audited by him if he were appointed auditor of the society,
( c ) a parent, spouse, brother, sister or child of an officer of
the society,
( d ) a person who is a partner of or in the employment of an
officer of the society,
( e ) a person who is disqualified under this subsection for
appointment as a public auditor of any other society that is a
subsidiary or holding company of the society or a subsidiary of the
society's holding company,.
( f ) a person who is disqualified under subsection (2) for
appointment as auditor of a company that is a subsidiary or holding
company of the society,
( g ) a body corporate.
(4) None of the following persons shall be qualified for appointment
as a public auditor of a friendly society—
( a ) an officer or servant of the friendly society,
( b ) a person who has been an officer or servant of the
friendly society within a period in respect of which accounts would
fall to be audited by him if he were appointed auditor of the
friendly society,
( c ) a parent, spouse, brother, sister or child of an officer of
the friendly society,
( d ) a person who is a partner of or in the employment of an
officer of the friendly society,
( e ) a body corporate.
(5) A person shall not, by virtue of subsection (3) or (4), be
disqualified for appointment as public auditor of a society or a
friendly society at any time during the period of 2 years from the
commencement of this section if on such commencement he stands duly
appointed as public auditor of the society or friendly society, as
the case may be.
(6) Subject to subsection (5), a person shall not act as auditor
of a company or as a public auditor at a time when he is
disqualified under this section for appointment to that office.
(7) If, during his term of office as auditor of a company or
public auditor, a person becomes disqualified under the Companies
Acts for appointment to that office, he shall thereupon vacate his
office and give notice in writing to the company, society or
friendly society that he has vacated his office by reason of such
disqualification.
(8) This section shall not apply to the Comptroller and Auditor
General.
(9) A person who contravenes subsection (6) or (7) shall be guilty
of an offence and liable—
( a ) on summary conviction, to a fine not exceeding £1,000, and,
for continued contravention, to a daily default fine not exceeding
£50, or
( b ) on conviction on indictment, to a fine not exceeding £5,000
and, for continued contravention, to a daily default fine not
exceeding £100.
( 10 ) ( a ) In this section "society" means a society registered
under the Industrial and Provident Societies Acts, 1893 to 1978.
( b ) References in this section to an officer or servant do not
include references to an auditor or a public auditor.
(11) A recognition or authorisation by the Minister under section
162 of the Principal Act shall, notwithstanding the repeal of that
section by this Act, continue in force as if given under this
section—
( a ) in the case of a recognition, until the time limit provided
expires, or the Minister's decision is communicated to the body
concerned, under section 191, whichever is the earlier, and
( b ) in the case of an authorisation, until the time limit for
the person to make the notification required by section 199 (3)
expires.
COMPANIES ACT 1990 - SECT 188
Persons undergoing training on 1 January, 1990.
188.—(1) Without prejudice to section 187, a person to whom this
section applies shall also be qualified for appointment as auditor
of a company or a public auditor.
(2) This section applies to a person—
( a ) who on the 1st day of January, 1990, was a person to whom
Article 18 of the Council Directive applies, and
( b ) who, following his admission, before the 1st day of January,
1996, to the membership of a body of accountants recognised under
section 191, was subsequently awarded a practising certificate by
that body, and
( c ) in respect of whom such certificate remains valid.
COMPANIES ACT 1990 - SECT 189
Approval of qualifications obtained outside the State.
189.—(1) Without prejudice to section 187, the Minister may Approval
of declare that, subject to subsection (2), persons who hold—
( a ) a qualification entitling them to audit accounts under the
law of a specified country outside the State, or
( b ) a specified accountancy qualification recognised under the law
of a country outside the State,
shall be regarded as qualified for appointment as auditor of a
company or a public auditor.
(2) Before making a declaration under subsection (1), the Minister—
( a ) must be satisfied that the qualification concerned is of a
standard not less than is required by the Companies Acts to qualify
a person for appointment as auditor of a company or a public
auditor, and
( b ) may direct that such a person shall not be treated as
qualified for the purposes of subsection (1) unless he holds such
additional educational qualifications as the Minister may specify for
the purpose of ensuring that such persons have an adequate knowledge
of the law and practice in the State relevant to the audit of
accounts, and
( c ) may have regard to the extent to which persons qualified
under the Companies Acts for appointment as auditor of a company or
a public auditor are recognised by the law of the country in
question as qualified to audit accounts there.
(3) Different directions may be given under subsection (2) (b) in
relation to different qualifications.
(4) The Minister may, if he thinks fit, revoke or suspend for a
specified period, in such manner and on such conditions as he may
think appropriate, any declaration previously made under subsection
(1)—
COMPANIES ACT 1990 - SECT 190
Consultation by Minister regarding standard and qualifications .
190.—(1) Before granting, renewing, withdrawing, revoking, suspending
or refusing a recognition of a body of accountants under the
Companies Acts, the Minister may consult with any person or body of
persons as to the conditions imposed or standards required by the
body of accountants concerned in connection with membership of that
body or the awarding to persons of practising certificates.
(2) The Minister may also consult with any person or body of
persons before forming any opinion or making any declaration in
relation to the qualifications held by any person or class of
persons as respects qualification for appointment as auditor of a
company or a public auditor.
COMPANIES ACT 1990 - SECT 191
Recognition of bodies of accountants.
191.—(1) Where a body of accountants recognised under section 162 of
the Principal Act satisfies the Minister, within three months after
the commencement of this section—
( a ) that the standards relating to training, qualifications and
repute required by that body for the awarding to a person of a
practising certificate are not less than those specified in Articles
3 to 6, 8 and 19 of the Council Directive, and
( b ) as to the standards it applies to its members in the areas
of ethics, codes of conduct and practice, independence, professional
integrity, technical standards, disciplinary procedures,
the Minister shall renew such recognition.
(2) Where a body of accountants referred to in subsection (1) does
not satisfy the Minister as to the matters specified in that
paragraph, he shall withdraw the recognition of that body until he
is so satisfied.
(3) Where a body of accountants which has not previously been
recognised by the Minister under section 162 of the Principal Act
applies for such recognition after the commencement of this section,
the Minister may grant such recognition if he is satisfied as to
the matters referred to in subsection (1) in relation to that body
or may refuse such recognition if he is not so satisfied.
COMPANIES ACT 1990 - SECT 192
Provisions in relation to recognition and authorisation by Minister
under section 187.
192.—(1) The Minister may, at the time it is granted or at any
time during the currency of a recognition or authorisation under
section 187 by notice in writing given to the body of accountants
or individual concerned, attach to the recognition or authorisation,
as the case may be, such terms and conditions as he thinks
necessary or expedient and specified in the notice.
(2) The Minister may, at any time during the currency of a
recognition or authorisation under section 187, by notice in writing
given to the body of accountants or individual concerned, amend its
terms or conditions or insert into it or delete from it other
terms or conditions.
(3) The Minister may, at any time during its currency, by notice
in writing given to the body of accountants or individual concerned,
revoke, or suspend for a specified period, a recognition or
authorisation under the said section 187.
( 4 ) ( a ) The Minister may require a body of accountants
recognised for the purposes of the said section 187 to prepare and,
within such period as may be specified in the requirement, to
submit to the Minister for his approval a code prescribing standards
of professional conduct for its members and providing for sanctions
for breaches of the code, and the body of accountants shall comply
with the requirement.
( b ) A body of accountants may, at any time, prepare and submit
to the Minister a code amending or revoking a code prepared by it
under this subsection.
( c ) The Minister may approve of a code submitted to him under
this subsection.
( d ) A code approved of by the Minister under this section shall
be brought into operation and enforced by the body of accountants
concerned in accordance with its terms.
( e ) Where the Minister approves a code under this subsection, he
may direct that such provisions of the code as relate to the
professional integrity of auditors shall apply, with any necessary
modifications approved by the Minister, to persons individually
authorised by him,
( f ) The Minister may, by regulations, make provision for the
function of monitoring compliance by individuals with the code in
accordance with paragraph (e). Such regulations may in particular
provide for this function to be performed on behalf of the Minister
by any body or person specified in the regulations. The regulations
may also contain such incidental, consequential, transitional or
supplementary provision as may appear to be necessary or proper to
ensure compliance with the specified provisions of the code by the
individuals concerned.
( g ) Every regulation made by the Minister under this section
shall be laid before each House of the Oireachtas as soon as may
be after it is made and, if a resolution annulling the regulation
is passed by either House within the next 21 days on which that
House has sat after the regulation is laid before it, the
regulation shall be annulled accordingly, but without prejudice to
the validity of anything previously done thereunder.
(5) References in this section to recognitions under section 187
include references to recognitions under Section 162 (inserted by the
Companies (Amendment) Act, 1982) of The Principal Act and references
in this section to an authorisation under section 187 include
references to authorisations under the said section 162.
COMPANIES ACT 1990 - SECT 193
Auditors' report and access to books and of attendance and audiences
at general meetings.
193.—(1) The auditors of a company shall make a report to the
members on the accounts examined by them, and on every balance
sheet and profit and loss account, and all group accounts, laid
before the company in general meeting during their tenure of office.
(2) The auditors' report shall be read at the annual general
meeting of the company and shall be open to inspection by any
member.
(3) Every auditor of a company shall have a right of access at
all reasonable times to the books, accounts and vouchers of the
company and shall be entitled to require from the officers (within
the meaning of section 197 (5)) of the company such information and
explanations that are within their knowledge or can be procured by
them as he thinks necessary for the performance of the duties of
the auditors.
(4) The auditors' report shall state—
( a ) whether they have obtained all the information and
explanations which, to the best of their knowledge and belief, are
necessary for the purposes of their audit,
( b ) whether, in their opinion, proper books of account have been
kept by the company,
( c ) whether, in their opinion, proper returns adequate for their
audit have been received from branches of the company not visited
by them,.
( d ) whether the company's balance sheet and (unless it is framed
as a consolidated profit and loss account) profit and loss account
are in agreement with the books of account and returns,
( e ) except in the case of a company that has taken advantage
of any of the provisions of Part III of the Sixth Schedule to The
Principal Act, whether, in their opinion, the company's balance sheet
and profit and loss account and (if it is a holding company
submitting group accounts) the group accounts have been properly
prepared in accordance with the provisions of the Companies Acts and
give a true and fair view—
(i) in the case of the balance sheet, of the state of the
company's affairs as at the end of its financial year,
(ii) in the case of the profit and loss account (if it is not
framed as a consolidated profit and loss account), of the company's
profit and loss for its financial year,
(iii) in the case of group accounts submitted by a holding company,
of the state of affairs and profit or loss of the company and its
subsidiaries dealt with thereby, so far as concerns members of the
company,
( f ) in the case of a company that has taken advantage of any
of the provisions of Part III of the Sixth Schedule to The
Principal Act, whether, in their opinion, its balance sheet and
profit and loss account and (if it is a holding company submitting
group accounts) the group accounts have been properly prepared in
accordance with the provisions of the Companies Acts and give a
true and fair view of the matters referred to in subparagraphs (i)
and (ii) and, where appropriate, subparagraph (iii) of paragraph (e)
subject to the non-disclosure of any matters (to be indicated in
the report) which by virtue of the said Part III are not required
to be disclosed, and
( g ) whether, in their opinion, there existed at the balance
sheet date a financial situation which under section 40 (1) of the
Companies (Amendment) Act, 1983, would require the convening of an
extraordinary general meeting of the company.
(5) The auditors of a company shall be entitled to attend any
general meeting of the company and to receive all notices of, and
other communications relating to, any general meeting which any
member of the company is entitled to receive and to be heard at
any general meeting which they attend on any part of the business
of the meeting which concerns them as auditors.
(6) A person who is appointed as auditor of a company or as a
public auditor shall be under a general duty to carry out such
audit with professional integrity.
(7) Any reference in The Principal Act to section 163 of or the
Seventh Schedule to that Act shall be construed as references to
this section.
COMPANIES ACT 1990 - SECT 194
Duty of auditors if proper books of account not being kept.
194.—(1) If, at any time, the auditors of a company form the
opinion that the company is contravening, or has contravened, section
202 by failing to cause to be kept proper books of account (within
the meaning of that section) in relation to the matters specified
in subsection (1) and (2) of that section, the auditors shall—
( a ) serve a notice on the company as soon as may be stating
their opinion, and
( b ) not later than 7 days after the service of such notice on
the company, notify the registrar of companies in the prescribed
form of the notice.
(2) Where the auditors form the opinion that the company has
contravened section 202 but that, following such contravention, the
directors of the company have taken the necessary steps to ensure
that proper books of account are kept as required by that section,
subsection (1) (b) shall not apply.
(3) This section shall not require the auditors to make the
notifications referred to in subsection (1) if they are of opinion
that the contraventions concerned are minor or otherwise immaterial
in nature.
(4) A person who contravenes subsection (1) shall be guilty of an
offence.
COMPANIES ACT 1990 - SECT 195
Prohibition on acting in relation to adult while disqualification
order in force.
195.—(1) If a person who is subject or deemed to be subject to a
disqualification order—
( a ) becomes, or remains after 28 days from the date of the
making of the order, a partner in a firm of auditors.
( b ) gives directions or instructions in relation to the conduct
of any part of the audit of the accounts of a company, or
( c ) works in any capacity in the conduct of an audit of the
accounts of a company,
he shall be guilty of an offence.
(2) Where a person is convicted of an offence under subsection (1),
the period for which he was disqualified shall be extended for a
further period of ten years from such date, or such other further
period as the court, on the application of the prosecutor and
having regard to all the circumstances of the case, may order.
(3) In this section—
( a ) "company has meaning assigned to it by section 159, and
also includes any society registered under the Industrial and
Provident Societies Act, 1893 to 1978.
( b ) "disqualification order" has the meaning assigned to it by
section 159.
COMPANIES ACT 1990 - SECT 196
Powers of auditors in relation to subsidiaries.
196.—(1).Where a company (referred to in this section as "the
holding company") has a subsidiary, then—
( a ) in case the subsidiary is a body corporate incorporated in
the State, it shall be the duty of the subsidiary and its auditors
to give to the auditors of the holding company such information and
explanations as those auditors may reasonably require for the
purposes of their duties as auditors of the holding company,
( b ) in any other case, it shall be the duty of the holding
company, if required by its auditors to do so, to take all such
steps as are reasonably open to it to obtain from the subsidiary
such information and explanations as aforesaid.
(2) If a company or an auditor fails to comply with subsection (1)
within five days of the making of the relevant requirement under
that subsection, the company and every officer thereof who is in
default, or the auditor, as the case may be, shall be guilty of
an offence.
(3) In a prosecution for an offence under this section, it shall
be a defence for the defendant to show that it was not reasonably
possible for him to comply with the requirement under subsection (1)
to which the offence relates within the time specified in subsection
(2) but that he complied therewith as soon as was reasonably
possible after the expiration of such time.
(4) A person guilty of an offence under this section shall be
liable to a fine.
COMPANIES ACT 1990 - SECT 197
Penalty for false statement to auditors.
197.—(1) An officer of a company who knowingly or recklessly makes
a statement to which this section applies that is misleading, false
or deceptive in a material particular shall be guilty of an
offence.
(2) This section applies to any statement made to the auditors of
a company (whether orally or in writing) which conveys, or purports
to convey, any information or explanation which they require under
the Companies Acts, or are entitled so to require, as auditors of
the company.
(3) An officer of a company who fails to provide to the auditors
of the company or of the holding company of the company, within
two days of the making of the relevant requirement, any information
or explanations that the auditors require as auditors of the company
or of the holding company of the company and that is within the
know ledge of or can be procured by the officer shall be guilty
of an offence.
(4) In a prosecution for an offence under this section, it shall
be a defence for the defendant to show that it was not reasonably
possible for him to comply with the requirement under subsection (3)
to which the offence relates within the time specified in that
subsection but that he complied therewith as soon as was reasonably
possible after the expiration of such time.
(5) In this section "officer", in relation to a company, includes
any employee of the company.
COMPANIES ACT 1990 - SECT 198
Register of auditor.
198.—(1) The registrar of companies shall maintain a register
containing the names and addresses of persons who have been notified
to him as qualified for appointment as auditor of a company or as
a public auditor.
(2) In this section and in section 199, "address", in relation to
a person, means his usual residential or business address.
COMPANIES ACT 1990 - SECT 199
Transitional provisions concerning register.
199.—(1) Subject to subsection (2), a body of accountants whose
recognition has been renewed by the Minister under section 191(1) or
which has been recognised under section 191 (3) shall, within one
month after such renewal or recognition, deliver to the registrar of
companies the name and address of each of its members who is
qualified for appointment under the Companies Acts as auditor of a
company or as a public auditor.
(2) Without prejudice to the generality of subsection (1), a body
of accountants based outside the State, whose recognition is renewed
or granted as aforesaid, shall notify details of those of its
members who wish to practise in the State.
(3) Every person who, immediately before the commencement of this
section, holds an authorisation from the Minister under the Companies
Acts to act as auditor of a company or as a public auditor
(otherwise than by virtue of membership of a recognised body of
accountants) shall, within one month after such commencement, deliver
his name and address to the registrar of companies.
(4) If default is made in complying with subsection (1), the body
of accountants concerned shall be guilty of an offence.
COMPANIES ACT 1990 - SECT 200
Duty to keep registrar informed.
200.—(1) Subject to subsection (2), where, by virtue of his becoming
a member of a body of accountants, a person (other than a person
registrar informed. referred to in section 199 (1)) becomes qualified
for appointment as auditor of a company or as a public auditor,
the body concerned shall, within one month of his becoming so
qualified, deliver his name and address to the registrar of
companies for inclusion in the register referred to in section 198.
(2) Without prejudice to the generality of subsection (1), a
recognised body of accountants based outside the State shall notify
details of those of its members who wish to practise in the State.
(3) Every person who, after the commencement of this section, is
granted an authorisation by the Minister under the Companies Acts to
act as auditor of a company or as a public auditor (otherwise than
by virtue of membership of a recognised body of accountants) shall,
within one month after such grant, deliver his name and address to
the registrar of companies.
(4) If default is made in complying with subsection (1), the body
of accountants concerned shall be guilty of an offence.
COMPANIES ACT 1990 - SECT 201
Power to make supplementary regulations.
201.—(1) The Minister may make such supplementary regulations as he
considers necessary for the proper and effective implementation of
the Council Directive.
(2) Without prejudice to the generality of subsection (1), if, in
any respect, any difficulty arises in regard to the implementation
of the Directive, the Minister may by regulations do anything which
appears to him to be necessary or expedient for removing that
difficulty, and any such regulations may modify any provision of
this Part so far as may be necessary or expedient to implement the
Directive but no regulations shall be made under this subsection in
relation to any provision of this Part after the expiration of 3
years commencing on the day on which the relevant provision of this
Part came into operation.
(3) Every regulation made by the Minister under this section shall
be laid before each House of the Oireachtas as soon as may be
after it is made and, if a resolution annulling the regulation is
passed by either House within the next 21 days on which that House
has sat after the regulation is laid before it, the regulation
shall be annulled accordingly, but without prejudice to the validity
of anything previously done thereunder.
COMPANIES ACT 1990 - SECT 202
Keeping of books of account.
202.—(1) Every company shall cause to be kept proper books of
account account, whether in the form of documents or otherwise,
that—
( a ) correctly record and explain the transactions of the company,
( b ) will at any time enable the financial position of the
company to be determined with reasonable accuracy,
( c ) will enable the directors to ensure that any balance sheet,
profit and loss account or income and expenditure account of the
company complies with the requirements of the Companies Acts, and
( d ) will enable the accounts of the company to be readily and
properly audited.
(2) The books of account of a company shall be kept on a
continuous and consistent basis, that is to say, the entries therein
shall be made in a timely manner and be consistent from one year
to the next.
(3) Without prejudice to the generality of subsections (1) and (2),
books of account kept pursuant to those subsections shall contain—
( a ) entries from day to day of all sums of money received and
expended by the company and the matters in respect of which the
receipt and expenditure takes place,
( b ) a record of the assets and liabilities of the company,
( c ) if the company's business involves dealing in goods—
(i) a record of all goods purchased, and of all goods sold (except
those sold for cash by way of ordinary retail trade), showing the
goods and the sellers and buyers in sufficient detail to enable the
goods and the sellers and buyers to be identified and a record of
all the invoices relating to such purchases and sales,
(ii) statements of stock held by the company at the end of 3 each
financial year and all records of stocktakings from which any such
statement of stock has been, or is to be, prepared, and
( d ) if the company's business involves the provision of services,
a record of the services provided and of all the invoices relating
thereto.
(4) For the purposes of subsections (1), (2) and (3), proper books
of account shall be deemed to be kept if they comply with those
subsections and give a true and fair view of the state of affairs
of the company and explain its transactions.
(5) Subject to subsection (6), the books of account shall be kept
at the registered office of the company or at such other place as
the directors think fit.
(6) If books of account are kept at a place outside the State,
there shall be sent to and kept at a place in the State and be
at all reasonable times open to inspection by the directors such
accounts and returns relating to the business dealt with in the
books of account so kept as will disclose with reasonable accuracy
the financial position of that business at intervals not exceeding 6
months and will enable to be prepared in accordance with the
Companies Acts the company's balance sheet, its profit and loss
account or income and expenditure account and any document annexed
to any of those documents giving information which is required by
the said Acts and is thereby allowed to be so given.
(7) Books of account required by this section to be kept, and
accounts and returns referred to in subsection (6), shall be kept
either in written form in an official language of the State or so
as to enable the books of account and the accounts and returns to
be readily accessible and readily convertible into written form in
an official language of the State.
(8) A company shall make its books of account, and any accounts
and returns referred to in subsection (6), available in written form
in an official language of the State at all reasonable times for
inspection without charge by the officers of the company and by
other persons entitled pursuant to the Companies Acts to inspect the
books of account of the company.
(9) A record, being a book of account required by this section to
be kept or an account or return referred to in subsection (6),
shall be preserved by the company concerned for a period of at
least 6 years after the latest date to which it relates.
(10) A company that contravenes this section and a person who,
being a director of a company, fails to take all reasonable steps
to secure compliance by the company with the requirements of this
section, or has by his own wilful act been the cause of any
default by the company thereunder, shall be guilty of an offence:
Provided, however, that—
( a ) in any proceedings against a person in respect of an
offence under this section consisting of a failure to take
reasonable steps to secure compliance by a company with the
requirements of this section, it shall be a defence to prove that
he had reasonable grounds for believing and did believe that a
competent and reliable person was charged with the duty of ensuring
that those requirements were complied with and was in a position to
discharge that duty, and
( b ) a person shall not be sentenced to imprisonment for such an
offence unless, in the opinion of the court, the offence was
committed wilfully.
COMPANIES ACT 1990 - SECT 203
Liability of officers of company to penalty where proper books of
account not kept.
203.—(1) If—
( a ) a company that is being wound up and that is unable to
pay all of its debts, has contravened section 202, and
( b ) the court considers that such contravention has contributed
to the company's inability to pay all of its debts or has resulted
in substantial uncertainty as to the assets and liabilities of the
company or has substantially impeded the orderly winding up thereof,
every officer of the company who is in default shall be guilty of
an offence and liable—
(i) on summary conviction, to a fine not exceeding £1,000 or to
imprisonment for a term not exceeding 6 months or to both, or
(ii) on conviction on indictment, to a fine not exceeding £10,000
or to imprisonment for a term not exceeding 5 years or to both.
(2) In a prosecution for an offence under this section it shall be
a defence for the person charged with the offence to show that—
( a ) he took all reasonable steps to secure compliance by the
company with section 202, or
( b ) he had reasonable grounds for believing and did believe that
a competent and reliable person, acting under the supervision or
control of a director of the company who has been formally
allocated such responsibility, was charged with the duty of ensuring
that that section was complied with and was in a position to
discharge that duty.
COMPANIES ACT 1990 - SECT 204
Personal liability of officers of company where proper books of
account not kept.
204.—(1) Subject to subsection (2), if—
( a ) a company that is being wound up and that is unable to
pay all of its debts has contravened section 202, and
( b ) the court considers that such contravention has contributed
to the company's inability to pay all of its debts or has resulted
in substantial uncertainty as to the assets and liabilities of the
company or has substantially impeded the orderly winding up thereof,
the court, on the application of the liquidator or any creditor or
contributory of the company, may, if it thinks it proper to do so,
declare that any one or more of the officers and former officers
of the company who is or are in default shall be personally
liable, without any limitation of liability, for all, or such part
as may be specified by the court, of the debts and other
liabilities of the company.
(2) On the hearing of an application under this subsection, the
person bringing the application may himself give evidence or call
witnesses.
( 3 ) ( a ) Where the court makes a declaration under subsection
(1), it may give such directions as it thinks proper for the
purpose of giving effect to the declaration and in particular may
make provision for making the liability of any such person under
the declaration a charge on any debt or obligation due from the
company to him, or on any mortgage or charge or any interest in
any mortgage or charge on any assets of the company held by or
vested in him or any company or other person on his behalf, or
any person claiming as assignee from or through the person liable
under the declaration or any company or person acting on his
behalf, and may from time to time make such further order as may
be necessary for the purpose of enforcing any charge imposed under
this subsection.
( b ) In paragraph (a) "assignee" includes any person to whom or
in whose favour, by the directions of the person liable, the debt,
obligation, mortgage or charge was created, issued or transferred or
the interest created, but does not include an assignee for valuable
consideration (not including consideration by way of marriage) given
in good faith and without notice of any of the matters on the
ground of which the declaration is made.
(4) The court shall not make a declaration under subsection (1) in
respect of a person if it considers that—
( a ) he took all reasonable steps to secure compliance by the
company with section 202, or
( b ) he had reasonable grounds for believing and did believe that
a competent and reliable person, acting under the supervision or
control of a director of the company who has been formally
allocated such responsibility, was charged with the duty of ensuring
that that section was complied with and was in a position to
discharge that duty.
(5) This section shall have effect notwithstanding that the person
concerned may be criminally liable in respect of the matters on the
ground of which the declaration is to be made.
(6) In this section "officer", in relation to a company, includes a
person who has been convicted of an offence under section 194, 197
or 242 in relation to a statement concerning the keeping of proper
books of account by the company.
COMPANIES ACT 1990 - SECT 205
Commencement of Part X.
205.—Each of the following provisions, that is to say sections 202
to 204 shall apply as respects the accounts of a company for each
financial year of the company beginning or ending after such date
after the commencement of the provision as may be specified by the
Minister by order.