When a company or individual becomes aware of a discrepancy in beneficial ownership details filed with the Central Register of Beneficial Ownership (CRBO) there is an option to file a Discrepancy Report.

History of Discrepancy Notices filed in the CRBO

• In 2020 – just 2

• In 2021 – over 700

• In 2022 – over 600 

What is going on and why such an extraordinary surge?

It looks like the trigger event was the enactment of the Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021 in 2021. This Act transposed EU Money Laundering Directive into Irish law thus bringing Ireland in line with current European AML and countering financing of terrorism (“AML/CFT”) framework.  

Companies are not allowed to be told who has filed the Discrepancy Notices so who is filing and why remains a matter of conjecture. It seems likely though Discrepancy Notices are being filed in a knee jerk reaction to the implementation of the Criminal Justice Act on the basis of “to be sure, to be sure”.

In the event you receive a warning email from the CRBO make sure you respond ASAP to ensure you remain within all relevant deadlines. Do not assume there is a discrepancy. Check the beneficial ownership details as in all likelihood your details are fine. Provided you engage proactively and in a timely manner with the CRBO, with luck, all you will end up with is a story to tell. Surprising, irritating but absolutely fixable!

Easter eggs don’t just mean eggs for Easter anymore now social media refers to Easter Eggs to mean an intentional inside joke or hidden message. Hard to equate an intentional joke with company law. Mind you there will always be a rarefied few who consider compliance with company law a joke but that is another kettle of fish. 

Compliance is hard for most people, what to comply with and why, particularly when trying to do so whilst carrying out our “actual” job. Compliance though is part of our “actual” job and should form part of an on-going continuous process in any organisation.

To have compliance enter your company’s lexicon can start from something as simple as an Agenda item for the next Board Meeting.

• Have compliance an Agenda item for discussion at every Board Meeting.

• Agree top five compliance issues or concerns and start knocking them off one by one.

• Consider appointing one person to lead the compliance processes in your company.

• Types of compliance issues could include any of the following.

• Anti-Money laundering legislation – when is the last time a review was undertaken on how your company manages AML?

• Risk Register – does your company have one, when was it last reviewed by the Directors at an actual meeting?

• Beneficial Ownership – a company must maintain an internal statutory register of beneficial ownership whilst ensuring it also files and continues to update filings with the Central Register of Beneficial Ownership.

• Statutory Registers – are they all current and have you cross-checked with statutory filing in the Companies Registration Office.

• Constitution / Shareholder Agreement – when was your Constitution last reviewed, and does it run in tandem with the Shareholder Agreement or, as is often the case, do they have contradicting clauses?

• Policies – what policies are in place, when were they last reviewed? The horrific invasion of Ukraine sparked most companies to review EU Sanctions Policies which has, in turn, focused the attention of Directors, Managers on Staff on Ethics & Sanctions in a manner that could never have been imagined possible before.

Don’t try and do it all at once, make a start, keep up the momentum and then you can go and buy an actual real Easter Egg. I hope you will all have a fabulous Easter with or without an egg!

This New Year is exceptional bringing with it a New Beginning for us all.

I hope that this New Year will enable us all to start to understand and come to terms with the impact of the past two years, enable us all to find our own individual path away from the Pandemic, and have the strength to deal with whatever lies in our futures in 2022.

Companies in 2022 will continue to face the pressures of reacting quickly not just to the Pandemic but now to the seemingly overnight transformation wrought by the recent lifting of so many restrictions.

On a perhaps more mundane level the Government recently announced its legislative programme for 2022 listing 44 Bills to be drafted and published in 2022. The 44 Bills range over virtually every aspect of public, private and corporate life. For companies though perhaps the Bills of most interest will be

• Competition (Amendment) Bill

• Protected Disclosures Bill

• Co-op Societies Bill

• Limited Partnership Bill

• Communications (Data Retention and disclosure) Bill

• Cybercrime Bill

• Charities Amendment Bill

• Right to Remote Working Bill

The Office of the Director of Corporate Enforcement will soon be transformed into the Corporate Enforcement Authority by the Companies (Corporate Enforcement Authority) Act 2021 signed into law on 22.12.2022 and expected to be commenced any day now. It will be interesting to see how the once familiar ODCE will operate and be judged as it morphs into the Corporate Enforcement Authority.

A shareholder can be either an individual or a company. The rights of a shareholder vary depending on issues such as the company’s Constitution, Shareholder Agreements, type of shares, etc.

A company’s Constitution will spell out the type of authorised shares and specific rights attaching such as voting rights, dividend payments, etc. Unlike the Constitution which is a public document filed in the Companies Registration Office a Shareholder Agreement is private document. A Shareholders Agreement covers issues such as rights to shares, rights to nominate an individual to the Board of Directors, and funding.

When a company is incorporated Members appoint Directors to manage the company on their behalf. As and when the Directors approve and sign the Financial Statements they are then presented to the Shareholders at an Annual General Meeting. This is when Shareholders have an opportunity to question Directors on how they managed the Company during the year and what their plans are for future development.

If you are a Member / Shareholder make sure your details are accurately reflected in the Statutory Register of Members. Without your current details including your current home address the company has no way of contacting you which is much more likely going to be more of a loss to you then to the them.

As part of the appointment process every Director acknowledges he/she is responsible for securing their company complies with all relevant obligations. Two examples of “relevant obligations” would include compliance with the Lobbying Act 2015.

• Property companies lobbying for changes in planning law, re-zoning of land.

• Charities advocating for changes in law.

The Lobbying Regulation (Amendment) Bill 2020 seeks to reform the Lobbying Act 2015. One of the proposals in the Bill will be the ability for a Designated Public Official to cease communicating with a lobbyist where they are aware that the person or body carrying on lobbying activities has failed to comply with the Act.

Transparency Ireland carried out a review of disclosure practices of 30 of Ireland’s top companies across a range of indicators including Responsible Political Engagement. Whilst a number showed leadership in the area it is fascinating to note that most of the companies did not disclose a policy on responsible political engagement. Indeed, 28 out of the 30 companies reviewed did not publish rules or policies dealing with “revolving doors” (the movement of staff rom the public sector to companies or vice versa).

For greater detail on this topic take a look at www.lobbying.ie and www.transparency.ie

KomSec Limited will close from close of business on 21.12.2022 and open again on 03.01.2023.

Happy Christmas and a Happy New Year to all our clients

KomSec Limited will be closed from close of business on Wednesday 21.12.2022 and open again on Tuesday 03.01.2023.

Everyone in KomSec Limited wishes you all a very Happy Christmas, and hope you have a contented time with your family and friends. 

We look forward to working with you in 2023.

The Government has approved the extension of the interim period of the Companies (Miscellaneous Provisions) (Covid-19) Act 2020 to 30^th April 2022.

• Director and Member Meetings can continue to hold virtual meetings

• Threshold at which a company is deemed unable to pay its debts remains at €50,000

• Extension of examinership to 150 days remains in place.

Introduction of SCARP (Small Companies Administrative Rescue Process)

This is a practical piece of legislation intended to make the Examinership process more accessible and less expensive. It provides for a tight timeline for the entire process without the company having to go to Court.

Brief highlights of SCARP

• To avail of SCARP a company must be “small” or “micro” – no more than 50 employees, turnover does not exceed €12m, balance sheet does not exceed €6m.

• Company is unable to pay its debts

• The company cannot have appointed an Examiner or Process Advisor (insolvency practitioner) within previous 5 years.

• Process Advisor assesses viability of the company and its ability to trade its way out of current difficulties.

• Entire process should be completed within 70 days.

As part of the appointment process every Director acknowledges he/she is responsible for securing their company complies with all relevant obligations. Two examples of “relevant obligations” would include compliance with the Lobbying Act 2015.

• Property companies lobbying for changes in planning law, re-zoning of land.

• Charities advocating for changes in law.

The Lobbying Regulation (Amendment) Bill 2020 seeks to reform the Lobbying Act 2015. One of the proposals in the Bill will be the ability for a Designated Public Official to cease communicating with a lobbyist where they are aware that the person or body carrying on lobbying activities has failed to comply with the Act.

Transparency Ireland carried out a review of disclosure practices of 30 of Ireland’s top companies across a range of indicators including Responsible Political Engagement. Whilst a number showed leadership in the area it is fascinating to note that most of the companies did not disclose a policy on responsible political engagement. Indeed, 28 out of the 30 companies reviewed did not publish rules or policies dealing with “revolving doors” (the movement of staff rom the public sector to companies or vice versa).

For greater detail on this topic take a look at www.lobbying.ie and www.transparency.ie

White Collar Crime – Beware! 

A new independent statutory agency with increased power and resources to investigate and prosecute white-collar crime is on its way. The Companies (Corporate Enforcement Authority) Bill 2021 is due to be published shortly and will establish the Corporate Enforcement Authority. The CEA will replace (and strengthen) the Office of the Director of Corporate Enforcement.

Significantly increasing personnel and allowing for more specialised staff will make the CEA, according to the Tánaiste and Minister for Enterprise, Trade and Employment Leo Varadkar “an Irish FBI… [for].. white collar crime”.