249 / 346
GAZETTE
SEPTEMBER1983
Companies (Amendment) Act, 1983
Part 1
by
William Earley, Solicitor
T
HE Companies (Amendment) Act, 1983 ("the Act")
enacts into Irish law the provisions of the EEC
Second Directive on Company Law ( 7 7 / 9 1 / EEC 1977.
O.J. 126/1). The Directive regulates the formation of
public companies and establishes minimum safeguards as
to the subscription, maintenance and alteration of their
capital. The Irish Legislature has, however, considered it
worthwhile, in the interest of the development of
company law generally, to apply many of the provisions
of the Act to private companies as well as to the new class
of public limited companies.
The Act was brought into force on 13th October 1983
by the Companies (Amendment) Act, 1983 (Commence-
ment) Order, 1983 (S. 1. No. 288 of 1983). This date is "the
appointed day" for the purposes of the Act. On the same
day the Companies (Forms) Order, 1983 (S. 1. No. 289 of
1983) laid down the new Companies Office forms
necessitated by the Act.
It is intended to devote two articles in the
Gazette
to the
Act. This Article will deal with parts I and II of the Act,
concerning preliminary matters and more importantly
the name of a public limited company, and the registra-
tion and re-registration of companies. The second article
will deal with the balance of the Act dealing with the
raising and maintenance of capital of a company, the new
restrictions on distribution of profits and assets and with
other miscellaneous matters.
Part I — Preliminary
Section 1 deals with the short title, collective citation
and commencement of the Act.
Section 2 is the interpretation section. It is here that we
come across the first important difference between the
Act and the corresponding legislation in the United
Kingdom, the U.K. Companies Act, 1980; a difference
which makes all U.K. textbooks and commentaries on the
U.K. Act misleading in relation to the Irish Act. The U.K.
Act introduced a general re-classification of cc npanies
whereby the private company was made the residuary
class and included all companies that had not been
registered or re-registered as public companies.
The Irish Act retains the existing basic classification
structure and defines a public company as one which is
not a private company. No new definition of private
company is given and the definition contained in the
Companies Act, 1963 applies.
These Articles will refer back to other definitions
contained in Section 2 as and when they arise in the Act.
The provisions of the Act require some consequential
amendments to the 1963 Act and these are effected by
Section 3 and the First Schedule. Again, these changes
will be referred to as and when they arise.
Part II —Name of Public Limited Company, Registration
and Re-Registration of Companies
"Public Limited Company" is defined in Section 2 of
the Act as a public company limited by shares or a public
company limited by guarantee and havinga share capital,
being a company —
(a) the memorandum of which states that the company
is to be a public limited company; and
(b) in relation to which the provisions of the
Companies Acts as to the registration or re-registra-
tion of a company as a public limited company have
been complied with on or after the appointed day.
Section 4 (1) of the Act provides that the name of a
public limited company must end with the words "public
limited company" or "cuideachta phoibli teoranta"
which may be abbreviated to "p.I.e." or "c.p.t." respec-
tively. Such words may not be preceded by "limited",
"teoranta", "ltd." or "teo.".
Section 4 (2), however, provides that a resolution for
the re-registration of a company in accordance with
Section 12 of the Act (see below) may change the name of
the Company by deleting "company", "and company",
"cuideachta", "agus cuideachta" or any abbreviation
thereof and no change of name fee is payable in respect of
such change of name. It should be noted that the change
of name of a public limited company on re-registration
likewise attracts no fee, whether or not the company is
either an old public company or a private company.
Appropriate amendments have been made to Section
6 (1) of the 1983 Act dealing with the requirements to be
stated in the memorandum of a company regarding its
name.
The registration or re-registration of companies as
public limited companies occurs in three main
circumstances:
(1) the registration on its original incorporation of a
company as a public limited company;
(2) the re-registration of a private company as a public
limited company;
(3) the re-registration of an old public limited company
as a public limited company.
The Act also provides for the re-registration of
unlimited companies (Section 11) and joint stock
companies (Section 18) as public limited companies.
(1) Registration on original incorporation
If a company is registered as a public limited company
on its original incorporation, section 6 of the Act requires
241