Company Officers – Directors and Secretaries

When registering a Company with the CRO, there are a number of requirements each company must meet, as detailed in the Companies Act 2014.

Director and Secretary details on the Register must be kept up-to-date
The CRO register should be updated with any changes to a company’s Directors and Secretaries within 14 days of the change occurring, through the submission of a Form B10 through CORE.

Failure to inform the CRO of such changes is a Category 3 Offence, as detailed in Section 871 of the Companies Act 2017.

Minimum Director and Secretary numbers
Most Company types are required to have one secretary and a minimum of two directors.

There are exceptions: Private Limited by Shares companies (LTD company – registered under Part 2 of the Companies Act 2014) can have one director if it chooses, yet where such a company has a single director, it must have a separate person registered as secretary.

Age Requirement
All company directors and secretaries, where applicable, must be over the age of 18 years, as detailed in Section 131 of the Companies Act 2014.

A Director must be an European Economic Area resident
One of the directors is required to be resident in a member state of the European Economic Area (EEA). See below for more details.

Undischarged Bankrupt restriction
An undischarged bankrupt cannot be an officer of a company.

Undischarged bankrupt means a person who is declared bankrupt by a court of competent jurisdiction within the State or elsewhere, who has not obtained a certificate of discharge or its equivalent in the relevant jurisdiction.

Section 132 of the Companies Act 2014 states that if any person, being an undischarged bankrupt, acts as an officer or directly or indirectly takes part or is concerned in the promotion, formation or management of any company except with the leave of the High Court, they shall be guilty of an offence, which is prosecutable summarily by CEA, and is a Category 2 offence, as detailed in Section 871 of the Companies Act 2017. 

Need to maintain Registers and other documents
Section 216 of the Companies Act 2014 sets out the requirement to maintain registers and the need to make accessible documentation to different interested parties.

The documents that Companies need to have available include:

• Copies of directors’s service contracts and memoranda
• Copies of instruments creating charges
• Directors and secretaries registers
• Disclosable interests register
• Members register
• Minutes of meetings

 
The documents need to kept at the registered office of the company or at its principal place of business in the State or at another place in the State.

Failure to make these documents available is a Category 3 offence, as detailed in Section 871 of the Companies Act 2014.

Obligation to keep adequate accounting records
Section 281 of the Companies Act 2014 states that every company is obliged to keep adequate accounting records, meaning that they:

• correctly record and explain the transactions of the company
• enable, at any time, the assets, liabilities, financial position and profit and loss of the company to be determined with reasonable accuracy
• enable the directors to ensure that the financial statements comply with the Companies Act and allow the statements to be audited

 
Failure to maintain adequate records is a Category 2 Offence, as detailed in Section 871 of the Companies Act 2014.

Section 128 of the Companies Act 2014 states that every LTD company must have at least one director. If default is made for 28 consecutive days then the company and any officer of it who is in default shall be guilty of a Category 3 offence, as detailed in Section 871 of the Companies Act 2017.

Every other company type (DAC, CLG, PLC and unlimited companies) must have at least two directors.

Under the Companies Act 2014:

• a director of a company cannot be under the age of eighteen, as detailed in Section 131 of the Companies Act 2014. Any appointment of a minor as a director is void and the minor ceases to have the power to act as a director. Equally where a secretary is an individual, the secretary must also be over eighteen.
• a director of a company cannot be a body corporate, as detailed in Section 130 of the Companies Act 2014
• a director of a company cannot be an undischarged bankrupt, as detailed in Section 132 of the Companies Act 2014
• a director of a company cannot be disqualified. Section 129 of the Companies Act 2014 prohibits an undischarged bankrupt acting as officer. Where a disqualified person does act as an officer, it is a Category 2 Offence, as detailed in Section 871 of the Companies Act 2014.
• a director of a company cannot be a director of more than 25 companies. If a director of a company is the director of more then 25 companies, it is a Category 4 offence, as detailed in Section 871 of the Companies Act 2017.

There are exceptions to this 25 Company limit, as detailed in Section 142 of the Companies Act 2014:

– PLCs (public limited companies) are exempt
– Companies that have registered a Form B67, which is a statement that company has a real and continuous link with one or more economic activities that are being carried on in the State
– Where a Form B68 is filed, which is a statement that the company be exempted as it holds a licence under Section 9 of the Central Bank Act 1971 or because it is a company falling within the provisions of Schedule 5 of the Companies Act 2014
– A holding company and its subsidiaries are counted as one company for the purposes of Section 142 of the Companies Act 2014.

 
Note on completing a Form A1
Where an applicant is stating their list of other directorships, they should state the company name and number of other bodies corporate, whether incorporated in the State or elsewhere, of which the person is or has been director. Exceptions to this rule are made for bodies (a) of which the person has not been a director at any time during the past 5 years; (b) which is held or was held by a director in bodies corporate of which the company is (or was) the wholly owned subsidiary or which are or were the wholly owned subsidiaries either of the company or of another body corporate of which the company is or was the wholly owned subsidiary.

Pursuant to Section 142 of the Companies Act 2014, a person shall not at a particular time be a director of more than 25 companies. However, under Section 142(3) of the 2014 Act, certain directorships are not reckoned for the purposes of Section 142 of the Act.

Please Note: The CRO register should be updated with any changes to the registered details of a company’s Director(s) within 14 days of the change occurring, through the submission of a Form B10 through CORE.

Failure to inform the CRO of such changes is a Category 3 Offence, as detailed in Section 871 of the Companies Act 2017.

As stated above, a Director must be a resident of a member state of the European Economic Area (EEA). Failure to meet this requirement (see below for details on the requirement exception) is a Category Four Offence, as detailed in Section 871 of the Companies Act 2017.

The EEA consists of the member states of the EU, plus Iceland, Liechtenstein and Norway:

 
The United Kingdom left the EEA resident area on December 31 2020. Therefore any company with an officer residing in the United Kingdom which does not have any other current directors who are EEA residents are required to comply with Section 137 of the Companies Act 2014, and provide Section 137 Bonds to the CRO (See below).

Exemption from the requirement to have an EEA-resident director
The requirement to have at least one EEA-resident director does not apply to any company which for the time being holds a bond, in the prescribed form, in force to the value of €25,000 and which provides that in the event of a failure by the company to pay the whole or part of:

• a fine imposed on the company in respect of an offence under the Companies Act 2014 committed by it, being an offence which is prosecutable by the Registrar of Companies
• a fine imposed on the company in respect of an offence under Section 1078 of the Taxes Consolidation Act 1997, and
• a penalty which it has been held liable to pay under Section 1071 or Section 1073 of the Taxes Consolidation Act 1997

 
There shall become payable under the bond a sum of money for the purpose of same being applied in discharge of the whole or part of the company’s liability in respect of any such fine or penalty.

The bond must have a minimum period of validity of two years, commencing no earlier than the occurrence of the event giving rise to the requirement for the bond. The surety under the bond must be a bank, building society, insurance company or credit institution.

If, following incorporation, a company applies for and is granted a Certificate from the Registrar of Companies that the company has a real and continuous link with one or more economic activities that are in carried on in the State, that company will be exempted from the requirement to have at least one EEA resident director from the date of the Certificate, as long as the certificate remains in force.

Application for this Certificate is made through submission of a Form B67, and must be accompanied by a statement from the Revenue Commissioners, made within two months of the date of the application, that the Revenue Commissioners have reasonable grounds to believe that the company has a real and continuous link with the State, that one or more economic activities of the Company are being carried on in the State.

Link to Forms page

Note on Section 137 bonds (required where a company has no EEA resident director) and new companies

• Presenters are requested to clearly identify applications for incorporation that are accompanied by bonds.
• The prescribed execution requirements (i.e. under the Common Seal of the Surety) must be adhered to.
• A certified copy of the bond should be submitted to the CRO, with the Form A1.

 
Effective date of bond
A period of two years is prescribed as the minimum period to be specified as being the period of validity of the bond, which period is to commence not earlier than the occurrence of the event which gave rise to the requirement to effect a bond. Furthermore, for new companies, the bond must be effective as at the date of incorporation.

With regard to new companies, the event which gives rise to the requirement to effect a bond is the incorporation of a company without a resident director. However, there is also a statutory requirement that the bond be furnished to the CRO pre-incorporation, with the Form A1.

It should be noted that paragraph 5 of the bond enables the parties to stipulate the commencement date of the bond. This is not required to correspond with the date on which the parties execute the bond, and so the parties have a degree of flexibility.

The CRO has implemented the following requirements in relation to the effective date of bonds received in connection with new companies; the effective date of the bond may not exceed four working days prior to the date of the company’s incorporation, exclusive of incorporation date.

As customers are aware, service standards apply to all incorporation schemes. These are:

• Fé Phrainn: incorporation within ten working days of receipt of documents by the CRO
• Online A1: incorporation within five working days
• Ordinary: while there is no guaranteed service level, in practice it currently takes 15 working days.

 
In calculating the date from which the bond is to take effect, therefore, applicants ought to take account of the incorporation scheme which they are utilising and the relevant customer service standard.

The following effective dates will apply in practice:

• Fé Phrainn: the bond ought to take effect as and from the fifth working day after the date of receipt of Form A1 by the CRO.
• Online A1: the bond ought to take effect as and from the date of receipt of Form A1.
• Ordinary Scheme: the bond ought to take effect as and from the tenth working day after the date of receipt of Form A1.

 
In the event that an application for incorporation accompanied by a bond is returned by the CRO to the presenter for amendment, a new bond with an adjusted effective date in line with the above will be required, unless the revised application is resubmitted to the CRO within five working days.

Subject to one exception, see below, at least one of the directors for the time being of a company which is being incorporated, is required to be resident in a EEA Member State.

The definition of residency in Ireland, where such residence is being relied upon as satisfying the EEA-residency requirement, is detailed in Section 137 of the Companies Act 2014; a person is resident in the State at a particular time (the relevant time) if:

• they are present in the State at any one time or several times in the period of 12 months preceding the relevant time (the immediate 12 month period) for a period in the aggregate amounting to 183 days or more, or
• they are present in the State at any one time or several times:
  – in the immediate 12 month period, and
  – the period of 12 months preceding the immediate 12 month period (the previous 12 month period), for a period (being a period comprising in the aggregate the number of days on which the person is present in the State in the immediate 12 month period and the number of days on which the person is present in the state in the previous 12 month period) in the aggregate amounting to 280 days or more, or that time is in a year of assessment (within the meaning of the Taxes Consolidation Act 1997), in respect of which the person has made an election under Section 819(3) of the 1997 Act.

 
For the purposes of subsections (8) and (9), references in this section to a persons being present in the State are references to the persons being personally present in the State, and a person shall be deemed to be present in the State for a day if the person is present in the State at any time during the day.

If a person who is being appointed director of a company is a person who is currently disqualified under the law of another state (whether pursuant to an order of a judge or a tribunal or otherwise) from being appointed or acting as a director or secretary of a body corporate or undertaking, that person is required by law to ensure that a Form A1 submission is accompanied by a duly completed Form B74.

If there is a failure to file Form B74 where a person being appointed director on the Form A1 is disqualified abroad, or if the Form B74 is false or misleading in a material respect, that person is deemed to be subject to a disqualification order pursuant to Section 842 of the Companies Act 2014. The period of that deemed disqualification is the period then remaining unexpired of the foreign disqualification.

Furthermore, as detailed in Section 150 of the Companies Act 2014, failure to file a Form B74 is a Category Three Offence, which is detailed in Section 871 of the Companies Act.

Link to Forms page.

Link to CORE.

A person shall not at particular time be a director of more than 25 companies.

Certain companies, however, are not reckoned for the purpose of calculating the number of companies of which a person is director.

The following categories of company are not reckoned in the assessment of a person’s number of directorships:

• a public limited company;
• a company in respect of which a certificate under section 140 Companies Act 2014 is in force.

 
Where a person is director of two or more companies, one of which is the holding company of the other(s), these are counted as one company.

In addition, where the company is a company falling within one or more categories of company specified in the table to Section 142 of the Companies Act 2014, the director or the company may deliver to the registrar Form B68 for consideration.

Table to Section 142 of the Companies Act 2014 states:

• A company that is the holder of a licence under section 9 of the Central Bank Act 1971 or is exempt from the requirement under that Act to hold such a licence.
• A company falling within any provision (in so far as applicable to a private company limited by shares) of Schedule 5.

The residential address of a company director can also be omitted but only in limited circumstances. These circumstances do not apply to an address already supplied to the CRO.

The Secretary may be one of the directors of the company. A body corporate may act as secretary to another company, but not to itself. A single-director company (LTD company type only) must have a separate secretary. All company officers have wide responsibilities in law. The key requirements of a company secretary and director are contained in Duties of Directors and Secretaries.

A company secretary must be over the age of 18 years under section 131 Companies Act 2014.

The directors of a company shall have a duty to ensure that the person appointed as secretary has the skills or resources necessary to discharge his or her statutory and other duties. Under Section 1112 of the Companies Act 2014, there are qualifications to act as a secretary of a Public Limited Company (a PLC).

The directors of a PLC shall have a duty to ensure that the person appointed as secretary has the skills or resources necessary to discharge his or her statutory and other duties and that the person complies with one, or more than one, of the following conditions:

• the person, for at least three years of the five years immediately preceding their appointment as secretary, held the office of secretary of a company;
• the person is a member of a body for the time being recognised by the Minister;
• the person is a person who, by virtue of their:
  holding or having held any other position; or
  his or her being a member of any other body

  appears to the directors of the PLC to be capable of discharging the duties.

 
Please Note: The CRO register should be updated with any changes to the registered details of a Secretary within 14 days of the change, through the submission of a Form B10 through CORE.

Failure to inform the CRO of such changes is a Category 3 Offence, as detailed in Section 871 of the Companies Act 2017.

A single director company cannot satisfy certain requirements of the Companies Act by the signature of the sole director in a dual capacity as both director and secretary. Section 134 of the Companies Act 2014 prohibits this.

The Companies Act 2014 introduced the concept of single director companies.

Private limited by shares companies registered under Part 2 of the Companies Act 2014 can be single director companies (LTD companies).

These companies are still required to have a separate company secretary.

The company secretary must be someone other than the existing sole director.

If the sole director appoints a separate company to act as its secretary, the sole director in question might also be a director of that secretarial company.

However, he/she cannot sign documents for the first company as secretary where a document requires the signatures of both the director and secretary i.e. a person cannot sign both as director and as, or in place of, the secretary on the same form. Please note, that section 134 of the Companies Act which provides this rule also applies to companies with two or more directors. Companies have the capacity to appoint a registered person under section 39 Companies Act 2014 to act on behalf of the company (Form B46).

Notable forms which require the signatures of both the director and the secretary include:

• Form A1 – the company incorporation document, and
• Form B1 – the annual return

 
Two different people have to sign off on the forms. Equally and as already pointed out above, this would apply to companies with two directors signing off on the form B1. The one individual as director cannot sign the same form as both secretary and director. The second director is required to sign as well.

If a Form A1 or B1 is received (or any other prescribed form that requires the signatures of both a director and the secretary for certification) and the same individual signs as both director and secretary, this form will be rejected and returned to the presenter.