228. Deputy Billy Kelleher asked the Minister for Business, Enterprise and Innovation if the Company Law Review group recommended that the Registrar of Companies cease the Companies Registration Office, CRO, waiver scheme whereby the CRO adjudicated on late filing issues and that the correct forum is in the District Court or the High Court. (Question 20185/18 asked on 08 May 2018)

Minister for Business, Enterprise and Innovation (Deputy Heather Humphreys): I propose to take Questions Nos. 224 to 226, inclusive, and 228 together.

The Company Law Review Group’s (‘the CLRG’) review of the audit exemption in 2009 led to recommendations to extend the audit exemption to companies limited by guarantee and dormant companies. 

The CLRG returned to the issue of the audit exemption in the course of 2011 and this is set out in the Group’s published 2011 Report. This more recent examination was a review of the arguments for repealing the rule that a company loses the audit exemption if it files its annual return late. The CLRG did not find those arguments to be sufficiently compelling to outweigh the benefits of retaining the rule.

In 2011, the CLRG also reviewed the system that was in operation at that time whereby the Registrar of Companies could grant a waiver to a company that filed its annual return late. That waiver was from payment of late filing fees. The CLRG did recommend that such a grant should not be within the powers of the CRO.  Following the enactment of the Companies Act 2014, that waiver scheme was abolished.

The CLRG went on to recommend that the waiver of late filing fees should instead be determined by a court of competent jurisdiction, preferably the District Court.  Section 10 of the Companies (Statutory Audits) Bill 2017 proposes to give effect to that recommendation.

However, since the publication of the Companies (Statutory Audits) Bill 2017 last November, it has become clearer that an application to the Court for a waiver of the late filing fees is not appropriate. Given that the maximum late filing fee that could be waived is €1,200, there appears to be little or no practical benefit for a company when the cost of going to court is taken into account. Section 10 also provides that the Registrar of Companies would be a notice party and this has proved to be a significant administrative burden on the Companies Registration Office.  For these reasons, I intend to propose an amendment at Report Stage to delete section 10 as it stands in the Bill.

Before the enactment of the Companies Act 2014, a company could apply to the High Court for an extension of time to file its annual return. In 2011, a draft of the Bill that would become the Companies Bill 2012 was publicly available. Accordingly, the CLRG, as part of its 2011 review, considered the provision in that draft Bill that extended the High Court’s power to the District Court. The CLRG welcomed that provision and it was subsequently enacted as section 343 (7) of the Companies Act 2014 and came into operation on 1 June 2015. 

The Companies (Statutory Audits) Bill 2017 was published in November 2017 and the Company Law Review Group’s sub-committee on statutory matters began a consideration of that Bill in January of this year. The report of that sub-committee has not been finalised or adopted by the CLRG yet, so it is not yet published.