Part XXIII Companies and Credit and Financial Institutions (Branch Disclosure) Regulations (Northern Ireland) 1993

Explanatory Note

(This note is not part of the Regulations.)

1.  These Regulations implement, through a number of amendments to the Companies (Northern Ireland) Order 1986 (“the Order”), Council Directive 89/666/EEC (the “Eleventh Company Law Directive”) on the disclosure requirements in respect of branches opened by certain companies in a Member State (OJ No. L395, 30.12.89, pp. 36-39) and Council Directive 89/117/EEC (the “Bank Branches Directive”) on publication of annual accounting documents by credit and financial institutions (OJ No. L44 16.2.89, pp. 40-42).

2.  The Eleventh Company Law Directive deals with disclosures (including disclosure of accounting documents) required to be made by branches established in a Member State of limited companies incorporated in another Member State or a non-EC country. The Bank Branches Directive complements this by establishing special rules on the disclosure of accounting documents of a branch of a credit or financial institution in a Member State which has its head office outside that state.

3.  The branch registration regime created by these Regulations complements the existing place of business registration regime set out in Part XXIII of the Order. If a company within the scope of the Eleventh Directive establishes a place of business that is not a branch and has no other branch in the United Kingdom, it will be subject to the place of business registration regime. That regime will also remain applicable to companies not within the scope of the Eleventh Directive.

4.  Regulation 2 and Schedule 1 implement the Bank Branches Directive by inserting new Articles 648A and 648B, together with a new Schedule 20C, into the Order. Article 648A applies the new accounts disclosure requirements of Schedule 20C to a branch (as defined), established in Northern Ireland, of a credit or financial institution (as defined) which is incorporated outside the United Kingdom or Gibraltar and also has its head office outside those places. Article 648B disapplies the accounting disclosure requirements of Articles 649 to 652, applicable to companies subject to the place of business registration regime, to any institution to which Article 648A applies. Schedule 20C sets out the requirements for delivery of reports and accounts of credit and financial institutions to which the Bank Branches Directive applies. Part I of the Schedule applies to an institution which is required by its parent law to prepare and have audited accounts for its financial period, and whose principal or only branch within the United Kingdom is in Northern Ireland. Such institutions are required to deliver to the registrar of companies all the accounting documents (with certified translations, if necessary), which it prepares in accordance with its parent law (modified where permitted). Where the parent law does not require registration of these documents, the institution may instead make the documents available for inspection at each branch of the institution in Northern Ireland and make copies available on request. Part II of the Schedule applies to incorporated institutions which are not required by the law of the country in which the head office resides to prepare and have audited accounts. Such an institution is required to prepare accounts and directors' report as if it were a company to which Article 649 applies (which sets out the accounting regime for companies subject to place of business registration).

5.  Regulation 3 and Schedule 2 implement the Eleventh Company Law Directive. Regulation 3 inserts new Article 654A into the Order, which requires the establishment and maintenance of a register of branches of Part XXIII companies. Schedule 2 makes a number of amendments to Part XXIII of the Order, the most important of which are:

(a) Paragraph 2 of Schedule 2 inserts new Articles 640A and 640B into the Order. Article 640A imposes the branch registration requirements of the new Schedule 20A on any limited company which is incorporated outside the United Kingdom and Gibraltar and which has a branch in Northern Ireland. Article 640B provides that the requirements of Article 641 (place of business registration regime) shall not apply to a limited company in which Articles 640A applies.

(b) Paragraph 3 of Schedule 2 insert Schedule 20A into the Order, which sets out the particulars which must be disclosed by a company registering a branch. A return must also be made in respect of any alterations to any particulars registered.

(c) Paragraphs 4 and 5 of Schedule 2 insert Article 642A and Schedule 20B into the Order which provide for certain transitional arrangements where a company moves from the place of business registration regime to the branch registration regime and vice versa.

(d) Paragraph 6 of Schedule 2 amends Article 643 of the Order by setting out certain particulars which must be disclosed about a branch and the company on the letter-heads etc used in the business of the branch. Additional particulars must be disclosed where the company is not one incorporated in an EC Member State.

(e) Paragraph 8 of Schedule 2 inserts Article 644A into the Order, which makes parallel provision for service of documents to that made by existing Article 645 in respect of companies subject to the place of business registration regime.

(f) Paragraph 10 of Schedule 2 inserts Article 645A into the Order which provides that if a branch is closed notice must be given of that fact to the registrar.

(g) Paragraph 13 of Schedule 2 amends Article 648 of the Order so as to provide for the interpretation of “branch” for the purposes of the branch registration regime and to provide a rule to determine in which part of the United Kingdom a branch is to be regarded as located where it comprises places of business in more than one such part.

(h) Paragraph 17 of Schedule 2 inserts Schedule 20D into the Order. It sets out the reports and accounts which must be delivered by a company subject to branch registration in respect of a branch, other than a branch which is subject to Schedule 20C. Part I of the Schedule applies to companies which are required by their parent law to prepare, have audited and disclose accounts. Such companies must deliver to the registrar all accounting documents (modified where permitted), and certified translations where necessary, disclosed in accordance with the parent law. Delivery is not required in respect of a branch where those documents have been delivered by the company in respect of another branch in the United Kingdom and where this fact has been disclosed by the branch in its return under Schedule 20A. Part II applies to companies that do not have such requirements under their parent law. Such companies are required to prepare accounts, a directors' report and an auditors' report as if they were a company to which Article 649 applies. As with Part 1, provision is made for these documents to be returned by a company in respect of more than one branch.

(i) Paragraph 18 of Schedule 2 inserts Articles 652N to 652Q into the Order. These Articles require particulars to be delivered in respect of winding up or other insolvency proceedings against a company which is subject to the branch registration regime. Article 652O requires a return to be made where such a company is being wound up, where a liquidator is appointed, and upon the termination of the winding up. Returns are not required, however, where winding up proceedings under Part VI of the Insolvency (Northern Ireland) Order 1989 have been commenced (as that Order contains separate requirements to file returns with the registrar of companies), Article 652P requires a return where insolvency proceedings, other than for the winding up of the company, are commenced. If the company ceases to be the subject to such proceedings a further return is required.

6.  Regulation 4 and Schedule 3 make a number of amendments consequential upon the implementation of the two Directives.

7.  Regulation 5 and Schedule 4 set out transitional arrangements.