The Companies (Cross-Border Mergers) Regulations 2007

Regulation 4(6)

SCHEDULE 1 U.K. Transitional modifications where provisions of Companies Act 2006 not in force

Regulation 3(1) U.K.

1.—(1) Regulation 3(1) is modified as follows.

(2) In the definition of “member”, until the entry into force of section 112 of the Companies Act 2006 for “section 112 of the Companies Act 2006” substitute “ section 22 of the Companies Act 1985 M1 or Article 32 of the Companies (Northern Ireland) Order 1986 M2 ”.

(3) In the definition of “registrar of companies”, until the entry into force of section 1060 of the 2006 Act for “section 1060 of the Companies Act 2006” substitute “ section 744 of the Companies Act 1985 M3 or Article 2 of the Companies (Northern Ireland) Order 1986 M4 ”.

(4) In the definition of “treasury shares”, until the entry into force of section 724 of the Companies Act 2006 for “section 724 of the Companies Act 2006” substitute “ section 162A of the Companies Act 1985 M5 or Article 172A of the Companies (Northern Ireland) Order 1986 M6 ”.

(5) In the definition of “UK company”, until the entry into force of section 1 of the Companies Act 2006 for “section 1 of the Companies Act 2006” substitute “ section 735 of the Companies Act 1985 or Article 3 of the Companies (Northern Ireland) Order 1986 ”.

Marginal Citations

M1 1985 c.6.

M2 S.I. 1986/1032 (N.I. 6).

M3 Section 744 has been amended on a number of occasions, but none of the amendments are relevant to these Regulations.

M4 Article 2 has been amended on a number of occasions, but none of the amendments are relevant to these Regulations.

M5 Section 162A was inserted by regulation 3 of the Companies (Acquisition of Own Shares) (Treasury Shares) Regulations 2003 (S.I. 2003/1116).

M6 Article 172A was inserted by regulation 3 of the Companies (Acquisition of Own Shares) (Treasury Shares) Regulations (Northern Ireland) 2004 (S.R. 2004/275).

Regulation 4 U.K.

2.—(1) Regulation 4 is modified as follows.

(2) Until the entry into force of section 1081 of the Companies Act 2006 (annotation of the register), omit paragraph (1)(a).

(3) Until the entry into force of section 1112 of the Companies Act 2006 (offence of false statement to registrar), omit paragraph (1)(c).

(4) Until the entry into force of section 1113 of the Companies Act 2006 (enforcement of a company's filing obligations)—

(a) omit paragraph (1)(d); and

(b) after paragraph (4) insert—

“(4A) Section 713 of the Companies Act 1985 or Article 662 of the Companies (Northern Ireland) Order 1986 (enforcement of company's duty to make returns) applies for the purposes of these Regulations as it applies for the purposes of the Companies Acts.”.

(5) Until the entry into force of sections 1121 to 1123 of the Companies Act 2006 (liability of officer in default)—

(a) omit paragraph (1)(e); and

(b) after paragraph (4A) insert—

“(4B) Section 730A of the Companies Act 1985 M7 or Article 678(5) of the Companies (Northern Ireland) Order 1986 M8 (meaning of “officer in default”) applies to offences under these Regulations as it applies to offences under that Act or that Order.”.

(6) Until the entry into force of section 1125 of the Companies Act 2006 (meaning of “daily default fine”)—

(a) omit paragraph (1)(f); and

(b) after paragraph (4B) insert—

“(4C) Section 730(4) of the Companies Act 1985 or Article 678(4) of the Companies (Northern Ireland) Order 1986 (meaning of daily default fine) applies for the purposes of these Regulations as it applies for the purposes of Schedule 24 to that Act or Schedule 23 to that Order.”.

(7) Until the entry into force of sections 1127 and 1128 of the Companies Act 2006 (summary proceedings)—

(a) omit paragraph (1)(g); and

(b) after paragraph (4C) insert—

“(4D) Section 731 of the Companies Act 1985 M9 or Article 679 of the Companies (Northern Ireland) Order 1986 M10 (summary proceedings) applies to offences under these Regulations as it applies to offences under that Act or that Order.”.

(8) Until the entry into force of section 1129 of the Companies Act 2006 (legal professional privilege)—

(a) omit paragraph (1)(h); and

(b) after paragraph (4D) insert—

“(4E) Section 732(3) of the Companies Act 1985 M11 or Article 680(3) of the Companies (Northern Ireland) Order 1986 M12 (legal professional privilege) applies to proceedings for an offence under these Regulations as it applies to proceedings instituted under the Companies Acts by the Director of Public Prosecutions or by or on behalf of the Secretary of State or the Lord Advocate, or proceedings instituted under the 1986 Order by the Director of Public Prosecutions for Northern Ireland or by or on behalf of the Department of Economic Development.”.

(9) Until the entry into force of section 1130 of the Companies Act 2006 (proceedings against unincorporated bodies)—

(a) omit paragraph (1)(i); and

(b) after paragraph (4E) insert—

“(4F) Section 734 of the Companies Act 1985 M13 or Article 680B of the Companies (Northern Ireland) Order 1986 M14 (summary proceedings) applies to offences under these Regulations as it applies to offences under that Act or that Order.”.

Marginal Citations

M7 Section 730A was inserted by paragraph 13 of Schedule 4 to the Companies Act 2006 (Commencement No. 3, Consequential Amendments, Transitional Provisions and Savings) Order 2007 (S.I. 2007/2194 (C. 84)).

M8 Article 678(5) was amended by Article 78 of and paragraph 16 of Schedule 5 to the Companies (No. 2) (Northern Ireland) Order 1990 (S.I. 1990/1504 (N.I. 10)).

M9 Section 731 was amended by the Criminal Procedure (Consequential Provisions) (Scotland) Act 1995 (c.40), section 5 and Schedule 4, paragraph 56(3).

M10 Article 679 was amended by regulation 4 of and Part I of Schedule 2 to the Limited Liability Partnerships Regulations (Northern Ireland) 2004 (S.R. 2004/307).

M11 Section 732(3) was amended by the Companies (Audit, Investigations and Community Enterprise) Act 2004 (c.27), section 25 and Schedule 2, paragraphs 16 and 22(c).

M12 Article 680(3) was amended by regulation 4 of and Part I of Schedule 2 to the Limited Liability Partnerships Regulations (Northern Ireland) 2004 (S.R. 2004/307).

M13 Section 734 has been amended on a number of occasions, most recently by the Companies (Audit, Investigations and Community Enterprise) Act 2004 (c.27), section 25 and Schedule 2, paragraphs 5 and 9(a).

M14 Article 680B was amended by regulation 4 of and Part I of Schedule 2 to the Limited Liability Partnerships Regulations (Northern Ireland) 2004 (S.R. 2004/307) and by sections 11 and 25 of and Schedule 2 to the Companies (Audit, Investigations and Community Enterprise) Act 2004 (c.27).

Regulations 7 and 20 U.K.

3.  Until the entry into force of Chapter 2 of Part 3 of the Companies Act 2006 (a company's articles of association), the references in regulations 7 and 20 to a company's articles include the company's memorandum of association.

Regulation 9 U.K.

4.—(1) Until the entry into force of Part 42 of the Companies Act 2006 (statutory auditors), regulation 9 is modified as follows.

(2) For paragraph (7)(a) substitute—

“(a) is eligible for appointment as a company auditor in accordance with section 25 of the Companies Act 1989 M15 or Article 28 of the Companies (Northern Ireland) Order 1990 M16 ;”.

(3) For paragraph (8)(a) and (b) substitute—

“(a) a person is not independent if, by virtue of section 27 of the Companies Act 1989 or Article 30 of the Companies (Northern Ireland) Order 1990, he would not be able to act as company auditor of all the merging companies; and

(b) section 27 of the Companies Act 1989 or Article 30 of the Companies (Northern Ireland) Order 1990 applies in relation to all the merging companies as if they were companies within the meaning of Part 2 of that Act or Part 3 of that Order.”.

Marginal Citations

M15 1989 c.40.

M16 S.I. 1990/593 (N.I. 5).

Regulations 12 and 19 U.K.

5.  Until the entry into force of section 1098 of the Companies Act 2006 (public notice of removal of certain material from register)), omit regulation 12(6)(g) and regulation 19(4)(i).

Regulation 40 U.K.

6.—(1) Until the entry into force of Part 26 (arrangements and reconstructions) and Part 27 (mergers and divisions of public companies) of the Companies Act 2006, regulation 40 is modified as follows.

(2) In paragraph (1)—

(a) in the opening words, for “section 899 of the Companies Act 2006” substitute “ section 425(2) of the Companies Act 1985 M17 or Article 418(2) of the Companies (Northern Ireland) Order 1986 M18 ”;

(b) in sub-paragraph (a), for “section 900 of that Act” substitute “ section 427 of that Act or Article 420 of that Order ”;

(c) in sub-paragraph (b), for “sections 902 and 903 and Chapter 2 of Part 27 of that Act” substitute “ section 427A(1) and Cases 1 and 2 in section 427A(2) of that Act M19 or Article 420A(1) and Cases 1 and 2 in Article 420A(2) of that Order M20 ”.

(3) In paragraph (2)—

(a) for “section 900(2) of the Companies Act 2006” substitute “ section 427(2) of the Companies Act 1985 or Article 420(2) of the Companies (Northern Ireland) Order 1986 ”;

(b) for “section 899 of that Act” substitute “ section 425(2) of that Act or Article 418(2) of that Order ”.

Marginal Citations

M17 Section 425 has been amended on a number of occasions, most recently by the Enterprise Act 2002 (c.40), section 248(3) and Schedule 17, paragraphs 3 and 5.

M18 Article 418 has been amended on a number of occasions, most recently by Regulation 4 of and Part I of Schedule 2 to the Limited Liability Partnerships Regulations (Northern Ireland) 2004 (S.R. 2004/307).

M19 Section 427A was inserted by regulation 2(a) of and the Schedule to the Companies (Mergers and Divisions) Regulations 1987 (S.I. 1987/1991) and has been amended on a number of occasions, most recently by the Enterprise Act 2002 (c.40), section 248(3) and Schedule 17, paragraphs 3 and 6.

M20 Article 420A was inserted by regulation 3 of the Companies (Mergers and Divisions) Regulations (Northern Ireland) 1987 (S.R. 1987/442) and has been amended on a number of occasions, most recently by Article 3(3) of and paragraph 15 of Schedule 2 to the Insolvency (Northern Ireland) Order 2005 (S.I. 2005/1455 (N.I. 10)).

Regulation 22(3)

SCHEDULE 2 U.K. Application of the Regulations in relation to Northern Ireland

1.  Regulations 24, and 33 shall apply in relation to any complaint by a Northern Ireland employee or any representative appointed or elected to act in Northern Ireland as if the reference to the CAC were a reference to the Industrial Court. U.K.

2.  Regulation 27 shall apply in relation to any application by— U.K.

(a) a Northern Ireland member of the special negotiating body;

(b) a Northern Ireland employee or any representative appointed or elected to act in Northern Ireland; or

(c) a competent organ of a merging company with its registered office (or principal place of business if not a body corporate) in Northern Ireland,

as if any reference to the CAC were a reference to the Industrial Court.

3.  Regulation 32 shall apply in relation to a complaint by— U.K.

(a) a Northern Ireland member of the special negotiating body; or

(b) a Northern Ireland employee or a representative appointed or elected to act in Northern Ireland,

as if the reference to the CAC were a reference to the Industrial Court.

4.  Regulation 41 shall apply in relation to a recipient to whom a merging company or transferee company registered in Northern Ireland has entrusted information or documents as if the reference to the CAC were a reference to the Industrial Court. U.K.

5.  Where there is a dispute to which paragraph (2) of regulation 42 applies, that regulation shall apply in relation to— U.K.

(a) any application made by a merging company or transferee company registered in Northern Ireland; or

(b) a Northern Ireland employee, a member of a special negotiating body elected or appointed to act in Northern Ireland,

as if the reference to the CAC were a reference to the Industrial Court.

6.  Regulation 45 shall apply in relation to a complaint by a Northern Ireland employee as if the reference to an employment tribunal were a reference to an Industrial Tribunal. U.K.

7.  Regulation 46 shall apply in relation to any Northern Ireland employee as if— U.K.

(a) a reference to an employment tribunal included a reference to an Industrial Tribunal;

(b) a reference to an entitlement to apply or complain included an entitlement to apply or complain to the Industrial Court or the High Court in Northern Ireland;

(c) a reference to a right to appeal included a right to appeal to the High Court in Northern Ireland.

8.  For regulation 48 there shall be substituted the following regulation— U.K.

“Subsidiary provisions relating to unfair dismissal: Northern Ireland

48.— (1) In Article 137 of the Employment Rights (Northern Ireland) Order 1996 M21 —

(a) in paragraph (1)(c) (which requires one of a specified group of paragraphs to apply for a person to be treated as unfairly dismissed) for “7G” substitute “ 7H ”; and

(b) after paragraph (7G) insert—

“(7H) This paragraph applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one specified in regulation 46 or 47 of the Companies (Cross-Border Mergers) Regulations 2007.”.

(2) In Article 140 of that Order M22 (exclusion of right: qualifying period of employment) in paragraph (3) (cases where no qualifying period of employment is required) M23 —

(a) omit the word “or” at the end of sub-paragraph (o); and

(b) after sub-paragraph (p) insert—

“or

(q) regulation 46 or 47 of the Companies (Cross-Border Mergers) Regulations 2007 applies.”.”.

Marginal Citations

M21 S.I. 1996/1919 (N.I. 16). Article 137 has been amended on a number of occasions to specify additional circumstances in which the employee dismissed by reason of redundancy is to be regarded as unfairly dismissed.

M22 Article 140(1) was amended by S.R. 1999/277.

M23 Article 140(3) has been amended on a number of occasions to specify additional cases in which no qualifying period of employment is required.

9.  Regulation 49 shall apply in relation to any Northern Ireland employee as if— U.K.

(a) any reference to an employment tribunal included a reference to an Industrial Tribunal;

(b) any reference to an entitlement to apply or complain included an entitlement to apply or complain to the Industrial Court or the High Court in Northern Ireland; and

(c) any reference to a right to appeal included a right of appeal to the High Court in Northern Ireland.

10.  Regulation 51 shall apply in relation to a Northern Ireland employee as if reference to an employment tribunal were a reference to an Industrial Tribunal. U.K.

11.  For regulation 52 there shall be substituted— U.K.

“52.   In Article 20 of the Industrial Tribunals (Northern Ireland) Order 1996 M24 (Conciliation) in paragraph (1) (which specifies the proceedings and claims to which the Article applies) after sub-paragraph (n) omit the word “or” and after sub-paragraph (o), insert—

“or

(p) under regulation 45 or 51 of the Companies (Cross-Border Mergers) Regulations 2007.”.”.

Marginal Citations

M24 S.I. 1996/1921. Article 20(1) has been amended on a number of occasions to specify additional proceedings and claims to which the Article applies.

12.—(1) Regulation 53 shall apply in relation to a complaint made by— U.K.

(a) a Northern Ireland employee;

(b) a member of a special negotiating body elected or appointed to act in Northern Ireland,

as if any reference to the CAC were a reference to the Industrial Court.

(2) In relation to a complaint to the Industrial Court to which sub-paragraph (1) relates—

(a) regulations 53(6) and (7) and 55(2) and (3) shall apply as if any reference to the Appeal Tribunal were a reference to the High Court in Northern Ireland;

(b) regulations 53(7) and 55(5) and (7) shall apply as if any reference to the Secretary of State were a reference to the Department for Employment and Learning and any reference to the Consolidated Fund were a reference to the Consolidated Fund of Northern Ireland; and

(c) regulation 55(4) shall apply as if a reference to the CAC were a reference to the Industrial Court.

13.—(1) Regulation 54 shall apply in relation to a complaint made by— U.K.

(a) a Northern Ireland employee;

(b) a member of a special negotiating body elected or appointed to act in Northern Ireland,

as if any reference to the CAC were a reference to the Industrial Court.

(2) In relation to a complaint to the Industrial Court to which sub-paragraph (1) relates—

(a) regulation 54(5) and (6) shall apply as if any reference to the Appeal Tribunal were a reference to the High Court in Northern Ireland; and

(b) regulation 54(6) shall apply as if any reference to the Secretary of State were a reference to the Department for Employment and Learning.

14.  Regulation 56 shall have effect as if the reference to the CAC included a reference to the Industrial Court. U.K.

15.  Regulation 57 shall have effect as if for the heading there were substituted “ Industrial Court Proceedings ” and as if— U.K.

(a) in paragraphs (1) and (2) the reference to the CAC included a reference to the Industrial Court;

(b) after paragraph (4) there were inserted—

“(4A) Where a transferee company or merging company has its registered office (or principal place of business if not a body corporate) in Northern Ireland—

(a) a declaration made by an Industrial Court under these Regulations may be relied upon as if it were a declaration or order made by the High Court in Northern Ireland; and

(b) an order made by the Industrial Court under these Regulations may be enforced in the same way as an order of the High Court in Northern Ireland.”; and

(c) paragraphs (5) and (6) shall apply as if a reference to the CAC were a reference to the Industrial Court and a reference to the Appeal Tribunal were a reference to the High Court in Northern Ireland.

16.  Regulation 60 shall have effect as if for the heading there were substituted “ Labour Relations Agency ” and as if— U.K.

(a) a reference to an application or complaint received by the CAC included a reference to an application or complaint received by the Industrial Court under these Regulations (as modified by this Schedule) and in relation to such an application or complaint;

(b) any reference to ACAS was a reference to the Labour Relations Agency; and

(c) any other reference in the regulation to the CAC were a reference to the Industrial Court.

17.  Regulation 61 shall apply in relation to any agreement on contract enforceable under the law of Northern Ireland as if the reference to the CAC included a reference to the Industrial Court. U.K.

18.—(1) Regulation 62 shall apply in relation to any Northern Ireland employee as if— U.K.

(a) a reference to an employment tribunal were a reference to an Industrial Tribunal; and

(b) a reference to a conciliation officer were a reference to the Labour Relations Agency.

(2) Regulation 62(2) and (3) shall have effect as if for the reference to section 18(1) of the Employment Tribunals Act 1996 there were a reference to Article 20(1) of the Industrial Tribunals (Northern Ireland) Order 1996.

(3) After regulation 62(7)(b) there shall be inserted—

“and

(c) as respects Northern Ireland, a barrister (whether in practice as such or employed to give legal advice) or a solicitor who holds a practising certificate.”.

19.  Regulation 63 shall have effect as if for the heading there were substituted “ Amendments to the Employment (Northern Ireland) Order 2003 M25 ” and for regulation 63 there shall be substituted— U.K.

“63.   At the end of each of the following Schedules to the Employment (Northern Ireland) Order 2003—

(a) Schedule 2 (tribunal jurisdictions to which Article 17 applies);

(b) Schedule 3 (tribunal jurisdictions to which Article 19 applies); and

(c) Schedule 4 (tribunal jurisdictions to which Article 27 applies),

insert—

“Regulation 51 of the Companies (Cross-Border Mergers) Regulations 2007 (detriment: enforcement and subsidiary provisions).”.”.

Marginal Citations

M25 S.I. 2003/3902.

20.  For any reference in these Regulations to a provision of the Employment Rights Act 1996 in column (1) of the following table there shall be substituted a reference to the provision in the Employment Rights (Northern Ireland) Order 1996 M26 specified opposite thereto in column (2). U.K.

Table

Column (1) Employment Rights Act 1996	Column (2) Employment Rights (Northern Ireland) Order 1996
Part 10	Part XI
Section 43A	Article 67A
Chapter 2 of Part 14	Chapter IV of Part I
Section 48(2) to (4)	Article 71(2) to (14)
Section 48	Article 71
Section 49(1) to (5)	Article 72(1) to (5)
Section 62	Article 90

Marginal Citations

M26 S.I. 1996/1919 (N.I. 16).

21.  For the purposes of this Schedule— U.K.

“Industrial Court” means the Industrial Court constituted under Article 91 of the Industrial Relations (Northern Ireland) Order 1992 M27 ;

“Industrial Tribunal” means a tribunal established under Article 3 of the Industrial Tribunal (Northern Ireland) Order 1996 M28 ;

“Northern Ireland employee” means an employee employed to work in Northern Ireland; and

“Northern Ireland member of the special negotiating body” means a member of the special negotiating body elected or appointed by Northern Ireland employees.

Marginal Citations

M27 S.I. 1992/807 (N.I. 5).

M28 S.I. 1996/ 1921 (N.I. 18).