Corporate Update - Changes for 2023

There are various changes to the corporate legal landscape to be aware of this year. Some changes have already taken effect while others are coming down the tracks in 2023. Our Corporate team reviews some of these changes including the cessation, as of 31 December 2022, of certain temporary COVID-19 related measures under the Companies Act 2014 and new obligations to be imposed in respect of sustainability reporting. They also discuss rules and procedures to be introduced in relation to cross border mergers and other cross border operations.

Remote execution of documents- certain temporary COVID-19 measures have come to an end

The ‘Section 43A counterparts’ procedure was introduced by the Companies (Miscellaneous Provisions) (Covid-19) Act 2020 to facilitate the easier execution of documents under seal. The procedure was set to apply for an interim period, which was extended a number of times over the course of the COVID-19 pandemic. This procedure was not extended beyond 31 December 2022 and is no longer permissible since 1 January 2023.

Documents requiring execution under seal

Practically, this will mean that for documents required to be executed under seal, signatories will now need to be physically present at the same location to witness the affixing of the company seal. As an alternative, companies may wish to consider granting a power of attorney to one or more individuals to execute documents (including deeds) on behalf of the company without any requirement for the company seal to be affixed. Importantly, the attorney’s signature must be witnessed if the document being executed is a deed. The power of attorney could be executed as a simple contract and would therefore avoid the need for execution under seal.

Looking to continue to hold remote meetings?

While the provisions relating to document execution and sealing have lapsed, those enabling companies to hold hybrid or virtual general meetings via electronic communications such as Zoom or Teams platforms have been extended again until 31 December 2023. This provision has proved helpful and very popular, particularly for companies with a large and diffuse member register who report increased member engagement due to the convenience of being able to join and participate in a meeting from the comfort of their own home.

ESGs and sustainability reporting

EU based companies and certain non-EU companies with substantial activity in the EU should begin to consider and prepare to meet reporting obligations imposed under the Corporate Sustainability Reporting Directive (CSRD) which was enacted on 5 January 2023. The CSRD is due to be transposed into national law by 16 June 2024.

The CSRD obliges an in-scope entity to report on a full range of sustainability related topics relevant to its business such as:

• Environmental matters
• Social matters
• Employee related matters
• Matters related to human rights
• Anti-corruption and anti-bribery matters

The provisions of the CSRD add to the non-financial reporting obligations already in place and extend these obligations by broadening the range of in-scope entities to which the reporting obligations apply. In addition, the CSRD broadens the types of sustainability topics to be reported on. In short, its aim is to achieve harmonized sustainability reporting standards throughout the EU. Draft reporting standards are now available to view. Additional standards are due to follow in June 2023 which will importantly set out standards for certain sectors characterized as having a high impact on sustainability matters, such as the energy production sector.

For more information, see our recent article Progress on the Corporate Sustainability Reporting Directive.

Considering various restructuring options?

For companies looking to restructure within the EU, the Cross Border Mobility Directive (CBMD)[1], which is due to be implemented into national law by the end of January 2023, amends current rules in place in relation to cross border mergers. One of its main aims is to remove barriers to enable certain EU established limited liability companies to freely establish and effectively relocate throughout the EU by means of either a cross border merger, a conversion or a division (cross border operations).

The CBMD introduces further protective mechanisms aimed at providing additional protection and ‘anti-abuse’ measures in relation to cross border operations to seek to ensure that an operation is not artificial, abusive or fraudulent in nature, and that the interests of employees, members and creditors are protected.

Given that the timeline for transposition of the CBMD into national law is fast approaching, we will give a more comprehensive analysis as soon as the Irish legislature introduces implementing regulations.

Conclusion

Although the Section 43A counterparts procedure is no longer permissible, some practical components of the temporary COVID-19 measures have been maintained which is good to see.

The other proposed changes that we have referred to are driven by Europe and are, in the main, welcomed. Not all of these changes will apply or be relevant to you/your company. However, where they are, particularly in respect of the obligations imposed under the CSRD, you will need to assess the proposed draft reporting standards as they evolve and what you may need to do to ensure compliance with them.

For more information on successfully navigating the proposed changes, contact a member of our Corporate team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.

[1] Directive (EU) 2019/2021 of the European Parliament and of the council of 27 November 2019 amending Directive (EU) 2017/1132 as regards cross-border conversions, mergers and divisions.