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COMPANIES ACT 2006: IMPLEMENTATION |
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The text of the Companies Act 2006, explanatory notes and tables of destinations and origins are freely available to download at: http://www.opsi.gov.uk/acts/acts2006a.htm. To see when specific sections of the Act will or have come into force, check the implementation timetable on the FL Memo Ltd newsletter homepage (follow the link to “Companies Act 2006 implementation timetable”). The implementation timetable is now up to date to the final version of the Eighth Commencement Order. |
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Final version of Eighth Commencement Order See CLM ¶765, ¶1385, ¶1400+, ¶1472, ¶7535 BERR has published the final version of the Eighth Commencement Order (SI 2008/2860), which will bring into force the remaining provisions of the new Companies Act on 1 October 2009, with a few minor exceptions which will not be implemented (see footnote below). The final version of the Order generally follows the approach taken in the draft (details of which can be found in CLM 2008 Newsletter Issue 4), bringing into force provisions regarding company formation, shares and share capital, some company registers and dissolution and restoration, amongst other things. The following matters are treated differently to the draft version: » the time limit on applications to restore a company to the register. Currently, this depends upon the application being made: 2 years from dissolution, in the case of an application to declare a dissolution void (this limit can be waived if the application is being made to enable a person to make a personal injury claim against the company); or 20 years, in the case of an application for restoration. From 1 October 2009, these two procedures will be replaced by an expedited procedure for restoring a company that was struck off mistakenly, and a normal procedure for restoration in other cases. A 6-year time limit will apply to both new procedures. In respect of companies dissolved on or after 1 October 2007 (but before 1 October 2009), the final Order extends the current 2-year limit to 6 years (in line with the new procedures), retaining the exception for personal injury cases; and » the availability of new powers to existing companies regarding their share capital. The new Companies Act gives companies incorporated on or after 1 October 2009 certain default powers to change their capital: to reduce their share capital, to purchase their own shares, to issue redeemable shares (for private companies only), and to purchase their own shares out of capital (for private companies only). The final Order states that existing companies will also have these default powers (a change from the draft version which required existing companies to pass a resolution to apply the relevant power(s)), unless specifically prevented by their articles. The provisions that will not be implemented are sections 327(2)(c), 330(6)(c), 1175 (as it applies to Northern Ireland) and Part 2 of Schedule 9. New regulations In addition to the final versions of the regulations discussed below, BERR has announced that final versions of the following regulations will be published shortly: » the Companies (Company Records) Regulations 2008; » the Companies (Fees for Inspection of Company Records) Regulations 2008; and » the Companies (Registration) Regulations 2008. Statutory auditors and third country auditors See CLM ¶4290, ¶4345 The Statutory Auditors and Third Country Auditors (Amendment) (No. 2) Regulations 2008 (SI 2008/2639) came into force on 31 October 2008. They amend the Statutory Auditors and Third Country Auditors Regulations 2007 (SI 2007/3494) and are aimed at regulating certain third country auditors and audit entities. Details of the new regulations are discussed in CLM 2008 Newsletter Issue 5. Annual returns See CLM ¶3896, ¶3899, ¶3907, ¶4062+ The Companies Act 2006 (Annual Return and Service Addresses) Regulations 2008 (SI 2008/3000) set out the disclosure requirements in annual returns (including, amongst other things, particulars of directors and secretaries and certain information about shareholders). The requirements in the regulations are the same in substance as those in the April 2008 draft (see CLM 2008 Newsletter Issue 3), although with regards to the particulars of directors and secretaries required to be disclosed in annual returns, the Government has changed its approach and decided to amend the new Companies Act and include the required particulars in the Act (instead of setting them out in the regulations, as in the April 2008 draft). Charges See CLM ¶4642 ¶4645 The Companies (Particulars of Company Charges) Regulations 2008 (SI 2008/2996) set out the details of the charges that will have to be registered at Companies House. They include the same requirements as the draft regulations issued in April 2008 (see CLM 2008 Newsletter Issue 3). Draft secondary legislation Application of CA 2006 to LLPs See CLM ¶77 BERR has published the draft of the Limited Liability Partnerships (Application of Companies Act 2006) Regulations 2009 (see CLM 2007 Newsletter Issue 9 and CLM 2008 Newsletter Issue 3 for background to the regulations and details of the consultation process on this topic). The purpose of the regulations is to apply the remaining provisions of the new Companies Act (i.e. provisions other than those in relation to accounts which came into force on 1 October 2008, see CLM 2008 Newsletter Issue 4) to LLPs. The regulations cover a range of subject matters in relation to LLPs, including: » LLP names and trading disclosures; » membership (including register of members and disclosure of members’ residential addresses); » annual returns; » debentures and charges; » arrangements, reconstructions and cross-border mergers; » fraudulent trading; » protection of members against unfair prejudice; » dissolution and restoration to the register; » overseas LLPs; and » the register of companies. BERR is currently inviting comments on the draft regulations until 28 January 2009. The finalised regulations will apply to LLPs from 1 October 2009. Trading and address disclosures and register of companies See CLM ¶259+, ¶585, ¶3896, ¶3907 The draft Companies (Trading Disclosures) (Amendment) Regulations 2008 have been laid before Parliament. They will amend the Companies (Trading Disclosures) Regulations 2008 (SI 2008/495). The Government has also laid before Parliament the draft Companies (Disclosure of Addresses) Regulations 2008 and the draft Companies (Registrar of Companies and Applications for Striking Off) Regulations 2008. No substantial changes have been made to these regulations since the previous drafts, see CLM 2008 Newsletter Issue 3 for further details. Amendments to accounts, reports and audit legislation See CLM ¶2897, ¶3199 BERR has published the draft Companies Act 2006 (Accounts, Reports and Audit) Regulations 2009. The main purpose of the regulations is to correct provisions and update cross-references in Part 15 of the new Companies Act (which deals with accounts) and regulations made under it. For instance, the regulations amend the disclosure requirements in the new Act regarding advances, credits and guarantees given by banks for the benefit of their directors, so that banks will only be required to disclose aggregate figures (the Act, as it currently stands, requires information for each director and therefore does not allow banks to provide such information in aggregate). In addition, the regulations also set out filing and auditing requirements for corporate governance statements, which publicly traded companies have to prepare (either as part of their annual directors’ report or as a separate report). Comments on the draft regulations are invited by 9 January 2009. Proposal to merge the Northern Ireland Registry with Companies House See CLM ¶4042 BERR has published a consultation document on proposals to integrate the Northern Ireland Registry with Companies House, creating a UK-wide Register of Companies. The proposal forms part of the implementation of the new Companies Act to create a single company law regime across the UK (i.e. applicable to Northern Ireland as well as Great Britain). The new Companies Act defines the term “Registrar of Companies” to include not only the Registrar for England and Wales and the Registrar for Scotland, but also the Registrar for Northern Ireland (s 1060 CA 2006). It is hoped that the integration of the two registries will provide a number of benefits, for instance, access to a broader range of products and a single point of contact for customers. The consultation closed on 18 November 2008, and the Government is intending to provide a response to it early in 2009. The Government intends to bring this change into effect on 1 October 2009. The consultation document is available on BERR’s website: http://www.berr.gov.uk/files/file47537.pdf.
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