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COMPANIES ACT 2006: IMPLEMENTATION |
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CA 2006 |
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October implementation A draft of the Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009 has been published. It mainly sets out amendments that need to be made to other legislation as a result of the new Companies Act. Most of the transitional provisions and savings relating to the implementation of the new Act can be found in the relevant Commencement Order, but there is a handful in this new Order. The Order will also make some minor amendments to the new Companies Act itself. The Order will come into force on 1 October 2009. Limited liability partnerships See CLM ¶77+ A final version of the Limited Liability Partnerships (Application of Companies Act 2006) Regulations 2009 has been published (SI 2009/1804). As expected, it applies most of the new Companies Act, with appropriate modifications, to LLPs: » names; » trading disclosures; » protection of members from unfair prejudice; » members’ names and addresses (note that members in LLPs are akin to directors in companies). The requirement to keep a register of members is new for LLPs; » fraudulent trading; » formalities of doing business, such as execution of deeds and documents; » Companies House, including annual returns; » charges and debentures; » company reorganisations; » dissolution and restoration; and » miscellaneous provisions. The final draft is substantially the same as the previous one, with some exceptions: » the company communications provisions will not be applied to LLPs (ss 1143-1148 CA 2006). This is consistent with LLPs’ ability to make their own provisions regarding internal management; » LLPs are required to have at least two members. Instead of applying the company provision (s 156 CA 2006) giving the secretary of state the power to require an LLP with fewer than two members to make another appointment, the provision allowing a sole member to apply to have the LLP struck off the register will be applied (s 1003 CA 2006); » instead of requiring all LLPs to list all of their members in business letters, only those with fewer than 20 members will have to do so; » where a member applies to restore the LLP to the register using the new “administrative restoration” procedure (see CLM ¶7546), he will have to notify all other former members; » references to shadow members have been removed from the regulations, as they have no meaning in relation to LLPs; » the provisions dealing with overseas companies are not being extended to overseas LLPs for the time being, although the Government will keep this question under review; and » the Cross-Border Mergers Regulations 2007 (see CLM ¶6536) will apply to LLPs and will provide for a merger involving an LLP and a company. There are already some amendment regulations addressing a mistake in the main regulations discussed above (SI 2009/1833). The main regulations mistakenly repeal the application to LLPs of the provisions in CA 1985 relating to floating charges in Scotland; the amendment regulations correct this. Both sets of regulations will come into force on 1 October 2009. Overseas companies See CLM ¶140+ The final version of the Overseas Companies (Execution of Documents and Registration of Charges) Regulations 2009 has been published (SI 2009/1917). Unlike the draft version (see CLM 2009 Newsletter Issue 3), the final version includes provisions dealing with the execution of documents by overseas companies. It applies the following provisions of the new Companies Act to overseas companies, with relevant modifications: » company contracts (s 43, see CLM ¶3492+), enabling an overseas company to enter into contracts; » execution of documents (s 44, see CLM ¶3494), setting out how an overseas company can execute documents generally; » execution of deeds (s 46, see CLM ¶3490), setting out how an overseas company can execute deeds; and » contracts etc entered into before the overseas company is formed (s 51, see CLM ¶356+). The regulations also deal with the execution of documents under Scottish law. The other provisions concern the registration of charges and debentures created by overseas companies over their property in the UK. Much of the substance of these provisions is the same as in the draft version, except that the final version: » deals with charges created under Scottish law; and » does not include a criminal offence for failure to register a charge (although the other consequences of failure to register remain). The final draft of the Overseas Companies Regulations 2009 has also been published (SI 2009/1801). It is the same as the previous draft, CLM 2009 Newsletter Issue 3, dealing with all issues to do with overseas companies, apart from contracts and charges (above) and names (which are dealt with in separate regulations, also see CLM 2009 Newsletter Issue 3). The regulations will come into force on 1 October 2009. Shares and share capital See CLM ¶740, ¶952, ¶1351, ¶1383, ¶1387, ¶1435, ¶1487 As reported in CLM 2009 Newsletter Issue 2, the draft Companies (Share Capital and Acquisition by Company of its Own Shares) Regulations 2009 were published for comment back in March. The consultation closed in April, with the overall response being supportive of the draft. Based on that, BIS has finalised the regulations, with no substantive changes introduced (SI 2009/2022). The regulations will come into force on 1 October 2009. Uncertificated shares See CLM ¶1828 The Companies Act 2006 (Consequential Amendments) (Uncertificated Securities) Order 2009 has been published (SI 2009/1889). The purpose of the new Order is to update references in the existing regulations on uncertificated shares (SI 2001/3755) to take into account the implementation of the new Companies Act 2006 provisions on shares in October this year. The new Order will come into force on 1 October 2009. Implementation of the Shareholders’ Rights Directive See CLM ¶3533, ¶3556, ¶3626, ¶3724, ¶3731, ¶3743, ¶3840, ¶3843, ¶3846, ¶3849 The new Companies Act will be amended as expected by The Companies (Shareholders' Rights) Regulations 2009 (SI 2009/1632). The amendments will bring CA 2006 into line with the Shareholders' Rights Directive (EC Directive 2007/36). Although primarily aimed at listed companies, some of the amendments will apply to both listed and non-listed companies, see CLM 2008 Newsletter Issue 6. The new provisions apply to shareholder meetings of which notice is given on or after 3 August 2009. ICSA has published a guidance note on the new regulations (“ICSA Guidance on the Implementation of the Shareholder Rights Directive”). It can be downloaded from its website at: https://icsasoftware.wufoo.com/forms/icsa-guidance-on-the-shareholder-rights-directive/. Companies House forms and filing requirements See CLM ¶4040+, ¶9900 Companies House has published information on filing requirements under the new Companies Act. This information comprises: » draft copies of the new forms; » a draft price list for filing fees and the charges for obtaining information from Companies House; » a copy of each set of Model Articles (for private companies limited by shares, public companies and private companies limited by guarantee); » draft updated Companies House guidance; and » a copy of the draft Registrar’s Rules 2009, which set out how documents can be filed using different methods and what criteria they must fulfil. The new forms etc will apply when the new Companies Act is fully in force on 1 October 2009. This information can be found at: http://www.companieshouse.gov.uk/companiesAct/companiesAct.shtml. Documents delivered to Companies House and applications for striking off See CLM ¶4049, ¶4080, ¶7491+ The final version of the Registrar of Companies and Applications for Striking Off Regulations 2009 has been published (SI 2009/1803). It is the same as the previous draft, see CLM 2009 Newsletter Issue 3, dealing with: » applications for voluntary striking off; » applications for rectification of the register; » documents which may be delivered to the registrar in Welsh without an English translation (and in other languages with an English translation); and » permitted characters and symbols in names and addresses. The regulations will come into force on 1 October 2009. Accounts and audit See CLM ¶4246, ¶4252, ¶4278 The final version of the Companies Act 2006 (Accounts, Reports and Audit) Regulations 2009 has been published (SI 2009/1581). No further changes have been made since the previous draft, see CLM 2009 Newsletter Issue 3, dealing with corporate governance statements (the “business review” part of directors’ reporting obligations) of publicly traded companies. The regulations will come into force on 1 October 2009. The Takeover Panel’s powers in the Isle of Man See CLM ¶6755 The Companies Act 2006 (Extension of Takeover Panel Provisions) (Isle of Man) Order 2009 has been published (SI 2009/1378). This follows an earlier Order (SI 2009/1208) which amends Schedule 2 to the new Companies Act and which gives the Takeover Panel new disclosure powers (see CLM 2009 Newsletter Issue 3). The purpose of this new Order is to extend the application of the amended Schedule to the Isle of Man. The new Order came into force on 1 July 2009. Disclaimer of bona vacantia property after dissolution See CLM ¶7492 BIS has issued a consultation on what transitional arrangements should be made to deal with the changes in the deadlines by which the Crown must disclaim bona vacantia property of a dissolved company. Under CA 1985, the time limits for making this decision are (s 656 CA 1985): » 12 months from notification, where the Crown is notified of a company’s dissolution; or » 3 months from an application being made by a person who is interested in the property. Under the new Companies Act, these deadlines are extended to 3 years and 12 months, respectively (s 1013 CA 2006). Under the 8th Commencement Order, the new deadlines apply where a company is dissolved on or after 1 October 2009 (para 8 Sch 2 SI 2008/2860). However, since it can take a long time for the Crown to be notified of a company’s dissolution, this would result in the Crown having to operate under two systems for some time. Therefore, BIS proposes to apply the new deadlines where a company was dissolved before 1 October 2009, but the Crown had no notice that any property had vested in it, had not received an application from an interested party, nor had it disclaimed the property on 1 October 2009. A copy of the consultation paper can be found at: http://www.berr.gov.uk/whatwedo/ businesslaw/co-act-2006/draft/page40411.html. Comments are invited by 21 August. Taxes and National Insurance The Companies Act 2006 (Consequential Amendments) (Taxes and National Insurance) Order 2009 has been published (SI 2009/1890). The purpose of the new Order is to update references in the existing tax and national insurance legislation (and related secondary legislation) to take into account the final implementation stage of the new Companies Act in October this year. The new Order will come into force on 1 October 2009. |
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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 up to date to the final version of the Eighth Commencement Order. |