INVESTING AND DOING BUSINESS IN IRELAND
LAWS & REGULATIONS ON SETTING UP BUSINESS IN IRELAND / UNDERSTANDING THE IRISH LEGAL SYSTEM
(A) INTRODUCTION: LEGAL SYSTEM
- What is the official language?
English and Irish are the official languages of the Irish legal system.
- What is the legal system (i.e. common law system, civil law system or both)?
The legal system in Ireland is a common law legal sytem.
- What are the major law courts?
The legal system in Ireland is divided into the civil and criminal.
The civil courts hear cases involving disputes between individuals, organisations and the State, the courts are largely divided up hierarchically based on the amount of money they can award in damages.
- The District Court hears claims up to €15,000
- The Circuit Court hears claims between €15,000 and €75,000
- The High Court hears claims above €75,000
- Court of Appeal hears appeals of decisions of the High Court
- Supreme Court are for cases of public significance or cases where an important aspect of the law or the Constitution is in issue.
The Criminal Courts deal with prosecutions brought by the State against people accused of anti-social behaviour – from petty theft to murder. The criminal courts are made up of the same courts as, divided up hierarchically based on the severity of the crime. The High Court exercising its criminal jurisdiction is known as the Central Criminal Court. In addition to the above the Criminal Courts system includes the Special Criminal Court, this court was established for the trial of offences in cases where it is determined that the ordinary courts are inadequate to secure the effective administration of justice and preservation of public peace and order.
- What are the sources of laws (such as the constitution, statute law, and common law) in your country?
The Irish Constitution, Legislation (Acts of the Oireachtas and Statutory Instruments), Common Law precedents, European Law, International Law and custom.
(B) BUSINESS ENTITIES:
The two main types of company in Ireland are private companies and public companies. The vast majority of companies registered in Ireland are private companies limited by shares (“LTD(s)”). They are by far the most popular form of business entity for inward investment projects. The shareholders of a private limited company have limited liability, limited to the amount remaining unpaid on the shares held by them. Public limited companies are typically used where securities are listed or offered to the public.
The Companies Act 2014 (the “2014 Act”) provides for two types of private limited company; a new model company with a simplified constitution and governance structure, and a designated activity company (“DAC”) which is close in form to the private limited company previously available under the old companies acts in Ireland, and which also benefits from certain reforms introduced by the 2014 Act.
- Registration formalities;
To incorporate a private company limited by shares, certain documents must be publicly filed with the Irish Companies Registration Office (the “CRO”). These include details of the proposed name of the entity, the shareholders, the directors and the company secretary. The completed documentation together with the constitution are then filed with the CRO. Under an express incorporation scheme, it is possible to incorporate a company within five working days. Outside of the express scheme, it can take approximately two to three weeks for a company to be incorporated. It takes three to four weeks to incorporate any other type of company.
- Minimum (and maximum) share capital;
There is no upper limit on the share capital which a company may be authorised to issue, and there is no restriction on the currency or denomination amount of shares. All companies, other than a LTD, must state the amount of the authorised share capital in their constitution. The currency and denomination of shares must also be stated in a company's constitution, but can be amended (as long as this does not result in a reduction in issued share capital) by a resolution of the members. There is no minimum share capital amount that a private company must issue. However, a public limited company must have a minimum issued share capital of €25,000 of which at least one quarter must be fully paid up, if it intends to trade.
- Whether shares can be issued for non-cash consideration, such as assets or services (and any formalities);
Irish companies may issue shares for non-cash consideration. There are different types of non-cash consideration that are acceptable under Irish law, for example: shares can be issued in exchange for the issue of shares in another company, the transfer of an asset or the transfer of a business.
- Any restrictions on foreign shareholders;
Ireland does not implement restrictions on foreign ownerships in Irish companies.
- Management structure and any restrictions on foreign managers;
There are no restrictions on foreign managers or directors, provided they are legally permitted to work in Ireland. However, where an Irish Company does not have at least one Director who is resident in the European Economic Area, a Bond must be taken out. The Bond must insure the company for a sum of €25,000 in order to cover the company if any of the following situations arise:
- Any fine is imposed of the Company in respect of offences under the 2014 Act.
- Any fine is imposed for failure to supply certain information to the Revenue Commissioners in Ireland.
- Any penalty is imposed in relation to sections 1071 and 1073 of the Taxes Consolidation Act 1997
The bond must have a minimum period of validity of two years.
- Directors' liability;
A director can be liable for the acts of the company. Directors must:
- act in good faith and in the interests of the company.
- act honestly and responsibly in relation to the conduct of the affairs of the company.
- act in accordance with the constitution and exercise powers only for purposes allowed by law.
- not misuse the company's property, information or opportunities.
- not fetter independent judgment.
- avoid conflicts of interest.
- carry out their functions with due care, skill and diligence.
- have regard to members' interests.
A director may also be liable in tort for negligent behaviour.
Directors may also be criminally liable for contravening the company's obligations in respect of transactions with directors and for failure to disclose related party transactions in the company accounts.
Directors can also be held criminally liable for certain crimes, including fraud and breach of competition law, data protection law, environmental laws and health and safety legislation etc.
vii. Parent company liability; and
Parent companies are generally not liable for acts of subsidiaries because each company is a completely separate legal entity (unless, for example, a parent company guarantees a loan or other extenuating circumstances exist).
viii. Reporting requirements (including filing of accounts).
Private companies must provide the CRO with:
- an annual return appending the last filed audited accounts and providing details of the company's officers, members, and share capital as at the date the return is made up to;
- details of any updates to the company's constitution;
- details of any changes to the company’s registered office address;
- details of any changes to the directors and secretary;
- details of allotments of shares; and
- details of any changes to their share capital.
- Average time needed to incorporate
A private company can be incorporated within ten working days under the Fé Phráinn system (a quick incorporation scheme), provided the company's constitution is in a form approved by the CRO. A private company can be incorporated within five working days under the Online A1 scheme but this is only open to members of the Fé Phrainn scheme. The constitution must also be in a form approved by the CRO.
It takes three to four weeks to incorporate any other type of company.
(C) FOREIGN INVESTMENT
- Are there any restrictions faced by a foreign individual or company when they want to invest in your country?
The government encourages foreign investments and the tax regime is particularly favourable for foreign investors
- Is an approval or permit required if a foreign individual or company wants to enter a certain industry?
Authorisations from regulatory bodies are required in certain sectors, for example telecommunications, banking and financial services.
- Is there any exchange control or currency regulations in your country?
There is no exchange control. The Minister for Finance is empowered to restrict financial transfers between Ireland and other countries in certain circumstances, provided the restriction do not contravene EU law.
- What grants or incentives are available to a foreign individual or company to encourage investment in your country?
There are several government agencies responsible for promoting investment. There are numerous grants and investment incentives schemes available from these agencies, depending on the sector, size and location of the proposed investment.
The Industrial Development Authority (the “IDA”) is the key agency responsible for foreign investment in Ireland. The IDA Ireland focuses exclusively on the promotion and development of high-quality foreign direct investment into Ireland in the manufacturing and international services sectors. In particular the IDA provides the grants in the following areas:
- Research and Development Feasibility Grant
- Research and Development Grant
- Employment Grant
- Capital Grant
- Training Grant
The IDA also provides support and assistance to potential overseas investors by offering the following services:
- Information and statistics on key business sectors and locations within Ireland
- Assistance in setting up a business in Ireland
- Introductions to local industry in Ireland, government, service providers and
- Advice on property solutions for international investors
- What are the main laws regulating employment relationships in your country?
The primary legislation regulating employment relationships include the:
- Unfair Dismissals Acts 1977 to 2015.
- Employment Equality Acts 1998 to 2015.
- National Minimum Wage Act 2000.
- The Payment of Wages Act 1991.
- Terms of Employment (Information) Acts 1994 to 2014.
- Maternity Protection Acts 1994 to 2004 and other protective leave legislation.
- Paternity Leave and Benefit Act 2016.
- Minimum Notice and Terms of Employment Acts 1973 to 2005.
- The Protection of Employees (Fixed-Term Work) Act 2003.
- The Protection of Employees (Part-Time Work) Act 2001
- Protection of Employees (Temporary Agency Work) Act 2012
- Organisation of Working Time Act 1997.
- The European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 - S.I. No. 131 of 2003.
- Is a written contract of employment required in your country, and if so, must it contain any particular language?
Employers must provide employees with a written statement of certain minimum terms and conditions of employment within two months of starting employment. The written statement is generally provided in English however as Irish is one of the official languages of the State it is foreseeable that it could be requested in Irish also. The minimum mandatory requirements are set out in the Terms of Employment (Information) Acts 1994 to 2012. Many employers choose to put a detailed written contract of employment in place.
Employees and employers can agree terms and conditions individually or through collective bargaining.
- Do foreign employees require work permits and/or residency permits if they work in your country?
The Employment Permits Act 2014 and Employment Permits Regulations 2017 governs this area and is operated by the Department of Business, Enterprise and Innovation (www.dbei.ie).
The Irish employment permits system is intended to act as a conduit for key skills which are required to develop enterprise in the State for the benefit of our economy, while simultaneously protecting the balance of the labour market. The system is by design, affected by the economy, expanding and contracting in tandem with its inherent fluctuations.
Lists of employments which identify critical skills in high demand in the economy, and skills for which there is ample capacity already in the resident labour market, are reviewed twice yearly using an evidence based process.
Nationals from non-exempt countries must obtain an entry visa before travelling to Ireland. Details of exempt and non-exempt countries can be obtained from the Department of Foreign Affairs and Trade (www.dfa.ie). The grant of an employment permit does not grant any entry or residency rights, and visa-required nationals must still comply with visa and residency requirements after obtaining an employment permit.
- Are there any employment protection laws (such as minimum wage law and/or maximum working hour’s law) in your country?
Under the National Minimum Wage Order 2017 S.I.No. 440/2017, the national minimum wage for an experienced adult employee is €9.55 per hour. An experienced adult employee for the purposes of the National Minimum Wage Act is an employee who has an employment of any kind in any 2 years over the age of 18. The Work Place Relations Commission in Ireland has provided this list of frequently asked questions on the national minimum wage.
Under the Organisation of Working Time Act 1997 states that the maximum average working week for many employees cannot exceed 48 hours. This does not mean that a working week can never exceed 48 hours, it is the average that is important. The average may be calculated in one of the following ways:
- Over 4 months for most employees
- Over 6 months for employees working in the security industry, hospitals, prisons, gas/electricity, airport/docks, agriculture and employees in businesses which have peak periods at certain times of the year such as tourism.
- Over 12 months where there has been an agreement between the employer and the employees to this effect. The agreement between employer and employees must be approved by the Labour Court.
The calculation of 48 hours does not include annual leave, sick leave or maternity/adoptive/parental leave. The legislation also lays down rules for night workers, minimum breaks and rest periods. There are also special provisions in relation to Sunday working.
- Could you describe a collection process through Court in IRELAND?
The procedure for obtaining judgment depends on whether or not the case is defended.
The purpose of legal action is to encourage the debtor to pay. If the debtor pays at any stage during the process, legal action can be stopped. If the debtor refuses to pay, legal action will continue until the debt and costs are paid in full or the debtor makes a settlement. Where a debtor fails to pay, the court will grant judgment in favour of the creditor. This is a decision of the court confirming that the debt is owed by the debtor to the creditor for the amount stated on the judgment together with costs.
The process of debt collection will involves the following steps where relevant:
- Letter of Demand
- Issuing and Service of a Court Summons
- Affidavit of Debt
- Summary Judgment
- Defended Cases
- Commercial Court
Letter of Demand
The debtor must first be made aware of the debt and be advised of any impending action by a creditor. For this reason, the first step in a typical debt recovery action is the issue of a demand letter The demand letter will state that the debtor is on notice of a claim for a debt, that it must be paid within a specified time frame, usually seven days and that failure to do so will result in the issue of legal proceedings without further notice to the debtor. It further warns that costs will be claimed if legal action becomes necessary. The letter in itself is often all that is required to make the debtor appreciate the error of his ways and discharge his indebtedness.
Issuing and Service of a Court Summons
If the debtor fails to respond to the demand letter within the time allowed, Court proceedings are issued and served. Issuing court proceedings involves drafting the appropriate endorsement of claim, arranging for the summons to be stamped with the required stamp duty and submitted to the relevant court office for the allocation of a court record number. Once these matters have been attended to, the proceedings can then be served on the debtor. Depending on the amount of monies owed they will be served via the District Court (as a Claim Notice), the Circuit Court (as a Civil Bill), or the High Court (as a Summary Summons)
In District and Circuit Court cases, the Summons is served by registered post. In High Court cases, the Summons must be served personally. A Company must always served by ordinary prepaid post.
Affidavit of Debt
Debt recovery matters are unique in that they can be dealt with summarily by the Courts. This means that if the debtor fails to respond within the time frame specified in the summons, the creditor may apply to the court for an order for judgment. This is done on foot of an Affidavit of Debt and without the necessity for a Court hearing.
The Affidavit of Debt is drafted at the earliest possible date allowed by the court rules and states the amount due and owing. The Affidavit must be signed by the Creditor and sworn before a Commissioner for Oaths. It must then be lodged along with other documents in the relevant court office in order to obtain judgment.
An order for judgment in favour of a creditor where the debtor does not defend the claim is referred to as a Summary Judgment. The manner in which Summary Judgment is obtained varies in each Court, but there are a number of common features throughout. In each case a judgment set is lodged in the relevant Court. The judgment set consists of the Summons, Proof of Service and the Affidavit of Debt sworn by the Creditor together with several other legal documents relevant to each specific Court.
The debtor may notify that he intends to defend a claim, the process will differ depending on which court has jurisdiction.
- District Court - Debts up to €15,000
When a debtor wishes to defend a District Court Claim Notice he may notify his intention to defend the proceedings by entering into court both an Appearance and a Defence. These must be entered not later than 28 days after the service of the claim notice on him and a copy should also be sent to the plaintiff (or their solicitor’s office). Once an Appearance and Defence have been entered a Notice of Trial will be issued and a hearing date will be provided. Both parties will be required to give evidence at the hearing and the Plaintiff must prove his claim.
- Circuit Court - Debts of €15,001 to €75,000
The debtor notifies his intention to defend proceedings by entering an Appearance. The debtor then has 10 days to enter a Defence. The entry of a Defence may be delayed by a Notice for Particulars to which the Plaintiff must reply. When the pleadings are finalised, the matter will be set down for trial. Both parties will be required to give evidence and the Plaintiff must prove his claim.
- High Court - Debts greater than €75,000
If a debtor intends to defend a High Court case, they must enter an Appearance. If they then fail to file a, an Affidavit of Debt may be signed and sworn before a Commissioner for Oaths. This Affidavit together with a Notice of Motion seeking Judgment is filed in the High Court Office and a date is given for a hearing before the Master of the High Court. At the hearing, if the Master is satisfied that the debt is due and owing, he will grant liberty to enter final Judgment. This Order together with other documents are then lodged in the Central Office of the High Court and Judgment is granted. However, if the Master of the High Court is satisfied that the defendant has a genuine dispute he will send the matter for Plenary Hearing.
In High Court actions for a liquidated debt, a full or complete hearing on the merits of a case subsequent to the issue and service of Summary Summon is known as a Plenary Hearing. This hearing usually follows a direction from the Master's Court that the case be adjourned for Plenary Hearing. Hearings of this kind do not involve a jury but are heard before a judge of the High Court and only after a full Book of Pleadings has been prepared. Once all necessary papers are in order the Certificate of Readiness is lodged by the Creditor's solicitor and this will enable the matter to be set down for hearing.
Commercial Court – claims exceeding €1,000,000
Entry in to the Commercial Court is brought by motion of notice to the Judge of the High Court of the Commercial List. Summary proceedings may be heard on affidavit without pleadings. A certificate from the applicant's solicitor specifying how such proceedings qualify for entry into the High Court Commercial List is also required. On hearing the Motion the Judge can direct that proceedings be entered into the High Court Commercial List. When proceedings are adopted the Judge will fix a date for an initial directions hearing or alternatively treat the hearing of the motion as the initial directions hearing. The pre-trial process of the Commercial Court provides for a case management conference and a pre-trial conference where both contested issues and uncontested issues are addressed. Once this is complete the matter will proceed to trial
- Does your country have signed the Hague Treaty on Recognition & Enforcement of foreign judgments? No Ireland has not signed this treaty.
- What taxes are there on income in your country?
Tax payable on income in Ireland is calculated as a percentage of your income. Certain tax reliefs are available depending on an individual’s personal circumstances which are deducted from the amount of tax payable in the form of a tax credit. The total tax payable by an individual is made up of income tax, Pay Related Social Insurance (PRSI) and the Universal Social Charge (USC):
- Income Tax: Employees are liable to Income Tax on their worldwide annual taxable income at:
- 20% on the first €34,500 of their salary (this is the amount for a single person, and will vary if the individual is married, has any dependents etc.); and
- 40% on the remainder.
There are individual tax credits, which vary depending on the employee's circumstances, and can be set off against their income tax liability. Tax credits are deducted after your tax has been calculated and
- PRSI: If you are in employment, the amount of social insurance you pay depends on your earnings and the type of work you do. Your social insurance contributions in Ireland are referred to as PRSI. If you are an employee, your PRSI contributions are deducted by your employer and collected by Revenue under the PAYE (Pay As You Earn) In fact, the law makes your employer responsible for PRSI, though you may have to pay an 'employee's share'.
The amount of PRSI you and your employer pay will depend on your earnings and the social insurance class you are insured under:
- Class A: covers employees under the age of 66 in industrial, commercial and service-type employment who have reckonable pay of €38 or more per week from all employments as well as Public Servants recruited from 6 April 1995.
- Class B: covers permanent and pensionable civil servants recruited before 6 April 1995, registered doctors and dentists employed in the civil service and Gardai recruited prior to 6 April 1995.
- Class C: covers commissioned officers of the Defence Forces and members of the Army Nursing Service recruited before 6 April 1995.
- Class D: covers permanent and pensionable employees in the public service, other than those mentioned in Classes B and C, recruited before 6 April 1995.
- Class H: covers NCOS and enlisted personnel of the Defence Forces.
- Class J: generally covers those with reckonable pay of less than €38 per week.
- Class K: covers certain public office holders.
- Class M: covers people with nil contribution i.e. over 16 or over 66.
- Class S: covers self-employed people, including certain company directors, certain people with income from investments and rent and certain Local Authority members.
- For example as a Class A employee who earns €352 or less per week (before tax is deducted) you will not pay any social insurance. This doesn’t mean that you are not getting a contribution. You are still covered by Class A social insurance. You employer is paying social insurance on your behalf. If you earn over €352 per week, you pay 4% PRSI on all your earnings, subject to a PRSI credit which is tapered based on your earnings.
- A wide range of benefits are available to people who have paid social insurance. Your entitlement to these benefits depends on a number of conditions as well as the social insurance contribution requirement. The social insurance qualifying criteria vary, depending on what payments you are applying for.
- USC: The USC was introduced to replace the health and income levies from 1 January 2011, at rates varying from 0.5% to 8%, depending on income and age. USC is treated as a tax rather than a social security contribution for tax purposes. You pay the USC if your gross income is more than €13,000 per year. Once your income is over this limit, you pay the relevant rate of USC on all of your income. It is calculated on a weekly or monthly basis
- The overall income tax rate for employees includes income tax, PRSI and USC. The combination of all three can lead to a high overall income tax rate which is best demonstrated the examples set out in the table below.
The following table is a rough estimate of the total income tax on a single person working as an employee, based the following assumptions: they have no dependents, are aged under 65, are not making pension contributions, do not receive any benefits in kind from their employer and do not employ a carer for an incapacitated person. Additionally the below example assumes that the individual in question is not a proprietary director or controlling shareholder of a company.
|Gross Salary||Income Tax - Single person tax credit of €3,300||PRSI||USC||Total Tax Payable per Year||Net Salary|
|€34,500*||€6,900 - €3,300
= €3,600 net tax
|€50,000||€13,090 - €3,300
= €9,790 net tax
|€100,000||€33,090 - €33,00
= €29,790 net tax
|€250,000||€93,090 - €3,300
€89,790 net tax
*Subject to lowest income tax rate of 20%, additional earnings above this are subject to the 40% income tax rate.
- What are the deductible business expenses? How to deal with tax losses
The following business expenses can be claimed:
- the purchase of goods for resale
- employees' pay
- rent and bills for your business premises
- running costs for vehicles or machines that you use in your business
- lease payments for vehicles or machines that you use in your business
- accountancy fees
- interest payments for money you borrowed to finance your business.
You may also claim for expenses you had before your business started trading such as the cost of preparing business plans. If you are registered for Value Added Tax (VAT), the amount that you claim for expenses should not include the VAT amount.
What expenses cannot be claimed?
You cannot claim expenses for any item that is not fully related to the running of your business such as:
- clothing (except protective clothing)
- your own pay
- business entertainment expenses
- your own food or travel expenses (except those described in the Food and Accommodation Expenses and Travel Expensesmanuals).
You cannot claim a deduction for capital expenditure when calculating your profit. Capital expenditure is money you spend on buying or maintaining land, property or equipment for your business. You may be able to claim capital allowances on some of this expenditure.
Expenses that are for both business and private use
If you spend money on something that is for both business and private use, you can claim a deduction for part of the expense. This would include items such as phone bills, motor expenses and rent. You must work out how much of the expenditure was for business purposes and claim a deduction for that amount only.
- Is there double taxation relief in your country?
Ireland has signed comprehensive double tax treaties with 74 countries, 73 agreements are in effect, including treaties with all EU member states, the US, China, India and all OECD member countries. Ireland generally grants the benefit of treaties on their signature, pending ratification.
When a double taxation agreement does not exist with a particular country there are provisions in the Taxes Consolidation Acts 1997 which allow unilateral relief against double taxation in respect of certain types of income.
Additionally Ireland has the lowest corporation tax in Europe, for trading income, at 12.5%
(g) REASONS TO INVEST IN IRELAND
- TAX: Ireland’s 12.5% tax rate for trading activity, tax exemption for collective investment undertakings, and regime for asset finance, is a cornerstone of Ireland’s offering as a business location. Currently a 25% Research and Development tax credit is also available. Also as mentioned above Ireland is party to an extensive list of tax treaties.
- FINANCIAL SERVICES: The Single European Market is premised on a mutual recognition of licences and the ability to passport those licences from one European jurisdiction to another. Ireland serves as an attractive platform for banks and numerous other financial services institutions such as investment firms, insurance undertakings, payment institutions and electronic money institutions, seeking to gain access to the Single European Market. Currently, 250 of the world’s leading financial services firms and over half of the world’s top 50 banks have internationally focused operations in Ireland.
- DISPUTE RESOLUTION: The Irish Commercial Court is a specialist court designed to facilitate the speedy resolution of business disputes. Actions are case managed and are heard by experienced commercial judges. Approximately 90% of actions are resolved within one year. In relation to arbitration, Ireland has enacted the UNCITRAL Model Law on International Commercial Arbitration and is also a signatory to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Award.
- EDUCATION: Ireland’s education system ranks in the top ten in the world and Ireland has the highest proportion of science and engineering graduates within the OECD.
- BUSINESS OPENESS: Ireland ranks 1st in the EU and 6th the world for ease with which businesses can pay their taxes. Ireland ranks 1st in the world for flexibility and adaptability of its workforce. Ireland is 1st in the world for investment incentives.
If you have any further question, do not hesitate to contact our member in Dublin:
Lavell Solicitors Telephone: +353 1 644 5800
St James House, Fax: +353 1 661 4581
Adelaide Road, W: www.lavellesolicitors.ie
Dublin 2, E: email@example.com