Legal Eye - November 2009
Company
The Tánaiste and Minister for Enterprise, Trade and Employment has signed into law (10 August 2009) new regulations which introduce new rights for shareholders of listed companies. Changes introduced by the new regulations include the exercise of voting rights electronically; placing an obligation on companies to answer shareholders questions at general meetings and obliging companies to publish documents and information regarding a general meeting on their website, including the results of votes taken. The Regulations also include a prohibition on share blocking (a prohibition on trading in shares in the run-up to a meeting by shareholders intent on participating and voting at such a meeting) and replaces it with a procedure whereby a shareholder’s rights are based on the shares held by him/her on a specified date prior to the general meeting. The Regulations implement the EU Shareholder’s Rights Directive and apply to companies that have their registered office in the State and whose shares are admitted to trading on a regulated market situated or operating within a Member State...
...with effect from 1 September it is now possible to reserve a company name with the Companies Registration Office (by electronic means only), prior your application for a new company if the reserve name certificate is submitted with the new company application Form A1 within the specified period of 28 days.
Employment
A new work scheme for foreign nationals has been approved by the Minister for Justice, Equality and Law Reform (14 September 2009). The purpose of the scheme is to provide a temporary immigration permission of 4 months for foreign nationals (who have become undocumented through no fault of their own) within which to seek legitimate employment, or for those who are already employed, to obtain an employment permit from the Department of Enterprise, Trade and Employment. Applications may be made on a special form available from the Irish Naturalisation and Immigration Service, with each applicant expected to demonstrate that they previously had permission both to reside and work in the State and that, on the balance of evidence available, their subsequent illegal presence was not their fault but was due to the action or inaction of their employer.
Litigation
The Law Reform Commission has published a consultation paper on personal debt management and debt enforcement (21 September 2009). The Commission makes 122 provisional recommendations for reform of the law which include proposed changes to the law on personal insolvency and court-related enforcement procedures. A key recommendation is that the law recognises the distinction between those ‘can’t pay’ and those who ‘won’t pay’. Submissions on the consultation paper may be made by interested parties to the Law Reform Commission by 31 December 2009.
Private Client
The main provisions of the Nursing Home Support Scheme Act, 2009 came in to effect on 27 October 2009. The scheme provides a new method of financial support for people in need of nursing home care. Those who apply for financial support will make a personal contribution assessed in accordance with their means, with the contribution limited to 80% of their disposable income. Those who own their own home will have their contribution related to house value, on the basis of 5% per annum, capped at three years. This element of the contribution may be deferred for payment from the estate of the person. The Scheme also introduces new care representatives for nursing home residents. Care representatives can be appointed by the Circuit Court to represent the interests of applicants who have reduced capacity and act as a safeguard for the interests of elderly or vulnerable people and a protection against possible financial abuse.
Healthcare
…The Law Reform Commission’s Report on Advance Care Directives was published on 15 September 2009 and makes 42 specific recommendations on the subject, including a draft Mental Capacity (Advance Care Directives) Bill 2009. The Commission recommends the introduction of legislation for people to make advance care directives (or living wills) concerning refusal of treatment either verbally or in writing, so that individuals can plan their medical treatment and set out any future medical interventions they do not want. Currently, there is no legal framework within which medical professionals can make decisions. The proposed legislation would not alter or affect the existing criminal legal framework within which assisted suicide or euthanasia is prohibited…
…The Medical Council has published a revised edition of the guide to professional conduct and ethics for doctors. The document now provides guidance to doctors on issues such as end of life care, assisted reproduction and handling reports of abuse. It also highlights doctors' duties in efficiently and effectively using healthcare resources, participating in competence assurance and carrying out regular clinical audits. Of note, and in line with increased emphasis on patient safety, the guide makes it clear that patients who may have suffered harm as a result of an adverse event are entitled to honest, open and prompt communication.
Property
The final date for payment of the Non-Principal Private Residence Charge (introduced by the Local Government (Charges) Act, 2009 is 30 September 2009. The €200 annual charge is payable by owners of private rental property and holiday homes to the local authority in which the property is situated. The Act provides for a grace period of one month for late payment, so that for 2009 the final date for payment was 31 October 2009. From 2010 onwards the liability date shall be 31 March of each year, with the owner liable to pay the charge by 31 May each year. The Act provides that, if a charge is not paid within a month after the last date for payment, a late payment fee will apply for every month or part of month that the €200 charge remains unpaid. For 2009, this means that the late payment fee will apply to all payments made after 31 October 2009. The late payment fee amounts to €20 per month or part of a month. The late payment fee will continue to roll up as long as the charge remains unpaid.
Financial services
The President signed the National Asset Management Agency Bill, 2009 on Sunday 22 November. A significant number of amendments were made at Committee Stage in the Dáil, including the establishment of a Special Purpose Vehicle (SPV) to buy and manage €54 billion of loans linked to land and property development. Protection for whistleblowers in the banks and NAMA who report misconduct was also carried as an amendment. The Government must now seek European Commission approval of the Act but it is hoped that some elements will be up and running by Christmas…
…the Criminal Justice (Money Laundering and Terrorist Financing) Bill 2009 was published by the Minister for Justice, Equality and Law Reform in July. The Bill implements provisions of the 3rd EU Money Laundering Directive and increases the obligations on credit and financial institutions and on lawyers, accountants, estates agents and others in relation to money laundering. The Bill will repeal and re-enact the current anti-money laundering legislation contained in other statutes, particularly the money laundering provisions contained in the Criminal Justice Act 1994.
Competition
The Competition Authority has welcomed the publication of the Medical Council’s Guide to Professional Conduct and Ethics for Registered Medical Practitioners (13 November 2009) which eases restrictions on advertising by doctors. The new guidelines have removed restrictions on the size, content and means of advertising…
…The Competition Authority has published a guidance note on Activities of Trade Associations and Compliance with Competition Law (9 November 2009) which informs the business community and trade associations of the limits that competition law places on joint or co-ordinated action by competitors. The types of activity discussed in the notice include price co-ordination; co-ordination on market allocation and output quantities; collective boycotts and negotiations; information exchange; and participation in anti-competitive meetings…
…following a full investigation, the Authority has cleared, with commitments, the proposed acquisition whereby the Irish Times, DMG Ireland and Independent Newspapers will acquire joint control of Fortunegreen (6 November 2009). Fortunegreen currently publishes Metro, a free daily newspaper in the Greater Dublin Area. Under the proposed transaction, Independent Newspapers will acquire an interest and, post-transaction, Fortunegreen will be jointly controlled by Irish Times, DMG, and Independent and will publish a single daily free newspaper, Metro Herald. Herald AM and Metro will stop being published. Following proposals from the parties involved, the Authority has decided that the transaction may proceed, pending clearance by the Minister for Enterprise, Trade & Employment for independent review under the media merger provisions of the Competition Act, 2002.
…The Authority’s Notice in Respect of Collective Action in the Community Pharmacy Sector provides guidance on the application of Irish and European competition law to collective action by community pharmacy contractors, and other health professionals when engaging the Health Services Executive (HSE). It clarifies the limits placed by competition law on co-ordinated action by self-employed health professionals in relation to key competitive factors such as fees…
…over the last few months the Authority has approved the following: proposed acquisition of Fate Park Limited by TOP (6 August 2009); proposed joint venture between SRF III and Touax of SRF Railcare Leasing Limited (7 August 2009); proposed acquisition by Noonan Services Group Limited of the NewCourt subsidiaries in the Federal Security Group (14 August 2009); proposed acquisition by Vodafone Ireland of certain fixed-line customers of BT Ireland (21 August 2009); proposed acquisition by IBM Corporation of SPSS Inc (3 September 2009); proposed acquisition of Tennent’s Beer brands by C&C Group (17 September 2009); proposed acquisition by JP Morgan Ventures Energy Corporation of EcosSecurities Group (14 October 2009); proposed acquisition by GSO Capital Partners LP of ALcontrol Laboratories (22 October 2009); proposed acquisition by Dell Inc of Perot Systems Corporation (22 October 2009); proposed acquisition by Aramark Corporation of certain wholly-owned subsidiaries of Veris plc (27 October 2009).
Family
The Law Reform Commission’s consultation paper on family rights and responsibilities of fathers and grandparents (8 September 2009) examines the rights and duties of fathers in relation to guardianship, custody and access to their children as well as the rights and duties (if any) of grandparents and other members of the extended family. One of the recommendations made by the Commission is that the terms guardianship, custody and access should be replaced by parental responsibility, day-to-day care and contact, thereby removing any misunderstanding that parents may have rights involving their children without corresponding responsibilities. Also included is a recommendation that there should be a statutory presumption that a non-marital father be granted an order for guardianship (parental responsibility) unless to do so would be contrary to the best interests of the child. Submissions on the consultation paper can be made to the Commission by 31 December 2009.