Companies Act 1963 – (Section 352) – Legal Office Notice 29 September 1995

On registration as owner of a folio of a company incorporated outside the State (a foreign company), it is necessary to establish:

1. if the company has established a place of business within the State and

2. if so, that it has complied with Section 352

A letter from the solicitor to the effect that the company has not established a place of business within the State will be sufficient evidence of that fact.

A letter, certificate or search from the Companies Office will be necessary to establish compliance with the Section.

The European Union Council Directive 89/666/EEC also known as “The Eleventh Directive” has the effect of altering the provisions of Section 352 insofar as it applies to companies incorporated outside the State which establish a branch within the State. There is no definition of “branch” in the Directive. It is a concept of Community Law (the Law of the European Union) whose meaning is ultimately to be determined by the European Court of Justice. It is generally considered that “branch” is a narrower concept than “place of business”. Every branch is also a place of business, but not every place of business is a branch.

By Regulations entitled European Communities (Branch Disclosures) Regulations 1993 (S.I. no. 395 of 1993) the Minister for Enterprise and Employment has implemented the provisions of the Directive, with effect from 1st February 1994.

Accordingly on receipt of an application for registration of a foreign company, the applicant solicitor should be requested to:-

1. certify that the company has not established a place of business or a branch within the state or

2. furnish evidence from the Companies Office showing compliance with either:

• Section 352 of the Companies Act 1963 or
• The European Communities (Branch Disclosures) Regulations 1993 (S.I. no. 395 of 1993).