The place of business established in the State must constitute a “branch” of the foreign company. If it is not a branch, then there is no requirement to register and there are no filing obligations.
What is a branch?
The Act defines “branch” as having the “same meaning as it has in the 1989 Directive”. The 1989 Directive (Council Directive No. 89/666/EEC) does not actually define branch, so its meaning is ultimately to be determined by the European Court of Justice. One European case (Somafer S.A. -v- Ferngas)[1] described a branch as
“a place of business which has the appearance of permanency, such as the extension of a parent body, has a management and is materially equipped to negotiate business with third parties so that the latter, although knowing that there will if necessary be a legal link with the parent company, the head office of which is abroad, do not have to deal directly with such parent body, but may transact business at the place of business constituting the extension”.
Characteristics of a branch
From case law we can infer certain characteristics of a branch:
- Although every branch would be regarded as an established place of business, not every established place of business would be regarded as a branch
- A branch is an extension of the parent company
- there should be some visible sign or physical indication that the foreign company has an ongoing or permanent connection with the particular premises
- business should be conducted habitually, or with some degree of regularity from that premises
- there should be locally based management which can negotiate business and contract directly with third parties.
Who must register?
A branch of a company which is incorporated outside Ireland, must, within one month of its establishment in Ireland, be registered. Currently it is only branches of foreign companies equivalent to an Irish limited liability company that must be registered, but this will extend to certain unlimited foreign companies once section 80 of the Companies (Accounting) Act 2017 has commenced.
How to register
A form ‘F12’ must be completed and lodged in the CRO together with:
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with a certified and authenticated copy of the constitutional documents of the parent company
- a certified copy of the certificate of incorporation
- copies of the latest filed financial statements of the parent company
If the relevant documents are not written in English, a certified translation into English of the documents must also be filed in the CRO. There are no specific qualifications required of the translator, however, the translator must attend before a notary and the following words must appear on the copy translation “this translation is a correct and true translation into English”.
Ongoing obligations
If the branch operates under a name other than the parent company’s corporate name, the business name must be registered in the CRO. Changes in the parent company (eg a change of directors) must be notified and the parent company’s financial statements filed annually. Finally, a branch has obligations to disclose certain information on its stationery and website. View our article on company law requirements.
[1] A.G. [1978] ECR 2183
