Companies Act 2014 (Procedures Governing the Conduct of Section 933 Enquiries) Regulations 2019.

• Statutory Instrument No.: 567/2019
• Published date: 15 November 2019

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 15th November, 2019.

The IRISH AUDITING AND ACCOUNTING SUPERVISORY AUTHORITY, in exercise of its powers conferred on it by Section 937 (1) and Section 938 (4) of the Companies Act 2014 , as amended, hereby makes the following regulations:

PART 1

PRELIMINARY AND GENERAL

Citation and application

1. (1) These Regulations may be cited as the Companies Act 2014 (Procedures Governing the Conduct of Section 933 Enquiries) Regulations 2019.

(2) Section 933(2) of the Act provides that, following a complaint or on its own initiative, the Authority may, for the purpose of determining whether a prescribed accountancy body has complied with its approved investigation and disciplinary procedures enquire into—

(a) a decision by that body not to undertake an investigation into a possible breach of its standards by a member;

(b) the conduct of an investigation by that body into a possible breach of its standards by a member; or

(c) any other decision of that body relating to a possible breach of its standards by a member, unless the matter is or has been the subject of an investigation under section 934 relating to that member.

(3) Section 933(3) of the Act provides that, the Authority may, for the purpose of determining whether a recognised accountancy body has complied with the applicable provisions in performing a Part 27 function, enquire into the performance by the body of that function (including, where applicable, enquire into the conduct by that body of an investigation into the conduct of a member of that body).

Commencement

(4) These Regulations come into operation on the 13 day of November 2019.

Revocation

(5) The Companies (Auditing and Accounting) Act 2003 (Procedures Governing the Conduct of Section 23 Enquiries) Regulations 2012 ( S.I. No. 96 of 2012 ) are revoked.

Saver

(6) Nothing in these Regulations shall affect any existing enquiries instituted or on going before the commencement of these Regulations and such enquiries shall continue pursuant to the previous Regulations as if these Regulations had not come into operation.

(7) These Regulations shall be construed in accordance with the Act, as may be amended from time to time.

Interpretation

2. (1) Except where otherwise stated, words and expressions used in these Regulations that are used in the Companies Act 2014 , as amended, shall have the same meaning.

(2) In these Regulations, unless the context otherwise requires—

“the Act” means the Companies Act 2014 , as amended;

“the Act of 1990” means the Companies Act 1990 ;

“Act of 2003” means the Companies (Auditing and Accounting) Act 2003 ;

“adverse finding” means a finding by an Enquiry Committee that a prescribed accountancy body has failed to comply with its approved investigation and disciplinary procedures or that a recognised accountancy body has failed to comply with the applicable provisions in performing a Part 27 function, as appropriate;

“applicable provisions”, in relation to a Part 27 function and a recognised accountancy body, means, in addition to the provision of the Act that confers that function—

(a) any other provisions of the Act or of a statutory instrument made under the Act,

(b) the provisions of any section 931 notice given to the body that are relevant to that function,

(c) the provisions of Regulation (EU) No 537/2014 that are relevant to that function,

and

(d) the provisions of any rule, guideline, term or condition, relevant obligation, or direction, referred to in section 906 of the Act that are relevant to that function,

in accordance with which that function shall be performed by that body;

“approved investigation and disciplinary procedures” means—

(a) in relation to a prescribed accountancy body that is a recognised accountancy

body, the investigation and disciplinary procedures approved under—

(i) section 905(2)(c) of the Act,

(ii) section 9(2)(c) of the Act of 2003, or

(iii) the Act of 1990, whether before or after the amendments of that Act that were made by section 32 of the Act of 2003, and

(b) in relation to any other prescribed accountancy body, the investigation and

disciplinary procedures approved under—

(i) section 905(2)(c) of the Act, or

(ii) section 9(2)(c) of the Act of 2003;

“the Authority” means the Irish Auditing and Accounting Supervisory Authority, and includes any committee established to assist the Authority under section 937(1) of the Act or any officer, employee or person duly authorised pursuant to section 937(3A) or section 937(4) of the Act;

“Chief Executive Officer” means the chief executive officer of the Authority;

“complainant” means a person who has lodged a complaint with the Authority regarding an alleged breach of the approved investigation and disciplinary procedures of a prescribed accountancy body or an alleged failure of a recognised accountancy body to comply with the applicable provisions in performing a Part 27 function;

“Court” means the High Court;

“decision of a prescribed accountancy body” is—

(a) a decision by a prescribed accountancy body not to undertake an investigation into a possible breach of its standards by a member; or

(b) any other decision of a prescribed accountancy body relating to a possible breach of its standards by a member,

and, for the purposes of these Regulations, and in accordance with section 933(16)(a) of the Act, any decision made or any investigation conducted by a disciplinary committee of a prescribed accountancy body is considered to have been made or conducted by the prescribed accountancy body;

“document” includes any books, documents, records, telephone recordings or electronically held information of whatever kind;

“enquiry” means an enquiry initiated under section 933 of the Act;

“Enquiry Committee” means a committee appointed to conduct a full enquiry in accordance with these Regulations;

“full enquiry” means the proceedings to be conducted by an Enquiry Committee;

“member” has the same meaning as is provided for by sections 900(1) and 933(16)(b) of the Act;

“Part 27 function” means a function conferred on a recognised accountancy body by a provision of Part 27 of the Act or of Schedule 19 or 20 of the Act;

“preliminary enquiry” means an enquiry conducted by the Authority in order to determine whether there is a prima facie case that warrants a full enquiry pursuant to section 933(2) or 933(3) as appropriate;

“prescribed accountancy body” means—

(a) a recognised accountancy body; or

(b) any other body of accountants that is prescribed;

“recognised accountancy body” means a body of accountants recognised under section 930 of the Act for the purposes of the relevant provisions;

“relevant body” means—

(a) in relation to an enquiry referred to in section 933(2) of the Act, the prescribed accountancy body the subject of the enquiry, and

(b) in relation to an enquiry referred to in section 933(3) of the Act, the recognised accountancy body the subject of the enquiry;

“relevant person” means—

(a) a member of a recognised accountancy body,

(b) a client or former client of the member,

(c) if the client or former client is a body corporate, a person who is or was an officer, employee or agent of the client or former client, or

(d) any person whom the Authority reasonably believes has information or documents in relation to the particular function other than information or documents the disclosure of which is prohibited or restricted by law;

“relevant provisions” means the provisions of—

(a) Chapter 2 of Part 15 of the Act,

(b) Part 27 of the Act, and

(c) Regulation (EU) No 537/2014;

“Section 933A Agreement” means the agreement which, subject to the requirements of Regulation 13(2), the Authority and the relevant body may, at their absolute discretion, enter into pursuant to section 933A of the Act;

“standards” means the rules, regulations and standards that a prescribed accountancy body applies to its members and to which, by virtue of their membership, they are obliged to adhere.

PART 2

PRELIMINARY ENQUIRY

Decision to initiate a preliminary enquiry by the Authority

3. (1) The Authority, acting on foot of a complaint from a third party or on its own initiative, may initiate a preliminary enquiry to determine whether there should be a full enquiry into:

(a) a decision by a prescribed accountancy body not to undertake an investigation into a possible breach of its standards by a member;

(b) the conduct of an investigation by a prescribed accountancy body into a possible breach of its standards by a member; or

(c) any other decision of a prescribed accountancy body relating to a possible breach of its standards by a member, unless the matter is or has been the subject of an investigation–under section 934 relating to that member,

for the purpose of determining whether that body has complied with the approved investigation and disciplinary procedures.

(2) The Authority, acting on foot of a complaint from a third party or on its own initiative, may initiate a preliminary enquiry to determine whether there should be a full enquiry into the performance by a recognised accountancy body of a Part 27 function (including, where applicable, a full enquiry into the conduct by that body of an investigation into the conduct of a member of that body) for the purpose of determining whether that body has complied with the applicable provisions in performing a Part 27 function.

(3) For the avoidance of doubt, the Authority may exercise any of its powers which are set out in section 933(4)(a) and (b) of the Act at any stage in relation to an enquiry referred to in section 933(2) of the Act and any its powers which are set out in section 933(4)(a) and (c) and section 1523(1) and (4) of the Act at any stage in relation to an enquiry referred to in section 933(3) of the...