The Legal 500

As we are all well aware this is the most turbulent climate for business both nationally and internationally, that any of us have experienced. We have therefore focused this bulletin on areas where we believe we can help you take decisive steps to manage the issues that are required to get through the downturn and be properly prepared for the future.

The Companies (Amendment) Act, 2009 (the “Act”) was signed into law on 12 July 2009. The Act provides for signifi cant changes to company law compliance and enforcement. It gives increased powers of search and seizure to the Offi ce of the Director of Corporate Enforcement (“ODCE”) and expands disclosure obligations with regard to transactions between a company and its directors (including specifi c changes for licensed banks). The Act also relaxes the requirement that at least one director of an Irish company must be resident in the State.

This quarters bulletin discusses the phenomenon of screen scraping, recent developments in Discovery Law, and the under utilised Late Payments Regulations.

Edward Evans looks at some developments in Irish company law that will effect all Irish companies.

The EU Directive on cross-border mergers (which was required to be implemented here by December 2007) is soon to be transposed into Irish law and will present an important new structuring option for Irish companies.

In recent years, the number and size of outsourcing deals in Ireland has grown. This is primarily due to an increased emphasis on reducing costs and the realisation that outsourcing can result in growth and be cost effective. Outsourcing transactions are complex, both in terms of the negotiation process and commercial understanding and the subsequent delivery of services over what will usually be a period of years.

The Burden

Section 45 of the Companies (Auditing and Accounting) Act 2003 (the "Act") will when it is brought into force, require the Directors of all plc's and large private companies to include two Compliance Statements in their report in the annual financial statements. In the Act large private companies are defined as being those with gross assets in excess of ?7.62 million and turnover in excess of ?15.2 million.

Section 56 of the Companies (Auditing and Accounting) Act 2003 ("Section 56") amends existing legislation so as to clearly facilitate for the first time in Ireland, Directors and Officers ("D & O") Insurance.

The new Commercial Division of the High Court came into being on 12th January 2004. This newly created Commercial Court is not a Court in itself but a branch of the existing High Court and it will have specialised commercial judges and state of the art facilities so as to enable large scale commercial litigation to be brought in a more rapid and cost effective manner.

The Equality Act 2004 ("the 2004 Act") came into force on 19 July 2004 and introduced a number of important changes to discrimination law in Ireland.

Section 56 of the Companies (Auditing and Accounting) Act 2003 ("Section 56") amends existing legislation so as to clearly facilitate for the first time in Ireland, Directors and Officers ("D & O") Insurance.

After a protracted legal battle spanning the last 15 years, a collection of Irish nightclub owners and hoteliers have settled a case and accepted the claim by Phonographic Performance Ireland Limited (PPI), the representative body of record companies operating in Ireland, that the record companies that PPI represent own the copyright in the music that they record.

Introduction

A new system of Integrated Pollution Prevention and Control (IPPC) licensing came into effect on 12 July 2004. The primary aims of IPPC licensing are to prevent or reduce emissions to air, water and land, to reduce waste and to use energy efficiently. The IPPC system replaces Integrated Pollution Control (IPC)as the licensing regime applicable to certain industrial activities in Ireland.

On Friday, 16 January 2004, the Department of Justice launched their consultation on the range of organisations that should be compelled to register with the Data Protection Commissioner under the Data Protection Acts 1988-2003 (the 'DPA'). Their consultation paper was made available on Monday at 5pm.

Case law update
Two recent cases are important from a data-protection perspective:

Durrant v Financial Services Authority, UK Court of Appeal, 8 December 2003
This case involved the request by the claimant from the FSA of certain manual data held by the FSA. The case examined the definitions of 'personal data', 'manual data' and 'relevant filing system' under the UK's Data Protection Act 1998, which are similar to equivalent Irish definitions in the Data Protection Acts 1988-2003. The court held that:

On 6 November 2003, it became illegal in Ireland to send unsolicited direct-marketing e-mails or SMS messages to individuals without prior consent. Fines of up to ?3,000 will be applicable for every illegal e-mail or SMS message sent.

On 3 October 2003, the European Commission published its revised draft of the Technology Transfer Block Exemption (TTBE), which is due to replace the existing rules. The TTBE sets out a 'safe harbour' in relation to certain licence agreements relating principally to patents and know-how.